State v. Jackson., No. 36420.
| Court | Missouri Supreme Court |
| Writing for the Court | Tipton |
| Citation | 130 S.W.2d 595 |
| Parties | THE STATE v. CHESTER JACKSON, Appellant. |
| Docket Number | No. 36420. |
| Decision Date | 07 July 1939 |
v.
CHESTER JACKSON, Appellant.
[130 S.W.2d 596]
Appeal from Jasper Circuit Court. — Hon. Wilbur J. Owen, Judge.
REVERSED AND REMANDED.
Ralph E. Baird and Russell Mallett for appellant.
(1) Overruling defendant's motion for continuance was an improper and prejudicial abuse of discretion upon his showing good and proper cause. Lack of time to prepare is good cause. Defendant was deprived of his constitutionally guaranteed right to be represented by counsel. It was erroneous to allow defendant's employed attorney to withdraw and then to refuse continuance. State v. Mackensie, 228 Mo. 385; State v. Bell, 212 Mo. 111; State v. Wade, 307 Mo. 291; State v. Lewis, 74 Mo. 222; State v. Maddox, 117 Mo. 667; State v. Kauffman, 329 Mo. 813; State v. Dreschamps, 41 La. Ann. 1051, 7 So. 133; State v. Sullivan, 43 Kan. 563, 23 Pac. 645; Price v. People, 131 Ill. 223, 23 N.E. 639; State v. Ferris, 16 La. Ann. 435; State v. Simpson, 38 La. Ann. 24; State v. Brooks, 39 La. Ann. 421, 1 So. 421; Blackman v. State, 76 Ga. 288; State v. Jones, 12 Mo. App. 93; State v. Anderson, 96 Mo. 241; State v. Dawson, 90 Mo. 149; State v. Walker, 69 Mo. 474; Mo. Const., Art. II, Sec. 22; Revised Bar Rules, Rule 44. (2) The court should have given the instruction offered by defendant on second degree murder or one in its stead for defendant's evidence shows that this killing was not deliberately done. Defendant was thereby prejudiced because the jury had to acquit defendant or find him guilty of murder in the first degree. R.S. 1929, secs. 3982, 3983, 3984; State v. Weiners, 66 Mo. 13; State v. Curtis, 70 Mo. 594; State v. Ellis, 74 Mo. 207; State v. Hill, 69 Mo. 451; State v. Bulling, 105 Mo. 204; State v. Williams, 186 Mo. 128; State v. Richardson, 194 Mo. 329; State v. McMullin, 170 Mo. 608; State v. Heath, 221 Mo. 565; State v. Snow, 293 Mo. 143; State v. Henke, 313 Mo. 615; State v. Liolios, 285 Mo. 1; State v. Batson, 339 Mo. 298; State v. Warren, 326 Mo. 843; Kelly's Criminal Law (4 Ed.), sec. 478, p. 446; State v. Musick, 101 Mo. 260; 30 C.J., sec. 641, p. 396; State v. McKenzie, 177 Mo. 699; State v. Kauffman, 329 Mo. 813; State v. Baird, 297 Mo. 219.
Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.
(1) There was no error in refusing to grant a continuance. Sec. 3653, R.S. 1929; 16 C.J., p. 497, sec. 912; State v. Lindsey, 62 S.W. (2d) 421, 333 Mo. 139; State v. Messino, 30 S.W. (2d) 759, 325 Mo. 743. (2). The court committed no error in refusing to instruct on second degree murder. State v. Bell, 37 S.W. 823, 136 Mo. 125.
TIPTON, J.
In the Circuit Court of Jasper County, Missouri, the appellant was convicted of murder in the first degree and his punishment was assessed at death.
The appellant and the deceased, Daisy Esmond, both negroes, had been living together as man and wife in the city of Joplin, Missouri. On August 2, 1938, the deceased went to the home of her brother-in-law, Lester Ramson, and that night the appellant came to that place and tried to get her to go back to his home with him. On the next night, the appellant walked up to a screened door at Ramson's house, pulled it open, and shot the deceased in the back, from which wound she died. The appellant does not contend that the evidence is insufficient to sustain a first degree murder charge, therefore, we will not detail the facts leading up to the fatal shooting.
The appellant contends that the trial court committed reversible error, first, for the reason that it refused his motion for a continuance, and, second, because it refused to give an instruction on second degree murder.
[1] "While an application for a continuance is addressed to the sound discretion of the trial court, the application and the ruling of the trial court thereon are reviewable on appeal, and our appellate courts will not permit the judgment to stand if it is apparent that the trial court...
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Jablonowski v. State, No. A--730
...Ga. 514, 40 S.E. 779 (Sup.Ct.1902); Nelson v. Commonwealth, 295 Ky. 641, 175 S.W.2d 132 (Ct.App. 1943); State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595 (Sup.Ct.1939); Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (Sup.Ct.1947); State v. Farrell,223 N.C. 321, 26 S.E.2d 322 (Sup.Ct.1943); Ex par......
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State v. Stidham, Nos. 45537
...of the right to counsel long before Escobedo and Miranda. See Ex parte Stone, Mo.App., 255 S.W.2d 155; State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595 and State v. Witt, Mo., 422 S.W.2d The appellant's complaint as to counsel arose in and for the most part is based upon these circumstances: ......
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State v. Goacher, No. 49930
...because there was no evidence of 'deliberation,' citing State v. Liolios, 285 Mo. 1, 225 S.W. 941, and State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595. In Liolios, the Court discussed the contrasting requirements of 'deliberation' and 'heat of passion,' and merely held that a second degree m......
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State v. Sturdivan, No. 57539
...and it is lacking where provocation produces a state of passion as to interfere with judgment and reason, State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595, 597 (1939), State v. West, 346 Mo. 563, 142 S.W.2d 468, 471 (1940). Evidence of mental disease, if present (as suggested by defendant's p......
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Jablonowski v. State, No. A--730
...Ga. 514, 40 S.E. 779 (Sup.Ct.1902); Nelson v. Commonwealth, 295 Ky. 641, 175 S.W.2d 132 (Ct.App. 1943); State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595 (Sup.Ct.1939); Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (Sup.Ct.1947); State v. Farrell,223 N.C. 321, 26 S.E.2d 322 (Sup.Ct.1943); Ex par......
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State v. Stidham, Nos. 45537
...of the right to counsel long before Escobedo and Miranda. See Ex parte Stone, Mo.App., 255 S.W.2d 155; State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595 and State v. Witt, Mo., 422 S.W.2d The appellant's complaint as to counsel arose in and for the most part is based upon these circumstances: ......
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State v. Goacher, No. 49930
...because there was no evidence of 'deliberation,' citing State v. Liolios, 285 Mo. 1, 225 S.W. 941, and State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595. In Liolios, the Court discussed the contrasting requirements of 'deliberation' and 'heat of passion,' and merely held that a second degree m......
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State v. Sturdivan, No. 57539
...and it is lacking where provocation produces a state of passion as to interfere with judgment and reason, State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595, 597 (1939), State v. West, 346 Mo. 563, 142 S.W.2d 468, 471 (1940). Evidence of mental disease, if present (as suggested by defendant's p......