State v. Jasper
Decision Date | 04 February 1930 |
Docket Number | 29538 |
Parties | The State v. Lee Jasper, Appellant |
Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court; Hon. James E Montgomery, Judge.
Affirmed.
Birch & Crow for appellant.
While the granting or refusing of continuances in criminal cases rests largely in the discretion of the trial court, the courts have uniformly held that the unsound or oppressive exercise of discretion, by the trial court, constitutes error. Secs. 3996, 3997, R. S. 1919; State v Swafford, 12 S.W.2d 442; State v. Wade, 270 S.W. 298; State v. Hesterly, 182 Mo. 16; State v. DeWitt, 152 Mo. 76; State v. Maddox, 117 Mo 667; State v. Kempinsky, 96 Mo. 241; State v. Berkley, 92 Mo. 41; State v. Maguire, 69 Mo. 197; State v. Walker, 69 Mo. 274; State v. Wood, 68 Mo. 444.
Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.
(1) The refusal of a continuance is within the sound discretion of the trial court, and before this court will disturb the judgment, abuse of that discretion must clearly and affirmatively appear. State v. Wilson, 242 S.W. 887; State v. Tracy, 294 Mo. 372; State v. Williams, 263 S.W. 198; State v. Cain, 247 Mo. 700; State v. Salts, 263 Mo. 314; 16 C. J. 453, sec. 822; 16 C. J. 451, sec. 821, note 91. (a) The motion for continuance is defective in failing to show that due diligence was exercised to produce the absent witness, the wife of defendant Jasper, who, defendant alleged, would give evidence in the nature of an alibi, as subpoenas were returned non est. State v. Wilson, supra; State v. Harrison, 285 S.W. 85. (b) Unless the testimony of absent witnesses ought to have changed the result this court will not disturb the judgment. State v. Temple, 194 Mo. 251; State v. Harrison, supra.
The defendant appeals from a judgment upon conviction of a sale of hootch, moonshine, corn whiskey rendered in the Circuit Court of Chariton County, March 12, 1928. It is alleged that the sale took place January 23, 1928. One Andrew Brown testified for the State that, on the night of that day, he bought two bottles of whiskey from the defendant and paid one dollar for them. The sheriff armed with a search warrant appeared at the place at the time Brown made the purchase and arrested him when he came out of the defendant's house with his bottles.
It is unnecessary to state the evidence at any length because the only error assigned by the defendant as ground for a reversal is the action of the trial court in overruling his application for a continuance. On the day of the trial March 12, 1928, he filed his application as follows:
The prosecuting attorney, Mr. Collet, filed a counter affidavit in which he alleged that Rosa Jasper, the wife of the defendant, left the city of Brunswick in Chariton County by permission of her husband; that he could have procured her attendance by having a subpoena issued; that it was not necessary for her to go to the State of Kansas, as alleged in the application; and that the Sheriff of Chariton County talked with the defendant on March 9th and he told the sheriff that his wife had gone to Kansas and would be back that night. The affidavit also denies that Helen Greenwood was present at the time of the alleged sale of the whiskey.
As to the absence of defendant's wife, Rosa Jasper, it may be said that the statements of the prosecuting attorney were mere conclusions, or hearsay. He does not state any facts as of his own knowledge.
The same may be said of the statement in the application by the defendant that his wife was ordered by her attending physician to take his child for medical attention to Kansas City, Kansas. No facts are stated that show that it was any more necessary to take the child to Kansas than to procure proper attendance of a physician upon such child in Missouri. Nor does the application of the defendant say that his wife was ordered in his presence to leave this State by the physician, or that he knew of his own knowledge of such order. It would have been easy to have procured the certificate of the physician to that effect, if there had been any such order. Also, no effort was made to take the deposition of Mrs. Jasper, though defendant's application shows he knew of her expected absence in time to take her deposition.
As to Helen Greenwood, after saying that she had been duly subpoenaed on March eighth, the defendant makes this statement:
"Defendant further states that the said Helen Greenwood is confined to her bed by illness and was and is unable to appear for the trial of this case on this day or during this term."
If a party causes his witness to be subpoenaed and on the day of trial the witness fails to appear and the party is unable to account for the absence of such witness, the matter comes to him as a surprise. That would entitle him to a continuance if his witness is important. But that is not this case. The defendant in this case attempts to account for the absence of Helen Greenwood. He swears she is confined to her bed by illness and will be unable to appear, not only on the day of the trial but during the term. His conclusion implies an intimate knowledge of her condition all the time. Upon what does he base his conclusion? Merely the affidavit of the sheriff that when he served the subpoena Helen Greenwood was "actually confined in bed." "Confined" is conclusion. "Actually" is an adverbial ornamentation of that conclusion.
That affidavit must have been constructed by the defendant. Note that the sheriff did not go to the extent the defendant did and say that she was confined to her bed by illness. A sheriff is a man of action and not of rhetoric. All the sheriff's statement amounts to is that she was in bed when he served the subpoena. If he had thought she was sick he would have said so. Instead of using the expression "actually confined" he would have said she was "sick in bed," as any well constructed sheriff would have said. Now, since the defendant assumed to know all about Helen Greenwood's condition as well as her whereabouts, it would have been easy for him to have stated the facts. She was only a few miles distant. There is nothing in the application to indicate that the telephone was not in operation. It would have been easy for the defendant to have called Helen Greenwood or her physician, or her home, or to have employed some simple and easy method to ascertain what her condition was on...
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