State v. Jennings

• Citation: 81 Mo. 185
• Parties: THE STATE v. JENNINGS, Appellant.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

81 Mo. 185

THE STATE

v.JENNINGS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Henry Circuit Court.--HON. J. B. GANTT, Judge.

AFFIRMED.

M. A. Fyke, B. G. Boone and P. A. Parks for appellant.

The court erred in overruling defendant's application for a continuance. The witness, Peerey, had been duly subpœnaed, but was injured and taken sick but a few days before the trial, and could not attend, and the application being made at the term at which the indictment was found, the court ought to have given the defendant the benefit of the personal presence of the witness before the jury. An attachment in this case would have been of no avail, as the witness was sick and unable to attend court, as the court found by holding that the application was sufficient. State v. Hickman, 75 Mo. 416. The instruction upon the recent possession of stolen property, was erroneous. 1st, Because it assumes that defendant recently after the mare was stolen had possession of her--a fact which defendant denied all the way through the case. 2nd, It tells the jury that defendant relies in part for his defense on the claim that he was not present when the mare was stolen. It wholly ignores all evidence as to the fact that defendant was not at Warrensburg, and, therefore, not in the possession of the mare.

D. H. McIntyre, Attorney General, for the State.

The court did not err in overruling defendant's application for continuance. The absent witnesses were unable to attend on account of sickness. No attachment was asked in either case, and if it had been, the witnesses were, by defendant's own showing, too sick to attend, and it would not have been error to refuse it. State v. Hatfield, 72 Mo. 518. It is in just such cases that the admissions provided for by section 1886 may be made. State v. Hickman, 75 Mo. 416. The instruction as to recent possession of stolen property, correctly declares the law, ( State v. Bruin, 34 Mo. 541); and a preponderance of evidence was necessary to establish an alibi. State v. Northrup, 48 Ia. 583; State v. Kline, 54 Ia. 183; State v. Krewsen, 57 Ia. 588; State v. Red, 53 Ia. 69; State v. Reitz, 83 N. C. 634; Wade v. State, 65 Ga. 756.

NORTON, J.

The defendant was indicted in the circuit court of Henry county at its December term, 1882, and at the same term, on the 12th of January, 1883, defendant applied for a continuance because of the absence of two material witnesses, both of whom had been subpœnaed, but in consequence of sickness were unable to attend the trial. Upon the admission of the prosecuting attorney that the witnesses, if present, would testify as stated in the affidavit, and that such statement might be read as their evidence, the court overruled the application and the trial proceeded, which resulted in the conviction of defendant. The cause is before us on defendant's appeal, and the action of the court in overruling the application for the continuance and in giving the following instruction are assigned for error:

“The court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and allows this presumption to continue until overcome by evidence proving his guilt. And on the other hand where property has been stolen, and recently thereafter, the same property is found in possession of another, such person is presumed to be the thief, and, if he fails to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him; but in this case, the jury are instructed, that the defendant relies, in part, for his defence upon the claim that he was not present when the mare was stolen, as charged in the indictment, but was some distance from the place where said mare was taken at the time of said taking. Now if the jury find and believe from the evidence, that at the time said mare was stolen, the defendant was not present at the place from which she was stolen, but was some distance from said place, then the jury must acquit him, as the presumption of guilt from such recent possession would be rebutted by such proof made to the satisfaction of the jury.”

The rule announced in that portion of the instruction which relates to the presumption arising from the recent possession of stolen property has received the repeated sanction of this court. State v. Kelley, 73 Mo. 608, and the cases therein cited; State v. Babb, 76 Mo. 501.

The remaining portion of the instruction, which counsel for defendant claims to be misleading, and subject to be construed as assuming that defendant was in the possession of the mare, the subject of the larceny, recently after she was stolen, when considered with reference to the other instructions given and the evidence, could not have prejudiced defendant nor misled the jury.

On the trial the State sought to establish the guilt of defendant by showing that he was seen in Warrensburg about 8 o'clock in the morning, of the day after the theft was committed with the stolen mare in his possession, and that he sold her there for $65, she being worth about $150. The evidence introduced by the State tended to establish the above facts. On the other hand, the evidence introduced by the defendant, tended to show that at the very same time the State's witnesses said defendant was in Warrensburg, he was at another place, twenty odd miles distant from Warrensburg. In this conflicting state of the evidence, it was for the jury to determine the question, as to whether or not, defendant was seen in possession of the mare the morning after she was stolen, and this question, as well as all others, were fairly submitted to the jury in other instructions, in which they were told that they were the sole and exclusive judges of the credibility of the witnesses and the weight to be given their evidence; and, if from all the evidence in the case, they entertained a reasonable doubt of defendant's guilt it was their duty to acquit him. We do not understand the instruction to assume as a fact, that defendant was in possession of the stolen property recently after it was stolen; but as a direction to the jury that although they might believe that defendant was seen in the possession of the animal soon after she was stolen, yet if they further believed that defendant was not present at the place from which she was stolen, but was some distance therefrom, that this would rebut the presumption arising from such possession, that he was the thief. The requirement that the alibi relied on should be made out to the satisfaction of the jury was fair to defendant; the burden of establishing it rested upon him and he cannot complain of the instruction in that respect, especially so in view of the instruction given that if on the whole case the jury had a reasonable doubt they would acquit, and the further instruction that before they could convict on circumstantial evidence, the circumstances tending to show guilt should be established beyond a reasonable doubt, and when the circumstances so established should point so strongly to the guilt of defendant as to exclude any other reasonable hypothesis.

It is also insisted that the court erred in overruling defendant's application for a continuance. It appears that the application was based on the absence of two witnesses who had been subpœnaed, but were not in attendance, and that an attachment, which, so far as the record shows, was not asked, would have been ineffectual to secure their attendance had it been asked. Upon the admission of the prosecuting attorney, that said witness, if present, would testify to the facts stated in the affidavits, and that such statement should be read as their evidence, the continuance was refused, and the trial proceeded with. This action of the court is fully sustained by the cases of State v. Hickman, 75 Mo. 416; State v. Underwood, 75 Mo. 230; State v. Miller, 67 Mo. 604; State v. Hatfield, 72 Mo. 518; State v. Underwood, 76 Mo. 630.

It is claimed that the act of the legislature authorizing such action as was taken by the court in this case in regard to the continuance, is in violation of the constitutional right given to a defendant in a criminal prosecution to have compulsory process to procure the attendance of witnesses in his behalf. In the case of State v. Hickman, supra, this precise question was before the court, and it was held that when a defendant had availed himself of the process of the court to procure his witnesses, and it had failed to secure their attendance, that the act authorizing or requiring the court to overrule an application for continuance, based upon the absence of such witnesses, provided the prosecuting attorney would agree that the statement of what they would swear to, if present, should be read as their evidence, violated no constitutional right of defendant. At one time in the history of the common law a defendant in a criminal case could not avail himself of the process of the court to bring in his witnesses, and if he succeeded in getting them before the court without such process, while he might examine them he could not demand that they should be sworn. To remedy this wrong and change the rule, a clause, in effect the same as that contained in our bill of rights, is to be found in Magna Charta. The evident purpose of it was to give to persons criminally charged the means of getting evidence in their behalf before the court and jury, through the process of the court. Its object was to prevent a person charged, with being tried for a crime without the evidence he wished to offer in his defense. When the process to procure the attendance of witnesses has been resorted to by a defendant, and proves to be ineffectual, the act of the legislature, which provides that notwithstanding such failure, if he state in his application for a continuance what he expects to prove by the absent witness, whom the process of the court has failed to bring, and the prosecuting attorney...