State v. Johnson
| Decision Date | 11 January 1971 |
| Docket Number | No. 55351,No. 1,55351,1 |
| Citation | 461 S.W.2d 724 |
| Parties | STATE of Missouri, Respondent, v. Earsel Larry JOHNSON, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Thomas H. Stahl, Asst. Atty. Gen., Jefferson City, for respondent.
L. E. Atherton, Milan, for appellant.
HOUSER, Commissioner.
Earsel Larry Johnson was charged with and convicted by a jury of felonious assault with intent to do great bodily harm with malice aforethought. § 559.180, V.A.M.S. Sentenced to five years' imprisonment, he has appealed.
According to the State's evidence Johnson assaulted and stabbed Clifford Nickell with a knife at a tavern.
Error is assigned in the failure of the State to prove that the crime was committed in Sullivan County. Johnson cites State v. McGraw, 87 Mo. 161, and State v. Blunt, 110 Mo. 322, 19 S.W. 650, in support of his contention of fatal failure to prove venue. We find no error in this respect, however, for the reason that the State proved sufficient facts and circumstances to reasonable support the inference that the offense was committed in Sullivan County, namely, the testimony of Billy Crowdis that he was the Sheriff of Sullivan County and that he investigated the disturbance at the only tavern at Green Castle; the testimony of Zelma, Donald and Clifford Nickell that the occurrence took place at a tavern in Green Castle, identified as Snelling's Bar located in Green Castle, Missouri, and that of Everett Snelling, who testified that he owned the only tavern in Green Castle and who related events which occurred there that evening touching this affair. On the question of venue this Court will take judicial notice that Green Castle, Missouri is located in Sullivan County. See State v. Garrett, Mo.Sup., 416 S.W.2d 116, and cases cited, l.c. 118--119.
The trial court is charged with abuse of discretion in overruling Johnson's application and affidavit for a continuance which alleged the absence of witnesses Ella Maddox and Carolyn Crowder; what they would testify to if present; the materiality of their testimony; the efforts Johnson had made to get in touch with them (letters written to them at their last known addresses in Missouri and Illinois and returned to him); that since shortly after his arrest on this charge he had been confined under a previous conviction; that he was due to be released from confinement on November 26, 1969 (approximately one month after the date the case was set for trial) and that if the case should be continued to January 15, 1970 he would be able to locate the witnesses and have them present at the trial.
This was an application for a seventh continuance. The case, first set for trial on January 23, 1969, was continued to March 26, to April 21, to June 10, to September 22, to October 2, and then to October 23, when it was finally tried. The record does not show who applied for each of these continuances but some delays were occasioned by Johnson, when for instance he moved to remand the case for a preliminary hearing; when he discharged previously retained counsel, and when he applied for a resetting on September 22. The record does not show whether witnesses Maddox and Crowder were available during the nearly 10-month period between arrest and trial, but Johnson had that length of time within which to locate them, and there is nothing to indicate that Johnson caused subpoenas to issue in an effort to make them available at any of the trial settings while they were still living in Missouri, or that Johnson made any effort to locate them through the offices of the sheriffs or city police in Illinois after they went to Illinois. Whether after release Johnson would be able to locate the witnesses was problematical. Whether, if located in Illinois, they actually would appear in the Missouri court was speculative and conjectural, since they would not be amenable to process sued out of a Missouri court and any appearance here would be entirely voluntary. Johnson's affidavit that he wrote several letters to these witnesses (at undisclosed times during this long period), all of which were returned to the sender, and stating his belief that he would be able to locate the witnesses and have them at the trial if the cause was continued to January 15, 1970 did not constitute the 'very strong showing' required to induce an appellate court to interfere with the action of a trial court in denying a continuance. See State v. Amerison, Mo.Sup., 399 S.W.2d 53, 55, quoted with approval in State v. Thomas, Mo.Sup., 433 S.W.2d 537, 539. Nor did Johnson thereby convincingly demonstrate to the trial court the probability of...
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State v. Howell, s. 58283
...the facts in evidence are sufficient to arguably show a lack of an essential element of the higher degree of the offense. State v. Johnson, 461 S.W.2d 724 (Mo.1971), is a case where no lesser assault instruction was required. The court analyzed the evidence and concluded that there was no e......
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