State v. Knight
| Decision Date | 10 November 1947 |
| Docket Number | 40496 |
| Citation | 206 S.W.2d 330,356 Mo. 1233 |
| Parties | State v. Marshall Knight, Appellant |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court; Hon. Norwin D Houser, Judge.
Affirmed.
Eugene M. Munger for appellant.
(1) This case had been continued and the order continuing it was yet in force when the defendant was compelled to go to trial. (2) Defendant had a legal right to employ as many lawyers as he wanted. The courts have no right to interfere with that prerogative. State v. Myers, 179 S.W. 72. (3) The purpose of the law compelling continuances in accordance with the provisions of Section 1089, R.S. 1939, as amended, was to encourage lawyers to seek membership in the General Assembly and to protect them while serving in that capacity. State v. Clark, 214 Mo.App. 536; State v. Hatch, 192 S.W.2d 106; State v. Bowenkamp, 30 S.W.2d 753. (4) The prosecuting attorney should not have been permitted in his opening statement to the jury to have related the details of the alleged Eleanor Abbott incident. State v Wright, 161 Mo.App. l.c. 604; State v. Kennedy, 177 Mo. l.c. 117. (5) The testimony relative to the alleged Eleanor Abbott incident two weeks before the homicide was wholly incompetent and highly prejudicial and should not have been permitted and after its admission should at least have been stricken out on defendant's motion.
J E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.
(1) The court did not err in permitting the prosecuting attorney to refer to in his opening statement, and in the course of the trial to introduce evidence disclosing an illicit relationship between the defendant and the witness Eleanor Abbott which had occurred some three weeks previous to the night of the homicide. State v. Holliday, 353 Mo. 397, 182 S.W.2d 553. (2) The court did not err in proceeding with the trial of this cause on April 29, 1946. Sec. 96, Laws 1943, p. 353, sec. 847.96, Mo. R.S.A.; Joint Resolution No. 1, 63rd General Assembly; Kyger v. Koerper, 197 S.W.2d 946; State ex rel. v. Barton, 197 S.W.2d 667.
Van Osdol, C. Bradley and Dalton, CC., concur.
Defendant appeals from a judgment and sentence of twenty-five years imprisonment upon conviction of murder in the second degree.
Defendant fatally shot one Mearle Hale with a 38-Special revolving pistol. The homicide occurred at about two o'clock in the morning of July 15, 1944. Defendant was a police officer in the City of Sikeston; and Mearle Hale was a member of a street maintenance crew of seven employed by the city and then engaged in repainting the "parking lines" on pavements in the city. The work was being done under the supervision of Lawrence Ables, Street Commissioner.
Very early in the morning of July 15th, the men of the maintenance crew, while engaged in their painting work, saw an automobile belonging to the city (the automobile was used by defendant and others of the police force) parked in the shadow of a sycamore tree near the American Legion Park in Sikeston. Some of the members of the crew approached the automobile and, by the light of a match, saw a young woman, commonly called "Doodle," lying asleep in the front seat of the car. At this time defendant hurriedly approached and demanded, "What the God damn hell are you fellows doing around this car?" Defendant then entered the automobile and, taking the young woman with him, drove away in the direction of the jail. He later returned and stopped his car (headed west) a little east and south of the place where the men of the maintenance crew were working.
According to the testimony of Lawrence Ables, defendant
Defendant relied upon the law of self-defense. It was his testimony that deceased struck the first blow with a gauging or marking stick (a board about 16 feet in length; 1 1/2 inches in width; and 3/4 of an inch in thickness, customarily used by the maintenance crew in gauging the parking lines for painting). The board was apparently broken in the course of the affray; the insignia on defendant's cap was bent; and the cap's visor torn away. Defendant testified that, in the encounter between himself and deceased, others of the maintenance crew "ganged" defendant, putting him in fear of great bodily harm; and that he "just up and shot" without an intention to kill.
Defendant contends the trial court erred in denying defendant's application for a continuance based on the stated ground defendant's attorney was a member of the House of Representatives of the 63d General Assembly and "in actual attendance on said House"; and in resetting the cause for trial without setting aside a previous order of continuance. (One of defendant's counsel, at that time, was Hon. George Munger, Representative of Stoddard County.) Defendant further assigns errors of the trial court in permitting the prosecuting attorney to state, in his opening statement, his intention to prove an act of illicit sexual intercourse of defendant with the girl, Doodle, which act according to Doodle's testimony occurred about three weeks prior to the homicide; and in permitting the introduction of testimony of the illicit relation.
The record discloses the cause was tried April 29-30, 1946. We notice the 63rd General Assembly recessed from April 2, 1946, to May 6, 1946; and, since the dates of the trial were, as stated, April 29th-30th, the trial was had during a "recess for twenty days or more of the general assembly," and "ten days" or more after the beginning of the recess of "twenty days or more." So the trial was had during a recess of the General Assembly and at a time permitted by statute. See Section 96, Civil Code of Missouri, Laws of Missouri, 1943, pp. 383-4. Moreover, the affidavit in support of the application for a continuance was insufficient. The affidavit stated but the conclusion that counsel's "attendance upon the trial of said cause is necessary to a fair and proper trial thereof." It is held the meaning of Section 96, supra (in saying a party has sufficient cause for a continuance "if it shall appear to the court . . . that the attendance of . . . counsel is necessary to a fair and proper trial") necessarily must be that the affidavit must state facts which would support such a finding and from which the court could reach such a conclusion. Kyger v. Koerper, 355 Mo. 772, 207 S.W. 2d 46.
But defendant contends the Section 96, Civil Code of Missouri supra, is invalid because violative of constitutional provisions, "No bill shall contain more than one subject which shall be clearly expressed in its title . . ." Section 23, Article III, Constitution of Missouri, 1945; and see Section 28, Article IV, Constitution of Missouri, 1875. Defendant argues the title of the Civil Code of Missouri, Laws of Missouri, 1943, page 353 et seq., does not show the Legislature, in enacting the Code, was "legislating or attempting to legislate concerning criminal matters." While defendant, in his suggestions to the trial court in opposition to the trial setting and in support of the application for a continuance, urged Section 96, supra, was in violation of the Constitution of 1875, he failed to preserve the question in his motion for a new trial. A motion for a new trial must set forth in detail and with particularity the specific grounds therefor. Section 4125 R.S. 1939, Mo. R.S.A. sec. 4125. Assignments of error not preserved by the motion for a new trial are not open for review upon appeal. State v. Wynne, 353 Mo. 276, 182 S.W. 2d 294, and cases therein cited. As in the case of other contentions of error, a question sought to be raised at the trial relating to the constitutionality of a statute but which question is...
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