State v. Lee

• Decision Date: 04 November 1889
• Citation: 98 Mo. 609,12 S.W. 254
• Parties: STATE v. LEE.
• Court: Missouri Supreme Court

12 S.W. 254

98 Mo. 609

STATE v. LEE.

Supreme Court of Missouri.

November 4, 1889.

CRIMINAL LAW — CONTINUANCE — CHANGE OF VENUE.

1. Where defendant asks for continuance on account of an absent witness, and attachment issues, which fails to secure his attendance on the day set for trial, and attachment issues with a like result on the succeeding day, it is error to refuse a second application for continuance, though the prosecuting attorney admits that a statement of what defendant proposed to prove by the absent witness might be read to the jury.

2. The action of the trial court in refusing a defendant, under indictment, a change of venue on account of the prejudice of the community, will not be revised on appeal, unless it appears that there has been a palpable abuse of judicial discretion.

BARCLAY, J., dissenting.

Appeal from circuit court, Livingston county; J. M. DAVIS, Judge.

Jonas J. Clark and Scott J. Miller, for appellant. The Attorney General, for the State.

BRACE, J.

At the September term, 1887, of the circuit court of Livingston county, the defendant was indicted for grand larceny, and on the 3d of October filed an application for a change of venue on the ground of prejudice of the inhabitants of said county against him; which coming on to be heard, the defendant introduced evidence tending to show the existence of such prejudice, and the state introduced evidence tending to show that such prejudice did not exist so as to prevent his having a fair trial in said county. The court refused to grant a change of venue. Thereupon the defendant made application for a continuance of the cause until the next term on account of the absence of Daniel Gibbons and other witnesses. The court refused to continue the cause until the next term, caused writs of attachment to be issued for the absent witnesses, and continued the case until the 21st day of November, 1887. On which day, the cause coming on to be heard, the witness Gibbons being still absent, though in the mean time he had been arrested, and brought into court, and discharged on recognizance to appear on the 21st of November, a second attachment was issued against him, returnable forthwith, and the cause passed until said attachment should be returned. On the next day the attachment was returned not served, and, the said Gibbons still being absent, the defendant filed a second application for a continuance on account of the absence of said Gibbons, and of two other witnesses whom he alleged to be material, setting out the facts which he expected to prove by them. On the hearing of this application the prosecuting attorney announced that the state was ready for trial, and would admit the...