State v. Lett

• Decision Date: 31 October 1884
• Citation: 85 Mo. 52
• Parties: THE STATE v. LETT, Appellant.
• Court: Missouri Supreme Court

85 Mo. 52

THE STATE

v.LETT, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Carroll Circuit Court.--HON. J. M. DAVIS, Judge.

AFFIRMED.

J. W. Sebree for appellant.

The court erred in overruling defendant's application for continuance. State v. Woods, 68 Mo. 444, et seq. The state had no right to admit what the absent witnesses would swear to, if present. State v. Hickman, 75 Mo. 416; Chambers v. Smith, 30 Mo. 156. Instruction number seven, given for the state, was erroneous in telling the jury they might disregard the whole of the testimony of any witness who had sworn falsely. The word wilful should have been in the instruction. State v.Elkins, 63 Mo. 166, 167. The facts in this case did not justify an instruction on the subject of credibility of witnesses. Railroad v. Murdock, 62 Mo. 74; White v. Maxey, 64 Mo. 559; Nichols v. Winfrey, 79 Mo. 551. The court should have instructed the jury that Davis' testimony could only be received as contradictory. State v. Swain, 68 Mo. 615. The testimony of Bryant as to seeing defendant in the saloon with a knife an hour before the difficulty, was illegal, and no part of the res gestæ. State v. Evans, 65 Mo. 579; State v. Adams, 76 Mo. 376; State v. Guy, 69 Mo. 430. This testimony could not be withdrawn by instruction. State v. Blan, 69 Mo. 324; State v. Rothchild, 68 Mo. 55. The expert testimony of Dr. Waggoner was illegal. It was the duty of the court to instruct the jury upon the whole case, whether the defendant asked it or not. State v. Banks, 73 Mo. 596. The indictment charges that the knife was a deadly weapon and it devolved upon the state to prove it. Carrico v. State, 11 Mo. 580; State v. Nueslein, 25 Mo. 111. The verdict of the jury ought to show of what degree of assault to kill they found defendant guilty. R. S., sec. 1927. The record does not show that defendant was in court to make his challenges to the grand jury which found a true bill against him. R. S., sec. 1772; Bishop on Crim., sec. 745, p. 746, note 1.

B. G. Boone, Attorney General, for the state.

(1) Defendant's application for continuance was defective in failing to state that he was unable to prove the facts therein contained by any other witness whose testimony could be as readily procured. R. S., sec. 1884. It was properly overruled. (2) The refusal of the court to grant a continuance, not being relied on in the motion for a new trial, will not be reviewed by this court. State v. Mann, 83 Mo. 589. (3) The court did not err in admitting the testimony of the witness, Charles Davis, contradicting or impeaching the statement of Montgomery. The affidavit was a sufficient foundation for its introduction. State v. Miller, 67 Mo. 608; State v. Mann, supra. (4) The court did not err in selecting bystanders to fill vacancies on the grand jury. Section 1771, R. S., 1879, page 300. From the whole record in this case it appears that the defendant had a fair trial and the conviction was proper.

NORTON, J.

The defendant was indicted in the circuit court of Carroll county, at its December term, 1884, under section 1262, Revised Statutes, for an assault to kill one Jacob Koons. The indictment was returned on the fifth day of December, 1884, and the trial had on the eleventh day of the same month, resulting in the conviction and sentence of defendant to the penitentiary for the term of six years, from which judgment defendant has appealed to this court.

The first error assigned is, the action of the court in overruling defendant's application for a continuance. It is provided by section 1884, Revised Statutes, that an application for continuance, which is based upon the absence of material witnesses, must state, among other things, “what facts he believes the witness will prove, * * * and that he is unable to prove such facts by any other witness whose testimony can be as readily procured.” The affidavit of defendant filed in support of his motion for continuance, while it states what facts he expected to prove by the absent witness, is fatally defective in not containing the further statement, required by the statute, that he was unable to prove such facts by any other witness whose testimony could be as readily procured, and for this reason, if for no other, the application was properly overruled. Notwithstanding it has been held by this court in the cases of State v. O'Connor, 65 Mo. 374, and State v. Hickman, 75 Mo. 416, that it is only when a good ground for continuance has been shown that the admission of the prosecuting attorney that the facts set out in the application shall be taken and received by the court and jury as the testimony of such absent witness, can be made and the trial proceeded with, without the consent of the defendant, still in this case the admission was made, and defendant on the trial had the benefit of it, though not entitled to it, under said rulings, his application, as we have seen, being fatally defective. This, however, was an error against the state and in defendant's favor, of which he cannot complain.

It is also insisted that the court erred in allowing a witness to state that defendant, about an hour before the difficulty in which Koons was cut, was seen in a saloon with a knife, and said he was going to cut some one with it. It is sufficient to say of this objection that the record shows, and so states that this evidence was received without objection. It is not objected that the court erred in allowing...