State v. LeWis

• Decision Date: 03 November 1880
• Citation: 9 Mo.App. 321
• Parties: STATE OF MISSOURI, Respondent, v. MATTHEW LEWIS, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 321

STATE OF MISSOURI, Respondent,

v.MATTHEW LEWIS, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 3, 1880.

1. Parties are, in the absence of fraud or treachery on the part of their attorney, bound by his acts or omissions.

2. Where there has been an abuse of the discretion of the trial court in refusing to grant a continuance in a criminal case, the judgment will be reversed.

APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.

Reversed.

A. N. MERRICK, for the appellant, cited: The State v. Wood, 68 Mo. 444; The State v. Maguire, 69 Mo. 203; The State v. Walker, 69 Mo. 274.

J. C. NORMILE, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The defendant was indicted for murder in the first degree. After two continuances by consent of the parties and one upon the court's own motion, the case was called for trial on the eighteenth day of November, 1879. The defendant made an application for continuance, supported by an affidavit of his attorney, which on the following morning was overruled. A supplemental application for continuance was then made, supported by the defendant's affidavit. This also was overruled, whereupon the defendant's attorney withdrew wholly from the cause. The court then appointed Messrs. Babcock and Turner, two respectable attorneys, one of whom was not present in court at the time, to conduct the defence, and adjourned the trial until the twenty-fourth day of the same month. On the last-mentioned day the defendant presented another application for continuance, backed by his own affidavit, which, among other matters, set forth the following facts, viz.: That in April, 1879, an attorney undertook the charge and management of defendant's cause, and continued in sole charge thereof until November 19, 1879; that in June, 1879, said attorney applied to defendant for money to be used in taking depositions of witnesses, to be used in defendant's behalf, and from subsequent conversations and occurrences, which are set forth in the affidavit, defendant had cause to believe, and did believe, that such depositions would be duly taken to be used on the trial; that it had just come to the knowledge of defendant that such depositions were not in fact taken; that defendant had furnished to his said attorney at four different times prior to November, 1879, the names of witnesses mentioned, twenty-one in number, to be subpœnaed in his behalf, but none of them were ever summoned; that defendant had confided fully in his said attorney, and had believed that said attorney had done or would do all things necessary and proper to be done in and about the case for a legal and proper defence; that since the appointment of his later attorneys, defendant had had frequent and lengthy interviews with them, but that there were many matters of great importance, and necessary to a careful and proper presentation of his case, which he had had no time or opportunity, as yet, to communicate to them; that he had furnished his said attorneys with a full and complete list of his witnesses, and that subpœnas for them were placed in the hands of the sheriff on the morning of the 21st instant; that since the appointment of his said attorneys they had given all the time and attention it was possible to give to his case, but they had been unable, with their utmost exertions, to make such preparations as were demanded for a fair trial, and on that account they could not safely go to trial; that defendant had been kept in close confinement ever since the eighteenth day of September, 1877, and that he had no friends or other persons upon whom he might call for advice or assistance, excepting his said attorneys. The affidavit set forth also the formal matters usually required, showing the materiality of the witnesses, with the facts which they were expected to prove, their absence, and that they were absent without the consent, connivance, or procurement of the affiant, and that, if a continuance should be granted, their testimony would be procured in time for a trial at the next succeeding term. It was alleged that the...