State v. Maguire

Citation69 Mo. 197
PartiesTHE STATE v. MAGUIRE, Appellant.
Decision Date31 October 1878
CourtUnited States State Supreme Court of Missouri

Appeal from Cole Circuit Court.--HON. GEO. W. MILLER, Judge.

H. B. Hamilton and N. Kouns for appellant.

J. L. Smith, Attorney-General, for the State.

HENRY, J.

At the December term, 1878, of the Cole circuit court, the defendant was indicted for the murder of Charles Brown. On the 3rd day of December, 1878, he filed an application for continuance, which the court overruled, and set the case for trial on the 2nd day of January, 1879. On the 2nd day of January, and during the same December term at which he was indicted, the cause was called for trial, and defendant again applied for a continuance, which the court refused, and defendant was put upon his trial, which resulted in his conviction of murder in the first degree. From that judgment he has prosecuted this appeal.

The following is the affidavit for a continuance, filed on the 2nd day of January, 1879:

“The State of Missouri, plaintiff, v. John Maguire, defendant.

Now, at this day, comes the defendant in the above cause, and moves the court to continue this cause until the next term of this court, and the said defendant, on his oath, states that he cannot safely go to trial at this term of the court on account of the absence of material evidence in his behalf; that he was indicted at this term of this court, and said indictment was returned on the 1st day of said term, and on the 3rd day of December, 1878; that on the 3rd day of said term of court, and on the 5th day of December, 1878, this defendant filed his application for a continuance, which said application was, on the 6th day of December, 1878, by the court, overruled, and said cause set down for trial on the 2nd day of January, 1879; that one Wm. Ware, Jr., and one Charles Harris are material witnesses for his defense; that this affiant and his attorneys were informed that said Wm. Ware, Jr., resided or was temporarily staying in Chariton county, Missouri, and that they were also informed that said Charles Harris was in St. Louis, Missouri, when last heard from, but as to the number of his residence or place of business they were unable to learn exactly; that the fact that said parties were material witnesses for the defendant, or as to what he could prove by them, was not known to him or to his attorneys at the time of making of the former application for a continuance; that from the time of his arrest he has been kept in close confinement, with no means to employ counsel, and not until after his indictment had he any counsel to defend him; that as soon as he learned of said witnesses, and what he could prove by them, which was one or two days after the former application for a continuance, he caused to be issued out of the clerk's office of this court, a subpœna for said Wm. Ware, Jr., and said Charles Harris; that said subpœna for said Ware was sent to the sheriff of Chariton county, Missouri, with instructions to serve the same at once, and that the attorney of affiant wrote to said sheriff, giving him all the information he could in relation to the whereabouts of said Ware; that the attorney of affiant also wrote to said Ware a letter, addressed to him at Salisbury, Missouri, where he learned said Ware was; that no letter has been received from said Ware or said sheriff; and that said sheriff, although repeatedly written to, has failed to answer or return said subpœna; that the subpœna issued for said Harris was sent to the sheriff of St. Louis county, and said sheriff has written to attorney of affiant that he has been unable to find said Harris; that said defendant has had no means to pay the fees of said witnesses, or to pay for serving subpœnas, or to pay for the necessary costs of taking the depositions of said witnesses, but that he expects to be able to secure the attendance of said witnesses at the next term of this court if this cause is continued; that he expects to be able to prove, and will, as he is informed, prove by said Wm. Ware, Jr., that on the day of the killing of said Brown, said Brown had been following said defendant, and in a dangerous, violent and threatening manner, made the first assault upon the defendant at the time of the killing, and brought on the difficulty which resulted in his death; that one James Anderson is a material witness for the State against defendant, and said Anderson will swear, as affiant is informed, that on the day of the killing, and a few hours before, the defendant had threatened the life of said Brown, and that said Harris was present at the time said threats were alleged to have been made, and affiant states he will be able to prove by said Harris that no such threats were made against said deceased by defendant, as will be sworn to by said Anderson. Affiant states that there are no other witnesses present at this term of court, or known to defendant, by whom he can prove the facts he expects to prove by said absent witnesses; that said witnesses are not absent by the consent, connivance or procurement of the defendant; that this application is not made for vexation or delay, but that justice may be done; he, therefore, prays for the continuance of this cause till the next term of this court.

1. CRIMINAL LAW: self-defense.

The court gave for the State the following instruction which is complained of: The jury are instructed that a person who brings on a difficulty cannot avail himself of the right of self-defense, in order to shield himself from the consequences of killing his adversary, however imminent the danger in which he may have found himself during the progress of the affray, and if in this case the jury believe from the evidence that the defendant prepared himself with a knife previous to the killing of deceased, and sought and brought on the encounter with said deceased, in order to wreak his malice, then there is no self-defense in the case.

Appellant's counsel insist that there was no evidence upon which to predicate the instruction. They have overlooked the testimony of Albert Shroer, who stated that he saw defendant about six o'clock, at the bridge on McCarty street. He complained that Brown did not give him money enough for his work, and said if he did not give him more he would “cut or kill him with this knife before night.” “Maguire had the knife in his hand at this time.”

Whether defendant or deceased sought and brought on the difficulty, was submitted to the jury; and, with deference to the counsel, we think there was evidence tending to prove that defendant provoked the difficulty, and positive evidence that he had a knife with which he said he would kill Brown, if he did not give him more money. The following instruction given by the court, was read to the jury and commented upon by the prosecuting attorney, but the court withdrew it from their consideration before the defendant's counsel opened their argument to the jury:

“The jury are instructed that the right of self-defense, to justify homicide, can only be exercised when there is reasonable cause on the part of the person attacked to apprehend a design on the part of the party attacking, either to commit a...

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  • State v. Creighton
    • United States
    • Missouri Supreme Court
    • August 29, 1932
    ...application for a change of venue, which the court without assigning any reason for so doing, overruled the same; this was error. State v. Maguier, 69 Mo. 197; State v. Myers, 14 S.W. (2d) 447. On being forced to trial on the said 22nd day of June, 1931, defendant was deprived of his consti......
  • State v. Creighton
    • United States
    • Missouri Supreme Court
    • August 29, 1932
    ...application for a change of venue, which the court without assigning any reason for so doing, overruled the same; this was error. State v. Maguier, 69 Mo. 197; State v. Myers, 14 S.W.2d 447. On being forced trial on the said 22nd day of June, 1931, defendant was deprived of his constitution......
  • The State v. Finkelstein
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    • Missouri Supreme Court
    • January 29, 1917
    ... ... Gilbert, 186 S.W ... 1003. (3) If, however, the court should hold that instruction ... number 7 is properly saved for review, then we submit that ... the giving of such an instruction does not, under the facts ... of this case, constitute reversible error. State v ... Maguire, 69 Mo. 197; State v. Shaffer, 253 Mo ... 338; State v. Creeley, 254 Mo. 396; State v ... Hyder, 258 Mo. 231; State v. Evans, 183 S.W. 1067 ...          REVELLE, ... J. Walker, J., concurs in first paragraph of the opinion and ... in the result; Graves, C. J., concurs in the ... ...
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