State v. Marshall

• Citation: 115 Mo. 383,22 S.W. 452
• Parties: STATE v. MARSHALL.
• Decision Date: 02 May 1893
• Court: Missouri Supreme Court

22 S.W. 452

115 Mo. 383

STATE v. MARSHALL.

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

CRIMINAL LAW — DELAYING TRIAL — CONTINUANCE.

1. Rev. St. § 4223, which provides that unless a person be tried within a certain time after indictment he shall be discharged, applies only in cases where the state is in fault, and not where the delay was caused by continuance granted on defendant's motion.

2. In a criminal cause, in the absence of proof to the contrary, it is presumed that a continuance was granted on some ground provided for by statute.

3. In such cause the fact that the accused left the country after the commission of the crime cannot be taken into consideration unless it appears he did so to avoid arrest.

Appeal from circuit court, Ozark county; A. H. Livingston, Special Judge.

Charley Marshall was convicted of felonious assault, and appeals. Reversed.

Olden & Orr, for appellant. The Attorney General, for the State.

BURGESS, J.

At the April term, 1890, of the Ozark circuit court the defendant was indicted for feloniously, willfully, on purpose, and of his malice aforethought shooting one John McCourtney with a rifle gun, with intent to kill. At the October term, 1890, and again at the April term, 1891, the cause was continued by the state. The evidence shows that on the 10th day of January, 1890, while J. C. Miller and John McCourtney were sawing logs in Ozark county, Mo., McCourtney was shot from ambush. Miller testified that he saw defendant running away from the smoke of the rifle. About the time of the shooting defendant left the neighborhood, was gone about three and one half months, when he returned, and gave himself up to the sheriff. It was shown by one witness that defendant had stated before the shooting that if any man took his claim it would never do him any good. At the time McCourtney was shot he and Miller were sawing on a board tree, which the evidence tends to show was on defendant's claim. Defendant undertook to account for his disappearance about the time of the shooting, but he is not corroborated in any of his statements in this regard by any other witness. He established a good character for being a peaceful and law-abiding citizen. Upon the trial defendant was found guilty, and his punishment assessed at three years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest, defendant appeals.

1. It is contended that, as defendant was not brought to trial before the end of the third term after the finding of the indictment and the delay not being on his application, or for want of time to try the case, he was entitled to his discharge. After defendant's...