State v. Mitchell

• Decision Date: 18 November 1889
• Citation: 12 S.W. 379,98 Mo. 657
• Parties: The State v. Mitchell, Appellant
• Court: Missouri Supreme Court

12 S.W. 379

98 Mo. 657

The State v. Mitchell, Appellant

Supreme Court of Missouri

November 18, 1889

Appeal from Jackson Criminal Court. -- Hon. Henry P. White, Judge.

Defendant was indicted September 14, 1888, for murder in the first degree, and, after arraignment and plea of "not guilty," was tried and convicted.

The homicide grew out of a dispute between deceased and defendant regarding an order for some wine. The former was a waiter at a variety theater, where the difficulty took place. The particulars of the sad tragedy need not be detailed in view of the questions presented on this appeal. Defendant, as a witness, admitted firing the fatal shot, claiming that he did not intend to kill, but merely to frighten the waiter.

That there was abundant evidence to support the verdict is not questioned.

When the cause was called, October 22, 1888, defendant moved for a continuance on the grounds stated in the following affidavit:

"The State of Missouri,]

"County of Jackson,]

SS.

"Wm G. Mitchell makes oath and says he cannot, with safety proceed to trial without the testimony of a certain physician whose name and residence are to said Mitchell at present unknown; that said physician was, when last seen by affiant living in Clay Center, Kansas; that said affiant expects and has reason to believe that he can obtain the name, residence and testimony of said physician on or before the seventeenth day of December, A. D. 1888; that he expects to be able to prove by said physician that at the age of fifteen years, he the said Mitchell, met with a serious accident, to-wit: Was thrown violently from the back of a horse, causing a serious injury to the brain of said affiant, resulting in periodical mental derangement of said affiant, rendering him, at times of said mental derangements, morally irresponsible; that affiant believes the above statements to be true; that he cannot as well and as readily prove said facts by any other witness; that said witness is not absent by any connivance, consent or procurement of the said affiant; that the said affiant has written letters of inquiry to those whom he has reason to believe knew the address of said physician; that affiant has made diligent and earnest inquiry for address of said physician, but as yet is unable to obtain the same; that this affidavit for continuance is not made for vexation or delay merely, but to obtain substantial justice on trial of the cause."

The record shows that this application for a continuance was overruled by the court, the prosecuting attorney admitting that, if the absent witness were present, he would testify as set out in the affidavit. The statement of evidence it contained was not offered by defendant at the trial.

At the close of the testimony the court gave a number of instructions, but refused two requested by defendant. They are set forth in the opinion.

The jury found defendant guilty of murder in the first degree.

His motion for a new trial assigned but two errors, the denial of the continuance and the refusal of the instructions he asked.

Affirmed.

Scofield & Wagner for appellant.

(1) The court, having recognized the validity and sufficiency of the defendant's application and affidavit for a continuance by allowing the prosecuting attorney to elect, erred in overruling said motion for continuance. State v. Berkley, 92 Mo. 41; State v. Neiderer, 94 Mo. 79; State v. Warden, 94 Mo. 648; State v. Dyke, 96 Mo. 298. (2) The defendant, having testified that he did not shoot with intent to take life, the court erred in not giving instructions asked for on his behalf. State v. Banks, 73 Mo. 592; State v. O' Hara, 92 Mo. 59; State v. Tate, 12 Mo.App. 327; State v. Murphy, 14 Mo.App. 73; State v. Wilson, 85 Mo. 134. (3) The court, having of its own motion given instructions to the jury, erred in not giving full, complete and proper instructions, covering the whole law arising on the facts. State v. Banks, 73 Mo. 592; State v. Wilson, 85 Mo. 134; Couley v. State, 12 Mo. 462; State v. Tate, 12 Mo.App. 327. (4) The court erred in admitting hearsay evidence. 2 Whart. Crim. Law [4 Ed.] sec. 622; Reynold on Ev. [1 Ed.] sec. 16; 2 Best on Evidence [Morgan's Edition] secs. 493, 494; 1 Phillips on Ev. [5 Am. Ed.] pp. 169, 211; 1 Greenleaf on Ev. [13 Ed.] sec. 98.

John M. Wood, Attorney General, for the State.

(1) There was no error in overruling defendant's application for a continuance. The record does not show that the application was sworn to. What purports to be the affidavit accompanying the motion for a continuance does not give the name of the absent witness; nor does it show the materiality of the evidence expected to be obtained, nor that due diligence has been used to obtain it. It does not show when the inquiries for the address of such witness were made, or when the letters in regard thereto were written, or to whom or to what place or places they were addressed. As the application did not comply with section 1884, Revised Statutes, 1879, and should have been overruled, the agreement of the prosecuting attorney that the facts stated in the application should be read as the testimony of such absent witness cannot be assigned as error. State v. Berkley, 92 Mo. 41; State v. Neiderer, 94 Mo. 79; State v. Jennings, 81 Mo. 185; State v. Hickman, 75 Mo. 418. (2) It is not alleged in the motion for a new trial that the court misdirected the jury or committed any error in the admission or exclusion of evidence, and this court cannot review either the instructions or the evidence. State v. Reed, 89 Mo. 168; State v. Burk, 89 Mo. 635; State v. Emory, 79 Mo. 461; State v. Preston, 77 Mo. 294; State v. Burnett, 81 Mo. 119; State v. Mann, 83 Mo. 589; State v. Degonia, 69 Mo. 490; Matlock v. Williams, 59 Mo. 105. (3) It needs not the citation of authorities to show that the two instructions asked for by the defendant were erroneous. They were but abstract propositions, would not have served to enlighten the jury, and would have been misleading had they been given. Besides, they were embraced within instructions given by the court of its own motion, which were more favorable to defendant than those asked by him.

Barclay J. Ray, C. J., absent.

OPINION

Barclay, J.

-- If the action of the court, overruling defendant's application for continuance, was proper, it is immaterial whether the reasons that induced the making of that order were sound or not. A correct ruling is not vitiated by reason of any erroneous views of the court in making it. The consent of the prosecuting attorney, in the present case, that the defendant might read the statement in the affidavit in lieu of the testimony of the absent witness, could not make the application better than it was without such admission.

The affidavit did not state the name of the witness or satisfactorily show ordinary diligence to obtain it. The evidence, to secure which delay was asked, could have no relevancy to any defense except insanity, and the application did not show that that defense was contemplated. In this regard it nearly resembles...