State v. Myers

Decision Date03 April 1944
Docket Number38703
Citation179 S.W.2d 72,352 Mo. 735
PartiesState v. Harve Myers, Appellant
CourtMissouri Supreme Court

Reported at 352 Mo. 735 at 740.

Original Opinion of February 7, 1944, Reported at 352 Mo. 735.



On Motion for Rehearing.

Respondent filed a motion for rehearing wherein it is asserted that we overlooked the principal point briefed by respondent, that is, that the "affidavits for continuance cannot merely state conclusions, but must state facts in support of a continuance." We did not overlook the point, but confess that our opinion could be so understood. The cases cited in support of respondent's contention are cases dealing mostly with the change of venue statute, sec. 4019, Rev. St Mo. (1939), Mo. R.S.A. See State v. Hancock, 320 Mo 254, 7 S.W.2d 275 and State v. London, 84 S.W.2d 915. In those cases this court ruled that under the statute the affidavits in support of the application for change of venue must state the facts upon which the affiant based his conclusion that the defendant could not have a fair trial in the county where prosecution was pending. Respondent then argues that the affidavit in support of an application for continuance, under sec. 1089, Rev. St. Mo. (1939), Mo. R.S.A., which authorizes a continuance if the defendant's attorney is a member of the legislature and is in attendance at its session, must contain facts and not mere conclusions. The particular point urged by respondent is that the statement in the affidavit, that the presence of the attorney is necessary to a fair and proper trial, is a mere conclusion and the affidavit must contain facts which support that conclusion. The statute under consideration has a dual purpose, that of protecting the business of an attorney or a person engaged in some other business while serving in the legislature, thereby encouraging good men to sacrifice their time in the interest of good government; and that of protecting a party to a suit whose attorney may be serving in the legislature. In Bell v. State, 75 P.2d 1157, l.c. 1158 (1), the Oklahoma Criminal Court of Appeals said:

"The purpose of this statute is to encourage members of the bar to become candidates for the lawmaking body of the state, . . . and for the further purpose of protecting members in their business while serving the state in this capacity by permitting trials to be continued during the session of the Legislature. . . ."

The Springfield Court of Appeals made the following comment in State v. Clark, 214 Mo.App. 536, 262 S.W. 413, l.c. 414:

"We think this statute is a wholesome one. It is well known that any attorney must to some extent sacrifice his practice to serve as a member of the Legislature. The reason for...

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