State v. Myers
| Citation | 179 S.W.2d 72,352 Mo. 735 |
| Decision Date | 07 February 1944 |
| Docket Number | 38703 |
| Parties | State v. Harve Myers, Appellant |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied April 3, 1944.
Appeal from Wright Circuit Court; Hon. C. H. Jackson Judge.
Reversed and remanded.
Wayne T. Walker for appellant.
Roy McKittrick, Attorney General, and Aubrey R. Hammett Jr., Assistant Attorney General, for respondent.
(1) The court committed no error in overruling defendant's affidavit for continuance, based upon the fact that Charles Farrar was employed as counsel and was member of the General Assembly, attending the session of the General Assembly at the time, since the affidavit does not follow the statute and is not sufficient. State v. Clark, 214 Mo.App. 536, 262 S.W. 413; Secs. 1089, 4019, R.S. Mo. 1939; State v. Hancock (Mo. Sup.), 7 S.W.2d 275; State v. London (Mo. Sup.), 84 S.W.2d 915; State v. Londe, 345 Mo. 185, 132 S.W.2d 501. (2) There was sufficient substantial evidence for the jury to believe the defendant was at the scene of the alleged crime. State v. Jordan, 225 S.W. 905, 285 Mo. 62; State v. Hurt (Mo. Sup.), 149 S.W.2d 61; State v. Enochs, 339 Mo. 953, 98 S.W.2d 685; State v. Pace (Mo. Sup.), 190 S.W. 15; State v. Peebles, 178 Mo. 475, 77 S.W. 518; State v. Curley (Mo. Sup.), 142 S.W.2d 34; State v. Cunningham (Mo. Sup.), 33 S.W.2d 930.
WESTHUES
Harve Myers was convicted on a charge of burglary and larceny and sentenced to imprisonment in the penitentiary for a term of two years for the burglary and two years for the larceny, the sentences to run concurrently. He duly appealed.
The prosecution originated in Webster county, Missouri. On a change of venue the case was transferred to Wright county, Missouri, where it was set for trial at the February, 1943, term. It appears from the record that Wayne T. Walker, an attorney at Springfield, Missouri, was the only lawyer representing appellant up to the time the change of venue was granted. On February 20, 1943, appellant filed in the circuit court of Wright county an application for a continuance on the ground that Charles Farrar, a practicing lawyer living in Dallas county, Missouri, was representing him and was a member of the state legislature which was then in session. Appellant stated in his affidavit that Mr. Farrar was in actual attendance at the legislature and could not be present at the trial. An affidavit of Charles Farrar was filed with the application stating in substance the same as was stated in appellant's affidavit. The prosecuting attorney filed a counter affidavit and the trial court also heard oral evidence on the motion to continue, this on the theory of determining whether appellant would be prejudiced by the absence of Mr. Farrar in the event a trial was had. The trial court found that he would not be prejudiced and therefore denied the motion to continue. A trial was had on February 23, resulting in a conviction of appellant as above stated. It appeared from the affidavit of the prosecuting attorney that he received a letter from Mr. Farrar on February 19, advising him that he was representing appellant.
The state in its brief seeks to justify the ruling of the trial court on the ground that the application and affidavits filed in support thereof were not in proper form. Section 1089, Mo. Rev. St. (1939), Mo. R.S.A., reads as follows:
Appellant's application and affidavit for continuance read as follows:
"Harvey Meyers, being sworn on his oath says that he is the defendant in the above case, and that he has employed Charles Farrar a practicing attorney as his attorney to defend said suit, and further states under said oath that his said attorney, Charles Farrar is now a member of the general assembly of the state of Missouri, and that the said general assembly is now in session and that the said Charles Farrar is actually attending the sessions of same, and that the presence of his said attorney, Charles Farrar at the trial of this cause is necessary in order that justice may be done, wherefore he prays the court to continue this cause until such time as the said Charles Farrar can appear and represent him in the trial of this cause."
The affidavit of Charles Farrar in substance stated that he was a member of the legislature which was in session and that he was in actual attendance at the session thereof and could not attend court in Wright county until after adjournment of the legislature; that he had been employed to represent appellant and defend him on a felony charge. The state also contends that the order of the trial court disclosed that it did not appear to the court that the attendance of Mr. Farrar was necessary to a fair and proper trial. We are of the opinion that our statute does not permit the trial court to decide that question. Note that it says, "and on the filing of such affidavit the court shall continue such suit . . ." This question was before the Springfield Court of Appeals in the case of State v. Clark, 262 S.W. 413, 214 Mo.App. 536. The court there reviewed the history of this section and made the following observation:
If a defendant has the means to employ counsel he has the right to be represented by a lawyer of his own choosing. The trial court in this case seemed to be of the opinion that Mr Farrar's presence was not necessary. However, it will be noted that Mr. Farrar was employed after the change of venue was granted and the case transferred...
To continue reading
Request your trial