State v. Myers, 38703.

• Citation: 179 S.W.2d 72
• Decision Date: 07 February 1944
• Docket Number: No. 38703.,38703.
• Parties: STATE v. HARVE MYERS, Appellant.
• Court: United States State Supreme Court of Missouri

179 S.W.2d 72 STATE
v.
HARVE MYERS, Appellant. No. 38703. Supreme Court of Missouri. Division Two, February 7, 1944. 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, C.

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

179 S.W.2d 73

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:

"In all suits at law or in equity or in criminal cases pending in any court of this state at any time when the general assembly is in session, it shall be a sufficient cause for a continuance if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney, solicitor or counsel of such party is a member of either house of the general assembly, and in actual attendance on the session of the same, and that the attendance of such party, attorney, solicitor or counsel is necessary to a fair and proper trial or other proceeding in such suit; and on the filing of such affidavit the court shall continue such suit and any and all motions or other proceedings therein, of every kind and nature, including the taking of depositions, and thereupon no trial or other...