State v. Pinnell

• Decision Date: 19 December 1887
• Citation: 93 Mo. 480,6 S.W. 221
• Parties: STATE v. PINNELL.
• Court: Missouri Supreme Court

6 S.W. 221

93 Mo. 480

STATE v. PINNELL.

Supreme Court of Missouri.

December 19, 1887.

1. CRIMINAL PRACTICE — AFFIDAVIT FOR CONTINUANCE FOR ABSENCE OF WITNESSES — READING TO JURY.

Rev. St. Mo. §§ 1883-1886, provides that, where a motion to continue is based on the absence of a witness, an affidavit must be filed showing what the party applying expects to prove by the witness, and if the adverse party agrees that the witness would, if present, testify to those facts, the trial may proceed. In a trial for aiding prisoners to escape, the prosecution applied for continuance, and set out in an affidavit the facts which, as stated therein, the absent witness would prove. The defendant admitted that the witness would testify to those facts. The affidavit was read to the jury, against the objection of defendant. Held, that the affidavit must contain only evidential facts which the party making the same believes the witness would testify, and an affidavit that states legal conclusions or ultimate facts that would be deduced from the evidential facts should not be allowed to go to the jury.

2. SAME — PRESENCE OF WITNESS DURING TRIAL — DISCRETION OF TRIAL COURT.

In a trial for aiding prisoners to escape, where an affidavit for continuance had been made in accordance with Rev. St. Mo. §§ 1883-1886, providing for continuance in the absence of a material witness, and the defendant had admitted that the witness would testify to certain facts, the absent witness appeared in court before the defendant had rested. Defendant asked the court to require the prosecution to put the witness on the stand. Held, that as the statement of the testimony had been admitted owing to the absence of the witness, upon his appearance, it would have been in the wise discretion of the court to have received his testimony.

Appeal from circuit court, Nodaway county; S. R. BEECH, Special Judge.

Indictment for aiding prisoners to escape from jail. The defendant was convicted, and thereupon appealed. The facts appear sufficiently in the opinion.

The Attorney General, for the State. Frank Griffin and W. W. Ramsay, for defendant.

BRACE, J.

The appellant was indicted under section 1445, Rev. St. 1879, for conveying instruments into a jail with intent to aid felons therein confined to escape. The indictment was well drawn under said section. She was indicted by the name of Lizzie J. Mann. On her arraignment she pleaded not guilty by the name of Lizzie J. Pinnell. The indictment was found at the November term, 1886, of the Nodaway circuit court, and at the same term she was tried, found guilty, and her punishment assessed at two years in the penitentiary, and she was sentenced accordingly.

Before the trial commenced, the prosecuting attorney filed an application for a continuance on account of the absence of a material witness. The application contained the following so-called statement of facts, which he stated he believed the absent witness, Polly Adair, would prove: "That on or about the fifteenth day of October, 1886, at said county, and while Frank M. Oliphant, Grant White, and J. T. Ainsworth, the parties and prisoners mentioned in the indictment in this cause, were lawfully detained in the common jail of said county for the felonies named and set forth in the indictment in this cause, Lizzie Mann, the defendant herein, feloniously and unlawfully did then and there convey and cause to be conveyed into the said jail and place of confinement aforesaid, three saws, one-fourth pound of charcoal, one bottle of liquid, and one large stick of wood, being tools and instruments proper and useful to aid and facilitate the said Frank M. Oliphant, Grant Wright, and J. T. Ainsworth in their escape from said imprisonment; and that by means...