State v. Pinnell

• Decision Date: 19 December 1887
• Citation: 6 S.W. 221,93 Mo. 480
• Parties: The State v. Pinnell, Appellant
• Court: Missouri Supreme Court

6 S.W. 221

93 Mo. 480

The State v. Pinnell, Appellant

Supreme Court of Missouri

December 19, 1887

Appeal from Nodaway Circuit Court. -- S. R. Beech, Esq., Special Judge.

Reversed and remanded.

W. W Ramsey and Frank Griffin for appellant.

B. G Boone, Attorney General, for the state.

(1) The indictment is drawn under section 1445, Revised Statutes making it a felony to furnish prisoners with implements for escape. It not only contains all that is required to properly charge the offence, under section 1445, supra, but sets out the particular felony each prisoner confined was charged with, and under what circumstances he was held. State v. Adcock, 65 Mo. 590; State v. Murray, 15 Me. 100; Gunyon v. State, 68 Ind. 79; Clemons v. State, 4 Lea (Tenn.) 23. (2) The appellant having admitted that the absent witness (Polly Adair) would, if present, testify as set forth in the prosecuting attorney's application for a continuance, appellant was not authorized in objecting to the reading of such application to the jury. State v. Emerson, 90 Mo. 236. (3) There is no law requiring the state to put a witness on the stand in order that he may be cross-examined by the defence. If defendant desires the testimony of a witness, he should procure his attendance and examine him. (4) The order of the introduction of evidence is largely in the discretion of the trial court, and, unless it is shown that this discretion has been abused, its rulings will not be disturbed. State v. Daubert, 42 Mo. 239; State v. Linney, 52 Mo. 40. (5) The testimony and instructions not having been preserved in the transcript, the presumption will be that only proper evidence was admitted, and that the instructions given correctly declared the law. State v. Brown, 75 Mo. 318.

OPINION

Brace, J.

The appellant was indicted under section 1445, Revised Statutes, 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. F. 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 White, and J. T. Ainsworth in their escape from said imprisonment, and that, by means of such instruments, so conveyed into said jail by said Lizzie Mann to said Oliphant, Wright, and Ainsworth, the said parties did cut, saw, break, and sever the walls and bars of the window of said jail, and, by means thereof, did, then and there, on or about the eighteenth day of October, 1886, break out of and escape from said jail, and that the said Lizzie Mann conveyed said instruments into said jail for the purpose of aiding the escape from said jail of said parties."

The defendant, to avoid a continuance by the state, admitted that the absent witness, if present, would testify as set out in the application of the state for a continuance; thereupon the court overruled the application, and on the same day the cause came on for trial. The prosecuting attorney, on the trial, was permitted, over the objections of the defendant, to read the...