State v. Rice

• Decision Date: 09 May 1899
• Citation: 51 S.W. 78,149 Mo. 461
• Parties: STATE v. RICE.
• Court: Missouri Supreme Court

51 S.W. 78

149 Mo. 461

STATE v. RICE.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

CRIMINAL LAW — CONTINUANCES — INDICTMENTS — SUFFICIENCY.

1. A motion for continuance by an accused for the absence of witnesses must show the materiality of the evidence expected to be obtained, and that he believes the facts he expects to prove to be true.

2. An accused is not prejudiced by the overruling of his motion for continuance for absent witnesses, where their evidence was in support of a defense shown on the trial to be without merit.

3. The appellate court will not review the refusal of a continuance unless it is shown that the discretion of trial court was abused.

4. An indictment charging that accused did feloniously shoot deceased with a gun, "and then and there giving her" a mortal wound, is not insufficient, in that it does not charge that the mortal wound was feloniously given, since the "feloniously" first mentioned is sufficiently connected by the words "and then and there."

Appeal from circuit court, Oregon county; W. N. Evans, Judge.

Carroll M. Rice was convicted of murder, and he appeals. Affirmed.

S. A. Handy and Harris & Norman, for appellant. The Attorney General and Sam B. Jeffries, for the State.

BURGESS, J.

The defendant was convicted in the circuit court of Oregon county of murder in the first degree, and his punishment fixed at death, for having shot to death, with a Winchester rifle, his wife, Mary C. Rice, at said county, on the 27th day of June, 1898. He appeals.

Defendant had been previously married before his marriage to the deceased. By his first wife there were three children, the oldest being about 9 years of age. The deceased was about 20 years of age at the time of the homicide. She and the defendant had not lived happily together, and she had left him two or three times, but, upon his solicitations, returned to him. Finally she left him, and went to the house of an aged lady, by the name of Conner, to make her home, where she had been living about three weeks, when defendant, on the evening or night of June 26, 1898, took his rifle, and went and watched around the house nearly all night, with the hope that his wife might come out, so he could see her; and, failing in this, he went to the spring where he knew the family got water, and waited until morning, thinking that she would come to the spring for water. Between 6 and 7 o'clock in the morning, being June 27, 1898, deceased and Mrs. Sarah A. Conner, a daughter-in-law of the lady with whom deceased was then living, and who had stayed there the night before, went to the spring for water, and there met defendant, who asked deceased if she would return and live with him. She replied that she would not, and stooped down to get her bucket of water, when defendant raised his gun, remarked to her, "God damn you!" and fired at her; the ball penetrating her left breast, entering the body in the region of the heart, from the effects of which she died in about 30 minutes. He then left her lying upon the ground, returned to his camp where he was living, sent for one of his neighbors, and told him all about the homicide. He had repeatedly threatened to kill deceased if she did not return and live with him.

The indictment against defendant was returned on the 23d day of August, 1898. Thereupon, at his request, the cause was set for trial on the 5th day of September, 1898. When the case was called for trial at that time, defendant presented his motion for a continuance upon the ground of the absence of four witnesses therein named. The application was overruled, and the action of the court in this regard is assigned for error. Section 4137, Rev. St. 1889, provides that "all indictments or informations shall be tried at the term at which the indictment is found or information filed if the defendant is in custody, or appears at such term, or at the first term at which the defendant appears, unless the same be continued for cause." It is clear from this statute that the case stood for trial at the term at...