State v. Richardson and Gallie

• Decision Date: 17 February 1932
• Docket Number: No. 31353.,31353.
• Citation: 46 S.W.2d 576
• Parties: THE STATE v. UEL RICHARDSON and EMMETT GALLIE, Appellants.
• Court: Missouri Supreme Court

46 S.W.2d 576

THE STATE v. UEL RICHARDSON and EMMETT GALLIE, Appellants.

No. 31353.

Supreme Court of Missouri.

Division Two, February 17, 1932.

Appeal from Henry Circuit Court. — Hon. W.L.P. Burney, Judge.

REVERSED AND REMANDED.

Frederick F. Wesner for appellants; E.W. Jones of counsel.

The court erred in failing and refusing to grant the defendants a continuance upon the filing of their formal and timely verified application therefor under the evidence adduced and heard thereon and the circumstances (1) The refusal of the court to grant said continuance under the facts and circumstances was a denial to the defendants of due process of law. Deprived them of the right to a trial by jury, and a fair and impartial jury of the county. Deprived the defendants of the right to be represented by counsel. Deprived counsel of the right to prepare and defend the cause without reasonable ground or excuse therefor and against the law, right and justice. The denial of the defendants' application for a continuance was a gross abuse of sound discretion on the part of the trial court under the circumstances and facts. By the acts and conduct of the officers and agents of the State and those under their control and the court, defendants were denied time or opportunity to prepare to defend themselves or to counsel with relatives, friends, or counsel in their behalf. The application and request for a continuance was reasonable, right and just. (2) The trial court did not have jurisdiction of the cause at the time of setting the case October 25, nor did it have jurisdiction of the persons of the defendants. No instrument had been filed of record in the circuit court at that time and there was nothing before the court upon which to act. The transcript of the justice of the peace as required by Sec. 3473, R.S. 1929, was not filed until Oct. 28, three days after said cause was presumably set for trial. Defendants had not been by the circuit court arraigned or required to plead and were not before the court to be arraigned and plead until Friday morning October 31, at which time they refused to plead. The information was not filed in the circuit court until October 28, 1930. The whole action of the circuit court prior to the date of October 31 was null and void, arbitrary and without right or jurisdiction. (3) The preliminary held in this cause was null and void. Defendants were denied counsel or right to call witnesses, relatives or friends. State v. McNeal, 304 Mo. 131, 262 S.W. 1028; Secs. 3477, 3478, 3479, R.S. 1929. (4) An application for a continuance is addressed to the sound discretion of the trial court and the propriety of granting or refusing it depends much upon the particular facts of each case, but it has been held from the foundation of this State that this discretion of the trial court is reviewable by the appellate courts and the appellate courts reserve the right to inquire into the facts of each case and reverse if the continuance was improperly refused. State v. Maddox, 117 Mo. 667; State v. Wade, 270 S.W. 301. (5) One charged with crime is entitled to a fair opportunity and time to prepare for trial, as well as is his counsel, and to refuse same is a denial of just and equal protection of the law and against the orderly procedure and spirit of the law and is reversible error. State v. Lewis, 9 Mo. App. 321, approved 74 Mo. 222; State v. Flick, 179 S.W. 768; State v. Lambert, 262 S.W. 58; 16 C.J. 448, 449, par. 815; Notes 57, 58, 59 and 60, 16 C.J. 482, pars. 874 and 875; Paoni v. United States, 281 Fed. 801; Turinetti v. United States, 2 Fed. (2d) 15; State v. Collins, 104 La. 629, 81 Am. St. 150; People v. Calabur, 87 N.Y. Supp. 121; People v. Brackerton, 153 N.Y. Supp. 567; People v. Kerber, 159 N.Y. Supp. 215; People v. Becker, 239 N.Y. Supp. 61; People v. McLaughlin, 150 N.Y. 365; New York v. Wierzibicki. 244 N.Y. Supp. 342; People v. Kurant, 331 Ill. 470; State v. Davis, 130 Pac. 962, 44 L.R.A. (N.S.) 1083; Westbrook v. State (Okla), 172 Pac. 464; Noel v. State (Okla.), 188 Pac. 688; Goben v. State (Okla.), 201 Pac. 812; Ex parte Snyder (Cal.), 217 Pac. 777; Schaffer v. Territory, 14 Ariz. 329, 127 Pac. 746; State v. Mahoney, 219 N.W. (Wis.) 384; State v. Weldon (S.C.), 74 S.E. 43; Mitchell v. Commonwealth (Ky.), 7 S.W. (2d) 833; Cass v. Commonwealth (Ky.), 33 S.W. (2d) 332; Turner v. State (Texas), 241 S.W. 162, 23 A.L.R. 1378; Westbrook v. State (Ark.), 17 S.W. (2d) 868; State v. Hogan, 22 Kan. 490; U.S. Constitution, Art. VI, Art. XIV; Mo. Constitution, Art. II, secs. 10, 22, 28, 30; Sec. 3613, R.S. 1929. (6) The proceedings of the trial court are a nullity. The defendants have been denied due process of law and the purported trial and proceedings was a farce dominated by mob influence and haste in disregard of the defendants' fundamental and substantial rights. United States v. Ashe, 2 Fed. (2d) 741; United States v. Adams, 26 Fed. (2d) 143; Isaiah Fountain v. State of Maryland, 107 Atl. 554, 5 A.L.R. 908; Moore v. Dempsey, 261 U.S. 93, 43 S. Ct. 265, 67 L. Ed. 453. (7) It was the duty of the court to grant defendants a new trial because no conviction should be permitted to stand which is a result of prejudice, haste and undue influence. State v. Webb, 162 S.W. 628: State v. Dixon, 253 S.W. 749.

Stratton Shartel, Attorney-General, and Edward G. Robison, Assistant Attorney-General, for respondent.

(1) Time to secure five supporting affidavits to an application for a change of venue is not necessary to obtain a change of venue. Sec. 3630, R.S. 1929; State v. Bradford, 314 Mo. 696; State v. Liston, 2 S.W. (2d) 782. (2) The application for continuance is drawn under Sec. 3653, R.S. 1929. The grounds assigned are want of sufficient time to prepare the case for trial, prepare defense or secure change of venue, public excitement and prejudice. It is addressed to the trial court's discretion, and the action of the court in overruling the application will not be disturbed unless it is plain that the court's discretion has been unsoundly or oppressively exercised. State v. Jewell, 90 Mo. 472; State v. Parker, 106 Mo. 222; State v. Craft, 164 Mo. 649; State v. Decker, 217 Mo. 323; State v. Henson, 290 Mo. 245; 16 C.J. 482, secs. 874-5-6. (3) Appellate courts have reversed the trial court's action in overruling application for a continuance for want of time to prepare for trial. We cite the cases so the court may have the benefit of the reasoning of the court in these cases. State v. Lewis, 74 Mo. 224; State v. Lambert, 262 S.W. 58; State v. Flick, 179 S.W. 768. (4) The application for a continuance is confined wholly to want of sufficient time on the part of counsel to investigate the facts concerning the charge, advise with the defendants, prepare for trial, and if counsel deems it necessary to apply for change of venue. The defendants do not deny their guilt or allege the absence of any witness, or if given time that they will offer any witnesses in their behalf, and they failed to avail themselves of one day's continuance offered by the court. The facts alleged in the motion do not prove themselves. State v. Meininger, 290 S.W. 1008. The right to a continuance rests upon the facts in each individual case as viewed by the trial judge or appellate court on review. It is for this court to say on the facts under the law whether error was committed in overruling the application for a continuance. Morris v. State, 68 So. 1004; Moore v. State, 52 So. 974; Penman v. Comm., 133 S.W. 542; Griffin v. Comm., 265 S.W. 328; 16 C.J. 482, secs. 874-5-6.

HENWOOD, J.

An information was filed in the Circuit Court of Henry County by which the defendants were jointly charged with murder in the first degree. They were tried together, and the jury found them guilty of murder in the first degree and assessed their punishment "at death." They were sentenced "to be hanged," and appealed in due course.

The defendants offered no evidence and do not challenge the sufficiency of the State's evidence, and we have concluded that the judgment must be reversed and the cause remanded because of the error of the trial court in overruling their application for continuance. So, for the purposes of this opinion, a general statement of the case made by the State will suffice.

From direct evidence adduced, by the State, we gather the following:

Mrs. Elizabeth Neiman, the victim of the alleged murder, was about sixty years of age, and lived alone on a small farm, about three miles southwest of Windsor, in Henry County. On October 21, 1930, her brother-in-law and his son and another neighbor went to her house and found her dead body lying on the floor. Further investigation disclosed fractures of her skull at both temples, three or four deep wounds on her forehead and one on the top of her head, and considerable dried blood on the floor, "all around her head." She had been dead "from two to four days" at the time her body was found. The defendants (both Negroes) lived in Windsor. On October 18, 1930, they borrowed a horse and wagon, and drove from Windsor to Mrs. Neiman's farm, accompanied by a Negro boy, thirteen years of age. They left the boy with the horse and wagon at a point near Mrs. Neiman's house, walked in the direction of her house, returned in twenty-five or thirty minutes, and drove back to Windsor. From circumstantial evidence adduced by the State and alleged written confessions and other alleged extrajudicial admissions of the defendants, it appears that, when the defendants left the boy with the horse and wagon on the occasion mentioned, they went to Mrs. Neiman's house for the purpose of robbing her of her money; that they did rob her of thirty-odd dollars; and that, in perpetrating the robbery, one of them struck her on the head several times with an iron rod and killed her.

Omitting the caption, the defendants' application for a continuance reads as follows:

"Comes now the defendants and each of them and move the...