State v. Sayers

• Decision Date: 31 January 1875
• Citation: 58 Mo. 585
• Parties: STATE OF MISSOURI, Respondent, v. JOSEPH SAYERS, Appellant.
• Court: Missouri Supreme Court

58 Mo. 585

STATE OF MISSOURI, Respondent,

v.JOSEPH SAYERS, Appellant.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Jasper Circuit Court.

J. F. Hardin, G. H. Walser with D. P. Ballard, for Appellant, cited in argument: St. L. & Iron Mt., R. R. Co. vs. Silver, 56 Mo., 265; Page vs. Kankey, 6 Mo., 433; Brown vs. Burrus, 8 Mo., 26; State vs. Ross, 24 Mo., 475; State vs. Joeckel, 44 Mo., 234; State vs. Long, 39 Cal., 361; People vs. Sanchez, 24 Cal., 28.

Attorney General, for Respondent, cited: 8 Mo., 334, 606; 18 Mo., 47, 445, 477; 21 Mo., 423; 1 Mo., 780; 3 Mo., 123; Bay vs. Sullivan, 30 Mo., 191; Gonsolis vs. Gearhart, 31 Mo., 585; see also 35 Mo., 201, and 36 Mo., 35.

WAGNER, Judge, delivered the opinion of the court.

From the record it appears that the defendant was indicted at the July Term, 1873, of the Jasper Circuit Court, for the murder of Charles Wilson; and that the cause was continued from time to time, till the July Term, 1874, of that court, when he was tried and convicted of murder in the second degree. When the cause was called for trial, defendant made an application for a continuance on account of the absence of witnesses. This the court refused to grant, and from the inspection of the record, we cannot say that it was wrong.

It is not shown that the proper and requisite diligence was used. The witnesses were all residents of Jasper county, the defense had had the whole vacation from the adjournment of the last term to prepare for trial, and yet the subpœnas were only issued a few days preceding the commercement of the term at which the case was set for trial.

The granting of a continuance is a matter resting very much in the sound discretion of the trial court, and it must be clearly shown that that discretion has been abused, else this court will not interpose.

Another point raised is that the court erred in excluding testimony. It seems that a witness was examined for the prosecution, and upon his cross-examination, defendant's counsel asked him questions, in reference to matters not brought out by the examination in chief. This was objected to, and the court sustained the objection. It is true the ruling was not in accordance with the decisions of this court. We have followed the English practice in this respect, which allows a party on cross-examination to examine on all subjects pertinent to the case without regard to whether they were touched upon in the direct examination or not. But it is difficult to see how the defendant can complain here, as when he opened the case on his side, he called the same witnesses, put the questions to them that were ruled out before, and obtained all the evidence that was sought upon the cross-examination It is further insisted that the court erred in refusing to grant a change of venue. But this assumption is wholly unwarranted. Immediately after the court overruled the motion for a continuance the defendant presented a petition verified by his own affidavit only, praying for a change of venue on the ground that the judge was prejudiced against him. The court very properly refused to award the change.

The application was not made in compliance with the law. The granting of a change of venue on account of the prejudice of the judge is not imperative upon the mere petition of the party. The act of 1873 amendatory of the 19th section of the law relating to the changes of venue, provides that: “The petition of the applicant for a change of venue, shall set forth the grounds upon which such change of venue may be sought, and the truth of the allegations shall be proved to the satisfaction of the court, by legal and competent evidence, and the prosecuting attorney may in such case offer evidence in rebuttal of that submitted in support of such application: Provided, however, that reasonable previous notice of such application shall in all cases be given to the prosecuting attorney.” (Sess. Acts 1873, p. 56.)^a1 In this case no notice of the application was given, nor was there any waiver of such notice. The truth of the allegations set forth in the application, as the grounds upon which the change of venue is sought, must be proved to the satisfaction of the court by legal and competent evidence, and the attorney prosecuting for the State has the right and privilege of introducing evidence in rebuttal. The effect is to submit to the...