State v. Simms
| Decision Date | 31 October 1878 |
| Citation | 68 Mo. 305 |
| Parties | THE STATE v. SIMMS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court.--HON. J. R. WOODSIDE, Judge.
Indictment for murder. The facts are stated in the opinion.
A. H. Livingstone and E. Y. Mitchell for appellant.
J. L. Smith, Attorney-General, for the State.
At the April term, 1878, of the Howell circuit court, the defendant was indicted for the murder of one James Reese.
The indictment was found by the grand jury on the 23rd day of April, and on that day the defendant made an application for a change of venue, which was refused on the 24th; on the 26th the defendant applied for a continuance, and his affidavit was as follows: “Now, at this day, comes James Simms, the defendant in this case, and moves the court for a continuance on account of the absence of witnesses whose testimony is wanted; that this testimony is material in this cause, and that he cannot safely proceed to trial without such witnesses; that the indictment herein was returned against him at this term of the court, and that it is impossible for him, under the circumstances, to obtain such witnesses at this term of the court, in consequence of the short time that he has allowed him; that his witnesses reside in the counties of Shannon, Oregon, Butler and Howell, in this State; that affiant has good reason to believe, and does believe, that he will be able to procure the testimony and attendance of said witnesses at the next regular term of this court; that this application for continuance of this cause is not made for the purpose of vexation or delay, but that substantial justice may be done, and that affiant has a good and meritorious defense to this cause.”
It will be observed that the affiant did not state that there were no other witnesses present by whom he could prove the same facts he expected to establish by the absent witnesses. He did not state any facts constituting diligence in attempting to procure the presence of the absent witnesses, and on these grounds my associates think the action of the court overruling the the motion was proper.
I think it otherwise. There was no cause for trial until the indictment was returned into court. Until then it was not the duty of the prisoner, nor had he the right to have subpœnas issued to compel the attendance of witnesses. The indictment was returned into court on the 23rd, and the cause was called for trial on the 26th, when the application for a continuance was made. The witnesses resided in the counties of Shannon, Oregon, Butler and Howell, and it is apparent that the defendant had not had time to procure their attendance. If it had been a second application, or if the term of court had continued several weeks after the indictment was found, and between then and the calling of the cause for trial, the defendant had had ample time to get ready for the trial, and used no more diligence than his affidavit disclosed, the application would have been properly refused; but in the language of Wagner, J., in the State v. Klinger, 43 Mo. 127: As, however, my associates think otherwise, it is useless to discuss the question.
That defendant shot and killed Reese, is not denied, but the evidence showed that he and Reese were on good terms, and that defendant went to his house to pass the night; that Reese was absent, and was not expected by the family to return home until the next morning. The defendant had had a difficulty with one Hudlow, who resided in the neighborhood. Between sundown and dark, Reese, unexpectedly to the family, returned home, and as he was in the yard approaching the house, Simms went to the door, and said, “Gentlemen, what will you have?” and fired his pistol, the shot taking effect in the body of Reese, who shortly afterwards died of the wound. The testimony of Mrs. Reese, widow of the deceased, was that when Simms got up, he said he heard somebody, and went to the door. He helped carry Reese into the...
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