State v. Taylor
| Decision Date | 05 November 1924 |
| Docket Number | No. 18674.,18674. |
| Citation | 266 S.W. 1017 |
| Parties | STATE v. TAYLOR. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Scotland County; N. M. Pettingill, Judge.
"Not to be officially published."
John "Salty" Taylor was convicted of illegal possession of intoxicating liquor, and appeals. Affirmed.
John A. Whiteside, of Kahoka, for appellant.
Charles L. Moore, Pros. Atty., of Memphis, for respondent.
Defendant was tried in the May term 1923 of the circuit court of Scotland county, Mo., for illegal possession of intoxicating liquor. The jury found the defendant guilty and assessed his punishment at a fine of $300 and five months' imprisonment in jail. After unavailing motions for a new trial and in arrest of judgment the defendant appeals.
On the day before the trial defendant filed his application for a continuance, which the court overruled on the next day, namely, that of the trial. The overruling of this application for a continuance is here urged as error.
After a careful examination of the record before us we have come to the conclusion that the learned trial court cannot be held to have exercised its discretion in this matter unsoundly or oppressively. The defendant's application for a continuance set up that one Jean Merritt, a material Witness for the defendant, a resident of Scotland county, was temporarily absent from home, and would be away during the entire term of the court; that said witness left the county prior to the time that the case was docketed for trial, and that defendant "believes he can procure the testimony of said witness to be used on the trial of said cause at the next term of court."
The application does not state what effort, if any, was made by defendant to locate and take the deposition of the absent witness. For ought that appears defendant had ample time to procure this evidence. State v. Carter, 98 Mo. 176, 11 S. W. 624. Furthermore, the testimony of such absent witness, if he had been present and testified, would have been merely cumulative, and under such circumstances the overruling of the application will not be held a ground for reversal. State v. Tettaton, 159 Mo. 354, 60 S. W. 743; State v. Riddle, 179 Mo. 287, 78 S. W. 606.
The granting of a continuance under circumstances such as we have in the instant case rests largely in the discretion of the trial court and its action upon such application will not be disturbed, unless it is obvious that its discretion has been unsoundly or oppressively exercised. State v. Burgess (Mo. Sup.) 193 S. W. 821; State v. Salts, 263 Mo. 304, 172 S. W. 373; State v. McWilliams, 267 Mo. 437, 184 S. W. 96; State v. Weber, 272 Mo. 475, 199 S. W. 147; State v. Cain, 247 Mo. 700, loc. cit. 705, 153 S. W. 1039; State v. Tracy, 294 Mo. 372, 243 S. W. 173.
It is urged that the trial court erred in overruling defendant's motion to quash the search warrant and suppress the evidence obtained thereunder. Since, however, the defendant did not set this forth in his motion as one of his grounds for a new trial, this point cannot be considered here on appeal. It has repeatedly been held that the mere taking of an exception to the action of a trial court at the time a motion is overruled is not sufficient in itself to obtain a review of such action of the court on appeal. State v. Nelson, 101 Mo. 477, 14 S. W. 718, 10 L. R. A. 39. Before a trial court can be convicted of error in passing upon any question which may arise during the trial of a cause, it must have its attention called thereto by motion for a new trial and thus be given an opportunity to correct its own error. Foster v. Sayman (Mo. Sup.) 187 S. W. 1198; Maplegreen Realty Co. v. Trust Co., 237 Mo. 350, 141 S. W. 621; State to the use of Russell v. Fargo et al., 151 Mo. 280, 52 S. W. 199; Schuchart v. Brasler (Mo. App.) 249 S. W. 164.
It is complained that the defendant, while a witness in his own behalf, over the objection of his counsel, was asked whether he had ever been convicted of "violating the prohibition law," to which question defendant answered that he had been. On redirect examination the defendant explained that his former conviction for a violation of the prohibition law had been some 10 or 12 years previous. It is urged that counsel for the state asked this question for the sole purpose of prejudicing the minds of the jurors; that defendant's former conviction was too remote to be competent for that purpose. The point is without merit.
Section 5429, R. S. of Mo. 1919, provides that any person who has been convicted of a criminal offense is, notwithstanding, a competent witness, but that such conviction may be proved to affect his credibility either by the record or by his own cross-examination. Said section has repeatedly been held to apply to a defendant in a criminal case who takes the stand in his own...
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State v. Taylor
...291; State v. Horn, 209 Mo. 452; State v. Wilson, 242 S.W. 886; State v. Williams, 263 S.W. 198; State v. Lloyd, 263 S.W. 212; State v. Taylor, 266 S.W. 1017. (3) The argument of the prosecuting attorney was not such as to constitute reversible error. Where the remarks were improper the cou......
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...to overrule the motion for a continuance on the ground that diligence was not shown. [State v. Schooley, 14 S.W.2d l. c. 631; State v. Taylor, 266 S.W. 1017.] is assigned to the trial court's ruling in permitting the prosecuting attorney to question defendant with reference to former convic......
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