State v. Thomas

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Thomas, 433 S.W.2d 537 (Mo. 1968)
• Decision Date: 12 November 1968
• Docket Number: No. 53397,No. 2,53397,2
• Parties: STATE of Missouri, Respondent, v. James Betts THOMAS, Appellant

Page 537

433 S.W.2d 537

STATE of Missouri, Respondent, v. James Betts THOMAS, Appellant.

No. 53397.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1968.

Norman H. Anderson, Atty. Gen., Richard R. Nacy, Jr., Special Asst. Atty. Gen., Jefferson City, for respondent.

Herbert D. Schaeffer, Clayton, for defendant-appellant.

PRITCHARD, Commissioner.

Appellant was convicted by the verdict of a jury for the possession of a narcotic drug, 43 milligrams of heroin. Upon proof and a finding of a prior 1953 grand larceny conviction, the court sentenced appellant to eight years imprisonment in the Department of Corrections of Missouri.

The sufficiency of the evidence to sustain the conviction is not here challenged. Appellant urges that he is entitled to a reversal and a new trial because (I) 'The Assignment Court erred in not allowing a Defendant or his representatives to post a bond for his release from custody'; (II) the trial court abused its discretion in refusing to grant a continuance; (III) that he was forced to trial with such expedition as to deprive him of the effective assistance of counsel; and (IV) the court erred in trying him under § 195.200, paragraph 1(2), instead of § 195.200, paragraph 1(1) (RSMo 1959, V.A.M.S.), because the incorrect punishment provision would adversely change the ratio of peremptory challenges (§ 546.180, RSMo 1959, V.A.M.S.) of the jury panel for him as a first (narcotics) offender than given to a second offender under said paragraphs.

Appellant was arrested on suspicion of having violated the narcotics laws, along with four men known by officer Barton to have been narcotic users, on April 14, 1967, in front of an apartment building at 5977 De Giverville in St. Louis, Missouri. Barton summoned help from the police. Officer Swatek ordered appellant to remove his right hand from his pocket. Appellant objected, because he had already been searched, but finally did so. He had currency, coins and a ring of keys in his hand, and as he was putting them back in his pocket a small white capsule fell from the back of his hand to the ground. Appellant immediately put his foot on the capsule and began scraping his foot around on it. The officers removed appellant's foot from the capsule and Swatek picked it up, it being about an inch long and containing a white powder. By laboratory analysis, the powder proved to be .043 grams of heroin.

Appellant's preliminary hearing was had on May 11, 1967, in the St. Louis Court of Criminal Correction, he being then represented by counsel Julian Consentino. Appellant pleaded not guilty at his arraignment in Circuit Court with George Hubel from the Public Defender's office who appeared as counsel for that purpose only. Trial was then first set for June 12, 1967. George T. Williams was appointed as counsel on May 17, 1967, and was permitted to withdraw on May 25, 1967, when appellant's present counsel, Mr. Schaeffer, was appointed to represent him. On June 14, 1967, the case 'was continued for the defendant until September 18, 1967.'

Counsel for appellant filed an affidavit and motion for continuance on September 20, 1967. As grounds for the motion, counsel stated that he had been unable to locate the witnesses who were with appellant at the time of the arrest; that appellant had been unable to locate and speak to those witnesses due to the fact that he had been in confinement in the City of St. Louis jail and was unable to raise bail or make bond; that the family of appellant was then ready to post property in the City of St. Louis as bond for appellant's release; and it was requested that the court grant a continuance for not less than 30 days to give appellant an opportunity to find his witnesses. Upon a pre-trial conference upon this motion counsel stated that appellant had been in custody for the whole period of time during which he stated that there were witnesses he knew of only by the first name but knew where they could be found; that upon diligent search by counsel these people would not make themselves known to him; that appellant and his family have been unable to make bond or raise bail until Monday of the week (September 18, 1967) when persons of the family came forward to post property for the bond, which was refused by the Assignment Division; that appellant has been unable to get out of jail and obtain his witnesses to bring them forward; by reason of which counsel, in his opinion, was unable to prepare an adequate defense for appellant; and that appellant requested any continuance to enable him to locate and bring the witnesses forward so that an adequate defense could be made to the serious charges which could mean a long-time confinement.

The state announced ready for trial, and the court overruled appellant's motion: 'considering the state of the Court's docket--the fact that this case has been assigned out to trial * * * The Court having considered the motion the Court feels that the motion comes too late; that there's been adequate time to develop this case, and that the case is assigned out to trial; that a jury has been summoned and is available for trial; that the State is ready, and the motion is overruled.'

Under § 545.720, RSMo 1959, V.A.M.S., and Supreme Court Rule 25.08, V.A.M.R., the contents of an affidavit for continuance on account of absence of evidence must show the materiality of the evidence expected to be obtained; that due diligence has been used to obtain it; where the evidence may be; if it is for an absent witness, his name, his residence or where he may be; the probability of procuring his testimony, and within what time, what facts he believes the witness will prove, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured, and that the witness is not absent by the connivance, procurement or consent of the defendant, and what diligence, if any, has been used in the premises by the defendant, and that the application is not made for vexation or delay merely, but to obtain substantial justice on the trial of the cause.

Appellant concedes in his brief that bail was set for him, but the amount of bond therefor is nowhere stated. It is not contended that the amount of bond as set was excessive so as to make it an impossibility for appellant to post it for his release. There is no reference whatsoever in the record as to what occurred when an application for bond was presented to the judge of the Assignment Division on September 18, 1967. There is no way of ascertaining whether the security offered at that time was...