State v. Underwood

• Decision Date: 31 October 1881
• Parties: THE STATE v. UNDERWOOD, Appellant.
• Court: Missouri Supreme Court

75 Mo. 230

THE STATE

v.UNDERWOOD, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Barton Circuit Court.--HON. C. G. BURTON, Judge.

REVERSED.

This was an indictment for the killing of J. D. McElwrath. The evidence showed the following state of facts: Deceased was city marshal of Greenfield, Dade county, and deputy constable of Center township in which Greenfield is situated. On the 20th day of June, 1881, deceased, with others, went into the country to arrest horse thieves. They succeeded in taking Mitchell and Butler, two men charged with stealing horses. While out they obtained information that defendant Underwood was also implicated, and McElwrath returned to Greenfield to arrest him. Meeting him in a saloon, McElwrath informed defendant of his intention. The evidence was conflicting as to what occurred at this point, that of the State tending to show that the declaration of deceased was not accompanied by any threat or hostile demonstration, and that defendant instantly drew his pistol and fired, inflicting the wound of which McElwrath died in a few minutes; while that for the defense tended to show that deceased was the first to draw his pistol, at the same time calling out to one Long, who was acting with him, to shoot defendant. On the part of the State, a witness was permitted to testify that defendant had said that certain marks on the butt of his pistol indicated the number of men he had killed, and that one of them was for McElwrath, and the other for an Indian. On the part of defendant evidence was offered to show that as the posse having Mitchell and Butler in charge, were returning to town they were several times set upon by a mob who attempted to carry off the prisoners by force with the purpose of hanging them, but the court excluded the evidence.

The instructions referred to in the opinion, are as follows: 9. “The court instructs the jury that they are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony, and in determining such credibility and weight they should take into consideration the character of the witness, his interest, if any, in the result of the case, the probability or improbability of his statements, his opportunity for obtaining knowledge concerning the matters to which he has testified, as well as all the facts and circumstances in the case; and if the jury shall believe that any witness has knowingly sworn falsely to any material matter, they are at liberty to disregard the whole or any part of such witness' testimony.'

21. “The statement read in evidence upon defendant's application for continuance, of the facts which he expected to be able to prove by the absent witnesses, are to be taken and received by the jury as the testimony of such witnesses, and are entitled to the same weight as if such absent witnesses had been sworn and given their evidence on the trial.” Other facts appear in the opinion of the court.W. C. Robinson and E. Butler for appellant.

D. H. McIntyre, Attorney General, and B. G. Thurman for the State.

SHERWOOD, C. J.

The defendant, indicted in the county of Dade for murder in the first degree, was, on change of venue to the circuit court of the county of Barton, convicted of that offense, and now appeals to this court.

I.

There was no error in denying the defendant's motion to strike the cause from the trial docket, based upon the reason that the cause coming by change of venue from another county and the transcript being filed less than fifteen days before the first day of the term, the cause was not triable at such term. The motion had the support of rule 12 of Barton circuit court, but that rule is in direct conflict with section 1870, Revised Statutes 1879, which provides that, “upon a transcript from another court being filed in the court to which the venue has been changed, the same proceedings shall be had in the cause in such court, in the same manner, and in all respects, as if the same had originated therein;” and the statute must prevail.

II.

Nor was error committed in denying defendant's application for a continuance, the prosecuting attorney, under the provisions of the statute, section 1886, having consented that the absent witnesses would, if present, testify as stated in the defendant's application. State v. Hatfield, 72 Mo. 518; State v. Miller, 67 Mo. 607. That section provides that upon such consent being given, “the facts set out in the application or affidavit, as the facts which the party asking the continuance expects to prove by the absent witness, shall be taken as and for the testimony of such witness, the trial shall not be postponed for that cause; but the facts thus set out shall be read on the trial, and be taken and received by the court or jury trying the cause as the testimony of the absent witness; but such facts may be contradicted by other evidence, and the general reputation of such witness may be impeached, as in the case of other witnesses who testify orally or by deposition.”

This statutory provision, so far as concerns criminal cases, was designed as substitutionary for that constitutional provision which allows the accused “to have process to compel the attendance of witnesses in his behalf.” Art. 2, § 22. When section 1886 was first called to our attention, we had grave doubts touching its constitutionality. Taken at its best, the section is but a sorry substitute for compulsory process, and it may well admit of serious doubt whether, as a matter of strict constitutional law, a party accused of a crime can be compelled to forego the benefits arising from having the personal presence and oral testimony of his witnesses, provided the prosecuting attorney will consent that the absent witness would if present, testify in the manner stated.

But waiving the further consideration of the constitutional point, the statute expressly says that the facts thus set out shall be read on the trial, and shall be received by the court of jury trying the cause as the testimony of the absent witnesses. There can be no other rational construction placed on this language but that it was intended to place the statement of facts set forth in the application for a continuance on precisely the same footing, to all intents and purposes, as though the absent witnesses had been personally present and testified. And it was because we took this view of the matter on former occasions that we upheld the validity of the statute.

We are thus brought to a consideration of the fifteenth instruction given at the instance of the State, as follows: “The statements read in evidence as the testimony of C. R. Turner and Jno. Doe, whose real name is unknown, are to be taken and received by the jury as the testimony of such persons were they present; and the jury are the sole judges of their credibility, and of the weight to be given to their testimony.” The court, at the request of the prosecuting attorney, had previously given instruction number nine, which is the usual one given in regard to the credibility of witnesses, and so instruction fifteen above quoted was entirely unnecessary, unless it can be safely said that it is proper to draw a distinction between the testimony of witnesses who are present and testify, and statutory testimony of the absent witnesses as set forth in an application for a continuance. We are of opinion that neither the letter nor the reason and spirit of the statute under discussion, will admit of...