State v. Walker

• Decision Date: 31 October 1878
• Citation: 69 Mo. 274
• Parties: THE STATE v. WALKER, Appellant.
• Court: Missouri Supreme Court

69 Mo. 274

THE STATE

v.WALKER, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Scott Circuit Court.--HON. D. L. HAWKINS, Judge.

B. B. Cahoon, Bedford & Keaton and Chas. E. Moss for appellant.

J. L. Smith, Attorney-General, for the State.

HENRY, J.

The defendant was indicted at the December term, 1872, of the Stoddard circuit court, for the murder of one William Conner. The indictment was for murder in the second degree. At the September term, 1873, the cause was continued on defendant's application. At the December term, 1873, it was continued by general order. At the June term, 1874, the December term, 1874, and the March term, 1875, it was continued on defendant's application, and at the August term, 1875, there was a change of venue awarded to Scott county. At the October term, 1875, of the Scott circuit court, defendant again applied for a continuance, which was refused, and the trial proceeded, and resulted in defendant's conviction of murder in the second degree, and his sentence to the penitentiary for a term of ten years. From that judgment he has prosecuted his appeal to this court.

In his affidavit for a continuance on his last application, he stated the facts which he expected to prove by William Knox, Samuel Montgomery and one Terry, of Stoddard county, who were duly summoned as witnesses in his behalf, but were not in attendance; that on the second day of the term, finding that the subpœna had not been returned, he caused another to be issued requiring them to appear forthwith, and had it served upon them, but, learning that the first had been returned, he procured an attachment against them, which, when his application for a continuance was made, had not been returned; that the witnesses resided within thirty-eight miles of the county seat of Scott county. The return of the officer, to whom they were delivered, showed that the subpœnas were served as stated in the defendant's affidavit. The officer who had the attachment to serve stated in his affidavit that after the service of the second subpœna, “the witnesses had secreted themselves to avoid service of the attachment.”

That the defendant used all the means in his power to procure the attendance of the witnesses is beyond question. It was his first application for a continuance after the removal of the cause to Scott county. That removal necessarily made it somewhat more difficult to procure the attendance of the witnesses who resided in Stoddard where the difficulty occurred. The affidavits of himself and...