State v. Warden
| Citation | 94 Mo. 648,8 S.W. 233 |
| Parties | STATE v. WARDEN. |
| Decision Date | 07 May 1888 |
| Court | United States State Supreme Court of Missouri |
An application for a continuance on the ground of the absence of a material witness set out what the witness was expected to prove. The prosecuting attorney consented that the facts set out in the application as to what defendant expected to prove by the absent witness should be taken as the latter's testimony, and defendant was compelled to go to trial. Held, that the continuance was improperly refused. Following State v. Neider, 6 S. W. Rep. 708.
2. LARCENY — WHAT CONSTITUTES — INTENT.
On an indictment for larceny, defendant having admitted taking the property, but claiming to have done so innocently, thinking it belonged to a relative, it was error to charge that where property has been stolen, and is found soon after in the possession of another, such person, in the absence of exonerating evidence, is presumed to be the thief, as the question of defendant's intent, and not who took the property, is the one for consideration by the jury.
Appeal from circuit court, Johnson county; JOHN E. RYLAND, Judge.
John H. Warden was indicted for larceny. The jury found him guilty, and he appeals.
S. P. Sparks, for appellant. The Attorney General, for the State.
At the May term, 1885, of the Johnson circuit court, the defendant was indicted and tried for grand larceny. The jury failing to agree, the case was continued to the December term. At the December term the defendant made application for a continuance on account of the absence of Fred. Shores, a material witness, which being submitted to the court, and the state's attorney admitting that if the witness was present he would testify as stated in the application, the same was thereupon overruled, and the defendant compelled to go to trial, and on the trial he was permitted to read the facts set out in the application as the testimony of such absent witness.
The facts stated in the application were material to appellant's defense. The court, in overruling the application and permitting the statement to be read, must have found that the defendant had exercised due diligence in endeavoring to procure the attendance of the absent witness; and under the decisions of this court in State v. Berkley, 92 Mo. 41, 4 S. W. Rep. 24, and State v. Neider, 6 S. W. Rep. 708, the court committed error in overruling the application for a continuance.
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State v. Taylor
...expectation having absent witnesses at next term of court, and should have been sustained. R.S. 1929, pars. 3653, 3654; State v. Warden, 94 Mo. 648, 8 S.W. 233; State v. Hesterly, 182 Mo. 16, 81 S.W. 624; State v. Klinger, 43 Mo. 127; State v. Swafford, 12 S.W. (2d) 442; State v. Wade, 307 ......
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