State v. Whitton

• Decision Date: 31 October 1878
• Citation: 68 Mo. 91
• Parties: THE STATE v. WHITTON, Appellant.
• Court: Missouri Supreme Court

68 Mo. 91

THE STATE

v.WHITTON, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from St. Clair Circuit Court.--HON. JOHN D. PARKINSON, Judge.

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

SHERWOOD, C. J.

Defendant was indicted and convicted of stealing a steer in St. Clair county. The instructions were unexceptionable, and were based upon sufficient evidence. The defendant is not represented in this court by counsel, so we have examined the motion for a new trial in the endeavor to discover if any substantial error has occurred, and will give the results of that examination.

I. The court below did not err in refusing to grant a change of venue. Witnesses were heard both on the side of the State and of the appellant, and the court, upon the evidence adduced, found that the alleged prejudice did not exist, and that finding was conclusive. State v. Sayers, 58 Mo. 585, and cases cited; Laws 1875, § 1, p. 109.

1. CHANGE OF VENUE: power of court to limit number of witnesses.

II. Nor are we of opinion that it was out of the power of the court to limit beforehand the number of witnesses to six on a side in reference to the pending application for a change of venue, because we regard such ruling as clearly within the domain of judicial discretion, with which, unless arbitrarily and abusively exercised, we should refrain from interfering. It would be productive of very serious and hitherto unheard of consequences, should the law be so declared by this court as to cut off and preclude inferior tribunals from the exercise of one of the most ordinary functions pertaining to the daily administration of justice. Thus courts ex. gr. limit by previous announcement to that effect, the number of impeaching and of supporting witnesses to a certain number on each side. Bunnell v. Butler, 23 Conn. 65. In that case it was said that: “It would be absurd to hold that upon an inquiry of that sort, depending, in a great measure, upon the opinion of witnesses, a party has the right to examine as many as he pleases, and that the court and jury are bound to sit and hear them without any power to interfere. There must necessarily be a limit to such inquiries, and it is for the court to prescribe it.” I confess my inability to distinguish the principle involved in the present case from that involved in the case just cited. Any other theory of the law would permit, nay, prompt a crafty criminal to block the wheels of both punitive and remedial justice, by using the latest census returns of the county as a fecund course of limitless supply for countless subpœnas, thus securing a continuance under the pretense of securing a change of venue. And to those who, from long practice at the bar, are familiar with artifices of criminals, such an one will seem neither impossible nor improbable.

But conceding that an applicant for change of venue has the abstract right to summon innumerable witnesses, and impose upon the court the unpleasant task of meekly listening, at his good pleasure, to interminably cumulative testimony, still it does not appear that the defendant has been prejudiced by the action of the court, because, from aught that appears, he had no more witnesses to examine than the number brought forward in response to the ruling complained of. A party who insists he is injured by the action of the court, must show in what the alleged injury consists, or else those favorable intendments which the law indulges in respect to the lower tribunals, will, as they ought to, prevail.

2. CONTINUANCE.

III. The next point to be examined is the refusal to grant the continuance defendant applied for. It seems that defendant was arrested in July or August, 1876, for stealing cattle, on affidavit filed before a justice of the peace. His indictment for that offense followed at the next September term of that year. That indictment charged, in its first count, the stealing of an animal belonging to one Shaffner; in its second, the larceny of two head of cattle belonging to one Chevington. The indictment on which defendant was tried, charged in both counts the stealing of the cattle whose owners were to the grand jurors unknown. The first application for a continuance was made at the September term, 1877, when the latter indictment was found. It was filed September 5th, 1877, and was based on the absence of two witnesses, Copeland and Talley, who were then alleged to be residents of St. Clair county, for whose appearance subpœnas were alleged to have unsuccessfully issued on the 23d of August of that year. And in that application it was urged that the State having entered a nolle prosequi as to the first indictment, and found a second one, (on the day previous,) which differed from the first, in that it did not allege the names of the owners of the cattle, but charged that those names were to the...