The State v. Horn
| Decision Date | 18 February 1908 |
| Citation | 108 S.W. 3,209 Mo. 452 |
| Parties | THE STATE v. WILLIAM HORN, alias STICK HORN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Criminal Court. -- Hon. A. W. Lincoln, Judge.
Affirmed.
Jas. B Delaney for appellant.
(1) The trial court erred in overruling defendant's application for a continuance. The application contained all the necessary averments: (1) materiality of evidence; (2) diligence; (3) probability of procuring testimony within reasonable time; (4) what testimony would consist of; (5) that affiant believed the same to be true; (6) that such testimony was not wanting through connivance or consent of defendant; (7) that such application was not made for vexation or delay; (8) such application was properly verified. Where the statutory requirements are complied with and it appears that the overruling of a motion for continuance affected in any way the result of the case, such ruling is reversible error. State v. Woodward, 182 Mo. 491; sec. 2600, R. S. 1899. (2) The element of intent to commit a felony was wholly lacking at the time of the breaking and entering of the Smith home, and an intent formed after such breaking will not constitute the offense of burglary in the first degree. Sec. 1880, R. S. 1899; 2 Arch P., 329. The evidence on behalf of the State utterly fails to show any felonious intent at the time of the breaking. (3) Defendant's demurrer to the State's case should have been sustained. There is a hiatus in time as shown by the testimony of Stella Smith and the rest of the State's witnesses of over fifteen minutes from the moment of defendant's breaking into the house before a single act is shown which even squints at an assault or the consummation of the felonious intent. The language used by defendant in connection with the act of pointing the pistol too plainly falls within the old rule of "harmless alternative" to be a threat, and on the other hand absolutely negatives any intent to kill. 2 Greenl. on Ev. (13 Ed.), pp. 69, 70; State v. Sears, 86 Mo. 175; State v Llewellyn, 93 Mo.App. 469. (4) The proof of statements of a third party, made after defendant had been in the Smith home for at least an hour, and after Stella Smith had left the house (she being the one against whom the defendant was charged to have the felonious intent) is no part of the res gestae and amounts to hearsay testimony. State v. McGuire, 113 Mo. 670; State v. Grote, 109 Mo. 355; State v. Foley, 130 Mo. 484; State v. Rider, 95 Mo. 548; State v. Beard, 126 Mo. 548.
Herbert S. Hadley, Attorney-General, and F. G. Ferris for the State.
(1) It does not appear of record that the trial court committed any error in denying the application of defendant's attorney asking for an inquiry as to defendant's sanity on the day the cause was set for trial. It does not appear that any evidence in support of the application was laid before the court, and it is not shown that the court had reason to believe that defendant had become insane after the time of his indictment. R. S. 1899, sec. 2603; State v. Crane, 202 Mo. 79. (2) There was no error in the action of the trial court in refusing defendant's application for a continuance. (a) The granting or refusal of an application for continuance is a matter addressed to the wise discretion of the trial court, and while it is reviewable, it must appear to have been unwisely and oppressively refused before this court will interfere with the judgment of the circuit or trial court. State v. Crane, 202 Mo. 74; State v. Williams, 170 Mo. 204. (b) In order to warrant a reversal on the ground of the refusal of a continuance, it must appear from the whole case that the result might have been different had the testimony been given as indicated. State v. Woodward, 182 Mo. 391; State v. Crane, 202 Mo. 77. (c) The application for continuance is not sufficient, inasmuch as the affidavit does not show that admissible testimony is expected from the witnesses having a material bearing on some point in issue, and the affidavit does not show due diligence to have been used by the defendant. While the affidavit refers to supposed witnesses who might testify to the condition of defendant's mind, it does not show that the defense relied upon was insanity, nor disclose the nature of the defense. The affidavit names four such witnesses who were then in attendance upon the court, and for purposes of mere cumulative evidence, asks delay in order to bring in one Emerson from Polk county; unnamed and unknown witnesses to the alleged fact that some of the descendants of defendant's grandmother were, or had been afflicted with nervous trouble or insanity, are alleged in the affidavit, to be in Shelby county in the State of Illinois; but the affidavit does not disclose the information upon which affiant made the statement that there might be such witnesses, nor what assurance affiant had that such testimony could be obtained from them. State v. Crane, 202 Mo. 74; State v. Rice, 149 Mo. 461. (d) The plea of insanity was not made as a defense at the trial. The trial took place on the same day that the application for continuance was filed and refused, and defendant testified in his own behalf. It would seem that the allegation of insanity in the motion for inquiry and application for continuance was a mere pretext for delay, and hence defendant could not possibly have been prejudiced by the action of the court in that respect. State v. Rice, 149 Mo. 465; State v. Dettmer, 124 Mo. 426. (3) Every essential element of the crime charged in the indictment was conclusively proved by the evidence. That defendant broke into and entered the dwelling house with intent to commit a felony was clearly proved, and defendant's demurrer to the evidence at the close of the State's case was properly overruled. State v. Painter, 167 Mo. 84; State v. Dooley, 121 Mo. 591.
On the 1st day of August, 1907, at the July term, 1907, of the criminal court of Greene county, an indictment was returned against the defendant charging him with burglary in the first degree. At the same term, and on the 23rd day of August, 1907, defendant's attorney filed a motion asking for the appointment of a lunacy commission to inquire into the mental condition of the defendant, which motion was overruled by the court. On the same day the defendant, by his attorney, filed application for a continuance, which was overruled. The defendant, being formally arraigned, stood mute and refused to plead, whereupon the court ordered a plea of not guilty entered, and, on the same day, defendant was put upon trial and convicted, his punishment being assessed at sixteen years in the penitentiary. Defendant's motions for a new trial and in arrest having been overruled, he appealed.
The evidence on the part of the State tended to prove that defendant and his wife, Maud Horn, were divorced in May 1907, on the petition of the wife, who retained custody of their child, aged about four years. After the divorce, the woman and her child went to live with her father, Jacob Head, who resided near Ash Grove, Greene county, Missouri. On Sunday, July 14, 1907, Maud Horn and her child were at the home of John Smith, about three-quarters of a mile south of Jacob Head's home. About nine o'clock in the evening of that day the defendant, in company with one Morrissett, arrived in a buggy at the Smith home and inquired for Maud, his former wife, and the child. Stella Smith, daughter of John Smith, thought the defendant was intoxicated, and she told him that Maud and the baby were at the home of Vet Head, Maud's brother, across the creek. Defendant and his companion drove away, and having been informed by Mr. Head that the woman and child were at Smith's the defendant returned to the Smith home. It was then about ten o'clock, p. m. Mr. Smith was in bed in a front room of the house, and his daughters, Stella and Mary, and Maud Horn and child, the latter being sick, were in the act of retiring in another room. The defendant knocked on the front door, and Stella asked him what he wanted. He answered that he wanted his wife and baby, and asked Stella to come to the door. She replied that she was in her night clothes and could not come, and he said that she had better come, and began rattling the screen door. Stella went back to Maud and asked her what she should do, and Maud told her not to let him in as he was drinking. Maud then concealed herself and her baby in a closet. Stella went to the door, unlocked and partly opened it, the screen door remaining fastened, and the defendant asked her to come out into the yard, which she refused to do. Defendant then said that he was going into the house and that he wanted his wife and baby. She told him they were not in the house, and that he could not come in. He then said, "Damn you, Stella Smith, I will kill you." She closed the door in his face, and immediately the defendant fired three shots from his revolver, two of the bullets going through the center of the door, and the third a little higher up. The defendant then went around the house to the back door, which he burst open, breaking the lock, which consisted of a thumb latch and hook fastened on by screws. As he was about to enter, Mr. Smith pointed his gun at him and threatened to shoot him if he came in. Defendant said, "Kill me, I want to die." Smith's gun was not loaded, and the defendant shoved it aside, told Smith to stand back, and sprang into the room, swinging his revolver and demanding his wife and baby. Stella ran into the dining room to get to the telephone, but defendant followed her and made her hang up the receiver. She began talking to him, and tried, without avail, to induce him to leave. As she was about to go back to the room where her...
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