The State v. Loe
| Citation | 12 S.W. 254,98 Mo. 609 |
| Parties | The State v. Loe, Appellant |
| Decision Date | 04 November 1889 |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. James M. Davis, Judge.
Reversed and remanded.
Jonas J. Clark and Scott J. Miller for appellant.
(1) The court should have granted appellant a change of venue. R. S sec. 1856; State v. Wilson, 85 Mo. 134; People v. Yookum, 53 Cal. 566; State v. Ware, 69 Mo 333; State v. Wisdom, 84 Mo. 177. (2) The court should have sustained appellant's first application for a continuance, and especially the supplemental application taken in connection with the first, over to regular term. R. S., sec. 1883. (3) The court abused its discretion in only continuing until November 21, and this court will interfere. State v. Hollenscheit, 61 Mo. 302; 59 Mo. 418; State v. Lewis, 74 Mo. 222; State v. Farrow, 74 Mo. 531. (4) The court should have granted a continuance on the final application of appellant. The court should have granted a continuance, and should have awarded compulsory process against witnesses Gibbons, Dale and Laheigh. State v. Berkley, 92 Mo. 41; State v. Wardell, 94 Mo. 648; State v. Bryant, 93 Mo. 273; State v. Pagels, 92 Mo. 301; State v. Neiderer, 94 Mo. 81; State v. Gilmore, 95 Mo. 569.
John M. Wood, Attorney General, for the State.
(1) Where testimony is offered for and against a motion for a change of venue on account of the prejudice of the inhabitants of the county, and the motion is overruled, this court will not interfere with the action of the trial court unless palpable injustice appears from the record to have been done. Nothing of the kind appears in this record, and no prejudice is shown. State v. Holcomb, 86 Mo. 371, and authorities cited. (2) There was no error in overruling the application for a continuance. The power of the court had been unsuccessfully employed to secure the attendance of the absent witnesses. The application failed to state a good ground for a continuance, in this, that it does not appear, nor is in any manner shown by said application, that the evidence sought to be produced by said absent witnesses is material. On the contrary, it appears that the testimony of the absent witnesses would be only as to self-serving declarations of defendant, constituting no part of the res gestoe, and therefore inadmissible. The application should show ample grounds why the continuance should go before the prosecuting attorney is called upon to say whether it shall go or not, and before section 1886, Revised Statutes, is called into operation. If the application was insufficient, the fact of the prosecuting attorney admitting that the facts stated in it might be read as the testimony of the absent witnesses is no reason for treating the same as sufficient, and the overruling of the same as error. State v. Berkley, 92 Mo. 41.
Brace, J. Ray, C. J., absent, and Barclay, J., dissenting.
-- At the September term, 1887, of the circuit court of Livingston county, the defendant was indicted for grand larceny, and on the third of October filed an application for a change of venue on the ground of prejudice of the inhabitants of said county against him, which, coming on to be heard, the defendant introduced evidence tending to show the existence of such prejudice, and the state introduced evidence tending to show that such prejudice did not exist so as to prevent his having a fair trial in said county. The court refused to grant a change of venue.
Thereupon the defendant made application for a continuance of the cause until the next term on account of the absence of Daniel Gibbons and other witnesses. The court refused to continue the cause until the next term; caused writs of attachment to be issued for the absent witnesses, and continued the case until the twenty-first day of November, 1887. On that day the cause coming on to be heard, the witness Gibbons being still absent, though in the meantime he had been arrested and brought into court and discharged on recognizance to appear on the twenty-first of November, a second attachment was issued against him, returnable forthwith and the cause passed until said attachment should be returned. On the next day the attachment was returned not served, and the said Gibbons still being absent, the defendant filed a second application for a continuance on account of the absence of said Gibbons, and of two other witnesses whom he alleged to be material, setting out the facts which he expected to prove by them. On the hearing of this application, the prosecuting attorney announced that the state was ready for trial and would admit the matters and things which defendant proposed to prove by said Gibbons as facts to be given in evidence on the trial. Thereupon the court overruled...
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