The State v. Peters
| Decision Date | 26 May 1914 |
| Citation | 167 S.W. 520,258 Mo. 334 |
| Parties | THE STATE v. MRS. J. A. PETERS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Affirmed.
Hugh C Brady for appellant.
(1) The matter of postponement of the trial in order to give the defendant an opportunity to procure the presence and the benefit of the testimony of witnesses, rested largely in the discretion of the court and the judgment should not be reversed unless it clearly appears that such discretion was abused, and unjustly exercised. State v. Newsum, 129 Mo. 162. (2) While the State may be allowed to endorse the name of a witness even after the trial has commenced "but if the defendant is taken by surprise thereby, the court should extend to him all possible facilities for a fair and impartial trial, and if necessary, may delay or even continue the hearing of the case until he has ample opportunity to prepare to meet the evidence of the witness." State v. Cook, 30 Kan. 85. In The State v. Sorter, 52 Kan. 31, the court held that the defendant was entitled to a postponement for a reasonable time to allow him to meet the testimony of a witness introduced and endorsed at the time of the trial, but as the court had given the defendant forty-eight hours and the witnesses he required were in the immediate vicinity it held that no error was committed. (3) On general principles of justice, it would seem reversible error to refuse time for such purpose if the accused can show he is surprised. State v. Jones, 2 Kan.App. 1; State v. Kelly, 14 Wash. 44.
John T Barker, Attorney-General, and Shrader P. Howell for the State.
(1) The defendant alleges in her second, third, fourth, and fifth grounds of her motion for a new trial that the court erred in refusing to grant a continuance of the trial because she was taken by surprise when Mrs. T. J. Calvin, the coindictee, was offered as a witness for the State. In the first place, an examination of the statement made by counsel for appellant when presenting this matter to the trial court will hardly sustain this contention. The statement referred to is as follows: "But yesterday was the first intimation we had, when she threatened this defendant if she didn't take the witness stand in this (that) case, after we had asked for a severance, and testify that she was not guilty, she said: 'I am going to swear that we turned these diamonds over to your husband, and I am going to take the stand and swear that you are guilty.'" The record shows that a severance was granted on February 7, 1913; that the codefendant, Mrs. T. J. Calvin, was tried first, and it would appear the inference may be fairly drawn that the statement referred to was brought to the knowledge of defendant prior to the commencement of her own trial. If this were true, even in the absence of other grounds, it would show that the defendant failed to exercise due diligence and meet the other requirements made by the statute in this respect, and this fact alone would be amply sufficient to sustain the action of the court. It has been the uniform ruling of this court that the question of continuance is within the discretion of the trial court, and in the absence of an abuse of that discretion, this court will not interfere. Sec. 5204, R. S. 1909; State v. Hollenscheit, 61 Mo. 305; State v. Cummings, 189 Mo. 641; State v. Temple, 194 Mo. 250; State v. McKenzie, 228 Mo. 397; State v. Cain, 247 Mo. 705; State v. Creely, 162 S.W. 737. It is also shown by the record that counsel for defendant in his argument before the court below based the application for continuance solely on the ground that time should be granted in order that evidence might be secured for the purpose of impeaching the character of the witness, Calvin. Testimony of this nature does not go to the question of the guilt or innocence of the defendant, but merely to the matter of affecting the credibility of a witness in the case. Although subsequent to the application for continuance, Mrs. Calvin was permitted to take the stand as a witness, yet no attempt was made to lay a foundation for her impeachment nor to challenge the truth of the statement above attributed to her. Where the facts to which the absent witnesses would testify, if present, are merely cumulative or touch only the credibility of some witness in the case, such grounds are insufficient to convict the trial court of error in refusing a continuance. State v. Hilsabeck, 132 Mo. 357; State v. Howell, 117 Mo. 309; State v. Devorss, 221 Mo. 474. Moreover, at the time of the presentation of defendant's application, the jury had been sworn, six witnesses for the State had been heard, and thus the defendant had been placed in jeopardy. In such circumstances there was no course open but for the trial court to deny the continuance requested. To have stopped the trial at that stage and discharge the jury would have laid open the way for defendant to successfully interpose a plea of former jeopardy when next put on trial. Art. 2, sec. 23, Constitution; State v. Manning, 168 Mo. 418. (2) This court has laid down the rule which has been recognized in a long line of cases, that where one or two persons jointly indicted has either pleaded guilty or has been convicted, he is competent to testify against the other defendant, and can do so without judgment having been rendered against him. The witness, Calvin, had been tried and found guilty on the day prior to the trial of defendant herein, and was therefore a competent witness for the State. Secs. 5241, 6383, R. S. 1909; State v. Jackson, 106 Mo. 177; State v. Minor, 117 Mo. 305; State v. Young, 153 Mo. 449; State v. Myers, 198 Mo. 251; State v. Shelton, 223 Mo. 134; State v. Conway, 241 Mo. 278.
Defendant and one Mrs. T. J. Calvin were jointly charged with the crime of larceny of certain diamonds of the value of two hundred and ninety-five dollars. Upon application of the defendant a severance was granted. Mrs. Calvin was tried first and the jury returned a verdict of guilty in her case while the trial of the defendant was in progress. The defendant was found guilty and her punishment assessed at two years in the penitentiary.
The evidence tends to show that the diamonds, consisting of one large diamond ring and a pair of diamond earrings were stolen from the store of O. C. Zaumseil in Webb City, Missouri, on the seventh day of September, 1912. On that day defendant and Mrs. Calvin went into the jewelry store and asked the proprietor to show them some diamonds. Complying with the request, the proprietor took some diamonds from his safe and placed them upon the top of the show case near the front part of the store. Among the diamonds thus exhibited was one seven-eighths carat diamond ring, valued at $ 185, a pair of earrings valued at about $ 100, and about one-half dozen small diamond rings. Each diamond was attached to a small white cardboard about three inches long and two inches wide. While exhibiting the diamonds the proprietor noticed some smut on one of the stones and stepped aside for the purpose of getting a rag from a nearby workbench. In doing this his back was turned to defendant and her associate. When the proprietor later turned around they had reached the front door going out and at this time the defendant said to the proprietor: "We will look elsewhere." This sudden departure of the two women aroused the suspicions of the proprietor and upon examination he discovered that the large diamond ring and the pair of diamond earrings were missing. It was shown that no other person was in a position to have taken the diamonds during the time they were being exhibited. Upon leaving the store defendant and her associate walked south along the street and about twenty feet south of the front door of the jewelry store a third woman (apparently waiting for them) joined them and the three proceeded southward a few feet and turned into a stairway landing. After going into the stairway landing, defendant was seen to hand to the third woman some white object and thereupon the three women emerged from the stairway, the third woman going north and the other two going south. Defendant and her associate went by street car to Joplin, where, upon their arrival, they were arrested. The diamonds were never recovered.
After the jury returned a verdict of guilty against the Calvin woman the State introduced her as a witness and she testified that she and the defendant went into the jewelry store on the above-mentioned date and asked to be shown some diamonds. Complying with the request, the proprietor exhibited the diamonds, placing them upon a show case. This witness further testified that when the proprietor turned his back the defendant took the diamond ring and diamond earrings and that she and defendant immediately left the store; that after leaving the store they met the third woman, above mentioned, to whom defendant delivered the diamonds. That before entering the store, defendant had placed the third woman a short distance south of the entrance to the jewelry store, as witness says: "To receive the jewelry, if we are fortunate enough to get any."
After the Calvin woman was introduced as a witness by the State defendant, on the ground of surprise, asked for time to file an affidavit of surprise and requested the court to postpone the further hearing of the trial for a few days to enable her to procure testimony with which to impeach the witness and affect her credibility as a witness. In making this request, defendant's counsel stated that the witness was a codefendant, and...
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