118 Mo. 117 | Mo. | 1893
Defendant was convicted at the April term, 1893, of the criminal court of Johnson county, of murder in the first degree for shooting with a pistol and killing one Isaac Palmer at Sedalia, Pettis county, on the twenty-ninth day of August, 1892. The indictment was found in the latter county where the offense was committed, and the venue subsequently changed on the application of defendant to the criminal court of the county of Johnson.
At the April term, 1893, of the Johnson criminal court, the defendant filed his third application for a continuance on the ground of the absence of witnesses and the second application on account of the absence of one John "Williams and one Nelson Frazier, which was by the court overruled. An attachment was issued for Frazier and he was brought into court during the 'trial. The case is here on defendant’s appeal. No brief has been filed on behalf of defendant.
The evidence discloses the following state of facts:
The first point made in defendant’s motion for a new trial for our consideration is, that the verdict is against the evidence. It seems, from a careful reading of the evidence, that this position is not well taken, as it discloses a clear case of murder in the first degree,, unless the defendant at the time of the homicide was acting in self-defense which was a question for the jury under the evidence and instructions. Besides, this court has uniformly held that when in a criminal cause the inference of guilt can be reasonably drawn from the evidence, it will not interfere with the verdict on the ground of insufficiency of the evidence to support it. State v. Orrick, 106 Mo. 111; State v. Jackson, 106 Mo. 181; State v. Moxley, 115 Mo. 644.
Another contention is that the court committed error in refusing to give instructions asked for by defendant, and giving instructions on the part of the state. A careful reading of the instructions will satisfy any judicial mind that there is no merit in this contention, as the instructions given presented fairly and pointedly every phase of the case disclosed by the
. While some of those asked by defendant, and refused, contained correct expositions of the law, the same-matters embraced in them were included in the instructions which were given.
A further contention is that the court committed error in admitting illegal and irrelevant testimony, and in refusing to admit legal, relevant and competent evidence offered on the part of the defendant. Nothing is suggested in the motion for a new trial wherein any- such error was committed, and we have looked in vain through the record to find it.
After the panel of forty qualified jurors had been selected and the list delivered to defendant, he filed his. third application for a continuance because of the absence of John Williams and Nelson Frazier, witnessess for defendant, by whom he alleged that he-expected to prove certain facts material to his defense, which facts were set out. The affidavit was in proper-form, and no objection was taken to it on that account, but it was overuled because of the want of diligence on the part of defendant in obtaining the testimony of the two witnesses. No error was committed by the court in overruling this application; the cause had been once continued because of the absence of the witness Williams and after the change of venue and at the fourth term after the indictment was found, defendant asked another and second continuance because of the absence-of this same witness. It appears from the affidavit that the witness Williams was a stranger, only temporarily in Sedalia, at the time of the homicide, and there was'scarcely a probability that his testimony could ever-be secured, as he seems to have been roaming about having no permanent place of abode. The proper-diligence was not exercised in trying to obtain his
Thei’e should be, and is, accorded to the trial judge-largely the discretion of passing upon the application of defendant for a continuance, and unless it clearly appears that such discretion has been abused to the* prejudice of the rights of the defendant, this court will not interfere. We are not inclined to think that there-was any abuse of discretion on the part of the court in overruling this application. State v. Gamble, 108 Mo. 500; State v. Marshall, 115 Mo. 383; State v. Steen,. 115 Mo. 474; State v. Carter, 98 Mo. 176.
The record shows that the witness Frazier was-brought into court under an attachment before the-instructions were read to the jury, when the court announced to defendant’s counsel that the witness was-present and that they would be permitted to examine-him if so inclined; they declined to do so, and defendant cannot now complain of the refusal of the court to-grant a continuance on account of the absence of this-witness.
The final contention is that the indictment is insufficient in law and does not charge any offense against the defendant, that nowhere in the body does it charge-the defendant of murder, nor in the concluding clause-does it use the word murder. There might be something in this position if it was sustained by the record,, but is it not. The indictment concludes as follows: “And so the grand jury aforesaid upon their oath aforesaid do say that the said|Charles Banks and the said Isaac Palmer in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforesaid, did kill and murder contrary to the statute in such cases made and provided and against the peace and'dignity of the state.” The-indictment is according to the most approved form,.
The verdict is fully sustained by the evidence, and the case unusually well tried. There is no error apparent in the record. The judgment should be affirmed and it is so ordered.