125 Mo. 14 | Mo. | 1894
Defendant was jointly indicted with several other persons in the circuit court of St. Louis county, charged with robbing the Adams Express Company of a large amount of money, about $20,000, by force and violence and by putting the agent of said
Afterward at the May term, 1892, of said court, on his application, he was granted a change of venue to the circuit court of St. Charles county. At the September term following, of the St. Charles circuit court, the cause was set for trial September 20, 1892. On that day defendant appeared in the St. Charles circuit court, and, Martin and Bass no longer appearing as his attorneys, the cause was continued until December 12, so that defendant might secure counsel. On December 12, 1892, Marshall F. McDonald appeared in the St. Charles circuit court as the attorney of defendant and as he was too ill to properly discharge his duties to his client and the court, the cause was continued to the next regular term and set for trial on the first day thereof.
On the first day of the said term, it being the March term, 1893, defendant filed a motion for a continuance and for an order on the Adams Express Company to produce money and property, taken from defendant at the time of his arrest, and place the same in the hands of the sheriff of St. Charles county to be used as evidence in the cause. The court granted a continuance of the cause to next term, September, 1893, but denied the prayer for an order on the express company to place the said money and property in the hands of the sheriff.
On September 11, 1893, defendant filed a motion for a continuance, which was by the court overruled, and he immediately filed a motion for a change of venue based upon prejudice arising in the community after the transfer of the case, and for a special judge to try the cause. On the following day, September 12, 1893, the court sustained the application for a special
On September 27, defendant’s attorney, Marshall F. McDonald, did not appear, being engaged elsewhere in the trial of a case. On September 28, the cause was called for trial and McDonald was still absent. The court then offered to appoint an attorney for defendant but he refused to accept the services of an attorney appointed by the court.
The court then proceeded with the trial, and during its progress the state introduced as a witness one Joseph Furling, and as to him defendant objected to his giving any testimony. The witness testified that he was an attorney practicing his profession in the city of St. Louis, but that he had never been the attorney of defendant. The objection was then overruled, and the witness testified as follows:
That he had practiced law in the city of St. Louis fourteen years. That he frequently visited the jail to see his clients and that on one occasion defendant called to him and said: “I understand you and Harrigan are pretty thick.” That when he replied, yes, that he and Chief of Police Harrigan were good friends, defendant then asked witness to go and see Harrigan and see if he would not let him off with fifteen years imprisonment in the penitentiary if he pleaded guilty. That witness saw Chief Harrigan and reported to
The said Furling testified also that at the time of these alleged interviews between defendant and himself, defendant was confined in the St. Louis jail upon an indictment for the crime of which they were talking.
After the state closed its evidence defendant declined to introduce any testimony and the jury returned a verdict of guilty and assessed his punishment at twenty-five years in the penitentiary.
Defendant then filed his motion for a commutation of the sentence, which was then fixed at twenty-five years in the penitentiary, the term to commence from the date of his arrest on the tenth day of February, 1892. From the judgment and sentence, defendant appeals.
The first contention upon the part of the defendant is that he should not have been required to go to trial while the attorney employed to defend him was absent engaged in another court in the trial of a cause, but that the court should have continued this cause to the next term, or postponed the trial to a day certain. Questions of this character rest largely in the discretion of the court, and, unless such discretion was manifestly abused, the judgment should not be reversed upon that ground.
In Daughtery v. State, 26 S. W. Rep. (Tex.) 60; Bates v. Commonwealth, 16 S. W. Rep. 528; State v. Dusenberry, 112 Mo. 277; State v. Bailey, 94 Mo. 311; State v. Jewell, 90 Mo. 472, relied upon by counsel for defendant as sustaining their contention, the attorney of defendant in each case was unable to attend the
The judges who at different periods had control of this ease up to and during its trial exhibited great forbearance and indulgence to defendant and his counsel, whose conduct was little less than trifling with the-court. When the facts as disclosed by the record as hereinbefore stated are taken into consideration — the-various motions for continuances, changes of venue, and efforts to continue the cause from time to time and. term to term, it is difficult to see of what act of the court the defendant has cause to complain. If the-defendant was entitled to a continuance because his attorney was engaged in the trial of ,a cause in another*court, especially after his declination to accept the services of another attorney which the court offered to-appoint to defend him upon his trial, then there was-no certainty that it would ever come to trial, for the-same state of facts might exist at any subsequent term. Even in case of sickness of the attorney of a defendant, so that by reason thereof he should be unable to attend, there would be no abuse of discretion in refusing a continuance upon that ground, unless there should exist a reasonable probability that he-would be able to attend the trial by some reasonably definite time to be fixed by the court.
While it is true, as contended for by counsel for defenclant, that, if the statements made to the witness Furling were made while he was acting as his attorney in endeavoring to receive a lighter sentence by pleading guilty, such evidence was incompetent, the evidence-shows that he never at any time occupied that relation.
Moreover, the objection was made to the competency of the witness, and not that the communication or request made of him by defendant was privileged because the witness was his attorney at the time the request was made. There can be no question as to Furling’s competency as a witness, even if he was the attorney of defendant; but he could not testify to communications that were privileged without the consent of his client. As to all other matters he occupied the same plane as did any other witness.
But it is argued that if Furling was notthe attorney for defendant, then the conversations between them were inadmissible unless they were confessions, and as no foundation for the admission of such testimony was laid, it was error to admit them. It is difficult to see how the statements made by the defendant to the witness Furling could be tortured into a confession. If it could be, then any statement made by a defendant
But, even if the statements should be treated as confessions, they were voluntarily made to a person not an officer, or having any control over him, without any inducements being held out and were not inadmissible upon that ground. In State v. Patterson, 73 Mo. 695, Sherwood, C. J., after an exhaustive and able review of all the authorities, says: “The law is settled now that a confession, to be inadmissible, must be made to an officer of the law, in consequence of improper influences exerted by him, and if no threat of harm or promise of worldly advantage be made by such official, or by the master of the accused when directly concerned, the confession is admissible.” That case has since been followed and approved in State v. Phelps, 74 Mo. 128; State v. Owen, 78 Mo. 367; State v. Hopkirk, 84 Mo. 278; State v. Brooks, 92 Mo. 577; State v. Meyers, 99 Mo. 119.
The case seems to have been well tried, and free from any cause which would justify a reversal of the judgment. Judgment affirmed.