*1 the defendant’s argue the fact of and error to improper held Cameron, 213 Mo. City of having change Neff v. taken a of venue. fact place, In the first 320. (N. S.) 18 L. A. 111 W. R. S. does his residence than forum other plaintiff has chosen a that credibility or reflect unworthy prove that he is belief of tend litigant would habitual he was a .any showing more than that merit. without cause was prove that same effect or have the It is E. 1001. 30 N. Ry. Co., 133 N. Y. Palmeri Manhattan in a cer years’ residence forty-five despite plaintiff’s possible, be and'yet friends there locality, that he had no would tain credibility. Ms nothing in fact that would reflect credibility be unfavorable to inference place, should an In the second obloquy though even some legal right from exercise of permitted Kallauner, 222 In Shull its assertion? stigma might attach to sought by cross-examination 554,W. the defendant 64, 300 App. through bank- gone he had showing that discredit a witness question then resolves "The said: appropriately ruptcy. The through by going discredited a man can be itself into whether or legal right. It having advantage of a is, by taken that bankruptcy; advantage any right taking hardly logically be stated could it be Would gives be discreditable. contended the law would which given in evi- Limitations could Statute of pleading that the credi- discrediting affecting a witness purpose of for the dence bility? We think not.” things permit was an of discretion to all these abuse
In view is reversed and for that reason the the cross-examination dubi-, Boliling, ~Westimes,C., concurs; C., the cause remanded. tante. Barrett, C., adopted foregoing opinion
PER CURIAM:—The judges All opinion of the concur. as the court. Hicks, Appellant. (2d) 650. 39139. 185 S. W. v. Jim No. February Two,
Division 1945. Rehearing Denied, March *2 appellant. Green <&Green for *3 Gaylord Wilkins, McEittrick, Attorney General, and Assistant
Boy Attorney for General, respondent.
BOHLING, im appeals C. Jim Hicks from a years’ imprisonment posing a sentence for felonious assault. two charged Hicks, R. Wal Charley The information Sec. Hicks, Charley the and defendant with commission of Homan, ter the discharge ground failed seeks a the State offense. Defendant relating statutory provisions give him speedy trial within case. make a submissible failed to and on the the State thereto complains He also of the instructions. en here that nisi and reasserts
Defendant claimed for providing S.R. discharge under Sec. titled to his brought to trial not be on bail if he discharge an accused held delay be occa court, unless the third term of before the end of try cause. by of time or the want upon application sioned his Wurde ex rel. Stevens v. S. 1939. State Consult also Sec. R. in 189, (overruled part W. man (Banc), Mo. —see Billings Rudolph (Banc), ex rel. respondent’s here original prohibition 933), was an action defendant, under facts, is cited we pleaded demurrer to the penitentiary in the accused confined stand, proposition that an charge pending his from a under the facts to entitled put trial if not within at the time of his sentence he were where the continuances were statutory number of terms of court consent, of want not or with reason application, facts, involves try the The instant review additional of time to cause. scope of and not in State infra, mentioned discussed within may Statutory this nature enactments of ex rel. Wurdeman. _ defendant, being the benefit of an accused enacted for waived right speedy They, implementing his constitutional held, un prevent and as are to language their has indicates forestalling im delays protracted prosecutions, reasonable purpose Their of one accused of crime. or harassment prisonment escape punishment from trial technical or to to furnish a public’s rights public, representatives when the forfeit necessary safeguard that law and order fault, to for are not at *4 through punishment made effective the society preservation of wrongs. Their effect that an for their accused of criminals the deprived speedy trial on account of the laches of “shall not be of 401, (Mo.), 279 W. v. v. State Hut state.” State Nelson 403[1] 475; Pierson, 841, State 123 ing, 21 Mo. Mo. 848[2], (reviewing cases); Woods, [2, 2d S. W. 3] 87, 89[2, (Mo.), S. W. State Nolan 544[2], 3]; W. 2d 654[2]. term, in September information was filed the The instant Douglas county, and the trial the court of occurred at the November county, having in Ozark the term, changed. of court venue been is that the position continuances State’s involved were the The and, motion in own the record, its circumstances shown rights his under waived the Statute. The continuances defendant of defendant’s reason penitentiary confinement in the occurred charge, having he been discharged therefrom a different subse- on term, November of the the Ozark He to circuit court. quent get He never asked for or corre- made effort to trial. never to with, The cause con- sponded concerning trial. attorney The application. after his release tinued to the trial term informed defend- ready try the cause and so at all times to State was recog- prosecuting attorney mentioned defendant’s counsel. The ant’s county defendant’s counsel in appearance nizance for Ozark to counsel’s assurance nothing in the matter defendant’s did discharge on the necessary. plea Defendant first filed a for was not supra, circumstances, trial. In these authorities day of the bringing in defendant to guilty of laches has not properly overruled. prayer for His make submissible case contends the State did Defendant him connecting with probative evidence no on presented Defendant reach a different conclusion. offense. We uncontroverted and to evidence stands no The State’s witness. following effect: Douglas salesman, and Mrs. Merle Barker, an automobile Hobart Douglas county, on June Missouri, in his automobile
were p. “fiat.” account of a defective m. a tire went On when about 7:00 ground. get off the In jack unable the wheel Barker was to automobile automobile, going south came 15 to 20 minutes defendant attempted stop get him to Barker his father’s home. toward away. 500 feet stopping jack,' past, but defendant drove Douglas hallooed to and Mrs. Barker had turned back to the tire jack. Defendant drove on without an automobile defendant for Barker’s again passed answering. About a half hour later defendant time he had someone with car, going opposite in the direction. This hallooed, intending ask for an automobile Douglas again him. Mrs. change ask- tire, efforts to Barker continued intermittent jack.- unable jack help no ing for a but he received and was other motorists p. up stopped 11:00 m. an automobile drove fix tire. About help Thinking in front of the Barker automobile. 100 feet 75 or jack. ask for a arrived, get out of his ear to Barker started to had “hollered; lights.” Mrs. your car turn the other on Someone from lights. turned Barker continued to Douglas over and reached getting while was still in the act of the automobile and get out of 22 No. 2 shot from the car and shots were fired other out several crawling away. The ground and started He fell to the Barker. struck investi- shooting did not to the automobile to come did men who finally later. Douglas got out of the ear about two hours Mrs. gate. she found Barker in the woods. Another shot thereafter Sometime *5 Realizing help car. She tried to Barker. from other fired was Living- help. him to seek returned with Fred She left weak, she was Defendant, Charley Hicks, Hicks, Walter and 3:30 a. ston about m. scene, coming at the out of the woods. There were Charley Homan ‘‘ Livingston ground. told them empty shells what 6 5 or were
955 any of the shoot- said, ‘I didn’t do they Charley had done and Hicks ” car, its to Barker’s saw ing.’ Livingston and defendant went then put condition and a tire on the wheel. to inquiry the State’s witnesses as made
Counsel for defendant none); (they had Douglas had firearms Barker or Mrs. whether gun came out with a Barker, passed, defendant first whether when Charley Hicks” order they heard “Constable in his hand and whether ar- they were up them to their hands inform.them throw car. One up stopped in of Barker’s rest the car drove front when undisclosed questioning for some infer from this line of would car con- occupants of the Barker reason the arrest of the templated by the others. presence more in record than the of defendant
There is much this going presence the crime and cases off on the mere at the scene of by apply attempt an accused do not control. is made counsel No they applied, must material facts favor- eases, cited be opinions able to the State. We have considered the cited. The facts distinguish the cases. Here defendant was seen in his automobile driving passing passed automobile. thereafter he the Barker Soon him. opposite his car in direction with someone with Then a car stopped front direction, the last mentioned of the Barker came'from shooting began immediately. in- car, Several shots were fired and the stantaneously. They by persoñs. have must been fired different Five empty shooting. six shells were on the at the scene of Hicks, Defendant, the name of and a fourth person two others there, coming out of the who had were woods. Defendant was one parked highway. the Barker car had been occasion to know shooting. All Charley Hicks he did not do this said warranted prime bringing if not the inferences that defendant was one of actor of the He persons directly to the scene offense. connected believed, if testimony, prima impli- with the transaction and the facie shooting immediately upon him in the which cated occurred their ar- necessary rival. It was not conviction that he be one of the “trigger-men.” conspiracy may established A circumstantial Bishop, contention of no case made falls. State evidence. The 892(b), W. 921 [1, 2] 149 [4] ; State v. Kolafa, Mo. Bresse, 326 Mo. Menz, W. [2, 3]; [8], 440, 448 very S. W. 2d We think little part effort on the of the [8-10]. produced additional testimony State would have of defendant’s con with the offense and should nection have been offered the- at they may duties Public officers should their as best any question remove of the propriety endeavor to of their efforts. Complaint is made that refused an instruction jury although the effect that believed defendant-and others were feloniously and Barker shot present others, still defendant *6 acquitted was to be he had “shot said the State established unless charged and three Hobart Barker.” defendant The information theory was others The State’s with commission the offense. among charged. There was a concert those of action evidence or not defendant acted in concert others whether with any shooting. defense requested present did The did not a instruction to the State’s case refusal was evidence in this record. Its Gadwood, 42, proper. State v. 342 Mo. 116 S. W. [V], máy State Williams (Mo.), 922(3). v. 248 S. W. Defendant 55[15]; complain on the instruction. It a converse did present a defense instruc- case submitted in main the.State’s tion. It not a in- converse instruction. Had it been converse one, given struction (State correct it should have been v. cases); Fraley, reviewing 342 Mo. W. 2d but S. defendants required are to tender correct converse instruction can they before 2d 167, 169[8, complain 177[5], S. W. 2d 454 458 62 S. W. 2d of its refusal 9]). [14] There was no error connected with the refusal (citing (State 455[5] cases); Layton, State v. 332 Mo. Buckner Tucker, (Mo.), 225[14], of the instruction. There was no error in proceeding the State’s instructions
theory defendant and the others acting involved were in concert with each (Mo.), other. State v. Thornton S. W. 2d 317[2,. 3]; supra; Menz, State v. (Mo.), v. Hicks 2dW. 73[5]. The is affirmed. Westimes and Barrett, CG., concur. PER CURIAM foregoing :(cid:127) —The opinion by Bohling, C., adopted opinion of the judges court. All the concur. Company State of Missouri ex rel. The Prudential Insurance Ewing America, a Corporation, Relator, C. Bland, Nick T. Cave, and Samuel Dew, Judges A. of the City Kansas Court of Appeals. 39207. 185 (2d) S. W. 654. No. Two, February Division 5, 1945.
Rehearing Denied Motion to Transfer to Banc Overruled, March