9 Mo. App. 321 | Mo. Ct. App. | 1880
delivered the opinion of the court.
The defendant was iudicted for murder in the first degree. After two continuances by consent of the parties and one upon the court’s own motion, the case was called for trial on the eighteenth day of November, 1879. The defendant made an application for continuance, supported by an affidavit of his attorney, which on the following morning was overruled. A supplemental application for continuance was then made, supported by the defendant’s affidavit. This also was overruled, whereupon the defendant’s attorney withdrew wholly from the cause. The court then appointed Messrs. Babcock and Turner, two respectable attorneys, one of whom was not present in court at the time, to conduct the defence, and adjourned the trial until the twenty-fourth day of the same month. On the last-mentioned day the defendant presented another application for continuance, backed by his own affidavit, which, among other matters, set forth the following facts, viz. : That in April, 1879, an attorney undertook the charge and management of defendant’s cause, and continued in sole charge thereof until November 19, 1879 ; that in June, 1879, said attorney applied to defendant for money to be used in taking depositions of witnesses, to be used in defendant’s behalf, and from subsequent conversations and occurrences, which are set forth in the affidavit, defendant had cause to believe, and did believe, that such depositions would be duly taken to be used on the trial; that it had just come to the knowledge of defendant that such depositions were not in fact taken ; that defendant had furnished to his said attorney at four different times prior to November, 1879, the names of witnesses mentioned, twenty-one in number, to be subpoenaed in his behalf, but none of them were ever summoned; that defendant had confided fully in his said attorney, and had believed that said attorney had done or would do all things necessary and proper to be done in and about the case for a legal and proper defence; that since the appointment of
The application was overruled, the trial proceeded without, any testimony offered on behalf of the defendant, and he-was found guilty of murder in the first degree.
An application for a continuance is addressed to the discretion of the trial court, whose action thereupon will not. be disturbed, on appeal, unless it clearly appears that the-discretion has been abused to the predjuice of the applicant..
This brings us to the inquiry whether sufficient time was given by the couit to the defendant to prepare for his trial on the 24th. A Sunday intervened. There were, then, but three working-days after the appointment of the new attorneys and before the morning of the day of trial. This seems terribly short, in view of what the defendant had at stake, aud in view, also, of the customary length of time given for such momentous preparations. It is argued for the State that, notwithstanding the attorney’s failure, the defendant' himself could easily have obtained subpoenas from the clerk and placed them in the hands of the officer before the case was first called for trial. But the affidavit declares that the defendant had entire confidence in his attorney, and honestly believed that everything necessary for a fair trial had already been done by him. It shows, moreover, that the defendant was confined in prison, and had no friends upon whom he could call for advice or assistance. It is hardly to be presumed that he, an ignorant colored person, was familiar with the practice of the courts. If there is any force in what is said above, it would be- unconscionable to apply to the motion for a continuance on the 24th objections which arose before the 19th, and for which the defendant was not morally responsible. The only inquiry should be, whether a reasonable time was allowed between the 19th and the 24th for procuring the defendant’s witnesses from a distant county. The affidavit states that the defendant’s newly appointed
Upon all the facts presented in the record, we incline to the opinion that the ends of justice would have been more fairly reached in the granting of the defendant’s last application for a continuance. The judgment is therefore reversed and the cause remanded.