258 Mo. 334 | Mo. | 1914
The evidence tends to show that the diamonds, consisting of one large diamond ring and a pair of
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 co-defendant, and that at the time the present trial was begun, it was not known and could not be foreseen that the witness then incompetent would become competent by reason of a conviction occurring after the present trial had started; and that the witness’s name was not indorsed on the back of the information and that defendant had no notice of any kind from the State that they intended to use this witness.; and further stated that if the court would postpone, for a reasonable time, the further hearing of the testimony in the case, defendant would be able to produce testimony
Defendant testified in her own behalf that she lived in Kansas City, Missouri, and had known Mrs. Calvin about three years; that Mrs. Calvin had formerly lived in Oklahoma and just prior to this occasion invited defendant to go on a visit with her to Oklahoma. That they arrived in Joplin on September 6,1912; that they spent that day in Joplin and in taking a street car trip to Galena, Kansas. On Saturday morning, the day of the alleged theft, defendant and Mrs. Calvin went to Carthage, Missouri, to visit some of Mrs. Calvin’s friends there. While in Carthage they visited a jewelry store. Returning from Carthage they stopped off at Webb City and first went into Mr. Kelley’s jewelry store where Mrs. Calvin looked at some diamonds but did not make a purchase. Prom there they went to Mr. Zaumseil’s jewelry store. Witness did not remember whether she or Mrs. Calvin asked to look at diamonds at this place but she remembered that the highest-priced diamond ring shown them by Mr. Zaumseil was one priced at eighty-five dollars; that Mrs. Calvin told the proprietor that he did not have what she wanted and that they would look elsewhere. Defendant denied taking the diamonds and disclaimed any knowledge as to who did take them; that she had no intention of purchasing any diamonds herself; that she was thirty-eight years old and had never been convicted of any crime. She further testified that during Mrs. Calvin’s trial which was “yesterday” Mrs. Calvin told her that if she did not take the stand and swear .in Mrs. Calvin’s favor that she, Mrs. Calvin,
It appears that defendant and Mrs. Calvin were jointly charged with the theft of the diamonds; that a severance was granted and Mrs. Calvin was tried first; that just after Mrs. Calvin’s case was submitted to the jury and; before the jury had returned a verdict, defendant’s trial was begun and after the hearing of a portion of the evidence in defendant’s case the jury in the Calvin case returned a verdict of guilty. It is, therefore, apparent that at the beginning of defendant’s trial, Mrs. Calvin (being a co-defendant) was not a competent witness on the part of the State (State v. Chyo Chiagk, 92 Mo. 395); but that, later, by reason of her conviction, her incompetency was removed and she was, at the time of testifying, a competent witness. [State v. Minor, 117 Mo. 302; State v. Shelton, 223 Mo. 118.]
"While it is true that from the above facts it could not be said that defendant could know with certainty that Mrs. Calvin would become a competent witness, or that, if she did, she would testify for the State, yet defendant’s own testimony shows that during the
Proper diligence under such conditions should not permit defendant to remain silent until after the trial was begun and tbe jury sworn, when to grant a postponement would work an unnecessary hardship in keeping tbe jury in charge during tbe postponement; but defendant should have applied to tbe court before tbe trial was begun for such sufficient delay or continuance as would enable defendant to become prepared for tbe contingency of Mrs. Calvin’s becoming a witness.
But even assuming, arguendo, tbat defendant was, in good faith, surprised, within tbe legal significance of tbe term, yet we are unable to say tbat tbe trial court committed error in refusing tbe request. This for tbe following reasons: Part of tbe evidence for tbe procurement of which tbe defendant requested time was with reference to showing tbat tbe witness bad, up to tbat time, maintained-both ber own and tbe defendant’s innocence of tbe crime charged. We cannot see wherein tbe witness’s statements concerning ber own innocence were material for any purpose. It is true tbat proof of former statements of tbe witness to tbe effect that tbe defendant did not steal tbe diamonds would, upon tbe laying of a proper foundation, have been admissible for tbe purposes of impeachment. But defendant, in requesting tbe postponement, does not give tbe name of tbe witness by whom she would be able to prove these statements. Tbe rule concerning tbe showing to be made in applying for a continuance or postponement during tbe progress of the trial should not be
While it is true that, under proper conditions, taking into consideration the actual surprise of the defendant and the importance of the testimony for the procurement of which defendant requests a reasonable
The judgment is affirmed.
The foregoing opinion of "Williams, C., is adopted as the opinion of the court.