68 Mo. 444 | Mo. | 1878
On the 18th day of September, 1877, the defendant was indicted in the Jasper circuit court, charged with having stolen two horses, the property of Peter Sealey, on the 5th day of August, 1877. On the 27th day of September, 1877, the-cause was called for trial and the defendant filed the following affidavit for a continuance: And the said Allen Wood, after being duly sworn, upon his oath says he cannot safely proceed to trial at the present term of this court for want of material evidence.
Allen Wood.
Subscribed and sworn to before me this 27th day of September, 1877.
M. Taylor, Clerk.
By B. E. Hackney, D. O.
His application for a continuance was refused and the defendant was compelled to proceed to trial, which resulted in his conviction and sentence to the penitentiary for a term of six years. The only question presented for consideration is the sufficiency of the affidavit for a continu
Is a defendant required to use any diligence to prepare for trial before indicted? Until indicted there is no cause pending against him in the circuit court, and he could not have subpoenas for witnesses in a cause not pending. If one is charged with an offense before a justice of the peace, the proceedings before him are to ascertain whether an offense has been committed, and there is probable cause to believe the prisoner guilty thereof, and all examinations and recognizances taken by him he is required to certify and deliver to the clerk of the court in which the offense is cognizable on or before the first day of the next term. If the accused be committed to jail by the justice and the justice file the examinations, as he may, on the first day of the term of the circuit court, and on that day as may be, the grand jury return an indictment against the prisoner, the. cause is triable at that term, and yet there could not have been a cause pending in the circuit court before the indictment found and the papers were returned. Nothing on the court docket or in the clerk’s office would have warranted the clerk in issuing subpoenas for witnesses for the accused, and it makes no difference if the justice file the papers before the commencement of the term. They are only deposited with the clerk to be used before the grand jury, and depositing them with the clerk has no more significance than if the law had required them to be deposited elsewhere for that purpose. There is nothing in the act to countenance the idea that a cause is pending in the circuit court against one accused of crime until an indictment shall have been preferred against him. The law presumes every one innocent until the contrary appears, and one accused of crime, until the grand jury shall have passed upon his case, has a right to rest upon the same presumption and believe that he will not be indicted. The
After he was indicted did he use proper diligence to get ready for trial? From the affidavit it appears that defendant had met Flannagan in company with Bodenhammer, and learned from Flannagan that he was going to the Dade county mines to remain during the winter. It is clear from the correspondence between accused and Flannagan, although not expressly stated, that the accused had information that led him to doubt as to the whereabouts of Flannagan. He wrote to him at Corry,in Dade county, and at St. Joseph, Buchanan county, and the result of that correspondence shows that his doubts were justified, for he received information that he was at St. Joe. If he had merely wanted delay he could have acted on the information first received and sent a subpoena for Flannagan to Dade county, but the facts disclosed in the affidavit rather show that defendant was in good faith endeavoring to get ready for trial. He did not know where Bodenhammer was, but wrote to Marshfield, Lebanon and other places where he thought he might be found, and learned that he was at Lebanon. A subpoena to that county would, perhaps, have been served on Bodenhammer, but if defendant was not informed where Bodenhammer was to be found and was honestly endeavoring to ascertain the fact, it is not to be regarded as a circumstance fatal to his application, that he was found in one of the counties to which he directed a letter to him. But if the affidavit be held insufficient as to Bodenhammer, it is in our judgment sufficient as to witness Flannagan, and although inclined to sustain the circuit court in refusing applications for continuance, this case presents an abuse of discretion in that matter which demands our interposition. The circuit court probably erred in consequence of believing contrary to our views, that defendant should have made preparation for trial after he was committed to jail and before he
The judgment is reversed,
Reversed.