State v. Jennings , 81 Mo. 185 ( 1883 )

Norton, J.

The defendant was indicted in the circuit court of Henry county at its Decemberterm, 1882, and at the same term, on the 12th of January, 1888, defendant applied for a continuance because of the absence of two material witnesses, both of whom had been subpoenaed; but in consequence of sickness were unable to attend the trial. Upon the admission of the prosecuting attorney that the witnesses, if present, would testify as stated in the affidavit, and that such statement might be read as their evidence, the court overruled the application and the trial proceeded, which resulted in the conviction of defendant. The cause is before us on defendant’s appeal, and the action of the court in overruling the application for the continuance and in giving the following instruction are assigned for error :

“The court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and allows this presumption to continue until overcome by evidence proving his guilt. And on the other hand where property has been stolen, and recently thereafter, the same property is found in possession of another, such person is presumed to be the thief, and, if he fails to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him; but in this case, the jury are instructed, that the defendant relies, in part, for his defence upon the claim that he was not present when the mare was stolen, as charged in the indictment, but was some distance from the place where said mare was taken at the time of said taking. Now if the jury find and believe from the evidence, that at the time said mare was stolen, the defendant was not present at the place from which she was stolen, but was some distance from said place, then the jury must acquit him, as the presumption of guilt from such recent possession would be rebutted by such proof made to the satisfaction of the jury.”

The rule announced in that portion of the instruction which relates to the presumption arising from the recent possession of stolen property has received the repeated sanction of this court. State v. Kelley, 73 Mo. 608, and the cases therein cited; State v. Babb, 76 Mo. 501.

The remaining portion of the instruction, which counsel for defendant claims to be misleading, and subject to be construed as assuming that defendant was in the possession of the mare, the subject of the larceny, recently after she was stolen, when considered with reference to the other instructions given and the evidence, could not have prejudiced defendant nor misled the jury.

On the trial the State sought to establish the guilt of defendant by showing that he was seen in Warrensburg about 8 o’clock in the morning, of the day after the theft was committed with the stolen mare in his possession, and that he sold her there for $65, she being worth about $150. The evidence introduced by the State tended to establish the above facts. On the other hand, the evidence introduced by the defendant, tended to show that at the very same time the State’s witnesses said defendant was in Warrensburg, he was at another place, twenty odd miles distant from Warrensburg. In this conflicting state of the evidence, it was for the jury to determine the question, as to whether or not, defendant was seen in possession of the mare the morning after she was stolen, and this question, as well as all others, were fairly submitted to the jury in other instructions, in which they were told that they were the sole and exclusive judges of the credibility of. the witnesses and the weight to be given their evidence; and, if from all the evidence in the case, they entertained a reasonable, doubt of defendant’s guilt it was their duty to. acquit him. "We do not understand the instruction to assume as a fact, that defendant was in possession of the stolen property recently after it was stolen; but as a direction to the jury that although they might believe that defendant was seen in the possession of the animal soon after she was stolen, yet if they further believed that defendant was not present at the place from which she was stolen, but was some dis-: tance therefrom, that this would rebut the presumptipp arising from such possession, that he was the thief. The requirement that the alibi relied on should be made out to the satisfaction of the jury was fair to defendant; the burden of establishing it rested upon him and he cannot complain of the instruction in that respect, especially so in view of the instruction given that if on the whole case the jury had a reasonable doubt they would acquit, and the further instruction that before they could convict on circumstantial evidence, the circumstances tending to show guilt should be established beyond a reasonable doubt, and when the circumstances so established should point so strongly to the guilt of defendant as to exclude any other reasonable hypothesis.

It is also insisted that the court erred in overruling defendant’s application for a continuance. It appears that the application was based on the absence of two witnesses who had been subpoenaed, but were not in attendance, and that an attachment, which, so far as the record shows, was not asked, would have been ineffectual to secure their attendance had it been asked. Upon the admission of the prosecuting attorney, that said witness, if present, would testify to the facts stated in the affidavits, and that such statement should be read as their evidence, the continuance was refused, and the trial proceeded with. This action of the court is fully sustained by the cases of State v. Hickman, 75 Mo. 416; State v. Underwood, 75 Mo. 280; State v. Miller, 67 Mo. 601; State v. Hatfield, 72 Mo. 518; State v. Underwood, 76 Mo. 630.

It is claimed that the act of the legislature authorizing such action as was taken by the court in this case in regard to the continuance, is in violation of the constitutional right given to a defendant in a criminal prosecution to have compulsory process to procure the attendance of .witnesses in his behalf. In the case of State v. Hickman, supra, this precise question was before the court, and it was held that when a defendant had availed himself of the process pf the court to procure his witnesses, and it had failed, to secure their attendance, that the act authorizing or requiring the court to overrule an application for continuance, based upon the absence of such witnesses, provided the prosecuting attorney would agree that the statement of what they would swear to, if present, should be read as their evidence, violated no constitutional right of defendant. At one time in the history of the common law a defendant in a criminal ease could not avail himself of the process of the court to bring in his witnesses, and if he succeeded in getting them before the court without such process, while he might examine them he could not demand that they should be sworn. To remedy this wrong and change the rule, a clause, in effect the same as that contained in our bill of rights, is to be found in Magna Charta. The evident purpose of it was to give to persons criminally charged the means of getting evidence in their behalf before the court and jury, through the process of the court. Its object was to prevent a person charged, with being tried for a crime without the evidence he wished to offer in his defense. When the process to procure the attendance of witnesses has been resorted to by a defendant, and proves to be ineffectual, the act of the legislature, which provides that notwithstanding such failure, if he state in his application for a continuance what he expects to prove by the absent witness, whom the process of the court has failed to bring, and the prosecuting attorney admits that such statement may be received and read as the evidence of such witness (which, when read, we have held shall be entitled to the same weight as the evidence of any other witness) the continuance shall not be granted, may be said to be in aid, rather than in contravention of defendant’s constitutional right to process, inasmuch as he gets the full benefit of the evidence without having his witness subjected to a cross-examination by the State.

“ The power of cross-examination has been justly said to be be one of the principal, as it certainly is one of the most efficacious, tests which the law has (devised for the discovery of truth. * * It is not easy for a witness who is subjected to this test to impose on a court or jury, for however artful the fabrication of falsehood may be it cannot embrace all the circumstances to which a cross-examination may be extended.” Greenleaf’s Evidence, § 445.

The act in question gave to the defendant the benefit of the evidence of his witnesses, without the severe test of a cross-examination being applied to discover the truths of such statements. The above principle doubtless gave rise to the constitutional requirement, that the accused should have the right to meet the witnesses against him face to face, in order that the truth of their statements might be subjected to the test which a rigid coss-examination always affords. The argument which would strike down the act in question as being in contravention of the constitutio n, would also strike down that rule of law which makes the dying declarations of the victim of a murderer evidence against the person charged with the crime. And this court has held, all the judges concurring, that such testimony is admissible, and the rule authorizing its acceptance is not in violation of the constitution, which expressly declares, that the accused shall have the right to meet face to face the witnesses against him. State v. Vanzant, 80 Mo. 67.

Revised Statutes, section 1886, which is claimed to be in contravention of defendant’s constitutional right to process, does not deny to a person criminally charged the right to resort to the process of the court to bring in his witnesses ; byut provides, as construed by this court in the case of State Hickman, supra, that the trial shall proceed when the process, when resorted to, has been ineffectual to secure the presence of the witness, upon the adpiission of the prosecuting attorney that the statement contained in the affidavit fpr continuance as to what the absent witnesses would swear to should be received as their evidence. It was held in that case, that the above section “ can only be in» yoked by the state, after the, accused, by exercising reasopable diligence, shall have unsuccessfully employed the power of the court to secure the personal presence of such of his witnesses as may be within the reach of its process. He is entitled to a reasonable time to have a subpoena, which has been seasonably issued, served and returned; and if the witness be found and fail to attend, he is entitled to an attachment to compel his attendance. If the attachment prove unavailing, and the defendant thereupon applies for a continuance, the State may then prevent a further delay in the trial by consenting that the facts which the absent witness is expected to prove, and which are set out in said application, shall be taken and received by the court and jury as the testimony of such absent witness.”

Judges Hough, Henry and Ray concur in the views expressed herein in reference to the action of the court in overruling the application for continuance, and Judges Ray and Sherwood concur in the views expressed in reference to the action of the court in giving the instruction complained of. This results in an affirmance of the judgment, and it is hereby affirmed.