State v. Myers , 352 Mo. 735 ( 1944 )

ON MOTION FOR REHEARING. [4] — Respondent filed a motion for rehearing wherein it is asserted that we overlooked the principal point briefed by respondent, that is, that the "affidavits for continuance cannot merely state conclusions, but must state facts in support of a continuance." We did not overlook the point, but confess that our opinion could be so understood. The cases cited in support of respondent's contention are cases dealing mostly with the change of venue statute, sec. 4019, Rev. St. Mo. (1939), Mo. R.S.A. See State v. Hancock, 320 Mo. 254, 7 S.W.2d 275 and State v. London, 84 S.W.2d 915. In those cases this court ruled that under the statute the affidavits in support of the application for change of venue must state the facts upon which the affiant based his conclusion that the defendant could not have a fair trial in the county where prosecution was pending. Respondent then argues that the affidavit in support of an application for continuance, under sec. 1089, Rev. St. Mo. (1939), Mo. R.S.A., which authorizes a continuance if the defendant's attorney is a member of the legislature and is in attendance at its session, must contain facts and not mere conclusions. The particular point urged by respondent is that the statement in the affidavit, that the presence of the attorney is necessary to a fair and proper trial, is a mere conclusion and the affidavit must contain facts which support that conclusion. The statute under consideration has a dual purpose, that of protecting the business of an attorney or a person engaged in some other business while serving in the legislature, thereby encouraging good men to sacrifice their time in the interest of good government; and that of protecting a party to a suit whose attorney may be serving in the legislature. In Bell v. State,75 P.2d 1157, l.c. 1158 (1), the Oklahoma Criminal Court of Appeals said:

"The purpose of this statute is to encourage members of the bar to become candidates for the lawmaking body of the state, . . . and for the further purpose of protecting members in their business while serving the state in this capacity by permitting trials to be continued during the session of the Legislature. . . ."

The Springfield Court of Appeals made the following comment in State v. Clark, 214 Mo. App. 536, 262 S.W. 413, l.c. 414:

"We think this statute is a wholesome one. It is well known that any attorney must to some extent sacrifice his practice to serve as a member of the Legislature. The reason for the mandatory character of this statute is apparent, and our comment could not make it more wholesome." Our new code, which is to be in force in 1945, contains a similar section with a slight modification. See Laws 1943, page 383, sec. 96.

We do not think the cases cited, construing the change of venue statute, are controlling, because the purpose of the statute under consideration is materially different from the change of venue statute. We think respondent has overlooked the latter portion of sec. 1089, supra, which reads as follows:

"Such affidavit shall be sufficient, if made at any time during the session of the general assembly, showing that at the time of making the same such party, attorney, solicitor or counsel is inactual attendance upon such session of the general assembly." (Italics ours.)

[76] The legislature, by that language, has prescribed what facts are to be stated in the affidavit. The affidavit in this case stated that the attorney for the defendant was a member of the legislature and in actual attendance upon its sessions. Those were facts and not conclusions. The affidavit further alleged that the presence of the attorney at the trial was necessary in order that justice might be done. The latter statement was a conclusion, but the legislature has prescribed what shall constitute a sufficient affidavit and the one filed in this case met those requirements and was therefore sufficient.

The motion for rehearing is overruled.