The defendant appeals from a judgment upon conviction of a sale of hootch, moonshine, corn whiskey, rendered in the Circuit Court of Chariton County, March 12, 1928. It is alleged that the sale took place January 23, 1928. One Andrew Brown testified for the State that, on the night of that day, he bought two bottles of whiskey from the defendant and paid one dollar for them. The sheriff armed with a search warrant appeared at the place at the time Brown made the purchase and arrested him when he came out of the defendant's house with his bottles.
It is unnecessary to state the evidence at any length because the only error assigned by the defendant as ground for a reversal is the action of the trial court in overruling his application for a continuance. On the day of the trial March 12, 1928, he filed his application as follows:
"Lee Jasper, defendant in the above entitled cause, being first duly sworn, upon his oath says that Rosa Jasper and Helen Greenwood are material witnesses for him in the above entitled cause and that he cannot safely go to trial without procuring their testimony; that a subpoena was duly issued out of the office of the clerk of this court on the 8th day of March, 1928, directed to both of the above named parties, and that the same was delivered to the sheriff of this county, who, on the 8th day of March, 1928, duly subpoenaed the above named Helen Greenwood to be and appear at this term of court and on the 12th day of March, 1928; that the return of the sheriff shows that Rosa Jasper could not be found in this county.
"Defendant further states that the said Helen Greenwood is confined to her bed by illness and was and is unable to appear for the trial of this case on this day, or during this term; that Rosa Jasper is in the city of Kansas City in the State of Kansas, where she is nursing an infant son, who has been afflicted with heart trouble for several months and where she was ordered by the attending physician to take said child for medical attention, which was immediately necessary to the life and well-being of said child; that defendant *Page 671 believes that said Helen Greenwood will testify that on the 23rd day of January, 1928, the date on which the defendant is charged to have sold corn whiskey, hootch or moonshine to Andrew Brown, that he, the defendant, did not sell such whiskey, but that on the contrary the said Andrew Brown did, in truth and fact, deliver to and sell to this defendant certain hootch, moonshine or corn whiskey, and that said witness, Helen Greenwood, was in the room at the time of such sale and saw and heard the transaction between this defendant and the said Andrew Brown; affiant verily believes that the said Rosa Jasper would also testify if she was present that she lived in the house and she is the wife of the defendant, Lee Jasper, and that on the 23rd day of January, 1928, the said Lee Jasper did not sell to Andrew Brown, or to anyone else, any corn whiskey, hootch or moonshine, but that upon the contrary thereof, the said Andrew Brown did sell to this defendant certain hootch, moonshine or corn whiskey.
"Defendant further states, he verily believes the above facts to be true and he is unable to prove such facts by any other witness or witnesses, whose testimony can be as readily procured, and that the above named Helen Greenwood and Rosa Jasper are not absent by the connivance, procurement or consent of the defendant; that he verily believes that the said Helen Greenwood will be able to attend the trial of this case at the next term thereof, and that the said Rosa Jasper will be within the jurisdiction of this court at such time, that both of said witnesses ordinarily and usually reside in the city of Brunswick, Chariton County, Missouri, and that this application is not made for vexation or delay merely, but to obtain substantial justice on the trial of the cause.
"LEE JASPER.
"Subscribed and sworn to before me this March 12, 1928.
"(Seal). "J.L. KENDRICK, "Circuit Clerk."
The prosecuting attorney, Mr. Collet, filed a counter affidavit in which he alleged that Rosa Jasper, the wife of the defendant, left the city of Brunswick in Chariton County by permission of her husband; that he could have procured her attendance by having a subpoena issued; that it was not necessary for her to go to the State of Kansas, as alleged in the application; and that the Sheriff of Chariton County talked with the defendant on March 9th and he told the sheriff that his wife had gone to Kansas and would be back that night. The affidavit also denies that Helen Greenwood was present at the time of the alleged sale of the whiskey.
As to the absence of defendant's wife, Rosa Jasper, it may be said that the statements of the prosecuting attorney were mere conclusions, or hearsay. He does not state any facts as of his own knowledge. *Page 672
The same may be said of the statement in the application by the defendant that his wife was ordered by her attending physician to take his child for medical attention to Kansas City, Kansas. No facts are stated that show that it was any more necessary to take the child to Kansas than to procure proper attendance of a physician upon such child in Missouri. Nor does the application of the defendant say that his wife was ordered in his presence to leave this State by the physician, or that he knew of his own knowledge of such order. It would have been easy to have procured the certificate of the physician to that effect, if there had been any such order. Also, no effort was made to take the deposition of Mrs. Jasper, though defendant's application shows he knew of her expected absence in time to take her deposition.
As to Helen Greenwood, after saying that she had been duly subpoenaed on March eighth, the defendant makes this statement:
"Defendant further states that the said Helen Greenwood is confined to her bed by illness and was and is unable to appear for the trial of this case on this day or during this term."
If a party causes his witness to be subpoenaed and on the day of trial the witness fails to appear and the party is unable to account for the absence of such witness, the matter comes to him as a surprise. That would entitle him to a continuance if his witness is important. But that is not this case. The defendant in this case attempts to account for the absence of Helen Greenwood. He swears she is confined to her bed by illness and will be unable to appear, not only on the day of the trial butduring the term. His conclusion implies an intimate knowledge of her condition all the time. Upon what does he base his conclusion? Merely the affidavit of the sheriff that when he served the subpoena Helen Greenwood was "actually confined in bed." "Confined" is conclusion. "Actually" is an adverbial ornamentation of that conclusion.
That affidavit must have been constructed by the defendant. Note that the sheriff did not go to the extent the defendant did and say that she was confined to her bed by illness. A sheriff is a man of action and not of rhetoric. All the sheriff's statement amounts to is that she was in bed when he served the subpoena. If he had thought she was sick he would have said so. Instead of using the expression "actually confined" he would have said she was "sick in bed," as any well constructed sheriff would have said. Now, since the defendant assumed to know all about Helen Greenwood's condition as well as her whereabouts, it would have been easy for him to have stated the facts. She was only a few miles distant. There is nothing in the application to indicate that the telephone was not in operation. It would have been easy for the defendant to have called Helen Greenwood or her physician, or her home, or to have employed *Page 673 some simple and easy method to ascertain what her condition was on the day of trial, four days after her being in bed had led to his conclusion that she was confined there by illness. The principle that a state of facts once shown to exist is presumed to continue to exist does not apply to illness. It does apply to death.
The burden was not on the State to prove that Helen Greenwood could have been produced at the trial; or that the defendant had failed to exercise diligence. It was for the defendant to show by his application that he had exercised diligence to procure her attendance and he fails to show it merely by concluding that she is ill on the day of trial because the sheriff found her in bed when he served the subpoena four days before.
The trial judge had all these facts before him. If this application should be approved as sufficient to cause a continuance, all that a defendant hereafter needed to do is to have his witness go to bed when the sheriff appears with a subpoena, no matter how long before the trial, and on the trial day the defendant may file an application based on the adverbially ornamented conclusion that a witness was confined in bed "by illness." Certainly the judge who was cognizant of the facts in the case and knew the parties did not abuse his discretion in overruling the application for continuance.
The judgment is affirmed. Atwood, Gantt and Frank, JJ., concur; Blair, J., dissents, in a separate opinion, in whichRagland, C.J., concurs; Walker, J., absent.