Boatwright v. State

• Decision Date: 04 October 1926
• Docket Number: 25295
• Citation: 143 Miss. 676,109 So. 710
• Court: Mississippi Supreme Court
• Parties: BOATWRIGHT v. STATE. [*]

109 So. 710

143 Miss. 676

BOATWRIGHT v. STATE. ^[*]

No. 25295

Supreme Court of Mississippi

October 4, 1926

Division A

1. CRIMINAL LAW.

No order having been made disposing of demurrer to indictment as charging in one count assault on two, and defendant not having objected to order permitting amendment by striking out one of the names, there is nothing for review in respect thereto.

2. CRIMINAL LAW.

There was no abuse of discretion in overruling motion for postponement or continuance for witness only five hours' train ride distant, case having been passed from day to day for five days.

3. CRIMINAL LAW.

On prosecution for shooting at officers, when they were attempting to arrest defendant for then having in his possession and in their presence kegs of whiskey, such articles are part of the res gestae.

4. CRIMINAL LAW.

General objection to bloodhound testimony, of "no proper predicate," is not sufficient for review on the ground that there should have been a showing of proper training and pedigree of the dogs.

HON. R M. BOURDEAUX, Judge.

APPEAL from circuit court of Lauderdale county, HON. R. M BOURDEAUX, Judge.

Son Boatwright was convicted of assault with intent to kill, and he appeals. Affirmed.

Affirmed.

Jacobson & Brooks, for appellant.

I. The first assignment of error complains of the action of the court in not granting to the appellant a postponement of the cause until a later day in the term, so that he could have the personal attendance of the witness Thelma Walker. It is the settled law of this state that continuances should be addressed to the sound discretion of the court. The courts have been admonished, however, that this discretion should be exercised with care and that they should be cautious in denying a request a postponement until a later day in the term.

Thelma Walker was the one person who knew that this man was at her house that night. The other witnesses could only prove by facts and circumstances. The court is advised here that we did not ask for a continuance for the term, but we only asked for a delay of the case for two or three days until we could satisfy ourselves as to whether or not we could secure the presence of Thelma Walker.

Appellant did not just state that this woman was in Birmingham and lived there. He stated the woman's address to be 1105 Seventh avenue, Birmingham, Alabama, and it was shown further that on the evening of August 6, 1925, that the appellant's mother sent a telegram to the said Thelma Walker for her to come to Meridian that night for court tomorrow, necessary for her to be there and requested answer. The appellant was pushed into trial with that telegram outstanding and with the application for a continuance overruled. We submit that under the facts and circumstances, as shown by the record, there was an abuse of discretion to such an extent that justifies us in urging a reversal of this case.

II. The court also erred in permitting the officers of the prosecution to bring in and exhibit during the trial of this case three kegs of intoxicating liquors. There was no prohibition question involved in this cause. It is true at the time the officers claimed that when the appellant shot at them that he was in the act of getting some liquor which had been thrown off the train. This does not justify the exhibition of liquor on the trial of assault and battery with intent to kill and murder.

III. Another error was in permitting the testimony of witness Jenkins as to the bloodhounds. We contend that in order to make Jenkins' testimony as to the conduct of the bloodhounds competent, there should not only have been testimony as to the pedigree of these dogs, and as to their being accustomed to running, tracking, and trailing human beings, but that there should have been testimony that they had been trained properly and correctly.

For these several reasons, we submit that the case should be reversed and remanded.

J. L. Byrd, Assistant Attorney-General, for the state.

I. Appellant first complains of the error of the court in not sustaining the demurrer to the indictment in this cause. The indictment charged the appellant with knowingly shooting at policemen Danner and Parnell, and was demurred to on the ground that it contained but one ground and charged two crimes. We do not find any order of the court on this demurrer, but we do find at page twenty-two of the record where the indictment was amended so as to read "with intent to kill and murder one E. Danner" instead of A. C. Parnell and E. Danner. We take it that this was a confession of the demurrer and an amendment by the state to meet the demurrer. We submit that this is regular and in due form, and counsel for appellant cites no authority and takes no point on the fact that this was irregular or not permissible.

II. Appellant made a motion for a continuance on the ground of the absence of a material witness, Thelma Walker. The court overruled the motion and we think rightly so, for the reason that the motion shows on its face that the witness was a nonresident of the state, and there was no showing whatever that she would ever be back in this state or subject to the jurisdiction of the court; and the record further shows that the appellant had telegraphed her at least twice and that no response had been made by her and that it was safe to infer that she never could have been gotten back to Meridian. This case was continued from day to day during the term to permit the appellant to secure the presence of the witness. Birmingham was only about one hundred and fifty miles from Meridian, about a five-hour ride and that notwithstanding the fact that the defendant, appellant here, had an entire week to get the witness back from Birmingham, she did not come.

III. Complaint is made about the prosecution bringing in and exhibiting during the trial of the case the three kegs of intoxicating liquor. We think that there was no error in this, for the reason that the testimony showed that appellant was carrying the liquor at the time the difficulty arose and that it was part and parcel of the original crime and if not that, it was so connected with it as to become part of it. Besides, the attention of the jury was first called to the liquor by the appellant.

IV. Objection is made to the testimony of J. S. Jenkins, who testified that on the night of the shooting he carried two dogs, bloodhounds, to the place where the appellant was said to have stood during the shooting; that these hounds were pure bred and trained to track human beings; that he had had five years of experience in handling the dogs; and that they were well trained to track human beings, then describing the manner in which they were handled and testifying that the manner in which they were handled was the usual and customary way. He further testified that he got to the place of the shooting and put the dogs on the trail about an hour after the shooting occurred.

We are not unmindful of the ruling of this court in the case of Harris v. State, 108 So. ; but we submit that the record in this case shows that the state has met all the requirements for the admission of testimony with reference to bloodhounds which the court laid down in the Harris case.

We submit that the only questions in the case were questions of fact and that the jury decided these questions adversely to the appellant.

OPINION

MCGOWEN, J.

In the circuit court of Lauderdale county appellant was convicted of assault with intent to kill and murder, and sentenced to the penitentiary for ten years.

The indictment charged that the assault with intent to kill and murder was upon one "A. C. Parnell and Ernest Danner, by then and there discharging a deadly weapon, to-wit, a pistol, at and toward the said A. C. Parnell and Ernest Danner, with the willful and felonious intention and in a willful and felonious attempt them, the said A. C. Parnell and Ernest Danner, to unlawfully, willfully, feloniously, and of his malice aforethought to kill and murder."

To this indictment defendant interposed a demurrer, the second ground of which is in this language:

"Because said indictment, having only one count in the same, charges two offenses, in that it charges an unlawful, willful, and felonious assault upon both A. C. Parnell and Ernest Danner."

The record contains no objection or exception to this amendment. Neither does the record show that the court ever took any action upon the demurrer, which, likewise, was filed on August 7, 1925, and no effort on the part of the defendant to have the demurrer disposed of; nor does it appear that the court had called to its attention the demurrer, save and except what may be inferred from the amendment permitted by the court's order.

When the case was called for trial, the state having announced ready, defendant made a motion for a continuance, and undertook to have the case passed also because he said that Thelma Walker, a material witness living in Birmingham, Ala. at 1105 Seventh Avenue, was not present although he had made due and diligent effort to secure her presence; that her testimony was material; and that she would swear, if present, that Boatwright, the defendant, was actually present in her home, two miles from the scene of the alleged shooting, and that he was there from about the time of the shooting until five o'clock the next morning, and because of the distance of her home from the scene of the shooting it would have been impossible for him to...