Brooks v. State
| Decision Date | 18 January 1915 |
| Docket Number | 17865 |
| Citation | 67 So. 53,108 Miss. 571 |
| Court | Mississippi Supreme Court |
| Parties | BROOKS v. STATE |
APPEAL from the circuit court of Leak county. HON. C. L. DOBBS Judge.
Rubert Brooks was convicted of murder and appeals.
The facts are fully stated in the opinion of the court.
Case reversed and remanded.
Crawley & Glass, for appellant.
Frank Johnston, Assistant Attorney-General, for the state.
Appellant was convicted of murder, and sentenced to confinement in the penitentiary for the term of his natural life. It appears from the record that the homicide was the culmination of the estrangement of appellant and his wife. The wife had left the home of the appellant and had gone to the home of deceased, who was the husband of her mother. When the case was called for trial, defendant filed a written application for a continuance on account of the absence of his wife. It appears that a subpoena had been issued by the clerk for the wife, and was returned by the sheriff as executed personally on the witness. Investigation developed that this subpoena had been returned by a deputy sheriff, who was the son of deceased. It was also developed that the return was false and that Mrs. Brooks had never been served with process. A second subpoena was issued to Jeff Davis county, which subpoena was returned "not found," and was accompanied by a letter from the sheriff of Jeff Davis county, giving the information that the witness could be found in Lawrence county. Defendant then asked for process for this witness directed to the sheriff of Lawrence county. The application for continuance avers that this process had not been issued. The witness was never subpoenaed, and defendant was deprived of her evidence. It seems to have been the idea of the court that the witness could be obtained before she was needed, and, acting upon this theory, the defendant's motion for a continuance was overruled, and he was put upon trial with the result stated.
The application for a continuance says that this witness would have testified that she was persuaded by deceased to leave her husband, the defendant; that he had attempted to seduce her, and had threatened to kill the defendant; that he (defendant) had visited her at the home of deceased the night before the homicide, and that then and there deceased had threatened to kill defendant if she left his home; that after defendant had left the home of deceased, deceased told her that he had it in for defendant and would kill him if he ever crossed his path again. The...
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