Brown v. State, 46491

• Citation: 252 So.2d 885
• Decision Date: 04 October 1971
• Docket Number: No. 46491,46491
• Parties: Linda Sue BROWN v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 885

252 So.2d 885

Linda Sue BROWN v. STATE of Mississippi.

No. 46491.

Supreme Court of Mississippi.

Oct. 4, 1971.

Robert B. Prather, West Point, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, Special Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice.

Appellant, Linda Sue Brown, was indicted, tried and convicted of the crime of armed robbery in the Circuit Court of Clay County. She was sentenced to serve a term of fifteen years in the State Penitentiary. From this conviction and sentence she appeals. We affirm.

About 8:45 on the morning of May 19, 1970, appellant appeared at the front door of the home of Mrs. L. W. Walker in the City of West Point. She represented to Mrs. Walker that she was ill and asked to be let into the house to use the telephone in order to call her husband. Mrs. Walker let her in the house, and appellant pretended to use the telephone. When appellant and Mrs. Walker started back to the front door, a man was standing inside the door. Appellant and the man, identified as Bobby Joe Fabian, Exchanged some words, and Fabian then pointed a pistol at Mrs. Walker and ordered her into the bedroom. Miss Oma Carroll, a guest, was also ordered into the bedroom. Fabian made the two ladies lie face down on the bed. He then told appellant to get her pistol out of her purse. At that time another man identified as Kenneth Roach was let into the house by the appellant. After Roach came in, Fabian demanded that Mrs. Walker tell him where the safe was in which her husband kept a large sum of money. Mrs. Walker said that there was no safe in the house. After ransacking the house and finding no safe, they tied up the two ladies and left, carrying with them about $175 in money, a pistol, credit cards and a station wagon.

Appellant testified in her own behalf and admitted practically all of the essential facts set out above. Her defense was that she took part in the robbery because she was afraid that if she did not, Fabian would kill her. She told the jury she met Fabian in the early part of May and at that time she thought him to be 'a smartaleck young man.' Fabian told her that he and two other men were going out of town for about a week and would give her two or three thousand dollars to go with them and do some of the driving. She described their trip through Arkansas, Tennessee, Indiana, Illinois, South Dakota, and Wyoming, and then back to Little Rock, Arkansas. Shortly after they started on the trip she found out that Fabian had about $40,000 in counterfeit money which he was passing. She then became afraid of Fabian and wanted to get away from him but she could not because he told her he would kill her. She testified that he had threatened to kill her on many occasions and on one occasion severely beat her. After returning to Little Rock, Fabian was informed that Mr. Walker kept a large sum of money in his home. They then went to Memphis, where Fabian discussed with a man named Morrow the West Point job. Morrow assured Fabian the money was there and told Fabian to call a man named Travis when he got to West Point. They proceeded to a motel in a town near West Point. Travis came to the motel, and after assuring Fabian that Mr. Walker did keep a large sum of money in a safe at home, he and Fabian left to go to 'case' the Walker home. She said they were gone for about an hour and left her in the motel. She told the jury the only reason that she took part in the robbery was that she was afraied if she did not do so, Fabian would kill her. On cross examination she admitted that after she found out that the robbery was planned, she made no attempt to get away from Fabian. Her excuse was she was afraid to try to escape.

She also testified that after the robbery she went with Fabian to Dallas, Texas, where she was arrested while trying to use Mrs. Walker's credit card to rent a car. After her arrest she freely gave statements to the officers in which she admitted taking part in the robbery. She told them she did so because she was afraid if she did not, Fabian would kill her. Two of the officers testified and corroborated her testimony to the extent that she told them she participated in the crime because she was afraid of Fabian and that they, the officers, believed what she told them.

Appellant's assignment of errors is as follows:

1. The court below erred in refusing to grant the defendant's request for a continuance.

2. The conviction of the Defendant in the court below is contrary to the overwhelming weight of the evidence.

3. The order entered by the Honorable Court below imposing sentence upon the Defendant is erroneous for the reason that it is so indefinite and uncertain as to be void on its face.

The principal question in this case is whether the trial court abused its discretion in overruling appellant's motion for a continuance. The record reflects that appellant was indicated at the July term 1970 by the Grand Jury, and that appellant was not in the State of Mississippi at that time. On September 24, 1970, the district attorney filed a petition for a writ of habeas corpus ad prosequendum in which it was alleged that appellant was a federal prisoner confined in Dallas County Jail in the State of Texas, and that this case was pending for trial in the Circuit Court of Clay County. It requested the writ of habeas corpus ad prosequendum issue directed to the United States Marshal for the Northern District of Texas commanding him to produce the body of appellant for arraignment and trial on the pending charge. An order was entered directing the writ to issue, and it was duly issued. On October 5, 1970, the first day of the October 1970 term of the Circuit Court, appellant was brought into Court. After she informed the court she was indigent, the court appointed counsel to represent her. On the same day she was arraigned and pled not guilty. Her trial was set for October 7, and on that day her counsel filed a motion requesting that the cause be continued until the next term of court. The motion alleged that counsel for appellant had not had sufficient time to prepare a defense. It further alleged that counsel had another case set for trial and had not had time to complete his investigation. Insofar as the record shows, no testimony was offered in support of the motion. The record does show that the motion was heard on October 7, and in passing on the motion the court reset the case for trial on October 9, 1970, and overruled the motion to continue the cause until the nest term of court.

On October 9 counsel for appellant filed another motion for a continuance wherein he renewed his former motion and alleged that in the limited time which had been available to him, it appeared the defendant would have a legal defense available to her, but such defense would require more investigation, and it was a good possibility that two out-of-state witnesses must be questioned about the facts of her defense. Insofar as the record reflects, no proof was offered in support of this motion. In fact, it does not appear it was ever acted upon by the court, since there is no order in the record overruling the motion.

Appellant also filed a motion for a new trial and one of the grounds set up therein was that the court was in error in overruling her motion for a continuance until the next term of court. Appellant did not offer any proof in support of this motion, and it was overruled by the court.

It is a well-settled rule in this state that a motion is at issue without further pleading and that the allegations thereof do not amount to any proof of the facts stated therein. It is the duty of the movant to support his motion by proof and in the absence of proof in support of the motion, the presumption in favor of the correctness of the action of the trial court will prevail. Harvey v. State, 218 So.2d 9 (Miss.1969).

However, in view of the fact that the record does reflect that appellant was tried four days after appointment of counsel, we have carefully considered this assignment of error. It will be noted that appellant did not request the granting of additional time during the term to prepare her defense, but asked that the case be continued until the next term of court.

Appellant cites and relies upon the recent case of Barnes v. State, 249 So.2d 383 (Miss.1971), wherein we reversed and...