Brumfield v. State

• Decision Date: 11 November 1912
• Citation: 59 So. 849,102 Miss. 610
• Court: Mississippi Supreme Court
• Parties: SAM BRUMFIELD v. STATE

59 So. 849

102 Miss. 610

SAM BRUMFIELD v. STATE

Supreme Court of Mississippi

November 11, 1912

October 1912

APPEAL from the circuit court of Pike county, HON. D. M. MILLER Judge.

Sam Brumfield was convicted of assault and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

C. V Ratcliff, Frank C. Lee and R. W. Cutrer, for appellant.

This case should be reversed and remanded for the reason that the trial court required the defendant to go to trial without his material eyewitnesses, viz.: Tom May and Robert Conerly. The court will observe that the formal application for a continuance was not made and does not appear in the transcript. It will appear from the record that the court assured the counsel for defendant that he would have the witnesses desired present before the trial closed, and it was with this assurance, that the defendant went to trial without making his formal motion. He was misled by the court and thus induced to omit to make his formal application. It is in the record that these witnesses are material and it is shown that these witnesses were in the reach and jurisdiction of the court, and that Tom May was actually served with the process of the court, and was attached, and just simply declined to come. The court presented two witnesses to defendant, who were not eyewitnesses, and who knew nothing of the facts in the case, but he did not present the defendant, nor his counsel, with Tom May and Robert Conerly, both of whom he promised to present to defendant before he completed his trial. This assurance was given the defendant before the trial was entered upon, and it was upon that assurance that the trial proceeded without the witnesses, and without the formal application. We submit that this was reversible error, and that the action of the court and his positive assurance, deprived the defendant of a material, substantial right, and required him to submit his case for the consideration of the jury without having had the opportunity to place his testimony before him. It will therefore, be observed that this question should be considered by the court as through the formal application was actually made, it having been waived by the trial court as above set out. We submit the following authority that the case should have been continued and the witnesses furnished defendant. The materiality of their testimony having been admitted by the court as shown by his assurance that he would present the witness before the trial was concluded. Woodward v. State, 42 So. 167, 14 Cent. Dig. Criminal Law, 1321-2; Montgomery v. State, 85 Miss. 330; Watson v. State, 81 Miss. 700; Caldwell v. State, 85 Miss. 383; Scott v. State, 80 Miss. 53; Knox v. State, 97 Miss. 523.

The court ought to reverse this case for the reason that a juror, Hugh Thompson, was related to the prosecuting witness, Tobe Thornhill, this juror having answered on his voir dire that he was not related to Thornhill. We cite Jeffrys v. State, 21 So. 526; Garner v. State, 76 Miss. 515.

Frank Johnston, assistant attorney-general, for the state.

There was no error whatever committed by the court in regard to the absent witnesses of defendant, Tom May and Robert Conerly. Counsel for the appellant are very urgent in the insistence that the trial court below was guilty of great error in trying this case in the absence of Tom May and Robert Conerly. The facts on this point are as follows: When the case was called for trial, Tom May and Robert Conerly witnesses for the defendant, were not present. When this fact was ascertained, the court stated to the defendant that he need not make a motion for a continuance, and that the court would have the witnesses in court for him during the trial, and so the trial proceeded. When the state closed its testimony, the defendant introduced a number of witnesses, among them two supposed eyewitnesses, Willie Lee and Willie Yates who gave their version of the affair in testimony in the case, being defendant's witnesses. Their testimony was not in conflict with that of the state's witnesses and did not change the character of the offense as shown by the state's testimony. Besides that, the defendant testified himself in the case, and thereupon the defendant's counsel introduced five or six witnesses to show the good character of the defendant whose testimony was not controverted by the state. At no time during the progress of the trial was any further application, or suggestion, or motion made to the court by the appellant's counsel in regard to the absence of Tom May and Robert Conerly. And as the trial was concluded, and nothing appeared in the record or the proceedings of the court except what I have just stated about the absence of these two witnesses which occurred right at the beginning of the trial. So far as this record shows, the defendant made no effort to change the course of the trial because of the fact that these two witnesses did not appear during the trial of the cause. It must be presumed, therefore, and presumed conclusively, that he did not care to press the point in regard to the absence of these witnesses. Therefore, nothing can be predicated in the way of error in the procedure of the cause in regard to what was said about these two witnesses when the cause was called for trial. When it appeared in the progress of the case that these two witnesses were not produced under the circumstances shown in this record, the defendant could have made an application to the court for a continuance of the case, or a postponement of the cause, and for a delay sufficient to secure the presence of these two witnesses if it was possible to have them present. The defendant should have made, if he had relied upon these absent witnesses, some showing to the court in regard to what these witnesses would testify and what he expected to prove by them, and I am justified in making the argument, or the observation,...