Cade v. State
| Decision Date | 22 November 1909 |
| Docket Number | 14,089 |
| Citation | 96 Miss. 434,50 So. 554 |
| Court | Mississippi Supreme Court |
| Parties | CHARLES CADE v. STATE OF MISSISSIPPI |
From the circuit court of Claiborne county, HON. JOHN N. BUSH Judge.
Cade appellant, was indicted, tried, and convicted of unlawful cohabitation with one Ella Killian, and appealed to the supreme court. The facts upon which the decision turned are stated in the opinion of the court.
Judgment reversed and cause remanded.
R. B Anderson, for appellant.
The application for a continuance should have been granted. It was in due form and supported by the proper affidavit. It was shown that the witness was not in Claiborne county when court convened. It was also shown that she would be absent only a few days, had lived in the county and her home and family were there; and she had gone to Memphis, Tenn., for medical treatment. The application fully sets out that the witness Ella Killian, would testify that the defendant had never had sexual intercourse with her; had never cohabited with her, or habitually visited her house; and that said Ella Killian was the only person by whom he could establish his defense.
The denial of the continuance was unjust and arbitrary in the extreme. Of course, Ella Killian was jointly indicted for the offense, but an indictment raises no presumption of guilt whatever. The defendant had shown diligence in procuring process for the witness; the indictment was only filed on June 28th, and the defendant was arraigned on the 29th, and the application was duly presented on the day the case was called. But one day had elapsed between the arraignment and the trial. The application even asked that the case be reset for another day of the term that defendant might have an opportunity to secure the presence of Ella Killian. The action of the court below deprived defendant of his right to obtain his witness, and of his entire defense. The state did not even offer to admit that the absent witness would testify, if present, to what was stated in the application.
Ella Killian, above all other persons, from the very nature of the crime which was charged, and especially in this case where the state's case rests on the alleged confession of the accused to Tom Rowan, was, of necessity a most important witness. She knew more about the charge, or rather, the facts, than any other person. The defendant had no other witness as the record shows, That she was a co-defendant did not in any wise alter the right of defendant to have a reasonable chance to obtain her presence Woodward v. State, 89 Miss. 348, 42 So. 167; Magee v. State (Miss.), 45 So. 360; Hattox v. State, 80 Miss. 186, 31 So. 579; Havens v. State, 75 Miss. 488, 23 So. 181.
George Butler, assistant attorney-general, for appellant
Appellant and Ella Killian were jointly indicted for unlawful cohabitation. When appellant's case was called he moved for a continuance because of the absence of the said Ella Killian.
The witness was a co-defendant, conveniently ill at the convening of the court, and finding no physician or hospital nearer went to Tennessee for...
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