Caldwell v. State

• Decision Date: 30 January 1905
• Citation: 37 So. 816,85 Miss. 383
• Court: Mississippi Supreme Court
• Parties: FRANK CALDWELL v. STATE OF MISSISSIPPI

37 So. 816

85 Miss. 383

FRANK CALDWELL v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 30, 1905

FROM the circuit court of Montgomery county, HON. J. T. DUNN Judge.

Appellant Caldwell, was indicted for the unlawful sale of intoxicants. The case was twice continued. At the October, 1904, term of the court the case was called for trial, when defendant made a motion for a third continuance, and in support of it made the following affidavit: "Comes defendant, Frank Caldwell, who says he cannot safely go to trial at this term of the court on account of the absence of Susan Caldwell, a material witness for defendant, who is not absent by his procurement, and who lives within the jurisdiction of the court, and he expects to have her present at the next term of court, and he expects to prove by her that at the time and place the state witnesses will testify that they bought whisky from defendant she was present, and that no such sale was made, and that defendant did not sell witnesses any whisky, and that defendant cannot prove this by any other witness, and that said Susan is now sick and unable to attend court." The district attorney admitted that this witness, if present, would testify as stated in the application, and the motion for a continuance was overruled. The only testimony for the state was that of one Drane, who testified that he bought a pint of whisky from defendant on the 7th of April, 1903, at his place of business in Montgomery county, Miss. and paid him fifty cents for it. Defendant testified in his own behalf that he did not sell Drane any whisky on that date or on any other day, and one witness testified that Drane had stated in his presence that he (Drane) had never bought any whisky from defendant. Defendant was convicted, and sentenced to jail and to pay a fine of $ 500, and appealed to the supreme court.

Reversed and remanded.

Hill &amp Knox, for appellant.

The continuance should certainly have been granted. The witness was material, and, in the light of the state's evidence very material, as it was testified that the sale was made at defendant's house, where his wife and absent witness was. Mrs. Caldwell was sick, and lived only about one mile from the courthouse. The action of the court in overruling the application violates the decisions of Watson v. State, 81 Miss. 700, and Scott v. State, 80 Miss. 197.

William Williams, attorney-general, for appellee.

Appellant's case was continued at the October term, 1903. The reason for said continuance is not shown by the record. His case was again continued at the April term, 1904, presumably by consent. At the October term, 1904, appellant filed an application for a continuance, supported by his affidavit, in which he said his wife, Susan, was sick and could not attend court. This affidavit was not supported by that of any one else nor by a certificate of a physician, nor does it show that appellant's wife had been subpoenaed as a witness in his behalf. The district attorney agreed to admit the affidavit in evidence, and the court overruled the application for a continuance.

The appellant alleged in his affidavit that he expected to prove...