Cason v. State

• Decision Date: 01 February 1930
• Citation: 23 S.W.2d 665,160 Tenn. 267
• Parties: CASON v. STATE.
• Court: Tennessee Supreme Court

23 S.W.2d 665

160 Tenn. 267

CASON v. STATE.

Supreme Court of Tennessee.

February 1, 1930

Error to Criminal Court, Putnam County; J. R. Mitchell, Judge.

Julius Cason was convicted for public drunkenness, and he brings error. Reversed and remanded for new trial.

Worth Bryant, of Cookeville, for plaintiff in error.

The Attorney General, for the State.

McKINNEY J.

Upon a presentment for public drunkenness, the plaintiff in error was found guilty by the jury, and the court imposed a fine of $25 and a workhouse sentence of 11 months and 29 days, with a suspension of 5 months and 29 days of this sentence pending his good behavior. The court was without power to suspend a portion of the workhouse term. Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 38 L. R. A. (N. S.) 680.

Plaintiff in error was presented at the September, 1928, term, and was tried at the January term following. The case was heard on January 28th. Motion for a new trial was filed the next day and overruled on February 1st. When the case was called plaintiff in error filed a written motion for a continuance on account of the absence of two material witnesses, who were subp naed, but who were absent on account of sickness. The motion was overruled, and plaintiff in error assigns this action of the court for error.

The sheriff and one of his deputies had a warrant for the arrest of plaintiff in error upon some misdemeanor charge, and about 10 o'clock one night started out into the country to the home of the plaintiff in error. When near his home they met plaintiff in error and Frank Cumby, on a side road, and arrested the former for being drunk, and carried him to Cookeville and lodged him in jail. Cumby was not drunk, and being present, was a material witness. The other absent witness would have testified that plaintiff in error was at her store about 30 minutes before he was arrested and was sober at that time. Her husband did so testify, and stated that his wife would have given like testimony if able to be present.

The two officers were the only witnesses who testified for the state. Plaintiff in error testified that he was sober, and is supported by the testimony of his wife and daughter. The only other party present was Cumby, and there is nothing to show that he was interested. We are of the opinion that the plaintiff in error was entitled to have the benefit of this evidence. We refrain from expressing any opinion as to the guilt or innocence of the plaintiff in error, but hold that he should have the benefit of this testimony, particularly that of Cumby. This was the first application for a continuance, the witnesses were under subp na, and were not absent by the consent or procurement of plaintiff in error. The affidavit of plaintiff in error shows, without contradiction, that one of Cumby's children was expected to die any moment from burns received.

These absent witnesses lived a few miles in the country, and their affidavits, as to what their testimony would be, were not presented on the motion for a new trial, which will ordinarily be required where the witnesses are available. But this is an exceptional case. Cumby, no doubt, was in a state of anguish and distress, and Mrs. Rich was ill with the flu. Counsel might have taken a notary, gone to their homes and procured their affidavits. Practice in the cities is different from...