Chandler v. State, 47085
| Citation | 272 So.2d 641 |
| Decision Date | 22 January 1973 |
| Docket Number | No. 47085,47085 |
| Parties | Lewis O. CHANDLER, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Garner, Whitten & Garner, Jon B. Love, Hernando, for appellant.
A. F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
The appellant, Lewis O. Chandler, Jr., was indicted by the Grand Jury of Lafayette County, Mississippi for the crime of burglary of the Oxford Country Club, a building owned by that corporation. He was tried, convicted and sentenced to serve a term of seven (7) years in the state penitentiary at Parchman. This case has been before this Court on a previous advanced appeal on an application for habeas corpus. The appellant had requested bail pending his appeal. We refused to reverse the order of the trial judge under the circumstances shown in the record, and because of the discretion allowed the trial judge under Section 1180, Mississippi Code 1942 Annotated (1956).
We now have the full record of the trial before us, and the record reveals the following statement of facts.
On the night of March 15, 1971, a Mr. Walter Pardoe, manager of the Oxford Country Club, was in the process of closing the building about one or one-thirty in the morning when he observed two men get out of an automobile. One of them came to the door of the clubhouse. He then saw them approach the back of the house. He heard them breaking into the house and he attempted to call the police, but could not see to dial the numbers. He then ran to a neighbor's house where he called the police. The police came in separate automobiles. One of the officers went to the door of the clubhouse and saw the defendant. He was later able to identify him. The officers finally entered the building only to find that the burglars had escaped. The automobile abandoned by the burglars bore a Tennessee tag. This tag was traced to the defendant's name in Tennessee.
Later during the next day a city employee on a garbage truck saw the defendant near the Oxford Country Club lying near a tree. The witness later identified the defendant as being the man he saw. Another citizen saw the defendant attempting to solicit a ride. This witness informed a highway patrolman that he had seen such a person. The patrolman went to where the defendant was standing on the highway. The patrolman testified that while he was questioning the defendant he noticed that he was armed with a pistol. He mentioned this fact to the defendant and unbuttoned his own pistol scabbard. At this time the defendant attempted to take the patrolman's gun. The patrolman finally subdued the defendant, arrested him and took him to jail.
The defendant admits that he attacked the patrolman, but says he thought the officer was about to shoot him.
After the defendant was incarcerated, the city employee, who had just seen the defendant in the woods, went to the jail and identified the defendant as the man he saw.
Prior to the trial, the defendant made several motions including a motion requesting the court to suppress evidence obtained by an alleged unlawful arrest without probable cause and a motion requesting the court to require the attendance of David H. McClain, an out-of-state witness for defendant, Lewis O. Chandler, Jr. The court overruled these motions, and by agreement the case was tried before the circuit judge without a jury. After being sentenced, the defendant made a motion for a new trial, but this, too, was overruled; whereupon, the defendant appealed from the judgment and sentence of the trial court to this Court. He now contends on appeal that:
(1) The trial court was in error in refusing to require the attendance of David H. McClain;
(2) The admission of the testimony of Joe Lewis Hobson-in which the witness identified the defendant as being the man he saw by a tree near the Oxford Country Club-was in violation of defendant's constitutional rights because the identification was made at a time when the defendant was in jail, without the aid of a 'lineup' or group exhibit and at a time when the defendant had no attorney present to aid him; and
(3) It is contended and vigorously argued that the arresting officer arrested the defendant without probable cause and, therefore, all of the evidence obtained by the state as a result of the arrest was illegally obtained and was inadmissible.
The first suggestion of error, that the trial court erroneously failed to require the attendance of an out-of-state witness as provided by Section 1895, Mississippi Code 1942 Annotated (1956), is not well taken for at least four reasons.
First, this Court has held that there is no method by which the out-of-state witness can be paid and that the trial court was without authority to force a witness for the defense to leave a foreign state to testify in this state. See Diddlemeyer v. State, 234 So.2d 292 (Miss.1970). The rule in the Diddlemeyer case seems to be the general rule accepted by a large part of other state jurisdictions. See Anno. 44 A.L.R.2d 732 at 738, § 5 (1955).
Second, assuming for the sake of argument that this Court would hold that Section 1895, Mississippi Code 1942 Annotated (1956), applied to defense witnesses, under the facts here presented we could not hold the trial court in error because even where the court has authority to compel the attendance of witnesses, the witnesses' testimony must be material to the issue involved and the party requesting their attendance must not only have process issued, but must make every effort during the trial to have these witnesses present. He must present an affidavit from them giving their testimony, on a motion for a new trial. The rule with reference to continuance because of an absent witness is analogous and is applicable here. See King v. State, 251 Miss. 161, 168 So.2d 637 (1964).
Third, the motion requesting the court to force the out-of-state witness to appear as a witness for defendant shows that the witness is a co-indictee with the defendant in this case. The State of Mississippi cannot force a defendant to appear and testify. Averitt v. State, 246 Miss. 49, 149 So.2d 320 (1963); 21 Am.Jur.2d, Criminal Law, § 356, p. 383 (1965). Moreover, if the state could force his appearance to testify in this state against his will, the state would necessarily grant the witness immunity while he was within this state (Section 1896, Miss.Code 1942 Ann. (1956)).
Finally-the motion requesting the out-of-state process states that the defendant believes that the out-of-state witness...
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Woodward v. State
...court was without authority to force a witness for the defense to leave a foreign state to testify in this state." See Chandler v. State, 272 So.2d 641, 643 (Miss.1973). In Chandler, the defendant wished to subpoena his co-defendant; however, the same analysis applies for an out-of-state au......
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Howell v. State
...v. State, 319 So.2d 219 (1975) ; Hobson v. State, 285 So.2d 464 (Miss.1973) ; Allen v. State, 274 So.2d 136 (Miss.1973) ; Chandler v. State, 272 So.2d 641 (Miss.1973).Cox v. State, 326 So.2d 794, 794–95 (Miss.1976). “In Kirby v. Illinois ..., the Court made it clear that the right to counse......
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Howell v. State
...Miss., 319 So. 2d 219 (1975); Hobson v. State, 285 So. 2d 464 (Miss. 1973); Allen v. State, 274 So. 2d 136 (Miss. 1973); Chandler v. State, 272 So. 2d 641 (Miss. 1973).Cox v. State, 326 So. 2d 794, 794-95 (Miss. 1976). "In Kirby v. Illinois . . . , the Court made it clear that the right to ......
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Cox v. State, 48911
...State, Miss., 319 So.2d 219 (1975); Hobson v. State, 285 So.2d 464 (Miss.1973); Allen v. State, 274 So.2d 136 (Miss.1973); Chandler v. State, 272 So.2d 641 (Miss.1973). As stated in Howard, supra, any pretrial confrontation is subject to judicial scrutiny, and it appears from the record tha......