Childs v. State

• Decision Date: 11 April 1927
• Docket Number: 26260
• Citation: 146 Miss. 794,112 So. 23
• Court: Mississippi Supreme Court
• Parties: CHILDS v. STATE. [*]

112 So. 23

146 Miss. 794

CHILDS v. STATE. ^[*]

No. 26260

Supreme Court of Mississippi

April 11, 1927

Division B

1. CRIMINAL LAW. Denying continuance to procure witness who would testify to material facts held erroneous, where due diligence was shown and evidence was not cumulative.

In prosecution for manslaughter, denial of continuance on ground of absence of witness, who would have testified that deceased was advancing on defendant with an iron bar in his hand at time fatal shot was fired held erroneous, in view of fact that defendant had exercised due diligence in attempting to secure presence of witness and that testimony was not cumulative, but rather corroborative of that of his infant son.

2. CRIMINAL LAW. Reading testimony from application for continuance held not to cure error in trying case in witness' absence.

Mere reading to jury from application for continuance testimony that absent witness would have testified to if present held not to cure error of court in trying case in absence of such witness.

3. CRIMINAL LAW. Denying continuance to secure witness to recent threats by deceased held erroneous, where proof as to who was aggressor was conflicting.

Where there was a sharp conflict in prosecution for manslaughter in proof as to who was the aggressor, denial of continuance to secure presence of witness who would have testified to recent threats made by deceased held erroneous, where defendant had exercised due diligence to secure such witness who was within jurisdiction of court.

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Tippah county HON. T. E. PEGRAM, Judge.

Jake Childs was convicted of manslaughter, and he appeals. Reversed and remanded.

Judgment reversed and case remanded.

Fred B. Smith, for appellant.

The court committed error in overruling appellant's application for a continuance. A defendant has the right to have his material witnesses present in court in person, where proper diligence has been shown; and the admission that if the witness were present, he would testify to certain facts is not sufficient. See Scott v. State, 80 Miss. 197; Watson v. State, 81 Miss. 701; Caldwell v. State, 85 Miss. 384; Walker v. State, 129 Miss. 449, 92 So. 580.

Geo. T. Mitchell and Rufus Creekmore, Assistant Attorney-General, for the state.

The application for a continuance. The granting of a continuance is in the sound discretion of the trial judge. Unless the court can say that this discretion has been abused, then it should not be interfered with by this court on appeal. Section 567, Hemingway's Code (section 784, Code of 1906); Solomon v. State, 71 Miss. 567, 14 So. 461; Lipscomb v. State, 92 Miss. 70, 45 So. 146; Ware v. State, 133 Miss. 389, 98 So. 229; Williams v. State, 92 Miss. 70, 45 So. 146; Cox v. State, 138 Miss. 370, 103 So. 129.

The testimony of witness Crum then in all respects was merely cumulative and as such, under the unbroken line of authorities in this state, the defendant was not entitled to a continuance because of the absence of this witness. Nelms v. State, 58 Miss. 362; Wells v. State, 18 So. 117; Trim v. State, 33 So. 718; Richburger v. State, 90 Miss. 806, 44 So. 772.

The district attorney admitted that witness Edwards if he were present would testify to certain facts and this statement of facts on the trial of the cause was by counsel for defendant read to the jury and used by them. This testimony of the defendant was denied in no respect by any witness for the state whatsoever, but on the contrary was apparently accepted and conceded as being true.

An analysis of the cases relied on by the defendant shows them not to be authority for the contention urged by him. Defendant has been prejudged in no wise by his failure to have the witness present. He has obtained every advantage that he would have had if the witness had testified on the trial of the cause.

Argued orally by Fred B. Smith, for appellant, and Rufus Creekmore, Assistant Attorney-General, for the state.

OPINION

HOLDEN, P. J.

Jake Childs appeals from a conviction of manslaughter and a sentence of ten years in the penitentiary.

Appellant shot and killed Sam Mauney during a difficulty between the two at a little country store east of Ripley.

Briefly told, the two men became angry with each other, and deceased, Mauney, picked up an iron bar, and with it in his hand advanced upon appellant, who retreated, and, while the deceased was advancing upon appellant, who had reached a place where he could retreat no farther, appellant shot and killed Mauney.

There is a conflict in the evidence as to whether the deceased had the iron bar in his hand and was advancing upon the appellant at the time the fatal shot was fired; the testimony was also in dispute as to who was the aggressor in the difficulty.

The appellant urges a reversal upon several grounds, but we shall notice only two of them which will result in a reversal, and the other questions may not arise again on a new trial.

It is contended that the court erred in overruling appellant's application for a continuance, which was asked upon the ground of the absence of the witnesses Crum and Edwards, who would testify to material facts which the defendant could not prove by any other witnesses. The application shows that these witnesses were within the jurisdiction of the court, and that due diligence by the defendant had been exercised in making every reasonable effort to obtain the presence of these witnesses. All manner of process was secured in an effort to have these witnesses present at the trial, but they could not be found in time to testify in the case.

The homicide took place on Friday; the indictment was found on the following Monday; the arraignment had the next day; and preparation for the trial by the court was begun at once; and the defendant was put...