Cody v. State
| Decision Date | 11 February 1946 |
| Docket Number | 35975. |
| Citation | 24 So.2d 745 |
| Court | Mississippi Supreme Court |
| Parties | CODY v. STATE. |
English Lindsey and T. J. White, both of Gulfport, for appellant.
Greek L. Rice, Atty. Gen., and Geo. H. Ethridge, Asst. Atty. Gen for appellee.
This is an appeal from the Circuit Court of Harrison County where appellant was indicted and convicted of manslaughter following the death of one Estelle Marble.
There are two assignments of error. Complaint is made tat the trial court erred in overruling appellant's motion for a continuance and also in overruling appellant's motion for a peremptory instruction, directing the jury to find him not guilty.
With reference to the first assignment of error, in our judgment the trial court was correct in overruling the motion for a continuance. No proof was offered; and it did not show the then whereabouts of the absent witness, whether he was in the jurisdiction of the court or not; nor was any further process asked to procure his attendance at the trial, and he had not been served with process. There was no motion made for a new trial and the affidavit of the absent witness was not produced. The motion did not contain information as to when the witness could be produced, or set out sufficiently what efforts, if any, were made to secure his attendance at the trial or to ascertain his then whereabouts. The matter of continuance is largely within the discretion of the trial court, as we have decided a number of times. Code 1942 Section 1520; Ellis v. State, Miss., 23 So.2d 688; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Tonnar v. Wade, 153 Miss. 722, 121 So. 156, and others.
The case of Lamar v. State, 63 Miss. 265, is firmly imbedded in our jurisprudence, having been followed since it was announced in 1885 in many cases. Ivey v. State, 154 Miss. 60, 119 So. 507; Cox v. State, 138 Miss 370, 103 So. 129; Henderson v. State, 187 Miss. 166, 192, So. 495; Robinson v. State, 178 Miss. 568, 173 So. 451, and many others. Since the affidavit was defective, as stated supra, and appellant did not proceed thereafter as was held in Lamar v. State, supra, to be necessary on his part, we find no error in the action of the trial court in overruling the motion for continuance.
With reference to the motion requiring the jury peremptorily to find the appellant not guilty, we are of the opinion that the trial court was correct in overruling it. The...
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Gallego v. State
...v. State, 172 Miss. 297, 160 So. 562; Allgood v. State, 173 Miss. 27, 161 So. 756; Ellis v. State, 198 Miss. 804, 23 So.2d 688; Cody v. State, Miss., 24 So.2d 745; Jackson v. State, 199 Miss. 853, 25 So.2d 483; Parker v. State, 201 Miss. 579, 29 So.2d 910; McGee v. State, Miss., 40 So.2d 16......
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Newell v. State
...v. State, 172 Miss. 297, 160 So. 562; Allgood v. State, 173 Miss. 27, 161 So. 756; Ellis v. State, 198 Miss. 804, 23 So.2d 688; Cody v. State, Miss., 24 So.2d 745; Jackson v. State, 199 Miss. 853, 25 So.2d 483; Parker v. State, 201 Miss. 579, 29 So.2d 910; McGee v. State, Miss., 40 So.2d 16......
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Jackson v. State
... ... for invoking this discretion is subject to conformance with ... established rules, yet such rules are in turn subject to the ... circumstances of each case. Such rules of procedure were laid ... down in Lamar v. State, 63 Miss. 265, and have been ... followed since; the latest case being Cody v. State, ... Miss., 24 So.2d 745. In the Lamar case the procedure was ... standardized by the requirements that the affidavit of the ... defendant must be offered, continued diligence by by court ... process and otherwise to procure his attendance, and after ... conviction additional ... ...