Corbin v. State

• Decision Date: 15 May 1911
• Docket Number: 15,228
• Citation: 99 Miss. 486,55 So. 43
• Court: Mississippi Supreme Court
• Parties: LETTIE CORBIN v. STATE

55 So. 43

99 Miss. 486

LETTIE CORBIN v. STATE

No. 15,228

Supreme Court of Mississippi

May 15, 1911

APPEAL from the circuit court of Forrest county, HON. PAUL B JOHNSON, Judge.

Lettie Corbin was tried in her absence and convicted of the unlawful sale of intoxicating liquor and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Clyde R. Conner, for appellant.

In support of our contention that the court erred in not granting a continuance in view of the facts in this case, we do not care to cite any further authority than section 26 of the Constitution of 1890, which holds in substance, that in all criminal prosecutions the accused shall have the right to be heard by himself or counsel, or both, and to be confronted by the witnesses against him. We must confess that, after a careful and thorough examination of our Mississippi Reports we are unable to find a case reported with the facts similar to the one at bar, and can only account for this strange fact by the supposition that, heretofore trial judges have not allowed their zeal for convictions to so blind and warp their mental vision as to make them unmindful of the fundamental law of the land, that is to say, the Constitution of the state of Mississippi. It is true that this proposition is touched upon in the case of Garmon et al. v. State, 5 So. 385; there Arnold, C. J., says that on a trial of accused for a misdemeanor: "As to appellant Joe Garmon it was error to require him to leave the courtroom with other witnesses during the progress of the trial. It was his right to be present, and to see and hear what occurred in the trial, and to advise and assist his counsel; and the fact that he was a witness as well as a defendant did not deprive him of this right. And it does not alter the case that he was being tried for a misdemeanor, instead of a felony, or that he might by his own default or misconduct, have waived his right to be present." There is no doubt but that the appellant Corbin was denied this right to be present during the trial of this case; and that her absence was not voluntary, but due to the fact that she was sick and unable to attend her trial. The witness Kelly testified that in his opinion appellant would be able to attend court by Thursday of the fourth week, that was just three days delay. If the trial court had wanted to safeguard appellant the constitutional right to be present and heard at her trial why did he not continue this case until Thursday?

The record is uncontradicted on the point that appellant was the only person who was able to testify that she was not guilty of the crime charged in the affidavit.

We hardly deem it necessary to cite authorities holding it reversible error for a trial court to refuse an application for a continuance where it is shown that a material witness is absent on account of sickness, yet, at the risk of appearing tedious, we are going to refer briefly to a few of the late cases decided by this court. In the case of State v. Vollm, 5 So. 275, Chief Justice Whitfield said:

"We think the court below erred in not granting the continuance, or, at least setting the case for a later day in the term. The application for a continuance was based on the ground that Mrs. Hall, who was witness to the execution of the receipt in question, and who was within the jurisdiction of the court, and who had been served with process, and who was then within the county, but sick, would testify that the clause alleged to have been unlawfully inserted in the receipt was in said receipt when said J. C. Prather signed it, and that defendant did not insert into said receipt or instrument the words and matter set out in said indictment as having been inserted after Prather signed receipt. The affidavit for continuance further showed that there was no other witness by whom these facts could be proven. It is manifest that the testimony of Mrs. Hall was of the most vital character, and the court should certainly have either set the case for a later day of the term, or, if she should not have recovered from her illness, have continued the case until the next term." The case above cited is exactly in point with the one at bar.

In the case of Casey v. State, 50 So. 978, where the sheriff found one of the witnesses, a woman, at home, claiming to be sick. He forced her to get out of bed and attend the trial, but she was so hysterical she was unable to testify. The defendant's attorney made motion to have the case passed until a later day of the term, which was overruled. The court speaking through Chief Justice Whitfield, says: "Undoubtedly, under the showing made in the record, this case involving the life of the appellant, should have been postponed until Monday from late Saturday afternoon." We are unable to see why the court should not have continued the case at bar until Thursday, after the doctor had testified that in this opinion she would be able to attend court Thursday or Friday anyway.

The case of Caldwell v. State, 37 So. 816, is one in which the appellant was charged with the unlawful sale of intoxicating liquors, and in his motion for a continuance sets up that his wife is material witness for defendant, that she was sick and unable to attend court, that he expected to prove by her that he did not sell the whiskey and that she would be present at the next term of court. The court said: "In view of the statement contained in appellant's affidavit for continuance were not denied or in any way discredited, the application should have been granted." We do not care to quote from any other opinions of the Supreme Court, for it has universallly held that when a trial court refuses an application for a continuance after a showing has been made the case will be reversed. And in support of this assertion we respectfully submit the following cases: Haven v. State, 23 So. 181; Whit v. State, 37 So. 809; Scott v. State, 31 So. 710; Watson v. State, 33 So. 491; Fooshee v. State, 54 So. 148; Woodward v. State, 42 So. 167; Watts v. State, 44 So. 36; Magee v. State, 45 So. 360; De Sliva v. State, 45 So. 611; Anderson v. State, 50 So. 554; Casey v. State, supra, cited; State v. Vollm, supra, cited; Dobbs v. State, 51 So. 915; Knox v. State, 53 So. 695.

In conclusion we unhesitatingly state, that after a careful consideration of this case, viewed in the light of the cases above cited, that...