Coward v. State

• Decision Date: 08 December 1930
• Docket Number: 28798
• Citation: 158 Miss. 705,131 So. 254
• Court: Mississippi Supreme Court
• Parties: COWARD v. STATE

131 So. 254

158 Miss. 705

COWARD v. STATE

No. 28798

Supreme Court of Mississippi

December 8, 1930

Division A

APPEAL from circuit court of Scott county, HON. D. M. ANDERSON Judge.

W. R Coward, Jr., was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Frank F. Mize, of Forest, and Mize, Mize & Thompson, of Gulfport, for appellant.

The indictment was fatally defective for failure to show the jurisdictional fact that the grand jurors were drawn from the body of good and lawful men from Scott county, and the demurrer should have been sustained.

31 C. J. 602; Thomas v. State, 5 Howard, 20; 1 Mor. State Cases 160.

It should appear then with reasonable certainty in the caption of the indictment that the grand jurors were impanelled and sworn to inquire of and presentment make of the guilt of the party charged here, of the proper county.

Byrd v. State, 1 How. 163; 1 Mor. State Cases 45.

The court erred in overruling the motion of appellant for a continuance.

This case falls right square within the doctrine laid down in the case of Cade v. State, 96 Miss. 434, where a witness was temporarily absent from the state and this court held that the defendant was entitled to have him present; and where his absence was only temporary, that even though it might result in a continuance of the case, yet the defendant was entitled to have him present.

Childs v. State, 112 So. 23; Walker v. State, 129 Miss. 449; Carter v. State, 100 Miss. 342; Woodward v. State, 89 Miss. 348; Scott v. State, 80 Miss. 197; Montgomery v. State, 85 Miss. 330.

W. A. Shipman, Assistant Attorney-General, for the state.

Where the record shows that the grand jury returned the indictment into court, and the indictment itself states that the grand jury was duly impanelled, it sufficiently appears that the indictment was found by a regularly impanelled grand jury, if the record does not elsewhere show the contrary. Where the record states at what court, at what term, and in what county the grand jury were impanelled and sworn, there is a sufficient statement of the venue.

34 C. J. 594; 31 C. J. 602; 31 C. J. 603-604.

Matters properly belonging to the caption need not be inserted in any indictment.

Reeves v. State, 20 Ala. 33; State v. Moore, S. C. 150; Dean v. State, M. & Y. (Tenn.) 127; Rose v. State, Minor (Ala.) 28; State v. Kennedy, 8 Rob. (La.) 590; Mitchell v. State, 8 Yerg. (Tenn.) 514; Thomas v. State, 5 Howard 20; Woodside v. State, 2 Howard 655.

It is held in several cases in this state that under the statute regarding juries, the courts are instructed and directed to regard all modes of selection, summoning and impanelling as directory merely. After they are impanelled and sworn, though it be in an irregular or informal mode, they are deemed legal and competent, in both civil and criminal proceedings.

Durreh v. State, 44 Miss. 795; Gavigan v. State, 55 Miss. 539; Head v. State, 44 Miss. 731; Hill v. State, 42 So. 380; Chase v. State, 46 Miss. 683; Posey v. State, 86 Miss. 149, 38 So. 324; Smith v. State, 132 Miss. 521, 97 So. 4; Cade v. State, 96 Miss. 434.

In case of Lamar v. State, 63 Miss. 265, the rule is stated with great elaboration and particularity that a party charged with a capital offense, who asked for a continuance on account of an absent witness before the drawing of the special venire, but who fails to renew such application at the trial and makes no effort to secure such absence witness either for appearance on the trial or on the hearing of the motion for a new trial, cannot for such refusal to continue secure a reversal of the judgment.

The Lamar case has been cited in many subsequent cases among such being:

Lea v. State, 64 Miss. 295; Hill v. State, 72 Miss. 531; Borroum v. State, 22 So. 68; Donald v. State, 41 So. 4; Ware v. State, 133 Miss. 837, 98 So. 229; Osborne v. State, 146 Miss. 718, 111 So. 834; Cox v. State, 138 Miss. 370, 103 So. 129.

OPINION

Cook, J.

The appellant, W. R. Coward, Jr., was convicted in the circuit court of Scott county, Mississippi, of the murder of his brother, Ed. Coward, and was sentenced to the state penitentiary for life, and from this conviction and sentence he prosecuted this appeal.

In order to dispose of the several assignments of error, it will be unnecessary to here set forth the facts surrounding this unfortunate killing. It will be sufficient to say that, according to the testimony of the several eyewitnesses, who testified for the state, the killing was without any sort of excuse or justification, and was clearly murder, while the testimony of the appellant, if believed, makes a clear case of self-defense.

The circuit court of Scott county convened on the 3d day of March, 1930, and on that day the appellant was indicted and arrested. On the same day a subpoena was issued for Clarence Coward, a brother of the appellant and the deceased, and it was returned "not found." On March 6, 1930, the appellant filed a motion for a continuance on account of the absence of this witness. This motion was supported by the affidavit of the appellant, which as to form was in all respects in accordance with the legal requirements. This affidavit averred that the absent witness resided in Scott county, but was temporarily absent from the state; that he was at or near Hammond, Louisiana, and was expected to return to his home within two weeks. It then alleged that the said absent witness was an eyewitness to the difficulty between the appellant and the deceased, and set forth in detail the facts which the absent witness would testify to if he were present. The facts which it was alleged that this witness would testify to if present were practically identical with those which the appellant afterwards gave in evidence at the trial of the cause, and, if the absent witness would have so testified, his testimony was vital and material to his defense.

Upon the filing of this motion for a continuance, the state offered several witnesses in opposition thereto, and it was shown that the killing occurred about nine days before the convening of the court; that this absent witness attended the funeral of his deceased brother, and left the state on Friday before the convening of the court on the following Monday; that he communicated with his wife from Hammond, Louisiana, and stated he was there hunting for a job of hauling for a team owned by his father and driven by another brother, and that he would be away two or three weeks. The sheriff of the county testified that the absent witness told him that he did not see the shooting, and there was no showing that the appellant saw or communicated with the witness after the killing. The motion for a continuance was overruled, and the cause was set for trial on March 13, 1930. On that date the motion for a continuance on account of the absence of the witness Clarence Coward was renewed, and, in addition to the allegations of the former affidavit in support of the motion, it was alleged that the witness was then near Hammond, Louisiana, and expected to return to his home in Scott county on March 15, 1930. In this motion for a continuance, as an additional ground thereof, it was alleged that Mrs. Willie Hoover, a material witness for the appellant, by whom he expected to prove that the deceased made a violent threat against the appellant's life on the morning before the killing, and who was present at court in response to a subpoena, was sick and unable to appear in court and testify. It was averred that, if this witness were present and able to testify, she would testify that the deceased made a violent threat against the life of the appellant on the morning before the killing, and that she communicated this threat to the appellant. With the motion for a continuance there was also filed the affidavit of the witness, Mrs. Hoover, setting forth the facts which she would testify to if present. In support of this second, or renewed, motion for a continuance, the appellant offered the testimony of the wife of the absent witness to the effect that, since the hearing of the first motion, she had received a letter from her husband saying that he would try to be back by the 15th of March. She also testified that she wrote her husband that this charge against his brother was set for trial on March 13th, and that he was wanted as a witness in the case. As to the condition of the witness Mrs. Hoover, a physician testified that he had attended her a short while before he was called to the witness stand; that she had fainted, but would probably be able to testify by the afternoon of that day. This motion was overruled, and the appellant assigned as error the action of the court in so doing.

The same threat against the life of the appellant that it was alleged the witness Mrs. Hoover would testify to was proved by the testimony of another witness, and no complaint seems to be here made on account of the absence of this witness but it...