Cox v. State

• Decision Date: 09 March 1925
• Docket Number: 24282
• Court: Mississippi Supreme Court
• Parties: COX v. STATE. [*]

103 So. 129

138 Miss. 370

COX v. STATE. ^[*]

No. 24282

Supreme Court of Mississippi

March 9, 1925

Division B

APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON Judge.

Edna Cox was convicted of murder, and she appeals, Affirmed.

Judgment affirmed.

H. C. Holden, for appellant.

I. THE COURT ERRED IN REFUSING TO GRANT A CONTINUANCE TO THE NEXT TERM. An application for a continuance on the ground of the absence of a witness is addressed to the sound discretion of the trial court, and in the exercise of this discretion the action of the court will not be reviewed or disturbed except where it is clearly shown that there has been an abuse of discretion.

Certain concurring facts have, from a very early date, been considered by this court and other courts as guiding stars to a proper exercise of discretion in passing on application for a continuance based on the absence of a witness. Thus it is uniformly held by this court, and generally held by other courts, that the court must be satisfied that the testimony of the absent witness is materially important; second, that the party applying for it has not been guilty of neglect or laches in endeavoring to procure the attendance of the witness; and third, that there is a reasonable expectation that the witness can be procured at the next term; and where the application makes a satisfactory showing in regard to the foregoing concurrent facts it is ordinarily considered erroneous to refuse a continuance especially where the facts expected to be established cannot be proved by other witnesses. See 16 C. J. 457, et seq.; Hill v. State, 72 Miss. 527, 17 So. 375; Havens v. State, 75 Miss. 488, 23 So. 181; Hattox v State, 80 Miss. 186, 31 So. 579; White v. State (Miss.), 45 So. 611; Brooks v. State, 108 Miss. 571, 67 So. 53; Johnson v. State, 111 Miss. 828, 72 So. 239; Walker v. State, 129 Miss. 449, 92 So. 580.

The statements in the affidavit for continuance, being uncontradicted or denied, and being supported and confirmed by the record of the trial, must be taken as true. When so regarded, it is plain that the testimony of the absent witness was most important to the defendant. The value of this testimony was incalculable. It was testimony of the highest probative worth to the defendant. It was the best testimony which the defendant could have possibly obtained. It was testimony that would have corroborated defendant's statement of what happened and would have made complete a case of self-defense. It was testimony that, if believed, would have proved a justifiable homicide. It was testimony that, if believed, would have entitled the defendant to an acquittal.

The defendant's plea was self-defense. Without this absent witness she was unable to make out a case of self-defense except by her own testimony. She should have been given the right to corroborate her own statements by the testimony of a disinterested eyewitness. The denial of this right and this opportunity was a most serious injustice.

Coming now to the second guiding star. Was the defendant diligent? Statements as to her diligence in the affidavit were not denied or contradicted by the testimony and they must be taken as true. So regarded, no reasonable man could say that the defendant failed to use due diligence in obtaining the presence of the witness. It must be remembered that the defendant is an ignorant negro woman and of course, does not understand the method of obtaining the presence of a witness. She thought that Brown would be present because he promised that he would. She thought that he had been summoned. She knew what a summons meant but the details of service of process she could not be expected to understand. She was lulled into security by the promises of Brown, and in her ignorance she was unaware that the technicalities of process serving had not been fully complied with.

The third requisite is fully satisfied in that the affidavit for continuance and the record shows that it was not only reasonably expected that the absent witness could be procured at the next term but it was extremely likely that this witness would be present.

It will be well now to refer to the decisions of this court in prior, similar cases, and to consider and compare them with the case at bar. Long v. State, 52 Miss. 23; Hill v. State, supra; Havens v. State, supra; Hattox v. State, supra; Scott v. State, 80 Miss. 197, 31 So. 710; Watson v. State, 81 Miss. 700, 33 So. 491; Fooshee v. State, 82 Miss. 509, 34 So. 148; Whit v. State, 85 Miss. 208, 37 So. 809; Montgomery v. State, 85 Miss. 330, 37 So. 835; Caldwell v. State, 85 Miss. 383, 37 So. 816; Walton v. State, 87 Miss. 296, 39 So. 689; Woodward v. State, 89 Miss. 348, 42 So. 167; Watts v. State 90 Miss. 757, 44 So. 36; Cade v. State, 96 Miss. 434, 50 So. 554; Dobbs v. State, 96 Miss. 786, 51 So. 915; Brooks v. State, supra; Johnson v. State, supra; Williams v. State (Miss.), 23 So. 547; Magee v. State (Miss.), 45 So. 360; White v. State, supra; Anderson v. State (Miss.), 50 So. 554; State v. Vollm, 96 Miss. 651, 51 So. 275; Knox v. State, 97 Miss. 523, 52 So. 695; Walker v. State, supra.

II. THE SPECIAL VENIRE SHOULD HAVE BEEN QUASHED. The defendant moved the court to quash the special venire because these special jurors necessarily were prejudiced against the defendant on account of the action of the court in their presence, in forfeiting the bond of the defendant and in causing her arrest, and in imposing a fine of one hundred dollars on each of her counsel for contempt of court.

Possibly there are no technical objections to this action on the part of the court. It may be that the court was only exercising its lawful prerogatives. But the court exercised its prerogative in a manner prejudicial to the defendant. It was all right to forfeit the bond. There was nothing wrong or unlawful in arresting the defendant in the courtroom after the forfeiture had been entered, but the wrong was done when the court permitted the defendant to be tried by a jury selected from the special venire which sat there and witnessed the forfeiture and the arrest.

And when the court, again exercising its prerogative, entered the fine of one hundred dollars upon each of the counsel for the defendant for contempt of court because of their failure to be present when the case was called, the suspicion and bias already instilled in the minds of the members of the special venire became crystallized and solidified and this defendant was then and there convicted in their minds.

F. S. Harmon, Assistant Attorney-General, for the state.

I. THERE WAS NO REVERSIBLE ERROR IN REFUSING THE MOTION FOR A CONTINUANCE BECAUSE OF THE ABSENCE OF WITNESS, W. B. BROWN. Turn to the affidavit filed by the defendant herself in support of her motion for a continuance to see whether that is in line with the statutory requirements. Be it remembered that more than a year elapsed between the time of the killing and February 6, 1924, when this case was set for trial. The defendant got out on bond the preceding April, and had had many months to make all necessary preparations for her defense. She swears, however, in her first affidavit filed February 6th, that she had a subpoena issued for the said Brown prior to the July, 1923, term of the court, that the process was returned unexecuted, as was the process issued for him in Lauderdale county. The affidavit sets out further that the defendant had process issued to the sheriff of Lincoln county during the 1923 term of court, and the first affidavit is to the effect that this process was never returned, while the second affidavit, with which we are primarily concerned here, states that this was likewise returned unexecuted. The defendant admits, however, that Brown was actually in Lumberton, the scene of the crime and within the county, over a considerable period of time in December, 1923, and January, 1924, and that she talked to him several times about the case and had his word that he would be present. It would have been perfectly simple for this witness to have been served with process at any time during this period. Both the appellant and her attorneys knew that the case was coming to trial on February 6th, yet nothing was done during this interim.

It seems that Brown has worked for several years in lumber camps and cross-tie camps, and although he has operated around Lumberton as a center, we fail to find sufficient allegations in the affidavit that this was still the place of his actual residence. In the affidavit filed February 6th, the appellant stated that the missing witness was then in Jones county working at a tie camp there. Nine days actually elapsed between the time this case was called and the time the jury was empaneled, and if this negro could not be located and process served on him during this period of time, then we submit to this court in the light of the facts of the case that there is nothing whatever to indicate that his presence could have been procured at the next term of the court.

The second affidavit filed February 12th, alleged that the sheriff of Jones county had not been diligent or had not had ample time to locate the witness, but an officer is presumed to do his duty, and it requires more than a mere statement, such as this, to rebut this presumption.

The legislature has regulated this question of the granting of continuances, by section 567, Hemingway's Code.

A long line of court decisions in this state emphasizes the fact that the granting or denial of a continuance shall lodge in the sound discretion of the trial court, and it is submitted that this discretion was not here abused. Solomon v. State, 71 Miss. 567, 14 So. 461; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Williams v. State, 92 Miss. 70, 45 So. 146.

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