Cruthirds v. State

• Decision Date: 12 May 1941
• Docket Number: 34422.
• Citation: 2 So.2d 145,190 Miss. 892
• Court: Mississippi Supreme Court
• Parties: CRUTHIRDS v. STATE.

2 So.2d 145

190 Miss. 892

CRUTHIRDS v. STATE.

No. 34422.

Supreme Court of Mississippi

May 12, 1941

T J. White and E. R. Jenkins, both of Gulfport, for appellant.

Greek L. Rice, Atty. Gen., and A. M. Byrd, Asst. Atty. Gen., for appellee.

ROBERDS Justice.

The defendant was indicted, tried, convicted and fined $500 in the Circuit Court of Simpson County for having whiskey in his possession unlawfully in that county. The sole ground of his appeal is that he was tried with such haste and under such conditions that he was denied the opportunity to confer with his attorney and prepare for his defense. It appears from the record that the indictment was returned on September 13 1940, and the warrant for the arrest of the defendant was mailed to the Sheriff of Harrison County, where the defendant resided. The defendant was arrested by the Sheriff of Harrison County about 10 o'clock on the morning of September 20, 1940. The Sheriff of Simpson County went to Gulfport for the defendant. The defendant was allowed some three minutes within which to confer with his attorney at Gulfport. His attorney, who lived at Gulfport, wired the district attorney, explaining that he was engaged in Chancery Court at Gulfport, and asked for a continuance of the case or time to investigate the merits of the case and prepare for trial. It is not shown whether there was any response to that communication. The Sheriff of Simpson County returned to Mendenhall, where the circuit court was in session, with the defendant in his custody, arriving there about or after dark the day of his arrest; and the defendant was immediately arraigned, in the absence of his attorney, and entered a plea of not guilty, and the trial judge "directed the defendant that if he had any witnesses that he wanted to summon here in his defense to turn their names into the hands of the circuit clerk and we would get them here." The case was set for trial at 8:30 the next morning. Counsel for defendant was able to leave the Chancery Court at Gulfport only because the chancellor adjourned court on account of a misfortune in his family. Counsel left Gulfport about 4:30 A M. of September 21st and drove to Mendenhall, some 140 miles distance, according to the record. The defendant was placed upon trial at 8:30 A. M., September 21, 1940, some five minutes after his counsel arrived. His counsel dictated to the stenographer a motion asking for time to confer with his client and prepare his defense, not having time to reduce the motion to writing and in the form required by the statute. The motion was overruled. The state introduced six witnesses. The defendant had no witnesses.

After his conviction, the defendant made a motion to set aside the verdict and for a new trial on the grounds heretofore set out, which motion was duly supported by affidavit, the facts of which are not denied in this record, which motion was overruled.

Section 26 of the Constitution of Mississippi guarantees to every person a fair and impartial trial. A fair and impartial trial includes a reasonable opportunity to prepare for trial. Reed et al. v. State, 94 Fla. 32, 113 So. 630; State v. Collins, 104 La. 629, 29 So. 180, 81 Am.St.Rep. 150; State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, Ann.Cas.1917E, 116; State v. Fairclough, 86 Utah, 326, 44 P.2d 692; Cade v. State, 96 Miss. 434, 50 So. 554; Knox v. State, 97 Miss. 523, 52 So. 695; State v. Musselman, 101 Wash. 330, 172 P. 346, L.R.A.1918E, 523, and annotations to that case. In Coker v. State, 82 Fla. 5, 89 So. 222, the court set forth the right in these words: "Justice requires, and it is the universal rule, observed in all courts of this country,...