Ellis v. State

• Decision Date: 12 November 1945
• Docket Number: 35960.
• Citation: 198 Miss. 804,23 So.2d 688
• Court: Mississippi Supreme Court
• Parties: ELLIS v. STATE.

23 So.2d 688

198 Miss. 804

ELLIS v. STATE.

No. 35960.

Supreme Court of Mississippi

November 12, 1945

Sam E. Lumpkin, of Tupelo, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge, Asst. Atty. Gen for appellee.

ROBERDS Justice.

Ellis was indicted for the murder of Savannah Woods, convicted of manslaughter sentenced to the state penitentiary for ten years, and he appeals.

He contends (1) that his application for a continuance should have been granted, (2) that confessions introduced by the State were not free and voluntary, and (3) that the proof is insufficient to convict him.

His application for continuance was based upon the absence of his brother, Elisha Ellis. The crime occurred the night of Friday, January 5, 1945. Appellant was arrested the night of January 8th and placed in jail. His confessions were made January 10th. During this time Elisha was at the home of appellant and he was present when the confessions were made. It is not shown just how long he remained in this state after January 10th--apparently, only a short time. The case was tried May 29, 1945. No process was issued, or requested, for Elisha, nor is it shown that appellant made any effort to procure his presence as a witness at the trial. Elisha was a non-resident of Mississippi and there is no proof whatever that he would likely be available as a witness at any future trial of the case. Granting or refusing continuances is a matter largely within the discretion of the trial judge. We cannot say it was error for the court to overrule the motion for a continuance under the circumstances here. Section 1520, Code 1942; Lamar v. State, 63 Miss. 265; Ware v State, 133 Miss. 837, 98 So. 229; Cox v. State, 138 Miss. 370, 103 So. 129; Everett v. State, 147 Miss. 570, 113 So. 186; Samuels v. State, 153 Miss 381, 120 So. 920; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Ogden v. State, 174 Miss. 119, 164 So. 6.

There were two confessions--one, oral, made in jail, the other written, made in the office of the county attorney. It is not necessary for us to say whether they were or were not free and voluntary, for the reason appellant testified in the case and the only substantial difference between his testimony and the confessions is that in the confessions he said he 'reached down and grabbed up a stick and hit her' without specifying the size of the stick, and in his testimony he said he hit her with a switch or stick about the size of his finger. But in either case the evidence is sufficient with the other evidence in the case to sustain the verdict of the jury. It is shown, outside of the confessions, that Savannah lived with her husband about 250 yards from Ellis; that she had been cooking for Ellis about six months; that on the night of January 5th she came to his home late in the evening to cook a cake for Ellis and his brother Elisha, who was visiting appellant; that while Savannah was doing that appellant began to play his phonograph and discovered that some of the records had been scratched and damaged and that he accused Savannah of damaging them. This she denied, but Elisha contradicted her. A quarrel ensued. Later, about 9:30 to 10 o'clock, appellant told Savannah it was time for her to go home. She started home, and appellant, as had been his custom, started to accompany her. He had a flashlight and a twenty-two rifle. When they got about forty yards from the house, appellant again brought up the subject of the damaged records and the quarrel started over, appellant again accusing Savannah of damaging them. To this she...