Everett v. State

• Court: Mississippi Supreme Court
• Writing for the Court: COOK, J.
• Citation: Everett v. State, 113 So. 186, 147 Miss. 570 (Miss. 1927)
• Decision Date: 06 June 1927
• Docket Number: 26415
• Parties: EVERETT v. STATE. [*]

113 So. 186

147 Miss. 570

EVERETT v. STATE. ^[*]

No. 26415

Supreme Court of Mississippi

June 6, 1927

(Division A.)

1. CRIMINAL LAW. Overruling motion for continuance for absence of witness held not erroneous, where affidavit did not set forth testimony.

Overruling motion for continuance on ground of absence of witness is not erroneous, where affidavit accompanying motion did not set forth what witness would testify to if he were present.

2. CRIMINAL, LAW. Affidavit containing testimony of absent witnesses as knowledge of threats by deceased held too vague and indefinite to require continuance.

Affidavit on motion for continuance because of absence of witnesses stating testimony that witnesses would give if present as having knowledge of threats by deceased against defendant and attempt to persuade deceased not to violate defendant's home, held too vague and indefinite to require continuance.

3. CRIMINAL LAW. Motion for new trial must show impossibility to secure witnesses or their affidavits in order to warrant reversal for overruling motion for continuance.

In order to make such showing as to warrant reversal for overruling of motion for continuance on account of absence of witnesses, it is necessary to show on motion for new trial that it was impossible to then secure presence of witnesses or their affidavits.

4 HOMICIDE. Defendant cannot complain of manslaughter instruction in murder trial, where evidence would sustain conviction for murder.

Defendant in murder prosecution cannot complain of the giving of a manslaughter instruction, where evidence would sustain conviction for murder, though there may be no elements of manslaughter involved in evidence.

Division A

APPEAL from circuit court of Quitman county.

HON.W. A. ALCORN, JR., Judge.

M. L. Everett was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Boone & Lowrey, for appellant.

I. In support of the argument that a continuance should have been granted, appellant cites: Scott v. State, 31 So. 710; Watson v. State, 33 So. 491; Caldwell v. State, 37 So. 816; Hill v. State, 17 So. 375; Johnson v. State, 72 So. 239; Walker v. State, 92 So. 580.

II. We have also assigned as error the granting of a manslaughter instruction by the trial court and while we concede that this court has held in recent decisions that a defendant on trial for murder cannot complain of the granting of such instruction, upon the theory that he is benefited thereby and in no way prejudiced by the granting of such instruction, we believe that circumstances alter cases and that if the rule of the court as announced in Calicoat v. State, 95 So. 318, be strictly adhered to, great injustice will be done in many instances.

While we recognize the logic of the theory expressed by the court in the Calicoat case and admit its soundness, under certain conditions, we realize that this theory makes no allowance for the faults and foibles of the men comprising the juries of our state, nor does it take into consideration the inclination of the average juror to compromise rather than face a long deliberation and a possible mistrial of a cause.

Rufus Creekmore, Special Assistant Attorney-General, for the state.

I. The application for a continuance was properly refused. The facts to which these witnesses would testify as set forth in this application are very vague and indefinite. So far as the record shows there was no effort whatsoever to obtain the attendance of Mr. and Mrs. Doubleday, Mr. Red Waters or of Mr. Claude Nichols. Assuming, therefore, that the defendant had used the greatest possible diligence to secure the attendance of the absent witnesses and had failed, yet he would not be entitled to a continuance because this testimony could have been supplied by other witnesses who were present at the Doubleday's home on the occasion referred to and who had the same opportunity to hear the threats and to testify to them on the trial of the case.

The defendant certainly must fail in his application because of the fact that he has not exercised that degree of diligence which is required of him in obtaining the presence of the absent witnesses. The rule prescribing the degree of diligence required of the defendant in such cases as this was first laid down by the court in Lamar v. State, 63 Miss. 265, and has been consistently followed since that time. See, also, Weir v. State, 133 Miss. 837, and Cox v. State, 138 Miss. 370, 103 So. 129.

II. We can see no difference between the facts in this case and the facts in numerous other murder cases where manslaughter instructions were requested and manslaughter verdicts returned by the jury, so we will not consume the time of the court with a discussion of this proposition. Alexander v. State, 110 So. 367.

Argued orally by M. P. Lowrey, for appellant, and Rufus Creekmore, Assistant Attorney-General, for the State.

OPINION

COOK, J.

At the August, 1925, term of the circuit court of Quitman county, the appellant, M. L. Everett, was indicted on a charge of murder, and was convicted of manslaughter, and sentenced to serve a term of ten years in the state penitentiary, and from this conviction and sentence this appeal was prosecuted.

The only grounds for a reversal of the judgment of the court below which are argued by counsel are that the court erred, first, in overruling a motion for a continuance; and, second, in granting the state an instruction submitting to the jury the issue of manslaughter. The evidence in this record would support a verdict of guilty of murder, but, in order to dispose of the two assignments of error, it will be unnecessary to here detail the evidence.

The motion for a continuance was based upon the absence of four witnesses for the defendant, and for whom process had been issued. One of these witnesses, Mrs. Red Waters, appeared and testified at the trial. The affidavit accompanying the motion for a continuance did not set forth what the witness, Roy Jones, would testify to if he were present, and, consequently, no error was committed in overruling the motion in so far as it is based upon the absence of this witness, and we do not understand counsel to so contend. Counsel bases this assignment solely upon the ground that the continuance should have been granted on account of the absence of Mr. and Mrs. Arthur Woods.

These two witnesses resided in...