Fooshee v. State

• Decision Date: 20 April 1903
• Citation: 82 Miss. 509,34 So. 148
• Court: Mississippi Supreme Court
• Parties: CHRISTOPHER FOOSHEE v. STATE OF MISSISSIPPI

34 So. 148

82 Miss. 509

CHRISTOPHER FOOSHEE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 20, 1903

FROM the circuit court of Pontotoc county. HON. EUGENE O. SYKES Judge.

Fooshee appellant, was indicted, tried and convicted for the seduction of Zora McGreger, under Code 1892, § 1298, and appealed to the supreme court. The opinion states the case.

Reversed and remanded.

Mitchell & Mitchell, for appellant.

The court below should have granted a continuance. The indictment was filed on the 11th of December, and the trial began on the morning of the 12th. This was too short a time to obtain the presence of the witness Swain, a most important witness for the accused. A temporary absence of the witness from his home only a few hours doubtless caused a return of "not found" on the compulsory process. There was reasonable ground for believing that this witness could be secured at a subsequent term of the court, hence the application for a continuance should have been granted. 3 Am. & Eng. Enc. Law 809.

J. N. Flowers, assistant attorney general, for appellee.

There are no facts in the record upon which this court could base a reversal. There is no way to tell whether the trial judge did right or wrong. No proof was taken, or if there was, the record does not show it. It will be presumed that the witness Swain could never be had, since the facts he was expected to swear to would force any man to leave.

The trial judge was acquainted with the situation, and with the parties, and this court will presume that he acted correctly.

Argued orally by John H. Mitchell, for appellant, and by J. N. Flowers, assistant attorney general, for appellee.

OPINION

PRICE, J.

On December 11, 1902, the grand jury of Pontotoc county returned an indictment against appellant for seduction. At two o'clock on the same day the defendant was arraigned, and the state announced, "Ready for trial." The defendant was not ready for trial, but made an application for a continuance on account of an absent witness, Jim Hitchcock.

Defendant's application for continuance:

"State of Mississippi, Pontotoc county. Circuit court, December term, 1902. State v. Christopher Foshee. Personall appeared before me, R. B. Patterson, clerk of the circuit court of said county and state, Christopher Foshee, the defendant in the above cause, who, being first by me duly sworn, on oath says that he cannot safely go to trial at this term of the court on account of the absence of the witness James Hitchcock, who was duly subpoenaed for defendant in this case. Defendant expects to prove by said witness that the woman, Zora McGreger, whom defendant is alleged to have seduced, told said witness, after the alleged seduction happened, that the defendant was not at all to blame in the matter with which he is charged in this case, and that the defendant had not done to her any more than other boys had done before. Defendant states that he knows of no other witness by which these facts can be proved; that said matter is very material and important; that said witness is within the jurisdiction of this court, and has been present in court during every day of this term until the present; that said witness is not absent by the consent or procurement of said defendant; that this affidavit is not made for the purpose of delay, but in order that justice may be done. Christopher Fooshee.

"Sworn to and subscribed before me this 11th day of December, 1902. R. B. Patterson, Clerk."

Indorsed: "Filed December 11th, 1902. R. B. Patterson, Clerk."

The application was overruled, and the case set for trial at 8.30 the following morning. When the case was called for trial December 12th the absent witness, Hitchcock, had appeared; but the defendant made the following application for a continuance, by way of amending his original application, and on account of the absence of Benjamin Swain:

"Case called Friday morning, December 12, 1902, at 8.30 o'clock. The witness, Hitchcock, was present, and here counsel for the defendant asked to amend their motion for a continuance on account of a witness (Benjamin Swain) being absent, and he is a very material witness for the defendant and the defendant wishes to prove some important facts by the witness, the said Benjamin Swain, and counsel for defendant believes that this witness can be had at the next term of this court.

"Amendment to affidavit for continuance.--Defendant expects to prove by this witness, Benjamin Swain, that said witness had sexual intercourse with Zora McGreger prior to the time that she alleges that the defendant seduced her; that de...