Funderburk v. State
| Decision Date | 18 January 1954 |
| Docket Number | No. 38867,38867 |
| Citation | 42 A.L.R.2d 1221,69 So.2d 496,219 Miss. 596 |
| Parties | , 42 A.L.R.2d 1221 FUNDERBURK v. STATE. |
| Court | Mississippi Supreme Court |
Claude F. Clayton, Tupelo, W. M. O'Barr, Jr., Okolona, C. H. McCraine, Jr., Houston, for appellant.
J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.
The appellant, Leonard Funderburk, and his father, Henry Funderburk, were jointly indicted on a charge of assault with intent to kill and murder Doyle Vance, Mrs. Juanita Vance, Dwight Vance and Henry Vance. The indictment was returned by the grand jury in the Circuit Court of the First Judicial District of Chickasaw County at the April 1952 term of the court. A change of venue was granted and the case was transferred to Calhoun County for trial.
When the case was called at the September term of court in Calhoun County, a severance was granted and on the second day of the term the case against the appellant was called, and the State announced ready for trial. The appellant asked for a continuance on account of the absence of his co-indictee, Henry Funderburk, who, it was alleged, was a material witness in the case and was expected to testify on behalf of the appellant. The court passed the case until the following morning. The appellant then filed a formal motion for a continuance on account of the absence of his co-indictee, Henry Funderburk, and the appellant asked that a subpoena be issued for him returnable instanter. The court refused to grant a continuance but passed the case until the following day, and ordered that an alias capias be issued for the arrest of Henry Funderburk.
When the case was again called on the following day, the appellant filed an amended motion for a continuance; and in his amend motion alleged that the said Henry Funderburk was under bond to appear at that term of the court to answer the charge alleged against him in the indictment, and that the appellant had expected that he would be present in court without the issuance of other process, and that he would testify as a witness for the appellant. The appellant also alleged in his motion that he was informed and believed that, if the said Henry Funderburk were present, he would testify that on the night of the shooting he and the appellant had driven to the home of a Negro whom they expected to employ to assist them in certain logging operations which they were about to undertake, and that as they were proceeding along the road in front of the Vance home the members of the Vance family opened fire on the automobile in which they were traveling and continued to fire at the automobile until they hit the same with a number of shots; that the appellant at that time was not armed; and that the appellant did nothing whatever to harm any member of the Vance family. The appellant stated in his motion that he could not prove the above stated facts by the testimony of any other witness.
The court overruled the amended motion for a continuance, and set the case for call again on Saturday, September 27. On that day the appellant presented another motion for a continuance, and the court overruled the same. The court then set the case for trial at 9:00 o'clock Wednesday morning, October 1. When the case was called for trial at that time, the appellant again filed a motion for a continuance, which was in substance the same as the motion filed on the preceding Saturday. The motion was overruled. The appellant then asked that the trial be postponed until he could have a doctor examine his mother for the purpose of determining whether she was able to appear and testify as a witness during the trial. This request was denied, and a jury was empaneled for the trial of the case.
The State's proof was substantially as follows:
Mrs. Juanita Vance testified that she was the wife of Doyle Vance, and that she and her husband and their two children lived about eleven miles northwest of the Town of Houston in Chickasaw County, and that the appellant, Leonard Funderburk, lived about a mile and a half from their home; that the Doyle Vance house was located on the west side of the road and about twenty feet from the road; that Henry Vance, the father of Doyle Vance lived in his own home, which was about 200 yards north of the Doyle Vance house, and on the east side of the road; and that Farris Vance and his wife lived about 100 yards north of Henry Vance's house. The witness stated that on the night of December 10, 1951, the appellant and his father, Henry Funderburk, drove up in front of the Doyle Vance home in their automobile and stopped. Doyle Vance went out to the roadside and invited them in. Both men got out of the car, and Henry Funderburk began to curse and told Doyle Vance that he had heard that his daddy had taken out papers for him. Doyle stated that he knew nothing about the matter. Henry Funderburk then said, The conversation lasted about ten or fifteen minutes. Henry Funderburk said: 'I have as many guns and ammunition as anyone, and I have come to shoot it out and send everyone of you to hell.' Leonard Funderburk then said to his father, 'Come on and lets go down there.'
Mrs. Vance stated that the two men then got in their car and drove to Henry Vance's house, about 200 yards away. They got out of their car and went up to the house. The moon was shining brightly, and the porch light at Henry Vance's house was burning. The two men stayed there a few minutes, and then went back to their car. They got in the car and drove to Farris Vance's house, turned around and came back. As they approached Henry Vance's house, they fired one shot, and then a big shot was fired that sounded like a gun shot; and just before the car got to Doyle Vance's house, other shots were fired. One bullet crashed through the window of Doyle Vance's house near the point where Mrs. Vance and her son, Dwight, were standing. Mrs. Vance stated on cross-examination that the first shooting was the only part of the shooting that she saw. Henry Vance was at Doyle Vance's house when the shooting started, and as the Funderburk car passed in gront of Doyle Vance's house, Henry Vance and Doyle Vance fired back. Henry Vance had a shotgun and Doyle Vance an automatic rifle. The witness stated that the bullets that hit her house came from the car in the road. She admitted that she did not see any weapon in the hand of Leonard Funderburk, and she did not see Leonard Funderburk fire any of the shots.
Henry Vance testified that he was at Ferris Vance's house when Leonard Funderburk and Henry Funderburk drove up and stopped in front of Doyle Vance's house. When he saw them stop in front of Doyle's house, he went over to his own house and got a shotgun, which was already loaded with slugs, and then crossed the road and went over to Doyle's house. He watched the Funderburks get in their car and drive down the road. He was then standing on the back porch of Doyle's house. The lights were burning in Farris Vance's house. He saw the Funderburk car turn around at Farris Vance's house and come back toward Doyle's house. When the car got about even with his own house, the occupants of the car started the shooting. When they got close to Doyle's house they began shooting again. After the Funderburk car passed the south end of Doyle Vance's house, the witness stated that he fired three shots, and Doyle Vance fired two or three shots about the same time. Several shots had been fired from the car in the road before he fired, and other shots were fired after he and Doyle had fired. Doyle had a 22 rifle. The witness stated that he did not see any weapon in the hands of either Leonard Funderburk or Henry Funderburk, and did not know who did the shooting.
Hal Jolly, who was sheriff of Chickasaw County at the time of the shooting, testified that he received information concerning the shooting soon after the shooting occurred; that he drove to the Town of Houston and arrived there about 10:00 o'clock; that he got his two deputies and proceeded immediately to the neighborhood where the Vances lived in search of Henry and Leonard Funderburk. He found them at Buddy Taylor's house, a short distance south of Doyle Vance's house. He met Henry Funderburk on the porch. Henry had a sawed-off shotgun in his hand, which was loaded with buckshot. The sheriff arrested him and took the shotgun away from him. He also arrested Leonard Funderburk. He found a knife and a 25 automatic pistol in the Funderburk car. Both of the Funderburks were drinking. He searched Henry Funderburk and found a half pint of whiskey and a knife on him. He examined the automobile after he had arrested the Funderburks and found that it had a number of bullet holes in it; and he found a pistol and an empty whiskey bottle in the car.
The appellant offered no witnesses to testify in his own behalf and did not testify himself.
The case was submitted to the jury on the testimony of the State's witnesses and the instructions of the court; and the jury returned a verdict finding the appellant guilty as charged. The appellant was sentenced to the state penitentiary for a term of four years. From that judgment the appellant prosecutes this appeal.
The first point argued by the appellant as ground for reversal on this appeal is that the court erred in refusing to grant the appellant's application for a continuance until the next term of the court in order that the appellant might procure the attendance of Henry Funderburk as a witness to testify for him. The appellent contends that Henry Funderburk was the only witness by whom the facts set out in his motion for a continuance could be proved, and that the action of the court in overruling his motion for a continuance constituted reversible error.
But this Court has held in many cases that the matter of granting a continuance is largely discretionary with the trial court, and that a...
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Tann v. State
...judge did not abuse his discretion by not granting a postponement when the absent witness was a co-defendant. In Funderburk v. State, 219 Miss. 596, 69 So.2d 496 (1954) the defendant asked for a continuance because of the absence of a witness who was a co-defendant. In that case, the co-def......
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Poole v. State, 40204
...continuance unless it appears that he has clearly abused his discretion in refusing to grant such continuance. Funderburk v. State, 219 Miss. 596, 69 So.2d 496, 42 A.L.R.2d 1221, and cases cited; Lee v. State, 220 Miss. 298, 70 So.2d 609. It is well-settled by our own decisions that in pass......