Giles v. State

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE, J.
• Citation: Giles v. State, 116 So. 887, 150 Miss. 756 (Miss. 1928)
• Decision Date: 07 May 1928
• Docket Number: 26960
• Parties: GILES v. STATE. [*]

116 So. 887

150 Miss. 756

GILES v. STATE. ^[*]

No. 26960

Supreme Court of Mississippi

May 7, 1928

Division B

1. CRIMINAL LAW. Supreme court will uphold trial court's judgment on fact questions involved in contract not in record.

In a prosecution for selling property upon which there is a lien without immediately settling the lien, where a contract is introduced in evidence showing the terms and conditions upon which the defendant could sell the property and such instrument is not copied into the record on appeal, the court will uphold the judgment on the questions of fact involved in such contract.

2. CRIMINAL LAW. Defendant, allowed reasonable time to procure other attorneys after attorney withdrew, cannot have continuance because he had just employed attorney; defendant allowed time to procure other attorneys after his attorney withdrew, must proceed with due diligence to prepare for trial.

Where defendant is arraigned and counsel appears for him and sets the case for a day certain, and afterwards withdraws from the defense, and reasonable time is allowed the defendant to procure other attorneys, he cannot secure a continuance on the ground that he has just employed an attorney. In such case, the defendant must proceed with due diligence to prepare for trial.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

R. D. Giles was convicted of selling property on which there was a lien, without the consent of the holder of the lien, and without immediately discharging the debt made, and he appeals. Affirmed.

Judgment affirmed.

D. W. Draughn, for appellant.

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

OPINION

ETHRIDGE, J.

The appellant was indicted for selling property upon which there was a lien, without the consent of the holder of the lien and without discharging the debt made immediately on disposing of the property.

On the trial, a contract between the appellant and the seller of the mules was introduced in evidence containing the terms of the agreement. This contract seems to have been lost--at least, it has not been made a part of the record. The appellant testified that he had the seller's authority to trade the property upon which the lien was given, while the holder of the notes and lien testified that he did not have such authority, whereupon the case was submitted to the jury and the appellant was convicted.

It is manifest that the instrument introduced in evidence before the jury would govern as to what the real contract was, and, in its absence from the record, we are unable to determine what the contents thereof were, and we are bound to presume in favor of the jury's verdict. Consequently, on the merits of the case, the appellant was legally convicted.

It appears that when the case was called for trial, the appellant's attorney moved the court for additional time in which to prepare the case on the ground that he had not had sufficient time to read the indictment and prepare for the trial. The court, in overruling this motion, stated that the appellant was indicted at the October term of the circuit court for selling property upon which there was a lien, without the consent of the holder of the lien, and without discharging the debt made on disposing of the property; that the week before the last preceding such date, when the defendant was arraigned and the case was set for trial, attorneys appeared for the defendant and asked the court to set the case for a certain day; that when the case was called on the day...