Gradsky v. State, 42093

CourtUnited States State Supreme Court of Mississippi
Citation243 Miss. 379,137 So.2d 820
Docket NumberNo. 42093,42093
PartiesNorman GRADSKY v. STATE of Mississippi.
Decision Date12 February 1962

Page 820

137 So.2d 820
243 Miss. 379
STATE of Mississippi.
No. 42093.
Supreme Court of Mississippi.
Feb. 12, 1962.

Page 821

[243 Miss. 380] Barnett, Montgomery, McClintock & Cunningham, Gore & Gore, Creekmore & Beacham, Jackson, for appellant.

[243 Miss. 382] Joe T. Patterson, Atty. Gen., by J. R. Griffin, Asst. Atty. Gen., for appellee.

[243 Miss. 384] RODGERS, Justice.

The appellant Norman Gradsky was indicted, convicted and sentenced to a term in the State Penitentiary upon a charge of having embezzled a deepfreeze from Insured Savings & Loan Association, Inc. After a careful examination of the record we have come to the conclusion that this case must be reversed for the following reasons:

First. Sec. 26, Miss. Constitution 1890, guarantees that 'In all criminal prosecutions the accused shall have a right * * * to have compulsory process for obtaining witnesses in his favor * * *', and this means, he may have his attorney, as well as other witnesses, summoned to give evidence in his favor, when his attorney has evidence vital to his defense. Moreover, accused cannot be denied this right on the ground that it may embarrass the attorney or violate etiquette of the court. Adams v. State, 202 Miss. 68, 30 So.2d 593, is not adverse to the holding in this case. We have pointed out in the case of Brooks v. State, 209 Miss. 150, 46 So.2d 94, that 'Constitutional rights in serious criminal cases rise above mere rules of procedure.' The court may admonish an attorney when it appears that he knew in advance that he would be called upon to testify in a case, for taking active part in the trial of a case, but the court cannot refuse an accused the right to introduce competent evidence in his favor because it may appear that an attorney has violated an ethical rule. Miller v. Urban, 123 Conn.

Page 822

331, 195 A. 193, 118 A.L.R. 951-954; 58 Am.Jur. 110, Witnesses, Sec. 152.

The refusal to permit defendant the right to introduce his attorney as a witness when he had vital evidence in favor of the defendant was reversible error.

Second. Conversion is one of the essential elements under the charge of embezzlement laid in the indictment[243 Miss. 385] in this case. Bell v. State, 110 Miss. 430, 70 So. 456. The State had the burden of proving that the property rightfully came into the possession of the defendant Norman Gradsky by virtue of his office as president of the corporation and that thereafter he feloniously converted the...

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16 cases
  • Gray v. State
    • United States
    • United States State Supreme Court of Mississippi
    • June 5, 1985
    ...deprive him of due process of law. See United States v. Wilson, 732 F.2d 404, 412 (5th Cir.1984). Gray's reliance on Gradsky v. State, 243 Miss. 379, 137 So.2d 820 (1962), is misplaced. In that case we held that a defendant may summon his own attorney to give evidence vital to his defense, ......
  • Evans v. State, 53754
    • United States
    • United States State Supreme Court of Mississippi
    • November 30, 1983
    ...above mere rules of procedure. 209 Miss. at 155, 46 So.2d at 97. This principle was restated with approval in Gradsky v. State, 243 Miss. 379, 384, 137 So.2d 820, 821 (1962). Its current vitality is attested by the Court's recent decisions in Read v. State, 430 So.2d 832, 837 (Miss.1983); a......
  • West v. State
    • United States
    • United States State Supreme Court of Mississippi
    • January 13, 1988
    ...rights of defendants are involved, we refer to the decisions and to the codes of professional responsibility. In Gradsky v. State, 243 Miss. 379, 137 So.2d 820 (1962), this Court held that in criminal prosecutions the accused may call his attorney as a witness where the attorney has evidenc......
  • Kinchen v. Layton, 54369
    • United States
    • United States State Supreme Court of Mississippi
    • September 26, 1984
    ...... made or the privately created variety--the Laytons may use their property as they see fit, for it is the past and present public policy of this state" that.         \"ordinarily that miniscule portion of this planet's soil as a person owns may be put to such use as that person desires.\".   \xC2"......
  • Request a trial to view additional results

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