Gradsky v. State, 42093
| Court | United States State Supreme Court of Mississippi |
| Citation | 243 Miss. 379,137 So.2d 820 |
| Docket Number | No. 42093,42093 |
| Parties | Norman GRADSKY v. STATE of Mississippi. |
| Decision Date | 12 February 1962 |
Page 820
v.
STATE of Mississippi.
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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