Hattox v. State

• Decision Date: 24 March 1902
• Citation: 31 So. 579,80 Miss. 186
• Court: Mississippi Supreme Court
• Parties: HARDY HATTOX v. STATE OF MISSISSIPPI

31 So. 579

80 Miss. 186

HARDY HATTOX v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 24, 1902

March 1902

FROM the circuit court of Lafayette county. HON. PERRIN H. LOWREY Judge.

Hattox appellant, was defendant in the court below; he was tried and convicted of crime, assault and battery with intent to kill and murder, and appealed to the supreme court.

The facts are stated in the opinion of the court.

Reversed and remanded.

W. V. Sullivan, for appellant.

If it be said that a motion for a continuance or postponement should have been made in writing, setting out the facts to which the witness would testify, and the reason why subpoena was not sooner issued, we call attention to the fact that this very privilege was asked and flatly refused by the court; the judge contenting himself with the statement that he, the court, "would not delay the matter in order to give time to prepare any application for continuance on this account," referring to the absence of the material witness whose testimony would have established defendant's innocence, and who was in the county, but simply "dodging," as the officer supposed, without further ado, requiring defendant then and there to immediately go upon trial, resulting in a verdict of guilty, and a sentence of five years in the penitentiary. This was not a fair and impartial trial, such as the law of the land guarantees to every one.

W. L. Easterling, assistant Attorney-General, for appellee.

The record shows that the defendant was indicted at the September term, 1900, and the case was called for trial one year afterward, at the September term, 1901. Counsel for defendant asked the court to have the case passed in order to allow the defendant further time to bring a witness into court, which witness had not been served with process, and no subpoena had been even asked for him until the then present term of court. The court refused to pass the case. Counsel for defendant then stated that he wished to make application for continuance on account of the absence of said witness. The court offered to hear any application, but would not delay the case for counsel to write out the application for a continuance on such grounds as had been stated. The return of the officer on the subpoena for the witness showed that the witness was "not found." The showing made by defendant did not entitle him to either a postponement or a continuance. Furthermore, it does not appear in the whole record how the absent witness, George Dean,...