Henderson v. State

• Decision Date: 11 December 1939
• Docket Number: 33930
• Citation: 187 Miss. 166,192 So. 495
• Court: Mississippi Supreme Court
• Parties: HENDERSON v. STATE

192 So. 495

187 Miss. 166

HENDERSON v. STATE

No. 33930

Supreme Court of Mississippi, Division B

December 11, 1939

APPEAL from the circuit court of Panola county HON. JNO. M KUYKENDALL, Judge.

Quincie Henderson was convicted of grand larceny, and he appeals. Affirmed.

Judgment affirmed.

Lee T Woodruff, of Batesville, for appellant.

It is the contention of the appellant that he was entitled to a continuance of the trial of his case in the lower court by reason of the fact that one of the material witnesses, Cicero Brassell, was sick and was unable to appear and testify in court. The appellant used all due diligence in an effort to bring the witnesses into court and duly presented his written affidavit for continuance, setting out the facts that would be testified to by the witness if he were present in court.

The appellant submits that he was prejudiced by failure of the trial court to sustain his motion for continuance and that as a result thereof he received a great injustice.

Walker v. State, 129 Miss. 449, Scott v. State, 80 Miss 197; Johnson v. State, 111 Miss. 828; Long v. State, 52 Miss. 23; Hattox v. State, 80 Miss. 186; Woodward v. State, 89 Miss. 348; Hill v. State, 72 Miss. 527; Havens v. State, 75 Miss. 488; Scott v. State, 80 Miss. 197; Whit v. State, 85 Miss. 208; State v. Boll, 51 So. 275; Knox v. State, 52 So. 695.

Under the English common law a person could not be convicted upon the uncorrobated testimony of an accomplice but it is true now that a person may be convicted upon the uncorroborated testimony of an accomplice, however, such testimony should be viewed with great caution and suspicion. The conviction in this case rests solely upon the uncorroborated testimony of Roosevelt Cathey, an accomplice who was contradicted and impeached in practically every manner known to the law. He is himself a confessed thief and at the time of the giving of his testimony he had entered a plea of "guilty" to the same crime charged against the appellant and was then awaiting sentence and hoping that if his testimony be strong enough against the appellant that he would be rewarded for his false testimony by receiving a light sentence for his admitted crime. The witness, Roosevelt Cathey, had freely and voluntarily absolved the appellant of any connection with this alleged crime and had freely and openly stated that he alone committed the crime charged and then at a later date after he was released from jail on an appearance bond claimed that the appellant had assisted him in committing the crime. In this case the testimony of the witness, Roosevelt Cathey, is so weak and so unreasonable that it cannot be believed by a reasonable mind and it should be rejected as amounting to no substantial evidence of guilt.

White v. State, 146 Miss. 815; Hunter et al. v. State, 102 So. 282; Sykes v. State, 89 Miss. 766, 92 Miss. 247.

The appellant submits that the rules set down beginning with Keithler v. State, 10 S. & M. 192, on down to the present date, when applied to the facts in the case at bar, will not allow the conviction of the appellant to stand.

Wright v. State, 130 Miss. 603; Abele v. State, 138 Miss. 772; Matthews v. State, 148 Miss. 697; Dill v. State, 38. So. 37; Wilson v. State, 71 Miss. 884; Fitzcox v. State, 52 Miss. 926; Keithler v. State, 10 S. & M. 192; Creed v. State, 176 So. 597; Day v. State, 7 So. 326; Boutwell v. State, 165 Miss. 16; Harmon v. State, 167 Miss. 527; Rutledge v. State, 171 Miss. 311; Carter v. State, 166 So. 377.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

It was not an abuse of discretion for the trial court to deny the application for continuance where the facts to be testified about by the absent witnesses were otherwise established, or could have been established by the testimony of two witnesses who were available and the testimony of the absent witness would have been merely cumulative of such facts.

Moore v. State, 144 Miss. 649, 110 So. 216; Lambert v. State, 171 Miss. 474, 158 So. 139; Woods v. State, 183 Miss. 135, 183 So. 508.

The uncorroborated testimony of the alleged accomplice was not of such character as that the court would be justified in saying that it was utterly unworthy of belief and insufficient, of itself, to sustain the verdict.

Boutwell v. State, 165 Miss. 16, 143 So. 479; Matthews v. State, 148 Miss. 696, 114 So. 816; Gates v. State, 160 Miss. 479, 135 So. 189; Hunter v. State, 137 Miss. 276, 102 So. 282; Abele v. State, 138 Miss. 772, 103 So. 370; White v. State, 146 Miss. 815, 112 So. 27; Harmon v. State, 167 Miss. 527, 142 So. 473; Creed v. State (Miss.), 176 So. 596.

OPINION

Ethridge, P. J.

This is an appeal from the Circuit Court of the 2nd Judicial District of Panola County, Mississippi, wherein the appellant was indicted, tried, and convicted of grand larceny, and sentenced to a term of four years in the state penitentiary.

The appellant made a motion for a continuance on the ground of absent witness who was sick at the time the case was called for trial, and whose testimony was set forth in a motion for a continuance and supported by proof of the illness of the absent witness. The application for a continuance was overruled, and the overruling of the continuance is assigned as error.

The principal evidence against the appellant was given by Roosevelt Cathey, an ignorant Negro man, who testified that he and the appellant stole three head of cattle described in the indictment. There was ample proof that the cattle were stolen, as well as the value of the cattle. The accused introduced evidence that when the theft was being investigated, Cathey made a statement contrary to his testimony given at the trial. When first approached by the owners of the missing cattle, Henderson, the appellant stated that he had hauled the cattle to Memphis for Hoosevelt Cathey. Later, at the trial, he testified that he had bought the cattle from Roosevelt Cathey. Two of the witnesses produced for the appellant testified that during the day preceding the night in which the cattle were stolen, he had worked all day some five or six miles from the place where the cattle were stolen. The prosecuting witness, Roosevelt Cathey, testified that the cattle were stolen early in the evening of the day in which these other witnesses worked with the appellant. Two witnesses testified that on the following morning after they had worked with the appellant that they saw Cathey leading one of the cattle toward his home, and that Cathey stated to them that he had bought the cow for $ 11 from a party who lived near his father-in-law several miles away. The appellant testified, and introduced a witness who...