Hill v. State

• Decision Date: 04 March 1929
• Docket Number: 27631
• Citation: 152 Miss. 708,120 So. 817
• Court: Mississippi Supreme Court
• Parties: HILL v. STATE. [*]

120 So. 817

152 Miss. 708

HILL v. STATE. ^[*]

No. 27631

Supreme Court of Mississippi

March 4, 1929

Division B

1. CRIMINAL LAW. Law relating to cross-examination on application for continuance is not applicable to criminal cases (Hemingway's Code 1927, sections 581, 1319).

Section 581, Hemingway's 1927, Code (section 784, Code of 1906) is not applicable to criminal cases, but applies alone to civil cases. Section 1319, Hemingway's 1927 Code (section 1498, Code of 1906), under the chapter on criminal procedure governs the continuance of criminal cases.

2. CRIMINAL LAW. Permitting district attorney to examine defendant over objection on application for continuance was erroneous; defendant, applying for continuance, has right to stand on application (Hemingway's Code 1927, section 1319; Constitution 1890, section 26).

It is error to permit a district attorney to examine a defendant in a criminal case, over the defendant's objection, on an application for a continuance. The defendant has a right to stand upon the application. Hubbard v. State, 64 Miss. 315, 1 So. 480.

3. CRIMINAL LAW. Cross-examination of defendant on motion for continuance held, under circumstances, harmless error (Hemingway's Code 1927, section 1319; Constitution 1890 section 26). Where it appears that the motion for a continuance was insufficient, apart from such examination, for failure to comply with the requirements of the law for continuances, and that the examination of the defendant was not prejudicial to her trial, and where it appears that she voluntarily testified as a witness in her own behalf on the merits, the examination on the motion for a continuance is not reversible error.

HON. G. E. WILSO, Judge.

APPEAL from circuit court of Rankin county, HON. G. E. WILSON, Judge.

Geneva Hill was convicted of homicide, and she appeals. Affirmed.

Judgment affirmed.

W. E. McIntyre and J. C. Murray, for appellants.

Appellant's motion for a continuance, duly sworn to, was filed under sec. 567, Hem. Code 1917. On the hearing of the motion the district attorney called the appellant, Geneva Hill, as a witness, and caused her to testify over her protest and against the advice of her attorneys. Under sec. 26 of the Constitution of Mississippi, and art. 5 of the Constitution of the United States, relative to trials and criminal prosecutions, it is expressly said with reference to defendants, "and he shall not be compelled to give evidence against himself." To permit such a procedure as that resorted to by the district attorney, in this case, would be depriving appellant of her constitutional rights.

After the defendant's witnesses had all been called and testified, no one of the said witnesses had testified to the facts set up in the appellant's motion for a continuance. This motion stated that the absent witness, Dora Morrow, was with the deceased, Willie Clemons, on the night of the alleged killing, and that during the said night and immediately prior to the killing, the said Willie Clemons had openly made threats against the life and person of the appellant. The appellant exercised all necessary and due diligence to secure the presence of the witness, Dora Morrow. Accepting the testimony of the state as taken on the motion for a continuance as true, the witness Dora Morrow was probably in the state of Alabama. Even though she were without the state of Mississippi, it was error not to grant her a continuance in view of the statements made in her affidavit for a continuance. In Knox v. State, 97 Miss. 527, the court said: "While the court will not ordinarily interfere with the discretion of the trial court in refusing to grant an application for a continuance because of the absence of a witness, when it appears that the witness is beyond the jurisdiction of the court, yet there are times when the trial court should allow a continuance, even when it appears that the absent witness cannot be reached with process at the time the application is made." See 16 C. J. 452.

Even the trial judge in overruling the motion for a continuance filed in this case did so with great hesitancy. The appellant was deprived of the only witness by whom her defense would have been established. She was entitled to the presence of the witness Dora Morrow, and certainly no harm could have been done the state by delaying this case for a sufficient time to enable her to procure the presence of the witness.

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

Counsel say that sec. 581, Hem. Code 1927, authorizing the examination of the party making the affidavit with a view of contradicting the allegations in the motion, is applicable only to civil cases and cannot be applied to criminal cases such as this. The court will observe that the statute expressly provides that it shall be applicable to "all applications for a continuance." The defendant herself when making her application for a continuance made it under the provisions of this statute. By their argument counsel blow both hot and cold, first saying that they make their application for a continuance under this statute, although they have a criminal case, and, in the next breath, they say that because this is a criminal case, the provisions of the statutes are not applicable.

The application for the continuance alleges that the absent witness and her parents reside in the town of Pelahatchie Rankin county, but that she was temporarily absent so the process could not be served upon her. Testimony was taken on the motion which shows that the witness had not been in Pelahatchie since shortly after the homicide occurred in the month of May; that she had gone to Birmingham, Alabama, where she had married, and that there was nothing to show that she would ever be in the state of Mississippi so as to be subject to the process of the court. Nor was there anything to show that she had expressed a willingness to testify in the case.

In Skates v. State, 64 Miss. 644, 1 So. 943, the defendant moved for a continuance because of the absence from the state of a certain material witness, the application alleging that some of the family of the witness lived in the state, and that defendant had written the proposed witness a letter offering to pay his expenses if he would return and testify. The court there held that since it was not shown that the witness had expressed an intention to return to the state so as to be subject to its process, and since it was not shown that there was any reasonable expectation that he would ever return to be in attendance upon the court, there was no error committed in overruling the application for the continuance. In this case the defendant made no effort whatsoever to show that the witness could be had at any later time, or that she would ever return to testify in the case. Absolutely no effort was made to have these witnesses present to testify to these facts. Even the defendant herself while on the stand did not show that she had any reason to believe that this witness would ever be subject to the process of the court so that she could be compelled to appear on the trial.

Our court in numerous cases has held that it is necessary for the defendant to be diligent in every possible way so that the presence of the absent witness, or his affidavit, might be had before the court at some time during the trial of the cause, or on a motion for a new trial. In this case when the motion for the new trial was made, the defendant made no showing that it was then impossible to secure the presence of the witness, or her affidavit. Lamar v. State, 63 Miss. 265; Ware v. State, 138 Miss. 837, 98 So. 229; Cox v. State, 138 Miss. 370, 103 So. 129; Everett v. State, 147 Miss. 570, 113 So. 186; Osborn v. State 146 Miss. 718, 111 So. 834.

OPINION

ETHRIDGE, P.J.

Geneva Hill was indicted at a special term of the circuit court of Rankin county for the murder of Willie Clemons, alleged to have occurred in May, 1928. The indictment was returned and filed September 12, 1928, and the defendant was arraigned on the 14th day of September 1928, and filed a motion on September 17th, for a continuance of the case because of the absence of the witness Dora Morrow. It was alleged in the motion, supported by affidavit, that said witness was not absent because of the connivance or consent of the defendant, but that the defendant had used due diligence to procure the attendance of said witness, having had a subpoena issued and placed in the hands of the sheriff of Rankin county, commanding him to summon said witness, and that the defendant was advised the witness resided at Pelahatchie, in Rankin county, Mississippi, but that said witness was absent from Pelahatchie; that her parents resided at Pelahatchie; and that defendant expected to have said witness present at a later day of the term, or at the next term of court. She further alleged that she (defendant) had been absent several months, and had had no communication with the witness Dora Morrow, or any other person in said town; that this defendant was only indicted at the recent term of court, and since her arraignment has done everything in her power to make ready for trial; that if the said Dora Morrow were present she would swear as a witness in defendant's behalf that said witness was present with the deceased, Willie Clemons, immediately preceding the shooting, and heard the deceased threaten the life of defendant, and that deceased was the assailant, and attacked defendant with a pocketknife, attempting to take the life of defendant, and that said witness would testify that defendant acted wholly and absolutely in self-defense; and that said Dora Morrow was the only person by whom she could establish these facts.

This application was overruled, and a second...