Hill v. State

CourtUnited States State Supreme Court of Mississippi
Citation17 So. 375,72 Miss. 527
Decision Date29 April 1895
PartiesJIM HILL v. THE STATE

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

Appellant was convicted of murder, and appeals from a judgment Condemning him to be hanged. The indictment contains two counts, the first charging him with the murder of one Adeline Cutchen, and the second charging him, at the same time and place, with having assaulted Adeline Cutchen with a deadly weapon, to wit, a pistol, and, with malice aforethought attempted to discharge the same at her with intent to kill and murder her. The facts touching the only question passed upon by the court are stated in the opinion.

Reversed and remanded.

E. N Thomas, for appellant.

It was error to refuse a continuance. It is a dangerous exercise of judicial discretion to refuse a continuance or postponement of a trial where the affidavit alleges material facts, and where all diligence has been shown by the applicant. Long v. State, 52 Miss. 23. It is true the testimony of the absent witnesses would have been, in a measure, cumulative to the testimony of Josephine Baker, but our court has never held that a continuance would not be granted simply because the testimony of the absent witnesses was cumulative. In all the reported cases where the court has refused to reverse because of the refusal of the court below to grant a continuance, where the evidence was cumulative, the defendant has had several other witnesses by whom he could establish the facts desired to be proved. The defendant in this case occupies no such favorable position; he had only one witness, and that witness a relative. The application shows that defendant and his attorney have been guilty of no laches; they have had no opportunity of compulsory process. The defendant was confined in jail, penniless, friendless, without means to find competent witnesses. He had a right to rely on the officers to discharge their duties faithfully and properly. The very fact that there is a strong disposition not to believe the defense of an alibi, made it the more important that these witnesses should have been present. Indeed, the indictment charged two separate offenses, and the verdict was that the defendant was guilty as charged. Of which offense was. he convicted? Under the one count the penalty is death; under the other, merely imprisonment. This would be bad pleading even in civil practice, and it is especially bad in this case, where a general verdict against the defendant would result in hanging, although the jury might have intended to convict on the lesser offense.

Frank Johnston, attorney-general, for the state.

The application for the continuance is deficient in not setting forth what the absent witnesses would testify to, except Mary Jane Baker, and she was expected to testify to the alibi; but two other witnesses, Josephine Baker and Thad. Carlisle, had testified in support of the alibi. The testimony of the absent witnesses would have been merely cumulative. Refusal to grant a continuance in such a case has been sustained so often that it is unnecessary to cite authorities.

The indictment is not bad, on its face, in charging murder and the lesser offense, both being charged on the same day. Counsel for appellant, in his brief, presents no argument in support of the demurrer to the indictment, and cites no authorities in support of the proposition that the indictment is bad on this ground. Section 974, code 1892, provides that no conviction can be had for an attempt to commit a crime when the crime itself has been committed. This statute, however, does not supply a rule of pleading, nor forbid two distinct felonies from being joined in the same indictment. Sarah v. State, 28 Miss. 267. The court may quash the indictment if the joining of the two offenses would embarrass the prisoner, but this is not ground for a reversal. Sarah's Case, supra; Wash v. State, 14 Smed. & M., 120; George v. State, 39 Miss. 570; 1 Wharton's. Crim. L., 149 to 153.

There was no motion made to require the state to elect under which count to proceed, nor was the verdict objected to in the court below because it did not appear which count it was based upon. The rule is that where a general verdict is rendered, the general verdict is based on the count which charges the highest grade of offense. 7 Md. 135; 1 Ohio (St.), 427; 1 Blackf., 317; 42 Me. 384.

OPINION

WOODS, J.

The application for a continuance was based upon the absence of eight witnesses by whom the prisoner expected to make out his defense of an alibi. It showed that Mary Jane Baker, one of the absent witnesses, had been in attendance as a witness at the preceding term of the court, and that she had then been put under recognizance to again appear at the then term of the court, but that she was unable to be present because of illness in childbirth. From the sworn application it further appeared that Richard Baker, another of the absent witnesses, had been duly subpoenaed to attend. Both witnesses just named lived in Yazoo county. For Jennie Lenord, a third absent witness, a subpoena had been issued and placed in the hands of the sheriff of the county of the venue, Washington, and had been by that officer returned "not executed," because of failure to find the person after diligent search, although, as appears from the application to continue, this witness was at her home at R. E. Walne's, in that county, the day before the application was made.

Beside these three persons, it appears from the application, there were absent five other witnesses, all of whom resided in still another county, to wit, Holmes, and that, for these, five subpoenas had been issued, under the direction of the prisoner's counsel, on December 24--twenty days previously--and the clerk of the court instructed to send the process, for execution, to the sheriff of Holmes county, where these five witnesses lived, but that the clerk had directed the process to the sheriff of Washington county. By this sheriff of Washington county, on January 2, this process was returned not executed, because the parties could not be found in his county, and thereafter another subpoena for these five witnesses was issued to Holmes county, but this process had not been returned at the time of presenting the application for the continuance. The application contains the usual formal and necessary features, and makes this averment: "He says he has no witness present by whom he can so well prove the above facts (i. e., that he was not in Washington county or near the scene of the homicide when the crime was committed, and that he did not and could not have done the killing), and that he cannot make the same proof by any other witnesses."

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35 cases
  • Walker v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 24 Julio 1985
    ...toward conviction. District attorneys would do well to heed the words written by Justice Thomas H. Woods in Hill v. State, 72 Miss. 527, 534-35, 17 So. 375, 377 (1895): The fair way is the safe way, and the safe way is the best way in every criminal prosecution. The history of criminal juri......
  • Flowers v. State, 1999-DP-01369-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 3 Abril 2003
    ...convictions would be succeeded by few or no reversals. Johnson v. State, 476 So.2d 1195, 1215 (Miss.1985) (citing Hill v. State, 72 Miss. 527, 534, 17 So. 375, 377 (1895)). ¶ 106. Notwithstanding the State's position that the fact that this was a circumstantial evidence case required the pr......
  • Johnson v. State, 55937
    • United States
    • United States State Supreme Court of Mississippi
    • 25 Septiembre 1985
    ...would be secured as many convictions of the guilty, and such convictions would be succeeded by few or no reversals. Hill v. State, 72 Miss. 527, 534, 17 So. 375, 377 (1895). While we are of the opinion that the foregoing discussion sets forth the better rule, we are not unmindful of the lin......
  • Stringer v. State, 55607
    • United States
    • United States State Supreme Court of Mississippi
    • 3 Septiembre 1986
    ...would be secured as many convictions of the guilty, and such convictions would be succeeded by few or no reversals. Hill v. State, 72 Miss. 527, 534-5, 17 So. 375, 377 (1895). On November 28, 1983, Jimbo was tried for the murder of Mr. Ray McWilliams. He was convicted of that murder and rec......
  • Request a trial to view additional results

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