Hubbard v. State

• Decision Date: 14 February 1887
• Citation: 64 Miss. 315,1 So. 480
• Court: Mississippi Supreme Court
• Parties: EUGENE HUBBARD v. THE STATE

1 So. 480

64 Miss. 315

EUGENE HUBBARD v. THE STATE

Supreme Court of Mississippi

February 14, 1887

APPEAL from the Circuit Court of Panola County, HON. A. T. ROANE Judge.

The case is stated in the opinion of the court.

Judgment reversed and cause remanded.

Standifer & Stone, for the appellant.

The action of the court was erroneous in permitting the district attorney to propound interrogatories to the accused concerning his application for continuance. It may, however be conceded, for argument's sake, that the court only wished to elicit the one fact, whether or not the accused could prove the contents of his affidavit by any other witness. Then, when this fact was ascertained, the court should have interfered, and not permitted the district attorney to proceed any further in examining the defendant.

Certainly the action of the court was fatally erroneous in compelling L. C. Standifer (of counsel for defendant), at the request of the State, to state to the jury what appellant had previously said to the district attorney in response to the interrogatories of the district attorney concerning appellant's application for continuance.

Even conceding that the district attorney had the right to so interrogate appellant about his application for continuance he should not be allowed to use such statements for any other purpose than the one for which he had been permitted to interrogate appellant. The answers of the accused under such circumstances, time, and place can never be used against him on his trial.

T. M. Miller, Attorney General, for the State.

In the absence of defendant's affidavit it is impossible to predicate anything concerning it. But in no view can this court consider an objection to testimony upon the admission of which the court was not asked to rule, and did not rule.

The attention of the presiding judge does not appear to have been called to the circumstance of the examination of counsel for the accused, and no ruling by the court was asked thereon. I do not understand that a question may be raised for consideration by an appellate court in that manner The exception was only taken to what the two lawyers did, without regard to what the court did or might have done.

If this view be discarded as narrow and technical, still it does not appear what reason was assigned, or could have been assigned, for the exclusion of the question and answer.

I submit there is no error.

OPINION

ARNOLD, J.

Appellant was convicted of arson, and sentenced to ten years' imprisonment in the penitentiary. He made application for continuance in the court below, on the ground of the absence of a witness by whom he expected to prove certain facts material to his defense. The district attorney objected to the continuance. Thereupon appellant presented his affidavit setting out the facts which he expected to prove by the absent witness, and said he would go to trial if the district attorney would admit that the absent witness, if present, would swear to the facts contained in the affidavit. The district attorney then interrogated appellant as to whether or not he could prove the same...