Jones v. State

• Decision Date: 05 February 1934
• Docket Number: 30887
• Citation: 168 Miss. 702,152 So. 479
• Court: Mississippi Supreme Court
• Parties: JONES v. STATE

152 So. 479

168 Miss. 702

JONES v. STATE

No. 30887

Supreme Court of Mississippi

February 5, 1934

Division B

1 COURTS. Indictment and information.

Decision that place of holding court had been lawfully designated was final and could not be collaterally attacked by motion to quash indictment because not returned at place legally designated for holding court (Code 1930, section 220).

2. CRIMINAL LAW.

Grant of continuance is largely in discretion of court, not subject to review unless discretion is abused.

3. CRIMINAL LAW.

Where defendant had been indicted at August term, 1932, and indictment was destroyed by fire, and at August term, 1933 defendant was reindicted on one day, arrested at four A. M., brought into court at 8:30 A. M., and his case was set for trial at one P. M., refusing continuance held not error.

4. CRIMINAL LAW.

Admitting evidence that defendant stated to person assaulted that, if he told about defendant having liquor, he would kill person assaulted, held harmless, where fact of defendant's ill feeling toward person assaulted was not disputed.

5. CRIMINAL LAW.

In assault prosecution, court's remarks stating undisputed facts regarding defendant's lack of diligence when overruling application for continuance held not prejudicial.

HON EDG. M. LANE, Judge.

APPEAL from circuit court of Jasper county, HON. EDG. M. LANE, Judge.

Boot Jones was convicted of assault and battery with intent to kill and murder, and he appeals. Affirmed.

Affirmed.

J. K. Travis, of Meridian, for appellant.

It is true that the trial judge has a large discretion as to continuances, but we contend that the trial judge in this case grossly abused his discretion.

Graham v. State, 129 So. 295.

The appellant contends that allowing the witness, Martin, to testify what took place after it is alleged that the assault and battery was committed was prejudicial and was in no sense a part of the res gestae.

The court erred in making prejudicial remarks in the presence of the jury in this case.

The jury for this court was drawn and summoned by the officers in the two east rooms of the Teachers' Home of the Paulding Consolidated School District. The appellant contends that the indictment found against him by the grand jury was not in a duly and legally constituted courthouse as required by law; that at the time of the indictment there were two courthouses designated by the board of supervisors of the county, one being the two cast rooms of the Teachers' Home of the Paulding Consolidated School District and the other being the entire school building of the Paulding Consolidated School District; the said two courthouses being about two hundred yards apart.

The court on 14th day of August, 1933, assembled at the Paulding consolidated school house and entered an order designating the school house of Paulding Consolidated School District as the courthouse, and the circuit judge in his order took it upon himself to rescind the order of the board of supervisors of Jasper county formerly designating the two east rooms of the Teachers' Home as the courthouse, which he had no authority under the law to so do.

The appellant contends that the circuit judge never did designate the two east rooms of the Teachers' Home as the courthouse and if he never did designate the two east rooms of the Teachers' Home as a courthouse previous to the drawing of the jury and the proceedings thereon is nevertheless null and void.

The appellant submits as a proposition of law that the board of trustees of the school district had no right or authority to agree to lease or contract with the board of supervisors of Jasper county to use the school building and Teachers' Home for a courthouse for the reason that under the law, the only purpose that school property can be used for is school purposes.

Sugar et al. v. City of Monroe et al., 108 La. 667, 32 So. 961; Spencer v. Nemaha County, etc., Joint School Dist. No. 6, 15 Kan. 259, 22 Am. Rep. 268; Trustees of Special Tax School Dist. No. 1, Leon county et al. v. Lewis, 57 So. 614.

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

Proof was offered which went to show that a year before, the grand jury of that county had indicted this same defendant on the same charge; that he had been arrested on this indictment and was under bond to appear at the term of court at which he was tried to answer the indictment. Prior to that term of court, however, the courthouse with all records was destroyed by fire, so that defendant could not be tried upon the original indictment, or a certified copy thereof. The grand jury thereupon considered the matter anew and returned an indictment identical in substance to the one destroyed. This procedure appears to have been proper.

Helm v. State, 67 Miss. 562; McGuire v. State, 76 Miss. 504; Goins v. State, 155 Miss. 662, 124 So. 785; Giles v. State, 150. Miss. 756, 116 So. 887.

No motion for a new trial, based on the absence of alleged material witnesses was asked for, nor does it appear that further and continued diligence was exercised by accused after the continuance was denied, and before a motion for a new trial.

Lamar v. State, 63 Miss. 265; Coward v. State, 158 Miss. 705, 131 So. 254; Robertson v. State, 157 Miss. 642, 128 So. 772; Smith v. State, 124 So. 436; Ivey v. State, 154 Miss. 60, 119 So. 507.

Proof of other independent crimes is ordinarily inadmissible, but this is not an absolute and fixed rule. It is subject to certain exceptions,--as where one cannot be shown without revealing the other, or for the purpose of showing malice, motive, intent, etc.

Whittington v. State, 160 Miss. 705, 135 So. 190; Tucker v. State, 103 Miss. 117, 60 So. 65; Simmons v. State, 141 So. 288; Amacker v. State, 124 So. 355; Norris v. State, 154 Miss. 190, 122 So. 391; Smith v. State, 153 Miss. 585, 121 So. 282; Stift v. State, 152 Miss. 246, 119 So. 178; King v. State, 123 Miss. 532, 86 So. 339; Keel v. State, 133 Miss. 160, 97 So. 521; Hampton v. State, 99 Miss. 176, 54 So. 722; Collier v. State, 106 Miss. 613, 64 So. 373; Brown v. State, 72 Miss. 997, 17 So. 278.

The trial court did not err in making the statements in presence of the jury.

Bumpus v. State, 144 So. 897.

The record shows that the courthouse for the First judicial district of Jasper county had been destroyed by fire and it was necessary for a suitable building or buildings to be provided for in which court might be held.

Section 220, Mississippi Code of 1930; Brookhaven Lbr. & Mfg. Co. v. Adams, 132 Miss. 689, 97 So. 484.

Argued orally by J. M. Travis, for appellant, and by W. D. Conn, Jr., for the State.

OPINION

Anderson, J.

Appellant was indicted and convicted in the circuit court of the First district of Jasper county of the crime of assault and battery with intent to kill and murder one Will Kidd, and was sentenced to the penitentiary for a term of three years. From that judgment he prosecutes this appeal.

The errors assigned and argued are: The action of the court in overruling appellant's motion to quash the indictment upon the ground that it was found and returned at a place which had not been legally designated for the holding of the court; the action of the court in overruling appellant's motion for a continuance; the admission of the testimony of the witness Martin for the state over appellant's objection; and certain statements made by the judge in the presence of the jury, which appellant claims were prejudicial to his interest. We will consider these questions in the order stated.

Section 220, Code 1930, provides as follows: "When there shall not be a courthouse in any county, or the same may be undergoing repairs, or unfit for use, the board of supervisors may meet at a convenient place in the county and shall provide and designate some suitable building in which the courts of the county and the meetings of the board of supervisors may be held, the expense of which, and for fitting the same for the purpose, shall be paid out of the county treasury. And if the board shall fail to make such provision, the sheriff of the county may do so."

The board of supervisors failed to designate a building in which to hold court. The sheriff thereupon designated a certain place, and later the board adopted the sheriff's designation, still later it was found that the place so designated was insufficient, and the board of supervisors entered an order designating a certain school building for the holding of court. Thereafter the circuit judge entered an order on the minutes of the court adopting this last designation. Appellant contends, for reasons unnecessary to be stated, that the place for the holding of the court was not legally fixed. Brookhaven Lumber & Manufacturing Co v. Adams, 132 Miss. 689, 97 So. 484, is decisive of this question against appellant's contention. It was held in that case that it is the duty of the...