King v. State, 43225

• Decision Date: 16 November 1964
• Docket Number: No. 43225,43225
• Citation: 168 So.2d 637,251 Miss. 161
• Parties: Ervin KING v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 637

168 So.2d 637

251 Miss. 161

Ervin KING v. STATE of Mississippi.

No. 43225.

Supreme Court of Mississippi.

Nov. 16, 1964.

Robert B. Smith, Ripley, Douglas D. Shands, Tupelo, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice.

This is an appeal from a judgment of the Circuit Court of Lee County sentencing appellant to serve a term of twenty years in the State Penitentiary. Appellant was tried upon an indictment charging him with murder. The jury returned a verdict finding him guilty of manslaughter.

The events and circumstances leading to appellant's conviction are shown by the State to have begun about 8:30 o'clock on the night of April 19, 1963, at a place of business operated by him, called a 'bootleg joint.' The deceased, Arthur Thompson, in company with Ed Boyd and Boyd's wife, Mrs. Bobbie Nell Boyd, went to appellant's place of business in Boyd's pickup truck. Arthur Thompson purchased one-half pint of corn whiskey, and after change had been made from a $5 bill advanced for the purchase of the whiskey, the appellant used harsh words, threatening Ed Boyd. Arthur Thompson got out of the truck and had a dispute with appellant. They went over to a place near appellant's truck where the appellant suddenly began to beat Thompson. He knocked him down, picked him up and knocked him down again. He stomped Thompson while he was lying on the ground so that Thompson's head was mashed in. The witnesses said Thompson ceased to breathe and he was apparently dead. Boyd and his wife left the scene of the assault and waited for Thompson down the road but he never came. William Fair, appellant's Negro employee, testified that he assisted appellant to load the body of deceased, Thompson, onto an uncovered pickup truck. Appellant and William Fair drove the truck about the county, and after having obtained shovels at the home of appellant, they attempted to bury the body in one place but were unable to do so. The body was then transported to another place where a pit was dug and the body was put into the grave, face up. The arms of the deceased were rigid, in a position as if he were carrying wood. Later, the officers made an effort to locate the body at the place pointed out to them by William Fair but they were unable to do so, although they used bulldozers to dig for the body. The witness, Fair, told them that he had thrown a knife belonging to deceased into a creek, and the officers found the knife, which was later identified by a son of Thompson as belonging to him. Much bulldozer grading had been done near the place where Fair claimed the body had been buried. Part of this bulldozer work had been done by appellant. After the vicious attack alleged to have been made upon Thompson, his body was examined by William Fair and his common-law wife. Ida Mae Harmon testified that after the fight he was breathing out 'later he was not.' Fair said his eyes were half open and his arms were 'just like he was carrying an armful of stovewood.' The witness, Fair, testified that they left the body in the bushes for some several hours but later they buried it.

The defendant took the witness stand and testified that he had had no altercation with Thompson and denied all of the testimony of the State's witnesses to the effect that he had had a fight with the deceased. Mrs. Ervin King testified that she was in the house and did not see or hear a commotion. The jury found defendant guilty of manslaughter.

Appellant has assigned and argued thirteen grounds of error alleged to have occurred in the trial of the case in the circuit court.

Appellant contends that the trial court erroneously overruled his motion for continuance because of the absence of a material witness. When the case was set for call, appellant summoned one Malcolm Swindol. This witness was not found. When the case was called to fix a day when it could be tried, appellant filed a motion for continuance, alleging that Swindol was a material witness and would testify that he was present at the time and place where the alleged crime was said to have occurred, and he believed he would testify that he had had no altercation with Thompson. This motion was overruled and appellant complains that he should have been granted a continuance so that this witness could have been located and summoned.

The case was later tried, and it is a singular fact that not one of the witnesses, including defendant himself, testified that Malcolm Swindol was present at the time of the alleged beating, or that he was present at the place where the alleged beating is said to have occurred. Defendant named all of the persons who came to his place at the time of the alleged assault and Swindol was not one of those named.

Capital cases are required to be tried during the term in which the indictment is returned, unless good cause is shown to the contrary. See Dean v. State, 234 Miss. 376, 106 So.2d 501 (1958); Mississippi Code Annotated section 2518 (1942).

The last line in Mississippi Annotated Code section 1520 (1942) is as follows: 'A denial of the continuance shall not be ground for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom.'

The granting of a continuance is largely within the sound discretion of the trial court, and a judgment will not be reversed because the continuance is refused unless there has been an abuse of sound discretion. Woodruff v. State, 220 Miss. 24, 70 So.2d 58 (1954); Gatlin v. State, 219 Miss. 167, 68 So.2d 291 (1953).

There is no evidence of abuse of discretion on the part of the court in failing to grant a continuance because of the absence of Malcolm Swindol on the ground that he was present at the time and place where the alleged crime was committed. Moreover, we are of the opinion that the rule set out in Lamar v. State, 63 Miss. 265, 271 (1885), applies here wherein this Court said: 'In view of the frequency of these applications we deem it advisable to repeat what has been before substantially said as to the correct course to be pursued by a defendant who applies for a continuance. To begin with, he should promptly issue summonses for all witnesses who may be material for his defense; for any witness who has been served with process and who has failed to appear as commanded he should ask for an attachment, which will never be refused by the court; in capital cases he should apply for a continuance before the venire is drawn, setting out in his affidavit the names and residences of the absent witnesses, the facts expected to be proved by them, and should also show to the court what steps have been taken to secure their attendance; he should negative the idea that they are absent with his consent or procurement, and if any reasons are known to him why they are not present, these should be stated.

'If the court declines to grant the continuance be should sue out the proper process for them, and when the case is called for trial should renew his application, make such changes in his affidavit as the conditions then existing require. If the continuance is still refused, he should with unremitting diligence seek to secure their attendance pending the trial by the continued use of the process of the court; if tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term, and on his motion for a new trial present them to the court for examination; if, with all of his efforts, he is unable to have the witnesses personally present, he should, if practicable, secure their ex parte affidavits, which should be presented for the consideration of the court, which, on the motion for a new trial, will review the whole case and correct any error prejudicial to the defendant which may appear in any part of the proceeding.'

This rule has been reaffirmed in Eslick v. State, 238 Miss. 666, 119 So.2d 355 (1960); Shoemaker v. State, 222 Miss. 257, 75 So.2d 647 (1954). Appellant did not comply with this rule, although he states in his brief that 'Soon after the motion for a new trial was heard, this witness was, in fact, located at his usual place of abode in Pontotoc County, an adjoining county to the place of the trial.' The action of the trial court, therefore, in overruling the motion for continuance, cannot now be urged as ground for reversal of the judgment.

The appellant complains that the court erred in admitting in evidence a map or plat drawn by a witness, and later requiring him, over his objection, to revise and correct it. The freehand drawing complained of showed the physical surroundings of the place where the crime is said to have been committed. The houses, fences, trees and the location of floodlights on the building were set out on the map in relation to each other. This map was not drawn to a scale, and the distances between the buildings and fences were not measured. The witness testified that he was accustomed to measuring, and the use of tapes and measurements in his previous road work, and the jury was advised that the plat or map was an estimate of the witness as to distance. We are of the opinion that the introduction of the map in evidence was discretionary with the trial court. Baggett v. State, 219 Miss. 583, 69 So.2d 389 (1954); Underhill's Criminal Evidence section 120, p. 165 (4th Ed. 1935). We are also of the opinion that the trial court did not make an error in giving defendant an opportunity, on cross-examination, to point out anything on the drawing which he thought was wrong in the plat. The cross-examination of defendant with reference to the map was proper. See Dent v. Luckett, 242 Miss. 559, 135 So.2d 840 (1961).

The State of Mississippi offered testimony during the trial to show the physical condition of deceased after the alleged beating: that his head was mashed in, his eyes were half open, he was not breathing the witnesses could not hear his...