King v. State, No. 43225

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtRODGERS
Citation168 So.2d 637,251 Miss. 161
PartiesErvin KING v. STATE of Mississippi.
Docket NumberNo. 43225
Decision Date16 November 1964

Page 637

168 So.2d 637
251 Miss. 161
Ervin KING
v.
STATE of Mississippi.
No. 43225.
Supreme Court of Mississippi.
Nov. 16, 1964.

[251 Miss. 165]

Page 639

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

[251 Miss. 167] 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. [251 Miss. 169] 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

Page 640

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 [251 Miss. 170] 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 [251 Miss. 171] 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.

Page 641

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,[251 Miss. 172] 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...

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75 practice notes
  • Government of Virgin Islands v. Harris, No. 90-3532
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 3, 1991
    ...that victim was unfaithful; marriage was deteriorating), appeal denied, 1987 WL 24489, 1988 Mich. LEXIS 836 (Mich.1988); King v. State, 251 Miss. 161, 168 So.2d 637 (1964) (defendant made no admission; defendant was arguing with victim, who had bought whiskey from him; three witnesses saw d......
  • Taylor v. State, No. 90-DP-01346-SCT
    • United States
    • Mississippi Supreme Court
    • April 25, 1996
    ...(Miss.1992). Medical evidence is not required to prove either element of corpus delicti. Miskelley, 480 So.2d at 1107; King v. State, 251 Miss. 161, 176, 168 So.2d 637, 643 The "admissions" of which Taylor complains here are statements which he made to Beatrice Young. The statements made to......
  • Minnick v. State, No. DP-79
    • United States
    • United States State Supreme Court of Mississippi
    • December 14, 1988
    ...The granting or denial of a continuance is within the sound discretion of the trial judge. Gates, 484 So.2d at 1006; King v. State, 251 Miss. 161, 168 So.2d 637, 641 (1964). The Gates opinion speaks to the issue of a continuance when a witness is unavailable. The present case is distinguish......
  • Metcalf v. State, No. 90-KA-1227
    • United States
    • United States State Supreme Court of Mississippi
    • December 9, 1993
    ...not reviewable unless the party whose motion for continuance was denied makes a motion for a new trial on this ground. See King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Cherry v. Hawkins, 243 Miss. 392, 137 So.2d 815 (1962); Lamar v. State, 63 Miss. 265 Neither Metcalf nor his new att......
  • Request a trial to view additional results
75 cases
  • Metcalf v. State, No. 90-KA-1227
    • United States
    • United States State Supreme Court of Mississippi
    • December 9, 1993
    ...not reviewable unless the party whose motion for continuance was denied makes a motion for a new trial on this ground. See King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Cherry v. Hawkins, 243 Miss. 392, 137 So.2d 815 (1962); Lamar v. State, 63 Miss. 265 Neither Metcalf nor his new att......
  • Taylor v. State, No. 90-DP-01346-SCT
    • United States
    • Mississippi Supreme Court
    • April 25, 1996
    ...(Miss.1992). Medical evidence is not required to prove either element of corpus delicti. Miskelley, 480 So.2d at 1107; King v. State, 251 Miss. 161, 176, 168 So.2d 637, 643 The "admissions" of which Taylor complains here are statements which he made to Beatrice Young. The statemen......
  • Williams v. State, No. DP-56
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1987
    ...The trial court was authorized by our law to overrule the objections to the hypothetical question. 466 So.2d at 78; King v. State, 251 Miss. 161, 174, 168 So.2d 637, 642 (1964). This record shows that on Page 788 cross-examination Dr. Hernandez freely admitted just exactly how contingent hi......
  • Government of Virgin Islands v. Harris, No. 90-3532
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 3, 1991
    ...that victim was unfaithful; marriage was deteriorating), appeal denied, 1987 WL 24489, 1988 Mich. LEXIS 836 (Mich.1988); King v. State, 251 Miss. 161, 168 So.2d 637 (1964) (defendant made no admission; defendant was arguing with victim, who had bought whiskey from him; three witnesses saw d......
  • Request a trial to view additional results

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