Knox v. State

• Decision Date: 04 July 1910
• Citation: 52 So. 695,97 Miss. 523
• Court: Mississippi Supreme Court
• Parties: GEORGE KNOX v. STATE OF MISSISSIPPI

52 So. 695

97 Miss. 523

GEORGE KNOX v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

July 4, 1910

March 1910

FROM the circuit court of Amite county, HON. MOYSE H. WILKINSON Judge.

Knox appellant, was indicted and tried for the murder of one Thompson, was convicted of manslaughter, sentenced to the penitentiary for five years, and appealed to the supreme court. The opinion of the court states the facts.

Reversed.

R. E Jackson and R. S. Stewart, for appellant.

Appellant was indicted for murder on Saturday, and was forced to trial by the court below on the following Monday. Upon the call of the case for trial appellant announced that he was not ready to go to trial because of the absence of a witness, Wells, and presented his written application for a continuance, in the statutory form and supported by affidavit. The state contested the application on the theory that the absent witness was at the time without the jurisdiction of the court, and out of the state, and the trial court overruled the application. This action of the court was fatal error and should be sufficient to reverse the conviction.

The evidence adduced by the state in contesting the application, was negative in character, and did not overthrow that prima facie case made by the positive statement and affidavit of appellant. The facts to which the absent witness would have testified, especially that part of it showing what deceased said and did as he rushed from the house in quest of the accused, was of the most vital importance to appellant.

One of the witnesses for the state, on the hearing of the application, admitted that the absent witness said he was going up to a place near Brookhaven, and no one introduced by the state testified as to the whereabouts of the witness on the date of the filing of the application or that the witness was not at the date and hour of the hearing within the jurisdiction of the trial court, and if the witness was within the jurisdiction of the trial court, the application should have been granted or the case postponed. Woodard v. State, 89 Miss. 324.

Two days elapsed between the return of the indictment and the date of the trial and no witness of the state denied that the absent witness, Wells, was at the place where the homicide is alleged to have occurred; but all admit that Wells was there and could have seen and heard all the difficulty leading to the killing, and if the Woodard case above cited, warranted a reversal, this case should be reversed. But if it be contended that the proof adduced on the part of the state was sufficient to call for a reply and the appellant failed to answer this proof, we urge in reply that the accused has a right to rely on his affidavit, and that it was sufficient until overthrown. Hubbard v. State, 64 Miss. 315.

If it be contended that the testimony of the state's witness was sufficient to and did overcome the contention of appellant, and shows that the witness was without the state, the judgment should nevertheless be reversed because the same evidence demonstrated that the witness, Wells, lived in the state and in the county wherein the trial was had, and was only temporarily absent. Cade v. State, 96 Miss. 434, 50 So. 554.

Under Code 1906, § 1498, appellant would have been entitled to a continuance, even had the state admitted that the witness Wells would have testified to the facts detailed in the application for a continuance, for, from the evidence, and the affidavit of appellant, compulsory process could have been obtained to compel Wells to attend.

The appellant is entitled to a reversal, and would have been so entitled had the district attorney admitted that the witness would have testified to the detailed statement of facts as set out in the affidavit, for this court has practically decided that it is a matter of right, that the accused should not be forced to a trial in capital cases, at the first term following the indictment, unless it clearly appears that no harm or prejudice would be done him. Montgomery v. State, 85 Miss. 330, 37 So. 835; Walton v. State, 39 So. 689.

The application embodied all the elements necessary, and a continuance should have been granted, and upon the authority of the following cases, we urge that the judgment must be reversed because of the failure of the trial court to grant the continuance. Whit v. State, 85 Miss. 208, 37 So. 809; Montgomery v. State, 85 Miss. 330, 37 So. 835; Caldwell v. State, 85 Miss. 383, 37 So. 816; Scott v. State, 80 Miss. 197, 31 So. 710; Walton v. State, 39 So. 689; Mississippi Const. sec. 26; Code 1906, § 1498.

James R. McDowell, assistant attorney-general, for appellee.

The failure of the court below to grant a continuance based upon the appellant's application, is set up by learned counsel for appellant as a ground for reversal of the judgment in this cause. This application is sworn to by appellant, and...