Lea v. State

• Decision Date: 07 February 1887
• Court: Mississippi Supreme Court
• Parties: REBECCA LEA v. THE STATE

1 So. 244

64 Miss. 294

REBECCA LEA v. THE STATE

Supreme Court of Mississippi

February 7, 1887

APPEAL from the Circuit Court of Marshall County, HON. W. S FEATHERSTON, Judge.

The grand jury of Marshall County found an indictment against Rebecca Lea for gaming. The second count of the indictment was as follows:

"That Becky Lea, Mose Lumpkin, Celia Pryor, and Mary Pryor, late of said county, on the 12th of April, 1886, in said county unlawfully did play at a certain game and games of dice for money, to wit, for the sum of ten cents, and for other sums of money, and for other things of value, to the grand jurors unknown, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi."

On this indictment the following words were indorsed in writing:

"A true bill."

"J H. MCCLATCHEY, Foreman of Grand Jury."

And the following words were indorsed by a rubber stamp impression:

"Filed April 13, 1886.

"GEO C. MYERS, Clerk."

Then followed an indorsement in this language:

"This day came into open court the grand jury, there being then and there present more than twelve of their number, including their foreman, and by the hand of their foreman returned under oath, into open court, this written true bill of indictment, which was then and there received by the court and filed by the clerk this the 13th day of April 1886--subpoenas and capiases issued.

"GEO. C. MYERS, Clerk."

The signature to this indorsement was not stamped, but written.

Before the case was called the defendant filed an affidavit for a continuance in the following language:

"Defendant says that she cannot safely go to trial in the above stated case at this term of the court, on account of the absence of Henry Green and John Jackson, for whom she at the last term of this court caused subpoenas to be duly issued returnable to the present term of court, which have been returned 'not found.' By both of said witnesses she expects to prove that they were present when the said game of cards or dice is alleged to have been played on which the indictment in this case is based; that they were present and saw what was done; that they saw the said game, and knew the parties who did take part in it, and that this defendant did not play at said game, or take any part in it, and that she had nothing whatever to do with said game of cards or dice. Affiant further makes oath that the said Henry Green was in the town of Holly Springs on yesterday, the 15th of October, 1886, and affiant learns left here yesterday evening for the avowed purpose, on his part, of going to the camp of Mr. Wright, about eighteen miles from Holly Springs, on the M., B. & A. R. R. Affiant says that said witnesses are not absent by her consent or procurement, that she regards their presence as necessary to her defense, and that she expects to have one or both of said witnesses here to testify in her behalf at the next term of this court. She believes that compulsory attendance of one or both of these witnesses can be had at next term, and she has had no opportunity of obtaining such process." The district attorney admitted that the witnesses, if present, would testify as set out in defendant's affidavit. The court refused defendant's application for a continuance and she excepted.

On the trial the State introduced one George Garrett as a witness. On cross-examination, he answered, "I do not know how old I am, and did not at any time or place tell Becky Lea, the defendant, that I never saw her play dice for money, but that I was after the money and could make a dollar and a half a day." Defendant here offered to prove that witness had been in regular attendance as a State's witness every day of the term since the State docket had been taken up, and that his mother (he being a minor) had already received, on account of witness certificates issued to him, twelve dollars, and that he was now entitled to six dollars more. The court declined to allow such evidence, and the defendant excepted.

The court instructed the jury for the State as follows:

"1. If the jury believe from the evidence that Becky Lea did, within two years prior to the finding of the indictment in this case in Marshall County, Miss., play a game of dice for money with Mary Pryor, Celia Pryor, and Mose Lumpkin, alone as charged in the indictment, then she is guilty under the second count in the indictment, and the jury should so find. Or if the jury believe from the evidence that the defendant at any other time within two years next before the finding of this indictment, and in Marshall County, Miss., did play at a game of dice with any one else for money or for any other thing of value, then the jury should find the defendant guilty as charged in the second count in the indictment."

The court refused the following instruction for the defendant:

"4. Before the jury can convict the defendant, as charged in the second count of the indictment, they must believe, from the evidence, that the defendant, at some time within two years next preceding the filing of the indictment, played at the alleged game of dice with Mose Lumpkin, Celia Pryor, and Mary Pryor for money, and proof, if any has been made, of other games, at other times, with other parties, will not justify a conviction under the second count of the indictment."

The jury found the defendant guilty. She moved to arrest the judgment because the indictment "is not a legal and valid indictment, it not having been returned into court and marked 'filed,' and such entry and date signed by the clerk as required by law." The court overruled the motion, and refused to set aside the verdict. The defendant appealed.

Affirmed.

Fant & Fant, for the appellant.

1. This court will take judicial cognizance of the fact that the Marshall circuit court was at time of trial of this case in the second week of its term, with two full weeks of the time allotted by law before it, and the exercise of a sound and wise discretion would have suggested the resetting of the case to a later day of the term, and to have required some effort toward executing the subpoena, which was granted and issued at defendant's request on the morning of the day of her trial, all benefit of which was denied her by forcing her to trial on the afternoon of the same day.

Long v State, 52 Miss. 23, is authority for us, as the material facts set out in the affidavit for...