Minneweather v. State, 38029

• Decision Date: 19 November 1951
• Docket Number: No. 38029,38029
• Citation: 55 So.2d 160
• Parties: MINNEWEATHER v. STATE.
• Court: Mississippi Supreme Court

Page 160

55 So.2d 160

MINNEWEATHER v. STATE.

No. 38029.

Supreme Court of Mississippi, Division A.

Nov. 19, 1951.

J. O. Hollis, Carthage, for appellant.

J. P. Coleman, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

ETHRIDGE, Commissioner.

Appellant, Arvelle Minneweather, was convicted in the Circuit Court of Leake County, Mississippi, of grand larceny and was sentenced to one year in the state penitentiary. From that judgment he appeals and argues several assignments of error.

The theft occurred around 7:30 to 9:00 P.M. on the night of March 26, 1950. Approximately $37.00 was stolen from the single ticket office of two bus companies in Carthage. The ticket office was located in the bus station next to white and colored waiting rooms and adjoining the Bus Station Cafe. On the night in question Mrs. Carlton Jenkins was working as a waitress in the cafe and heard a noise in the ticket office. She testified that she ran to the back of the building and saw the appellant climbing out of the small ticket office into the colored waiting room. Appellant fled and was arrested on April 22. Mrs. Jenkins, Ross Gainey, the operator of the cafe, and three police officers testified that after his arrest, appellant voluntarily confessed the crime.

Appellant argues that the trial court abused its discretion in overruling his motion for a continuance. Defendant was indicated on November 14, 1950, he moved for a continuance on November 16, and was tried and convicted on November 17. The basis of his motion was that at the time of the theft appellant was at the cafe of one Annie Lou Gilmore and that she was 'temporarily absent in Chicago'; that appellant had had a subpoena issued for Gilmore after his indictment, but it was not served because of her absence from the state; and that appellant could not prove by any other witness that he was in Gilmore's cafe when the crime was committed. The only witness heard on the motion was Earl Watkins, a constable, who said that Gilmore was 'up in Milwaukee, or somewhere up there', and that she had been there several months and had moved away from Leake County.

Appellant was arrested on April 22 and although the record is not clear, he apparently was released on bond shortly thereafter. He was indicted on November 14 and tried on the 17th. Appellant had been arrested and charged with the crime for about seven months prior to his indictment, and as was said in Goins v. State, 1929, 155 Miss. 662, 124 So. 785, under these circumstances he could very well have anticipated an indictment at the approaching term of the circuit court, and should have used diligence during this period in either arranging for the testimony of Gilmore at his trial or in obtaining an affidavit from her.

In Lamar v. State, 1885, 63 Miss. 265, it was held that a defendant must use and continue to use diligence in obtaining the appearance of an absent witness, and on his motion for a new trial, must present the witness to the court, or, if that is not practicable, he must secure his ex parte affidavits. Bolin v. State, 1950, 209 Miss. 866, 48 So.2d 581. Appellant offered no testimony on the hearing of his motion as to why he had been unable to obtain Gilmore as a witness, or whether she would be present at the next term, although the sworn motion averred that. His motion for a new trial failed to raise this question again, and therefore omitted to comply with the stated requirements in the Lamar case. Appellant says that the Lamar rule should not apply where it appears useless to make a further request for continuance, if there is no change of circumstances from the time the trial began until its end. Jackson v. State, 1946, 199 Miss. 853, 25 So.2d 483, cited by appellant, does not control here. The Court carefully limited its holding to the peculiar circumstances of that case, where the absent witness was on board a ship at sea and obviously unavailable. Here appellant was arrested and charged with the offense seven months prior to his indictment, he made no showing of diligence in preparing his defense and in obtaining the witness or her affidavit, and the trial court did not have the opportunity of passing on this issue on the motion for a new trial. He failed to exercise the diligence required by the Lamar rule. Miss. Code 1942, Sec. 1520, provides that there shall be no reversal of a case for the denial of a motion for continuance alone unless the court 'shall be satisfied that injustice resulted therefrom'. Under these circumstances the trial court was correct in overruling the motion.

The indictment charged that appellant had stolen $37.00, the property of Ross Gainey. The money taken represented receipts from sale of bus tickets. Fred McMillan was local agent for the two bus companies, and Gainey worked for McMillan. Gainey operated the bus station. McMillan's commission for sale of tickets was ten percent, and Gainey received one-half of that. Gainey had possession of the money, was responsible for any loss, settled with one company each week and the other once a month, and in fact made good to the companies the amount which was stolen. Appellant says that in view of the fact that the money, or most of it, belonged to the bus companies and not to Gainey, there was a fatal variance between the indictment and the proof. Assuming that Gainey held these funds in trust for the bus companies and for McMillan, he was still in rightful possession of the property as trustee and against everyone except the true owners. It is well settled that the ownership of property may be charged to be in the person who at the time of the theft was in the actual, peaceable possession of it. 32 Am.Jur., Larceny, Sec. 22; 52 C.J.S., Larceny, Sec. 81, pp. 886, 888. In Horn v. State, 1933, 165 Miss. 169, 147 So. 310, 311, the...