Montgomery v. State

• Decision Date: 13 February 1905
• Citation: 37 So. 835,85 Miss. 330
• Court: Mississippi Supreme Court
• Parties: JOSEPH MONTGOMERY v. STATE OF MISSISSIPPI

37 So. 835

85 Miss. 330

JOSEPH MONTGOMERY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 13, 1905

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Montgomery the appellant, was indicted, tried, and convicted of an assault with intent to kill and murder, or of an assault and battery with like intent, both crimes being charged in the indictment and a general verdict of guilty being rendered. From this conviction he appealed to the supreme court.

When the case was called for trial, two of defendant's witnesses were absent who had been duly subpoenaed. He made an application for a continuance, based upon an affidavit that he expected to prove by one of the absent witnesses (Pinkie Daniels) that, at the time defendant shot at Simon Bell, Bell was assaulting defendant with a shotgun and was attempting to shoot him, and that defendant shot at Bell in self-defense, and that defendant got the pistol he used in shooting at Bell in the house of Pinkie Daniels, where the shooting occurred, and got it after Bell had been pursuing him with a gun and was coming back toward the house with the gun; that he expected to prove by the other witness (Robert Bankston) that Simon Bell had gone away from the house, and sat down on the side of the road, some distance from the house, and that he (Bankston) went to Bell and insisted that he stop pursuing defendant with his gun, and Simon stated that he intended to assault defendant, and thereupon Bell did, having his gun with him, go back to the house where defendant was, and after returning Bell shot defendant in the face before defendant shot at Bell with the pistol. The district attorney admitted that these absent witnesses would testify, if present, to what was stated in the affidavit, and the court overruled the motion for a continuance.

Reversed and remanded.

Williamson & Wells, for appellant.

Upon the proof in this case an indictment against Simon Bell for assault and battery with intent to kill and murder Joe Montgomery could be sustained, whereas nothing but an assault with intent, in any view of the evidence, is even pretended to be proven against Montgomery, who was shot by Bell; but Bell was not hit or hurt in any way.

On a close question like this it was extremely important that Montgomery should have had the presence of the absent witnesses and should have had the opportunity to compel their attendance.

The mere fact that the district attorney is willing to admit that the witnesses, if present, would swear to the statements set out in the application does not justify the court in refusing a continuance or postponement of the case, where there has been no opportunity for compulsory process.

Now the court held that defendant was entitled to continuance, and a continuance would have been granted but for the fact that the state made the admission provided for under the statute. Under this state of the case the agreement to admit as required by statute does not justify the court in refusing continuance, the opportunity for compulsory process not being given the defendant. Strauss v. State, 58 Miss. 53; Long v. State, 52 Miss. 31; Parker v State, 55 Miss. 414; Foochee v. State, 82 Miss 513; Hemingway v. State, 68 Miss. 371.

The court below erred in the granting of the sixth instruction for the state. In the first place, the time and manner of giving this instruction was very unfair to the defendant and most certainly prejudiced his case with the jury. The opening argument for the state was closed, and while attorney for defense was arguing the case the court granted the instruction for the state without the knowledge of the defendant's attorneys. The case was urged for defense upon the idea that Simon Bell was the aggressor and did actually shoot Montgomery, and that the indictment charged assault and battery, and that Montgomery did shoot, maim, etc., with intent to kill Bell, when the proof showed that Montgomery did not shoot, maim, and wound Bell, but was shot by Bell, and most likely the grand jury had indicted the wrong man, since they made that charge. After close of argument for defense the district attorney nearly finished his closing speech and then picked up this sixth instruction and said to the jury: "Now, gentlemen of the jury, the court has given you this instruction for the state to answer the argument of defendant's counsel." This was the first knowledge defendant's counsel had of the granting such instruction, and at once objected to the granting of the instruction by the court and to the statement of the district attorney as to the court's purpose in giving it. The court answered the objection both to the instruction and the remark of the district attorney with absolute silence, and permitted the district attorney to read the instruction.

The district attorney then turned and said: "The gentleman may answer that now if he can." Counsel for defense simply remarked to the jury that the court did not grant instructions to answer arguments of attorneys. The court said nothing. Does not this court see what effect conduct like that on the part of the trial court and district attorney would have upon a jury? The court should have told the jury that the instruction was not given for the purpose assumed by the district attorney.

Secondly, we do not think the sixth instruction announced the law. The indictment charges assault and battery; that the defendant not only assaulted, etc., with intent to kill and murder Bell, but did shoot, strike, and wound Bell with intent, etc.

Now the court by the instruction told the jury that the charge of shooting, wounding, and maiming made no difference whatever, but even if the evidence showed defendant did not shoot, maim, etc., but shot at Bell with intent to kill, etc., when defendant was in no real or apparent danger of losing life, etc., at the hands of Bell, that defendant is guilty. The instruction does not say guilty of what. They found him guilty as charged in the indictment.

J. N. Flowers, assistant attorney-general, for appellee.

Counsel for appellant complain of the action of the court in refusing to grant a continuance and in giving instruction No. 6 for the state.

As to denying application for continuance, it will be noted that accused was indicted at the January, 1903, term, and that two other terms of court had passed when this application for continuance was made. It does not appear why Robert Bankston was not present. No postponement of the trial to a later day of the term was asked, although the application for continuance was made on Monday, the 12th day of September, the seventh day of the term, and the law provides for a term of forty-two days for this court.

Besides defendant introduced an eyewitness in the...