Newell v. State

• Citation: 48 So.2d 332,209 Miss. 653
• Decision Date: 06 November 1950
• Docket Number: No. 37536,37536
• Parties: NEWELL v. STATE.
• Court: United States State Supreme Court of Mississippi

Page 332

48 So.2d 332

209 Miss. 653

NEWELL v. STATE.

No. 37536.

Supreme Court of Mississippi, in Banc.

Nov. 6, 1950.

Albert E. Easterling, St., Laurel, for appellant.

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

HALL, Justice.

Appellant was convicted of the murder of Forest Sims and sentenced to death upon the verdict of a jury which fixed that penalty. The first question raised on appeal is whether the trial court erred in overruling a motion for continuance. The killing occurred on July 15, 1949. Appellant was apprehended on July 16 and after being questioned at Laurel, Mississippi, he was on the same date placed in jail at Meridian, Mississippi, which is approximately fifty-five miles from the county site of the county where the murder was committed. No formal affidavit was made against him but he was advised of the nature of the charge on which he was being held and was told that he would be given a preliminary hearing at any time that he desired it. He made no request for such a hearing and indicated to the officers that he did not desire a preliminary hearing. On the first day of the regular August term of court, being August 22, 1949, the grand jury returned an indictment for murder against him. On that same day appellant's relatives employed counsel to represent him, being the same counsel who had visited and talked with him in the jail at Meridian on or about August 2. On August 23, with his counsel present, appellant was arraigned and entered a plea of not guilty, and his case was tentatively set for call on the following Friday, August 26, but on that day the court was engaged in the trial of another matter and the case was passed for call to the following day. On that date appellant filed a motion for continuance based upon the assertion that his counsel had not had sufficient time in which to properly prepare for his defense. This motion was not supported by any affidavit as contemplated by Section 1520, Mississippi Code of 1942. Considerable evidence was offered both by the appellant and by the prosecution on the hearing of the motion with the result that the trial court overruled it and set the case for trial on August 29. The trial began on that date and was concluded on August 31. At the commencement of the trial appellant did not renew his motion for continuance, and after conclusion thereof he did not file any motion for a new trial or make any showing that he or his counsel had made any effort to further investigate the case or obtain evidence in his behalf.

The record shows that every witness who knew anything about the case lived within fifteen miles of the courthouse where the trial was conducted, that the presence of all witnesses whom appellant desired on his motion for continuance was obtained and these witnesses were in attendance and testified on the motion, and appellant admitted that the sheriff had offered to obtain the presence of every witness that he desired for the trial on the merits but he did not request process for any witness, did not testify on the trial, and did not offer any evidence whatever. There was no contention that he wished the attendance of any witness. The trial began one week after the final employment of counsel to defend him.

In the motion and in the argument of the point under consideration appellant's counsel makes a strong appeal based upon matters which may in some minds arouse sympathy over appellant's plight but which afford no ground for a continuance of his case. Illustrative of these matters, the record shows that about 10 a. m. prior to his arrest that afternoon, while he was evading the officers, appellant was shot by some unknown party who is affirmatively alleged in the motion not to have been an officer of the law and whose name is not disclosed by the evidence, but the full import of this incident is that he was merely sprinkled with a charge of bird shot, evidently from a considerable distance, and the proof establishes conclusively that the wounds thereby inflicted were superficial only and were of no serious consequence and were not sufficient to retard his flight in his effort to avoid arrest or to interfere in any manner with the preparation of his defense. When apprehended by the officers he was carried to jail clothed in the same raiment which he was wearing at the time, being in overalls and without shoes, in which situation he remained in jail until his relatives brought fresh clothing to him about seventeen days later, but there is no contention that he thereby suffered any ill effects, the time being the last half of July when the weather is always so hot in this section that many people, particularly children, wear no shoes; it is not claimed and could not be successfully contended that this prevented appellant from preparing his defense. After his arrest and incarceration appellant's home was looted by unknown vandals, and it is charged in the motion and argued in the brief that he was thereby deprived of his life's earnings and rendered penniless and powerless to employ counsel, but the proof justifies the conclusion that appellant took from his victim's dead body a sum of money considerably in excess of $100, and on the same date took a cattle buyer to his victim's pasture and sold three head of cattle therefrom for which he received $150, and later appellant's wife sold his automobile for $400, out of which the last monthly payment due thereon was made. Appellant's sister was active in his defense and testified on the motion that she employed the attorney to represent him on the day of his indictment and on cross-examination she said that he had all the information necessary for defense of the case and that it was ready for trial; on redirect examination she said that she didn't know whether appellant's attorney could be ready for trial the following week but she imagined he could. The case was tried the following week and appellant's counsel conducted the defense with skill and ability and manifested a rather complete knowledge of the details of the evidence.

It is further argued that appellant, after his arrest and until the day of his arraignment, was kept in the jail at Meridian, Mississippi, which is in an adjoining county and approximately fifty-five miles from the place of trial, and that he was not permitted to confer with friends and relatives or arrange for his defense, and particularly that he was denied the opportunity of private conference with his counsel prior to the trial. Our law fully authorizes the removal of a prisoner to the jail of some other county and such a procedure is common practice throughout the State. It is no indication of and there is no proof suggesting that it was because of any fear of mob violence. It may have been because the jail in Jasper County was already fully occupied or considered not sufficiently secure to prevent the escape of the prisoner. The latter is the most common reason for the transfer of a prisoner to another county for safe keeping, but, regardless of the reason for his removal, the proof strongly controverts the assertion that appellant was not permitted to privately confer with his friends and relatives and counsel and prepare his defense, as to which see Garner v. State, 202 Miss. 21, 30 So.2d 413.

It is also argued that public sentiment against appellant was at a high pitch, but there is not one word of evidence to support this charge, and no motion was made for a change of venue. We have rather extensively summarized the several points made in the argument on the question of overruling the motion for continuance.

Our statute, Section 1520, Code of 1942, provides and this Court has repeatedly held that the granting of a continuance is a matter largely within the discretion of the trial judge and that refusal of a continuance will not be grounds for reversal unless that discretion has been abused and the Court is satisfied that injustice has resulted therefrom. McDaniel v. State, 8 Smedes & M., 16 Miss. 401, 47 Am.Dec. 93; Cox v. State, 138 Miss. 370, 103 So. 129; Jones v. State, 168 Miss. 702, 152 So. 479; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Allgood v. State, 173 Miss. 27, 161 So. 756; Ellis v. State, 198 Miss. 804, 23 So.2d 688; Cody v. State, Miss., 24 So.2d 745; Jackson v. State, 199 Miss. 853, 25 So.2d 483; Parker v. State, 201 Miss. 579, 29 So.2d 910; McGee v. State, Miss., 40 So.2d 160, not yet reported in the State Reports, appeal dismissed and certiorari denied 338 U.S. 805, 70 S.Ct. 77, 94 L.Ed. ----.

Upon a consideration of everything shown by the record we are of the opinion that the trial judge did not abuse his discretion in denying a continuance and that no injustice has resulted. It is interesting to note that the killing occurred on July 15, appellant was indicted on August 22, arraigned on August 23, and put to trial on August 29, which was exactly one week after indictment and six days after arraignment. In the case of Freeman v. State, Miss., 29 So. 75, a killing occurred on May 31, an indictment was returned on June 1, Freeman was arraigned on June 2, and put to trial on June 8, which was exactly the same space of time after indictment and arraignment as elapsed in the case at bar, and the Court said in that case that while the trial followed speedily after the murder the appellant was ably defended by competent counsel and cannot complain of the result of the trial, citing Jones v. State, 60 Miss. 117, 123, wherein Judge Campbell commented that the granting of a speedy trial is a constitutional right insured to a defendant although not asserted by him. In the case at bar there was no undue or indecent haste to the detriment of appellant.

Section 2518, Code of 1942, provides 'All indictments shall be tried at the first term, unless good cause be shown for a continuance.' In McClellan v. State, 183 Miss. 184, 184 So. 307, 308, this Court said: 'To hold that ten days is...