Ogden v. State
| Decision Date | 11 November 1935 |
| Docket Number | 31759 |
| Citation | 164 So. 6,174 Miss. 119 |
| Court | Mississippi Supreme Court |
| Parties | OGDEN v. STATE |
1. CRIMINAL LAW.
Motions for continuances are within discretion of trial judge, and when motion for new trial because of absent witnesses is made, accused should continue efforts to secure testimony of witnesses during trial by having process issued and witnesses attached, and if unable to do so during trial, they should be produced on motion for new trial if possible, and, if not affidavit should be secured setting forth what they would testify to had they been produced in court.
2. CRIMINAL LAW.
Accused in bigamy prosecution, wherein accused contended that he had obtained divorce, could not predicate error on denial of continuance based on absent witnesses and illness of accused where he did not attempt to obtain witnesses before seeking new trial and made no showing of alleged divorce proceedings.
3. CRIMINAL LAW.
Where accused in bigamy prosecution did not personally testify as to his alleged residence and divorce obtained in another state, there was no presumption that accused would have contradicted state's testimony had he chosen to take the stand.
4. CRIMINAL LAW.
Jury is not authorized in trying accused, to draw any prejudice from his failure to testify, but his refusal to testify does not operate to dispute the state's testimony.
5. CRIMINAL LAW.
Supreme Court must give effect to all reasonable presumptions in favor of ruling of court below.
6. CRIMINAL LAW.
Privilege of accused to testify is one which he may exercise or not but if he chooses not to exercise that privilege, he cannot complain where evidence is sufficient to convict him.
7. CRIMINAL LAW.
Accused who desired to predicate error on absence of witnesses must show that he has exercised due diligence in his efforts to secure testimony of witnesses, and if he cannot do so, he must show reasonable excuse for his failure, together with affidavit and documents to show what such testimony would have been had witnesses been before court.
APPEAL from the circuit court of Amite county HON. R. E. BENNETT, Judge.
R. J. Ogden was convicted of bigamy, and he appeals. Judgment affirmed.
Affirmed.
J. T. Lowrey and F. A. Anderson, Jr., both of Gloster, for appellant.
The court below erred in not granting the application for continuance.
With his counsel sick from the time of his arrest until the day before the setting of the trial, and with appellant sick for a week before the day of his trial, in bed on Saturday before and up to and including the day of his trial, neither had an opportunity to see the other, or to confer with the other, or to prepare the case for trial, or subpoena witnesses, or do any other act in furtherance of the trial.
The court below in overruling application for continuance of appellant further predicates his action on the ground that no doctor's certificate was offered showing appellant's condition.
No doctor was present. The state did not have any subpoenaed, and the appellant was not given an opportunity to summon one, even his own physician who was treating him, and who has prescribed for him. We submit that no doctor being present, a certificate would have been incompetent evidence of his condition.
Coleman v. Bowman, 135 Miss. 137.
We submit that the facts of the case at bar, as disclosed by the record, bring this case within the rule where reversal is granted because of the abuse of the discretion of the lower court, and in which a gross injustice has been done the appellant by refusing his application for continuance.
Johnson v. State, 108 Miss. 709; Corbin v. State, 99 Miss. 486; Sullivan v. State, 150 Miss. 204; Dobbs v. State, 31 So. 915; Magee v. State, 45 So. 360; Woodward v. State, 42 So. 167; Anderson v. State, 50 So. 554, 44 So. 36.
The appellant in his application for continuance shows that the witnesses named therein are all within the jurisdiction of the court, living in adjoining county and if given an opportunity of a few days, or even granted time until he was physically able to stand his trial and bring the witnesses to court, that he would bring them to court or have them there by compulsory process and be ready for trial.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
Due diligence was not shown and this court will hold that upon this ground the trial court committed no error in overruling the application for continuance.
Lamar v. State, 63 Miss. 265; Ware v. State, 133 Miss. 837, 98 So. 229; Coward v. State, 158 Miss. 705, 131 So. 254; McKnight v. State, 171 Miss. 152, 157 So. 351.
It nowhere appears that on account of the illness of defendant he was unable to confer with his attorneys or to properly defend the prosecution.
This court has held that applications for continuances of criminal cases, based on the mental or physical weakness of the accused, are, even more largely than when based on other grounds, addressed to the discretion of the trial court. And in determining such application, the trial judge may consider the appearance of the accused.
Lipscomb v. State, 76 Miss. 223, 25 So. 158.
Argued orally by J. T. Lowrey, for appellant, and by W. D. Conn, Jr., for the state.
R. J. Ogden was indicted, tried, and convicted in the circuit court of Amite county for bigamy. The indictment was returned February 19, 1935, the appellant arrested on February 26th, and the cause was set for the second Wednesday of the term.
The appellant filed a motion for a continuance setting up therein that he had been sick, under the treatment of a physician who had prescribed for him, on account of which he had not been able to confer with his attorneys. It was further set up therein that it was necessary to have in court Willie Mae Triggs, the alleged second wife, and also Amanda Elizabeth Ogden, his alleged first wife; that he expected to prove by Willie Mae Triggs that the marriage alleged to have taken place between them was, in fact, never consummated so as to be a legal marriage which would support the charge of bigamy; and that he expected to prove by Amanda Elizabeth Ogden that appellant had advised her that he had procured a divorce from her, and that she was fully advised in the premises and had been for some time, in fact since a decree was rendered by a court of competent jurisdiction annulling and setting aside the bonds of matrimony existing between herself and said R. J. Ogden, prior to the alleged marriage to Willie Mae Triggs.
Both of these witnesses lived in Wilkinson county, Mississippi, within the jurisdiction of this court.
The motion further set up that the appellant would prove by Carooll Ogden and Audrey Rogers,...
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