Osborne v. State

• Citation: 111 So. 834,146 Miss. 718
• Decision Date: 28 March 1927
• Docket Number: 26177
• Court: Mississippi Supreme Court
• Parties: OSBORNE v. STATE. [*]

111 So. 834

146 Miss. 718

OSBORNE v. STATE. ^[*]

No. 26177

Supreme Court of Mississippi

March 28, 1927

Division B

1. CRIMINAL LAW. Applicant for continuance of criminal case for absence of witnesses must show due diligence in summoning them and continue to use process; applicant for continuance of criminal case for absence of witnesses must, if possible procure them on motion for new trial or take their affidavits; applicant for continuance of criminal case for absence of witnesses must on motion for new trial, set forth expected testimony.

Where a motion is made for a continuance in a criminal case on the ground that material witnesses are absent, the applicant must show due diligence in having said witnesses summoned, and, if they fail to appear, the applicant must continue to use the process of the court, and after trial must, if possible procure witnesses on motion for new trial or take their affidavits; and the applicant must set forth the facts that said witnesses would testify to, and this application must be supported by the witnesses on motion for a new trial, if their presence or their affidavits can be obtained.

2. CRIMINAL LAW. If defendant fails to deny confession at trial and on motion for new trial and produces no witnesses to establish its illegality, conviction will not be reversed regardless of failure to make return to summons issued for one witness.

Although a defendant may or may not testify in a criminal case at his option, yet if he fails to testify and deny an alleged confession proved by the state's witnesses, and fails to produce witnesses to establish the illegality of said confessions, and does not himself testify on the motion for a new trial with reference thereto, the court will not reverse the case because the witnesses were not produced, and although no return was made to one summons issued for one of the witnesses by the sheriff.

3. CRIMINAL LAW. Intoxicating liquors. In prosecution for unlawful possession of still, showing existence of still and its illegal use establishes corpus delicti; on establishing existence of still and illegal use, confessions are competent and sufficient to prove possession; evidence held to sustain conviction for unlawful possession of still.

In a charge of unlawful possession of a still, the corpus delicti is proved by showing the existence of the still and that it was used for unlawful purposes, and, where this has been established, the confessions of the defendant are competent and sufficient to prove his possession of said still.

HON. T. L. LAMB, Judge.

APPEAL from circuit court of Grenada county, HON. T. L. LAMB, Judge.

C. E. Osborne was convicted of the unlawful possession of a still, and he appeals. Affirmed.

Judgment affirmed.

W. E. Stone and B. D. Newsom, for appellant.

I. The court improperly refused to grant a continuance to the defendant. Hemingway's Code, section 567, prescribes what is necessary to be set up in the affidavit for a continuance and every requirement of the statute was fully met. The judgment will not be reversed because a continuance was refused, unless there was an abuse of sound discretion by the court. Solomon v. State, 71 Miss. 567, 14 So. 461; Lipscomb v. State, 76 Miss. 223, 25 So. 158. See, also, Cox v. State, 103 So. 129; Lamar v. State, 63 Miss. 365; Ware v. State, 133 Miss. 837, 98 So. 239. The trial judge in this case abused his sound discretion in not granting a continuance from the showing made before him.

Where the defendant has used reasonable diligence to procure the attendance of a material witness who was in the jurisdiction of the court, continuance should have been granted. Watts v. State, 90 Miss. 757, 44 So. 36; White v. State, 95 Miss. 75, 48 So. 611; Magee v. State, 45 So. 360. This court has always held that where the defendant was prejudiced by the refusal of the trial judge to grant a continuance, it will reverse and remand the cause. Corbin v. State, 99 Miss. 486, 55 So. 43; Brooks v. State, 108 Miss. 571, 67 So. 53.

An affidavit for continuance for absence of a witness is fatally defective if not giving his residence so that the court may know he is not out of its jurisdiction. Donald v. State, 41 So. 4. On page 5 this affidavit for continuance shows specifically that the material witnesses are within the jurisdiction of the court and give their post office and county addresses, severally. Section 26, Mississippi Constitution.

It is clearly shown by the record in this cause that the defendant had used every legal remedy to obtain the presence of the witnesses for defendant.

II. The court erred in admitting the evidence based on the void search warrant in this cause. The affidavit for the search warrant was vague and indefinite and is not with such description as would enable an officer to locate the place to be searched. There is a distinction between Matthews v. State, 100 So. 18, and the case at bar. In the instant case the search warrant directs the sheriff to search the person of Charley Osborne and the court held in Duckworth v. Town of Taylorsville, 107 So. 666, that there is neither statute nor common-law authority in this state for the issuance of a warrant for the search of the person of an individual and evidence procured by the search of the person of the defendant, where there is no authority to arrest, is inadmissible against the defendant, citing Comby v. State, 106 So. 827. In my opinion, to sustain this conviction, Medlin v. State, 108 So. 177, will have to be overruled.

III. The court erred in admitting the evidence of D. W. Dogan, sheriff, E. S. Chapman and Glen Whitehead, prohibition agents, W. J. Jennings, Jr., and R. M. Woods, deputies, and the confessions and admissions by the defendant in the lower court. Floyd v. State, 103 So. 368; Sam v. State, 33 Miss. 347; Stanley v. State, 82 Miss. 498, 34 So. 360; Murray v. State, 104 Miss. 296, 61 So, 315; Baron v. State, 111 Miss. 231, 71 So. 374; Rayborn, v. State, 115 Miss. 730, 76 So. 639; Patterson v. State, 127 Miss. 256; Williams v. State, 129 Miss. 469.

In Donahue v. State, 107 So. 15, it is shown that the confession which was admitted was corroborated by the dying declarations of the deceased and, therefore, the court, then and now, has always viewed the confessions only when they were supported by corroborative evidence.

In Lovern v. State, 105 So. 759, the court held that evidence obtained by search without warrant to be inadmissible, unless it appeared that property was owned or in possession of the accused. And in the case at bar, the state has failed to prove that the property was owned or in possession of the appellant.

IV. The court erred in granting instruction No. 3 for the state. This instruction is based solely upon the admissions by the appellant and not supported by corroborative evidence.

W. A. Scott, Jr., Special Agent, for the state.

I. The court did not err in refusing to grant the motion for continuance. Appellant did not use that degree of diligence required of him by Lamar v. State, 63 Miss. 265, which holds that the due diligence required of defendant to secure his witnesses does not cease on the trial of the case, but that he must exercise this diligence throughout the entire term and produce the witnesses or their affidavits, if possible, on the hearing of the motion for a new trial. As to the two motions for continuance, we believe that both of them are defective and were properly overruled.

II. The evidence was properly admitted. The affidavit for the search warrant and the search warrant itself contained a sufficient description of the property to enable the officers to make the search. Bradley v. State, 98 So. 458, 134 Miss. 20; Matthews v. State, 100 So. 18, 134 Miss. 807; Loeb v. State, 98 So. 449, 133 Miss. 883.

Under the authority of Duckworth v. Town of Taylorsville, 107 So. 666, the appellant contends that the search warrant is void because it authorizes the search not only of defendant's property but also of his person. In the present case, however, we do not believe that the defendant is in a position to raise this question for the reason that there was no search of his person nor was any such search even attempted.

The defendant further contends that the evidence of the finding of the still was erroneously introduced in evidence for the reason that it was not found upon his premises. If the still was not upon the defendant's property then he cannot object to its introduction on the ground that the search warrant under which it was found was void. Ross v. State, 140 Miss. 367, 105 So. 846.

III. The instructions are correct. In substance, those refused for the defendant sought to tell the jury that the confessions could not be considered until the corpus delicti was first established. Under the authority of Walker v. State, 137 Miss. 246, 89 So. 921, a confession must be considered together with other evidence to establish the corpus delicti provided such other evidence is of such character as will justify the mind that it is a real and not an imaginary crime which the accused has confessed. To the same effect is Patterson v. State, 127 Miss. 256, 90 So. 2; and Garner v. State, 132 Miss. 815, 96 So. 743.

In the present case the corpus delicti is proved beyond dispute; and the confessions of the appellant were corroborated by the finding of the still and by the circumstances under which it was found.

OPINION

ETHRIDGE, J.

Appellant was indicted, tried, and convicted for the unlawful possession of a still, and sentenced to the penitentiary. Appellant was tried a few days before the present trial at the same term of the circuit court, and the jury, failing to agree, were discharged, and the case called for retrial during a subsequent week, and it...