Polk v. State

• Decision Date: 09 February 1914
• Citation: 106 Miss. 513,64 So. 215
• Court: Mississippi Supreme Court
• Parties: MRS. GEORGE POLK v. STATE

64 So. 215

106 Miss. 513

MRS. GEORGE POLK v. STATE

Supreme Court of Mississippi

February 9, 1914

October 1913

APPEAL from the circuit court of Lamar county, HON. A. E WEATHERSBY, Judge.

Mrs George Polk was convicted of the unlawful sale of intoxicating liquors and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and remanded.

J. T Garraway, for appellant.

It was never the intention of courts of justice to take advantage of technicalities to maintain a conviction, or to try dead people, or invalids, groping under wreaking pain, over which they have no control.

The evidence in the record before this court shows that the appellant was suffering from rheumatism, and otherwise afflicted, in ward No. 45 of the Charity Hospital of New Orleans; and there is not the slightest intimation, or contradictory evidence in the record to negative the idea that this was not the truth, and honest facts, and this being true, we submit that this was a gross abuse of judicial discretion, in overruling the appellant's motion for a new hearing; but it does not stop here, for another as good or better reason why this case should be reversed is that this record shows that Mr. J. W. Shanks, the appellant's attorney in the lower court, had an agreement and understood that he was to be notified by the district attorney when this case was to be called for trial, and was then to attend and represent appellant which is a very common practice among lawyers, and there is nothing in the record to show that this was not a fact as it is not denied by the testimony by any one or any attempt to refute these facts.

We challenge our able attorney-general to point out to this court a single case on record where the defendant was tried in his or her absence while they were down under the treatment of a physician, wrecked with pain and misery, and unable to attend court and the showing made to this effect, and where counsel had a misunderstanding about the trial, ever was permitted to stand, and we submit that the defendant should not have been tried in her absence, and the absence of her counsel, and since she was and after the motion to set aside the verdict, heard on the same day under the showing made, was sufficient to have the verdict set aside.

We don't think there is any law humane or divine that requires obedience to such a strict rule of procedure and to force a judgment to stand under such circumstances seems to be going beyond common sense and good judgment and the clear intent of our law.

The evidence in this record shows that defendant's counsel was misled, as well as the defendant being unable to attend court when the appellant was tried, and when these facts were brought to the attention of the court the verdict should have been set aside.

Cases are numerous where new trials have been granted because the defendant was not present in consequence of being misinformed. See Hannah v. Ind. Cent. R. R. Co., 18 Ind. 431. The whole spirit of modern jurisprudence is directed to prevent substantial justice from being defeated by an adherence to mere technical forms. See Huett v. Cobb, 40 Miss. 61.

A new trial was granted in the case of Barkley v. Hanlan, 55 Miss. 606, on the ground that the defendant and his witness was absent because that defendant understood that the case would be dismissed, and that was a civil case, and the facts in that case are not as strong as the one at bar and it goes without contradiction and is elementary that the rule would not be enforced.

Frank Johnston, assistant attorney-general, for the state.

A special statute provides expressly that misdemeanor cases can be tried in the absence of the defendant. The application for a continuance on the ground of Mrs. Polk's absence ought to have been made before the trial of the case. Her absence at the time of the trial was not per se a ground for a continuance of the case for the statute makes a case of misdemeanor triable in the absence of the defendant. If therefore, it appears that...