Robertson v. State

• Decision Date: 09 June 1930
• Docket Number: 28769
• Citation: 128 So. 772,157 Miss. 642
• Court: Mississippi Supreme Court
• Parties: ROBERTSON v. STATE

128 So. 772

157 Miss. 642

ROBERTSON v. STATE

No. 28769

Supreme Court of Mississippi, Division A

June 9, 1930

(Division A.)

1. CRIMINAL LAW.

Refusal of continuance for absent witness is not available on motion for new trial unless witness or affidavit is offered or inability shown.

2. CRIMINAI LAW. Refusal of new trial for newly-discovered evidence was not error, where neither alleged witness nor affidavit showing testimony was offered.

The record disclosed that purported witness was present in court between date of conviction and date of hearing on motion for new trial, and that he resided within ten miles of courthouse. However, defendant did not request process of court to compel attendance of witness nor request any delay of hearing of motion for purpose of securing such attendance which, so far as record disclosed, could have been secured within short time.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON Judge.

Frank Robertson was convicted of assault and battery, and he appeals. Affirmed.

Judgment affirmed.

A. Q. Broadus, of Purvis, for appellant.

It is always true that where there are conflicts in the evidence offered by the state, in so much so that the state has made a weak case, or one that is weak enough that the added newly-discovered evidence to the side of the defendant would reasonably be supposed to change the verdict of the jury, or be highly calculated to change its verdict, then and in that case it becomes the duty of the court to grant a new trial and if he refuses so to do the error is manifestly fatal.

McCearley v. State, 52 So. 796; Williams v. State, 54 So. 857; Watson v. State, 96 Miss. 369.

Geo. T. Mitchell, Attorney-General, and Forrest B. Jackson, Assistant Attorney-General, for the state.

To secure a reversal because of the failure of the lower court to grant a new trial, such motion for new trial being based upon newly-discovered evidence, the appellant must show before the lower court the evidence of the material witness which has been newly discovered, either by the witness himself, or by an affidavit of that witness.

Overton v. State, 58 So. 219, 101 Miss. 607; Hart v. State, 115 So. 887, 149 Miss. 817; Vaughn v. State, 151 Miss. 51, 117 So. 353; Steward v. State, 123 So. 891.

OPINION

Cook, J.

The appellant, Frank Robertson, was convicted in the circuit court of Lamar county on a charge of assault and battery, and was sentenced to pay a fine of one hundred dollars and to serve a term of six months in the county jail, and from this conviction and sentence he prosecuted this appeal.

The testimony offered by the state fully supports the verdict of the jury. The testimony of these witnesses was to the effect that, besides themselves, the only parties present at the scene of the difficulty were the appellant and his father. On account of the serious illness of a member of his family in another state the appellant's father was not present at the trial, and the cause was submitted to the jury upon the unsupported testimony of the appellant. He testified that he did not strike the injured party, and that he took no part whatever in the alleged difficulty. After his conviction, he filed a motion for a new trial on the ground of newly-discovered evidence which was material to his defense. This motion was supported by the proper affidavits of appellant and his counsel...