Scott v. State

• Decision Date: 31 March 1902
• Citation: 31 So. 710,80 Miss. 197
• Court: Mississippi Supreme Court
• Parties: AVERY SCOTT v. STATE OF MISSISSIPPI

31 So. 710

80 Miss. 197

AVERY SCOTT v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 31, 1902

FROM the circuit court of Kemper county. HON. GUION Q. HALL Judge.

Scott the appellant, was indicted, tried, and convicted of murder and sentenced to the penitentiary for life; the charge being that he had killed and murdered an Indian, commonly called "Bill Jones." From this conviction and sentence he appealed to the supreme court.

The facts are sufficiently inferable from the opinion of the court.

Reversed and remanded.

George Ethridge, for appellant.

The court below erred in overruling the application of the appellant for a continuance because of the absence of his wife, who was a material witness in his behalf. It must be noted that the continuance applied for was the first one asked in the case. The affidavit showed that the witness was a material witness; that she had been duly subpoened in appellant's behalf, and that she was absent without the consent or connivance of the defendant; that her absence was because of severe illness, which rendered her unable to attend court. The illness was such as to exempt her from amenability to compulsory process. In short, the affidavit was full, complete, and perfect, and entitled the appellant to the continuance. Nevertheless, it was refused; the court below, however, requiring the district attorney to admit the affidavit to be read in evidence, thereby showing what it was claimed the absent witness would have testified had she been present. The point we make is that the appellant was entitled to a continuance, in order to have the witness present, and his right ought to have been respected. The court below did not, nor could it, cure the error by permitting the affidavit to be read. Under the constitution of the state the defendant was entitled to process requiring the personal attendance of his witness, and where the showing is such as to convince the court that compulsory process would be unavailing, the continuance ought to have been granted, especially as it was the first continuance asked, and it was shown that the reasons the witness could not be present were temporary in their nature, and, in all human probability, that the witness could attend court at the next term. Abens v. State, 75 Miss. 488; Long v. State, 52 Miss. 23. The case ought at least to have been postponed until a later day of the term.

The case ought to be reversed for another reason. The district attorney wrongfully commented in argument to the jury on the absence of the witness, defendant's wife, and he did this in such a way as to indicate that the affidavit showing the cause of her absence was untrue. This affidavit was wholly uncontradicted, and the court below ought to have prevented such unjust and unfair argument as was made in this case.

W. L Easterling, assistant Attorney-General, for appellee.

The application for a continuance, the overruling of which is assigned for error, was based on the absence of the defendant's wife, on account of sickness. By this witness...