Scott v. State, 38317

• Decision Date: 11 February 1952
• Docket Number: No. 38317,38317
• Citation: 218 Miss. 892,56 So.2d 839
• Parties: SCOTT v. STATE.
• Court: Mississippi Supreme Court

Page 839

56 So.2d 839

218 Miss. 892

SCOTT v. STATE.

No. 38317.

Supreme Court of Mississippi.

Feb. 11, 1952.

L. Percy Quinn, G. L. Martin, Colin Stockdale, Jackson, for appellant.

J. P. Coleman Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant, Earl Scott, was convicted in the Circuit Court of Leflore County of robbery with firearms under Code of 1942, Sec. 2367, and sentenced to fifteen years in the State penitentiary. See also Code Secs. 1995, 1996.

The verdict and judgment are amply supported by the evidence. The question of appellant's guilt vel non was one for the jury, and the trial court properly denied a requested peremptory instruction and a motion for a new trial.

After the state had rested and appellant had put on four witnesses as to the reputation for truth and veracity of the chief witness for the State, an accomplice of appellant in the crime, appellant's attorneys made a motion that they be allowed a conference with all of the appellant's witnesses 'altogether'. In denying the motion, the trial court said:

'When the witnesses were sworn before the taking of testimony began, counsel for Defendant stated to the Court that he wished the rule invoked, whereupon, the rule was invoked and all the witnesses I think, with the exception of the witnesses to the general reputation of Kirby Mitchell, were sworn and caused to be retired from the courtroom.

'The Court will now allow counsel all the time reasonably necessary for him and his associate and his client to confer with the witnesses but not altogether. The Court will allow you such time as appears to be necessary and of course in the presence of the accused, to confer with the witnesses. That is the ruling of the Court.'

Appellant assigns as error this action of the trial court. However, in denying appellant's attorneys the right to confer with their witnesses 'altogether', the court expressly granted to appellant all the time reasonably necessary to confer with the witnesses 'but not altogether'. Appellant made no showing of how or in what respects he would be prejudiced by that ruling of the court. Although the court assigned as a reason the fact that appellant had put all of the witnesses under the rule, and this would not usually be the proper basis for such action, it is apparent that the court's ruling at that stage of the trial was based also on a desire to conserve time and to expedite the hearing. Such matters are generally within the sound discretion of the trial court, in the absence of a showing of abuse of that discretion and of probable prejudice to defendant. 23 C.J.S., Criminal Law, Sec. 1010, p. 380; 53 Am.Jur., Trial, Secs. 31-33; Graham v. State, 1943, 195 Miss. 291, 15 So.2d 478; see also Griffith, Mississippi Chancery Practice, 2d ed. 1950, Sec. 562, note 37.

The cases relied upon by appellant, White v. State, 1876, 52 Miss. 216; Allen v. State, 1884, 61 Miss. 627, and Shaw v. State, 1901, 79 Miss. 21, 30 So. 42, are not applicable, because there the trial courts wholly refused to permit defendants' attorneys to confer with witnesses. There was no such refusal here, but on the contrary the court expressly granted counsel the right to confer with the...