Sims v. State, 37582

• Decision Date: 02 October 1950
• Docket Number: No. 37582,37582
• Citation: 47 So.2d 849,209 Miss. 545
• Parties: SIMS v. STATE.
• Court: Mississippi Supreme Court

Page 849

47 So.2d 849

209 Miss. 545

SIMS v. STATE.

No. 37582.

Supreme Court of Mississippi, Division B.

Oct. 2, 1950.

Robertson Horton, Winona, for appellant.

John W. Kyle, Attorney General, Geo. H. Ethridge, Jackson, for appellee.

ROBERDS, Presiding Justice.

Sims was indicted for the murder of Will Steve Shaw; was convicted of manslaughter and sentenced to ten years in the state penitentiary.

He says the evidence is insufficient to sustain the verdict. According to the evidence of the State, he killed Shaw in cold blood by shooting him with a shotgun at a time when he was in no personal danger whatever, real or apparent, at the hands of Shaw. According to appellant's testimony he killed Shaw in self-defense. This was purely a question of fact for decision by the jury. It accepted the evidence of the State, and that evidence amply supports the verdict.

Appellant next says he was denied due process of law. He seems to ground that contention on the assumption he was not properly represented by counsel in the lower court. He had different counsel on this appeal. Failure to protect his rights at the trial, he asserts, consisted in (1) failure to have present and use as witnesses in his behalf his two sisters; (2) failure of his counsel to make a motion for continuance; and (3) to object to certain testimony.

As to the absence of the two sisters, there is no showing in the record as to what the testimony of these witnesses would have been. We do not know whether it was relevant or pertinent or admissible. Nor is there any showing as to why they were not present. In addition to this, appellant was permitted, as a witness, to detail conversations between these two sisters and Will Steve Shaw and Bill Shaw, his brother, which conversations appellant says he overhead, and which conversations presumably constituted the testimony the sisters would have given as witnesses. There is no merit in this contention.

Failure of counsel to make a motion for continuance is grounded in this state of facts: The crime was committed on the night of October 28, 1948. A preliminary hearing was had November 1, 1948, and accused was bound over to await the action of the grand jury. At the preliminary hearing defendant was represented by Mr. Aldridge. Accused was indicted at the April 1949 term of court. Mr. Aldridge had been injured in an accident and the trial judge continued the case until the next term of court. When the case was called for trial at the October 1949 term of court announcement was made to the trial judge that Mr. Aldridge was no longer counsel for defendant; whereupon, the judge caused the names of all of the attorneys at the bar to be placed in a hat and he drew by lot the name of a local member of the bar and appointed him to represent Sims. The case was set for trial the next day. No motion was made for continuance. However, as stated, the case had been continued once. A year had elapsed since the crime was committed. It is not shown that counsel needed more time for preparation of the defense. The record does disclose, without explanation, that defendant was represented not only by the attorney so selected by the trial judge but also by an attorney who resided in another county.

And as to the third specified reason for reversal, absence of objections to evidence, brief of able counsel on this appeal mentions failure to object to introduction into the evidence of the shotgun used by Sims in the killing of Shaw, and failure to object to introduction of a photograph of the scene of the crime. No reason is perceived why objection to introduction of the gun would have been sustained. Appellant admitted this was the gun with which ...