State v. Jackson

• Court: Louisiana Supreme Court
• Writing for the Court: HAWTHORNE
• Citation: State v. Jackson, 250 La. 1100, 202 So.2d 264 (La. 1967)
• Decision Date: 30 June 1967
• Docket Number: No. 48543,48543
• Parties: STATE of Louisiana v. Ed JACKSON.

Page 264

202 So.2d 264

250 La. 1100

STATE of Louisiana v. Ed JACKSON.

No. 48543.

Supreme Court of Louisiana.

June 30, 1967.

Rehearing Denied Oct. 4, 1967.

C. O. Brown, Alexandria, for defendant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Robert P. Jackson, Asst. Dist. Atty., for the State.

HAWTHORNE, Justice.

The defendant Ed Jackson, tried for manslaughter, convicted, and sentenced to four years at hard labor in the state penitentiary, has appealed. This appeal presents only the question, raised by bills of exception, whether the trial judge erred in overruling defendant's motions for a continuance.

The minutes of court, so far as pertinent, reflect the following: On November 12, 1965, the defendant being present in open court and represented by counsel, the case was fixed for trial for Wednesday, January 19, 1966, at 10:00 a.m. On January 17, two days before the trial date, the defendant filed a motion for continuance alleging that a material witness named Harvey (or Bobby) Stafford was absent. This motion was overruled. On January 18, the day before the date set for trial, he again sought a continuance because of the absence of this witness, and in this motion further objected to going to trial on January 19 because that date was a legal holiday, Robert E. Lee's birthday. On January 19 the trial judge refixed the case for trial for the following day, January 20, and again overruled defendant's motion for a continuance based on the ground of the absence of the witness.

The absent witness Stafford had been summoned by the State but evidently was never served with this summons. The trial judge's per curiam shows the following: Counsel for the defendant discovered on January 17, two days before the case was to come up for trial, that the witness Stafford was no longer in Louisiana. On this date, January 17, he caused a summons to be issued for the witness, knowing at the time that the summons could not be served because the witness was out of the state, and on the same day he filed his first motion for a continuance. The judge says in his per curiam:

'* * * The reason for the Court denying the motion for continuance was that there had been no due diligence shown by the defendant in seeking to have this witness summoned. The State waived the right to have the witness present. The defendant can not rely upon witnesses appearing in Court upon a summons from the other side because the other side may very easily waive his appearance, which they did do in this particular case.

'In addition to this there was no showing by the defendant to where this witness had gone,...