Stokes v. State

• Decision Date: 11 February 1935
• Docket Number: 31588
• Citation: 172 Miss. 199,159 So. 294
• Court: Mississippi Supreme Court
• Parties: STOKES v. STATE

159 So. 294

172 Miss. 199

STOKES v. STATE

No. 31588

Supreme Court of Mississippi

February 11, 1935

Division B

Suggestion Of Error Overruled March 11, 1935.

APPEAL from the circuit court of Jefferson Davis county HON. HARVEY MCGEHEE, Judge.

Alton Stokes was convicted of murder, and he appeals. Affirmed.

Affirmed.

G. Wood Magee, of Monticello, and Martin & Berry, of Prentiss, for appellant.

W. D Conn, Jr., Assistant Attorney-General, for the state.

Briefs of counsel not found.

Argued orally by G. Wood Magee, for appellant.

OPINION

Ethridge, P. J.

The appellant was indicted, in the circuit court of Jefferson Davis county, for the murder of one Dale Cliburn, tried and convicted, and sentenced to serve a life term in the state penitentiary, from which judgment he appeals.

The first ground relied upon for a reversal is that the court overruled the appellant's motion for a continuance on account of the illness of his wife, said motion alleging that his wife had recently been operated upon in the hospital at Columbia, and had not recovered sufficiently to wait on and take care of herself, and that, by reason of such illness, his wife was unable to attend the trial, and that he desired her presence at said trial. There was no testimony offered on the motion, and no physician's certificate as to the nature and character of her illness, and whether it was serious enough to divert the appellants' attention from matters concerning the trial.

There was no motion for a new trial on this ground, and no evidence was offered to show any prejudice resulting either to the appellant or his wife by reason of the overruling of the motion.

This case had been previously continued from term to term, from August, 1930, to January, 1934. The trial judge has a large discretion to refuse or grant a continuance, and we see no reason to disturb his ruling in the present case. It is true that in cases where the wife of a defendant is ill to the extent that her life is in danger, the court would and should, ordinarily grant a continuance, but much would depend upon the character and nature of the evidence, and the circumstances, including a history of the case.

It is also argued that the evidence is insufficient to sustain a conviction, and that the appellant should have been granted a peremptory instruction. The circumstances of the killing are, substantially, as follows: The deceased, Dale Cliburn, and his brother were in Short's hot dog stand, or restaurant. When Stokes came into the restaurant, he asked the brother of the deceased his name, and he replied that he had not been named yet. He then asked the deceased his name, and he replied that he had not been named, but that he was a brother of the first one addressed. The testimony differs then as to what happened. According to the state's evidence, Willie Cliburn, the brother of the deceased, the appellant began to curse, stating that he did not give a damn what their names were; that the witness arose, and Short, the keeper of the restaurant, jumped up on the counter armed with an automobile pump, and told all of them to get out of the restaurant, and told his wife to "call the law," and they went out to where their car was parked; the appellant followed them and assaulted the witness, and one Luper, who was jointly indicted with the appellant, struck him from the rear, and appellant stabbed him in the head with a knife, and he did not know what happened subsequently; that he and his brother were not drunk, and were unarmed. This witness testified that Dale Cliburn was stabbed in the head and never was conscious, and never made any statement. A physician was called and attended them, and some witness testified that Willie Cliburn and the deceased, Dale Cliburn, were, in his opinion, drunk.

The father of the Cliburns stated that neither of his sons owned any weapons. The wife of the restaurant keeper testified, her recollection, apparently, not being very clear, but her testimony was corroborated by Willie Cliburn, as to what happened in the restaurant, and also that, after the fight, she requested a man to go to the scene thereof and see if there were any weapons, and that this man reported that he did not see anything except a pair of knucks, which he threw away.

Luper who was present, and was jointly indicted with Stokes, testified that when Stokes, the appellant, came into the restaurant, he asked Willie Cliburn what his name was, and he told the appellant he had not been named, and appellant then asked Dale Cliburn his name, and he stated he was a brother of Willie Cliburn, and the appellant then stated it looked like their mother would think enough of them to name them, and that Willie Cliburn thereupon jumped up and began to curse, and Stokes and Luper went down the street fifty or sixty feet, after the restaurant keeper, Short, had jumped on the counter armed with an automobile pump, and that Willie and Dale Cliburn followed them. Luper further testified that Willie and Dale Cliburn came to where Stokes was, and that he could see motions like blows were being struck and that he saw the Cliburns fall; that he (Luper) was then...