Walker v. State

• Decision Date: 10 July 1922
• Docket Number: 22535
• Citation: 129 Miss. 449,92 So. 580
• Court: Mississippi Supreme Court
• Parties: WALKER v. STATE

92 So. 580

129 Miss. 449

WALKER v. STATE

No. 22535

Supreme Court of Mississippi

July 10, 1922

March 1922

CRIMINAL LAW. Denial of continuance for absence because of illness of only witness for defendant held error.

Where the defendant in a criminal case made application for a continuance because of the illness and inability of his wife to attend and testify in his behalf, she being the only witness to the facts favorable to the defendant, and the state refusing to admit the truth of her evidence as set out in the application for a continuance, it was error to overrule the motion for a continuance, although the state admitted she would so testify it present as set out in the affidavit. Scott v. State, 80 Miss. 197, 31 So. 710 cited.

HON. C P. LONG, Judge.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.

Leck Walker was convicted of having intoxicating liquor in his possession, and he appeals. Reversed and remanded.

Judgment reversed, cause remanded.

W. J. Lamb and T. A. Clark, for appellant.

The record shows that the only witness that could testify anything in behalf of the appellant was his wife. His affidavit in support of his motion for a continuance sets out what he expects to prove by her, which is bound to be admitted by anyone was very material for his defense; that she was properly subpoenaed, lived within the jurisdiction of the court, and that she was at home sick in bed with pneumonia, as is shown by the certificate of a reputable physician. This fact was not disputed nor rebutted by anything on the part of the state.

In the case of Caldwell v. State, 37 So. 816, this court said: "In view of the fact that the statements contained in appellant's affidavit for a continuance were not denied or in any wise discredited, the application should have been granted. The record shows that the witness desired had been duly subpoenaed, was in less than one mile of the courthouse, and was too sick to attend the trial. The state should have either contested the truth of these statements, or the trial postponed until the attendance of the witnesses could have been procured. The record of a completed trial shows that the testimony of the absent witness would have been most material to the appellant and we cannot say with confidence that the result might not have been different if that testimony had been detailed by the witness to the jury. Under the facts of this case the error in refusing a continuance was not cured by the district attorney admitting that the witness, if present, would testify to the contents of the application. Defendant was entitled to have his witness present in person. Scott v. State, 80 Miss. 199, 31 So. 710; Watson v. State, 81 Miss. 700, 33 So. 491; Corbin v. State, 99 Miss. 486.

We could cite innumerable decisions by this court sustaining this same contention, but those cited above are directly in point, and it certainly seems to us that every sense of justice and right demanded that this case should have been continued until this appellant could have had his witness present in court to testify before the court and the jury, and especially in this case when she was the only corroborating witness that he could have as to the crime with which he was charged.

Wm. Hemingway, assistant-general, for the state.

The motion for continuance was presented in due form and at the proper time. The state admitted that the wife would testify to the facts as set out in the motion for a continuance. Under the rules of evidence defendant was entitled to have the witness present if it was necessary to the conduct of his case, but the granting of a continuance is in the discretion of the court. The state's witnesses testified that she was not present when the drink was secured and the quart bottle exhibited, and denied being drunk and firing the pistol. So that, after all, the facts to which she could have testified were before the court and the jury. Her testimony...