Watts v. State
| Decision Date | 27 May 1907 |
| Citation | 44 So. 36,90 Miss. 757 |
| Court | Mississippi Supreme Court |
| Parties | LAWRENCE WATTS v. STATE OF MISSISSIPPI |
March 1907
FROM the circuit court of Pontotoc county, HON. EUGENE O. SYKES Judge.
Watts appellant, was indicted and tried for murder, convicted of manslaughter and appealed to the supreme court.
The case turned upon a question of a continuance, the facts in respect to which are stated in the opinion of the court.
Judgment reversed and cause remanded for new trial.
Knox & Donaldson, for appellant.
The application of appellant for a continuance because of the absence of Brassfield, should have been granted by the lower court. The application stated that this witness had been duly subpoenaed, and had answered every call of witnesses in the case except just immediately before the trial; and that appellant expected to prove that he was the first person to appear on the scene after the killing, and who moved deceased before the inquest, placing deceased upon the bed before anyone else was present; and that appellant expected to prove by Brassfield that he saw deceased the day before the killing, running, with a pistol in his hand, after the appellant's father, and that Brassfield heard the deceased say, "I am going to kill both you and Lawrence Watts.
In Long v. State, 52 Miss. 23, this court said: "It is a dangerous exercise of judicial discretion to refuse a continuance and a postponement of the trial to a further day of the term, when the affidavit alleges material facts, where all diligence has been shown, and where it is averred that the same proof can be made by no other than the absent witness." Nor is the error in not allowing a continuance or passing the case, cured by permitting the defendant to read his affidavit for continuance in evidence. Scott v. State, 80 Miss. 197, S.C., 31 So. 710; Montgomery v. State, 85 Miss. 330, S.C., 37 So. 825; Caldwell v. State, 27 So. 816; Whit v. State, 85 Miss. 208, S.C., 37 So. 809; Watson v. State, 81 Miss. 700, S.C., 33 So. 491.
It is said in Lamar v. State, 63 Miss. 265, that a defendant cannot secure a reversal of his case if he fails to renew his application at the trial, and does not complain thereof in his motion for a new trial. We call the court's attention to the fact that appellant's motion was seasonably renewed at the trial, and the action of the court in not granting the continuance, was alleged as a motion for a new trial. There was no lack of reasonable diligence on the part of appellant to procure the attendance of the witness. The district attorney, himself, admitted that the evidence of Brassfield, if it should be as stated in the application for continuance, was material.
Certainly the circuit court should not throttle justice and strangle fair play by forcing the defendant, who has shown due diligence in getting ready for trial, to go into the trial entirely without witnesses. Yet if every witness subpoenaed by appellant, had been absent, and application for continuance been made for such reason, it must be presumed, judging by the action of the court as to Brassfield, that the appellant would have been forced into trial anyhow. The discretion which a trial court exercises in matters of continuance, must be judicial, not arbitrary; it is the guardian of the rights of the accused, as well as of those of the people at large. 9 Cyc., 167; Hattox v. State, 80 Miss. 186, S.C., 31 So. 579; Havens v. State, 75 Miss. 488, S.C., 23 So. 181; Scott v. State, 80 Miss. 527, S.C., 31 So. 710; Hill v. State, 72 Miss. 197, S.C., 17 So. 375.
George Butler, Assistant Attorney-General, for appellee.
While the record shows that an attachment for the witness, Brassfield, was asked for, it nowhere shows that return was made thereon, nor is it shown that any further effort was made to have the witness present, either during the trial before the jury, or on the subsequent motion for a new trial; nor was appellant's affidavit for continuance because of the absence of Brassfield, submitted and read before the jury, nor any reason given why this was not done.
The appellant's application for continuance failed to set forth what was expected to be proved by the witness, Brassfield, with reference to the removal of the body; the application merely stating that there would be proof by the witness of the bare fact that he had moved the body of the deceased. It does not show that the witness was a freeholder or resident within the jurisdiction of the court; nor why the witness failed to appear in response to the attachment. We must presume that the court acted properly in overruling the application for continance. Wells v. State (Miss.), 18 So. 117.
The application does not meet the requirements of the rule announced in Lamar v. State, 63 Miss. 265. It is not in...
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