Wells v. State, No. 47626

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: WALKER
• Citation: 288 So.2d 860
• Docket Number: No. 47626
• Decision Date: 21 January 1974
• Parties: Arthur Lee WELLS v. STATE of Mississippi.

Page 860

288 So.2d 860 Arthur Lee WELLS
v.
STATE of Mississippi. No. 47626. Supreme Court of Mississippi. Jan. 21, 1974.

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Ramsey, Bodron & Thames, Paul Kelly Loyacono, Vicksburg, for appellant.

A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.

WALKER, Justice:

The appellant, Arthur Lee Wells, was convicted in the Circuit Court of Warren County for the crime of burglary of an occupied dwelling and sentenced to ten years in the state penitentiary, and from that judgment, he prosecutes this appeal. We affirm.

A detailed narration of the evidence presented to the jury is not necessary and only those facts which are relevant to the alleged errors will be discussed.

The appellant first complains that the trial court improperly granted the State two continuances, one on July 24, 1972, and another on July 26, 1972, over the objection of the defendant who was thereafter tried at the next term of court on November 16, 1972. The thrust of appellant's argument is that the State failed to furnish the affidavit called for in Mississippi Code Annotated section 99-15-29 (1972). That section reads as follows:

On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.

Where the requirements of section 99-15-29 are not strictly complied with, a denial of the continuance shall not be grounds for a reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom. Dean v. State, 234 Miss. 376, 106 So.2d 501 (1958). However the problem here is that the continuance was granted and the defendant has not cited any case nor are we able to find a case where a continuance was granted the State that this Court has held that failure to comply with section 99-15-29 was reversible error. Therefore, the error, if any, must be predicated upon the defendant being denied a speedy trial. In this regard, the record reflects that the defendant was indicted on December 2, 1971; that on January 28, 1972, a motion was made on his behalf by his attorney that he be sent

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to the Mississippi State Hospital for a mental examination; that he was sent to the hospital and remained there until May, 1972, after which he was returned to the Warren County jail; that his case was set for trial at the next term of court on July 24, 1972; that due to the absence of a material witness said cause was continued on the State's motion until July 26; that on July 26 said cause was again continued on the State's motion due to the absence of the same material witness until November 16, 1972, at which time the defendant was tried, convicted and sentenced. In the case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) which upheld a conviction of a defendant who was not tried for five years after indictment, the Court, after rejecting the rule that a defendant who fails to demand a speedy trial waives this right, and declining to specify any time period within which an accused must be offered a trial went on to say:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which court should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiring into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

We have already discussed the third factor, the defendant's responsibility to assert his right....