Woodward v. State

• Decision Date: 12 November 1906
• Citation: 89 Miss. 348,42 So. 167
• Court: Mississippi Supreme Court
• Parties: JOHN WOODWARD v. STATE OF MISSISSIPPI

42 So. 167

89 Miss. 348

JOHN WOODWARD v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 12, 1906

November 1906

FROM the circuit court of Amite county, HON. MOYSE H. WILKINSON Judge.

The appellant, John Woodward, was indicted on August 21, 1906 for the murder of one Johnson, who had been killed only a few days before, on August 11, 1906. Appellant was unable to employ counsel to represent him on his trial, and, as the charge was a capital offense, the court on August 21, 1906 the date on which appellant was arraigned, appointed counsel to defend him. When the case was called for trial eight days later, counsel for appellant, having used due diligence to prepare for the trial, moved for a continuance, showing by affidavit of appellant that one Robinson, a resident of the county and a most material witness for appellant, could not be found in the county, although subpoena had been issued for him. The affidavit further set forth the substance of what the absent witness would testify, and alleged that the witness was in another county of the state; that he had written that he was willing to appear and testify; and that appellant would have the witness present at the next term of court. With the affidavit counsel for appellant filed a letter dated August 27, 1907, written from Canton Mississippi, by the absent witness to appellant's employer, requesting money or a railroad ticket to enable him to return to the county. The prosecution objected to the continuance, and the court, after hearing testimony in the matter, overruled the motion, and forced appellant to an immediate trial. The appellant was convicted of manslaughter, and sentenced to the penitentiary for ten years. Appellant's motion for a new trial, based principally on the ground that the court erred in not granting a continuance, was overruled. Appellant thereupon prosecuted an appeal to the supreme court.

Reversed and remanded.

Clem V. Ratcliff, for appellant.

The case should be reversed and remanded. The homicide for which appellant was indicted was committed only a few days before the day of trial. Defendant had no means to employ counsel in his behalf, hence the court appointed counsel for his defense. Counsel were diligent in preparing for the trial, and in causing process to issue for appellant's witnesses. The case should have been continued on appellant's application. The absent witness was material, an eye witness, and it cannot be said that the verdict would not have been different if the absent witness had been present and testified. The appellant was left without a single witness in his behalf.

The application for continuance embodied all the requisite elements, and continuance should have been granted. Constitution 1890, art. 3, sec. 26; Whit v. State, 85 Miss. 208 (S.C., 37 So. 809); Montgomery v. State, 85 Miss. 330 (S.C., 37 So. 835); Caldwell v. State, 85 Miss. 383 (S.C., 37 So. 816); Scott v. State, 80 Miss. 197 (S.C., 31 So. 710); Watson v. State, 39 So. 689.

R. V. Fletcher, assistant attorney-general, for appellee.

The only question of serious nature here is whether the court erred in refusing to grant a continuance on account of the absence of the witness, Robinson. On the hearing of the application for continuance proof was taken, and it appeared that the witness was in Madison county. He had remained in Amite county until the circuit court was in...