Opinion
No. 36434.
May 5, 1947.
1. CRIMINAL LAW.
In murder prosecution, evidence sustained denial of motion to continue case for a term on ground that accused was placed in jail and was not permitted to confer with friends and relatives or arrange for his defense.
2. CRIMINAL LAW.
Refusal to continue a murder prosecution until the next term of court in order to enable defendant's attorneys properly to prepare a defense was not error, where case was set for trial seven days after hearing the motion, it was not shown that any material witness was not present to testify, and rights of defendant were fully protected and he had a fair and impartial trial (Code 1942, sec. 2518).
3. CRIMINAL LAW.
In murder prosecution, alleged error in admitting statement by witness respecting the shooting on the ground that it was not a part of the res gestae and not a dying declaration was harmless where defendant's own testimony clearly showed that he was guilty of murder.
APPEAL from the Circuit Court of Oktibbeha County. HON. JNO. C. STENNIS, J.
H.T. Carter, of Columbus, and Neal Prisock, of Louisville, for appellant.
The court erred in overruling the appellant's motion for a continuance. From the testimony in this record no one was permitted to see appellant until just before the trial. The attorneys representing the appellant did not have sufficient time to make a proper defense, and the court should have allowed them more time to prepare this case for trial.
A statement of a person shot, made a minute or two after the shooting, in the absence of the accused, to the effect that the accused shot him and shot him for nothing, is merely the rehearsal or history of the shooting, a past transaction, and is not admissible as a part of the res gestae. This statement is in no sense a verbal act explaining any part of the difficulty and constituting a part of it.
Haney v. State, 129 Miss. 486, 92 So. 627.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The main ground relied upon for continuance was that counsel for appellant did not have sufficient time to make an investigation of the case. The evidence herein shows that the killing took place on July 14, 1946, that he was indicted on October 21, 1946, and, according to the motion for continuance, counsel was employed on October 21, 1946. The court ordered said cause for trial on October 28, 1946, upon which date said trial was held. From the above facts, it will be observed that counsel was given one week in which to prepare for trial and that there was no showing that any of the witnesses were absent or unavailable. Therefor, the court was correct in overruling the requested continuance.
Goins v. State, 155 Miss. 662, 124 So. 785; McClellan v. State, 183 Miss. 184, 184 So. 307; Code of 1942, Sec. 2518.
The court did not err in admitting the testimony of one Bish Doss, who testified to the statement the deceased made when shot, "What they want to shoot me for?" The statement was made immediately after deceased was shot and was a part of the res gestae. Furthermore, in view of the strong case made by the State, the appellant could not have been prejudiced by the admission of this statment. The appellant testified in his own behalf, and from his own testimony the jury was justified in finding him guilty as charged.
Before this Court will reverse a cause, it must be satisfied in two facts — namely, that error in favor of appellee was committed in the trial, and, second, that the error was prejudicial to the appellant.
Calicoat v. State, 131 Miss. 169, 95 So. 318; Jones v. State, 104 Miss. 871, 61 So. 979, L.R.A. 1918B, 388; Patterson v. State, 106 Miss. 338, 63 So. 667; Lewis v. State, 132 Miss. 200, 96 So. 169; Goins v. State, supra; Comings v. State, 163 Miss. 442, 142 So. 19.
Garner was convicted of the murder of Barron Thomas and sentenced to be electrocuted.
On this appeal he assigns seven errors he claims the lower court committed. We have carefully examined all of them. Only two are sufficiently serious to require discussion.
One was the action of the trial judge in refusing to continue the case for the term. The motion contains two grounds: One is that the accused was placed in jail and not permitted to confer with friends and relatives and arrange for his defense. The proof does not bear out that contention. On the other hand, it shows that he was permitted to, and did, confer freely with his father and sister, and no request was made by him to see an attorney, and, of course no such request being made, there was no denial of such request.
The second, and main ground of the motion was counsel for appellant did not have time in which to prepare his case. The crime was committed July 14, 1946. Garner was indicted October 21, 1946. That day he employed two attorneys to represent him. They promptly made the motion under consideration. While the trial judge refused to continue the case until the next term of court, he did set the case for trial seven days after hearing the motion. There is no showing this was not ample time for preparation of his case. In fact, the record shows it was well prepared. All of the testimony centered around one place and one occasion. All witnesses who were at the scene were available to both the State and the defendant. Apparently they all testified. It is not shown that any material witness, or any witness desired by appellant, was not present to testify. So far as the record discloses the rights of appellant were fully protected and he had a fair and impartial trial. Under these conditions we would not be justified in reversing the action of the judge in refusing to continue the case until the next term of court. Section 2518, Code 1942; Goins v. State, 155 Miss. 662, 124 So. 785; McClellan v. State, 183 Miss. 184, 184 So. 307.
The second alleged error we shall discuss was the admission by the court of a statement by the witness Doss that Thomas, after he was shot and after appellant had left the scene, said, "What they want to shoot me for?" Appellant says this statement, by its nature and the time spoken as compared to the time of the shooting, was not a part of the res gestae (Haney v. State, 129 Miss. 486, 92 So. 627), and was not a dying declaration, and, therefore, not competent. The record is confusing as to the exact time, as compared to the time of the shooting, this statement was made. The trial judge thought it was made immediately thereafter. However, it is not necessary for us to decide whether the statement was a part of the res gestae, for the reason that appellant's own testimony clearly shows he was guilty of murder. In such case, an error of the character here under consideration, if there was error, is not prejudicial. Comings v. State, 163 Miss. 442, 142 So. 19.
Affirmed, and Thursday, June 26, 1947, is set for the date of execution.