Opinion
No. 38437.
September 22, 1952.
1. Criminal procedure — continuance — new trial, motion for — affidavit of absent witness.
When a continuance because of an absent witness has been denied, the defendant must preserve his point in a motion for a new trial accompanied by an affidavit of the absent witness or by evidence as to why the affidavit could not be obtained.
Head note as approved by Ethridge, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, Judge.
Wingo Finch, for appellant.
We submit that a grave injustice was done the appellant by the refusal to grant to him a continuance in this case, by forcing him to trial in the absence of his only witness; that we have shown that the material witness was absent because of illness; that there was a strong probability that the absent witness could be procured at a later term of the court; that the testimony of the absent witness was not cumulative; that due diligence was shown. Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Long v. State, 52 Miss. 23; Caldwell v. State, 85 Miss. 383, 37 So. 816; Knox v. State, 97 Miss. 523, 52 So. 695; Walker v. State, 129 Miss. 449, 92 So. 580; Childs v. State, 146 Miss. 794, 112 So. 23; Brooks v. State, 108 Miss. 571, 67 So. 53.
J.T. Patterson, Assistant Attorney General, for appellee.
We here raise the point that appellant did not, after trial and conviction, enter a motion for a new trial, setting forth as ground therefor the overruling of appellant's motion for a continuance and presenting with said motion for a new trial the ex parte affidavit of the absent witness, Mrs. Lonnie Smith, as this Court has consistently held since Lamar v. State, 63 Miss. 265, should be done before this Court will reverse the trial court on account of its failure to grant a motion for a continuance.
The appellant's motion for a continuance shows that the absent witness, Mrs. Lonnie Smith, resides in the Carnes community in Forrest County, Mississippi, and further shows that the appellant resided in the same community, and, therefore, the absent witness' ex parte affidavit could have been very easily obtained and presented with a motion for a new trial, neither of which this record shows to have been done. Parker v. State, 201 Miss. 579, 29 So.2d 910; Bone v. State, 207 Miss. 20, 41 So.2d 347; Chap. 11, Mississippi Criminal Law and Procedure by Wingo.
Appellant was convicted of grand larceny and was sentenced to serve three years in the State penitentiary. On this appeal he argues that the trial court erred in overruling his motion for a second continuance, because of the absence for sickness of a witness in his behalf. The witness resided in Forrest County where the case was tried. We think that this proposition is controlled by the rule concerning continuances which was first set forth in Mississippi in Lamar v. State, 63 Miss. 265 (1885), with reference to the necessity for preservation of this point in a motion for new trial with affidavit of the absent witness or evidence as to why her affidavit could not be obtained. See Clanton v. State, 51 So.2d 577 (Miss. 1951); Pass v. State, 209 Miss. 744, 48 So.2d 362 (1950); Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950); Bone v. State, 207 Miss. 20, 41 So.2d 347 (1949); Parker v. State, 201 Miss. 579, 29 So.2d 910 (1947); Wingo, Mississippi Criminal Law and Procedure (1951), Sec. 151.
Affirmed.
Roberds, P.J., Alexander, Lee, and Kyle, JJ., concur.