Opinion
No. 38895.
February 1, 1954.
1. Criminal law — continuance — denied.
In action by State against named defendants for unlawful possession of integral parts of a still, error could not be predicated upon denial of continuance on ground of absence of coindictee when case was first called, where thereafter, on day of trial, coindictee was present, was tried jointly with defendant, and testified as witness in case.
2. Criminal law — admissions — freely and voluntarily made — properly admitted.
In such case, admissions of defendants that integral parts of still belonged to them were properly admitted, where such admissions were shown to have been freely and voluntarily made.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Itawamba County; RAYMOND T. JARVIS, Judge.
Royce L. White, Fulton, for appellants.
I. The Court erred in not granting a continuance. Roberson v. Quave, 211 Miss. 398, 51 So.2d 62.
II. The statement of the Sheriff in which he used the words "their personal belongings" when speaking of the appellants was a conclusion of fact and should not have been allowed to go to the jury over the objection of the defendants.
III. The admission of all of the evidence of the State relative to their confessions or admissions was reversible error because it is uncontroverted that such admissions were made while defendants were held at the point of a gun and this Court has repeatedly held that for a confession to be admissible, every reasonable doubt must be excluded which would show that the confession was procured by the hope of reward or the fear of punishment. Blalock v. State, 79 Miss. 517, 31 So. 105; Whip v. State, 143 Miss. 757, 109 So. 697; Williams v. State, 72 Miss. 117, 16 So. 296; Wright v. State, 198 Miss. 211, 22 So.2d 1.
IV. Confessions induced by fear, though not aroused by spoken threats are nevertheless involuntary, because the fear which takes away the freedom may arise solely from conditions and circumstances surrounding the confessions. White v. State, 129 Miss. 182, 91 So. 903.
V. The Court should have granted the appellant's instruction to find the defendant not guilty at the close of the evidence. Ratcliff v. State (Miss.), 32 So.2d 151; Ray v. State, 175 Miss. 623, 168 So. 617.
John E. Stone, Asst. Atty. Gen., Jackson, for appellee.
I. The lower court committed no error in not granting appellants' motion for a continuance. Bone v. State, 207 Miss. 20, 41 So.2d 347; Sec. 1520, Code 1942; Wingo's Miss. Criminal Law and Pr., Par. 136.
II. The confessions of appellants were competent evidence. Dickson v. State, 164 Miss. 540, 544, 143 So. 855; Pinter v. State, 203 Miss. 344, 34 So.2d 723; Watson v. State, 166 Miss. 194, 212, 146 So. 122.
III. The evidence was sufficient to sustain the convictions. Justice v. State, 170 Miss. 96, 154 So. 265; Kidd v. State, 137 Miss. 419, 102 So. 68; Ratcliff v. State (Miss.), 32 So.2d 151; Ray v. State, 175 Miss. 623, 168 So. 617.
(Hn 1) The contention that the trial court erred in denying Vaughn's motion for a continuance, on the ground that Thornley, his coindictee, was not present, must fall. While Thornley was absent, when the case was first called, thereafter on the day of the trial, he was present, was tried jointly with Vaughn, and testified as a witness in the case. (Hn 2) The admissions of the defendants that the integral parts of the still belonged to them were properly admitted, because such admissions were shown to have been freely and voluntarily made. The evidence fully warranted the jury in finding a verdict of guilty.
Affirmed.
McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.