Opinion
No. 35960.
November 12, 1945.
1. CRIMINAL LAW.
Granting or refusing continuances is a matter largely within the discretion of the trial judge (Code 1942, sec. 1520).
2. CRIMINAL LAW.
Refusing a continuance based on absence of a witness was not error, where the witness was a nonresident, no effort had been made by defendant to procure the witness' presence at the trial and there was no proof that he would likely be available as a witness at any future trial (Code 1942, sec. 1520).
3. CRIMINAL LAW. Homicide.
Defendant's confession that he and deceased had quarreled and that defendant struck deceased with a stick, and evidence that stick was of sufficient size and used with sufficient force to crush deceased's skull, that defendant was the last person seen with deceased and that the body was found about three days later, warranted conviction of manslaughter.
APPEAL from the circuit court of Lee county, HON. THOS. H. JOHNSTON, Judge.
Sam E. Lumpkin, of Tupelo, for appellant.
A confession not corroborated by independent evidence is not sufficient to support a conviction of manslaughter.
Stringfellow v. State, 26 Miss. (4 Cushm.) 157, 1 Mor. St. Cas. 691, 59 Am. Dec. 247; Brown v. State, 32 Miss. 433, 1 Mor. St. Cas. 974; Rayburn v. State, 115 Miss. 730, 76 So. 639; Miller v. State, 129 Miss. 774, 93 So. 2; Williams v. State, 129 Miss. 469, 92 So. 584; Butler v. State, 129 Miss. 778, 93 So. 3; Garner v. State, 132 Miss. 815, 96 So. 743; Floyd v. State, 138 Miss. 697, 103 So. 368; Sykes v. State, 157 Miss. 600, 128 So. 753; Pope v. State, 158 Miss. 794, 131 So. 264.
The application of appellant requesting a continuance should have been granted.
Woodward v. State, 89 Miss. 348, 42 So. 167; Montgomery v. State, 85 Miss. 330, 37 So. 835; Caldwell v. State, 85 Miss. 383, 37 So. 816.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
There is no merit in the argument that the court erred in overruling the motion for a continuance.
Lamar v. State, 63 Miss. 265; Ivey v. State, 154 Miss. 60, 119 So. 507; Cox v. State, 138 Miss. 370, 103 So. 129; Everett v. State, 147 Miss. 570, 113 So. 186; Ware v. State, 133 Miss. 837, 98 So. 229; other cases collected in Mississippi Digest, Title "Criminal Law," Key Nos. 587, 594.
Ordinarily a continuance will not be granted if the witness is out of the jurisdiction of the court or out of the state. Where the witness is out of the state the showing must be clear that he will be produced at the next court and this testimony must not be doubtful.
Sanders v. State, 141 Miss. 289, 105 So. 523; Samuels v. State, 153 Miss. 381, 120 So. 920; Mississippi Digest, Title "Criminal Law," Key No. 594 (3).
A confession alone is not sufficient to convict of the crime but, where a crime has been committed, that is, where the corpus delicti is established, the corpus delicti and the confession taken together are sufficient if they satisfy the minds of the jury of the defendant's guilt beyond a reasonable doubt. The corpus delicti does not have to be proven beyond a reasonable doubt before a confession is admitted but only by a preponderance of the evidence, and when proven by a preponderance of the evidence, a confession taken in connection with the corpus delicti is sufficient to show defendant's connection with the crime or his guilt thereof. This clearly appears from the authorities cited by the appellant. There can be no doubt of the sufficiency of the proof in this case to establish the corpus delicti and, furthermore, that the deceased was last seen with the appellant on Friday night and was never seen alive again, which would be a very strong circumstance to establish guilt and would have been sufficient therefor, in my opinion, without the confession. But when all of the proof is taken together, as it must be, it is for the jury to say whether or not the evidence convinces them beyond a reasonable doubt. All questions of fact, where there is a conflict in the evidence, are for the jury's decision.
Mississippi Digest, "Criminal Law," Key Nos. 741-745.
Ellis was indicted for the murder of Savannah Woods, convicted of manslaughter, sentenced to the state penitentiary for ten years, and he appeals.
He contends (1) that his application for a continuance should have been granted, (2) that confessions introduced by the state were not free and voluntary, and (3) that the proof is insufficient to convict him.
His application for continuance was based upon the absence of his brother, Elisha Ellis. The crime occurred the night of Friday, January 5, 1945. Appellant was arrested the night of January 8th and placed in jail. His confessions were made January 10th. During this time Elisha was at the home of appellant and he was present when the confessions were made. It is not shown just how long he remained in this state after January 10th — apparently, only a short time. The case was tried May 29, 1945. No process was issued, or requested, for Elisha, nor is it shown that appellant made any effort to procure his presence as a witness at the trial. Elisha was a nonresident of Mississippi and there is no proof whatever that he would likely be available as a witness at any future trial of the case. Granting or refusing continuances is a matter largely within the discretion of the trial judge. We cannot say it was error for the court to overrule the motion for a continuance under the circumstances here. Section 1520, Code 1942; Lamar v. State, 63 Miss. 265; Ware v. State, 133 Miss. 837, 98 So. 229; Cox v. State, 138 Miss. 370, 103 So. 129; Everett v. State, 147 Miss. 570, 113 So. 186; Samuels v. State, 153 Miss. 381, 120 So. 920; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Ogden v. State, 174 Miss. 119, 164 So. 6.
There were two confessions — one, oral, made in jail, the other, written, made in the office of the county attorney. It is not necessary for us to say whether they were or were not free and voluntary, for the reason appellant testified in the case and the only substantial difference between his testimony and the confessions is that in the confessions he said he "reached down and grabbed up a stick and hit her" without specifying the size of the stick, and in his testimony he said he hit her with a switch or stick about the size of his finger. But in either case the evidence is sufficient with the other evidence in the case to sustain the verdict of the jury. It is shown, outside of the confessions, that Savannah lived with her husband about 250 yards from Ellis; that she had been cooking for Ellis about six months; that on the night of January 5th she came to his home late in the evening to cook a cake for Ellis and his brother Elisha, who was visiting appellant; that while Savannah was doing that appellant began to play his phonograph and discovered that some of the records had been scratched and damaged and that he accused Savannah of damaging them. This she denied, but Elisha contradicted her. A quarrel ensued. Later, about 9:30 to 10 o'clock, appellant told Savannah it was time for her to go home. She started home, and appellant, as had been his custom, started to accompany her. He had a flashlight and a twenty-two rifle. When they got about forty yards from the house, appellant again brought up the subject of the damaged records and the quarrel started over, appellant again accusing Savannah of damaging them. To this she replied that he was a liar; whereupon, according to the confessions, he reached down and picked up a stick and hit her, and, according to his testimony at the trial, he picked up a switch or small stick, about the size of his finger, and hit her. He says she ran away and he came back into his house and inquired if she had returned to the house, which she had not done. Later, about eleven o'clock, Ellis went to her home, awakened her husband and inquired if she had come home, and learned that she had not. About daylight the next morning appellant went back to her home and again did that, finding she had not returned. A search was made for her but her body was not found until the following Monday afternoon about 2:00 o'clock. When found, it was a mile and a half from the home of appellant and from her own home, in a creek bottom, and a short distance from the creek or canal. Her skull was crushed above the left eye, the wound being one and a half to two inches long. The doctor testified that she died from this wound, and that in his opinion it was caused by a blow with a blunt instrument, having, very likely, a sharp edge. Her legs were badly scratched and skinned from her knees down, indicating that they had been dragged along the ground and through brush and weeds. Apparently, she had been dead for some time; some decomposition had set in.
It is thus seen that appellant was the last person with her; that they were angry; that appellant struck her with a stick which the jury might well have believed, and no doubt did believe, was of sufficient size and used with sufficient force as to, and it did, crush her skull, causing her death. It is not claimed by appellant that Savannah was making any threat or demonstration towards him whatsoever, and while he said she ran away, the jury, no doubt, reasoned that, after she had received this fatal wound, she could not have gone a mile, or any distance of length by her own efforts, and, too, that had she been able of her own motion to have gone any distance she would have gone to her home 250 yards away and not into the creek bottom, a mile distant, and that, consequently, her body was carried by appellant to the spot where it was found. It was reasonable, too, for the jury to conclude that his inquiries at her home were a ruse to divert suspicion from himself and not an act of solicitude for her welfare. Therefore, we think the evidence, without the confessions, was entirely sufficient to uphold the verdict of the jury.
Affirmed.