Opinion
No. 36006.
April 8, 1946.
1. CRIMINAL LAW.
Grounds for continuance are left to trial court's discretion.
2. CRIMINAL LAW.
The established rules of procedure in moving for a continuance are subject to circumstances of each case.
3. CRIMINAL LAW.
The requirements that a motion for continuance must be supported by affidavit of defendant, a showing of continued diligence by court process and otherwise to procure attendance of absent witness, and after conviction additional affidavit of defendant supporting motion for new trial are limited to those situations where conformity is practicable.
4. CRIMINAL LAW.
Where defendants made seasonable motion for continuance on ground that only witness who could testify to fact that allegedly stolen goods had been purchased by defendants was on board a ship at sea as member of merchant marine and was unavailable as a witness, that process for him had been requested but he could not be reached, that defendants had used due diligence to reach such witness and that he would be available at next term of the court, overruling of the motion, in absence of defendants and their attorney after originally sustaining the motion, was an abuse of discretion.
APPEAL from the Circuit Court of George county, HON. L.C. CORBAN, Judge.
T.J. White, of Gulfport, for appellants.
The motion for continuance complied with all of the requirements of law. The motion was heard and a continuance was granted. After the defendants had been remanded to jail, and their attorney had left the jurisdiction, and without any further proceedings being had or done, or any proof of any kind or character being offered, the court arbitrarily reinstated the case. An additional motion for continuance was filed, which was in substance the same motion which was filed four days before. The court arbitrarily overruled the motion. This was clearly an abuse of discretion. While the question as to whether an order granting a continuance should be set aside is within the sound discretion of the court, this power should be exercised only for the most cogent reasons and in such rare cases as show most plainly no abuse of discretion and no material injury to accused. It should never be exercised in a manner to operate as a surprise on the party who has been permitted to depart after obtaining the continuance. Where a criminal cause has been continued until the next regular term on the application of the state, it is error for the court to set aside the order of continuance and put accused on his trial at an adjourned term against his consent.
Long v. State, 94 Miss. 230, 48 So. 726; Shows v. State, 112 Miss. 731, 73 So. 729; Campbell v. State (Miss.), 50 So. 499; Johnson v. State, 111 Miss. 828, 72 So. 239; Watts v. State, 90 Miss. 757, 44 So. 36; 22 C.J.S. 770, Sec. 491, p. 834, Sec. 526; Underhill's Criminal Evidence, p. 935, Sec. 456, p. 943, Sec. 458.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
On hearing of motion for continuance, no showing was made that appellants had used all the processes of the court to secure attendance of absent witness; and, no reason being given as to why they did not secure an affidavit from said witness setting out the facts to which he would testify if present, no ground for reversal exists.
Lamar v. State, 63 Miss. 265.
A motion is at issue without an answer and movant must produce evidence to sustain its allegations.
Reed v. State, 143 Miss. 686, 109 So. 715.
Refusal of motion for continuance is a matter of discretion, and reversal will not lie except upon a showing that the court has abused this discretionary power.
Ellis v. State, 198 Miss. 804, 23 So.2d 688; Lamar v. State, 63 Miss. 265; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Tonnar v. Wade, 153 Miss. 722, 121 So. 156; Strong v. State, 199 Miss. 17, 23 So.2d 750; Cody v. State (Miss.), 24 So.2d 745; Grangers' Life Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446; Gibson v. State, 59 Miss. 341; Cantrell v. Peugh, 149 Miss. 21, 115 So. 116; Code of 1942, Sec. 1520.
The court did not abuse his power in setting aside the order granting continuance of the case to next term and putting appellants to trial at once. Court's control over his orders and judgments exists during the whole term and they may be set aside by the court at any time during the term.
Wilson v. Handsboro, 99 Miss. 252, 54 So. 845, Ann. Cas. 1913E, 345; Brown v. Sutton, 158 Miss. 78, 121 So. 835; Watson v. State, 166 Miss. 194, 146 So. 122.
It must be presumed that the acts of the judge were valid and that he had good reason to set aside the order of continuance and put the appellant to trial.
Lipscomb v. State, 76 Miss. 223, 25 So. 158; Watson v. State, supra.
Appellants were convicted of grand larceny. We direct our attention only to the action of the trial judge in refusing a continuance of the case.
Motion for continuance was seasonably made and contained sworn averments in substance as follows: Defendants were charged with the theft of sheep; that in fact they were purchased from one Earl Cox from whom bills of sale were procured; that Cox is the only witness who could testify to this fact and that he was on board a ship at sea as a member of the Merchant Marine forces and is unavailable as a witness; that process for him had been requested but he could not be reached or communicated with; that movants had used due diligence to reach him, and that he would be available at the next term of the court.
This motion was promptly sustained by the court, whereupon the defendants and their attorney quitted the court. The following day the trial judge reversed his order and reinstated the case upon the docket and set the trial for hearing six days later at the same term. On the latter date the motion was renewed and denied. Whereupon the defendants were put to trial and convicted. Motion for new trial was overruled.
Grounds for continuance cannot be cast in a definite mould but are left to the sound discretion of the court. Procedure for invoking this discretion is subject to conformance with established rules, yet such rules are in turn subject to the circumstances of each case. Such rules of procedure were laid down in Lamar v. State, 63 Miss. 265, and have been followed since; the latest case being Cody v. State (Miss.), 24 So.2d 745. In the Lamar case the procedure was standardized by the requirements that the affidavit of the defendant must be offered, continued diligence by court process and otherwise to procure his attendance, and after conviction additional affidavit of the defendant supporting the motion for new trial. However, the court took a realistic view of these prerequisites by limiting them to those situations where such conformity was "practicable."
The motion of the defendants here was not contested. The first motion, originally sustained, was later overruled in the absence of the defendants and their attorney. There was no evidence later adduced upon the motion to impair its sworn recitals. It was not practical to comply with any of the requirements of the Lamar case other than what was done. Further process was futile and no affidavit of the witness was available. In view of the circumstances of this case, we are of the opinion that the absent witness was necessary properly to present a defense and that the explanations for a failure to follow formal procedures are reasonable and sufficient. We decide this case upon its own facts, and in holding that there was an abuse of the learned trial judge's discretion in the instant case, we guard against a corresponding abuse of the privilege of defendants similarly situated by denying to this case any status as a precedent for future judgments where the factual patterns are dissimilar.
Although the case is to be remanded and other assignments of error may be ignored, it is in point to state, since there is to be retrial, that the instructions refused to the defendants were properly refused as being redundant of those theretofore granted.
Reversed and remanded.