Opinion
No. 36825.
April 12, 1948.
CRIMINAL LAW.
Defendant's failure to procure affidavits of absent witnesses, as to what their testimony would have been in support of his motion for new trial based on alleged error in overruling of motion for continuance on account of absence of two persons by whom he claimed he could prove an alibi, justified denial of new trial.
APPEAL from the Circuit Court of Calhoun County.
Stone Stone, of Coffeeville, for appellant.
The court erred in forcing the appellant to trial in the absence of his material witnesses, Mrs. T.O. Chancellor and Mr. T.O. Chancellor, they living in the county and being under the compulsory process of the court and not brought to the courtroom on account of the fact, it was certified by a reputable physician, that they were unable to come; that is, Mrs. Chancellor was in bed sick and unable to come and Mr. Chancellor was unable to leave her bedside. The appellant repeatedly asked for a continuance until these witnesses could be brought to the courtroom and the court never brought them to the courtroom and refused the continuance. They were both attached and not less than half a dozen times during the trial the appellant, through his counsel, asked for the attendance of the witnesses.
I have never seen it required on a motion for a new trial to have the affidavits of the proposed witnesses.
Greek L. Rice, Attorney General, by Geo H. Ethridge, Assistant Attorney General, for appellee.
To entitle a defendant in such case to a continuance because of the absence of a witness, he should promptly have the witness summoned; must ask for an attchment if the witness has been summoned and failed to appear; must apply for a continuance before venire drawn, and set out in his affidavit the name and residence of the absent witness and the facts expected to be shown by him, and also show what steps have been taken to secure his attendance; must negative the idea that he is absent with defendant's consent or procurement and give the cause of the witness' absence, if it be known. If the continuance be refused, defendant must sue out the proper process for his witness, and when the case is called for trial must again apply for a continuance, making such changes in his affidavit as the conditions then existing require. If still refused, he should persist in using the process of the court to compel the attendance of the witness on the trial, and if convicted on the hearing of a motion for a new trial. If the appearance of the witness cannot be had, his ex parte affidavit must be presented to the court, if it can be obtained, on the hearing of the motion for a new trial.
Lamar v. State, 63 Miss. 265; Ivey v. State, 154 Miss. 60, 119 So. 507; Cox v. State, 138 Miss. 370, 103 So. 129; Ogden v. State, 174 Miss. 119, 164 So. 6; Robinson v. State, 178 Miss. 568, 173 So. 451; Boatwright v. State, 143 Miss. 676, 109 So. 710; Blevens v. State, 169 Miss. 868, 154 So. 269; Ware v. State, 133 Miss. 837, 98 So. 229; Webster v. State, 194 Miss. 381, 12 So.2d 533.
The appellant was convicted of grand larceny. At the trial he sought but was refused a continuance on account of the absence of two persons by whom he claimed he could prove an alibi, and whose presence he had used due diligence to obtain. After the rendition of the judgment against him he filed a motion for a new trial alleging as a ground therefor that the court erred in overruling his motion for a continuance. He made no effort to obtain the presence of these witnesses at the hearing of this motion, which probably would have been futile, but it appears from the evidence of the appellant himself that the affidavits of these witnesses as to what their testimony would have been, could have been easily procured. More than sixty years ago this Court held in Lamar v. State, 63 Miss. 265, that the absence of such an affidavit on the motion for a new trial is fatal to the movant's right thereto. That case has since been continuously adhered to in many decisions. Consequently, the court below committed no error in overruling the motion for a new trial.
Affirmed.