Opinion
No. 37582.
October 2, 1950.
1. Due process of law — failure of counsel to call named witnesses — nothing of record as to what testimony of witness would have been, if called.
Complaint by appellant that he was not accorded due process of law that he was not properly represented in the trial by counsel appointed by the court because his two sisters were not called as witnesses in his behalf presents no ground for review when
(1) there was no showing in the record as to what the testimony of these two witnesses would have been; when
(2) there was no showing as to why they were not present, and when
(3) the defendants themselves were permitted to testify to that which presumably would have constituted the testimony of the two witnesses.
2. Due process of law — failure to request continuance.
Complaint by appellant that he was not accorded due process of law in that he was not properly represented in the trial by counsel appointed by the court because no application was made for a continuance is not well taken when the homicide had occurred a year before, and the case had been continued at the previous term, and no showing is or was made that more time was needed for the preparation of the defense, and when the defendant was represented also by other counsel than the appointee of the court.
3. Due process of law — failure of counsel to object to admissible evidence.
The shotgun admittedly used by defendant in committing the homicide was admissible in evidence as relevant to his plea of self-defense as were also the photographs, which, as shown by the testimony, accurately depicted the scene and the relevant distances and the proximity of the places involved, and the failure of counsel to object to their introduction furnished no ground for the contention that defendant was not accorded due process because not properly represented by counsel appointed by the court.
4. Courts — regular and special judge — motion for new trial.
When a special judge presided at the trial and the motion for a new trial was heard and overruled by the regular judge, no cause for a reversal is presented (a) because not known but what the special judge would have overruled the motion and (b) because on the record it was properly overruled.
5. New trial — new discovered evidence.
A motion for a new trial for newly discovered evidence will be overruled when the affidavits in support thereof do not show that the defendant exercised due diligence to discover such evidence, and when the testimony as disclosed by the affidavits would not have been competent had it been offered.
6. Appeal — absence of defendant on hearing of motion for new trial — point not raised in the trial court nor in the assignments of error.
The contention that defendant was not present on the hearing of the motion for a new trial and that he was thereby denied his constitutional rights will not be noticed on appeal when it was not mentioned in the trial court, so as to call attention of the court to it; was not mentioned in appellant's assignments of error or in his original brief, but is raised for the first time in the reply brief.
7. Criminal procedure — presence of accused on hearing of motion for new trial.
When a defendant is in custody he has the right to waive his presence on the hearing of the motion for a new trial.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Montgomery County; CHAS. D. FAIR, Special Judge.
Robertson Horton, for appellant.
In the trial of this cause appellant was denied due process of law in violation of Section 14, Article 3, Mississippi Constitution. Richardson v. State, 196 Miss. 560, 17 So.2d 799; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Brooks v. State, 46 So.2d 94.
The verdict is contrary to the evidence. Westbrook v. State, 32 So.2d 251; Dobbs v. State, 29 So.2d 84; Ewing v. State, 9 So.2d 879; Johnson v. State, 186 Miss. 405.
The court erred in overruling the motion for a new trial. Dyess v. State, 199 So. 74.
The regular judge was without authority to pass upon the motion for a new trial. Illinois Cent. R. Co. v. Bowles, 71 Miss. 994.
George H. Ethridge, Assistant Attorney General, for appellee.
There was no proof offered in support of the motion for a new trial and this is required because a motion is at issue without further pleading and the movant must, to sustain his motion, introduce proof on such issue. Reed v. State, 143 Miss. 686, 109 So. 715, and Shaw v. State, 188 Miss. 549, 195 So. 581.
As the court was conducted in public and was presided over by a judge learned in the law with court officers and the general public in attendance, it would be easy to prove, if such were a fact, that appellant was not properly defended and furthermore, it was the duty of the appellant to have produced as witnesses the two persons making affidavits to see what they would actually testify to so that the trial court could see whether such testimony was proper for it does not appear from the mere circumstances that the person referred to in the affidavits was drunk and it does not appear in this record that he was drunk at the time of the killing or that there was any previous malice or ill will between the appellant and the deceased and the brother of the deceased. I, therefore, submit that there was no error in overruling the motion on the ground alleged but not proved and that should have been proved before the court to sustain the allegations of the motion for a new trial.
Appellant also contends that the verdict is contrary to the evidence, citing Westbrook v. State, 37 So.2d 251; Dobbs v. State, 29 So.2d 84; Ewing v. State, 9 So.2d 879, and Johnson v. State, 186 Miss. 405.
The evidence is clearly sufficient if the jury believed the State's witnesses and all questions of the credibility of the witnesses and the weight and worth of the evidence where there is dispute in the evidence are for the jury and this Court will not overturn its judgment.
Appellant contends that the regular judge was without authority to pass upon a motion for a new trial. It appears from the record that the Governor appointed a special judge to preside in this case and he presided until the verdict was rendered. If the regular judge was incompetent to pass upon it this objection should have been made before the motion was passed on and the special judge required to consider and pass upon such motion. I submit that when counsel permitted the regular judge to hear the motion and decide it without objection he waived all rights on such question. Furthermore, there is nothing in the record, in my judgment, which would have authorized either judge to grant a motion for a new trial.
This Court cannot, in the absence of specific objection and proof, review the action of counsel appointed to defend a person as to whether such attorney was competent. Every presumption is that the lawyer was competent and that he did his duty and if this is challenged it would have to be done by allegation and proof making such a case as would show a neglect of duty or incompetence. That may have happened in other cases from a consideration of the whole record but it does not appear here. It would be going a long way to say that a lawyer who was licensed to practice law in the State was not competent to practice, and this is especially true where there are two lawyers participating in the defense, each of whom is licensed to practice law in all the courts of the State.
Sims was indicted for the murder of Will Steve Shaw; was convicted of manslaughter and sentenced to ten years in the state penitentiary.
He says the evidence is insufficient to sustain the verdict. According to the evidence of the State, he killed Shaw in cold blood by shooting him with a shotgun at a time when he was in no personal danger whatever, real or apparent, at the hands of Shaw. According to appellant's testimony he killed Shaw in self-defense. This was purely a question of fact for decision by the jury. It accepted the evidence of the State, and that evidence amply supports the verdict.
Appellant next says he was denied due process of law. He seems to ground that contention on the assumption he was not properly represented by counsel in the lower court. He had different counsel on this appeal. Failure to protect his rights at the trial, he asserts, consisted in (1) failure to have present and use as witnesses in his behalf his two sisters; (2) failure of his counsel to make a motion for continuance; and (3) to object to certain testimony.
(Hn 1) As to the absence of the two sisters, there is no showing in the record as to what the testimony of these witnesses would have been. We do not know whether it was relevant or pertinent or admissible. Nor is there any showing as to why they were not present. In addition to this, appellant was permitted, as a witness, to detail conversations between these two sisters and Will Steve Shaw and Bill Shaw, his brother, which conversations appellant says he overheard, and which conversations presumably constituted the testimony the sisters would have given as witnesses. There is no merit in this contention.
(Hn 2) Failure of counsel to make a motion for continuance is grounded in this state of facts: The crime was committed on the night of October 28, 1948. A preliminary hearing was had November 1, 1948, and accused was bound over to await the action of the grand jury. At the preliminary hearing defendant was represented by Mr. Aldridge. Accused was indicted at the April 1949 term of court. Mr. Aldridge had been injured in an accident and the trial judge continued the case until the next term of court. When the case was called for trial at the October 1949 term of court announcement was made to the trial judge that Mr. Aldridge was no longer counsel for defendant; whereupon, the judge caused the names of all of the attorneys at the bar to be placed in a hat and he drew by lot the name of a local member of the bar and appointed him to represent Sims. The case was set for trial the next day. No motion was made for continuance. However, as stated, the case had been continued once. A year had elapsed since the crime was committed. It is not shown that counsel needed more time for preparation of the defense. The record does disclose, without explanation, that defendant was represented not only by the attorney so selected by the trial judge but also by an attorney who resided in another county.
(Hn 3) And as to the third specified reason for reversal, absence of objections to evidence, brief of able counsel on this appeal mentions failure to object to introduction into the evidence of the shotgun used by Sims in the killing of Shaw, and failure to object to introduction of a photograph of the scene of the crime. No reason is perceived why objection to introduction of the gun would have been sustained. Appellant admitted this was the gun with which he shot his victim. He invoked self-defense. The gun was competent evidence. Objection to its introduction would have been useless.
As to the photograph, the evidence is uncontradicted, it accurately and correctly depicted the scene of the crime and surroundings. It was especially helpful and pertinent in this case because it not only accurately disclosed the scene of the tragedy but also the home of appellant and the distance thereof from the place of the shooting, the proof showing that in his anger appellant departed the place where the difficulty first started, deliberately went to his home some three hundred and eighty-six feet away, procured his shotgun, returned to, or near, the initial spot of the difficulty, and killed Shaw by shooting him with this gun. The proximity of the home where the gun was procured to the initial scene of the difficulty and the place where the shooting took place were all pertinent facts as bearing upon the malice and intent of appellant and whether he was the aggressor. The photograph was competent and no reason is perceived why objection should have been made thereto.
(Hn 4) Appellant next says we should reverse the case because a special judge presided at the trial and the regular judge heard and denied the motion for new trial. We do not try to delineate the respective powers of these judges as regards this motion for the reasons, first, it is not shown, of course, whether the special judge would have sustained the motion, and, therefore, that appellant suffered harm by his failure to pass on the motion, and, second, because the motion on its merits, in our opinion, was properly overruled. We might add, in this connection, we have noted the affidavits of newly discovered evidence attached as a part of the motion for a new trial. (Hn 5) The affidavits do not warrant a new trial for the reasons, first, it is not shown defendant exercised due diligence to learn of such evidence, and, second, because the testimony, as disclosed by the affidavits, would not have been competent had it been offered.
(Hn 6) Appellant next says he was denied his constitutional rights in that he was not present when the motion for new trial was heard. The contention can avail him nothing here. This was not mentioned in the lower court. Absence of defendant was not brought to the attention of the trial judge. The point was not mentioned in the assignments of error nor in the original brief of appellant on this appeal. Counsel frankly says it is mentioned for the first time in his reply brief. We need not consider it. However, (Hn 7) on the merits, we might add that apparently under this record defendant was in custody. Under such circumstances he had the right to waive his presence at the hearing. Sec. 2519, Code 1942; Odom v. State, 172 Miss. 687, 161 So. 141; Hamburg v. State, 203 Miss. 565, 35 So.2d 324.
Affirmed.