Summary
In Cruthirds v. State, 190 Miss. 892, 896, 2 So.2d 145 (1941), the Court held that under the provision of the state constitution guaranteeing a fair and impartial trial, a "fair and impartial trial" includes a reasonable opportunity to prepare for trial.
Summary of this case from Yates v. StateOpinion
No. 34422.
May 12, 1941.
1. CRIMINAL LAW.
Under provision of state constitution guaranteeing a fair and impartial trial, a "fair and impartial trial" includes a reasonable opportunity to prepare for trial (Const. 1890, sec. 26).
2. CRIMINAL LAW.
Generally, the granting or refusing further time to prepare for trial and continuances is largely discretionary with trial judge, but the discretion must be a sound judicial discretion having due regard to rights of public and of defendant (Code 1930, sec. 576; Const., 1890, sec. 26).
3. CRIMINAL LAW.
Where defendant was immediately arraigned, in absence of his attorney, after his arrest on charge of having whisky unlawfully in county, and trial was set for 8:30 the next morning, and defendant's attorney who had been engaged in the chancery court in another part of state was able to arrive but five minutes before commencement of trial, trial court's refusal of defendant's motion for a continuance to permit attorney to confer with defendant and to prepare his defense was an abuse of discretion as denying defendant the constitutional right of a "fair and impartial trial," notwithstanding that principal witness of defendant was out of state, especially where affidavit in support of motion stated that principal witness would voluntarily appear and testify if given an opportunity to do so (Code 1930, sec. 576; Const., 1890, sec. 26).
APPEAL from circuit court of Simpson county, HON. EDGAR M. LANE, Judge.
T.J. White, of Gulfport, for appellant.
It is the contention of the appellant in this case that he did not and could not, under the circumstances, have a fair trial; that he did not have an opportunity to be represented by his attorney; that no attorney can prepare the necessary motions as outlined in the statute within five minutes, and not then unless and until he has had an opportunity to confer with the defendant and the defendant's witnesses. The defendant's chief witness was more than 150 miles from the place where the trial was conducted. And his attorney had no opportunity until immediately preceding the time that he was forced to go to trial to even see the indictment, and as he did not have an opportunity to see the indictment he had no opportunity to prepare a demurrer to the same, or a motion for a bill of particulars, requesting that the state advise the defendant of the time and place that he was charged with having had in his possession intoxicating liquors.
We submit that every decision cited by the appellee in its argument was based on a fair and conscientious trial of the case in an effort to see that justice was administered; but in the case at bar we submit that the constitutional rights of the defendant were violated in every way that it was possible for a court to violate them; that the crime he is charged with is not a heinous crime; that a few days' delay would not have worked an injustice on anyone, not even if the case had been continued for the term, which the defendant did not ask.
A.M. Byrd, Assistant Attorney General, for appellee.
The motion for a continuance, together with the allegations of it, was not supported by an affidavit or any testimony. The motion, together with the allegations of it, was at issue, and the appellant had the burden of sustaining by evidence the allegations of it.
Tatum v. State, 171 Miss. 336, 157 So. 892; Young v. State, 150 Miss. 787, 117 So. 119; Reed v. State, 143 Miss. 686, 109 So. 715.
The circuit court could not and cannot sustain this motion for a new trial, because the judgment of conviction and sentence of the appellant became a final judgment when the September term, 1940, of the circuit court adjourned, which was before this motion for a new trial was filed by the appellant; and this motion for a new trial is not properly a part of this record.
Pittman v. State, 147 Miss. 593, 113 So. 348.
The allegations of the motion are not supported by any testimony. Such is required of the appellant by the law of this state before the motion will be considered by this court.
Henderson v. State, 187 Miss. 166, 192 So. 495; Tatum v. State, 171 Miss. 336, 157 So. 892; McKnight v. State, 171 Miss. 152, 157 So. 351; Lamar v. State, 63 Miss. 265.
Under the law of this state the question of whether a continuance should have been granted was largely discretionary with the trial judge.
Allgood v. State, 173 Miss. 27, 161 So. 756; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Jones v. State, 168 Miss. 702, 152 So. 479.
If, after a consideration of the motion for a continuance and the motion for a new trial, this court should conclude that the trial judge abused the discretion given him by the law, then the question before this court is one of due process of law.
Busby v. State, 177 Miss. 68, 170 So. 140.
The defendant was indicted, tried, convicted and fined $500 in the Circuit Court of Simpson County for having whiskey in his possession unlawfully in that county. The sole ground of his appeal is that he was tried with such haste and under such conditions that he was denied the opportunity to confer with his attorney and prepare for his defense. It appears from the record that the indictment was returned on September 13, 1940, and the warrant for the arrest of the defendant was mailed to the Sheriff of Harrison County, where the defendant resided. The defendant was arrested by the Sheriff of Harrison County about 10 o'clock on the morning of September 20, 1940. The Sheriff of Simpson County went to Gulfport for the defendant. The defendant was allowed some three minutes within which to confer with his attorney at Gulfport. His attorney, who lived at Gulfport, wired the district attorney, explaining that he was engaged in Chancery Court at Gulfport, and asked for a continuance of the case or time to investigate the merits of the case and prepare for trial. It is not shown whether there was any response to that communication. The Sheriff of Simpson County returned to Mendenhall, where the circuit court was in session, with the defendant in his custody, arriving there about or after dark the day of his arrest; and the defendant was immediately arraigned, in the absence of his attorney, and entered a plea of not guilty, and the trial judge "directed the defendant that if he had any witnesses that he wanted to summon here in his defense to turn their names into the hands of the circuit clerk and we would get them here." The case was set for trial at 8:30 the next morning. Counsel for defendant was able to leave the Chancery Court at Gulfport only because the chancellor adjourned court on account of a misfortune in his family. Counsel left Gulfport about 4:30 A.M. of September 21st and drove to Mendenhall, some 140 miles distance, according to the record. The defendant was placed upon trial at 8:30 A.M., September 21, 1940, some five minutes after his counsel arrived. His counsel dictated to the stenographer a motion asking for time to confer with his client and prepare his defense, not having time to reduce the motion to writing and in the form required by the statute. The motion was overruled. The state introduced six witnesses. The defendant had no witnesses.
After his conviction, the defendant made a motion to set aside the verdict and for a new trial on the grounds heretofore set out, which motion was duly supported by affidavit, the facts of which are not denied in this record, which motion was overruled.
Section 26 of the Constitution of Mississippi guarantees to every person a fair and impartial trial. A fair and impartial trial includes a reasonable opportunity to prepare for trial. Reed et al. v. State, 94 Fla. 32, 113 So. 630; State v. Collins, 104 La. 629, 29 So. 180, 81 Am. St. Rep. 150; State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, Ann. Cas. 1917E, 116; State v. Fairclough, 86 Utah, 326, 44 P.2d 692; Cade v. State, 96 Miss. 434, 50 So. 554; Knox v. State, 97 Miss. 523, 52 So. 695; State v. Musselman, 101 Wn. 330, 172 P. 346, L.R.A. 1918E, 523, and annotations to that case. In Coker v. State, 82 Fla. 5, 89 So. 222, the court set forth the right in these words: "Justice requires, and it is the universal rule, observed in all courts of this country, it is most sincerely to be hoped, that reasonable time is afforded to all persons accused of crime in which to prepare for their defense. A judicial trial becomes a farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person is hurried into trial upon an indictment charging him with a high crime, without permitting him the privilege of examining the charge and time for preparing his defense. It is unnecessary to dwell upon the seriousness of such an error; it strikes at the root and base of constitutional liberties; it makes for a deprivation of liberty or life without due process of law; it destroys confidence in the institutions of free America and brings our very government into dispute."
Even the state is given a reasonable opportunity to prepare for the prosecution. Ex parte Jefferson, 62 Miss. 223.
It is true that granting or refusing further time and continuances is largely discretionary with the trial judge, but the discretion must be a sound judicial discretion having due regard to the rights of the public and of the defendant. Section 576, Code of 1930; Jones v. State, 168 Miss. 702, 152 So. 479; Goins v. State, 155 Miss. 662, 124 So. 785; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Allgood v. State, 173 Miss. 27, 161 So. 756.
No doubt the action of the learned trial judge in this case was influenced by the fact that the principal witness of defendant was out of the state, but the affidavit stated she would voluntarily appear and testify if given an opportunity to do so, and in the Knox case, supra, this court said: ". . . there are times when the trial court should allow a continuance, even when it appears that the absent witness cannot be reached with process at the time the application is made."
Dispatch of courts, saving of costs in their operation, speedy trials are commendable in the trial judges, but zeal in these respects must have due regard for the rights of defendants. The right is more valuable than the saving.
The storm of oppression, brute force and hate which is sweeping across a large part of the universe has leveled to the ground the temple of justice in many countries, and even in our own it has been shaken and broken in places, yet we may fervently hope that when this storm shall have spent its fury there will remain, undisturbed, as one of the foundational pillars of that temple, the right of all men, whether rich or poor, strong or weak, guilty or innocent, to a fair, orderly and impartial trial in the courts of the land.
Reversed and remanded.