Opinion
No. 39315.
November 8, 1954.
1. Criminal law — constitutional law — sufficient time allowed to prepare defense.
Under facts of case, defendant was not denied constitutional right to fair trial by being allowed insufficient time in which to prepare defense. Art. III Sec. 26, Constitution 1890.
2. Criminal law — continuance — hearing in absence of defense counsel — rehearing.
Defendant's motion for continuance should not have been heard in absence of defense attorney but error, if any, was cured when rehearing was granted.
3. Courts — signing minutes.
Unless minutes containing order extending term of Court are signed within regular term, all proceedings after last day of regular term are invalid.
4. Criminal law — signing minutes — Supreme Court — bound by trial judge's testimony.
On appeal from conviction for armed robbery, Supreme Court was bound by testimony of circuit judge that before expiration of regular term, he had signed minutes of regular term and entered order thereon extending term.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Clay County; JOHN D. GREENE, JR., Judge.
H.T. Carter, Columbus, for appellant.
I. Appellant contends that the lower court erred in this case in requiring him to go to trial at 9 a.m. on the twenty-first day of December, 1953, he having been arraigned on December 18, 1953, and entered a plea of not guilty, which gave the appellant only one (1) working day, to-wit, Saturday, December 19, 1953, in which to prepare a capital case for trial; and did thereby deny this appellant a fair trial, and did thereby further deny this appellant his constitutional rights and due process of law. Brooks v. Wynn, 209 Miss. 156, 46 So.2d 94; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Frank v. Mangum, 237 U.S. 309, 59 L.Ed. 969; Scarbrough v. State, 204 Miss. 487, 37 So.2d 748; Snyder v. Massachusetts, 291 U.S. 97, 78 L.Ed. 674; Sunderland v. United States, 19 F.2d 202.
II. The lower court erred in not continuing this case at 9 a.m. on the date of the trial, to-wit, December 21, 1953, and in requiring appellant to go to trial after his motion for a continuance was renewed, the appellant having announced at that time that he was not ready for trial, and did thereby deny him his constitutional rights. We recognize the rules of procedure to be that a motion, in order to be well taken, must be renewed at the time of the trial. This was done in the instant case, but the usual procedure of overruling prevailed. Brooks v. Wynn, supra; Cruthirds v. State, supra; Frank v. Mangum, supra; Scarbrough v. State, supra; Snyder v. Massachusetts, supra; Sunderland v. United States, supra.
III. The lower court erred in hearing the motion for a continuance without the presence of his counsel. The motion was filed and heard by the Court at a time when the appellant had no counsel representing him. There was testimony taken on the motion and proceedings had as if appellant was represented by counsel. This is certainly a denial of a fair and impartial trial. Warren v. State, 174 Miss. 63, 164 So. 234-6; 14 Am. Jur., Secs. 167, 190 pp. 883-4, 899.
IV. The lower court erred in refusing to set aside the conviction because the regular term of the Circuit Court of Clay County, Mississippi, expired at twelve o'clock midnight on December 26, 1953, by operation of law, and there was no signed order by the Presiding Judge on the minutes of the Court extending the regular term of the Court for an additional week commencing Monday, December 28, 1953; also, for the further reason that the conviction on the minutes of the Court was not signed during the regular term thereof. Grant v. State, 189 Miss. 341, 197 So. 826; Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901; Watson v. State, 166 Miss. 194, 146 So. 122; Williams v. State, 179 Miss. 419, 174 So. 581; Sec. 1410, Code 1942.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. Under the provisions of Section 1520, Mississippi Code of 1942, and the many decisions of this Court thereunder, it is evident from this record that the trial court did not commit error, or abuse its discretion, in overruling appellant's motion for a continuance. Bolin v. State, 209 Miss. 866, 48 So.2d 581; Gillespie v. State, 221 Miss. 116, 72 So.2d 245.
II. The record also shows that the Court did hear appellant's original motion for appeal in the absence of counsel for the appellant. However, the record also shows that on the following day when counsel for appellant appeared and objected to the action of the trial court in hearing the motion for a continuance in his absence, and moved the Court to set aside its finding thereon, the Court promptly sustained counsel's motion and proceeded to hear the proof on his motion for a continuance all over again. This having been done by the Court, no injustice whatsoever to the appellant was done by the Court in hearing, and passing on, appellant's motion for a continuance on the previous day.
III. The record clearly shows that appellant was tried and found guilty as charged by the jury during the regular December, 1953, term of Court of Clay County, and the copy of the minutes of said Court of December 21, 22, and 23, in addition to the statement of the trial judge, clearly shows that the minutes of the Circuit Court for said dates were signed by the trial judge. Moreover, if the trial judge's statement appearing in this record, that he on the twenty-third day of December, about 11:30 a.m. examined the minutes, along with an assistant deputy clerk, who has had several years experience as deputy clerk, and signed all minutes up to and including said time and date, be correct (and we submit there is nothing in this record to show that the statement of the trial judge is incorrect), then the December, 1953, term of Circuit Court of Clay County was properly extended for another week, beginning Monday, December 28, as the copy of the minutes appearing in this record shows that an order was entered by the Court on the twenty-second day of December, 1953, a day of the regular term provided by law, extending said term for another week beginning Monday, December 28; and the copy of the order entered by the Court appears in this record to have been duly signed by the Circuit Judge. Therefore, the appellant herein having been lawfully tried and convicted during the regular December, 1953, term of Circuit Court of Clay County, there can be no question as to appellant's trial and conviction being lawful in every respect; and the statement of the trial judge and the copy of the minutes of the Circuit Court of Clay County in evidence here clearly showing that the trial judge entered and signed an order extending the regular December, 1953, term of Circuit Court of Clay County on the twenty-second day of December, a day of the regular term, as authorized by Section 1647, Code of 1942, and on the following day, the twenty-third day of December, a day of the regular term, the Judge signed all minutes up to and including said date, there can be no question that appellant's sentence herein on the twenty-ninth day of December, 1953, a day of the extended term, was also lawful in every respect. Willette v. State, 219 Miss. 793, 69 So.2d 407.
IV. The appellant did not assign in his motion for a new trial that the verdict of the jury is against the weight of the evidence and, therefore, not having presented such question to the trial judge in his motion for a new trial, same cannot be argued as a ground for reversal here. Conn v. State, 220 Miss. 427, 71 So.2d 192.
V. Although this appellant was convicted on the testimony of an admitted accomplice, who is shown by this record to have been several times convicted of crime, the record also shows the testimony of this accomplice to be corroborated by physical facts and the testimony of other witnesses in every material respect. Bucklew v. State, 218 Miss. 820, 67 So.2d 881; Larry v. State, 211 Miss. 563, 52 So.2d 292.
Appellant was convicted of armed robbery and sentenced to a term of twenty-five years in the penitentiary, from which he appeals. The evidence is undisputed that appellant, in company of Ernest Rose, Robert Smith Ballew and Bill Pegram, went to a beer "joint" about one o'clock in the morning of June 2, 1953. The place had closed for the night and was in charge of a Negro by the name of Andy Rimmer who was left on duty by the owner to guard the place and he slept on a cot in a room of the building. Andy was awakened and went to the door, and two of the party forced their way inside at the point of a gun while two remained on the outside. Those on the inside bound Andy with adhesive tape placed around his legs and over his mouth and eyes. A truck was then backed up to the door and all four of the parties removed from the place of business about 295 cases of beer and loaded them on the truck. They also took approximately $30 from the cash drawer which belonged to the owner of the place, and also took a pistol which belonged to Andy, and made their escape. They were later apprehended and appellant was charged on June 19, 1953, by affidavit in a justice of the peace court with the crime of armed robbery, and on July 13, 1953, appellant made bond to await the action of the grand jury of Clay County. At the next term of court which convened in December, he was indicted, and on December 18, his case was set for trial on December 21. His counsel filed an application for continuance and was notified by the district attorney that the same would be heard on December 18, but appellant's attorney did not appear. A hearing was had and the application was overruled. On December 21, appellant's attorney appeared and objected to any further proceedings in the case because the application had been heard in his absence. Appellant, however, was present at the hearing on December 18. The circuit judge granted a rehearing on the application and overruled the same.
(Hn 1) Appellant first contends that he was denied the constitutional right to a fair trial because he was not allowed sufficient time in which to prepare his case for trial, and he argues that it was reversible error to put him to trial so soon after the returning of the indictment. We find no merit whatsoever in this contention. The appellant knew on June 19 that he was charged with the identical crime on which he was indicted. He employed the same counsel who represented him in the circuit court, and that attorney was representing him when he was granted bail on July 13. Thus it is seen that appellant, who was at large on bond from and after July 13, as well as his attorney, had a period of nearly five months in which to prepare for trial. We discussed at length numerous authorities on this proposition in the case of Newell v. State, 209 Miss. 653, 48 So.2d 332, and cited numerous Mississippi cases to the effect that there was no abuse of discretion by the trial court in putting the appellant in that case to trial within a much shorter period of time than that in which appellant in the case at bar was allowed.
(Hn 2) Appellant also contends that the circuit judge denied him his constitutional right when he heard the motion for continuance in the absence of appellant's attorney, and that thereafter everything done by the circuit judge was a nullity. We agree that the motion should not have been heard in the absence of appellant's attorney, but we think the error, if any, was cured when the circuit judge granted a rehearing on the motion.
(Hn 3) Appellant contends lastly that his conviction is a nullity because the circuit judge failed to sign the minutes at the regular December term and failed also to sign the minutes containing an order which extended the December term of court. Appellant was tried on December 21 and December 22, and there appears in the record an order reciting the jury verdict of conviction and this order is duly signed by the circuit judge. The regular term of court expired on December 26. On December 23 an order was entered upon the minutes of the court extending the term beyond the time fixed by law. It was during the extended term that appellant was sentenced. Appellant contends, and offered proof to the effect, that none of the minutes of the court were signed after December 21 until during the first week of the extension of the term. If this be true the proceedings were a nullity, but the showing made by appellant as to when the minutes were signed was very weak, and the circuit judge stated categorically into the record that on the morning of December 23 he checked the minutes and entered thereon an order extending the term and signed all of the minutes up to and including December 23, at which time the regular term was still in session, and then recessed over until the first of the following week. (Hn 4) We are bound by the circuit judge's statement. Hearn v. State, 69 So.2d 223, not yet reported in the State Reports; Gurley v. State, 101 Miss. 190, 57 So. 565; Humphrey v. Crorow Hardwood Co., 163 Miss. 490, 140 So. 690; Turner v. State, 121 Miss. 68, 83 So. 404; National Box Company v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 95 A.L.R. 1500. The judgment appealed from will therefore be affirmed.
Affirmed.
McGehee, C.J., and Lee, Kyle and Holmes, JJ., concur.