Opinion
No. 39320.
November 15, 1954.
1. Larceny — evidence — sustained conviction.
Evidence sustained conviction for larceny.
2. Continuance — properly overruled.
A continuance, because of absence of material witness, was properly denied where defendant did not know where the witness might be found and his statement as to what the witness would testify was purely speculative and where the motion failed to comply with the rules. Sec. 1520, Code 1942.
3. Criminal law — evidence — defendant's good reputation — rebuttal by State.
In such case, where defendant introduced witnesses to testify as to his reputation in Madison County where he had lived for the preceding two years, State committed no error in offering in rebuttal the testimony of witnesses as to such reputation around the community in Holmes County, where the defendant had lived practically all of his life before moving to Madison County.
Headnotes as approved by Ethridge, J.
APPEAL from the circuit court of Madison County; M.M. McGOWAN, Judge.
Jack M. Greaves, Canton, for appellant.
I. The trial court erred in overruling appellant's motion for a continuance. Bone v. State, 207 Miss. 20, 41 So.2d 347; Sistrunk v. State, 200 Miss. 437, 27 So.2d 606.
II. The jury found contrary to the law and the overwhelming weight of the evidence.
III. The trial court committed error in allowing the State to prove the general reputation of the defendant by parties who did not live in the community where defendant resided.
IV. The trial court erred in refusing to set aside the verdict of the jury and grant a new trial. Cumberland v. State, 110 Miss. 521, 70 So. 695.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. The trial court did not abuse its discretion in overruling appellant's motion for a continuance. Lamar v. State, 63 Miss. 265.
II. A denial of the continuance shall not be ground for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom. Larry v. State, 211 Miss. 563, 52 So.2d 293; Sec. 1520, Code 1942.
III. The evidence thus presented a clear issue of fact as to the guilt or innocence of the appellant, and such issue was resolved against him. It is elemental that this Court will not set aside the verdict of a jury when it is supported by substantial evidence.
IV. The trial court properly admitted the evidence offered by the State with reference to appellant's reputation in the community in which he resided while living in Holmes County. Lee v. State, 179 Miss. 122, 174 So. 85; Mississippi Power Light Co. v. Tripp, 183 Miss. 225, 183 So. 514.
V. The guilt or innocence of this appellant was a question solely for the determination of the jury. The evidence was conflicting and, therefore, presented an issue of fact to be decided by the jury, and the evidence fully supports the finding of the jury.
Appellant, B.B. Shoemaker, was convicted in the Circuit Court of Madison County of grand larceny, for the theft of four head of cattle belonging to Cleveland Dean. His principal point on this appeal is that the verdict is against the great weight of the evidence. (Hn 1) Without detailing the testimony, we will say that the issue of appellant's guilt was a question for the jury. He was convicted principally on the testimony of Mrs. Glenn McNeer. Her testimony was corroborated in part by that of Paul Weems, and by Brady Davis, cattle theft investigator for the Holmes County Cattle Association. Several weeks before the cattle were determined to be stolen cattle, Mrs. McNeer had reported to Davis that she had some cattle in her custody, which she suspected were stolen, and that she wanted them investigated. Shoemaker denied that he had stolen the cattle, and, if the jury had believed him, his testimony tended to show that Mrs. McNeer had a motive for placing the blame upon him. All of this created an issue of fact. The jury's verdict was supported by substantial evidence.
(Hn 2) At the beginning of the trial appellant moved for a continuance, because of the absence of an alleged material witness, C. Smith. This motion was overruled. The evidence in support of it showed that appellant did not know where the witness might be found or whether he was within this State, and demonstrated the appellant's statement as to what Smith would testify was purely speculative. Moreover, the motion for a new trial failed to comply with the requirements of the rule in Lamar v. State, 63 Miss. 265 (1885). See also Code of 1942, Sec. 1520.
(Hn 3) Appellant also complains that the trial court erred in allowing the State to prove the general reputation of appellant by witnesses who did not live in the community where he had resided for the past two years. Appellant had introduced three witnesses to testify as to his reputation in Madison County where he had lived for the preceding two years. In rebuttal the State offered two witnesses who testified as to appellant's reputation around the community in Holmes County where appellant had lived practically all of his life before moving to Madison County. This testimony was properly admitted. Lee v. State, 179 Miss. 122, 131, 174 So. 85 (1937).
Affirmed.
Roberds, P.J., and Kyle, Arrington and Gillespie, JJ. concur.