Opinion
April 11, 1949.
1. Criminal procedure — trial — continuance — application for — requisites of.
Although an application for a continuance on account of the absence of a material witness is otherwise in proper form, it may be denied, unless the defendant has (1) sent out the proper process for the witness and in sufficient time before the case is called for setting, and (2) if the application is then denied, he must continue his efforts to avail of the process of the court and must renew his application when the case is called for trial, making such changes in affidavit as the then existing conditions require; and if tried and convicted he must (3) continue in his efforts through the processes of the court to secure the attendance of the witness before the end of the term and (4) must present the witness for examination on a motion for a new trial and (5) failing after due diligence in the latter, he must if practicable then present the ex parte affidavit of the witness for the consideration of the court, and (6) if in any material respect conformity to the stated rule was not practicable, the factual reason or reasons therefor must be sufficiently shown.
2. Appeal — dismissal of appeal from conviction in justice court not allowed on motion of the defendant.
The defendant in a criminal case who has appealed from a conviction in the court of a justice of the peace stands for trial de novo in the circuit court and has no right to dismiss the appeal with procedendo.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
J.L. Thompson, for appellant.
In the case at bar, we believe appellant was clearly entitled to have his case continued from the showing made. His brother, Harvey Lee Thigpen, was right there in the car with appellant at his side, and neither got out of the car at any time, side by side in car at the exact time of the alleged sale in the case. Certainly he would have been a material witness in the case, had he been present, and from the showing made, appellant certainly could have had his brother at the next term of the court to have testified in the case, to the matters referred to in his application so made, as to what his testimony would be. We think the honorable trial court should have continued the case; the result of the trial may have been different, and very likely would have been.
When this case was called for trial, appellant not having any witness at all to testify in his behalf, moved the court to dismiss his appeal with writ of procedendo to the justice court and thus end the whole matter in that way, and the court will bear in mind that this motion was interposed at a time before arraignment, no jury empannelled to try his case, and before appellant had even announced ready for trial in the case. The trial court very promptly refused to permit appellant to so dismiss his appeal and overruled the motion, and we think, to the great prejudice and injury of appellant. We certainly think that this motion should have been sustained by the court, in that, the appellant even had at that time not been yet arraigned, or announced ready for trial at all, but were doing all we possibly could to see if we could announce ready. In overruling this motion, the court cited the case of Bang v. State, 106 Miss. 824, 64 So. 734, Sec. 1202, Code 1942, as authority in overruling the said motion to dismiss. But we take the position that the Bang case is not directly in point here, for the reason, that in the Bang case, supra, both State and defendant had announced ready for trial, and both had proceeded in the trial, and the trial had progressed until the State had rested its case before any motion was interposed by defendant to dismiss his appeal. Of course, the motion to dismiss in that case was made entirely too late, the State had rested its case, and the case half tried; in fact, the State had finished, all the State's evidence had been introduced. It had finished, and this court said: "The proof was sufficient to support a verdict of convicting him (Bang). He had no right then to have his case dismissed." We do not take the position that a defendant has a right to dismiss his appeal at will; but most certainly he would have the right to dismiss, before he had plead to the charge in any way or announced ready. Appellant had a good ground and reason for making this motion, he was about to put upon trial in the absence of his only living witness. There was nothing to indicate up to the time of the presentation of this motion of appellant, that he was guilty of the crime charged against him, no evidence had been introduced, nor anything else done. George H. Ethridge, Assistant Attorney General, for appellee.
Appellant contends that since one of his witnesses was absent and could not be produced that he should have been permitted to dismiss his appeal and that a procedendo to the justice of the peace to proceed with the enforcement of the judgment there rendered. He contends that the case of Bang v. State, 106 Miss. 824, 64 So. 734, does not sustain the judge in overruling his motion to dismiss because the proof in that case had been offered in the circuit court on the appeal and that the case did not apply to the present case because at the time the motion to dismiss in this case was made no proof or proceedings had been had in the circuit court and that that made the case of Bangs v. State, supra, inapplicable and that it is not authority to sustain the trial judge who relied upon that case in overruling the motion to dismiss the appeal. In the Bangs case the court, referring to the statute (Section 87, Code of 1906) providing for appeal to circuit court said: "on his appearance in the circuit court the case shall be tried anew and disposed of as other cases pending therein." . . . "It will be seen that the case is brought into the circuit court by appeal from the judgment of the justice of the peace court. When it reaches the circuit court, it is there for trial anew, and disposition just as other cases therein pending. The circuit court is a trial court. The case, although brought to that court by appeal, is there for trial. In this prosecution for a criminal offense, appellant, while his case was being tried, occupied the same position as any other defendant being tried on a criminal charge." As the appellant is tried anew and the appellant is tried as though no trial had been had below, he has no more right to have the appeal dismissed in the circuit court than he would have to have the affidavit and prosecution in the justice of the peace court dismissed. There are further reasons why the circuit court on appeal from a justice court is not obliged to dismiss it for it often happens, as it did happen in this case, that the justice of the peace imposes lighter sentences in many cases than the crime deserves. Furthermore, by appealing, the enforcement of the law is delayed and witnesses may die or disappear from the jurisdiction of the court and a final prosecution be impaired or destroyed. The purpose of the law and its penalties is to discourage crime and to speedily enforce the law where persons are found guilty of violating same. When a defendant appeals from a conviction in the justice of the peace court, he invites the appellate court on a new trial therein to impose a proper penalty calculated to create respect for the law and to preserve peace and order in the community. There is absolutely no merit in this contention of appellant.
In the next place, appellant treated too seriously the motion for continuance in the court below but he did not comply with the law in reference to continuances as announced in Lamar v. State, 63 Miss. 265; Robinson v. State, 178 Miss. 568, 173 So. 451; Ogden v. State, 174 Miss. 119, 164 So. 6; Ellis v. State, 198 Miss. 804, 23 So.2d 688, and the many other cases holding to the same effect. No affidavit was produced or any other testimony on the motion for a new trial to show diligence required by law to have the witness present in court if possible, or if not possible, to take his affidavit as to what his testimony would be had he been present at the trial.
The appellant was charged with the unlawful sale of intoxicating liquors in District No. 4 of Jasper County, Mississippi, by the affidavit of R.C. Alexander made one the 7th day of June, 1948, before John B. Dykes, Justice of the Peace of that district. On June 12th he was convicted and sentenced to pay a fine of $250 and all costs. An appeal bond was executed by the defendant, with surety, and lodged with the Justice of the Peace who tried the case on the 12th day of June, 1948. The Justice of the Peace filed his certified transcript of the proceedings in his court with the clerk of the Circuit Court of Jasper County on June 18, 1948.
The Circuit Court of Jasper County met on Monday, August 23, 1948, and on the call of the docket the State announced ready and the defendant making no announcement the case was set for trial on Wednesday, August 25th. The day following the appellant had the clerk issue process for one Harry Lee Thigpen, a brother of appellant, which process was returned by the sheriff as not found in the county.
On the morning of the trial the appellant made a motion for a continuance supported by affidavit to the effect that the absent witness was out of the State and compulsory process would not procure his presence at that term of the court but that he had used due diligence to procure his presence at the trial of the case and that if the witness were present he would testify that he was present at the time the alleged sale was charged to have been made and that no sale of liquor was made at that time. Testimony was taken on the motion and appellant testified that during the week of the convening of court he had talked with his brother in Georgia twice over the telephone and that he had written him three times. He stated on cross examination in response to the question of the District Attorney that he could not say when his brother would be back in the State of Mississippi, nor could he say that he was to be back at any certain time. The Court overruled the motion for a continuance and the case was then set for trial upon its merits. Thereupon the appellant made a motion to dismiss the appeal with a writ of procedendo and this motion was also overruled by the Court. The jury was then empanelled and testimony was taken, and upon proper instruction from the Court the jury returned a verdict of guilty and the appellant was sentenced to pay a fine of $350 and serve a sentence of sixty days in the county jail of Jasper County, of which fine and sentence $100 and thirty days were suspended during good behavior. At the conclusion of the trial a motion for a new trial was made, but said motion was not accompanied by the affidavit of the absent witness nor any showing as to why the affidavit could not be had.
Since 1885 it has been the unbroken rule of decisions in this State that (Hn 1) if the court declines to grant a continuance because of the absence of a material witness, the accused should sue out the proper process and when the case is called for trial should renew his application, making such changes in his affidavit as the conditions then existing require. If the continuance is still refused he should with unremitting diligence seek to secure the witness' attendance pending the trial by the continued use of the process of the court. If tried and convicted he should still persist in his efforts to enforce their attendance before the expiration of the term and on his motion for a new trial present them for examination. If with all his efforts he is unable to have the witness personally present he should, if practicable, secure his ex parte affidavit, which should be presented for the consideration of the court on the motion for a new trial. The appellant complains that the court erred in refusing to grant this continuance because of the absence of the witness, but the proper showing of due diligence was not made in that it discloses no effort on the part of the defendant to procure the presence of the witness until the trial of the case was practically in progress. In addition, it was not followed up by the affidavit of the absent witness in support of the motion for a new trial, nor was any showing then made that conformity with the rule was not practicable. Hence, the lower court properly overruled the motion for continuance. Lamar v. State, 63 Miss. 265; Jackson v. State, 199 Miss. 853, 25 So.2d 483.
(Hn 2) The only other question necessary for a decision in this case is whether or not the Court erred in overruling the motion to dismiss the appeal with procedendo. This question has been set at rest in this State by the decision in Bang v. State, 106 Miss. 824, 64 So. 734. It was there decided that one appealing a conviction from the Justice of the Peace court to the Circuit Court stands there for trial de novo as defendant and he occupies in that court the same attitude of a defendant as he did in the court of the Justice of the Peace and as such is impotent to dismiss the case. He had no more right to dismiss the appeal in the Circuit Court than he had to enter a nolle prosequi in the court of the Justice of the Peace. No defendant charged with a crime for the commission of which he is upon trial has a right to dismiss the case from the docket. He was on trial for the crime charged against him. His case was being disposed of as other and like cases in that court. The lower court was correct in overruling the motion to dismiss the appeal with procedendo.
The other assignments of error do not contain sufficient merit to justify a discussion in this opinion. We feel there is no error in this record and that the decision of the lower court should be affirmed.
Affirmed.