Opinion
No. 30657.
December 11, 1933.
1. CRIMINAL LAW. Proceeding to trial, notwithstanding motion for continuance, before return of process for witnesses summoned by defendant, held not prejudicial.
Proceeding to trial before return of process for witnesses summoned by the defendant did not constitute reversible error, because testimony for the state showed the facts which it was claimed the absent witnesses would testify to, and therefore no prejudice resulted to the defendant.
2. CRIMINAL LAW. Instruction, in part, authorizing conviction if jury believed defendant had good reason to believe cattle were stolen, held not prejudicial, where evidence established actual knowledge.
Instruction complained of told jury to find the defendant guilty if they believed, from the evidence, beyond a reasonable doubt, that the defendant knew, or had good reason to believe, that the cattle were stolen at the time and place as alleged.
APPEAL from Circuit Court of Jasper County.
H.L. Finch, of Laurel, for appellant.
The court erred in refusing appellant a continuance on account of absent witnesses.
We submit, taking in consideration the seriousness of the offense charged, and the distance defendant's witnesses lived from him and from the court, that one and a little more days were insufficient time to enable him to prepare his defense and meet the charge against him. We submit that this undue haste in putting the defendant to trial was error, and that because thereof this case should be reversed.
The second instruction given the jury for the state is erroneous. It tells the jury that if they believe from the evidence that the defendant knew, or had good reason to believe at the time he bought or received the cattle, if he did, that they had been stolen at the time and place and in the manner and form as charged in the indictment, then it is your sworn duty to find the defendant guilty as charged.
This instruction is erroneous for the reason that the defendant must know, or the circumstances must be such that he is convinced that the cattle were so stolen. It is not sufficient that they were such that he only believed or had good reason to believe they were stolen.
Sartorious v. State, 24 Miss. 602; Frank v. State, 67 Miss. 125, 6 So. 842; Francis v. State, 154 Miss. 176, 122 So. 373.
W.H. Maynard, Special Agent, for the state.
The lower court's refusal to sustain appellant's motion to quash was not error.
The pendency of an indictment is no bar to another prosecution for the same offense under a different indictment.
State v. Duplechair (La.), 125 So. 444; White v. State (Ala.), 51 So. 674; Gibson v. State (Ala.), 72 So. 569; Smith v. State (Fla.), 27 So. 868; Knight v. State (Fla.), 28 So. 759; Bell v. State (Ala.), 22 So. 526; 31 C.J., Indictment, sec. 73.
Overruling the motion for continuance was not error.
On its very face, the affidavit for continuance is defective in a number of particulars. It fails to allege the resident of the witness, W.F. Rodgers.
Donald v. State (Miss.), 41 So. 4.
It fails to state the testimony in clear enough terms but has that vagueness which is condemned in Everett v. State, 147 Miss. 570, 113 So. 186, and in Ware v. State, 133 Miss. 837, 98 So. 229.
It fails to show how the testimony would be material, pointing out no positive connection which the evidence of these absent witnesses could have with the crime of which appellant was charged.
Wells v. State, 151 Miss. 750.
It fails to show what efforts appellant has made to secure the attendance of the absent witnesses nor to disclose that diligence which is required.
Ivy v. State (Miss.), 119 So. 507; Osborne v. State, 146 Miss. 718, 111 So. 834; Cox v. State, 138 Miss. 370, 103 So. 129; Lamar v. State, 63 Miss. 265; Jordan v. State, 147 Miss. 24; Wells v. State, 151 Miss. 750, 118 So. 609.
The absence of witnesses presents no ground for continuance where their testimony would have related only to matters otherwise proved and as to which the record presents no issue.
Clayton v. State, 150 Miss. 812, 117 So. 127.
The overruling of a continuance is always within the sound discretion of the court.
Cox v. State, 103 So. 129, 138 Miss. 370.
The instruction given the state and complained of by appellant was not erroneous.
Sartorious v. State, 24 Miss. 682; Frank v. State, 67 Miss. 125; Francis v. State, 154 Miss. 176.
The appellant, Ray Williams, was indicted and convicted of receiving stolen property, and sentenced to serve three years in the penitentiary. The indictment was returned on February 28th; the appellant was arrested on March 2d, and was placed on trial on March 4th. When the case was called for trial, the appellant moved for a continuance because process for certain witnesses summoned by him had not been returned into court. This motion was overruled, and an alias process issued which had not been returned at the time the trial was concluded, and the overruling of the motion is assigned as error.
We think, although it was technical error to proceed to trial before the process for witnesses had been returned, that we must look at the trial as a completed one, and having done so, we find no reversible error in the cause. The testimony for the state showed the facts which it was claimed the absent witnesses would testify to, and, consequently, no prejudice or harm was done to appellant.
It appeared that the appellant was indicted jointly with one G.M. Gatlin, at a former term of the court, and that this indictment was for the cattle alleged to have been bought with knowledge that they were stolen. The motion of the district attorney to nol. pros. the former indictment was by the court sustained, but the motion to quash the present one was overruled and the court proceeded to trial. There was no error in so doing.
It appears from the testimony that the cattle were stolen from one G.C. Morris, of Jasper county, by one Hardy, and another, at the instance of the appellant and Gatlin, and were sold to appellant and Gatlin at a price far below their actual value, being paid for by a check from Gatlin; but there was ample testimony to show that the appellant was a joint participant in the buying and selling of the cattle, with full knowledge that they had been stolen at the instance of appellant and Gatlin.
Among other instructions given for the state was the following: "The court charges the jury for the state that if you believe, from the evidence, beyond a reasonable doubt, that the defendant, Ray Williams, knew or had good reason to believe, at the time he bought or received the cattle, if he did, that they had been stolen at the time and place in the manner and form as charged in the indictment, then it is your sworn duty to find the defendant guilty as charged."
This instruction is complained of as defective in that there must be more than mere good reason to believe that the property was stolen; that there must be actual knowledge or belief that property was stolen, or there must be such circumstances as to charge them with knowledge that the property was stolen.
However, in the case at bar, several witnesses testified that the appellant had actual knowledge that the cattle were stolen, and the conviction was predicated upon evidence of actual knowledge. The appellant was overwhelmed with witnesses on this point.
We think there was no reversible error, and the judgment will be affirmed.
Affirmed.