Brumfield v. State

59 So. 849 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

When this case was called for trial, appellant announced that he was not ready because of the absence of several material witnesses, who had been duly subpoenaed and were within the jurisdiction of the court, but were not then present. At the suggestion of the judge the trial was proceeded with, upon the understanding that the witnesses would be brought into court in time to testify in appellant’s behalf. One of appellant’s assignments of error is that these witnesses were not brought into court as the trial judge had promised, and, since he was deprived of their testimony, he should be granted a new trial.

The record nowhere discloses what these witnesses would have testified, so that this court may judge of the materiality thereof. Furthermore, the bill of exceptions does not disclose that these witnesses were not present while the appellant was introducing his testimony, or that he interposed any objection to proceeding with the trial in their absence. It is true that on the motion for a new trial evidence tending to show that these witnesses were absent was introduced; but this is not the manner in which to reserve a point of this character. Those matters which occur during the trial in the presence of the court, and which are not otherwise of record ,can only be made a part of the record by means of a bill of exceptions, made up in one of the methods authorized by law. This will dispose, also, of the other matters alleged to have occurred during the trial, and which do not appear in the bill of exceptions.

One of the jurors was discovered by appellant and his counsel, after the trial, to be related by affinty to Thorn-hill, the person assaluted. This juror’s wife, according to the evidence, was Thornhill’s “double third cousin,’’ whatever that may be. We are relieved, however, from the necessity of deciding whether this disqualified the juror, for the reason that he and his wife were both introduced and testified that they were neither acquainted with, nor aware of their relationship to, Thornhill; consequently the juror could not possibly have been influenced thereby.

We find no error in the other matters complained of.

Affirmed.

SUGGESTION OF ERROR FILED AND OVERRULED.

Smith, C. J.,

delivered the opinion of the court.

We were in error in our former opinion in stating that “the bill of exceptions does not disclose that these witnesses were not present while the appellant was introducing his testimony.” It appears from the stenographer’s notes that, after apellant had concluded the examination of his witnesses, his counsel stated to the court that “we now ask for the witnesses Robert Conerly and Tom May, neither of whom are present.” Upon an examination of the sheriff by the court and counsel, it appeared that the witnesses had not been found and their whereabouts seemed not to be known. The defendant thereupon rested his case without interposing any objection to continuing with the trial, or at least the bill of exceptions does not disclose such an objection. This point, therefore, was not reserved.

But, as stated in our former opinion, we could not reverse for this, even if an exception had been reserved, for tbe reason that tbe record does not disclose what tbe testimony of these witnesses would bave been, and tbis court will not reverse on account of tbe absence of a witness, unless it appears from tbe record that tbe testimony of such witness is material. But it is said that we must presume that tbis testimony would bave been material, for tbe reason that tbe court below did not re-require appellant to reduce bis motion for a continuance to writing. In tbis counsel are in error. Tbe presumption is that all things below were rightful and regularly done, and, in order for tbis presumption to be overturned, error must affirmatively appear from tbe record.

There is no merit in tbe other matters complained of.

Overruled.