218 Miss. 820 | Miss. | 1953
Bucklew was convicted of grand larceny. The stolen property consisted of a cow and calf.
The trial court overruled his motion for a continuance. He says that was reversible error. The crime occurred around midnight August 9, 1952. He was arrested August 10th. His motion for continuance was filed December 15, 1952. He was put to trial the same day. The grounds of his motion were he was suffering from prostate gland and heart trouble and he needed an operation for the first, and rest for the second, trouble, and he was not physically able to stand trial; that he had made arrangements to have the prostate operation in New Orleans and that he would be back at court for trial at the next term thereof. The motion stated he had a statement from a doctor as to his condition which he was attaching to the motion. However, we do not find that statement in the record.
Only one witness testified upon the hearing of the motion — Mrs. Morgan Holifield, the sheriff of Jones County. In substance, he said that about a -week after movant was placed in jail he had “a spell with his heart, and Dr. Risher advised us to take him to the doctor. ’ ’ He was carried to a doctor. The result of this is not shown. No doctor testified. We think it was not error to overrule this motion for these reasons:
1. The motion did not set out what the testimony of movant would be if he testified in the case — whether his testimony would be competent, material or relevant, or constitute a defense to the charge in case he took the stand. King v. McWhorter, 174 Miss. 187, 163 So. 679.
2. Granting or refusing a continuance is largely within the discretion of the trial judge and his refusal to grant a continuance will not be ground for reversal unless that discretion has been abused and this Court is satisfied that injustice has resulted therefrom. Roberson v. Quave, 211 Miss. 398, 51 So. 2d 62; Section 1520,
Accused was jointly indicted with Ezra McSwain. On motion of this defendant a severance was granted. The State placed Ezra upon the stand as its witness. Appellant says he was incompetent because the state had promised him immunity. On that question Ezra testified he was not promised anything. He said the district attorney asked him if he would tell the truth and he said he would. Counsel for Ezra said no promise was made but that he had a hope Ezra would not be prosecuted. Therefore, the assumed fact that Ezra was promised immunity was not proven by the testimony. However, promise of immunity, had the fact been shown, would not have disqualified Ezra as a witness. The weight of his testimony would have been a question for the jury. Young v. State, 212 Miss. 460, 54 So. 671. No request was made by defendant for an instruction as to the testimony of an accomplice, but he was granted what is called the “falsus in uno falsus omnibus ’ ’ instruction, which told the jurors that if they believed any witness (not only Ezra McSwain) had sworn falsely to any material fact they might disregard his entire testimony. That gave defendant an advantage to which he was not entitled. Crawford v. State, (Miss.) 54 So. 2d 230.
Appellant next says the state failed to prove the corpus delicti. Mr. L. W. Godfrey testified he was the owner of the cow and calf. He said he had not sold them, or given anyone permission to take them away. They were taken without his knowledge. He went with the officers to the woods where they were tied out and identified them. Leon McSwain testified he told appellant the cow and calf belonged to Mr. Godfrey. Johnie Johnson testified that about midnight he was awakened by the barking
Appellant says his motion for a peremptory should have been granted. In addition to what has just been said it might be added that Ezra McSwain testified that appellant promised to pay him ten dollars to assist in seizing and taking away these animals. Leon McSwain said Ezra sought his assistance and promised to pay him half of that amount. Both said the cattle were taken from the possession of the owner at night and driven away at the direction of appellant. They tied the mother cow in the woods with the purpose of coming for the animals the next day. There they remained until the next day. It is shown that Ezra and defendant were in the act of returning to that spot in the truck of appellant for the purpose of placing the cattle in appellant’s truck and taking them some other place, when Ezra and appellant came into contact with the officers and were arrested. A number of other circumstances are shown connecting appellant with this crime, but we deem it unnecessary to set them out. Defendant offered no testimony. It would have been strange indeed had the jury not found defendant guilty.
The trial judge granted the state this instruction : “The court charges the jury for the state that you do not have to know that the defendant is guilty before you can convict him. It is only necessary that you should believe from the evidence, beyond a reasonable doubt, that he is guilty, and if you do so believe from all of the evidence, beyond a reasonable doubt, that the defendant is guilt}',
The State was granted this instruction: “The court instructs the jury that the possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of larceny.” It is argued there is no proof the property was stolen. The proof not only shows the property was stolen but that appellant was in possession of it immediately thereafter. Appellant cites Wade v. State, 175 Miss. 434, 167 So. 617. In that case Wade was convicted of stealing two mules. However, there was no proof of any conspiracy or concerted action between Wade and the person who actually took the property, and the state wholly failed to show that Wade, at any time or in any manner, ever had possession of the stolen property. The case at bar is entirely different from that case.
The court granted the State this instruction: “The Court instructs the jury for the State that one who
Affirmed.