60 Miss. 675 | Miss. | 1882
delivered the opinion of the court.
The motion for a continuance on account of the absence of the witness came after the special venire had been drawn, and upon the day fixed for going into the trial. It was not shown that the witness was present when the venire was drawn, and had subsequently absented himself. He had been summoned many months before, and, so far as the record shows, had never been present at any time, though the case had twice been continued from a former term, and had at this term been twice set for trial on special days. Sect. 3059 of the Code of 1880 prohibits continuances after the drawing of a special venire for causes existing before the drawing, except upon good cause shown. No cause was here shown. If the indictment had been newly found, so that the accused had not had time before the drawing to ascertain the importance of the witness, or the witness had never been subpoenaed, or any unexpected accident took the party by surprise and these things were shown to the court, the requirements of the statute would be met; but nothing of the sort has been attempted. Where the absence exists at the time of the drawing of the venire, the witness being at the time under a legal duty to attend, and the drawing is allowed to proceed without notice to the court, or any step taken by its order or leave to avoid the operation of the statute, and no subsequent showing of good cause is made, the statute imperatively denies a continuance.
It was not necessary that the record should recite that Judge Chrisman had interchanged circuits with Judge North, “ because the public interests required it.” It did recite that he was holding the court by interchange with Judge North, and this was sufficient. Being duly authorized to do this when the public interests require it, and he and Judge North being the sole judges as to this, the presumption must be that they had determined that the public necessity existed. Such determination by them cannot be assigned for error.
The action of the court in declaring the proffered juror, Stevenson, competent, and thereby forcing the defendant to
The same thing may be said in reference to the reading before the jury, by the justice of the peace, of the memorandum made by him of the testimony delivered before the committing court by Dr. Sharpe. The testimony related solely to the wound inflicted by the defendant on the deceased. The character of the wound was of no sort of importance, save as showing that it was the cause of death; and that deceased did die of the wound in less than an hour after it was inflicted is conclusively shown, independently of Dr. Sharpe’s testimony, and was, indeed, a fact not questioned by anybody. The testimony, therefore, whether admitted or excluded, could not have affected the result.
The defendant was not entitled to be served with a list of the regular venire for the week one entire day before he was put upon trial. This requirement of the statute relates alone to the special venire. There was no error in the instructions.
Judgment affirmed.
