Hubbard v. State

64 Miss. 315 | Miss. | 1886

Aenold, J.,

delivered the opinion of the court.

Appellant was convicted of arson, and sentenced to ten years’ imprisonment in the penitentiary. He made application for continuance in the court below, on the ground of the absence of a witness by whom he expected to prove certain facts material to his defense. The district attorney objected to the continuance. Thereupon appellant presented his affidavit setting out the facts which he expected tó prove by the absent witness, and said he would go to trial if the district attorney would admit that the absent witness, if present, would swear to the facts contained in the affidavit. The district attorney then interrogated appellant as to whether or not he could prove the same facts by other witnesses. Appellant answered to the interrogatory, and then excepted to its being asked, and his answers thereto contradicted, or tended to contradict, the facts as stated in the affidavit. After this the district attorney consented that the affidavit might be read to the jury as the evidence of the absent witness, and the trial commenced. As soon as the affidavit was read to the jury, the district attorney had the counsel of appellant sworn as a witness, and proved by him the statements made by appellant contradicting the facts as set forth in the affidavit in response to the inquiry propounded to appellant by the district attorney on the application for continuance. To the examination of his counsel for this purpose appellant excepted.

Appellant justly complains of these proceedings. He had aright to make application for continuance, and to stand upon it, without being questioned as to its truth or falsity. If his showing for continuance was deemed insufficient, objection to it should have been made to the court. If it was desired to controvert before the court or jury the facts contained in his affidavit, it should have been done by other means than an examination of the prisoner. For the representative of the State to induce the prisoner to go to trial by consenting that the facts stated in his affidavit for continuance might be read as the testimony of his absent witness, and afterward to destroy its effect as evidence by proving statements in conflict with it, drawn from the prisoner on an unauthorized inquisition, displays marks of injustice and unfairness which should not characterize or be tolerated in criminal trials. It is better for the cause of law and justice that a guilty person should go unpunished, than that he should be convicted by unfair and unlawful methods. A criminal prosecution should vindicate and uphold, rather than impair or diminish, in any manner, respect and reverence for law. Neither the gravity of the offense charged, nor the rank or condition of the accused, should be allowed to operate to produce a different result. Cooley on Const. Lim. 409 ; Hurd v. The People, 25 Mich. 405; March v. The State, 44 Tex. 64; Curtis v. The State, 6 Coldw. 9.

If the common enemy of man were on trial under our laws, for his action in regard to

“The fruit

Of that forbidden tree, whose mortal taste

Brought death into the world, and all our woe,

With loss of Eden,”

he should have a fair trial, and, if convicted by trick, stratagem, or fraud, the judgment should be annulled.

For the errors considered above, the judgment is reversed and the cause remanded.