Scott v. State

80 Miss. 197 | Miss. | 1902

Calhoon, J.,

delivered the opinion of the court.

A continuance should have been granted because of the absence of the witness, Nelia Scott, the wife of the defendant, who had been duly subpoenaed, and lived only two miles from the courthouse, and was too sick to attend the trial. Whatever may have been tbe weight of her testimony with the jury, whether much or little, it was certainly material, and the accused was entitled to it.

The refusal of the continuance was not neutralized by the court’s allowing defendant’s counsel, over the objection of the state, to read to the jury the affidavit of defendant as to what the wife would testify if present. He had the right to her presence, or a continuance for that term, as compulsory process could not serve to compel her attendance at that term. After one continuance tbe case would be altered.

The comments of counsel for the state, in the ardor of his concluding argument to the jury, on her absence, were no moro within the safe limit than would have been comments on the fact that the accused did not offer himself as a witness. The woman was sick, and. could not be there, and counsel’s deductions from the fact of her personal absence amounted to an intimation that defendant’s affidavit was false, and he was not on trial for perjury.

Reversed and remanded,.