Walker v. State

92 So. 580 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

Leek Walker was indicted for having intoxicating liquors in his possession unlawfully and tried, convicted, fined, and sentenced to jail for said offense, and appeals. Walker made application for a continuance showing that his wife was a material witness in his defense and was the only witness the defendant had other than himself; that she was confined to her bed with pneumonia and was unable to attend court, and that she would testify, if present, that the defendant never had any liquor in his possession at the time, and that the state’s witness Reed pulled the whisky from his bosom, and that she ordered him out of her house; that, she had been duly and legally summoned, etc., and was not absent by his fault. The state introduced two witnesses, one Ed. Reed, Avho testified that in August, 1921, he went to the appellant’s house to get a drink of whisky, and that the appellant had whisky on the back porch of his house; at the time he saw the whisky on the hack porch that appellant’s wife was on the front porch; that he did not tell Walker what he wanted in the presence of his wife; that Walker got the whisky from a jug in the back yard. On cross-examination Reed was asked if he was not drunk and if he did not shoot in Walker’s house, if Mrs. Walker did not order him out of the house, and if Walker did not take his pistol away from him and take the magazine from the pistol, but Reed denied this. In these statements of Reed he was contradicted by the appellant and the state’s witness Ramsey, who testified that Reed was drunk and did shoot in Walker's house, and that Mrs. Walker did order him out of the house, and that Walker disarmed Reed and took the magazine from his pistol. Ramsey testified that on the return trip from Walker’s home he found a fruit jar with whisky in it in his car between the front and rear seats, and that he threw the whisky out; that he did not see the whisky in the car going to Walker’s house. He further testified that Reed was drinking-going out or had been under the influence of liquor. He testified that he saw the jug on appellant’s back porch, but did not know what was in it, and that he did not see any whisky at appellant’s house. Appellant testified that he had no whisky, and that Reed came to his house and pulled a bottle of whisky from his shirt bosom and offered appellant a drink, which he refused to take.

The statement of the affidavit for a continuance was admitted in evidence by the district attorney, but he declined to admit the truth of the matters therein stated.

We think it was error to refuse a continuance on account of the illness of appellant’s wife. This case comes within the rule announced in Scott v. State, 80 Miss. 197, 31 So. 710; Watson v. State, 81 Miss. 700, 33 So. 491; and Caldwell v. State, 85 Miss. 383, 37 So. 816.

The judgment will be reversed, and the cause remanded.

Reversed and remanded.