98 So. 229 | Miss. | 1923
delivered the opinion of the court.
The appellant was indicted, tried, and convicted for manufacturing intoxicating liquors and sentenced to the penitentiary, from which judgment he appeals here. The indictment charges that the appellant, on the 16th day of March, 1921, in the county aforesaid, .and thence continuously up to the finding of this indictment did unlawfully, willfully, and feloniously make, manufacture, and distill vinous, spirituous, alcoholic, and intoxicating liquor. This indictment was returned at the March term, 1923, and was filed on the 16th day of March,-1923.
Appellant made a motion for a continuance, on the ground that his wife was a material witness, was sick, and unable to attend. The material part of the affidavit is as follows:
“That the said Mrs. Carrie Weir’s testimony is material, in that she has lived and resided with the defend-, ant continuously day and night since the 16th day of March, 1921, and for years prior thereto. That next to himself the said Mrs. Carrie Weir knows the whereabouts of the defendant day and night better than'any other living person, and is more qualified as to his whereabouts than any other person. That the defendant can prove his*841 continuous whereabouts better by the said Mrs. Carrie Weir than any other person. That she occupies the same room and.bed with'the defendant at night, and that he can prove these facts by no other witness. That without said witness he cannot safely go to trial at this term of the court. That the indictment was returned at the present term of this court on the 16th day of March, 1923.
“Affiant further states that there is no doctor residing at the said town of Enterprise, nor within four and a half miles of his home, and that-his attendance upon his. said sick wife is necessary. ”
The court, when this motion was presented, directed Dr. Hand, a physician, to go and examine the sick witness, and to report to the court whether she was able to attend and testify. Dr. Hand went to the home of the witness, and made -an examination without objection on her part, and reported back to the court that she was able to appear' and testify. When Dr. Hand went to the house of the witness and made the examination the witness asked him if he could make her go, and he told her he could not, that it was for her to determine whether she would go or not, but if she desired to go she might go in his car with him, which she did. When she reached Quit-man she was taken to a drug store and examined by other doctors at the instance of appellant, and they testified she was unable to appear in court, that she was highly nervous, her pulse was one hundred and ten, and that she had less than a degree of fever, and in their opinion she was suffering with influenza or grippe. The court.directed Dr. Hand to re-examine her and report, which he did, and reported that, while she was nervous and had about two-fifths of a degree of fever, in his opinion she was able to appear and testify. Thereupon the court overruled the motion for a continuance, and the state introduced several witnesses, who testified, saying that appellant manufactured liquor on different occasions, which evidence the appellant denied, testifying in his own behalf, but failed-
In our opinion the application for a continuance was properly overruled, because the application itself does not sufficiently show that Mrs. Weir would testify that appellant was not guilty, and it specifies no time or place at which she would place the defendant at the time he was alleged to have made the whisky. It does not appear from the application with sufficient clearness that she would testify contradicting the state’s witnesses. It is true the defendant was required to run the gauntlet for a period of two years before the finding of the indictment, but he could have ascertained, or at least it does not appear that he could not ascertain, what the state’s witnesses would testify, and thus be able to specify more particularly what his wife Would testify to. In the second place, the rule of the Lamar case is a reasonable one, and no pretense was made towards complying with it.
There is no merit in the other assignments of error.
Affirmed.