Weeks v. State, 1 Morr. St. Cas. 903

Weeks v. State

1 Morr. St. Cas. 903 | Miss. | 1872

HaNdy, J.:

The plaintiff in error was tried and convicted at the September term, 1855, of the circuit court of Winston county, for the murder of one Willis Norris; and the case is brought to this court upon a bill of exceptions, taken to the action of the court below in overruling a motion for a new trial.

Several objections have been raised and urged here, to the regularity of the summoning of the grand jury which found the indictment; the constitution of the grand jury; the return of the indictment into court; the sufficiency of the indictment with reference to its showing that the grand jury were composed of duly qualified men ; and the sheriff’s return upon the special venire as to his summoning the jury.

We have examined the record with reference to these several objections, and are satisfied that they are untenable.

An exception was taken to the refusal of the court to continue the cause on the application and affidavit of the prisoner. But from the statement of the affidavit, it does not appear that any effort was made to procure the attendance of the absent witness; and it moreover appears by the subsequent details of the record, the witness actually appeared and testified in behalf of the prisoner. Even, therefore, if he was entitled to a continuance, as he clearly was not upon his affidavit, all ground of objection is removed by the witness’s appearing and testifying on the trial.

*913Another exception was taken to the refusal of the court to change the venue upon the application and affidavit of the prisoner, accompanied by the affidavits of three witnesses, stating that “ owing to the prejudice existing against the prisoner in the county of Winston, he could not have a fair and impartial trial in that county.” It appears that, in considering this application, the court examined one of the affiants and several other witnesses, among whom was the sheriff of the county, under oath, as to the grounds of the application; and being satisfied from the evidence that the prisoner could have a fair and impartial trial in the county, the application was refused.

It is now insisted that the court was bound to act in the matter upon the affidavits of the prisoner and others offered by him, and it was error in the court to examine other witnesses in order to determine whether he could have a fair and impartial trial in the county.

The provision of the statute is, that “ it shall and may be lawful for any circuit court or judge thereof in vacation, to change the venue in a criminal case to any adjoining county, on a sufficient showing made by the prisoner on oath, supported by the testimony of one or more credible witnesses, that he cannot, have a fair and impartial trial in the county where the offense is charged to have been committed.” Hutch. Code, 1007, Art. 6.

In giving the right of a fair and impartial trial to the accused, it is manifest that the statute contemplates that, whenever a change of venue shall be applied for, to that end, it shall be determined by the court, whether there is just ground for the application. Public justice as well as private right must be considered as equally within the contemplation of the statute, giving this power to the court. Its language confers power on the court to grant the application, but it is not imperative; and the exercise of the power must necessarily be a matter within the sound discretion of the icourt. And, although the court would have full power to grant the application upon the mere showing mentioned in the statute, without ferther inquiry or proof; yet cases may arise in which justice and right might require that the court shall not receive such testimony as conclusive ground for granting the application. It might be sug*914gested in behalf of the state, that the witnesses whose affidavits were introduced to sustain the application, were not worthy of credit, or that they were incapable of forming a correct judgment upon the matter stated by them, or that the state of public opinion in the county was clearly not to the prejudice of the accused. If this were the true state of the case, it would be a flagrant perversion of justice to grant the application ; and the true state of facts could only be ascertained by a proper examination of witnesses whose situation and means of knowledge upon the subject would entitle their testimony to full confidence. Hence the nature of the power Conferred upon the court must require that, whenever the ends of complete justice render it necessary, the court should exercise the power to inquire and determine whether it is proper that the application should be granted; and if, upon such investigation, the court is satisfied that the reasons alleged for the application have no just foundation, the application should be refused, and it follows, that the right of a change of venue, upon a mere application of the prisoner, supported by-the affidavit of himself, and one or two more witnesses, is not a'matter of absolute right, beyond the power of the court in the exercise of its sound legal discretion.

In the present case, it appears.that the court examined one of the affiants upon whose testimony the application was made, and several other witnesses, upon the subject matter of the application. Neither the testimony of these witnesses, nor the reasons which caused their introduction, appear upon the record. And, as it was competent for them to be introduced and examined, and as their testimony might fully have justified the court in determining that the reason stated by the prisoner and his affi-ants as the ground qf the application, was unfounded, it must be presumed that the testimony was sufficient to justify the action of the court in refusing the application.

No particular objection is made to the instructions given to the jury; those asked in behalf of the state‘as well as those asked on the part of the prisoner; having all been given ; and the principles of law applicable to the contested points in the case, were thereby very fully and fairly presented to the jury.

The only point in the case which appears to have been con*915tested on tbe trial, was that of an alibi attempted to be proved in behalf of the prisoner. The widow of the deceased and four other witnesses proved that the prisoner was near the deceased about the hour of twelve o’clock m., on the day on which he was killed. On the contrary, several witnesses on his part state that the prisoner was at his father’s house, about two miles from the place where the deceased was killed, from eleven o’clock on that day until late in the evening. But other witnesses testify that several of these witnesses in behalf of the prisoner, and who are his near family relations, had previously declared when pursuit was made, after the killing, that they had not seen him since the day before the deceased was killed. The question of credibility of the witnesses was, therefore, directly presented for the consideration of the jury, upon proper instructions by the cour|| upon the point• and the verdict is conclusive of that question.

In all other respects, the evidence goes fully to sustain tlm verdict; and after a careful examination ,of. the whole recor™ we are of opinion that there is no error in the judgment, and that it must be affirmed. , ,

Judgment affirmed.