White v. State

42 So. 164 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court.

White was cobvicted in the court of the mayor of the city of 'Greenwood, as an ex officio justice of the peace, on May 15, 1905, of having unlawfully sold intoxicants, and appealed to the ■circuit court. At the first term of the circuit court after the appeal was taken, on the application of the state, a continuance was granted because of the absence of material witnesses. At ■the July term, 1906, the case came on for trial, was called, and, the defendant not being present, the appeal was dismissed by the circuit court, and a writ of procedendo granted to the-mayor’s court. After this was done, the defendant made a motion to set aside the order dismissing the appeal and granting the writ of procedendo, which was overruled by the .court. The defendant accompanied the motion with an affidavit alleging, in substance, that he ivas wrongfully convicted in the-mayor’s court of Greenwood on the charge of having unlawfully sold intoxicants, and immediately appealed to the circuit court at the first term. After the appeal was taken, he was present in the court from day to day, and .the cause was continued on application of the state. The affidavit further recites that at the next term of court, and on July 9, 1906, affiant appeared and was in the room in attendance on court during the entire time wnilecourt was in session, until Wednesday, the 11th day of July,, when he left the courtroom for a few minutes; that during his-absence the case was called, and his appeal dismissed. The-affidavit further states that on the day the appeal was dismissed he was in the courtroom at 9 o’clock in the morning and remained until 10 o’clock, when a criminal case was called fort-rial in which there were twelve or fifteen witnesses; that after the witnesses had been called and SAVorn, supposing the court would be occupied for an hour or more, he Avent downstairs, but did not leave the courthouse, and did not leave the courtroom for more than ten minutes, but Avhen he returned he found that his ease had been called and the appeal dismissed; that at the time his case Avas called neither he nor his attorneys were-present in the courtroom; he offered to pay all costs as a condition of the setting aside of the order dismissing the appeal, and continues to make said offer; that he is innocent of the charge, and would prove his innocence if granted a trial.

It will be noted that the affidavit does not state A\Thy the defendant left the courtroom, nor assign any better reason for same than that he supposed the court would be engaged in the-trial of another case for some time. It Avas his duty to be in the courtroom all the time the docket was being called, and, if for any reason he desired to leave the courtroom, he could have obtained the permission of the presiding judge, which he did not do. The control of the dockets and their call must be left to the sound discretion of the trial judge, and his action in any matter appertaining to the procedure of his court, which is addressed to his sound discretion, will not be interfered with by the appellate court, unless there has been manifest abuse of it. From the affidavit made, we cannot say that such is the case in this instance.

Let the judgment he affirmed.