* Headnotes 1. Criminal Law, 16 C.J., sections 821, 894, 2638, 3578; 2. Criminal Law, 16 C.J., section 891 (1926 Anno); 3. Criminal Law, 17 C.J., sections 3602, 3610. The appellant was indicted for the murder of Bettie Rightout, and was tried, convicted, and given a life term in the penitentiary for such offense. The killing occurred in January, 1923, and the indictment was filed on the 30th day of January, 1923. The case was not tried at that term of court, and during the month of June, 1923, process was issued for one W.B. Brown, an alleged eyewitness, on the part of the defendant. The process seemed to have been returned without Brown being found in the county. The case was continued until the January, 1924, term of court, and was called for trial on February 6, 1924, and an application for a continuance was then filed by the defendant, in support of which application she made affidavit that she could not safely go to trial because of the absence of the witness Brown, who she alleged was absent without any fault on her part, or procurement or design of the defendant; that she had a subpoena issued for the said Brown prior to the July, 1923, term of the court, and that the process was returned unexecuted, and that defendant on being advised that said Brown was in Meridian, Miss., had process issued for him to Lauderdale county, Miss.; that said process was returned unexecuted with the information that said *Page 378 Brown was at Norfield, Miss., Lincoln county; that thereupon the defendant had process issued and directed to the sheriff of Lincoln county, for said Brown during the July, 1923, term of court, which process she alleged was never returned. It is then alleged that the defendant saw Brown, the witness, at Lumberton, Miss., which is in the county where the case was tried; that said Brown was at Lumberton during December, 1923, and January, 1924; and that defendant talked with him and he assured her he would be present at the January, 1924, term of court to testify in her behalf. It is further alleged that the defendant is an illiterate, ignorant negro woman, inexperienced in court procedure, and that she thought that the said Brown had been duly served with process until her case was called for trial; that she then and there had process issued to Lamar county for said witness Brown, and said process was returned unexecuted; that the deputy sheriff, to whom the last mentioned process was delivered, advised the defendant that he learned that said witness was at a tie camp near Poplarville, Miss., and from other sources the defendant learned that said Brown was at Laurel, Miss.; and that she immediately had process issued for each county and placed in the hands of the proper officers. She then sets up that Brown was a material witness and an eyewitness to the killing and sets forth in some detail what his testimony would be.
An affidavit is also made by one of the attorneys for the defendant, stating that he has had the exclusive management and control of the case, and that he personally had issued the process referred to in the affidavit of the defendant; that the first process was issued on June 13, 1923; that the attorney had investigated the case, and believed that said Brown, if present, would testify to the facts set forth by affiant in her motion and affidavit. Affiant says that he gets this information and belief from an investigation of the matter and in talking with other witnesses. He states that his failure to have process issued earlier during the present term, and prior thereto, *Page 379 was due to the fact that he was taken seriously, violently, and dangerously ill on December 24, 1923, and was confined to his bed continuously until February 4, 1924, and that during all of said time he was utterly and completely incapacitated for business of any kind and was not able to look after this case; that as soon as he was sufficiently recovered from such illness and able to get to the courthouse he, said attorney, had process issued for the said witness, Brown; that said witness is absent without any fault, procurement, or design of said affiant and he believes without fault of the defendant; that affiant believes that the testimony of said witness, Brown, is material, and he believes he can have him present to testify at the next term of court.
Nothing appears to have been done with the case in the court below until February 12, 1924, when the motion for a continuance was renewed and the affidavits renewed, also, and on the case being called for hearing, defendant's attorney called on the sheriff of Jones county, at Laurel, Miss., and was informed that process was not executed, but that it would be if the witness was in the county, but that said process was returned unexecuted.
This motion was overruled and motion for a special venire was filed with request that it be served one full day before the trial. This venire was returnable on February 15, 1924. When the case was called on February 15th, neither the defendant nor either of her attorneys was present in the courtroom. The court thereupon took a forfeiture upon her bail bond and issued acapias for the immediate arrest of the defendant, and also entered a fine against her attorneys for not being present in court when the case was called for trial. The defendant was arrested and brought into court, and other attorneys appointed by the court to defend the defendant; but before the impaneling of the jury in the case was begun one of the defendant's attorneys appeared in court and was permitted to take charge of the defense, the attorneys appointed by the court retiring from the case. The *Page 380 attorneys for the defendant thereupon moved to quash the special venire because of the fact that the court had declared a forfeiture of the defendant's bond in the presence of the venire, and also because a fine was imposed upon her attorneys in the presence and hearing of the venire. Defendant's attorney also made a showing that he was absent because his partner had assured him that he would look after the case personally in the trial thereof, and the fine for such attorney was remitted.
The motion to quash the venire was overruled, and the trial proceeded without any other motion for a continuance being made on account of the absent witness so far as the record shows.
After the conviction, a motion for a new trial was filed, but no evidence was introduced as to the whereabouts of the witness Brown, nor was any affidavit of Brown procured to show what he would testify to if present, should a new trial be granted.
There was no evidence either upon the motion to quash the venire or on the motion for a new trial to sustain the motion, nor does the record show anywhere that any juror was prejudiced or influenced in any manner by the proceeding.
The principal ground relied upon for reversal is the refusal of the circuit court to continue the case on the showing made.
The defendant was the only eyewitness for the defendant, and one eyewitness for the state who was present at the killing testified as an eyewitness.
The evidence of Brown, if it were as set forth in the affidavit, might have changed the result of the verdict; but we cannot reverse the case because on February 15, 1924, there was no motion for a further continuance nor any showing made that any effort had been made to learn the whereabouts of Brown since the overruling of the motion on February 12, 1924, and also because there was no sufficient diligence in having process issued prior to the trial term; nor was it sufficiently shown where the defendant was. *Page 381
In ruling on motions for a continuance, the circuit judge is usually in a better position to judge of the propriety of continuing or refusing to continue a case, and it is only where a person prejudiced by such ruling can make a showing that injustice resulted or that he was prejudiced by such ruling, that this court can interfere with such discretion of the trial judge. To avail of this assignment it was the duty of the defendant, after the motion was overruled, to continue to use the process of the court up to and during the trial so that such witness might be available, and failing to secure the presence before or during the trial, the defendant should endeavor to secure the attendance of the witness for examination on the motion for a new trial, and if for any reason he cannot personally be present, his affidavit should be secured, if that can be done, setting forth what his testimony would be were he present in court, sworn to by the witness personally.
This rule is announced in Lamar v. State, 63 Miss. 265, and reiterated in Ware v. State, 133 Miss. 837, 98 So. 239.
There was no sufficient showing made that the witness was within the jurisdiction of the court and that process would secure his attendance at the next term. So this assignment of error is unavailing here.
We do not think that the fact alone that the judge took a forfeiture on the bail bond in the presence of the venire was sufficient to reverse the case, nor do we think the fact that the judge imposed on the lawyers a fine for being absent, which fine was imposed in the presence of the venire, was itself sufficient to cause a reversal of a case.
The record fails to show that any challenge for cause was made on this ground or that the question was raised during the impaneling of the jury. The defendant could not willingly take a juror knowing these facts and afterwards set up a disqualification which was not raised when the juror was being impaneled. *Page 382
It follows that the judgment of the court below must be affirmed.
Affirmed.