State v. Murry , 165 La. 653 ( 1928 )

Defendants are indicted jointly for the manufacture of intoxicating liquor. L.D. Murry pleaded guilty and was sentenced to pay a fine of $300 and, in default of payment, to imprisonment in jail for a term of 12 months.

Defendants McMurrain and Futch pleaded not guilty on October 17, 1927, and the case was set for trial October 28, 1927. Both defendants were convicted, and each was sentenced to pay a fine of $310, and to be confined in jail for a term of 60 days, and, in default of payment, to imprisonment for an additional term of 12 months. The defendants McMurrain and Futch have appealed.

The record contains only two bills of exception. The first bill is reserved to the action of the trial judge in overruling a motion for a continuance, and the second bill is taken to his action in overruling a motion for a new trial.

Motion for Continuance. The motion for continuance is based upon allegations that defendants are poor men and were not able to secure counsel to defend them until the day of the trial, and that their counsel had not had sufficient time since his employment to prepare the case.

It is alleged also in the motion for continuance that L.D. Murry, Ozelle Futch, and Tommy Futch were material witnesses for defendant and were absent; that these witnesses, if present, would testify that defendants McMurrain and Futch had no interest in the still, but were innocent bystanders at the time of their arrest at the still, and were not connected in any way with the manufacture of the liquor by the defendant L.D. Murry.

In our opinion, the application for continuance was properly refused.

Defendants were warned by the trial judge when they were arraigned on October 17, 1927, to make all necessary preparations for their trial, which was fixed in their presence for October 28, 1927.

If defendants had not the means to employ counsel, it was their duty to have so advised the court at the time of their arraignment, and to have requested the appointment of an attorney to defend them. Revised Statutes 1870, § 992; State v. Perry, 48 La. Ann. 654, 19 So. 684; State v. Sims, 117 La. 1040, 42 So. 494.

Defendants had ample time to secure the attendance of absent witnesses by compulsory process. The witnesses Ozelle Futch and Tommy Futch had been summoned, and the service made on these witnesses was domiciliary, as shown by the returns on the summons. The defense witness L.D. Murry was not summoned until the day of the trial. While it is alleged that the innocence of defendants could be established by the testimony of this witness, who had pleaded guilty to the charge, it is stated in the motion for continuance that he had absconded in order to be absent on the day of the trial, and was then at some unknown point on the Ouachita river.

Defendants aver that they relied solely on the verbal promise of the witness L.D. Murry to be present at the trial. If defendants have seen fit to rely upon the mere volition of this witness to attend court, instead of invoking the compulsory process which the Constitution has provided them for procuring their witnesses, the fault is solely at the door of defendants themselves, and they cannot be heard to complain of the absence of witness in question. Defendants have not used the due diligence required by law to enforce the attendance of the absent witness, nor have they alleged in the motion for continuance any reasonable probability of securing his attendance in the future, if the continuance, should be granted.

The motion for continuance in this case was not denied until after the district attorney had admitted that the absent witnesses of defendants, if present, would testify to the facts set out in the motion.

"Under Act 84 of 1894, the district attorney having admitted that if the absent witness were present he would testify as stated in the motion made under oath for a continuance, the state was entitled to an immediate trial." State v. Vial, 153 La. 892, 96 So. 799; State v. O'Neal, 136 La. 558, 67 So. 365.

Motion for New Trial. Defendants' motion for a new trial is based upon the same grounds that are set out in the motion for continuance, with the additional ground that the verdict is contrary to the law and the evidence. The trial judge overruled the motion for new trial on the ground that the verdict was sustained by the evidence.

As we have already disposed of the grounds of the motion for continuance adversely to defendants, no further question of law is presented for review by the motion for new trial.

The conviction and sentence as to both defendants are affirmed.