Russell v. State , 203 Miss. 883 ( 1948 )

The appellant was convicted of grand larceny. At the trial he sought but was refused a continuance on account of the absence of two persons by whom he claimed he could prove an alibi, and whose presence he had used due diligence to obtain. After the rendition of the judgment against him he filed a motion for a new trial alleging as a ground therefor that the court erred in overruling his motion for a continuance. He made no effort to obtain the presence of these witnesses at the hearing of this motion, which probably would have been futile, but it appears from the evidence of the appellant himself that the affidavits of these witnesses as to what their testimony would have been, could have been easily procured. More than sixty years ago this Court held in Lamar v. State, 63 Miss. 265, that the absence of such an affidavit on the motion for a new trial is fatal to the movant's right thereto. That case has since been continuously adhered to in many decisions. Consequently, the court below committed no error in overruling the motion for a new trial.

Affirmed.