Osborne v. State , 146 Miss. 718 ( 1927 )

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 489, n. 11; p. 491, n. 38; p. 493, n. 60; p. 736, n. 46; p. 772; n. 31; p. 1138, n. 26, 32; p. 1226, n. 6; p. 1235, n. 34; 17CJ, p. 280, n. 4 New; Intoxicating Liquors, 33CJ, p. 758, n. 80. As to necessity of application for continuance to show diligence, see 6 R.C.L. 563; 2 R.C.L. Supp. 156. Appellant was indicted, tried, and convicted for the unlawful possession of a still, and sentenced to the penitentiary. Appellant was tried a few days before the present trial at the same term of the circuit court, and the jury, failing to agree, were discharged, and the case called for retrial during a subsequent week, and it appeared that some of the witnesses who were present at the first trial were absent, and a motion was made for a continuance, in which motion it was claimed that appellant could not go to trial safely without such witnesses, and that among the things he expected to prove by them was that force and coercion were had in extorting a confession introduced in the first trial. Process was issued for the absent witnesses, one of them being then in Madison county, and the other in Adams county. The process to Madison county was returned "Not found," and with the return was the statement in a letter from the sheriff, giving another name by which appellant's witness was known, and stating that such party was then in Yazoo county, but he expected him back in Madison county shortly.

On motion for a continuance after the return of this process, and before the process from Adams county was returned, the state offered evidence of the two absent witnesses on their direct examination at the first trial, and it appeared that they did not testify as to such coercion. There is nothing in the record to show that the court discharged the witnesses, and we are asked to take knowledge of the alleged custom of discharging witnesses in such cases of disagreement.

The sheriff of the county received information that appellant was violating the law with reference to liquor, and made affidavit for a search warrant before a justice of the peace of said county, in which he stated that he had information from a reliable source, which he believed to be true, that appellant was engaged in the manufacture and sale, or had possession of, intoxicating liquors, at a place occupied by him about fourteen miles west of Grenada, on the north side of the Grenada and Charlestown road, and upon this affidavit the search warrant was issued, directing the sheriff to search the premises, outhouses, etc., and person of the defendant, and to arrest the defendant and seize any liquors, or stills, or appliances found, etc. The sheriff with two deputies and two federal prohibition officers, armed with this search warrant, proceeded to the appointed place occupied by appellant on the side of the public road, and found him and other persons on the gallery of his home early in the morning in question, and served the warrant, and proceeded to search the house, and found a small quantity of liquor in vessels, but did not find any still or any great quantity of liquor. The sheriff and prohibition officers noticed a fresh track, and, following this track from Osborne's house to a place situated in a hollow nearly one-half mile from his house, they there found a still set up, which had been operated, and found a large quantity of beer, about fifteen hundred gallons, near the still. When they discovered this still, they returned to the house where the deputies and others were in charge, and they all returned to the place where the still was and, according to the officers, appellant had a conversation in which he stated that most, but not all, of the beer belonged to him, that he owned the still and had set it up, and that he took it down for the officers, and requested them to tell him who had informed them that he was engaged in that business. This they refused to do. He then stated that, if they would tell him who informed on him, he would give them the name of every manufacturer of liquor in the county. They refused, however, to do so. He then said he knew who had informed on him, and if they would go with him he would show the still of such person. They went some three hundred yards on another route and found where a still had been located, but none was there at the time. They also testified that, while destroying the barrels which contained the beer or mash, appellant requested them not to do so, that the barrels had cost him money. According to one of the officers, on the way from the house to the still, appellant and said officer engaged in a conversation in which the officer stated to appellant that he seemed to be an intelligent man, and why would he engage in such a business, and that appellant stated that he was not an educated man and had no other way of making his living; that he intended to save up money enough and buy a certain forty acres of land, and when he did this it was his expectation to abandon this business. Appellant did not testify, and there was no denial of this conversation, except that a witness for the defendant stated that he did not hear the conversation. This conversation, however, was testified to by three officers, and, in addition, the other officers testified to another conversation referred to in the record.

It is claimed by appellant that the court erred in refusing to grant a continuance on the ground of the absent witnesses. There was nothing to show that the witnesses were discharged by the court, nor is there anything to show that their testimony would be different from what it was on the first trial. Although conversations were offered in evidence on that trial, nothing was said by these witnesses with reference to any coercion used upon appellant.

Appellant failed to testify. Of course, under the law, that was his privilege, but after the trial was over and he was convicted, it was certainly permissible for him to testify on the motion for a new trial, so that the court would know upon what basis he expected to have the witnesses testify, and whether or not they were absent by his consent or procurement. In Lamar v. State, 63 Miss. 265, the court laid down the rule that to entitle the defendant to a continuance, because of the absence of witnesses, he must promptly have the witnesses summoned, must ask for an attachment if they fail to appear after being summoned, must apply for a continuance before venire drawn, and set out in his affidavit the name and residence of the absent witnesses and the facts expected to be shown by them, and also what steps have been taken to secure their attendance, and must negative the idea that they are absent with defendant's consent or procurement, and give the cause of the witnesses' absence.

"If the continuance be refused, defendant must sue out the proper process, and when the case is called for trial, must again apply for a continuance, making such changes in his affidavit as the conditions then existing require. If still refused, he should persist in using the process of the court to compel the attendance of the witness on the trial, and if convicted, on the hearing of a motion for a new trial. If the appearance of the witness cannot be had, his ex parte affidavit must be presented to the court, if it can be obtained, on the hearing of the motion for a new trial."

This rule has been repeatedly reannounced since the decision in that case, and it is applicable here.

It is next contended by appellant that the confession was not receivable because the corpus delicti had not been established. We think appellant misapprehended the requirements of the rule in this case. The still was discovered. It had been operated. Some liquor was found there and large quantities of beer ready to be distilled was found there, showing the unlawful character of the still and that it had been used in the process of distilling. The confession of the defendant is admissible to connect him with the offense, when the corpus delicti had been proved.

It is clearly proved here that the still existed and had been operated in the neighborhood in which appellant lived, and whisky was found both at the home of appellant and at the still. This established the fact that the still was possessed by somebody, and appellant's confession was competent and sufficient to establish his connection with the still.

We think the instructions in the case presented the law fully, and there is no error in giving and refusing of such instructions.

The judgment will therefore be affirmed.

Affirmed.