Lamar v. State

Citations

• 63 Miss. 265

Syllabus

<p>X. Murder.' Continuance. Absent witness. Diligence.</p> <p>A party charged with a capital offense, who asks for a continuance before venire drawn on account of an absent witness, but fails to renew such application at the trial and makes no effort to secure such absent witness, either for appearance on the trial or on the hearing of the motion for a new trial, cannot for such refusal to continue secure a reversal of the judgment.</p> <p>2. Same. Continuance. What necessary to secure.</p> <p>To entitle a defendant in such case to a continuance because of the absence of a witness, he should promptly have the witness summoned; must ask for an attachment if the witness has been summoned and failed to appear; must apply for a continuance before venire drawn, and set out in his affidavit the name and residence of the absent witness and the facts expected to be shown by him, and also show what steps have been taken to secure his attendance ; must negative the idea that he is absent with defendant’s consent or procurement, and give the cause of the witness’ absence, if it be known. If the continuance be refused, defendant must sue out the proper process for his witness, 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 the 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.</p> <p>3. Same. Eoidence. Declarations of deceased in absence of accused.</p> <p>L. was charged with the murder of II. It was shown that just before the killing H. said that he was going where L. then was “ to persuade him to leave town.” He did go and did try to induce L. to leave town, but a quarrel en