Long v. State

Citations

• 52 Miss. 23

Syllabus

<p>1. CoNTrsrtrANCE: Dangerous exercise of judicial discretion.</p> <p>It is a dangerous exercise of judicial discretion to refuse a continuance and a postponement of trial to a future day of the term, where the affidavit alleges material facts, where all diligence has been shown by the applicant, and where it is averred that the same proof can be made by no other than the absent witness. A reversal will not be granted if it is shown by the record that every material fact set out in the affidavit for the continuance was subsequently proved by other witnesses.</p> <p>2. Presence oe the Accused nr Criminal Trials : Recitals of the record.</p> <p>It is well settled that the record must affirmatively show the presence of the accused, when in custody, during the entire trial before the jury. Whether the same requirement exists as to the leaving of questions of law is not definitely settled, but the safer rule is that in all cases of felony the records should show the presence of the accused in every step in the progress of the cause so important as a motion to quash the indictment.</p> <p>3. Murder : Testimony as to antecedent malice, and in rebuttal.</p> <p>On a trial for murder, the state having introduced testimony tending to show antecedent malice and previous preparation for the combat, the accused has the right to introduce testimony tending to show that such preparation was made in anticipation of an expected attack upon himself, and the exclusion of such testimony is error.</p> <p>4. Same: “ Apparent danger” a mixed question of law and fact. Right of the court to instruct thereon.</p> <p>Apparent danger is a legal term, with a fixed and definite meaning. What circumstances constitute apparent danger is primarily a mixed question of law and fact, but when all the facts are ascertained it is a question of law alone. The court has the right to give a charge, which sums up all.the facts relied on by the state, hypothetically, and inform the jury that if they believe