Montgomery v. State

Citations

• 85 Miss. 330

Syllabus

<p>1.Criminal Law. Continuance. Absent witness. Compulsory process.</p> <p>Under Code 1892, § 1425, regulating the subject, where a defendant in a criminal case had not had opportunity to obtain compulsory process for a witness on account of whose absence he desired a continuance, and the facts) which he expected to prove by him were material to the defense, and suc,h process would probably have secured his presence, it was error not to have continued the case, or postponed it to another day, although the prosecuting attorney admitted that the witness, if present, would have testified as shown in .the affidavit.</p> <p>2.Same. Assa/ult with intent to kill. Assault and battery with intent to kill. Code 1892, $ 967. Instruction. Counts in indictment.</p> <p>Where a defendant was charged, under Code 1892, § 967, in one count with an assault with intent to' kill and murder, and in another count of the same indictment with an assault and battery with like intent, and there was no evidence of the battery, it was error to instruct the jury, generally, that the want of such evidence was immaterial, drawing no distinction between the counts of the indictment.</p> <p>3.Same. Practice. Time of granting instructions.</p> <p>The proper time for granting instructions is after the close of the evidence and before the argument of the case. While the court has the right to grant an instruction at any time before the jury retires, it should not be done after argument is commenced, except on rare and emergent occasions and with opportunity to the other party to prepare and request counter charges.</p> <p>4. Same.</p> <p>The procuring of an instruction in a criminal case from the court during the argument for defendant, whose counsel had no notice thereof until it was produced for the first time during the closing argument for the state, was error, though on objection the state’s attorney offered to permit defendant’s counsel then to answer it.</p>