Nelms v. State

Citations

• 58 Miss. 362

Syllabus

<p>1. Criminal Law. Application for continuance. Absence of witnesses.</p> <p>N., being indicted for murder, made an application for a continuance of his case on the ground of the absence of witnesses by whom he expected to prove an alibi, and that, owing to the excitement against him in a county adjoining that in which the killing occurred, and in which the trial was to take place, witnesses were deterred from appearing to testify in his favor. He admitted that there were several persons present by whom he could prove the alibi. The court refused to grant the application. On the trial, eight or nine witnesses appeared for the defendant and testified that he was ten miles from the scene of the killing when it occurred. Held, that there was no error in the refusal to grant a continuance.</p> <p>2. Same. Evidence. Admissions on application for continuance.</p> <p>In the trial of an indictment for murder, where the accused has made an affidavit for a continuance, which was refused, the State may introduce in evidence, in rebuttal of the testimony adduced by the defendant, his affidavit thus made, if it be contradictory of such testimony. And verbal statements made by him upon such application may be introduced in evidence for the same purpose, if they were made in answer to questions propounded by the court with the view of giving the defendant an opportunity to perfect his affidavit, it being defective as written.</p> <p>3. Same. Defence of alibi. Instruction as to nature of.</p> <p>In a trial for murder, where the defence relied upon is an alibi, it is error for the court to instruct the jury that “the defence of an alibi is one that is easily fabricated, and is often attempted by contrivance, subornation, and perjury,” and “the evidence to sustain it should be subjected to a rigid scrutiny, and weighed with great caution,” unless such instruction be accompanied with the charge that such defence, when fully and satisfactorily made, is á perfectly good and legal defen