Walton v. State

Citations

• 87 Miss. 296
• 39 So. 689

Syllabus

<p>1. Criminal Law and Procedure. Continuance: Code 3892, § 1425. Absent witness. Admission.</p> <p>Under Code 1892, § 1425, regulating the subject, a defendant in a criminal case is entitled to a continuance where necessary to obtain the testimony of an absent material witness, who has been subpoenaed and is absent without his consent or procurement, if the attendance of the witness can probably be had at the next term, although the state offers to admit that the witness would testify as claimed.</p> <p>2. Same. Reserving witness for rebuttal. Cross-ewamination.</p> <p>Where the state in a murder case reserved a witness to the homicide and introduced him only in rebuttal:</p> <p>(а) He is subject to full cross-examination, and it will be error to confine defendant’s cross-examination of him to matters in surrebuttal; and</p> <p>(б) He may be asked on cross-examination if he had testified at defendant’s committing trial.</p> <p>3. Same. Improper statements by counsel.</p> <p>Improper statements by counsel, assigned as a ground for a new trial, cannot be considered on appeal where the record contains no proof that they were in fact made.</p> <p>4. Same. Homicide. Instruction. Assumption of fact in dispute.</p> <p>An instruction which assumes as true a controverted matter of fact is erroneous.</p> <p>5. Same. Evidence. Statements.</p> <p>In a murder case statements, other than dying declarations, made by the decedent after the fatal shot are inadmissible in evidence.</p>