Casey v. State 96 Miss. 427, 50 So. 978

Walter Casey v. State of Mississippi.

[50 South. 978.]

Criminal Law and Procedure. Murder. Electric methods not conducive to fair trials.

Where a witness for defendant in a murder case was so unnerved, hysterical and affected by opiates as to he unable to testify, an-application for a postponement of the hearing for a reasonable-time should be granted to enable defendant to procure her testimony, although the postponement would carry the case over from a Saturday to the following Monday.

*428From tke circuit court of, second district, Bolivar county.

HoN.' James M. CashiN, Judge.

Casey, appellant, a negro, was indicted and tried for tke murder of one Washington, was convicted and sentenced to suffer deatk, and appealed to tke supreme court.

' Appellant was-indicted on Tuesday, tke second day of tke term. He kad retained counsel in kis bekalf, but on Friday of tke same week tkey witkdrew from tke case, and tke court immediately appointed otker counsel to represent kim. Defendant’s appointed counsel kad kis witnesses called, subpoenas baying previously been issued for tkem, and alias subpoenas were issued at tkeir request for two of tke witnesses wko were found to be absent. On tke nest day, Saturday, tke case was called for trial. The two witnesses not having appeared, a capias for tkem was placed in tke hands of tke sheriff, wko found one of them, a negro woman, at home in bed, claiming to be ill. Not heeding her remonstrances, tke sheriff forced her to leave her home and attend tke trial. When she reached tke courthouse she was unnerved, hysterical and unable to testify. A physician treated her, administering an opiate and she was carried to tke jail. Tke appellant’s counsel moved for a postponement of tke trial of tke case, at least, until tke following 'Monday, because tke witness, by reason of her condition resulting from illness and tke drug administered, was unable to testify. Tke motion was overruled and appellant was forced into a trial.

Flowers, Fletcher & Whitfield, for appellant.

Tke record discloses that tke eye-witesses of tke homicide wko testified for tke state were extremely partisan in tkeir views, and biased against appellant. Aside from appellant himself he kad no eye-witness of tke killing on tke stand as witness in kis bekalf. Hence, when he sought to have tke negro woman, wko kad been brought in under capias, placed on tke stand as a witness, and she was physically unable to testify, kis rights were prejudiced. He kad no fair trial. She was present at the komi-*429eide. Appellant relied on ber testimony. In jeopardy, be bad been diligent and bad bad ber subpoenaed. It was apparent when sbe was brought into court by tbe vigilant sheriff that sbe was. shaking with a very bad chill. Sick and frightened and hysterical as sbe was, it did not much improve ber capacity for testifying when tbe physician injected a large dose of some opiate into, ber, and tbe sheriff escorted ber over to jail for safe-keeping as a witness. Counsel for appellant wisely insisted that she was unable properly to testify, and asked for tbe case to be passed at lease until tbe ensuing Monday. Why tbe learned court should so have erred as to refuse this humane request, we cannot tell. But tbe refusal was error. Tbe witness could not and did not testify. Bor this the judgment must be reversed. Woodward' v. State, 89 Miss. 348; Montgomery v. State, 85 Miss. 330 ,- Galdwell v. State, 85 Miss. 383; Watson v. State, 81 Miss. 100.

George Butler, assistant attorney-general, for appellee.

It is questionable whether there was any prejudicial error in-appellant’s failure to secure tbe testimony of tbe negro woman as a witness in bis behalf. Other eye-witnesses bad testified in tbe matter. True they were state’s witnesses. But it is shown of record, in tbe testimony taken on motion for a new trial, that tbe counsel who bad first been retained by appellant and who-bad withdrawn from the case before tbe trial, bad interrogated tbe negro woman about ber knowledge of tbe matter and she bad told them that sbe knew absolutely nothing about tbe homicide.

Argued orally by B. V. Fletcher for appellant, and by George Butler, assistant attorney-general, for appellee.