Cannon v. State

Mississippi Supreme Court

Cannon v. State

75 Miss. 364

CourtMississippi Supreme Court

DecidedDecember 15, 1897

StatusPublished

Cited by7 cases

This text of 75 Miss. 364 (Cannon v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cannon v. State, 75 Miss. 364 (Mich. 1897).

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Opinion

Woods, C. J.,

delivered the opinion of the court.

The indictment charges two distinct offenses, but the two counts evidently rest upon one transaction. While the counts are for. independent offenses, the offenses do not differ in character or degree, the punishment for each being the same. While it is bad practice to charge different and independent offenses in one indictment, yet we cannot reverse on that account in this case, for the reason that now, looking back through a completed trial, we can see that the appellant was not actually prejudiced by the action of the cpurt in overruling the demurrer to the indictment.

The motion of the accused to compel the state to elect upon which count it would proceed came too late, as it was made after plea, and after all the evidence had been put in. If the motion had been made in good time, we must suppose the court below would have required the state to elect. The motion for a continuance was not erroneously denied. The application cannot be said to have shown proper diligence on defendant’s [367]*367part in endeavoring to secure the attendance of his witnesses. But, in addition, it must be observed that the defendant did not ask compulsory process to constrain the appearance of the witnesses who had been subpoenaed and who failed to appear, nor pray a postponement of the hearing until such compulsory process could be executed and the defaulting witnesses produced. It is a motion simply and purely for a continuance of the case until a subsequent term, and was properly overruled.

There was no error committed by the court in refusing to set aside the verdict because it was a general one of guilty. If one of the counts had been bad (but, in fact, both were good), this general verdict would be referred to the count which was good — and this count, confessedly good, was the one to which the state’s evidence was directed, and was, undoubtedly, the one on which the verdict was based.

We see no reversible error, and the judgment is therefore

Affirmed.

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Woods, C. J.,

delivered the opinion of the court.

The indictment charges two distinct offenses, but the two counts evidently rest upon one transaction. While the counts are for. independent offenses, the offenses do not differ in character or degree, the punishment for each being the same. While it is bad practice to charge different and independent offenses in one indictment, yet we cannot reverse on that account in this case, for the reason that now, looking back through a completed trial, we can see that the appellant was not actually prejudiced by the action of the cpurt in overruling the demurrer to the indictment.

The motion of the accused to compel the state to elect upon which count it would proceed came too late, as it was made after plea, and after all the evidence had been put in. If the motion had been made in good time, we must suppose the court below would have required the state to elect. The motion for a continuance was not erroneously denied. The application cannot be said to have shown proper diligence on defendant’s [367]*367part in endeavoring to secure the attendance of his witnesses. But, in addition, it must be observed that the defendant did not ask compulsory process to constrain the appearance of the witnesses who had been subpoenaed and who failed to appear, nor pray a postponement of the hearing until such compulsory process could be executed and the defaulting witnesses produced. It is a motion simply and purely for a continuance of the case until a subsequent term, and was properly overruled.

There was no error committed by the court in refusing to set aside the verdict because it was a general one of guilty. If one of the counts had been bad (but, in fact, both were good), this general verdict would be referred to the count which was good — and this count, confessedly good, was the one to which the state’s evidence was directed, and was, undoubtedly, the one on which the verdict was based.

We see no reversible error, and the judgment is therefore

Affirmed.

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Bluebook (online)

75 Miss. 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannon-v-state-miss-1897.

Opinion

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