The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-03-31
ROBERT LAMAR,
VS..

The STATE.
Appeal from the Circuit Court of La
fayette county. Hon. w s Feather
ston, Judge.
COOPER, G. j., delivered the opinion of
the court.
la this case the following legal princi
plies were established: |. A party
charged with capital oflense, who asks
for continuance before venire drawn.
on account of al absent witness, but
fails to renew such application at the
trial, ana makes an effort to secure such
absent witness either for appearance on
the trial, or on the Tearing of the motion
for new trial, cannot for such refusal
to continue secure reversal Of the
Judgment.
,. If defendant desires a continuance
for such cause as above, he must show
that the absent witness has been du.y
summoned; must ask for an attachment.
| must apply for continuance, in capital
cases, before venire drawn; and must
set out in the application, the name
and the residence of the absent vii
ness, and the facts expected to be show d
| by him; must show what steps have
| been taken to secure the attendance OF
| the witness; must negative the idea that
| he is absent with the defendants con.
| sent or procurement, and must give the
cause of the absence of such witness. il
it be known If the continuance be
refused, defendant must again sue out
proper process to compel the attendance
of the witness, and when the case i:
called, must apply for a continuance
IF still refused, he should persist il
using the process of the court to com
pei the attendance of the witness or
| the trial, and if convicted, on the hear
| ing of motion for new trial If the
appearance of the witness cannot be
had, his er parte affidavit must be pre-
scented to the court if it can be obtained
3. L. was charged with the murder Of
Fl. 1t was shown that just before the
killing, H. said that he was going where
l.. then was "to persuade him to leave
town" He did go, and did try to in
! duce l.. to leave town, and quarrel
ensued and L. killed II. Held, that i
was error to admit HIS declaration o.
his intention liz going where l.. was
l.. not being present. But the subse
ouent carrying out of this expressed
intention being shown, the admission O
the declaration of this Intention did no
prejudice the defendant.
1t is competent to show conspirac,
among others than the defendant, anc
without his knowledge, ii he be after
wards connected with the conspiracy
by competent evidence.
5. In a trial for murder it is error t,
instruct the jury that the presumption
of malice from the use of deadl,
weapon, must control, unless from the evi
dence it appears to their satisfaction tina
there were circumstances of alienation
excuse or justification, if the same b,
not explained by adding that though
such presumption exists, yet when tn,
facts and circumstances of the KILN,
are shown, the jury must, from con sid
Grafton Of the whole case, deternin,
whether the killing was malicious.
6. On this trial for murder, al
instruction was offered by the defendant
which set out condition of thing
which, if it existed, or defendan
honestly and reasonably believed i
existed, justified him in killing tn
deceased, and added, "and the cour
further instructs the jury that tn
defendant is entitled to be acquitted !;
the jury have left on their minds by tn
evidence, a reasonable doubt as /.
whether the defendant honestly ant
reasonably believed as above set forth
under the circumstances above set fort
! in this instruction. and the court strucI
out this latter clase Held, that tn
court ought MOTTO have stricken it out
Edward Mays and G. Il. Howry for tn
appellant.
The Attorney General for the State