Fugler v. State , 58 Miss. 829 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court. .

Appellant, who was at large upon recognizance, charged with the commission of a misdemeanor, failed to appear at the time of trial. The trial, nevertheless, proceeded in his absence, and resulted in a conviction.

He appeared the next day and moved for a new trial, basing the motion in part upon an allegation that the verdict of. the jury was contrary to the evidence; and, upon the hearing of the motion, insisted that the State’s witnesses should be .compelled to reappear, and in his presence, and before the judge, repeat the testimony previously delivered before the jury. The court overruled this application, upon the ground that it had sufficient recollection of the testimony to act upon the motion, and that if the accused did not have it, it was his own fault. It is earnestly insisted that this was wrong, inasmuch as it deprived the accused of all opportunity to know what testimony had been adduced against him, and of all possibility of making out a bill of exceptions for this court embodying that testimony, for inspection here. This is not true. The accused could have tendered to the district attorney and the judge such recital of the testimony as he might learn from others had been delivered against him, and would have ob-' tained a bill of exceptions, with such modifications and corrections as those officials thought proper to make. He would, of course, be veiy much at their mercy, or rather subject to their sense of justice and recollection of what had occurred; but this was the unavoidable consequence of his own wrongful act in absenting himself from trial, and he cannot complain of it.

■ To give a person who has so absented himself an absolute right to demand that all the witnesses against him should be' recalled after trial, in order that they may repeat in' his presence the ■ testimony previously delivered, would be most troublesome in practice, and inevitably lead to disputes and contentions as to whether the testimony, as repeated, agreed with that originally delivered'.

There was no error in refusing it. The other errors assigned are without merit.

Affirmed.