Itow v. United States
| Decision Date | 10 May 1915 |
| Docket Number | 2515. |
| Citation | 223 F. 25 |
| Parties | ITOW et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted]
J. H Cobb, of Juneau, Alaska, for plaintiffs in error.
Jno. J Reagan, U.S. Atty., of Nome, Alaska, and John W. Preston, and M. A. Thomas, Asst. U.S. Attys., both of San Francisco, Cal., for the United States.
Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.
The plaintiffs in error were indicted for the murder of Frank Dunn. Itow was convicted of murder in the first degree, and Fushimi was convicted of manslaughter. Error is assigned to the refusal of the trial court to grant a continuance for which application was made by the defendants' counsel, on the ground that necessary witnesses subpoenaed in Seattle and Portland had not arrived at the place of trial; and it is contended that by the denial of the application the defendants were deprived of a substantial right, the right of affording their counsel opportunity to examine these witnesses before the trial, and to acquire information from which he could make an opening statement of the defendants' case to the jury, the fact being that on account of those circumstances no opening statement was made. The indictment was found December 13, 1912. On December 20th the defendants applied for process to compel the attendance of witnesses alleged to be in Seattle and Portland. The case was set for trial on January 2, 1913. Continuance was then requested, and it was stated that the defendants' witnesses had started from Seattle and were on their way. The court ruled that the jury should be impaneled pending their arrival. Later the defendants' counsel stated that the witnesses had missed their steamer, but would probably come on the next steamer. The court again refused to continue the trial. On the following day, after the jury were impaneled, counsel for the defense declined to make an opening statement to the jury, for the reason that he had had no opportunity to talk to the absent witnesses, and he asked that he might reserve that privilege until he should have the opportunity to see them. Subsequently two continuances, amounting in all to four days, were granted, awaiting the arrival of the witnesses. After their arrival, the trial of the case went on, and counsel for the defendant made no opening statement, nor did he request permission to make one. An application for the postponement of a trial is addressed to the sound discretion of the court, and a ruling thereon is not subject to review by an appellate court, unless it is clearly shown to have been a gross abuse of discretion. Hardy v. United States, 186 U.S. 224, 22 Sup.Ct. 889, 46 L.Ed. 1137. The facts in the record here show no abuse of discretion, and it is not seen that the defendants could have suffered prejudice from the rulings of the court. The absent witnesses arrived in time. The defendants' counsel had the opportunity to obtain their version of the facts, and to make an opening statement to the jury had he so desired.
We find no error in the refusal of the court to discharge the jury and enter a mistrial upon the motion of the defendants, on the ground that the jury, having been permitted to separate on each adjournment or recess of the court, must have seen and read a certain article published in a newspaper at Juneau, entitled 'Japanese are Accused of Many Crimes,' in which reference was made to the case then pending in court. Counsel for defendants had consented to the separation of the jury. The court had instructed the jury not to talk to any person about the case, nor to read anything in regard to the case. When the motion was made to discharge the jury, the court, on examining the jury, became satisfied that none of the jurors had seen or heard anything said about the article in the newspaper.
It is assigned as error that the court admitted in evidence a certain statement made by Fushimi to the district attorney prior to the trial, concerning the facts and circumstances attending the death of Frank Dunn. It is said that this was error, for the reason that it was the admission of a statement, made after the alleged crime, by one of the two persons indicted for the commission of the offense, which, not having been made in the other's presence, was not competent evidence against him. The statement was offered as part of the...
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