Driskill v. State

• Decision Date: 24 December 1855
• Parties: Driskill v. The State
• Court: Indiana Supreme Court

7 Ind. 338

Driskill v. The State

Supreme Court of Indiana

December 24, 1855

APPEAL from the Tippecanoe Circuit Court.

The judgment is affirmed with costs.

E. H Brackett, S. A. Huff and E. A. Greenlee, for appellant.

R. C Gregory and H. W. Chase, for the State.

OPINION

Davison J.

Driskill, the appellant, with Rice, Longley, Clark, Privot and Chapman, was, at the April term, 1855, indicted in the Tippecanoe Circuit Court, for the murder of one Cephas Fahrenbaugh. Against Driskill, there was a verdict that he was guilty of murder in the first degree, and that he suffer death; upon which the Court rendered judgment and passed sentence.

Driskill, at the proper time, moved for a delay of the trial for a reasonable time, on account of the absence of a witness. In support of the motion, he filed his affidavit, wherein it is alleged that "he can not safely go into the trial of said cause, without the testimony of one James Rorick, a material witness for him, Driskill, in his defence; that he expects to prove by said witness that on the night of the alleged murder, from the hour of nine o'clock, he was in company with the above witness and two other persons, whose names are unknown to the affiant, on board a canal-boat lying at the town of Lafayette, playing at cards; and that said witness, the two other persons, and affiant continued together on said boat, playing at cards, until eleven o'clock of that night; which facts he says are true. Affiant expects to prove by other competent testimony, that from between the hours of eleven and twelve of said night, he was at home, at his father's house in Lafayette, in bed; that the place at which said murder is alleged to have been committed, is at least four miles distant from his residence; and affiant is informed and believes that, on the part of the persecution, it will be shown that the alleged murder was committed at or about the hour of twelve of said night. He is, therefore, led to believe that the testimony of said witness will be material. That affiant informed his counsel of the facts he expects to prove by the witness, at the first interview he had with them after they had consented to appear in his defence; that said witness is a boatman by occupation, engaged on the Wabash and Erie canal; that he is informed and believes that witness left Lafayette a short time after the night in question, in his regular vocation; that affiant has been unable to learn at what point said witness now is, so as to send a subpoena for him; that he has reason to believe and does believe that the witness can be found, so as to secure his attendance in a reasonable time, if the trial of the cause is delayed for that purpose; that affiant knows of no witness by whom he can prove the same facts that he expects said witness' testimony to prove; that this application is not for delay, but for justice."

Driskill, it appears, was arraigned, and counsel assigned him, on the 12th of May; his affidavit was sworn to on the 31st of that month; and the motion for delay was made on the 6th of June.

The Court overruled the motion. After this, and before Driskill was put upon his trial, he moved for leave to amend the above affidavit, alleging that by reason of a clerical omission of the attorney who drafted it, the residence of said witness was not therein shown, and that he desired to amend and re-swear to said affidavit, so as to show that the witness left the county of Tippecanoe before the present indictment was found; that he had not returned to said county; and that said witness resided in the state of Ohio.

We are aware of no rule of practice authorizing the Court to allow a party to amend an affidavit, filed in support of a motion for a continuance, after such motion has been decided.

But suppose the affidavit be considered amended in accordance with the motion to that effect, does it then show that Rorick's testimony would have been material? It is alleged that the murder occurred on the night of the third of May; that the witness would testify that from nine to eleven o'clock of that night, the defendant was on board a canal-boat lying at Lafayette; but the distance between the boat and Fahrenbaugh's, the place of the murder is not shown. He says his residence was at least four miles from Fahrenbaugh's; but at what distance was the boat from that point? For aught that appears, it may have lain sufficiently near the place of the murder to have allowed him sufficient time to have reached that place before the hour of twelve. The defendant left the boat at eleven o'clock. The witness did not accompany him. Did he go directly home? The affidavit does not answer this question. The witness could have testified nothing as to the defendant's whereabouts after he left the boat. The mere fact that he did leave at the time stated, is not material, because it does not forbid the conclusion that the defendant was at the place of the murder when it was committed.

But the affidavit states that the defendant expected to prove by other witnesses that from between the hours of eleven and twelve o'clock of said night, he was at home, at his father's house, in Lafayette, in bed. This evidence might have been material. It tended to prove an alibi. But such evidence could have derived no additional weight from the absent witness, because it is not shown that he knew where the defendant went after he left the boat, or whether he was or not at his father's house on the night of the murder. In Detro v. State, it was held that "the motion for a continuance, based upon the affidavit of the party, is addressed to the sound discretion of the Court, and the granting it must depend to a great extent on the peculiar circumstances of each case." 4 Ind. 200. True, where the Court refuses a continuance, its ruling is subject to revision; but unless an improper exercise of such discretion is manifest,...