Eubanks v. People of State
| Decision Date | 30 April 1866 |
| Citation | 1866 WL 4625,41 Ill. 486 |
| Parties | WALKER EUBANKSv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Livingston county; the Hon. CHARLES R. STARR, Judge, presiding.
This was an indictment found by the grand jury of Livingston county, and returned to the October Special Term of the Circuit Court of that county, against Walker Eubanks. It charged him with an assault with intent to murder one James M. Donaldson. He entered a plea of not guilty, after being arraigned.
Defendant entered a motion for a continuance founded on an affidavit of the absence of material witnesses. The court overruled this motion and the defendant excepted. On the day following, and at the term at which the indictment was found, defendant was put upon his trial before the court and a jury.
After hearing the evidence, the jury found the defendant guilty, and fixed the term of his confinement in the penitentiary at eight years. He thereupon entered a motion for a new trial, which the court overruled, and rendered judgment on the verdict; and he prosecutes this writ of error to reverse that judgment.
Messrs. BANGS & SHAW and NEVILLE & CLARK, for plaintiff in error.
Mr. C. BLANCHARD, State's attorney, for the people.
It is insisted, that the court below erred, in overruling a motion for a continuance, entered by plaintiff in error. The motion was based on this affidavit: “Walker Eubanks, the defendant in the above entitled case, being duly sworn, upon his oath deposes and says, that he cannot safely proceed to the trial of the above entitled cause at the present term of court, on account of the absence of one Edward Conners, and Charles Conners, material witnesses on the part of defendant, and that said witnesses are somewhere on the road to Kansas, as affiant has just been informed and believes, and that he expects to prove by said Edward Conners and Charles Conners, that he did not make an assault on the said James M. Donaldson, and did not go there with intent to do mischief, and that the shooting was at a dog and not at James M. Donaldson, or any other person, and that he knows of no other person or persons, by whom he can prove the above stated facts; and deponent further says that he has had a subpœna issued out of the Circuit Court and returned not found; that he has not had time to procure the testimony of said Edward and Charles Conners, and that he expects to procure the testimony of said witnesses at the next term of this court, and that this application for a continuance is not made for delay, but that justice may be done.” The affidavit was properly entitled in the cause.
It will be observed, that this affidavit is very general in its statements. It does not state that these persons were present when the difficulty occurred, or any facts or circumstances by which the court could see, how they could know or prove the statements contained in the affidavit. Nor does it state when, if ever, these persons...
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