Fox v. State

• Decision Date: 17 October 1903
• Citation: 76 S.W. 815,111 Tenn. 154
• Parties: FOX v. STATE.
• Court: Tennessee Supreme Court

76 S.W. 815

111 Tenn. 154

FOX v. STATE.

Supreme Court of Tennessee.

October 17, 1903

Appeal from Circuit Court, Jefferson County; G. McHenderson, Judge.

J. E Fox was convicted of violation of the liquor law, and appeals. Affirmed.

Swann & French and O. T. Rankin, for appellant.

Charles T. Cates, Jr., Atty. Gen., for the State.

SHIELDS J.

A presentment was found July 15, 1903, by the grand jury of Jefferson county against the plaintiff in error, containing two counts; the first charging him with unlawfully selling intoxicating liquors; and the second, allowing and permitting illegal sales of such liquors to be made upon his premises and land by other persons, to the grand jurors unknown, after due notice of the illegal character of such sales; the presentment being predicated upon the act of the General Assembly passed for the suppression of illegal sales of intoxicating liquors April 7, 1899, and published as chapter 161, p. 309, of the Acts of the General Assembly of that year. He was immediately arrested, and upon the next day his application for a continuance, supported by a general affidavit of absence of material witnesses, was denied, and he was put upon his trial, and found guilty upon the second count of the presentment, fined $50, and sentenced to the workhouse of the county for six months. The case is now before this court upon appeal, in the nature of a writ of error.

The plaintiff in error assigns as error the action of the trial judge in refusing him a continuance at the first term at which the case was triable, upon his general affidavit. It is stated in this affidavit that the plaintiff in error had only been arrested one day; that he had not had time to prepare his case for trial, on account of being engaged in other matters in court; that Harris Brown and R. S. Swan were material and necessary witnesses in his defense, to the charges preferred against him, and that they were in the state of Texas, and it was impossible to procure their presence at that term of the court; that there were a number of witnesses living in Sevier county, 15 or 20 miles distant who were material to his defense, and with whom he had been unable to confer or communicate or have present at that term and also that William Burchfield was a material witness for his defense, had been duly summoned, but was sick and unable to attend court. But the facts expected to be proved by these witnesses were not stated. The affidavit contained all other essential statements. The contention of the plaintiff in error is that upon this affidavit, containing only a general statement that the evidence of the absent witnesses was material and necessary to his proper defense, and other essential requisites of such an affidavit, was sufficient at the first trial term to entitle him to a continuance, and that it was not necessary that the purport of the evidence or facts he expected to prove by the absent witnesses be set forth therein. This contention cannot be sustained, for two reasons:

1. The affidavit should have set forth the facts proposed to be proved by the absent witnesses. It is true that it is said in the case of Nelson v. State, 2 Swan, 483, 484, and some later cases, that the proper practice is to allow a continuance in civil and criminal cases at the first term at which the case stands for trial, upon a general affidavit but that at subsequent terms the affidavit must be special--that is, must disclose the name or names of the absent witnesses, and the facts to be proven by them; but so many exceptions to this rule have been allowed, especially of late years, that there can now hardly be said to be any very definite rule upon the subject, but the allowance or refusal of continuances is left largely to the discretion of the trial judge. Indeed, in the leading case relied upon by plaintiff in error (Nelson v. State), it is said: "It has often been decided by this court that continuances are, and should be, left much to the discretion of the circuit judge, and we now say that it would require a very strong case of abuse of this discretion to authorize this court to interfere." In cases subsequently determined by this court it has been repeatedly held, in substance, that in all cases the allowance of a continuance rests in the sound discretion of the trial judge, and his refusal to grant it would not be reviewed by this court unless it is made to clearly appear that he has improperly exercised or grossly abused that discretion, the rights of the parties sacrificed, and injustice done. Pitts v. Gilliam, 1 Head, 549; Sevier v. State, 1 Tenn. Cas. 129; Garber v. State, 4 Gold. 161; Walt v. Walsh, 10 Heisk. 314; Rexford v. Pulley, 4 Baxt. 364; State v. Rigsby, 6 Lea, 554; Womack v. State, 6 Lea, 146; Jones v. State, 10 Lea, 588; Brown v. State, 85 Tenn. (1 Pickle) 439, 2 S.W. 895. In the case of Taylor v. State, 11 Lea, 714 (a capital case), the trial judge refused a continuance, at the first term of the court at which the case stood for trial, upon a general affidavit of the absence of material witnesses; and it was held by this court not to be reversible error, it appearing from the record that the defendant was not prejudiced. Similar to this was the case of Brown v. State, 85 Tenn. (1 Pickle) 441, 2 S.W. 895, where the plaintiff in error was indicted, tried, convicted, and sentenced to death at the same term of the court; a continuance having been denied upon a general affidavit on account of the absence of witnesses. In Crane v. State, 94 Tenn. 86, 28 S.W. 317 (a felony case), it was held that there was no error in the action of the trial court in refusing a continuance at the first term upon a general affidavit of the absence of witnesses stated to be material, when no defense to the charge was indicated in the affidavit or upon the trial. Numerous other like cases are to be found in the decisions of this court. The only reason given in the case of Nelson v. State, supra, in support of the practice of allowing a continuance at the first trial term upon a general affidavit of the absence of witnesses, is that at that term the party asking for it may not have had sufficient time to ascertain by whom he would be able to prove the...