Fred Hardy v. United States, No. 502

• Court: United States Supreme Court
• Writing for the Court: Brewer
• Citation: 22 S.Ct. 889,186 U.S. 224,46 L.Ed. 1137
• Docket Number: No. 502
• Decision Date: 02 June 1902
• Parties: FRED HARDY, Plff. in Err. , v. UNITED STATES

186 U.S. 224 22 S.Ct. 889 46 L.Ed. 1137 FRED HARDY, Plff. in Err.,

v.

UNITED STATES.

No. 502. Submitted April 28, 1902. Decided June 2, 1902.

Mr. Joseph F. Gould for plaintiff in error.

Solicitor General Richards for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

On September 10, 1901, in the district court for the district of Alaska, second division, Fred Hardy, plaintiff in error, was found guilty of the crime of murder, and sentenced to be hanged. Thereupon he sued out this writ of error.

In the record appear thirty-two assignments of error, but in the brief filed by his counsel only three are pressed upon our attention. First, it is claimed that the court erred in refusing the defendant a continuance. 'That the action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question.' Isaacs v. United States, 159 U. S. 487, 489, 40 L. ed. 229, 230, 16 Sup. Ct. Rep. 51, 52, and authorities there cited. See also Goldsby v. United States, 160 U. S. 70, 40 L. ed. 343, 16 Sup. Ct. Rep. 216.

This proposition of law is not disputed, but it is contended

Page 225

that abuse of discretion is shown. The pertinent facts are as follows: The indictment charged the murder of Con Sullivan on June 7, 1901. The killing took place on Unimack island. The defendant filed in support of his motion his affidavit stating that he had been in custody since July 27; that at the time of his arrest he had $685 upon his person, which was taken from him by the arresting officer; that one Captain Mackintosh, and one John Johnson, captain and mate respectively of the schooner Arago, upon which affiant came as a sailor from San Francisco to Unimack island, would testify that he remained on that vessel continuously from the time it left San Francisco until June 11; that the schooner, with the captain and mate on board, left Alaska prior to the finding of the indictment against him, but that he believed and had been informed that the vessel would probably return within a reasonable time, and if not that the depositions of the captain and mate could be obtained in San Fransisco, the place of their residence The affidavit further stated that two witnesses, whose names were unknown, who were both in the employ of the government on a boat named the Pathfinder, plying in the waters of the Northern Pacific Ocean and the Behring sea, and which frequently called at Dutch Harbor—within 1 mile of the place where court was being held—would testify that they knew affiant in San Francisco from about March 26 to April 15, and then saw him in possession of a large amount of money, an amount in excess of $1,500, a part of which was the money taken from him when arrested. The affidavit also stated that one Major Whitney, a paymaster of the United States Army, at San Francisco, would testify that on or about March 28 affiant, on his return from the Philippine islands as a soldier in the United States Army, was mustered out of the service at San Francisco; that said Whitney at that time paid affiant $1,875; that the deposition of said Whitney could be obtained, as he was permanently stationed at San Francisco. By these witnesses defendant sought to show that he was on the schooner at the time the murder was charged to have been committed, and also to explain the possession of the money found on his person. But the date named in an indictment for the commission of the

Page 226

crime of murder is not an essential averment. Proof that the crime was committed days before or days after the date named is no variance. Again, accounting satisfactorily for the money found on his person made no defense. It is not stated in the affidavit that the deceased had money in his possession. There is nothing in the indictment to suggest that he had, and nothing had at that time been disclosed to indicate that the fact that the defendant was in possession of so much money had any significance in connection with the charge. So that upon this presentation alone it could not be said that an abuse of discretion was clearly shown.

But, further, the government offered the affidavits of several parties, which were received...