Hair v. State

• Decision Date: 09 October 1883
• Citation: 16 N.W. 829,14 Neb. 503
• Parties: FRANCIS HAIR, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

16 N.W. 829

14 Neb. 503

FRANCIS HAIR, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 9, 1883

ERROR to the district court for Kearney county. Tried below before GASLIN, J.

REVERSED AND REMANDED.

Sam L Savidge and Hamer & Conner, for plaintiff in error, cited Johnson v. Dinsmore, 11 Neb. 394. Billings v McCoy, 5 Neb. 190. Williams v. The State, 6 Neb. 338.

Isaac Powers, Jr., Attorney General, for the State, cited: State v. Roorbacker, 19 Iowa 154. Bledson v. Commonwealth, 6 Rand., 673. Jones v. The State, 11 Ind. 357. McLean v. The State, 28 Kan. 373.

OPINION

MAXWELL, J.

The plaintiff was indicted for horse stealing at the October, 1882, term of the district court of Kearney county. He plead not guilty to the indictment, and the state not being ready to proceed to trial asked for and obtained a continuance of the cause upon the ground of a "want of material testimony." The order for a continuance required "the prisoner to enter into bonds with approved security that he will appear at the district court for Kearney county, on the first day of the next term thereof," recognizance being fixed at $ 400. The next regular term of the court was called to be held in April, 1883. In November, 1882, a special term of the district court of Kearney county was called to be held in December of that year, and the plaintiff was notified that he would then be tried upon said indictment. At the special term he filed a motion for a continuance supported by affidavits, in which he stated that he had been led to believe that the cause had been continued to the regular term in April; that he had been unable to procure bail up to that time, but had been endeavoring and expected soon to do so; that the horses he was charged with stealing he had purchased in good faith of one John Drum, of Chapman station, Kansas, and had paid full value for the same; that he can prove by said Drum that he did buy said horses in good faith and did not steal the same, and that he can not safely proceed to trial without the testimony of said Drum, etc. The motion was overruled, a trial had, and the plaintiff found guilty and sentenced to imprisonment in the penitentiary for ten years.

The first ground upon which a reversal is sought is, that the court erred in overruling the motion for a continuance. Where a motion for a continuance is based upon the grounds stated in an affidavit which accompanies the motion, the facts stated in the affidavit for the purposes of the motion will be taken as true, and if sufficient grounds are shown and reasonable diligence has been used by the party filing the motion a continuance should be granted. The court will not permit to be filed, nor consider, counter affidavits in such case because it will not in that proceeding permit an issue to be raised as to the truthfulness of the affidavit. Williams v. The State, 6 Neb. 334. The prompt disposition of causes is very desirable, but it is of much greater importance that justice be administered. To this end a reasonable opportunity should be given a party, where he makes a...