Hewitt v. Commonwealth
| Decision Date | 19 April 1867 |
| Citation | 58 Va. 627 |
| Parties | HEWITT v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and although an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous.
2. As a general rule, where a witness for a party fails to appear at the time appointed for the trial, if such party show that a subp oena for the witness has been returned executed, or if not so returned, was delivered to the proper officer of the county or corporation in which the witness resides, a reasonable time before the time for the trial, and shall swear that the witness is material, and that he cannot safely go to trial without his testimony, a continuance ought to be granted, if there be reasonable ground to believe that the attendance of the witness at the next term can be secured; especially if the case has not been before continued for the same cause.
3. Where the circumstances satisfy the court that the real purpose in moving for a continuance is to delay or evade a trial and not to prepare for it, then though the witnesses have been summoned, and the party has sworn to their materiality, and that he cannot safely go to trial without them, the continuance should be refused.
At the April term 1863 of the Circuit court of Bedford county Wilson C. Hewitt was indicted for an assault and battery committed in February, 1863, upon Rowland D. Buford. This indictment was made upon the evidence of Rowland D. Buford, a witness called on by the grand jury. A summons was thereupon awarded, returnable to the next term of the court, but on the next day, viz: on the 1st of May, on the motion of the attorney for the commonwealth, writs of capias were awarded against Hewitt to the sheriff of every county and the sergeant of every corporation in the state, returnable to the next term.
On the 22d of September, 1863, the defendant was arrested by the sergeant of the corporation of Lynchburg under the process sent to him; and he entered into a recognizance with surety for his appearance on the first day of the next term of the Circuit court of Bedford.
At the April term of the court for 1864 Hewitt appeared by counsel and an issue was made up on the plea of " not guilty." And the case coming on for trial on the 27th of April, 1864, the jury found him guilty, and assessed upon him a fine of two thousand dollars; for which and the costs the court entered up a judgment.
When the cause was called for trial Hewitt, by his counsel, moved the court for a continuance, on the ground of the absence of material witnesses, viz: John Downes and John Hurley; and in support of his motion offered his own affidavit. This affidavit was full as to the materiality, & c., of the witnesses. It bore date the 23d day of April, 1864. It was admitted that a subpoena had been regularly issued for these witnesses, and had been served on John Downes a short time before he left this state for Baltimore, where he resides; and as to John Hurley, returned not found. A subpoena for Hurley had also been sent to Richmond; and was returned not found. And the sergeant added after the return Hurley was known to have been in Richmond a short time before the subpoena was sent there. He had resided at Liberty until the winter of 1863-4, when he was arrested by the military authorities and sent to Castle Thunder at Richmond.
It was also admitted that Hewitt was in Liberty on the morning of the day the motion for a continuance was made, and that he left in the cars going west; and the affidavit bore date two days before the court commenced.
The court refused to continue the cause, and ruled the defendant to trial, because the court was of opinion that the defendant was attempting to evade a trial by absenting himself from court, so as to prevent a personal examination in open court on his motion for a continuance. To this opinion of the court, Hewitt excepted; and obtained a writ of error to the judgment.
Mosby for the appellant, and The Attorney General, for the commonwealth, submitted the case.
OPINIONMONCURE, P.
A motion for a continuance is addressed to the sound discretion of the court, under all the...
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...for trial, then the motion should be denied, and the refusal of the mover to proceed would bring its own consequences. Hewitt v. Commonwealth, 17 Grat. 627, 58 Va. 627;Schamper v. Ullrich, 131 Wis. 524, 111 N.W. 691. There would be embarrassing delays if the rule were otherwise and the tria......