Hubbard v. State

Decision Date07 December 1855
Citation7 Ind. 127
PartiesHubbard v. The State
CourtIndiana Supreme Court

From the Wabash Circuit Court.

The judgment is affirmed with costs.

J. M Pettit, D. M. Cox and J. S. Knight, for appellant.

D. C Chipman and J. W. Gordon, for the State.


Gookins, J.

Hubbard and his wife were indicted in the Wabash Circuit Court, for the murder of French. Hubbard was tried separately, and convicted of murder in the first degree, and adjudged to suffer death. Motions were made, at the proper time, for a new trial, and in arrest of judgment, which were overruled, and to reverse the judgment he prosecutes this appeal.

The errors relied on in this Court are, that the Circuit Court refused a proper application for a continuation of the cause, and the refusal of that Court to change the venue, upon the prisoner's affidavit of excitement and prejudice against him in the county of Wabash.

In support of the motion for a continuance, the prisoner made his own affidavit, stating, among other things, that William King and Michael O'Brien, who, as he was informed and believed, resided at Indianapolis, in Marion county, were material and necessary witnesses for his defence, without whose testimony he could not safely go to trial. In showing the materiality of their testimony, the affidavit stated that the crime with which he was charged, was committed, as was imputed, on the evening of Saturday, the 9th day of October, 1854; that he could prove by King, as said King had informed him, and by O'Brien, as he had been informed by others, that the deceased and his family had been seen at Peru, in Miami county, on the evening of Sunday, the 10th day of October of said year; that on Monday succeeding they were seen alive near Peru; that he believed the facts he expected so to prove to be true. The affidavit further stated, that the deponent had been informed by said King, (which he believed to be true,) that there were other persons present at Peru, at the same time, who knew French, and of his being there alive, but whose names were unknown to him, and which he could learn only by a conference with or information from King, who would, when known, be necessary and material witnesses for him on the trial; that the indictment had been found at that term; that as soon thereafter as he could have a conference with his counsel, he had caused a subpoena to be sent to the sheriff of Marion county for said witnesses, which had not been returned, and that they were not in attendance. The affidavit set forth, as other grounds of continuance, the absence of divers witnesses in LaGrange county, and in Ohio and New York, but the effect of those statements was obviated by an admission on the part of the prosecution of the truth of the matters which it was alleged could be proved by them. The formal parts of the affidavit complied with the requirements of the statute.

The issuing of the subpoenas, as stated in the prisoner's affidavit, was proved by the deputy clerk, and the motion was further supported by the affidavit of John U. Pettit, esq., one of the prisoner's counsel, which stated, in substance, that he had been assigned as counsel for the defence after the return of the indictment; that he had given all diligence to the preparation for a trial of the cause since such appointment that was consistent with other pressing engagements in Conrt, his own feeble health, and the inconvenience of consulting with the defendant while in prison, and with other counsel associated with him in the defence; that the prisoner was not yet ready to proceed to a trial, owing to the short time allowed to prepare for it, and to a disappointment in procuring the aid of other counsel from a distance, whose attendance had been expected, but who had not arrived.

There are some mistakes in the affidavit of the prisoner in reference to dates. It states that it is imputed that the murder was committed on the 9th of October, and designates Saturday, Sunday and Monday, as the 9th, 10th and 11th days of that month, when in fact the indictment charged the crime to have been committed on the 7th, which was Saturday, and we shall regard the dates as corrected by the almanac, the days of the week controlling, instead of the days of the month.

Motions for the continuance of causes are founded upon ex parte affidavits, made by the party or his agent, which, for the purposes of the motion, are taken as true, and no counter affidavits can be received. In the federal, and many of...

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