Hyde v. State

• Decision Date: 01 January 1856
• Citation: 16 Tex. 445
• Parties: JOHN HYDE v. THE STATE.
• Court: Texas Supreme Court

16 Tex. 445

JOHN HYDE

v.THE STATE.

Supreme Court of Texas.

1856.

There is no doubt that, since D'Eon's case, it has been the settled common law practice (in applications for continuances in criminal cases) to receive counter affidavits to show want of diligence and the absence of any reasonable expectation that the proposed testimony can be obtained at all, or at the time to which it is proposed to postpone the trial.

But affidavits to contradict the general oath of materiality seem not to have been often received.

In the administration of the criminal law, the common law, where not modified by the constitution or statutes, has been held to furnish the rule of decision, as well in matters of practice as principle.

To entitle a party to the postponement of the trial on account of the absence of witnesses, according to the common law, the rule being the same in civil and criminal cases, three things are necessary:

1st. To satisfy the court that the persons are material witnesses.

2d. To show that the party applying has been guilty of no laches nor neglect. 3d. To satisfy the court that there is reasonable expectation of his being able to procure their attendance at the future time to which he prays the trial to be put off.

And the practice is not materially altered by our statute.

It is not a sufficient answer to an application for a continuance on account of the absence of the witness, which states what the defendant expects to prove, in a criminal case, to offer to admit that the witness, if present, would testify to the facts stated. [ Ante, 206.]

Merely causing a witness to be subpœnaed in due time is not all the diligence which is required of the defendant in a criminal case; if the witness fails to attend, an attachment should be obtained as soon as his absence is discovered, or would be discovered by proper diligence, which would ordinarily be on the first day of the term.

If, upon trial, there had appeared to be cause to apprehend that a continuance was improperly refused, a new trial must have been granted. But if, on the contrary, it very satisfactorily appears that the application for a continuance could not have been well founded in fact, it must afford an additional reason for refusing a new trial and for refusing to reverse the judgment on the ground that the continuance was refused.

It is good challenge to a juror for cause on the part of the state in a capital case, that he has conscientious scruples against finding a prisoner guilty where the punishment is death.

Appeal from Harris. Tried before the Hon. Peter W. Gray.

Indictment presented June 14, 1855, for murder of Charles Butler. Returned, defendant arrested same day. Tried at fall term, 1855, and convicted. There was a bill of exceptions to the ruling of the court on an application for a continuance, as follows: Be it remembered, etc., the defendant moved the court to grant him a second continuance, and in support thereof his affidavit marked A: That he cannot go safely to trial at this term for the want of testimony material to the case, and that he has used due diligence to procure the same by causing subpœnas to be issued for Milly Hyde, Newton Hyde and Jasper Hyde, and by sending word to Elizabeth Ann Fogle and Hiram Fogle, of the state of Arkansas, to come here as witnesses; that one of said Fogles, to wit: Hiram, is dead, and that a subpœna has been served upon Milly Hyde, who resides in the county of Travis, and that he has been informed and believes that the said Newton and Jasper Hyde have also been subpœnaed; yet, he says, there is no return of its execution, as yet, among the papers of this case; and defendant further says that he expects to prove by each of said witnesses that he did not kill the said Butler, but that it was his brother, Benjamin Hyde, who killed him. Defendant says that he used all the diligence in his power to be used, to procure the attendance of said witnesses, by causing said writs of subpœna to be issued for those living in this state; that the said Milly Hyde resides in the county of Travis, and that the said Newton and Jasper Hyde did also, and now do, unless they have very recently removed; that they are absent without this defendant's procurement or consent, and to his great peril; that he cannot further state the cause of their absence, being ignorant thereof; that he knows of no other person by whom he can prove the same facts; that he expects to be able to procure their attendance by the next term of this court; that the said E. A. Fogle, according to the best of defendant's information and belief, is now on his way to attend this trial, and the only reason that this defendant can conjecture, concerning the absence of said witness, is a temporary want of money to defray the traveling expenses; and defendant further says, that although he is and has been since his confinement here without money, yet he has availed himself of all the exertions known to him to prepare this cause for trial at this term of the court; and that this continuance is not sought for delay, but that justice may be done; that said subpœnas were caused to be issued by him through his counsel; and he refers to the papers in this case, and also to his former affidavit for reference, and makes the same a part of this affidavit; and defendant further asks that an attachment may be issued for the said Milly Hyde, to enforce her attendance, and also that of the other witnesses. Defendant says that the subpœnas for the said Milly Hyde, Newton and Jasper Hyde were issued on the 30th of October, 1855, as will appear by the record, and that double sets of the same were issued for said witnesses; that said subpœnas were issued to the sheriff of Travis county, where the said Milly resides, and where also the said Jasper and Newton resided, as defendant had no doubt. Sworn to December 19, 1855.

The affidavit for a continuance of the previous term was on account of the absence of Newton and Jasper Hyde, for whom, it was stated, subpœnas had been issued to Bastrop county, where, it was stated, said witnesses resided; and also on account of the absence of Milly Hyde, who, it was stated, resided in Austin county, whither, it was stated, a subpœna had been sent for her. Said affidavit stated that defendant expected to prove by each of said witnesses, “that they were present at the time that Butler, for whose murder defendant stands charged, was killed, and that said Butler was not killed by this defendant, nor was he fired upon by this defendant, but that said Butler was killed by one Benjamin Hyde, who was the brother of this defendant, and while the said Butler and defendant's said brother were in a very angry quarrel, and at a moment when the said Butler had his hatchet raised within striking distance to have killed deponent's said brother, and with that intent,” etc., etc.

The subpœna for Milly Hyde was returned by the sheriff of Travis county, served on the 26th of September.

Whereupon the state, by her attorney, proposed a counter affidavit of one Joseph J. Young; and also to admit that Milly Hyde, the only witness subpœnaed by defendant, would, if present, testify the facts set forth in defendant's affidavit, to the hearing or receiving of which counter affidavit the defendant, by counsel, objected, which objection was overruled, and the affidavit heard as follows: That he has ridden over Bastrop and Travis counties in this state, and made diligent inquiry and search for Jasper Hyde and Newton Hyde, the witnesses named in the affidavit of the defendant for a continuance of the above stated case, and could find no such person in either of the said counties; two lads or boys, bearing such names, were formerly in said counties, but are not there now. Affiant was informed by the step-mother of said boys or lads, that she was told a man came where they were residing and removed them to parts unknown; and by diligent inquiry of said step-mother and the neighbors around where the said boys formerly resided, affiant was unable to gain any intelligence as to their whereabouts, the step-mother and neighbors all declaring that they had no knowledge of their present whereabouts. Affiant further declares that it is the opinion of the neighbors around where said boys formerly resided, as well as of their step-mother, that they have been removed to the state of Arkansas, beyond the jurisdiction of the courts of Texas, where their mother resides. Affiant further avers that said lads or boys are the reputed children of Ben Hyde, a brother of defendant, and that their reputed step-mother is Milly Hyde, the other witness named in his affidavit for a continuance. Affiant further states that he saw Milly Hyde on the 8th day of the present month, and endeavored to procure her attendance here at the trial of this defendant during the present term, but she refused to come to court, alleging as a reason for such refusal, that all she knew about the charge was against the defendant, and she feared if she testified and he should be acquitted, he, the defendant, would afterwards take her life for so doing.

To which defendant, by counsel, excepted; and after consideration of the affidavits of defendant, and the record in this case, and the said counter affidavit, and all the circumstances of the case, the court not being satisfied that the facts alleged by the defendant were true, and it not appearing that due diligence had been used to procure the attendance of witnesses, nor that there was a reasonable ground to expect their attendance at another term; and considering the admission of the facts to be proved by Milly Hyde as aforesaid, overruled the motion for a continuance and ordered the trial to proceed; to which ruling the defendant, by counsel, excepted, etc.

The term of court had commenced on the 10th of December, and no application for an attachment for Milly Hyde had been made. The case was called for trial on the 19th. The...