McNeally v. State

• Decision Date: 06 June 1894
• Parties: McNEALLY v. STATE
• Court: Wyoming Supreme Court

36 P. 824

5 Wyo. 59

McNEALLY v. STATE

Supreme Court of Wyoming

June 6, 1894

Information Filed October 23, 1893.

ERROR to District Court for Converse County, HON. RICHARD H. SCOTT Judge.

Joseph H. McNeally was convicted of the crime of killing one head of neat cattle. He prosecuted error. The material facts are stated in the opinion.

Judgment reversed.

A. C Campbell and R. W. Breckons, for plaintiff in error.

Continuance should have been granted, notwithstanding admission of prosecution. (Embry v. Com., 12 S.W. 383; Brown v. State, 12 S.W. 1101; Ainsworth v. State, 16 S.W. 652.) Re-direct examination of a witness must be confined to matters brought out on cross-examination. (Thompson on Trials, 482; Wharton's Ev., 574; Danl. Ch. Pr., 1104; 34 N.J. Eq. 60; 58 Md. 291; 75 Wis. 461.) Testimony as to statements of a witness to show his bias is competent. (Crumpton v. State, 12 S.W. 563; Cheatham v. State, 67 Miss. 335; 131 N.Y. 321; Whitney v. Butts, 16 S.E. 649.) Circumstances of finding the hide no corroboration. Com. v. Holmes, 127 Mass. 424; U. S. v. Lancaster, 10 L. R. A., 333; 70 Ia. 176; 97 N.C. 484; 27 P. 477 (N. M.).

Charles N. Potter, Attorney General, for the State.

In criminal cases, continuances rest within the sound discretion of the court. (State v. Hedges, 2 Kan. 26; Burrill v. State, 25 Neb. 581; Ins. Co. v. Gisborne, 5 Utah 333; Hicks v. State, 6 Fla., 441; McKinney v. State, 3 Wyo. 719.) The testimony of the absent witness embraced in the affidavit for continuance was properly excluded, as the rule concerning impeachment by contradictory statements applied. The instruction as to corroboration of the accomplice did not confine the jury, alone, to the character of evidence therein stated.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ. concur.

OPINION

GROESBECK, CHIEF JUSTICE.

Joseph H. McNealley, the plaintiff in error, was convicted in the district court of Converse county of the crime of feloniously killing one head of neat cattle of the value of fifteen dollars of the property of Frank Wolcott and Company, at the said county, and was sentenced by the trial court to imprisonment in the penitentiary for the period of five years. He brings error to this court and seeks a reversal of the judgment below for numerous grounds of error occurring at the trial, but we need consider but two of the alleged errors presented by the record.

1. Plaintiff in error presented his affidavit for a continuance on the ground of the absence of material witnesses for him. The prosecution, while reserving the right to object to the testimony as set forth in the affidavit on the grounds of incompetency and immateriality, admitted that one of these witnesses, one Albert Denton, if present in court, would swear to the facts stated in the affidavit for continuance, and these were: that Denton was acquainted with one Henry Bierman, one of the witnesses for the prosecution, and that Bierman had told him, Denton, that he, Bierman, had killed a VR cow, the property of Frank Wolcott and Company, and that he would swear it had been killed by Joseph H. McNealley, the defendant below; that he, Bierman and McNealley, had had a fuss or row about some calves that they had taken up and kept at McNealley's ranch; that McNealley had made him take them away from there and that he, Bierman, would swear that McNealley had killed the cow and get him, McNealley, in the penitentiary if possible. The court denied the motion for a continuance and proceeded with the trial. No admission seems to have been made as to the testimony imputed to Cox, the other witness mentioned in the affidavit for continuance, and no offer seems to have been made of his statements during the trial. During the progress of the trial while the defense was introducing evidence, the testimony of the witness Denton as detailed in the affidavit for continuance, was offered by the defense, whereupon the State objected to the evidence as immaterial, and further that no foundation had been laid for its introduction as impeaching testimony by questioning Bierman when he was on the stand as to the statements imputed to him in the affidavit. This objection was sustained and an exception was taken by the defendant. Counsel for the defendant then asked leave to recall the witness Bierman for the purpose of laying the foundation for impeachment, and upon the objection of the prosecution, this request was refused, and defendant excepted. His counsel then asked leave to amend the affidavit for continuance in order to fix the time and place of the conversation set forth therein between Bierman and Denton, as detailed in the affidavit for continuance; the State objected; the objection was sustained and exception to the ruling of the court was again taken by defendant.

The cause had been tried previously at the same term of court and the jury had failed to agree and were discharged. Three days later, the affidavit for continuance shows defendant was informed by "plaintiff," probably meaning the prosecuting attorney, that the cause would stand for re-trial on the next day, whereupon counsel for defendant announced in open court that he would not be ready for trial unless he could procure the testimony of Denton and Cox, and asked an attachment for Denton who it seems was subpoenaed for the former trial, and such an attachment was issued and the return made that the witness could not be found.

The time and place of the alleged statements of Bierman inculpating himself and exculpating McNealley in the commission of the crime and showing the malice and hostility of the former against the latter in endeavoring to falsely fasten the guilt upon the defendant as charged in this affidavit, should have been laid with particularity, but we think the court should have permitted the amendment offered in this respect during the trial, as the prosecution could not have been surprised by such an amendment. The defect in the affidavit was as apparent at the time the affidavit was offered before the trial, as during the trial, and the record discloses that when the affidavit for continuance was under consideration, "the State by its counsel" admitted "that the witness Albert Denton, named in said affidavit, would testify, if present, to the facts stated in said affidavit, and that so much of said testimony as is material would be the testimony of said witness if present." Upon this admission, the court denied the motion for a continuance, to which ruling of the court defendant then excepted. It is tolerably clear from the record, then, that the failure in this affidavit for a continuance to state the time and place of the alleged statements of Bierman, was known to the prosecution at the time of the application for a continuance. At any rate it was the duty of the prosecution then to have sought a ruling upon the immateriality of the evidence contained in the affidavit, in order that the affidavit might have been amended before the trial. Having failed to do this, we think the defendant should have been permitted to amend it on the trial, and should have been allowed to recall Bierman for the purpose of cross-examining him upon the statements imputed to him in the affidavit, showing his malice, bias and hostility toward the defendant and that he had made statements out of court contradicting his testimony on the stand. Our statute relating to continuances provides that a motion to postpone a trial of a cause on account of the absence of witnesses, can only be made on affidavit showing the materiality of the evidence expected to be obtained, the exercise of due diligence in obtaining it, etc. If the adverse party thereupon will consent that, on the trial, the witness will testify to the facts stated in the affidavit as true, the trial shall not be postponed for that cause, and in such case, the party against whom such evidence is used shall have the right to impeach the evidence of such absent witness, as in case where the witness is present or his deposition is used. Sec. 3397 Rev. Stat. It seems that under this statute, the orderly method would be to require all objections to the materiality of the testimony set forth in the affidavit to be made at the time the affidavit is before the court. While it doubtless is true that the benign purpose of the statute may be perverted or abused by affording the introduction of testimony manufactured by the party offering it, yet if the adverse party chooses to go to trial by admitting that the witness would testify to the facts mentioned in the affidavit as true, such party should be bound by its admissions.

There may be defects in the affidavit which may escape the attention of the court or counsel. If they afterwards become known, and an offer is made to supply the omissions, the court ought to permit such an amendment. In the case at bar, taking into consideration the admission of the State, that the witness, if present, would testify to the facts recited in the affidavit for continuance, the offer made on the trial to supply the missing averments as to the time and place of the alleged declarations of Bierman, the witness for the State, and the request to recall such witness, who was, as the record discloses, in the county jail awaiting his trial on another charge, thus being under the control of the court, we think that under these circumstances there was error in the action of the trial court. The alleged evidence of Denton as set forth in the affidavit, showing the hostility, bias and malice of Bierman towards the defendant if true, would have doubtless had some weight in the minds of the jury, in passing upon the truth or falsity of the evidence of Bierman. If the testimony of Denton, as set forth in the affidavit, had been manufactured, the...