Nelson v. State

• Decision Date: 31 December 1852
• Citation: 32 Tenn. 482
• Parties: JAVAN NELSON v. THE STATE.
• Court: Tennessee Supreme Court

32 Tenn. 482

JAVAN NELSON

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1852.

The prisoner was indicted in the circuit court of Franklin county, for murder. At the April term, 1852, Marchbanks, judge, presiding, there was a trial, and verdict of guilty of murder in the second degree, and fixing the period of imprisonment in the penitentiary at twenty-one years. A new trial being refused, the prisoner appealed in error.

H. L. Turney, for prisoner; Attorney-General, for the State.

CARUTHERS, J., delivered the opinion of the court.

The defendant was indicted and convicted in the circuit court of Franklin county, for murder in the second degree. A motion for a new trial was made and overruled. Appeal to this court.

The first ground urged for a reversal is that defendant was refused a continuance to which he was by law entitled, and forced into trial. The application for a second continuance was made after the defendant had announced that he was ready for trial, several panels examined, all his challenges exhausted, and three jurymen elected. The affidavits on which the motion was predicated stated that several important witnesses, who had been subpœnaed, did not attend, and that he had heard of others, since he had declared himself ready for trial, who had not been summoned; that they were all material for his defence, etc. The names of the witnesses were given in the affidavit, but what he expected to prove by them was not set forth. There had been but one continuance of the case, and that was obtained alone upon the statutory ground of excitement and predjudice in the community. Act 1827, ch. 30 (C. & N. 701).

The defendant, by his counsel, insists here that the rule of practice settled in the case of The State v. Morris, 1 Tenn. 220, that on the first application for a continuance the defendant is not bound to disclose what his witnesses would swear, entitled him to a continuance on a general affidavit. That the continuance at the previous term, though upon affidavit, was a right given to defendant by statute, as a substitute for change of venue, which the same act abolished in criminal cases; and for that reason should not be counted against him on this application, so as to make it necessary to show what he would prove by his witnesses, according to this rule. We think otherwise. The only reason upon which such a rule can be founded is that at the first term the accused may not have had sufficient time to ascertain what and by whom he would be able to prove particular facts, and for that reason he should not be required to show to the court what facts he expected to prove, or, in the language of the judge, in The State v. Morris, “disclose what his witnesses would swear,” but should be entitled to one continuance on an affidavit, otherwise sufficient, without stating what they would prove. This reason will apply with equal force to a continuance at the second term, though it be the first, as well as upon a second continuance. Public policy, as well as individual interests, requires “that justice should be administered without delay,” so far as it can be done consistently with the allowance of a reasonable opportunity for that preparation which is necessary, in each particular case, for the attainment of justice. This sentiment applies to both civil and criminal cases, and we think that its application to practice would forbid a continuance after the first term at which a case stands for trial, without setting forth the facts expected to be proved, that the court may judge of their materiality. Then we would lay down the proper rule of practice, in all cases, to be that at the first term at which a case, either civil or criminal, is triable by the rules of law, either party may continue upon a general affidavit; but at the second or any subsequent term, whether...