Newman v. State

• Decision Date: 10 November 1887
• Citation: 35 N.W. 194,22 Neb. 355
• Parties: NEWMAN v. STATE.
• Court: Nebraska Supreme Court

22 Neb. 355

35 N.W. 194

NEWMAN

v.STATE.

Supreme Court of Nebraska.

November 10, 1887.

Syllabus by the Court.

Plaintiff in error was prosecuted upon information filed by the district attorney, charging, in two counts, the forgery and uttering as true and genuine a promissory note. The information was filed on the eleventh day of October. He was placed upon his trial on the nineteenth day of the same month. Prior to the day of trial he filed a motion for a continuance, which was supported by his affidavit, in which it was alleged that he could prove by four witnesses, all non-residents of the state, and none of whom were present, naming them, that the notes were placed in his hands for the purpose of sale by one B., and that, as requested, he sold the notes simply as an accommodation, and returned all the money to the person for whom the sale was made. The residence of two of the witnesses out of the state was given, so that their depositions might be taken. The proposed evidence being material, and sufficient time for procuring their deposition not having elapsed, it was held that the district court erred in overruling the motion for a continuance.

Error from district court, Washington county; NEVILLE, Judge.Jesse T. Davis, for plaintiff.

The Attorney General, for defendant.

REESE, J.

Plaintiff in error was convicted of the crime of uttering and publishing as true and genuine a forged and fraudulent promissory note. The prosecution was upon an information, consisting of two counts,--the first for the forgery of the note, the second for uttering the same. The jury, by their verdict, found him guilty as charged in the second count of the information. Of the questions presented, it is deemed necessary to notice but one, as a majority of the court are of the opinion that upon it alone a new trial must be granted. This assignment is that the court erred in overruling plaintiff's motion for a continuance. It appears by the record that the promissory note alleged to have been forged was dated September 7, 1886. It was sold on the twentieth of the same month. On the twenty-fourth, plaintiff in error was arrested and placed in jail, where he remained until the eleventh of October, when the information was filed against him, and he was placed upon trial on the nineteenth of the same month. Prior to the trial he filed a motion and affidavit for a continuance, by which he sought to show the absence of witnesses material to his defense, and whom he could not procure in time for the trial. His line of defense was that, just before he sold the forged instrument, he was in Fremont with his wife, and was contemplating a trip to Blair on business. At this time one Bradley, with whom he was acquainted, approached him, and asked him to take some notes to Blair, sell them for...