Newman v. State

• Decision Date: 10 November 1887
• Citation: 35 N.W. 194,22 Neb. 355
• Parties: PAUL NEWMAN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

35 N.W. 194

22 Neb. 355

PAUL NEWMAN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 10, 1887

ERROR to the district court for Washington county. Tried below before NEVILLE, J.

REVERSED AND REMANDED.

Jesse T. Davis, for plaintiff in error.

William Leese, Attorney General, for the state.

OPINION

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 7th, 1886. It was sold on the 20th of the same month. On the 24th, plaintiff in error was arrested, and placed in jail, where he remained until the 11th of October, when the information was filed against him, and he was placed upon trial on the 19th of the same month. Prior to the trial, he filed a motion and affidavits 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 him, and return him the money and that he did so, under the honest belief that the notes were true and genuine, and without any fraudulent intent. In his affidavit, by which the motion for a continuance is supported, he deposed that one Parsons, who resides in the city of New York, at "1180 Canal street," J. C. Moore, whose residence is not disclosed I. B. Davis, whose residence is in Kansas, but whose post-office address was not then known, and Anna Newman, the wife of affiant, who resided in Marysville, Missouri, were present with him at the Eno hotel, in Fremont, at the time the notes were delivered to him, and saw their delivery, and heard the request and instructions from Bradley, together with a statement as to...