Phillips v. Commonwealth.1

• Decision Date: 18 January 1894
• Citation: 18 S.E. 841,90 Va. 401
• Court: Virginia Supreme Court
• Parties: PHILLIPS . v. COMMONWEALTH.1

18 S.E. 841

90 Va. 401

PHILLIPS .

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

Jan. 18, 1894.

Criminal Law—Continuance — Illness or Witness.

Upon a second trial, after a previous conviction was set aside on appeal, defendant moved for a continuance from the May to the July term of court, on account of the absence of a witness who had been duly summoned. whose evidence was material, and who was detained on account of illness, but who, in defendant's opinion, was convalescent, and would be able to attend at the July term. The physician of the witness stated that there was little chance of his recovery, but that he might live. Held, that it was error not to grant the continuance, and that defendant was entitled to a new trial, it appearing that the witness had recovered.

Error to corporation court of Alexandria city.

One Phillips was convicted of murder, and brings error. Reversed.

Edmund Burke and E. S. Brent, for plaintiff in error.

R. Taylor Scott, Atly. Gen.,

for the Commonwealth.

LACY, J. This is a writ of error to a judgment of the corporation court of Alexandria city, rendered on the 22d day of May. 1893. This is a prosecution against the plaintiff in error for murder, and the conviction herein is the second conviction of the said plaiutiff in error. The first conviction, which was on the 27th day of January, 1892, was of murder in the first degree, and theaccused was sentenced to be banged: but on writ of error to this court on that conviction and sentence, on the 16th day of February, 1893, the said judgment was reversed and annulled, the verdict set aside, and a new trial awarded the plaintiff in error. Upon a second trial in the said corporation court of the city of Alexandria, the judgment was rendered which is now here the subject of review, whereby the accused was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of eight years.

The first assignment of error is the refusal of the trial court to continue the case on the ground of the absence of the witness Green, who was a member of the bar of that court, who had been duly summoned, and the summons returned executed, whose materiality was duly attested, and which was known to the court, he having testified at the first trial. It was proved by ins attending physician that the said Green (the witness) was sick, with the chances against him as to his recovery, but there was a possibility of his recovery. The accused, in his affidavit, sets forth that the said Green was convalescent, and that he would, as he believed, be able to attend the July term, the trial taking place in May, and that he could not safely go to trial; that he has discovered additional evidence that the said Green could offer to the court, and that the motion was not made for delay, or to evade trial, but was bona fide, that he might meet and make defense to the charge brought against him; and it is stated upon the trial by the counsel that the said Green is now well, and able to attend court to testify. Under these circumstances, it is insisted by the plaintiff in error that the trial court ought to have granted the short continuance asked for, and that its refusal has resulted in a denial of justice.

The rule upon which the court proceeds in considering a motion for a continuance is well settled, and has often been the subject of decision in this court. In Hewitt's Case, 17 Grat. 629, Judge Moncure said, on this subject: "A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and, though an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous. As a general rule, when a witness or a party fails to appear at the time appointed for a trial, if such a party show that a subpoena for a witness has been returned executed, or, if not so returned, was delivered to the proper...