Ross v. Commonwealth

• Citation: 59 S.W. 28
• Parties: ROSS v. COMMONWEALTH. [1]
• Decision Date: 22 November 1900
• Court: Court of Appeals of Kentucky

59 S.W. 28

ROSS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

November 22, 1900

Appeal from circuit court, Livingston county.

"Not to be officially reported."

Rube Ross was convicted of the offense of manslaughter, and he appeals. Affirmed.

John K Hendrick, J. W. Bush, C. W. Watts, and J. C. Hodge, for appellant.

Robt. J. Breckinridge, for the Commonwealth.

PAYNTER J.

This is the second appeal in this case. Ross v. Com. (Ky.) 55 S.W. 4. The appellant filed an affidavit, and moved the court for a continuance of the case because of the absence of Haggard Nickell, whose testimony, as stated in the affidavit would have had the effect of contradicting one Howell, who was a witness for the commonwealth. The indictment had been returned several terms before the one during which the motion for a continuance was made, and the court ruled that the affidavit could be read as the deposition of the absent witness. Section 1 of the act (Act May 15, 1886) amendatory of section 189 of the Criminal Code of Practice reads as follows: "That whenever, in any criminal or penal action pending in any of the courts of this commonwealth, an application shall be made by the defendant for a continuance based upon affidavits stating the absence of one or more material witnesses, and the facts which such absent witness or witnesses would, if present, prove, the attorney for the commonwealth shall not be compelled, in order to prevent a continuance, to admit the truth of the matter which it is alleged in the affidavit such absent witness or witnesses would prove, but only that such absent witness or witnesses would, if present, testify as alleged in the affidavit. In which event the defendant may, on the trial, read such affidavit as the deposition of such absent witness or witnesses, subject, however, to exception for irrelevancy or incompetency; and the attorney for the commonwealth shall be permitted to controvert the statements of such affidavit so read by other evidence, and to impeach such absent witness or witnesses to the same extent as if he were personally present: provided, however, the court may, when, from the nature of the case, it shall be of the opinion that the ends of justice require it, grant a continuance, unless the attorney for the commonwealth will admit the truth of the matter which it is alleged in the affidavit such absent witness or witnesses would testify to." The attorneys for the appellant certified that it was important to have the absent witness present in court to testify, so the accused might get the full benefit of his testimony. Section 1 provides that the court may, when it shall be of the opinion that the ends of justice require it, grant a continuance unless the attorney for the commonwealth will admit the truth of the matter which it is alleged in the affidavit such absent witness or witnesses would testify to. This section places it within the discretion of the trial court to determine whether or not the ends of justice require the granting of a continuance unless the attorney for the commonwealth will admit the truth of the matter alleged in the affidavit. This court would not reverse the court below in the exercise of the discretion authorized by the section...