Shirwin v. People of State
| Decision Date | 30 September 1873 |
| Citation | 69 Ill. 55,1873 WL 8412 |
| Parties | JOHN R. SHIRWINv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Criminal Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding.
Mr. E. W. EVANS, for the plaintiff in error.
Mr. JAMES K. EDSALL, Attorney General, and Mr. CHARLES H. REED, State's Attorney, for the People.
An indictment, charging plaintiff in error with the crime of rape upon one Bertha Kaminski, was presented in the criminal court of Cook county July 12, 1873, whereupon a capias issued, upon which the accused was arrested and committed to jail. On Monday, the 14th of the same month, the accused was arraigned, and the plea of not guilty entered. The court then ordered the case to be set for trial on the next succeeding Friday, being the 18th of the same month. On the day of the arraignment, accused proceeded to prepare for his trial, by causing a subpœna to be issued for his witnesses, among whom was one Mary Kehoe. This subpœna was then placed in the hands of an agent employed to serve it, who used all the diligence practicable within the time allowed, but was unable to serve it upon said Mary Kehoe, by reason of her absence beyond the reach of the subpœna. When the case was called for trial on the day fixed by the court, the accused prepared and presented to the court his affidavit, upon which he asked that the trial of the cause might be put off until the August term, a period of only about three weeks, in order to enable him to procure the testimony of said Mary Kehoe, who was shown to be only temporarily absent from the city of Chicago, and was expected to return in time for the next term of court.
The facts set forth which accused expected to prove by the absent witness were, that the complaining witness, Bertha Kaminski, had, since the time at which she claimed the offense was committed, told Mary Kehoe that the accused was not guilty of a rape, and that he never attempted to commit a rape upon her, but that she (Bertha) wanted to make some money out of him; and upon said Mary Kehoe answering that the accused had no money, the said Bertha replied that he had rich relations and was connected with the city government, and that accused or his friends would pay her well to drop the prosecution.
The court overruled the motion for continuance, and ordered the trial to proceed, which resulted in a verdict of guilty, and fixing the punishment at five years in the penitentiary. The court overruled a motion for a new trial, and gave judgment in accordance with the verdict. These matters, together with the evidence and rulings of the court upon the trial, are preserved in a bill of exceptions, and the case brought here by writ of error.
By our practice, error may be assigned upon overruling a motion for continuance as well as for a new trial.
If the affidavit for a continuance presented a proper case, it was error to overrule the application. The essential requisites of such affidavit are these: First--The name and residence of the witness; that he is really material, and shown to the court, by the affidavit, to be so. Second--That the party who applies has been guilty of no neglect, or, in other words, shows the exercise of proper diligence. Third--That the witness can be had at the time to which it is sought to have the trial of the cause deferred.
If the facts set forth in the affidavit of accused, which he expected to prove by the absent witness, were really material, and shown to the court to be so, then this affidavit was sufficient, because in all other respects it is so clearly and manifestly within the rules as to admit of no criticism. The question, and only question arising upon this affidavit, is the materiality of the facts expected to be proven by the absent witness, and that scarcely admits of argument. The affidavit shows that accused knew of no other witness by whom these facts could be proven. The indictment was for rape upon Bertha Kaminski, and the affidavit shows what is but an ordinary presumption, from the indictment itself, that she was the complaining witness. It was apparent therefore, and to be expected, that she would be the only witness in support of the charge; and as the law closes the lips of the defendant, his only hope of defense, if innocent, consisted in controverting the evidence of the fact or the force, adduced by her, by means of cross-examination, impairing her credibility by disproving circumstances stated by her, or showing declarations made by her out of court inconsistent with her evidence upon the witness-stand. “It is to be remembered,” says Green...
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