State v. Benge
| Decision Date | 17 October 1883 |
| Parties | STATE v. BENGE |
| Court | Iowa Supreme Court |
Appeal from Appanoose District Court.
THE defendant was convicted of the crime of larceny, and sentenced to the penitentiary for three and one-half years. He appeals.
AFFIRMED.
George D. Porter, for appellants.
Smith McPherson, Attorney-general, for the State.
I.
The property alleged to have been stolen was a mare. The defendant filed a motion for a continuance, which was overruled. He assigns as error the overruling of the motion. The motion was based upon the ground of the absence of material witnesses.
At what time the motion and affidavits were filed does not appear except so far as might be inferred from a recital in a bill of exceptions in these words: "On the 12th and 13th days of October, 1881, this cause coming on for hearing on the application of the defendant for the continuance of said cause, with affidavits" etc. But only one affidavit appears to have been made as early as the 12th, and that was in regard to the absence of one Davis, who had been subpoenaed the day previous. The affidavit shows the sickness of Davis, but does not show that he would testify to any material fact for the defendant, and the affidavit does not appear to have been accompanied by any motion. There was certainly nothing before the court on the 12th to justify a continuance. On the 13th, the defendant made another affidavit in regard to the absence of Davis, which was not open to the same objection, and which affidavit was accompanied by a motion. But on the 13th it was too late, because, if there was any necessity for a continuance on account of the absence of Davis, that necessity had become apparent the day before. Where a motion for a continuance was not filed on the second day of the term, as this was not, it should be filed as soon as it becomes certain that it will be necessary. Code, § 2752.
The only other witness shown to have been subpoenaed and not present was one Sarah Campbell. Whether any motion and affidavit for a continuance on the ground of her absence were filed in the case, does not appear. But it seems to be certain that no hearing was had upon such motion and affidavit, because the only hearings recited were upon the 12th and 13th, and the affidavit in respect to Mrs. Campbell's absence was not made until the 14th, as appears from the jurat. If the paper called an affidavit was before the court on the 13th, it had not been sworn to. We think that the court did not err in refusing a continuance.
II. The defendant moved, under section 3818 of the Code, for an order that certain witnesses be subpoenaed in his behalf. The motion embraced the names of sixteen witnesses. The motion was overruled as to nine of them, and granted as to the others. The defendant assigns as error the overruling of the motion, so far as it was overruled.
The motion is supported by an affidavit showing what the defendant expected to prove by each witness. We have set out below the facts which the defendant expected to prove. Some of them are not stated with sufficient precision, and others do not appear to be material and necessary to the defense, as the statute contemplates. Omitting the names of the witnesses, and such facts as the defendant was allowed to prove, his statement is as follows: "I expect to prove where I was on the 28th of October, 1880; where I said I was going on the Monday preceding October 27, 1880; the hostility of Andrew Clemmie and his family, the prosecuting witness; that when D. McCarty and Quick came to Centerville, Andrew Clemmie showed me to them and said to them: 'There is the man I have arrested for stealing my mare,' and they said I was not the man; that Charley Quick came into an eating house, and I was there, and was pointed out to him as the man who stole Clemmie's mare, and he failed to identify me; that the night of October 27, 1880, was dark."
We do not see how the court below, looking upon this statement alone, could feel justified in granting the order asked upon the strength of it.
III. The defendant filed an affidavit of prejudice of the sheriff, under section 350 of the Code, and objected to his serving any processes. But it is not shown that any order of court was asked or refused; nor is it shown that the sheriff served any processes. It is true that we find a statement in the abstract that he served processes, but such statement is not contained in a bill of exceptions, nor is the fact otherwise shown; and it is expressly denied in an additional abstract by appellee, which is not replied to. We see no error of the court in this matter.
IV. The defendant filed a motion, under section 4293 of the Code, to set aside the indictment, upon the alleged ground that the names of the witnesses upon which it was found were not indorsed upon it before it was presented to the court. The abstract states that the motion was supported by an affidavit. The motion was overruled, and the defendant complains of the action of the court in this respect.
No copy of the affidavit is set out in the...
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