State v. Brown

• Citation: 62 W.Va. 546,59 S.E. 508
• Court: Supreme Court of West Virginia
• Decision Date: 12 November 1907
• Parties: STATE. v. BROWN.

59 S.E. 508

62 W.Va. 546

STATE.

v.BROWN.

Supreme Court of Appeals of West Virginia.

Nov. 12, 1907.

1. Criminal Law—Continuance—Diligence.

Upon a motion for a continuance because of the absence of a witness, it must be shown that the accused used proper diligence to secure the presence of the witness, and a fair probabil-ity that his presence can be secured at a later term must also appear.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1335-1341.]

2. Same—Absent Witness.

On a second motion for continuance of a murder case by the accused for the absence of the same witness on account of whose absence was the former continuance, if there is any ground to suspect that the continuance is for delay, it must appear what evidence the absent witness is expected to give.. '

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1314.]

(Syllabus by the Court.)

Error from Circuit Court, Mercer County. Charles Brown was convicted of murder, and brings error. Affirmed.

Hale & Pendleton, for plaintiff in error.

C. W. May, Atty. Gen., for the State.

BRANNON, J. Charlie Brown was sentenced to the penitentiary for life by the criminal court of Mercer county. He was refused a writ of error by the judge of the circuit court, but was allowed it by this court.

The only assignment of error is based on a refusal of a continuance. No evidence is before this court touching the case, except only as to the continuance. The indictment was found July 3, 1906; the trial, in October. At the first term a continuance was granted on the ground of the absence of Bryant, whom Brown wanted as a witness. Bryant was not summoned for that term, and just before it he left Mercer county and went to Virginia. Leave was given to take his deposition. How long there was omission to do this does not appear. Very shortly after the first term Bryant returned to Mercer, which is given as a reason why his deposition was not taken. No summons was issued for him while he remained in Mercer or McDowell, as he was in both counties, until a very few days before the second term, when a summons and attachment were sent to McDowell, but he had left. Brown and his wife and his attorneys knew of his return from Virginia, but took no steps to summons him until a very few days before the trial, though they had ample time to do so. The summons is gone, and we cannot tell the date; but it is proven to have been issued just before court. The process must be sued out early. 9 Cyc. 191, 194. This manifests a gross want of diligence. This denies a continuance. State v. Betsall, 11 W.Va. 726; Dimmey v. Elm Grove, 27 W.Va. 32, 55 Am. Rep. 292. Again, where was Bryant? The accused in his evidence said that he did not know. No one located him. He went to the Chesapeake & Ohio Railroad, running off with a woman. There is a little hearsay tending to show that he may have been in Fayette county, but it is by no means proven; in fact, the probability is that he was out of the state. "It is well settled that the refusal to grant a continuance will not be considered an abuse of discretion, where the witness is beyond the jurisdiction or compulsory process of the court, or his whereabouts is unknown, and there is no reasonable certainty of the party being able to produce such witness at the next term." 9 Cyc. 181; Hurd Case, 5 Leigh (Va.) 715; 4 Ency. PI. & Prac. 882. The mere statement that the suitor expects to produce him will not do. "Where a continuance is asked to produce the evidence of a witness not resident in the state, the affidavit should state, not only the bona fide belief that such evidence can be produced, but the grounds of such belief, in order that the court may see that the belief is not merely a hope, but a well-founded, reasonable expectation, that it will be procured." State v. Harrison, 36 W.Va. 730, 15 S. E. 982, 18 L. R. A. 224.

Again, the evidence does not Intimate what Bryant was expected to prove. Will a court, especially on a second motion for continuance in a criminal case, where the motion to delay a trial is always to be suspected, defer criminal justice, unless it can see that the evidence of the absent witness will be material and answer some material end? In 9 Cyc. 201, we find the law, on many authorities, cited thus: "In an application for a continuance on the ground of absent witnesses, it is not sufficient to state in general terms or by indefinite allegations what the absent testimony will be. It must specifically set forth the facts expected to be proved by such witnesses, so that the court may judge of the materiality of the same. While it has been argued that to disclose, at the time the continuance Is desired, facts to which it is expected an absent witness will swear, may in many Instances work a hardship or injustice upon a party in the presentation of his case, it is nevertheless generally held by the courts to be necessary to the proper administration of justice that the expected testimony be set out with such...