State v. Conner

• Decision Date: 14 July 1919
• Docket Number: 15261.
• Citation: 182 P. 602,107 Wash. 571
• Court: Washington Supreme Court
• Parties: STATE v. CONNER.

182 P. 602

107 Wash. 571

STATE v. CONNER.

No. 15261.

Supreme Court of Washington

July 14, 1919

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

William Conner was convicted of unlawfully keeping in possession intoxicating liquor with intent to sell in violation of law and he appeals. Affirmed.

Cooley Horan & Mulvihill, of Everett, for appellant.

Lloyd L. Black and Jesse H. Davis, both of Everett, for the State.

HOLCOMB C.J.

This appeal is prosecuted from judgment on verdict under an information charging that----

'* * * in the county of Snohomish, state of Washington on or about the 13th day of February, 1918, then and there being, the said defendant, William Conner, did then and there willfully and unlawfully keep and have in his possession intoxicating liquor, to wit, 23 quarts of whisky, with intent to sell, barter, exchange, give away, furnish and otherwise dispose of the same in violation of law, contrary to the form of the statute,' etc.

When the case was called for trial the appellant moved for a continuance, in support of which he submitted an affidavit reciting that his wife, who was a material witness for the defense, was then confined in bed, having been taken ill the night previous; that the testimony of the witness is fully set forth in the evidence given by her at the former trial of this cause. Whereupon the prosecuting attorney admitted that the absent witness, if present, would testify as stated in the motion. Appellant stated to the court that his wife was suffering from grippe; that he had not called a doctor, but when he left that morning he told her to get Dr. Jacobson. The motion for continuance was overruled, which the appellant assigns as error.

As the testimony of the absent witness was read in evidence the motion for continuance was rightly overruled, in view of the admission of the prosecuting attorney, the statute providing that----

'A continuance may be granted in any case on the ground of the absence of evidence, on the motion of the defendant, supported by affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it, and also the name and place of residence of the witness or witnesses, and the substance of the evidence expected to be obtained; and if the prosecuting attorney admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the continuance shall not be granted.' Section 2135, Rem. Code.

The frequent abuse of the right to obtain a continuance has induced stricter vigilance by the courts to prevent such abuse. The very nature of the relief requested is such that the decision of the question necessarily rests almost entirely upon the discretion of the trial court, and we are not inclined to interfere with such discretion unless abused to the extent of prejudicing the applicant's right to a fair trial.

It is also contended that the evidence was insufficient to sustain the...