State v. Duffy
| Decision Date | 01 April 1887 |
| Docket Number | 9851 |
| Citation | 2 So. 184,39 La.Ann. 419 |
| Court | Louisiana Supreme Court |
| Parties | THE STATE OF LOUISIANA v. JOHN E. DUFFY |
APPEAL from the Criminal District Court for the parish of Orleans Baker, J.
M. J Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.
Walter H. Rogers for Defendant and Appellant.
The record presents three bills of exceptions which we will consider in the following order:
1st. A bill was taken to the refusal of a motion for continuance, based on the absence of material witnesses and supported by affidavits.
These affidavits contain all proper allegations as to diligence and good faith on the part of accused; but they disclose that the witnesses required are absent in the State of Mississippi, and out of the process of the Court. It further appears from the statements of the judge that, at a former trial of the case, the same witnesses had been summoned, and that it then appeared that all of them, except one, were returned by the sheriff as not found, or out of the city, and that the one, who then appeared in answer to the summons, was not, at that trial, put on the stand. No showing is made in the affidavits of any reasonable certainty that, if the case were continued, the attendance of the witnesses could and would be procured. The only statement on the subject is the following: "that the witnesses are laboring men, and your deponent is informed that they have procured work across the lake, in the State of Mississippi, which will occupy them some time, but not more than a month; that they are residents of this city, which is their home, and won't return before the next term of court," coupled with the additional statement that "the presence of said witnesses can be had at the next term of court." It, moreover, appears on the face of the affidavits that the defendant had long been aware of the transient character of these witnesses and of their liability to be absent, for he wrote to the District Attorney more than a month before requesting a trial on the ground that "his witnesses were laboring men, and were liable to take work whenever offered;" yet he took no steps to secure their attendance, or to guard against their probable absence. R. S., 1014. Moreover, the affidavits make no showing than the evidence expected would have been admissible. Four of the witnesses were expected to prove previous threats of the deceased against the life of the accused; and the fifth was expected to prove not only the making of such threats, but that he communicated them to the accused.
Another element is essential to make such evidence admissible, viz: proof of an overt attack or hostile demonstration by accused against the deceased. 33 Ann. 1087; 34 Ann. 1078; 37 Ann. 443, 491, 644, 782, 896.
The affidavits make no suggestion of the intention or ability to tender such proof. The judge states that the evidence taken on the former trial satisfied him that no such proof could be made; and it further appears, from the judge's statement in refusing the motion for a new trial on the same ground, that no such foundation was laid for the admissibility of the evidence, even had the witnesses been present.
The authorities positively, and with great reason, discountenance continuances on the ground of absence of witnesses who are not within the process of the court. As said in one case: State vs. Files, 3 Brev. S.C. 304.
The rule is that three things must concur to support such a continuance: "(1) That the witness is really material (including, of course, admissibility of his expected evidence), and appears to the court so to be; (2) that the defendant has been guilty of no neglect; (3) that the witness can be had at the time to which the trial is deferred." King vs. D'Eon, 1 Wm. Bl. 510; Mull's case, 8 Gratt. 695; 3 Whart. Cr. L. § 3022, et seq.; 1 Bishop Cr. Proc. § 951 (a); Wharton's Cr. P. & P. 589.
The judge a quo concluded that none of these requisites sufficiently appeared in the affidavits and facts of this case and expresses his conviction that the application was made for delay.
We fail to discover any such manifest error or injustice as would alone authorize us to interfere with the discretion of a trial judge in a question of continuance. 36 Ann. 86, 853; 37 Ann. 129, 787.
2d. A bill was reserved to the overruling of the objections of defendant to the admissibility of the...
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