State v. Farley

• Decision Date: 23 May 1916
• Docket Number: 3010.
• Citation: 89 S.E. 738,78 W.Va. 471
• Parties: STATE v. FARLEY.
• Court: West Virginia Supreme Court

89 S.E. 738

78 W.Va. 471

STATE v. FARLEY.

No. 3010.

Supreme Court of Appeals of West Virginia.

May 23, 1916

Rehearing Denied Sept. 12, 1916.

Syllabus by the Court.

Denial of a continuance, asked on the ground of absence of a witness, is not erroneous or improper where the affidavit in support of the motion therefor fails to show due diligence by the movant, adequate cause for the absence, and materiality of the testimony the witness is expected to give on the trial.

Rulings by the trial court on the admissibility of evidence will not constitute sufficient ground for the reversal of a judgment unless the appellate court is able to perceive substantial prejudice resulted therefrom.

An indictment for the unlawful sale of intoxicating liquors returned in January, 1915, in the form prescribed by section 3, c. 32A, Code (sec. 1282), operative since July 1, 1914, is not defective or invalid, on demurrer or motion to quash, for failure to state the time of the commission of the offense other than by the use of the statutory expression "within one year next prior to the finding of this indictment."

Error to Circuit Court, Kanawha County.

Tom Farley was convicted of unlawfully selling intoxicating liquors, and on appeal from the intermediate court the circuit court quashed the indictment and discharged accused whereupon the State brought error. Reversed, motion to quash overruled, and judgment of intermediate court affirmed.

T. C. Townsend, Fred O. Blue, and Jno. T. Simms, all of Charleston, for the State.

E. E. Robertson and Avis & Donnally, all of Charleston, for defendant in error.

LYNCH J.

For unlawfully selling intoxicating liquors, defendant was convicted in the intermediate court of Kanawha county. Upon review the circuit court of that county reversed the judgment, quashed the indictment, and discharged the accused from further prosecution. Thereupon the state obtained this writ of error. The specific points presented for consideration are the denial of defendant's motion for a continuance, rulings by the trial court on the admissibility of evidence, and the sufficiency of the indictment.

In support of his motion for a continuance, defendant by affidavit stated, in substance, that his mother, then living in Boone county, was a material witness in his behalf, without whom he could not safely proceed to trial; that a week before the trial he had gone to her home for the purpose of bringing her to Kanawha county as a witness, but found "she was physically unable" to attend the trial; that, inasmuch as "Ray, who says he bought whisky from Farley, said that he purchased it in a room at the top of the stairway" (no more definite place of the alleged sale being given), defendant would be able to prove by his mother that she was at his home "at that time, and was in the room for a visit, and remained in the room all that evening," and neither Ray nor defendant "was ever in the room from 1 o'clock until that evening at supper time"; and that he could not prove these facts by any other witness. Because of the insufficiency of the affidavit alone, the continuance was properly denied. Its vagueness, uncertainty, and indefiniteness are apparent. The time at which Ray was expected to testify he purchased the whisky is not stated; and the statement that defendant's mother was in the room designated during the "evening" of a certain day, and neither Ray nor defendant appeared thereat during a portion of the afternoon of that day, obviously is inconclusive. It is not shown that a summons was issued or requested for the absent witness. The trial was had in May, 1915, upon an indictment found at the preceding January term of court. The only evidence of diligence manifested by defendant was his statement that a week before the trial he had visited his mother and found her then "physically unable" to attend. Neither the nature or extent of her inability, nor the probability of her attendance at a subsequent term, is shown. But there is another and equally substantial reason why the ruling on the motion was not prejudicial to defendant.

The affidavit was disproved, in so far as it contained any vital averments, by the testimony of defendant's witnesses at the trial. His wife testified, without contradiction, that the mother was, in fact, at his home on the Saturday the evidence for the state fixed for the sale, but that she was absent therefrom during the afternoon of that day; and it is also proved by defendant's evidence that Ray, who stated he purchased the whisky from Farley on Saturday, did not arrive at Charleston, the place of sale, until after 2 o'clock, and that same evening, some time before 6 o'clock, was arrested by police officers for drunkenness, and thereafter detained in confinement until the ensuing Monday morning.

The rulings on evidence are presented by several separate bills of exception. It is contended that the testimony embodied in bill No. 1 should have been excluded as hearsay. Police Officers Herrold and Haggerty, by proper warrant, searched defendant's premises on Saturday evening after the sale to Ray on that day, and found about 160 gallons of liquor. Haggerty died prior to the trial. Herrold was permitted to testify, on behalf of the state, that on the occasion of the search Haggerty asked Farley if he had any whisky in the building, and Farley replied he had none. The record of the examination of the witness does not justify the conclusion that the conversation was hearsay, reported to Herrold by the officer acting with him. The only reasonable inference from the...