State v. Harry Jones et al.

Decision Date29 April 1919
Citation84 W.Va. 85
CourtWest Virginia Supreme Court
PartiesState v. Harry Jones et al.
1. Criminal Law Bulings on Continuance Discretion Beview.

The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made. (p. 87).

2. Same Motion for Continuance Absent Witnesses Buling.

Where a motion for a continuance in a criminal case is based upon the absence of a material witness, and it appears from the record that the evidence of the absent witness was merely cumulative, or that his deposition might with reasonable effort have been taken before the trial, though he could not be present thereat, it is not error to refuse a continuance. (p. 87).

3. Same Befusal of Continuance Prejudice Beversal.

But if the trial is ordered to proceed in disregard of the motion, and results in a judgment adverse to the party who asked for the continuance, and from the whole case it seems reasonably apparent that he was entitled thereto, and that its refusal has worked injury and prejudice to his rights, such adverse action ordinarily is deemed sufficient cause for the reversal of the judgment so obtained. (p. 87).

4. Same Motion for Continuance Absence of Witness Affidavit.

An affidavit in support of a motion for a continuance in a criminal case based upon the absence of a material witness, whose presence is deemed necessary to the full and proper presentation of affiant's case, must state the name of the witness, and show that due diligence has been exercised to secure his presence at the trial, and that there is a fair probability that his presence or deposition can be secured for a later term; must state with reason- able definiteness the substance of the testimony the witness is expected to give at the trial to enable the court to determine its materiality and the necessity of his presence, and show that he cannot prove the same facts by any other witness in attendance, and cannot safely go to trial in the absence of the witness desired. Affiant may be required to submit to cross-examination upon the facts therein averred. (p. 87).

5. Burglary Breaking and Entering of Freight CarOwnership Proof.

Proof establishing complete, though temporary, control and custody by a railroad company of a freight car and its contents is sufficient to support an allegation of ownership in such company in an indictment charging breaking and entering, or entering without breaking, such car with intent to steal, and the actual asportation of, its contents. (p. 90).

6. Same Breaking and Entering of Freight Car Variance.

Between the averments of an indictment for the burglary of a freight ear and proof showing the burglary of a box car containing the freight stolen there is no such variance as warrants the award of a new trial. (p. 92).

Error to Circuit Court, Marion County.

Harry Jones and others were indicted for breaking and entering, or entering without breaking, a railroad freight car with intent to steal, etc. Motions for continuance denied, and defendant Harry Jones brings error.

Reversed and remanded.

Ernest R. Bell and L. G. Musgrave, for plaintiff in error. E. T. England, Attorney General, and Henry A. Nolte, Assistant Attorney General, for the State.

Lynch, Judge:

The important and the only vital question submitted for investigation and decision upon this writ concerns adverse rulings upon defendant's motions: First, to postpone the trial to the term next succeeding that at which the indictment was found because of the absence of necessary witnesses cognizant of facts material to establish the innocence of the defendant of the charge preferred against him, and, second, a continuance of two hours within which to prepare and file the affidavits of his father and defendant's wife to be read and considered in support of the first motion.

Our statute governing the granting of continuances in criminal actions is section 1, ch. 159, Code: "When an indictment is found in the circuit court of any county against a person for a felony, the accused, if in custody, or if he appear in discharge of his recognizance or voluntarily, shall, unless good cause be shown for a continuance, be tried at the same term."

The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made. State v. Harrison, 36 W. Va. 729; State v. Madison, 49 W. Va. 96; State v. Angelina, 73 W. Val 146; State v. Duffy, 75 W. Va. 299; State v. Swain, 81 W. Va. 278; State v. Alie, 82 W. Va. 601, 96 S. E. 1011. And if the trial is ordered to proceed in disregard of the motion, and results in a judgment adverse to the party who asked for the continuance, and from the whole case it seems reasonably apparent that he was entitled thereto and that its refusal has worked injury and prejudice to his rights, such adverse action ordinarily is deemed sufficient cause for the reversal of the judgment so obtained. Buster v. Holland, 27 W. Va. 510; Cook v. Cook, 63 W. Va. 413; Doane v. Parsons Pulp & Lumber Co.. 11 W. Va. 454.

One of the grounds for which a continuance is sometimes allowed is the absence of a material witness at the time of the trial, but before that can avail as the basis of a continuance, the party asserting it and relying thereon must establish certain facts to the satisfaction of the trial court. This is generally done through an affidavit setting forth the required facts respecting the absence of the witness, but the affiant may also be required to submit to cross-examination upon the facts therein averred, as was done in this case.

The affidavit must state the name of the witness whose presence is deemed necessary to the full and proper presentation of affiant's case (Buster v. Holland, 27 W. Va. 510, 535; State v. Madison, 49 W. Va. 96; State v. Alie, 82 W. Va. 601, 96 S. E. 1011); and must show that due diligence has been exercised to secure the presence of the witness at the trial, and that there is a fair probability that his presence or deposition can be secured for a later term. State v. Brown, 62 W. Va. 546; Cicerello v. C. & 0. Ry. Co., 65 W. Va. 439; State v. Duffy, 75 W. Va. 299: State v. Farley, 78 W. Va. 471; State v. Alie, cited. It must state with reasonable definiteness the substance of the testimony the witness is expected to give at the trial to enable the court to determine its materiality and the necessity of his presence (Buster v. Holland, cited; State v. Brown, cited; State v. Farley, cited; State v. Alie, cited); and must show that he cannot prove the same facts by any other witness in attendance, and cannot safely go to trial in the absence of the witness desired. Wilson v. Kochnlein, 1 W. Va. 145; Wilson v. City of Wheeling, 19 W. Va. 323; Dimmey v. Railroad Co., 27 W. Va. 32. It follows as a necessary inference from what has been said that the evidence of the absent witness must not be merely cumulative. C. & 0. Ry. Co. v. Newton, 117 Va. 260. Matoaka Coal Corp. v. Clinch Valley Mm. Corp., 121 Va. 522. And if it appears from the record that the deposition of the witness might have been taken before the trial, though he could not be present at the trial, it is not error to refuse a continuance. Mate Creek Coal Co. v. Todd, 66 W. Va. 671; State v. Swain, 81 W. Va. 278.

Except in one particular the affidavit of defendant and the cross-examination to which he was subjected complied with all the requirements of the decisions cited. He gave the names of the absent witnesses, the places of their residences, and the substance of the testimony each of them would give in his behalf, and stated that he could not safely enter upon the trial of the case in their absence because of his inability otherwise to prove the same state of facts, facts which if proved we can see necessarily would have an important bearing upon the question of his guilty participation in the commission of the offense charged in the indictment. For each of these witnesses he caused process to be issued on the third day after the return of the indictment, in time to be served upon them had the officer been able to locate them in the county, Marion, and at their designated residences in or near Worthington, the place at which the offense was committed. The witnesses, however, were not found, not because they had not resided at or near "Worthington, as defendant testified, but because they had changed their places of abode since the commission of the offense charged, whether with or without his previous knowledge does not appear. Some of them, it seems from the proof offered upon the subject, had gone to Harrisville, Ritchie County, or Wheeling, Ohio County, or to the state of Ohio, so that apparently he could not, when he made the affidavit, say definitely whether he would or would not be able to secure their personal attendance at the next ensuing regular term of the court, or in the meantime to take their depositions, the element omitted, inadvertently it may be, from the affidavit and examination.

In this manner obviously appears a strong showing in favor of allowing a postponement of the trial, at least for the two hour period requested for the reinforcement of the testimony offered in that behalf, especially when considered in connection with the other facts and circumstances equally obvious and pertinent when the motions were made, the consideration of which cannot be ignored upon this investigation.

For although the constitutional provision (Art. 3, § 14, Const.) requires that "trials of...

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