State v. Henry

Decision Date31 May 1918
Citation30 Del. 323,105 A. 849
CourtCourt of General Sessions of Delaware
PartiesSTATE v. WARNER I. HENRY and JOSEPH HENRY

Court of General Sessions, New Castle County, May Term, 1918.

INDICTMENT No. 3, May Term, 1918.

Warner I. Henry and Joseph Henry were indicted for larceny, and were brought to trial before a jury. During the trial, a nolle prosequi was entered as to Joseph Henry, and a verdict of guilty was returned against Warner I. Henry. Whereupon there was a motion for new trial and in arrest of judgment on the ground of the refusal of the court to continue the case on application of defendants, supported by affidavits. Motion refused. Warner I. Henry brings error. Affirmed.

On May eighth the defendants filed an affidavit setting forth the absence from the state of material witnesses, and moved for a continuance until the September term of this court. The Attorney General objected to the sufficiency of the affidavit filed, and resisted the motion for a continuance. The affidavit was by the court held insufficient, the motion for continuance refused and the case set for trial on the tenth of May. On the day fixed for trial the defendants appeared in court and their counsel announced the attendance of two of the three witnesses mentioned in the first affidavit. The defendants filed another affidavit setting forth the absence of two character witnesses neither of whom had been mentioned in the first affidavit and renewed the motion for a continuance. The Attorney General stated that he was willing to admit the absent witnesses if present would testify to the facts set forth in the affidavit. The continuance was refused and the trial proceeded. During the trial the Attorney General entered a nolle prosequi as to Joseph Henry. The jury returned a verdict of guilty as to Warner I. Henry. Counsel for the defendant made a motion for a new trial and in arrest of judgment, and filed the following reasons why a new trial should be granted:

"That the court erred in refusing the continuance of the trial of the said case on the motion and affidavit of the defendant on account of the absence of the material witness, Pauline Guy thereby forcing the defendant to trial without the benefit of the attendance and testimony of said Pauline Guy.

"That the court erred in refusing to continue the trial of the said case on the motion and affidavit of the defendant because of the absence of the material witness, Charles Bond, thereby forcing the defendant to trial without the benefit and testimony of the said Charles Bond."

The affidavit filed on May eighth by the defendants, upon which the first motion for continuance was based, in substance sets forth:

"That they are the defendants in the above stated case; that they need for their defense the presence and attendance of the following witnesses at the trial of their case, to wit: Frank Guy, Pauline Guy and Bessie Kelley; that they cannot safely go to trial without them; that they expect to prove by each of said witnesses that Warern I. Henry bought the chickens alleged in the indictment to be stolen from a man who brought the chickens to his house for sale; that said witnesses are without the state of Delaware, to wit, Frank Guy and Pauline Guy in New Jersey and Bessie Kelley in Pennsylvania, where they respectively reside; that the deponents cannot produce said witnesses at the present term of court but that they verily believe they can produce said witnesses at the next term of this honorable court."

The Attorney General on behalf of the state resisted the motion for a continuance and objected to the sufficiency of the affidavit for the reasons it did not appear from the affidavit that the defendant used due diligence and made reasonable effort to secure the presence of the absent witnesses, and the failure of the defendant to set forth the residence of the absent witnesses if known, and if unknown that the fact should be stated.

Counsel for the defendant contended that the affidavit filed followed in detail similar affidavits held sufficient by the court.

Judgment affirmed.

David J. Reinhardt, Attorney-General, for the State.

Levin Irving Handy and Philip L. Garrett for defendants.

RICE J., sitting.

OPINION

RICE, J., after stating the facts as above, delivered the opinion of the Court of General Sessions on May thirty-first, 1918:

A continuance of a case is a matter within the discretion of the court. The purpose of requiring an affidavit to accompany the motion for a continuance is to acquaint the court with the facts upon which the motion is based, so that the discretion reposed in the court may be by it reasonably exercised. When the accused in a criminal case requests a continuance, and there is objection made, the court will not grant it unless it is satisfied from the affidavit that there is an absent witness; that the facts to which he is expected to testify, as stated, show his testimony to be material and relevant; and that there is a reasonable certainty of securing the presence of the witness at the next term, also facts must be set forth with sufficient particularity to show the court that due diligence has been exercised and a reasonable effort made to secure the attendance of the witness at the term, at which the application is made.

The residence of an absent witness without the state, if known to the affiant, to show whether the absent witness lived near by, or a great distance, may be a fact helpful to the court in passing upon the question of due diligence and reasonable effort to secure the attendance of the witness. And the fact that the residence of the witness is unknown may be considered by the court in considering whether or not there is a reasonable certainty of securing the presence of the witness at the next term. The court is of the opinion that the affidavit of May eighth is not sufficient in that it fails to convince the court that due diligence had been exercised, and reasonable effort made to secure the attendance of the absent witnesses at the present term.

The affidavit of May tenth, filed by Warner I. Henry, one of the defendants, states:

"That Charles Bond and Charles Young are material witnesses to the defense; that he cannot safely go to trial without their attendance, that he expects to prove by each of them that deponent's reputation in the community in which he lives for honesty and fair dealing is good; that they reside in Delaware City, Delaware; that he has issued a subpoena for their attendance, which subpoena is returned 'non est' that Charles Bond is ill and confined to a hospital in Philadelphia, Pennsylvania, and has been there for one week, and that deponent cannot produce them at this term of court, but believes he can produce them at the next term."

The Attorney General stated he was willing to admit that the absent witnesses if present at the trial would testify "that the reputation of Warner I. Henry for honesty and fair dealing is good."

The absence of a character witness is not sufficient reason for granting a continuance of a case, and most certainly the court would not grant a continuance by reason of the absence of a character witness, when the Attorney General is willing to admit that the witness, if present, would testify to the good reputation of the accused.

The court is of the opinion that it was not in error in refusing the two motions for a continuance.

The motion for a new trial is refused.

Sentence was imposed upon the convict.

Whereupon a bill of exceptions setting forth the facts stated below was signed, and a writ of error taken to the June term, 1918.

Argued at the adjourned October term, 1918, before CURTIS, Ch., PENNEWILL, C. J., and BOYCE, J.

The plaintiff in error was indicted on May sixth, 1918, for larceny of chickens, and on May eighth moved for a continuance to the next term of court, and filed in support thereof an affidavit of the prisoner made May sixth, that he could not safely go to trial without the attendance of three named witnesses, residents of New Jersey and Pennsylvania, by each of whom he expected to prove that he bought the chickens from a man who brought them to his house for sale; that he could not procure the attendance of the witnesses at the then current term of court, but believed he could do so at the next term of court. This motion was denied, and the trial fixed for May tenth, and an exception was noted to the refusal of the continuance to the next term.

On May tenth two of the three witnesses were present in court, but not the third. Another motion was then made for a continuance until the next term, and an affidavit made May tenth was filed to the effect that he needed the attendance of two other witnesses to testify to the character of the prisoner. Thereupon the Attorney General admitted that the character of the prisoner for honesty and fair dealing was good, and the court refused to grant a further continuance. An exception was taken to the refusal. At the trial held on May tenth the defendant was convicted and subsequently he was sentenced.

Mr. Handy contended that the court below erred in refusing the two applications for a continuance of the case on the ground of the absence of Pauline Guy, in view of what he expected to prove by her as shown by the affidavit. State v. Honey, 25 Del. 452, 2 Boyce 452, 80 A. 38; State v. Hawkins, 18 Del. 474, 2 Penne. 474, 47 A. 618; Whart. Crim. Pl. & Pr. §§ 591-593; 4 Ency. Pl. & Pr. (N) 884; State v. Gordy, 21 Del. 323, 5 Penne. 323, 60 A. 977; State v. McConnell, 20 Del. 520, 4 Penne. 520, 57 A. 367.

The matter of the continuance of a case is one for the sound judicial discretion of the trial court--a discretion which may not be exercised arbitrarily or unjustly Newman v....

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