State v. Murphy
| Decision Date | 26 April 1900 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes County; Glaspell, J.
Barney Murphy was convicted of robbery, and appeals.
Affirmed.
Zuger & Paulson, for appellant.
Upon the showing made in this case it was error for the court to deny the motion for a continuance. Gandy v. State, 43 N.W. 747; Miller v. State, 45 N.W. 451; Newman v. State, 35 N.W. 194. Any cause that would be considered a good one for postponement in a civil action is sufficient in a criminal action. § 8141, Rev. Codes. On proper showing a defendant is entitled to a continuance as matter of right. The word "may" as used in the statute means "must." State v. Kent, 4 N.D. 577, 62 N.W. 631. And this is especially true upon a first application. Texas & Pac. Ry. Co. v. Yates, 33 S.W 291; Cunnen v. State, 22 S.E. 538; Clark v State, 33 S.W. 224. The affidavit of the accused for the purposes of the motion is taken as true. State v Dakin, 3 N.W. 411; Hair v. State, 16 N.W. 829; Gandy v. State, 43 N.W. 747; Miller v State, 45 N.W. 451; State v. Abshire, 17 South. Rep. 141; Barton v. McKay, 54 N.W. 968. The state did not controvert the allegations of defendant's affidavit nor did the state admit as true what defendant claimed he could prove by his absent witnesses. Poverty of the defendant, who is under disability by reason of imprisonment, may suffice to excuse want of preparation for trial. State v. Hogen, 22 Kan. 490; Newman v. State, 35 N.W. 194. It is not necessary for a defendant to use diligence to procure witnesses until after indictment found. 4 Enc. Pl. & Pr. 856. The instructions of the court as to the date when the offense was committed were conflicting and prejudicial. 11 Enc. Pl. & Pr. 149; State v. Keasling, 74 Ia. 328, 38 N.W. 397.
Edward Winterer, State's Attorney, and John F. Cowan, Attorney General, for respondent.
The affidavits presented by appellant in support of his motion for continuance contain averments that defendant was in St. Louis county, Missouri, on September 14th, 1895, and previous and subsequent thereto. The date when defendant was accused of robbery in North Dakota was September 25th, 1895, eleven days later than the time set in these affidavits. The testimony of the absent witnesses, if obtained, was immaterial to prove an alibi. An erroneous instruction is harmless when it appears from the instruction as a whole that the jury could not have been misled thereby. Town v. Lumber Co., 39 A. 1019; Gulf, etc. Ry. Co. v. Johnson, 43 S.W. 583; Peo. v. Boggs, 20 Cal. 433; Rock Island, etc. v. Krapp, 50 N.E. 663. When the evidence fully sustains the verdict an erroneous instruction is harmless. Evans v. Merritt, 45 S.W. 212. Error in giving instructions will be disregarded when the verdict was clearly right under the evidence. Davis v. Gilliam, 44 P. 119; Secor v. Oregon Imp. Co., 45 P. 654; Rose v. Bradley, 65 N.W. 509. Error is also without prejudice when it concerns a matter about which there was no contention. Rawson v. Ellsworth, 43 P. 934.
OPINION
The defendant in this action was found guilty of the crime of robbery in the first degree, and was sentenced to a term of 25 years in the penitentiary at Bismarck. A motion for a new trial made in defendant's behalf was denied by the District Court, and the case is brought to this court for review.
Two errors are alleged as occurring at the trial: Counsel claim that the trial court erred in denying a motion to postpone the trial from the December term of the District Court, 1899, until the June term, 1900; and, secondly, contend that certain instructions given to the jury, and hereafter referred to, were erroneous and prejudicial to the substantial rights of the defendant.
The part of the record necessary to consider shows that the information against the defendant was filed by the state's attorney on December 11, 1899, and on that day defendant was arraigned. It then appeared that defendant was financially unable to employ counsel, whereupon one of the defendant's counsel in this court (A. P. Paulson, Esq.) was appointed by the District Court to defend the accused, as his attorney in this action. Defendant was given one day to plead to the information, and on the following day, December 12th was brought into court, and then entered a plea of not guilty, and was thereafter remanded to the custody of the sheriff. On December 15, 1899, the case was called for trial, whereupon a motion was made in defendant's behalf to postpone the trial until the next term of the court, which was to convene in June, 1900. This motion, as finally presented on the 16th of December, was made in writing, and was based upon certain affidavits and exhibits, which are as follows: First, defendant's own affidavit, which refers to another affidavit made by certain citizens of St. Louis county, Mo., and a certain letter written by a justice of the peace who took the Missouri affidavits, and the affidavit of defendant's counsel, A. P. Paulson. Defendant's affidavit, after omitting formal and immaterial parts, is as follows: After stating, in substance, that he wished to take the depositions of said witnesses, and that a postponement of the trial would be necessary to enable him to do so, the affidavit proceeds as follows: "In support of his allegations in this affidavit contained, affiant refers to and attaches the affidavit of said witnesses, taken before Eugene Hansman, notary public of St. Louis county, Mo., on November 27, 1899, and marked 'Exhibit A,' and a letter from said Eugene Hansman, dated at Maplewood, Mo., November 27, 1899, and addressed to Hans C. Stenshoel, marked 'Exhibit B.'" Exhibit A is an affidavit purporting to be made and signed on November 27, 1899, before Eugene Hansman, a notary public and justice of the peace of St. Louis county, Mo., by the persons named in defendant's affidavit. The material feature of Exhibit A read as follows: The letter of Eugene Hansman, inclosing Exhibit A to the sheriff of Barnes county, embraces nothing pertinent to the question of the whereabouts of the defendant on September 25, 1895, and hence need not be further mentioned. The affidavit of defendant's counsel stated, in effect, that the defendant had informed him that he desired to take the depositions of said persons residing in Missouri, and that, for lack of time, said depositions could not be taken unless the trial was postponed until the next ensuing term, and that the said counsel was informed by the defendant that he could prove by said witnesses that the defendant was in the State of Missouri at the time of the alleged commission of the offense.
The question presented for determination is whether, under the circumstances of the case, and upon the showing made by defendant's affidavits, it was prejudicial error to deny defendant's motion for a continuance of the case over the December term. Appellant's counsel cites in support of his contention section 8141, Rev. Codes 1895. This section authorizes a motion to postpone a trial in a criminal action, but it does not attempt to set forth the requisite grounds of any such motion, further than to declare that "any cause that would be considered a good one for a postponement in a civil action is sufficient in a criminal action whether urged by the state of by the defendant." Counsel have cited no provision of the Code, nor has the court found any, purporting to set out the requisites of an affidavit for a continuance to procure testimony in a civil action. The matter, not being regulated by statute, would be governed, therefore, by the settled rules of law applicable to applications for continuance in civil cases. It will be unnecessary, however, for reasons hereafter appearing, to examine the cases bearing upon the matter of an affidavit for a continuance in civil causes; and it will suffice to say here that it is now well settled that such affidavits must be explicit in their statements of the evidence and facts expected to be proven by an absent witness, and that the same are strictly construed, and, so far as such an affidavit is equivocal or uncertain in its statements, all intendments are taken against such statements. See 4 Enc. Pl. & Prac. p. 877 and notes. In the case under consideration the affidavits filed as a basis for the motion for a continuance show that the defendant desired a continuance over the December term to enable the defendant to procure the depositions of a...
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