State v. Uhler

• Decision Date: 05 January 1916
• Citation: 156 N.W. 220,32 N.D. 483
• Parties: STATE v. UHLER.
• Court: North Dakota Supreme Court

32 N.D. 483

156 N.W. 220

STATE

v.UHLER.

Supreme Court of North Dakota.

Jan. 5, 1916.

Syllabus by the Court.

To avoid a continuance on defendant's application, the state stipulated to what the absent witness, if present, would testify, and on trial offered impeaching evidence. On the contentions of defendant it is held:

(a) Denial of the continuance was an exercise of discretion based upon all the record facts, the showing made, including that of diligence, and the likelihood of defendant ever being able to produce said witness.

(b) Decision thereon will be disturbed only for a clear abuse of the discretion vested in the trial court.

(c) Upon such an application it is not necessary to avoid a continuance that the state admit the truth of what it is asserted the absent witness, if present, would testify to.

(d) Reasonably administered, the denial of a continuance upon a concession as here made is not a denial of the constitutional right to process to compel attendance of witnesses in behalf of an accused. An unreasonable denial, however, may be an invasion of such constitutional right.

On an appeal, no error can be predicated upon the overruling of a challenge to a juror for cause where the appellant had not exhausted all his peremptory challenges.

There was no error in overruling certain objections to use of a witness whose name was not indorsed upon the information.

Error is not shown in the cross-examination of defendant.

The state could impeach what it was conceded the absent witness, if present, would testify to.

There was no error in refusing to delay the trial that defendant might procure Mrs. H. to be present and testify.

The information, for the first time assailed by a motion in arrest of judgment, is held sufficient to support the judgment.

Instructions, not abstractly wrong, will not be held erroneous or prejudicial when the proof offered on the trial is not brought up on the appeal.

Appeal from District Court, Grand Forks County; Cooley, Judge.

Andy Uhler was convicted of robbery, and appeals. Affirmed.

J. B. Wineman, of Grand Forks, for appellant. O. B. Burtness, State's Atty., and T. B. Elton, Asst. State's Atty., both of Grand Forks, for the state.

GOSS, J.

This is an appeal from an order denying a motion for new trial after sentence upon a conviction of robbery. The first alleged ground for reversal is based upon denial of defendant's motion for a continuance over the term at which he was tried. The motion was based upon affidavits of defendant and counsel and upon the files, including a subpœna issued June 22, 1915, returnable four days later, with the sheriff's return of inability to find Johnson, the witness therein named. The case was called for trial July 1, 1915, whereupon the motion was presented and denied. The court stated:

“The motion is overruled upon the statement of the state's attorney in open court that he stipulates that Ole Johnson, if present, would testify” to a state of facts set forth in the record, tending to show the robbery to have taken place, if at all, on the Minnesota side of the Red river and beyond the trial court's jurisdiction, and “that this statement may be read to the jury as evidence in the case and considered by them as evidence.”

The affidavits for continuance were read to the jury by defendant during the trial. The jury was instructed that:

“In considering the testimony of Ole Johnson, admitted in this trial by the state as facts which Ole Johnson would testify to, if present, the jury must give the same weight to such testimony as they would give to it had Ole Johnson been upon the stand testifying under oath; and if from all the testimony in the case, the testimony of Ole Johnson included, there is a reasonable doubt of the guilt of the defendant as charged in the information, then the jury must acquit.”

This fairly reflects the record upon this question. However, in the absence of any concession from the state concerning what Johnson would have testified to, the court would have been justified in denying a continuance, because of defendant's failure to show diligence in preparation for trial and because of the further fact that under the showing made the absent witness may never return within the jurisdiction of the court, and a continuance would be useless and unavailing. But the state was tendered, and it accepted the statement as to what Johnson would testify as in lieu of his deposition thereto. And, the state being ready for trial, opposed the continuance, and it was denied.

[1] Defendant contends that the court treated his application as sufficient by the acceptance of the stipulation in lieu of the testimony of Johnson, and allowed the case to be tried upon that theory, and hence the state is now precluded from questioning on appeal the sufficiency of the showing made for the continuance; also that the case must be treated as a denial of a motion for continuance made upon a sufficient basis upon condition of a concession by the state of the facts to which the absent witness would testify. Upon this assumption defendant contends that the denial of the continuance was both an abuse of discretion and a violation of his constitutional right to process of the court to compel the attendance of witnesses in his behalf, as guaranteed by section 13 of article 1 of our state Constitution. Defendant claims that in ruling upon constitutional rights no compulsory concession can be considered as the equivalent of the testimony of a witness given upon trial; that the only equivalent of the testimony of such absent witness is an unequivocal admission by the state of the truth of the facts to which it is claimed such absent witness would have testified, which admission would have dismissed this prosecution.

Brief reference may be made to the various holdings. It should be noted that about half the states have statutes governing practice under these conditions. We have not. Section 10787, C. L. 1913, but provides that a continuance may be granted upon sufficient cause and that a cause which would be considered as sufficient for postponement in a civil action is sufficient in a criminal action. Some states have statutes that a continuance may be denied upon a concession by the state that the witness, if present, would testify as stated in the affidavits for continuance, making the affidavits for continuance virtually depositions which the defense may thus use, but subject to contradiction by the state. Statutes upon the question are to be found in Arkansas, Illinois, Idaho, Iowa, Kansas, Kentucky, Missouri, Montana, Mississippi, New Mexico, and Wyoming. See note to 4 Ency. of P. & Pr. 867, and note to 28 Ann. Cas. 1913C. In some of these states, as in Missouri, it has been held that a statute providing that a continuance may be avoided by concession, but without admitting therein the truth of the matters specified for a continuance, is an unconstitutional deprivation of the right to compel the testimony of the absent witness and hold accordingly that the facts stated for a continuance must be admitted as true by the state for it to thus avoid a continuance. Likewise cases from Louisiana, Texas, California, and other states hold that nothing less than an admission of the truth of said statements will justify denial of a continuance to which the defendant is otherwise entitled. California authorities also hold, supporting the contention of the defendant, that a denial of a continuance, but upon condition of the state's admitting the facts in the affidavit for continuance, places the sufficiency of the basis for the continuance beyond dispute by the state. People v. Fong Chung, 5 Cal. App. 587, 97 Pac. 105. The leading California case upon the denial of continuance by concession is People v. Diaz, 6 Cal. 248, and for a recent holding to the same effect see People v. Bossart, 14 Cal. App. 111, 111 Pac. 15. These cases, like People v. Fong Chung, 5 Cal. App. 587, 91 Pac. 105, hold that a defendant-

“had a constitutional right to have his witnesses orally examined in court, and in the absence of a showing that the motion was made in bad faith, that he was entitled to a reasonable time to secure their attendance.”

Tennessee and Nevada, Oklahoma, South Dakota, and Texas are to the same effect. State v. Baker, 81 Tenn. (13 Lea) 326; State v. Salge, 2 Nov. 321; Madison v. State, 6 Okl. Cr. 356, 118 Pac. 617, Ann. Cas. 1913C, 484;State v. Wilcox, 21 S. D. 532, 114 N. W. 687;Jenkins v. State, 49 Tex. Cr. R. 457, 93 S. W. 726, 122 Am. St. Rep. 812. Most of the other states qualify the rule or treat the entire matter of the continuance, including the affidavits and concessions and all facts known to the court from the files and proceedings had in the case, as a discretionary matter, reviewable for abuse of discretion and as involving, when reasonably exercised, no violation of any constitutional right of process to compel attendance of witnesses. In the recent Wisconsin case of Miller v. State, 139 Wis. 57, 119 N. W. 850, many decisions are cited and discussed, in all phases here involved, including constitutional right to process. Mr. Justice Marshall, in the course of the opinion, states:

“My personal view is that, upon a full concession being made, as in this case, even in the event of a good case made for a continuance, it not only is within the discretion but the discretion ought to be exercised, to proceed with the trial under some circumstances. That the constitutional right to have one's witnesses, in case of a criminal prosecution against him, testify upon the trial, does not mean under all circumstances. Otherwise the wheels of justice might be impeded, to great public detriment, without really subserving any private right except in a technical sense. In case of great prejudice to public interests by delay, and the accused having had without success, the amplest use of all legal instrumentalities to compel attendance of his witness, and it...