Sutherlin v. The State
| Decision Date | 08 December 1886 |
| Docket Number | 13,134 |
| Citation | 9 N.E. 298,108 Ind. 389 |
| Parties | Sutherlin v. The State |
| Court | Indiana Supreme Court |
From the Parke Circuit Court.
The judgment is affirmed, with costs.
V Carter, S.D. Puett and H. E. Hadley, for appellant.
F. T Hord, Attorney General, and W. B. Hord, for the State.
The appellant was tried and found guilty upon an indictment charging him with the crime of grand larceny. His punishment was fixed at imprisonment in the State prison for the period of three years.
The indictment was returned to the May term, 1885, of the Parke Circuit Court. On motion of the prosecuting attorney, the cause was continued to the September term. On the 5th day of September, at the appellant's request, the cause was again continued over the term. The appellant's motion for a continuance was supported by an affidavit, in which he deposed, that certain competent witnesses, who would, if present at the trial, give material evidence in his behalf, were absent from the State. The affidavit recited, in substance, the evidence which it was alleged the absent witnesses would give, and was apparently formal in all respects. An order was duly made authorizing the appellant to take depositions out of the State.
At the ensuing November term, after an unsuccessful application for a change of venue from the county, the appellant again moved for a continuance. His motion was supported by an affidavit in which he alleged that one of the same witnesses, whose absence occasioned the continuance at the September term, was still absent, and that he had been unable to procure the deposition of the witness referred to.
This last affidavit contained no statement of the facts which it was expected the witness would testify to, nor that such facts could not be proved by any other witness whose testimony could be readily procured. All that the affidavit contained in respect to these subjects was the following: "Comes now the defendant, who being duly sworn says, that the witness, John Porter,--referred to in his affidavit hereto attached, and made part hereof, which was made at the last court, as to what said Porter would swear to, and which by agreement is made a part hereof,--is as he now learns for the first time," etc. "That the evidence of said Porter is very material as the court will see by the affidavit hereto attached."
While the record sets out, at the appropriate place, the affidavit filed in support of appellant's first application for a continuance, it in no manner,--except by the recitals above set out,--shows that the affidavit referred to was made a part of that filed in support of the second application. Conceding that the first affidavit was attached to the second, as therein recited, the continuance was nevertheless properly denied.
The material facts which the statute requires to be set forth in an affidavit for a continuance, can not be supplied by merely attaching to the one presented an old affidavit, however formal, which has served its purpose at a previous term. The affidavit must set out and verify all the facts, as they then exist, which are essential to support the application.
The case having been once continued at the appellant's request, in order to...
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