Tatum v. State

• Decision Date: 23 January 1901
• Citation: 85 N.W. 40,61 Neb. 229
• Parties: TATUM v. STATE.
• Court: Nebraska Supreme Court

61 Neb. 229

85 N.W. 40

TATUM

v.STATE.

Supreme Court of Nebraska.

Jan. 23, 1901.

Syllabus by the Court.

1. In an application for a continuance, where no reasonable probability exists of procuring the proposed evidence, which is that of unknown persons, or where it is shown that due diligence and seasonable effort have not been made to procure such evidence, the application for a continuance is properly overruled.

2. Where a witness for the defense in a criminal prosecution has testified to facts inconsistent with, and contradictory to, statements made by such witness prior thereto, and regarding matters material to the issues in the case, such inconsistent and contradictory statements may be proven on rebuttal, for the purpose of affecting the credibility of such witness, the proper foundation having first been laid.

3. Strictures by counsel of a witness for the defense held to be of a character warranted by the evidence, and that such argument was not misconduct upon which prejudicial error could be predicated.

4. Instructions to the jury examined, and held to embody the rule of law that circumstantial evidence, to justify a conviction, must be of such a character as to exclude every reasonable hypothesis save that of the guilt of the accused.

5. Evidence examined, and held to support the verdict of the jury and the judgment rendered thereon.

Error to district court, Buffalo county; Sullivan, Judge.

John W. Tatum was convicted of horse stealing, and brings error. Affirmed.Hamer & Hamer, for plaintiff in error.

The Attorney General and Fred A. Nye, for the State.

HOLCOMB, J.

The defendant, plaintiff in error, was informed against and convicted of the crime of horse stealing at the January, 1900, term of the district court of Buffalo county. Just preceding the trial, different applications were made by the defendant for a continuance of the cause, which were overruled. The ruling is assigned as error. It appears from the record that, after a preliminary examination, an information was filed in the district court, at the September, 1899, term, charging the defendant with the crime mentioned, to which, upon arraignment, he entered a plea of not guilty, and the cause was thereupon continued until the next term, which convened November 20th, the defendant entering into a recognizance for his appearance at such time to answer the charge preferred against him. At the November term, and on the 22d of the month, the defendant presented a motion, supported by affidavit, for a continuance until the next regular term, for the purpose of making preparation for trial, and procuring evidence alleged to be material for his defense. The application was granted, and the cause continued until the next term. The next regular term convened on January 29, 1900, at which time another motion was presented by defendant for a further continuance, which was overruled, and the case set for hearing on the 31st. On that day yet another motion for a continuance was filed, which was also overruled, and the case proceeded to trial. In the application for a continuance, at the beginning of the term at which the trial was had, the reasons assigned therefor were that the defendant had not prepared for trial, because accumulated business of his counsel had prevented the necessary steps to secure evidence material in the case and necessary to a proper hearing thereof, and that the term of court had been called earlier than was anticipated. The proposed evidence was that of unknown persons, and the probability of procuring it was extremely indefinite and uncertain. The witnesses from whom the proposed evidence was to be had were to be found, and their testimony procured, after a trip was made to St. Louis, Mo., where it is claimed a car load of horses was shipped, in which shipment, according to the theory of the state, were included the two horses alleged to have been stolen by the defendant. The proposed evidence, when discovered, was for the purpose of disproving the shipment of any horses answering the description of those alleged to have been stolen. In the showing for a continuance, it was stated that the defendant could not prove what horses were received by the consignees, except by the consignees themselves; but there was omitted all reference to any evidence which might be procured showing what horses were in fact loaded into the car at the place of shipment in the county adjoining that in which the larceny was committed. By the record it is disclosed this testimony was procurable, and was introduced by the defendant for the purpose of establishing the same fact it was proposed to prove by the unknown consignees of the shipment. It also appears that no effort was made, prior to the time of the application for a continuance, to procure the testimony spoken of. The application was clearly insufficient, and failed to state any of the essential requirements of diligence, materiality of evidence, and reasonable probability of procuring it from the sources relied on. It is also quite apparent that testimony of the same character, pertaining to the same alleged facts, was procurable from those having knowledge of the shipment, from the place where made, and near the place where the alleged offense was committed, to procure which no effort appears to have been made at that time.

Upon the overruling of the application, subpœnas were issued, at defendant's request, for different witnesses to appear and testify in his behalf. The subpœnas were served on some, and returned “Not found” as to others. On the day set for trial, another application for a continuance was presented, on the ground of the absence of the witnesses not found. As to the last application, it was presented out of season, and there is an utter lack of diligence shown. The ruling thereon was proper. A perusal of the record does not impress us that diligence or reasonable effort was made to procure the presence of the witnesses whose absence is made the basis for the application. They all resided at points convenient to the place of trial, and a seasonable effort to procure their attendance would, no doubt, have been successful.

Many objections are made, and exceptions taken, to the introduction of testimony on the trial of the...