Territory v. Kinney

• Decision Date: 30 January 1886
• Citation: 9 P. 599,3 N.M. 656,1886 -NMSC- 021
• Parties: TERRITORY v. KINNEY. [1]
• Court: New Mexico Supreme Court

9 P. 599

3 N.M. 656, 1886 -NMSC- 021

TERRITORY v. KINNEY. ^[1]

Supreme Court of New Mexico

January 30, 1886

Appeal from district court, Dona Ana county.

Wm Breeden, Atty. Gen., for appellee.

W. T Thornton, for appellant.

BRINKER J.

The defendant was convicted in the court below of the crime of grand larceny. From the judgment of conviction he appealed to this court. At the January term, 1884, the judgment was affirmed. Thereupon defendant filed a motion for a rehearing. This motion was not disposed of at that term. At the January term, 1885, the motion was argued, submitted, and taken under advisement, but before it was determined there was a general order of continuance made, and court adjourned. The attorney general now insists that this court cannot consider the motion, because, as he claims, it should have been decided at the January term, 1884, and not having been then decided it has lost its vitality, and we cannot now open the judgment for the purpose of considering it. This position is untenable. The necessary steps to open the judgment were taken by defendant at the term when it was rendered, by the filing of the motion. It is therefore still before us for determination. Bronson v. Schulten, 104 U.S. 410. The cause was reargued with the motion for rehearing. Defendant was indicted at the March term, 1883, and at the same term he filed a motion and affidavit for a continuance upon the ground of the absence of material witnesses. This motion and affidavit were in strict compliance with the requirements of the statute concerning continuances. Section 2049, Comp. Laws 1884. Section 2050, Comp. Laws 1884, provides that if the application for a continuance be insufficient it must be overruled, otherwise the cause shall be continued, unless the opposite party will admit that the witness, if present, would testify to the facts stated in the application. If this admission is made the cause shall proceed; if not, then the continuance goes as of course. Section 2052 permits the party opposing the continuance to file written objections to the application setting forth wherein he thinks it is insufficient.

Upon the filing of the application for continuance by defendant the court permitted the district attorney to file objections to it, denying in a large measure the truth of the facts stated, and also allowed to be filed the affidavit of Albert J. Fountain in support of the objections. The defendant objected to the filing of this affidavit. His objection was overruled, and he excepted. The defendant was then arraigned, and the trial proceeded, resulting in his conviction.

The evident intent of the statute is not to...