Territory v. Leary.

• Decision Date: 18 October 1895
• Citation: 8 N.M. 180,43 P. 688
• Parties: TERRITORYv.LEARY.
• Court: New Mexico Supreme Court

8 N.M. 180

43 P. 688

TERRITORY

v.LEARY.

Supreme Court of the Territory of New Mexico.

Oct. 18, 1895.

Appeal from district court, Bernalillo county; before Justice N. C. Collier.

John M. Leary, under indictment charging him with assault with a deadly weapon, moved for a change of venue, on the ground of local prejudice, and appeals from a judgment overruling such motion. Affirmed.

The granting or denying of a motion for continuance is within the discretion of the trial court, and unless such discretion has been abused to the injury of the defendant, the denial of such motion will not constitute error.

Warren, Fergusson & Gillette, for appellant.

Sol. Gen. Victory, for the Territory.

BANTZ, J.

The defendant, under indictment charging assault with a deadly weapon, filed his affidavit on the 9th day of November, 1894, for a change of venue, on the ground that he could not secure a fair trial in Bernalillo county, where the case was pending, because the principal witness for the territory had an undue influence over the minds of the inhabitants of the county; that the inhabitants of the county were prejudiced against him; and that, by reason of local prejudice, an impartial jury could not be obtained. This affidavit was supported by the affidavits of two persons, who set forth that they had no interest in the case; that they had read the affidavit of defendant; and that they believed the facts therein stated to be true. The application for a change of venue was resisted upon the ground that the two persons supporting the defendant's affidavit should come into open court, and submit to an oral examination under oath. On the same day, November 9th, the court overruled the application, but at the same time gave the defendant leave to produce in open court two disinterested persons to verify the facts set forth in defendant's affidavit. On the 12th of November, the defendant filed another motion for change of venue, based upon the affidavits already mentioned; and on the same day it was ordered by the court that, “the said defendant not having produced in open court two witnesses to verify the truth of the allegations contained in said motion,” the same is overruled. The record fails to disclose that any exception was taken to the action of the court below as to these orders overruling motions for change of venue, but the prosecution and the defense have fully argued the question, and, as it is one of practice and of great importance, we have considered the point without deciding whether it is sufficiently raised on the record. The affidavits of the defendant and of the two persons supporting it fully set forth all that the statute requires; and the question is whether the court below erred in requiring the two witnesses supporting defendant's affidavit to personally appear in open court, and submit to an oral examination.

The statute requires that a defendant's affidavit shall “be supported by the oath of two disinterested persons that they believe the facts therein stated are true.” It will be noted that, under this clause, two things should appear to the court: (1) That two persons must state under oath that they believe the statements in defendant's affidavit to be true; and (2) it must be shown in proof that such persons are disinterested; that proof is not necessarily confined to their testimony alone or at all. It will also be noted that, while the statute directs the defendant to set forth the grounds for the change of venue in an “affidavit,” the supporting proofs are to be made under “oath” by disinterested persons. The statute does not say that such oath shall or even may be by affidavit, and in that respect this case is to be distinguished from Cass v. State, 2 G. Greene, 353. It would probably be true that, if the affidavits of these persons had been received and considered as proofs, the court would not have been permitted to arbitrarily disregard them. Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50; Territory v. Kelly, 2 N. M. 300. But it is manifest from the orders made on the 9th and 12th of November that the court did not consider the proofs as competent, but required them to be made orally in open court. Even assuming that the bare oral statement under oath by the persons so produced as to their belief in the truth of the defendant's affidavit would have fully satisfied the statute in that particular, still the question as to whether they were disinterested was one upon which they were subject to full and searching examination. The right to use ex parte affidavits as proofs in any case is a mere matter of grace and convenience, unless some statute or rule of court provides otherwise in a given case; and the court would have the undoubted right to require the proofs upon a motion to be presented orally in open court. We are not to be understood as holding that proofs upon motions made in the form of affidavits would not be ordinarily sufficient for purposes of review in this court, but we do hold that the license which has grown up in the use of ex parte affidavits has not ripened into...