Truitt v. Commonwealth

• Decision Date: 26 October 1917
• Citation: 197 S.W. 797,177 Ky. 397
• Parties: TRUITT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

197 S.W. 797

177 Ky. 397

TRUITT v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 26, 1917

Appeal from Circuit Court, Greenup County.

Thomas Truitt was convicted of carrying concealed a deadly weapon and he appeals. Affirmed.

A. S Cooper, of Greenup, for appellant.

Charles H. Morris, Atty. Gen., and D. M. Howerton, Asst. Atty. Gen for the Commonwealth.

HURT J.

The appellant, Thomas Truitt, was indicted in the Greenup circuit court, at its September term, 1914, for the offense of carrying concealed upon or about his person a deadly weapon other than an ordinary pocketknife. He was arrested upon a bench warrant issued upon the indictment on the 9th day of May, 1916, and was admitted to bail to answer the indictment, and thereafter continued under bail until his final trial. He was tried on the indictment on the 11th day of July, 1916, when, upon a failure of the jury to make a verdict, the cause was continued until the following term of the court, which commenced on the third Monday of October thereafter. On the 18th day of October the indictment was regularly called for trial, when the appellant failed to appear in person, but appeared by attorney.

The commonwealth's attorney having announced ready for trial the appellant's attorney answered not ready, and in support of the motion filed his affidavit. The affidavit stated that the continuance was desired because of the absence of a witness, who would state "that no gun was drawn, concealed or otherwise; the charge being carrying concealed deadly weapons." The name of the witness was not given, nor did the affidavit state that the witness had ever been served with a subp na to attend, or recognized, or that any subp na had ever been issued for him, nor any other fact showing any diligence to procure the attendance of the witness. Neither did the affidavit state any belief as to whether or not the statements of the witness would be true when made, or that the witness was absent without the procurement or consent of the appellant. The affidavit thus lacked all the necessary statement of facts to make a sufficient ground for continuance on account of the absence of a witness. The affidavit did, however, contain a statement to the effect that there had been a former trial of the case, at which the jury had failed to agree upon a verdict, and that the appellant "was and is of the opinion that no further effort would be made by the commonwealth, and for that reason the defendant and witness to the fact are absent." The latter statement is substantially saying that the appellant was absent voluntarily, and without intention to be present. The court, as a matter of course, overruled...