Weaver v. State

Decision Date03 January 1900
Docket Number18,897
Citation55 N.E. 858,154 Ind. 1
PartiesWeaver v. The State
CourtIndiana Supreme Court

From the Sullivan Circuit Court.


John S Bays, for appellant.

W. L Taylor, Attorney-General, C. C. Hadley, Merrill Moores Rowland Evans and C. D. Hunt, for State.


Jordan, J.

Appellant, together with one Frank Weaver, was charged by indictment with the larceny of two bales of hay of the value of $ 2, the property of James S. Leach. Upon a separate trial before a jury he was found guilty as charged, and, over his motion for a new trial, was sentenced to be imprisoned in the reformatory prison for an indefinite period within the limits of the statute defining petit larceny.

Appellant submits for our decision but two questions: (1) It is insisted by his learned counsel that the court erred in overruling his motion for a continuance; (2) that the judgment is not sustained by sufficient evidence.

The record discloses that on October 17, 1898, the day of the trial, appellant presented to the court his application for a postponement of the trial, and supported the same by his own affidavit. The cause alleged for a continuance was the absence of a material witness, and the facts which he desired to prove by this witness, and their materiality, are fully shown under the averments of the affidavit. This application the court denied.

Counsel for the State justify this ruling of the court for the reasons, as claimed, that the affidavit in support of the application for a continuance is insufficient in at least three respects: (1) That it does not appear therefrom that appellant believes the facts to be true which he alleged he could prove by the absent witness; (2) that it does not show that due diligence was exercised to obtain the evidence of the witness in question; (3) that it is not shown therein that there is any probability of procuring the testimony of the witness within a reasonable time.

Section 1850 Burns 1894, § 1781 R. S. 1881, and Horner 1897, which relates to the postponement of a trial in a criminal cause, requires, among other things, that the affidavit made in support of the motion for a continuance shall show that due diligence has been used to obtain the absent evidence, and, when the continuance is sought on account of the absence of a witness, it must be shown that there is a probability of procuring the testimony of the witness within a reasonable time; and, further, that the defendant believes the facts to be true to which the witness will testify.

There is an entire absence in the affidavit in controversy of any direct averment or affirmative showing whatever that the defendant believes the facts to be true which he alleges he can prove by the witness in question. Such averment or affirmative showing was requisite in order that the affidavit might respond to the plain requirements of the above statute.

As a general rule, a party to an action, who seeks to postpone the trial thereof, is required clearly to show that he is entitled to such delay, and, where his application is governed by a positive statute, as in this case, before he can demand a continuance, as a matter of right, he must bring himself fully within the requirements of such statute; and the court will not indulge in any inferences or presumptions in aid of the motion or application. Hubbard v. State, 7 Ind. 160; Morris v. State, 104 Ind. 457, 4 N.E. 148.

Appellant alleged in his affidavit that the absent witness, Henry Wilford, "resides in the southwest part of Clay county, Indiana, within a short distance of the Sullivan county line." Upon the question relating to the exercise of due diligence by the defendant to secure the absent evidence, the following facts were averred in the affidavit: "And now said affiant shows unto the honorable court that he has used due diligence to obtain the presence of said witness in this: That, on the 11th day of the present month, said defendant, who is now, and has been for four months prior to this time, confined in the jail of Sullivan county, placed in the hands of one of his attorneys, J. R. Brown, the names of his witnesses to be used in the trial of said case as witnesses for and on his behalf, among said names being the above named witness, Henry Wilford.

"And now defendant shows unto the court that a subpoena was not issued for said witness, Henry Wilford, along [with] the subpoenas for the other witnesses, for the reason that one of the attorneys for the defendant, J. R. Brown, was informed (so he understood) that a subpoena would be issued for said witness and sent to the sheriff of Clay county by one Lee Fenton Bays, who at said time and is now assisting in the law office of his father, John S. Bays, one of the attorneys for the defendant in this case; and having so understood said Bays that he would have said subpoena so issued for said witness, he, said Brown, did nothing further toward subpoenaing said witness.

"And now said defendant says that said Lee Fenton Bays did not so understand that Brown was relying on him to so issue said subpoena, or have the same done."

It has been repeatedly held by this court that an affidavit for the postponement of a trial of a cause must clearly and satisfactorily disclose that the applicant, under the particular circumstances, has exercised due diligence to obtain the testimony of the witness on account of whose absence he seeks to delay the trial. Personal diligence of the party himself, or his agents or attorneys, or a sufficient excuse therefor, must be shown. As a general rule, in such cases, the negligence of the applicant's agents or attorneys must be charged to him. Deming v. Patterson, 10 Ind. 251; Ward v. Colyhan, 30 Ind. 395; Miller v. State, 42 Ind. 544; McDermott v. State, 89 Ind. 187; Burchfield v. State, 82 Ind. 580.

The diligence used by appellant to secure the evidence in question, or the excuse which he offers, is based upon the following facts: Prior to his trial, it seems that he had been confined in jail for about four months. On the 11th day of October, some six days before the day of the trial, which appears to have been commenced on October 17 1898, he shows that he gave to one of his attorneys the names of the witnesses whom he desired to have subpoenaed to testify in his behalf, among the number being the name of the absent witness. His attorney seems to have omitted to have a subpoena issued for this witness, for the reason that he was informed, and understood, that a Mr. Bays, son of associate counsel, would attend to the matter of having the witness subpoenaed. Mr. Bays, it appears, did not understand that he was to discharge this duty, and hence omitted to have the subpoena issued. Certainly these facts do not constitute the diligence which the law exacts, neither do they show a sufficient excuse for the neglect to exercise the required diligence to secure the absent evidence. The mere fact that appellant was in jail...

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