White v. Commonwealth
| Decision Date | 04 November 1882 |
| Parties | White v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
1. Upon a motion for continuance because of the absence of a witness, where the evidence is material, and diligence has been used to secure the attendance of the witness, and there are reasonable grounds to believe that his presence will be had by a continuance, the continuance should be granted although the witness be a non-resident.
2. Upon the question of the identity of the accused, the court improperly rejected the testimony of a witness who knew the accused at the time the bonds, with the larceny of which he was charged, were alleged to have been purchased from him in Cincinnati, that he saw there a person so strongly resembling the accused that he twice approached the person with the intention of speaking to him, believing him to be the accused.
3. Proof of character in aid of the presumption of innocence should be limited to the time of the discovery of the commission of the offense, and it was therefore error in this case to extend it to the date of arrest. Such proof is always confined to the impression that the community may have received from the general bearing of the accused, and is not allowed to extend to particular acts or conduct in special cases.
4. During a trial for felony where the bail appears, is sufficient, and agrees to stand bound on the bond, the accused is entitled to remain on bail until the cause is submitted to the jury; and it appearing in this case that the personal liberty of the accused was necessary to the preparation of his case, the refusal of the court to allow him to stand on his bond is a reversible error.
5. Under an indictment for the larceny of municipal bonds evidence that the holder of the bonds purchased them in open market for full value, that they were genuine, and that the person who purchased them from the accused paid full value was competent; and, taken in connection with the bonds, which were read in evidence, authorized the jury to find that they were issued by authority, signed, executed, and delivered, as charged in the indictment.
APPEAL FROM FAYETTE CIRCUIT COURT.
BRECKINRIDGE & SHELBY, MORTON & PARKER, AND THOMPSON & THOMPSON FOR APPELLANT.
1. The court erred in refusing a continuance to appellant. The fact that the witness is a non-resident does not change the rule nor the propriety of continuing the case. (Arch. on Crim Prac. and Plead., 568; Whart. on Crim. Law, vol. 3, sec. 3021; Morgan v. The Commonwealth, 14 Bush, 111.)
2. Appellant was entitled to stand on his bail and be free to attend to his case. Sections 189 and 229, Criminal Code, should be so construed as to harmonize. (16 B. Mon., 407; 10 Bush, 16; 5 Mon., 157; 12 Bush, 235.)
3. The proof admitted by the court in regard to character is error. No evidence should have been permitted subsequent to April 4, when the theft was discovered. (22 Pick., 394; 1 Winst., 151; 119 Mass. 342; 116 Ib., 350; 2 Ib., 303; 68 Md. 54; 51 Ills., 231; Whart. on Crim. Law, sec. 637; 11 Cush., 241.)
4. When the evidence showed that the bonds charged to have been stolen were issued by authority of the state of Ohio, the court should have given a peremptory instruction for appellant.
P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.
No brief.
Appellant was indicted on the charge of stealing certain municipal bonds of the city of Cincinnati, in the State of Ohio, tried, convicted, and sentenced to the penitentiary for two years.
Counsel for appellant complain, first, that the court erred in refusing a continuance on account of the absence of one Straus, a resident and citizen of Cincinnati, Ohio. The affidavit for continuance shows that Straus was in the habit of visiting Lexington, Kentucky, the place where the trial was pending; that he had been served with subpœ na, and that he had promised to appear at the next term of the court, and it is alleged that appellant could secure his attendance at the succeeding term. It appears that the refusal to grant a continuance for this witness was based entirely upon the fact that he was a non-resident of the State, no question having been made as to the materiality of the evidence, as there could not be, because it is stated in the affidavit that, at the time it is attempted to prove that the appellant sold the bonds in the city of Cincinnati, he was engaged in business in the presence of the witness, and at a place different from that at which it is attempted to prove that the sale of the bonds occurred. The materiality of this evidence is increased by the fact that Dunlap, who claims to have purchased the bonds from appellant, had never before seen him, and as appellant appears to have no marked characteristic of features, form, or carriage by which to distinguish him from the common herd, the probabilities of a mistake in identification are much greater. Ordinarily, where the evidence of the absent witness is material, where reasonable diligence has been used to secure his attendance, and there are reasonable grounds made to appear that the presence of the witness can be had by a postponement or continuance, the postponement or continuance should be allowed. Here the materiality is unquestioned; there was no want of diligence on the part of appellant, and upon the face of the affidavit, which is not contradicted, there appear reasonable grounds to believe that the attendance of the witness could have been had at the next term of court. Whether the witness is a resident of the state or non-resident and absent from the state, the inquiry in either case is the same: Is the evidence material, has diligence been used to secure his attendance, and are there reasonable grounds to believe that the presence of the witness will be had by a continuance? The question is not whether the court can enforce the attendance, because if that were true a continuance could not be had on account of the absence of a citizen of this state, who was at the time within the jurisdiction of another sovereignty. In neither case could coercive process be applied. The right to a continuance in either case would depend upon the probabilities of the witness coming within or submitting himself to the jurisdiction of the court. The court erred in refusing the continuance.
Another question is made by counsel as to the admissibility of evidence, which is the more important by reason of its relation to the question just discussed. Appellant offered to prove by Vanarsdale, who was present in court, that he had for years been intimately acquainted with appellant; that at the time Dunlap testifies to having purchased the bonds of a person answering in general the personal appearance of appellant he, Vanarsdale, was in the city of Cincinnati, and there met, at or about the time of the alleged sale of bonds, a...
To continue reading
Request your trial
-
Maxey v. State
... ... The ... proof on behalf of the state (without setting it out in ... detail) tended to show that the prosecutrix was led by a ... young white boy, Tommy Downs, to a place about one quarter of ... a mile from the depot at Van Buren, and turned over by him, ... in the woods near the Morrell ... ...
- White v. The Commonwealth