Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1874-08-10
THE STATE OF NEVADA, REsPON-
DENT, VS.. WILLIAM ROSE
MURGEY, APPELLANT.
OPINION OF pELKNAP, g.:


The only assignment Of error in this
case Is upon the ruling OF the District
Court denying defendants motion for
continuance.
The defendant was indicted upon the
18th day Of February, 1874, for the crime
of murder. Upon the 18th day of March
he was araigned, and the cause set for
trial upon the 9Th day of April, when it
was continued until the 18th day Of
April. A further continuance was then
moved upon defendant affidavit. The
affidavit alleges that subsequently to the
commission of the offense and before
any charge had been made against the
defendant. one of his material witnesses,
named James Bundy. left the State OF
Nevada for the avowed purpose OF visit
ing his home in Great Britain. Before
taking his departure he told defendant
that he would return to the town Of
Phoebe before the month OF September,
1874, and that if his return should be de-
layed he would so write defendant i'm
mediately upon reaching Great Britain.
The affidavit does not state whether de-
PENDANT has received any letter from
Bundy touching his return; non constH
that he did not write that his return
would be DELAYED. 1t does state that the
defendant has been informed that Bundy
arrived at his home in England and in
tended to return to Nevada in short
| time.
The means of this Information should
have been shown to the court 80 that it
| could have considered the probability of
the witness return,
The humanity of the law affords every
reasonable opportunity to defendants in
| criminal cases to obtain their witnesses;
but unles there is an assurance OF their
attendance at the time proposed for the
adjournment continuance will not be
| allowed. In this case the defendant 3
version of the absent witness statement
reveals the uncertainty of his return.
Defendant AYERS that he caused letters
to be written to Bundy after the cause
was set for trial. In the most favorable
view of this statement twentv-s,x days
interviewed during which no effort was
made to communicate with the absent
witness. The object Of these letters is
not stated; but, assuming that they were
for the purpose of ascertaining when
Bundy would return, and to hasten his
return, they fail to show due diligence.
| 1t appears that Bundy stated upon
leaving Phoebe he would visit his home
at Redrouck, in Cornwall, England, that
he has friends in Phoebe whom he di-
rected to send to his address the DAILY
Phoebe Record" SO that he could be in
formed of the status Of defendants case;
and also that he requested these friends
to call from time to time upon defendant.
1t is declared that letters were written to
the absent witness Immediately after the
finding OF the indictment, for the pur-
pose Of obtaining his deposition.
Then it would seem that Bundy's ad.
dress was known to defendant and that
it could be obtained from the persons in
Phoebe who were directed to call upon
him; yet. as reason why no deposition
has been obtained, it is asserted that
this afiant has not attempted to get q
deposition from said witness because OF
the uncertainty of the residence OF said
witness.''
A bare statement of the matter set
forth in the affidavit exposes its incon.
sistencies and destroys its credence. The
efforts, il anywhere made, to obtain the
| deposition OF the witness are lmmaterlal,
since the provisions of the Criminal
Practice Act OF this State do not embrace
cases Of this nature, in which the witness
is out OF the jurisdiction of the court
Estate vs.. Chapman, 6 Nevada. page
800. But the excuse given betrays the
desperation to which defendant wal
driven to avoid his trial.
Granting or refusing q continuanc,
rests in the sound discretion of the Dis
trlct Court. 1t is fully informed of thu
circumstances of the case and its ruling
will be disturbed only when an abuse o
discretion is shown. Its action in de
nying the continuance was correct; an(
il is ordered that the Judgment and orde
appealed from be affirmed.
BELKNAP, j.
We concur: WHITMAN, G. j.
HAwLEY,,J.