The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-12-11
ALBERT STRAUSS. !


Error to the Circuit Court of Warren
county, Hon. U. NJ. Young, Judge.
April 2lst, 1880, plaintiff in error was ill.,
dicted for an assault and battery with in
tent to kill and murder Thomas johnson,
and on The same day was alraigned for
trial. He moved the court for contin-
uance on the grond Of absent witnesses
In support of the motion he filed his afiida-
Wit stating that Ed. Harris and John Dave
ny We're material witnesses in his behalf
and that he expected to prove by them
that he did not cut or strike the prosecutor
as alleged in the Indictment; that he could
not prove this by any other witness, and
that they were present ut the alteration
on which the Indictment is based. He fur
Their stated that he had caused summons to
issue for them which had been returned
"not found" and that he had information
that they were in the city Of Vicksburg
since the summons issued that Daveny, as
he is informed, is in Yazoo City; that Harris
makes his home in Vicksburg but was then
temporarily absent; that he is satisfied that
he can procure their attendance at the
next term of the court; and that he has
been confined in Jail and has had no means
of Knowing of the absence of the wit
nesses until he was brought into court the
day the case was set for trial, 1t was adj
mitted that said witnesses were not exam
ined at the committing trial; nor was Il
summons Issued for them.
The court Overruled the motion and
trial was had resulting in conviction.
There was no proof at the trial that the
said absent witnesses were present at the
alteration. A motion for Il new trial was
Overruled and exceptions taken. The bill
of exceptions contains the recital that 'the
District Attorney permitted the defendant
to read his application and affidavit for
continuance in evidence this the defend
ant refused to do"
w. r. Spears for pltf. in error.
NJ. Green for the State.
GEoRGE,J.
l. 1t is insisted that the court had no dis
erection, under the provisions of the statute,
Code of 1871, $780, as to the granting of the
continuance. This statute provides that, |
. in all applications for continuance it shall
be lawful for the State or the defendant to |
make any admission of any fact sought to |
be proved by the other party, by any alb |
sent witness, and such admissions shall
have the same effect rs if the absent wit
ness, or other evidence, were present III
court, and no more; but if compulsory
process will possibly obtain the attend
lnce of the absent witnesses and the de-
Iendant has had no opportunity of obtain
ny such process, the cause shall be cOntin-
led, unless the defendant desires trial.
2. The full scope and purpose of this
statute is very clearly this and no more; first,
o change the rule laid down in DOmingeS
rs, The State, 7 $. II NJ, 41j, as to the effect
If admissions made by the State as to facts
expected to be proved by an absent wit
less, making such admissions have only
he effect that the testimony of the witness
would have, if he were present; second,
when it has been made out to the satisfac-
ion of the court that the party applying
or Il continuance would be entitled TO 1t
nut for the admission of the evidence OF
he absent witness, then to provide that
uch admission shall not have the effect to
prevent continuance, if the attendance of
he witnesses can be enforced by cOmpul-
Ory process, unless the defendant should
lesre trial.
3. The statute, so far a. it regulates the
light to a continuance, does not apply IN
nv case till it has been first made out to the
abstraction of the court, that, but for
proposed admission of the evidence OF the
bsent witness, a continuance would be
roper. Until that point has been reached,
We cannot consider the statute at all. In
he case at bar il il clear that the court did
IOt consider that the plaintiff in error was
Untitled to a continuance but for an admls- I
ion of the absent evidence.
4. If the action of the court IN holding
hat the showing for continuance was in
efficient to be complained of, it must be /
ested by the rules Ofthe common law, UNI 4
fected by the statute. Tested by these {
ules, it was case clearly within the dis
retiOn Of the judge TO grant or refuse the !
I
:, A Judge is better prepared on motion /
pr new trial to decide upon the propriety
{ an application for a continuance than at Q
: first hearing, and he should always have !
he opportunity Of reviewing his action by
uch A motion, il il be complained OF. Z
looking at this application by the light
brow on it by all the facts, We have little q
oubt but that the conclusion reached by u
he Circuit Judge, that it was without
lerit, is correct. 7
q. We take this occasion 10 say that the 4
'ireuit Judge j. not confined in deciding a
n an appl, alton for a continuance TO 4
pnsiderafiou Of the facts stated in the an \
ayit Of the prisoner. He has the right 10 Q
nquire into the truth Of the statements
pntained in the affidavit, either by hear 4
~ other evidence. or applying his own
nowledge Of what has occurred IN the o
lse up to the time the application Is made.
Judgment affirmed.