Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-08-14

PENDANT was indicted February 10,
1874. The cause came on for trial
March 9Th Witnesses residing in the
State of Nevada had promised de-
fendant that they would be- present,
and relying upon their promise he
omitted to take their dispositions. 1t
was held that continuance should
have been granted
Counsel for respondent contends
that this error was cured by the evil
dence given on the trial of the case
We think the said evidence did not
work a cure The evidence was con-
f1icting, but it did not cure the error
mentioned.
On proper showings being made,
motions for continuances should be
granted; the court always has the
power to prevent abuse of such mo-
tons by imposing terms on which the
motions are granted.
Judgment reversed and cause re-
manded for a new trial
l concur: Belknap, J.
Massey, c. J., Dissenting.
I cannot concur. Our stature pro-
vides that motion to postpone trial
on the ground of the absence Of evil
dence shall only be made upon affidav-
it showing the materiality Of the evil
dence expected to be obtained and that
due diligence has been used to pro-
cure it. Comp. l.. Sec. 3255)
| While it is true the affidavit upon
which appellant based his motion
states, that he had used all possible
and practicable diligence to obtain the
attendance of the Friedmans, it utter
ly fails to state what. if anything, was
done to that end The statment is a
mere conclusion, and not a fact. 1t
should have shown the facts-what
steps had been taken to procure the
evidence. And upon such showing, it
became the duty of the court to say
whether due diligence had been used.
1t appears from the affidavit that the
witnesses resided in California at the
time the cause was set for trial. which
fact the appellant we'll knew. He al
so knew that their evidence was ma
terial to his defense. He took nc
steps whatever to procure their testi-
mony, but relied solely upon their
promise to be present at the trial.
promise which he could not enforce
, by any process of the court. 1t seems
to me that, under the provisions of the
+ statute cited which makes no distin
ction as to the showing required by
the affidavit on account OF the alb
, sence of evidence or without the ur
iSdictiOn of the court, some legal step:
should have been taken to procur,
such testimony in order to authorize
the court to say that due diligence hat
been used. 1t would be just as reas
+ enable, under the requirements of TIL
y statute. to allow continuances on &C
; count OF absent witnesses within th
:, jurisdiction of the court under pre-
mise to attend without service of pro
cess. as to allow Continu4nces becaus
of the absence of evidence of witness
es living without the jurisdiction OF tn
Il court, under promise to attend tn
Y trial, where no attempt has been mad
to take the deposition of such witnes
: ses, in a case where such depostio
. could have been taken before trial. N
r court, so far as | have been able t
= find, has ever held that the pronis
= of a witness within the jurisdiction {
: the court to attend the trial excuse
10 the failure of the party to use til
r. process OF the court to procure the al
!, tel dance OF such witnesses.
- All the authorities seem to hold tn
n other way
a. Ency Pl - Pr. S62 Note H.
p The facts surrounding a particul;
7 case might create an exception to til
", general rule, and | believe that tt
! sules of the cases cited in the opinio
y are based upon the peculiar facts su
" rounding each case. In the case
p bar, it appears that the dispositions
We the witnesses could have been taken
;, time for use upon the trial Nothin
was done in that direction, and l {
~ not believe that appellant can excu
his failure in that respect by relyir
or upon their promise to be present.
ne Filed August 18th, 1901.
Eugene Howell,
he Secretary of State and exotic
r Clerk of the Supreme Court.
Filed with printer for publicatit
August IL, 1901. Eugene Howell.