Opinion
04-19-1867
HEWITT v. THE COMMONWEALTH.
Mosby, for the appellant, and The Attorney General, for the commonwealth, submitted the case.
1. A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and although an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous.
2. As a general rule, where a witness for a party fails to appear at the time appointed for the trial, if such party show that a subp oena for the witness has been returned executed, or if not so returned, was delivered to the proper officer of the county or corporation in which the witness resides, a reasonable time before the time for the trial, and shall swear that the witness is material, and that he cannot safely go to trial without his testimony, a continuance ought to be granted, if there be reasonable ground to believe that the attendance of the witness at the next term can be secured; especially if the case has not been before continued for the same cause.
3. Where the circumstances satisfy the court that the real purpose in moving for a continuance is to delay or evade a trial and not to prepare for it, then though the witnesses have been summoned, and the party has sworn to their materiality, and that he cannot safely go to trial without them, the continuance should be refused.
At the April term 1863 of the Circuit court of Bedford county, Wilson C. Hewitt was indicted for an assault and battery committed in February, 1863, upon Rowland D. Buford. This indictment was made upon the evidence of Rowland D. Buford, a witness called on by the grand jury. A summons was thereupon awarded, returnable to the next term of the court, but on the next day, viz: on the 1st of May, on the motion of the attorney for the commonwealth, writs of capias were awarded against Hewitt to the sheriff of every county and the sergeant of every corporation in the state, returnable to the next term.
On the 22d of September, 1863, the defendant was arrested by the sergeant of the corporation of Lynchburg under the process sent to him; and he entered into a recognizance with surety for his appearance on the first day of the next term of the Circuit court of Bedford.
At the April term of the court for 1864 Hewitt appeared by counsel, and an issue was made up on the plea of " not guilty." And the case coming on for trial on the 27th of April, 1864, the jury found him guilty, and assessed upon him a fine of two thousand dollars; for which and the costs the court entered up a judgment.
When the cause was called for trial Hewitt, by his counsel, moved the court for a continuance, on the ground of the absence of material witnesses, viz: John Downes and John Hurley; and in support of his motion offered his own affidavit. This affidavit was full as to the materiality, & c., of the witnesses. It bore date the 23d day of April, 1864. It was admitted that a subpoena had been regularly issued for these witnesses, and had been served on John Downes a short time before he left this state for Baltimore, where he resides; and as to John Hurley, returned not found. A subpoena for Hurley had also been sent to Richmond; and was returned not found. And the sergeant added after the return: " This man has been discharged from Castle Thunder, and don't know where he has gone. T. U. D., Serg't." Hurley was known to have been in Richmond a short time before the subpoena was sent there. He had resided at Liberty until the winter of 1863-4, when he was arrested by the military authorities and sent to Castle Thunder at Richmond.
It was also admitted that Hewitt was in Liberty on the morning of the day the motion for a continuance was made, and that he left in the cars going west; and the affidavit bore date two days before the court commenced.
The court refused to continue the cause, and ruled the defendant to trial, because the court was of opinion that the defendant was attempting to evade a trial by absenting himself from court, so as to prevent a personal examination in open court, on his motion for a continuance. To this opinion of the court, Hewitt excepted; and obtained a writ of error to the judgment.
Mosby, for the appellant, and The Attorney General, for the commonwealth, submitted the case.
OPINION
MONCURE, P.
A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and though an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous. As a general rule, where a witness for a party fails to appear at the time appointed for the trial, if such party show that a subpoena for the witness has been returned executed, or, if not so returned, was delivered to the proper officer of the county or corporation in which the witness resides, a reasonable time before the time for the trial, and shall swear that the witness is material, and that he cannot safely go to trial without his testimony, a continuance ought to be granted. 1 Rob. Pr. old ed. p. 250. The party thus shows, prima facie, that he is not ready for trial, though he has used due diligence to be so; and in the absence of anything to show the contrary, the court ought to give him credit for honesty of intention and to continue the case, if there be reasonable ground to believe that the attendance of the witness at the next term of the court can be secured, especially if the case has not been before continued for the same cause. But circumstances may satisfy the court that the real purpose of the party in moving for a continuance is to delay or evade the trial, and not to prepare for it, and in such case, of course, the motion ought to be overruled.
In this case a motion for a continuance was made by the defendant in the court below, on the ground of the absence of two material witnesses, Downes and Hurley; and he exhibited, in support of the motion, his own affidavit, stating in due form the materiality of the witnesses, and that he could not safely go to trial without their testimony. It was admitted that a subpoena had been regularly issued for said witnesses (directed no doubt to the sheriff of Bedford county, in which the prosecution was pending, though the fact is not so stated in the record), and served on the said Downes a short time before he left the state for Baltimore, where he resided, and returned " not found" as to Hurley. A subpoena for Hurley had been sent to Richmond and returned " not found," with a memorandum made by the officer at the foot of his return in these words: " This man has been discharged from Castle Thunder, and don't know where he has gone. T. U. D., Sgt." Hurley was known to have been in Richmond a short time before the subpoena was sent there. He had resided in Liberty (the county seat of Bedford, in which county the offence was charged to have been committed) till the winter of 1863-4, when he was arrested by the military authorities and sent to Castle Thunder at Richmond. It was also admitted that the defendant Hewitt was in Liberty on the morning of the day on which the motion was made, and that he left in the cars going west, and the affidavit bore date two days before the court commenced. The court refused to continue the case, and ruled the defendant into trial, " because," as stated in the bill of exceptions, " the court was of opinion that the defendant was attempting to evade a trial by absenting himself from court, so as to prevent a personal examination in open court, on his motion for a continuance." The case was then tried, and the jury found the defendant guilty and assessed his fine at $2,000, for which and the costs of the prosecution the court rendered judgment.
The offence for which the defendant was tried was an assault and battery on Rowland D. Buford, which would appear from the amount of the fine to have been an aggravated offence; though as the fine may have been, and probably was, assessed in Confederate currency, we cannot well estimate its true amount in good money. The indictment was found on the 25th of April, 1863, and though found on the testimony of Buford on whom the offence was charged to have been committed, yet it appears that he was not a voluntary prosecutor, but was called on by the grand jury to give evidence. When the indictment was found, a summons was awarded to answer it, returnable to the next term. But on a succeeding day of the same term, to wit, on the 1st of May, 1863, on the motion of the attorney for the commonwealth and for reasons appearing to the court, it was ordered that writs of capias be awarded against the defendant, directed to the sheriff of every county and sergeant of every corporation in the state, returnable to the next term. One of these writs, directed to the sergeant of the city of Lynchburg, was executed on the defendant in that city on the 22d of September, 1863, when he entered into a recognizance with surety for his appearance on the first day of the next term of the court, which was to be in a few days thereafter. As stated in the petition, there was no session of the court at the time fixed for that term, nor until the following spring term in 1864, to which time the defendants' recognizance stood over by operation of law, and it bound him for his appearance then as if it had been taken with express condition therefor. Code, ch. 161, § 15. Instead of making his appearance then, in discharge of his recognizance, and although he was in Liberty, the county seat of Bedford, on the morning of the day on which the case was called for trial, yet he left in the cars going west on the same morning (for what place bound, or on what business does not appear), leaving his affidavit aforesaid to be used as the ground-work of a motion for a continuance. Under these circumstances we cannot say that the court was not warranted in the opinion, " that the defendant was attempting to evade a trial by absenting himself from court, so as to prevent a personal examination in open court on his motion for a continuance; " And certainly we cannot say that the court plainly erred in refusing to continue the case.
JUDGMENT AFFIRMED: but without damages.