Opinion
02-21-1911
STATE v. HONEY.
W. Watson Harrington, Deputy Atty. Gen., for the State. Richard R. Kenney and Henry Ridgely, for defendant.
Walter Honey was indicted for assault to commit rape. Application for continuance granted.
Argued before PENNEWILL, C. J., and BOYCE and CONRAD, JJ.
W. Watson Harrington, Deputy Atty. Gen., for the State.
Richard R. Kenney and Henry Ridgely, for defendant.
Application by defendant for continuance, on affidavit alleging the absence of a materia], nonresident witness. The state objecting to the sufficiency of the affidavit, it was held sufficient.
Counsel for defendant moved for a continuance of the above stated case until the April term, 1911, basing said motion upon an affidavit of the defendant, in due form, alleging "that he has a material witness who is now living in Chester, Pa.; that the name of said witness is William Butler; that this deponent is unable to secure the attendance of said witness at this term of court, but that he believes he will be able to secure his attendance at the next term; that the nature of the testimony of said witness is that this deponent did not commit, the act with which he is charged, the said witness being in company with this deponent at the time when said act is alleged to have been committed; and that this deponent believes he cannot safely and properly go to trial without said witness."
The state objected to the sufficiency of the affidavit, because it did not clearly state what facts the said absent witness would testify to, and particularly that the averment as to the time when the alleged offense was committed was insufficient.
THE COURT held that the affidavit was sufficient, and the case was continued.