Corpus Juris: Being a Complete and Systematic Statement of the Whole Body of ...

[§ 877] (9) Surprise (a) In General. Where it is made to appear to the satisfaction of the court that the applicant for a continuance is so taken by surprise by some unexpected occurrence or by the introduction of unexpected testimony which, by reasonable diligence, he could not have anticipated that a fair trial cannot be had, a continuance or postponement should be granted.32 However, it is not error to refuse a continuance on the ground of surprise at the introduction of evidence, when defendant should from the nature of the case naturally expect or anticipate the evidence, or when by law he is chargeable with knowledge that such evidence would be properly competent.33 While the granting or the denial of a continuance on the ground of surprise is a matter largely within the discretion of the trial court, an application based on this ground is not precluded by the previous overruling of an ordinary application.35

Election as to date of offense. Where the state eleets to prosecute for an offense committed on some date other than that alleged in the information, in order to procure a continuance on that ground defendant must show that he has a defense against the date selected by the state.30

[§ 880] cc. Introduction of Unexpected Witnesses. Where a defendant is surprised by the introduction of witnesses whose names were not indorsed on the information at the time of filing, a continuance should be granted allowing him time and opportunity to examine their character and credibility and to prepare to meet their testimony.* A continuance in such a case is not, however, a matter of right upon the mere allegation of surprise.** Defendant must make affidavit or otherwise show to the court that he is in fact surprised by the introduction of such testimony.45 Moreover, it has been held that, where there is nothing to show that the prosecuting attorney refrained from indorsing the names of the new witnesses to gain an undue ad35. McKinney v. State, 8 Tex. A. | conviction under the former indict

Trial by court instead of by jury. The fact that defendant, cited to appear in the prosecution before a jury, is tried by a court of law, because a jury trial is improper, is not a sufficient ground for a continuance.37

[§ 878] (b) What May Constitute-aa. Absence of Expected Witness. Where defendant is surprised by the absence of a witness who has been present during the trial, or whom he had every Ind.-Walker v. State, 136 Ind. 663, 36 NE 356. Mo.-State v. Decker, 217 Mo. 315, 116 SW 1096.

N. D.-State v. Gordon, 32 N. D. 31, 41, 155 NW 59 [quot Cyc].

Tenn.-Hughes v. State, 126 Tenn. 40, 148 SW 543, AnnCas1913D 1262. Tex-Hutcherson v. State, 62 Tex. Cr. 1, 136 SW 53; Hubbard v. State, (A) 67 SW 413.

Utah.-State v. Anselmo, 46 Utah 137, 148 P 1071.

[a] Prejudice of jury by press comments. The postponement of a criminal trial should be ordered on motion of accused where the court is satisfied upon the affidavits filed on the motion that the minds of the jurymen in attendance have been affected to the prejudice of accused by the publication of press notices stating that accused had confessed the crime.

Rex v. Davies, [1906] 1 K. B. 32; Rex v. Willis, 23 Man. 77, 9 DomLR 646, 49 CanLJNS 309, 23 WestLR 702.

32. Johnson v. Com., 107 SW 768, 32 KyL 1117 (alleged confession of defendant); Webb v. State, 9 Tex. A. 490; McKinney v. State, 8 Tex. A. 626; Reg. v. Flannagan, 15 Cox C. C. 403.

33. Fla-Moore v. State, 59 Fla. 23, 52 S 971.

Ga. Fraser v. State, 112 Ga. 13, 37 SE 114; King v. State, 21 Ga. 220. Ind. T.-Ellis v. U. S., 6 Ind. T. 291, 97 SW 1013. Iowa.-State v. Seery, 95 Iowa 652, 64 NW 631.

Kan.-State v. Bailey, 77 Kan. 850, 91 P 1066.

Tex.-Shanklin v. State, 68 Tex. Cr. 417, 152 SW 1063; Sweeney v. State, 59 Tex. Cr. 370, 128 SW 390; Hopkins v. State, 43 Tex. Cr. 261, 64 SW 933; Morrison v. State, 40 Tex. Cr. 473, 51 SW 358.

Wis-Laev v. State, 152 Wis. 33, 139 NW 416.

34. State v. Fulwider, 28 S. D. 622, 134 NW 807.

626.

36. Williams v. State, 48 Tex. Cr. 325, 87 SW 1155.

37. Peo. v. Satirichi, 8 Porto Rico 490; Peo. v. Dessús, 8 Porto Rico 486.

[a] The reason for this is that the same elements of proof which can be used in a trial before a jury can also be used in a trial before a court of law. Peo. v. Satirichi, 8 Porto Rico 490; Peo. v. Dessús, 8 Porto Rico 486.

38. Smith v. State, 40 Tex. Cr. 391, 50 SW 938; Higginbotham v. State, 3 Tex. A. 447.

39. Price v. Peo., 131 Ill. 223, 23 NE 639; Joseph v. Com., 1 SW 4, 8 KyL 53; Cotton v. State, 4 Tex. 260.

40. State v. Thomas, 40 La. Ann. 151, 3 S 589.

41. Foreman v. State, 95 Miss. 77, 48 S 611; Hazelton v. State, 8 Okl. Cr. 184, 126 P 703: Kimbrell v. State, 7 Okl. Cr. 354, 123 P 1027; Smith v. State, 4 Okl. Cr. 328, 111 P 960, 140 AmSR 688.

[a] A duplicitous information may be amended; yet, if such amendment operates as a surprise to a defendant, reasonable time must be allowed him to prepare for trial. Kimbrell v. State, 7 Okl. Cr. 354, 123 P

1027.

[b] On substitution of a new indictment for a different crime in the midst of the trial under the first indictment, there should be a continuance to another day or term. Head v. Com., 174 Ky. 841, 192 SW 861.

ment does not make this a new case. The new indictment was properly substituted for the defective one, and since no showing was made that additional proof was thereby made necessary, or that plaintiff in error was otherwise taken by surprise by the return of this second indictment, he was properly put upon trial under it. In our opinion this proceeding should be governed largely by the rules applicable to amendments. While an indictment is not amendable by the State's attorney, yet the same thing is accomplished when a new indictment is returned to obviate defects in a previous one").

43. Ida.-State v. Silva, 21 Ida. 247, 120 P 835.

Iowa.-State v. McClain, 130 Iowa 73, 106 NW 376.

Ky. Lindle v. Com., 111 Ky. 866, 64 SW 986, 23 KyL 1307; Lowry v. Com., 119 Ky. 691, 63 SW 977, 23 KyL 1240.

Mich.-Peo. v. Price, 74 Mich. 37, 41 NW 853; Peo. v. Evans, 72 Mich. 367, 40 NW 473.

Okl.-Ostendorf v. State, 8 Okl. Cr. 360, 128 P 143; Ford v. State, 5 Okl. Cr. 240. 114 P 273.

Tex.-Raleigh v. State, (Cr.) 168 SW 1050; Rubio v. State, 50 Tex. Cr. 177, 95 SW 120.

Wash.-State v. Lewis, 31 Wash. 515, 72 P 121.

44. Peo. v. Symonds, 22 Cal. 348; State v. Roberts, 95 Kan. 280, 147 P 828.

45. Peo. v. Symonds, 22 Cal. 348; Ostendorf v. State, 8 Okl. Cr. 360, 128 P 143 (holding that defendant must set up the facts which constitute such surprise, must also state how he would be injured by the reception of such testimony, why he should have additional time for preparation for trial on account of such testimony, and what evidence, if any, he could produce, if given such time, to rebut the testimony of such wit

42. Hawkins v. State, 7 Okl. Cr. 385, 123 P 1024. See also O'Donnell v. Peo., 224 III. 218, 223, 79 NE 639, 8 AnnCas 123 (where the court said: "The case had been reached in regular order and stood for trial when it was called, and the fact that the prosecuting attorney deemed it advisable to procure a more specific charge in the indictment on the same facts which were relied on for, a ness).

vantage, the court is not bound to grant a continuance. Thus, where there is no fraud or deception practiced on a defendant, and he goes to trial under the impression that the principal witness for the state will not be present to testify against him, the introduction of such witness will not entitle him to a continuance.47 So, where defendant has been warned that a certain person may testify against him, he cannot thereafter claim to be surprised.48

[881] dd. Unexpected Testimony of State's Witnesses. Where, on a trial, witnesses for the state testify to facts or circumstances which from the nature of the case are wholly unexpected by defendant, or in actual or apparent contradiction of their former testimony, thereby taking defendant by surprise, a postponement or a continuance sufficient to procure disproving evidence should be granted, except where most of the witnesses desired for the purpose are present in the court room.50 It has been held, however, that defendant must disclose the manner in which he expects to meet the new phase of the evidence. Of course defendant cannot complain of a surprise occasioned by his own negligence,52 as, for instance, where he has made no effort to ascertain what the probable testimony of such witness would be.53

[ 882] ee. Unexpected Testimony of Defendant's Witnesses. The defendant in a criminal case cannot as a rule claim a continuance on the ground that he is surprised by the testimony offered or withheld by his own witnesses,54 particularly where he has been warned as to what the testimony of the witness would be.55 Nor can a defendant be said to be surprised by a witness' testimony which is the same as that given on the examining trial.56

Under a general statute authorizing a continuance, where it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so

46. State v. Myers, 198 Mo. 225, 94 SW 242. See also Polk v. State, 69 Tex. Cr. 53, 152 SW 907 (holding that, where the state, before defendant announced himself ready for trial, gave him the names of all the witnesses used at the trial, his request for a postponement because the state's attorney had not indorsed the names of all the witnesses on the indictment was properly denied).

47. Townsend v. State, 5 Tex. A. 574.

48. State v. Peters, 258 Mo. 334, 167 SW 520.

49. Ky.-McCreary v. Com., 163 Ky. 206, 173 SW 351; Day v. Com., 120 SW 296; Lowry v. Com., 63 SW 977, 23 KyL 1240; Rankin v. Com., 82 Ky. 424.

Mo.-State V. Newsum, 129 Mo. 154, 31 SW 605.

N. M. Terr. v. Gallegos, 17 N. M. 409, 130 P 245.

S. D.-State v. Otto, 38 S. D. 353, 161 NW 340.

Tex.-Richardson v. State, 57 Tex. Cr. 285, 122 SW 560; Rankin v. State, 57 Tex. Cr. 132, 122 SW 25; Shulze v. State, 28 Tex. A, 316, 12 SW 1084; Withers v. State, 23 Tex. A. 396, 5 SW 121; Hodde v. State, 8 Tex. A. 382.

Eng. Reg. v. Flannagan, 15 Cox C. C. 403.

taken by surprise that a fair trial cannot be had, it would seem that, under a proper showing, a defendant surprised by the testimony of his own witness would be entitled to a continuance.57

[ 883] ff. Unexpected Withdrawal of Counsel. Where the leading or material counsel for a defendant suddenly withdraws from the case during the trial, it is error to refuse a continuance to give the new counsel time to prepare the defense,58 except perhaps where defendant is otherwise well represented.59

[§ 884] (10) Procurement of Affidavits for Change of Venue. It is not error for the court to refuse to continue or to postpone the trial of aecused in order to afford him an opportunity to secure affidavits in support of a change of venue, especially where he has had ample time to take the steps necessary to make the application for such change, or where there is nothing in his affidavit or in the record to show that he can produce a single witness or any testimony other than, or different from, that offered at the trial. So too the fact that there was not sufficient time between the day of arraignment and the day set for the trial of accused to give the required notice for a motion for a change of venue did not entitle him to a continuance, especially in view of the fact that the statute provides that the adverse party may waive the notice, and that the court may shorten or extend the time for the hearing of such motion. continuance asked by defendant, on the magistrate's overruling his motion for a change of venue, to enable him to apply for mandamus to compel the change, is properly refused, his remedy being by appeal.64

[§ 885] (11) Objections to Jury. Where there is an objection to the formation or personnel of the jury which could have been raised properly by a challenge, such objection cannot be availed of by a motion for a continuance,65 especially where de

50. Blair v. State, 72 Nebr. 501, 101 NW 17.

51. Dixon v. State, 46 Nebr. 298, 64 NW 961.

52. Grant v. State, (Tex. Cr.) 179 SW 871; Salinas v. State, 65 Tex. Cr. 18, 142 SW 908; Evans v. State, 13 Tex. A. 225.

53. Grant v. State, (Tex. Cr.) 179 SW 871; Salinas v. State, 65 Tex. Cr. 18, 142 SW 908; Richardson v. State, 49 Tex. Cr. 391, 94 SW 1016; Evans v. State, 13 Tex. A. 225.

54. Wing v. Com., 7 KyL 227, 13 Ky. Op. 565; Rankin v. Com., 6 KyL 407.

[a] Illustrations.—(1), The fact that a material witness had testified in favor of accused on a former trial, and when introduced on a later trial stated that he knew nothing about the facts, and that his former testimony was not true, would not necessitate a continuance, where it appeared that he had been threatened with violence by an unknown party if he again gave the same testimony, although the counsel for accused knew of the threat, but did not know before the witness was introduced that he would not testify as before. Wing v. Com., 7 KyL 227. (2) The facts that a witness for accused who had been sworn had, while on the stand, made admissions affecting his own credibility, and before he could be recalled and sworn had fled, were no grounds for discharging the jury and continuing the case. Rankin v. Com., 6 KyL 407.

But see Eatman v. State, 139 Ala. 67, 36 S 16 (holding that the court has discretion to refuse a continuance to procure witnesses to impeach a witness for the state whose connection with the case was first shown 55. State v. Peters, 258 Mo. 334, by defendant's testimony).

167 SW 520.

56. Bailey v. State, 37 Tex. Cr. 579, 40 SW 281.

57. Webb.v. State, 9 Tex. A. 490. 58. Jackson v. State, 88 Ga. 784, 15 SE 677; Wray v. Peo., 78 Ill. 212: Claxon v. Com., 30 SW 998, 17 KyL 284; Peo. v. Bitzkus, 166 II. A. 396. But compare State v. Sonnenschein, 37 S. D. 139, 156 NW 906 (where defendant made no explanation as to his change of counsel immediately before trial, such fact may be disregarded on motion for a continuance). 59. Marchan v. State, 45 Tex. Cr. 212, 75 SW 532.

60. Wall v. State, 18 Tex. 682, 70 AmD 302; Turner v. State, 48 Tex. Cr. 585, 89 SW 975.

v. Com., 51 SW

61. McNamara 786, 21 KyL 539. 62. Graham v. Com., 164 Ky. 317, 175 SW 981.

63. State v. Bethune, 86 S. C. 143, 67 SE 466.

64. State v. Barnett, 98 S. C. 422, 82 SE 795.

65. Richardson v. State, 191 Ala. 21, 68 S 57 (failure to serve the jurors drawn); Humphries v. State, 100 Ga. 260, 28 SE 25; Smith v. State, 7 Ga. A. 252, 66 SE 556; State v. Hoozer, 26 La. Ann. 599; McGaughey V. State, (Tex. Cr.) 169 SW 287; Bateman v. State, (Tex. Cr.) 44 SW 290. See also West v. State, (Ga. A.) 91 SE 216 (where the sheriff, before the call of the case for trial, remarked that "Bob West [the defendant] was a very good negro, but that he would gamble or skin," and this remark was made the basis for a motion for continuance of the case for trial by

fendant has waived his right to quash the venire and no objectionable juror is imposed upon him.66 The fact that the jury list is irregular; that the regular jury are disqualified, from prejudice or otherwise, to sit in the case;s that the jurors have heard the evidence in a previous case against defendant, or one involving the same evidence or witnesses,70 or have commingled with jurors from whom the jury were to be selected; that there was a mistake in the name of a person summoned as a juror;72 that a witness whose name was indorsed on an information was returned as a juror for the term;73 or that the jury for the week have been excused does not constitute ground for granting a continuance. Likewise the mere published report that the prosecutor has stated that he has no confidence in the jury panel is not sufficient ground for a continuance.75

[ 886] (12) Pendency of Civil Suit Involving Same Question. While there may be peculiar circumstances sufficient to warrant a court in delaying the trial of a criminal prosecution for a reasonable time on account of the pendency of a civil suit involving the same question,76 the mere existence of such suit is not of itself sufficient ground," especially where it could not be used in evidence for or against either party,' or where it could have no weight in the determination of the criminal charge; nor is the fact that a special plea in abatement has been overruled ground for a continuance.80 Where an indictment and a civil action are pending at the same time for the same assault and battery, it has been held that the court will not continue the criminal prosecution until the civil action is decided, if the party injured is not to be used as a witness for the prosecution.81

[§ 887] (13) Pendency of Another Indictment. The pendency of another indictment or information under which there has been no jeopardy is not ground for a continuance of a trial sought on an indictment or information presented against defendant for the same offense.82 Nor is one entitled to a continuance because charged with a similar, but separate and distinct, offense in another court.8

[§ 888] (14) Convictions for Another Offense. Where defendant has been convicted of a certain offense and an appeal has been taken, a trial against him, under the same statute, upon the same state of facts, and upon the ground of the case already pending in the appellate court, and involving the same questions, should be continued until the determination of the former case in the appellate court,84 although the mere fact that accused has been convicted of another offense and is at the time awaiting sentence is not ground for a continuance on a charge of an entirely different offense.85 Likewise the fact that accused is serving a sentence under a prior conviction of a distinct crime is no ground for postponing his trial until the expiration of such sentence.86 It has also been held that the court is justified in refusing a continuance to a defendant put on trial for murder, even though, at the same term of court, he has been convicted of another murder.87

Former jeopardy. Where the prosecution is based on an act upon which defendant has already been convicted of an offense, a motion to postpone the trial until the conviction is finally disposed of on appeal should be granted.88 Thus where, on trial of accused, it appeared that he had been convicted previously on the same facts as an accessary, and that he had appealed therefrom, his motion for a postponement until the final disposition of such case, in order that he might plead either former conviction or former acquittal, should have been granted.89 [ 889] (15) Pendency of Appeal by Material [§ Witness Convicted of Perjury. Where a material witness for accused cannot testify because convicted of perjury, the fact that an appeal is pending from such conviction is sufficient ground for granting a continuance; 90 and the refusal of the court to grant a continuance in such case is prejudicial error depriving accused of a substantial right.91

70. Sutton v. State, 18 Ga. A. 762, 88 SE 1005; Murmutt v. State, (Tex. Cr.) 67 SW 508.

another jury, whereupon the court | Tex. Cr. 471, 165 SW 605; Grant v. ordered the entire panel of jurors State, 44 Tex. Cr. 311, 70 SW 954; to be put upon the voir dire, required Murmutt v. State, (Tex. Cr.)67 SW 508. the statutory voir dire questions to 69. Brown v. Tuscaloosa, 12 Ala. be propounded to each juror, and A. 608, 67 S 780. in addition inquired of each juror whether he heard the remark of the sheriff, and whether such remark would influence him upon the trial, [a] For example, "The court propand especially instructed the jurors erly overruled the motion for a conthat the case should be tried accord- tinuance, based on the ground that ing to the evidence, and not upon the the father of the accused had been remark of the sheriff, and it was held tried for the same offense on the day that the motion was properly over-previous, that both cases involved ruled). the same evidence and the same witnesses, and that the jury present in the court during the trial of the father would not be a competent jury on this trial." Sutton v. State, 18 Ga. A. 162, 88 SE 1005.

66. Chandler v. State, 60 Tex. Cr. 329, 131 SW 598.

71. Hays v. State, 16 Ga. A. 20, 84 SE 497.

72. Hammond v. State, 147 Ala. 79, 41 S 761; State v. Dodson, 136 La. 185, 66 S 773 (holding that the error in writing "Frant," instead of "Grant" on a copy of a venire served on the accused does not require a

[a] For example, although the absence of a large number of the special venire would have been ground for quashing the venire, yet defendant having declined and refused to move to quash it, but having elected not to do so, even on suggestion of the court, there was a waiver, so that he cannot complain of the court's refusal to delay trial in order to obtain the presence of such veniremen under attachment, espe- continuance). cially where all his challenges to talesmen were sustained, and no objectionable juror was imposed on him. Chandler v. State, 60 Tex. Cr.

329, 131 SW 598.

67. State v. Duperier, 115 La. 478, 39 S 455.

68. Whitehead v. State, 97 Miss. 537, 52 S 259; Branch v. State, 73

73. Peo. v. Williams, 118 Mich. 692, 77 NW 248.

74. Haney v. State, 52 Tex. Cr. 545, 107 SW 858.

75. State v. Overton, 85 N. J. L. 287, 88 A 689.

76. Com, v. Bliss, 1 Mass. 32; Taylor v. Com., 29 Gratt. (70 Va.) 780.

77. Com. v. Hurd, 177 Pa. 481, 35

A 682. See also State v. Loyacano, 135 La. 945, 66 S 307 (recognizing the rule); Taylor v. Com., 29 Gratt. (70 Va.) 780.

78. Peo. v. Petersen, 60 App. Div. 118, 69 NYS 941, 15 N, Y. Cr. 421. 79. Peo. v. Petersen, 60 App. Div. 118, 69 NYS 941, 15 N. Y. Cr. 421. 80.

81. 82.

Carter v. State, 75 Ga. 747. Com, v. Elliott, 2 Mass. 372. Reed v. Terr., 1 Okl. Cr. 481, 98 P 583, 129 AmSR 861. 83. Jackson v. State, (Tex. Cr.) 178 SW 521.

84. White v. Com., 79 Va. 611. But see State v. Rose, 124 La. 526, 50 S 520 (holding that accused, pending his appeal from a conviction, is not entitled to a stay of proceedings against him on other charges under the same statute).

85. Callahan v. U. S., 195 Fed. 924, 115 CCA 612; State v. Robertson, 48 La. Ann. 1026, 20 S 167.

86. Rigor v. State, 101 Md. 465, 61 A 631, 4 AnnCas 719.

87. Jones v. State, 61 Ark. 88, 32 SW 81.

88. Barnes v. State, (Tex. Cr.) 185 SW 2; Harrison v. State, 69 Tex. Cr. 152, 151 SW 552.

89. Harrison v. State, 69 Tex. Cr. 152, 151 SW 552.

90. State v. Harras, 22 Wash. 57. 60 P 58.

91. State v. Harras, 22 Wash. 57, 60 P 58.

92. Starr v. U., S., 4 Ind. T. 550,

scrutiny than the former motion, especially where it is based upon the same ground upon which the former application was granted.94 Where, however, justice clearly requires it, the fact that several continuances have been granted should not operate to defeat the granting of another.95 A court will rarely, if ever, tolerate two applications on the same grounds at the same term,96 although they may be differently stated;97 and where a continuance has been refused, another motion at the same term will not be entertained unless upon material facts not existing at the time the former was made, or upon facts which, if existing, it is clear were not, and by the exercise of reasonable diligence could not have been, known at such time.98

[891] b. Showing Required. It has been said that the same degree of promptness and diligence in preparing for trial should not be required

76 SW 105; Hourigan v. Com., 94 Ky. 520, 23 SW 355, 15 KyL 265; Walkup v. Com., 20 SW 221, 14 KyL 337; Burrell v. State, 18 Tex. 713; Rogers v. State, 71 Tex. Cr. 149, 159 SW 40; Deckard v. State, 58 Tex. Cr. 34, 124 SW 673; Goode v. State, 57 Tex. Cr. 220, 123 SW 597; Bice v. State, 55 Tex. Cr. 529, 117 SW 163; McKinney v. State, 8 Tex. A. 626; Krebs v. State, 8 Tex. A. 1; Myers v. State, 7 Tex. A. 640; Johnson v. State, 7 Tex. A. 297; Swofford v. State, 3 Tex. A. 76.

93. Peo. v. Leyshon, 108 Cal. 446, 41 P 480; Brady v. State, 120 Ga. 181, 47 SE 535; Johnson v. State, 58 Ga. 491; Drake v. Com., 7 KyL 529, 13 Ky. Op. 848; Scott v. Com., 7 KyL 369, 13 Ky. Op. 763; Wood v. State, (Tex. Cr.) 189 SW 475; Reed v. State, (Tex. Cr.) 183 SW 1168; Scott v. State, 49 Tex. Cr. 519, 93 SW 740; Dement v. State, 39 Tex. Cr. 271, 45 SW 917.

94. Cal.-Peo. V. Leyshon, 108 Cal. 440, 41 P 480.

Ga.-Jones v. State, 128 Ga. 23, 57 SE 313; Brady v. State, 120 Ga. 181, 47 SE 535; Baker v. State, 111 Ga. 141, 36 SE 607; Burnett v. State, 87 Ga. 622, 13 SE 552; Mixon v. State, 85 Ga. 455, 11 SE 874; Johnson v. State, 58 Ga. 491.

Ill. Feinberg v. Peo., 174 Ill. 609, 51 NE 798.

Iowa.-State v. Rainsbarger, 74 Iowa 196, 37 NW 153.

of defendant at the term to which the indictment is returned as at a subsequent term after a continuance has been granted.99 While, in the absence of statute, a definite distinction is rarely declared by the courts between a showing necessary to be made for a subsequent continuance and that of the first, it is clear from the phraseology often employed that successive continuances are not regarded with favor;1 and according to some authorities, on a second application, extraordinary diligence must be shown to entitle accused to a continuance.2 Thus it is not error to refuse a continuance on account of the absence of a witness, where a prior continuance had been granted on the same ground, and defendant's application shows no diligence to obtain the witness, or his deposition. Furthermore, on a second application for a continuance, it must appear that the evidence sought to be obtained is not cumulative

State, 87 Ga. 622, 13 SE 552; Nixon v. State, 85 Ga. 455, 11 SE 874; State v. Rainsbarger, 74 Iowa 196, 37 NW 153. (3) Where accused has been granted one continuance because of the absence of witnesses, and one of his attorneys was present at the trial and ably conducted his defense, the court did not err in denying a continuance because of the absence of another of his attorneys. Thompson v. State, 70 Tex. Cr. 610, 157 SW 494.

[c] Want of preparation.-Where the attorney for accused has been employed at least six days before the trial but has been busy with other matters and has been granted one continuance, there is no abuse of discretion in refusing to postpone the trial a second time in order to allow him "time for study of [the] case." Baker v. State, 111 Ga. 141, 36 SE 607.

95. Com. v. Flynn, 161 Ky. 289, 170 SW 617; Johnson v. Com., (Ky.) 119 SW 745; State v. Walker, 69 Mo. 274 (where a reversal was ordered for a refusal to grant a sixth continuance); Elkins v. State, 57 Tex. Cr. 247, 122 SW 393; Casey v. State, 51 Tex. Cr. 433, 102 SW 725; Gilcrease v. State, 33 Tex. Cr. 619, 28 SW 531; Preston v. State, 4 Tex. A. 186.

96. McCorkle v. State, 14 Ind. 39; Keener v. State, 51 Tex. Cr. 590, 103 SW 904.

97.

La.-State v. Dubois, 24 La. Ann. 774.

309.

N. Y.-Peo. V. Hildebrandt, 16 Misc. 195, 38 NYS 958.

Tex.-Allen v. State, 75 Tex. Cr. 106, 170 SW 309; Scott v. State, 49 Tex. Cr. 519, 93 SW 740; Dement v. State, 39 Tex. Cr. 271, 45 SW 917; Scott v. State, (Cr.) 25 SW 783.

State v. Redmond, 37 La. Ann.

98. Robson v. State, 83 Ga. 166, 9 SE 610; Brinkley v. State, 54 Ga. 371; Wilson V. State, 33 Ga. 207; Robetaille's Case, 5 City Hall Rec (N. Y.) 171; Withers v. State, 30 Tex. A. 383, 17 SW 936.

SW 189.

1. Ark. Le Grand v. State, 88 Ark. 135, 113 SW 1028.

99. North v. Peo., 139 Ill. 81, 28 NE 966; Beaver v. State, 63 Tex. Cr. [a] Absence of witnesces.-Be- 581, 142 SW 11; McCrimmon v. State, cause of the absence of a witness for 52 Tex. Cr. 318, 106 SW 1158; Hardin whom a previous continuance has v. State, 52 Tex. Cr. 238, 106 SW 352; been granted, a subsequent applica- | Weaver v. State, 52 Tex. Cr. 11, 105 tion for a continuance is subjected to perhaps a stricter scrutiny than the former motion. Peo. v. Leyshon, 108 Cal. 440, 41 P 480; Brady v. State, 120 Ga. 181, 47 SE 535; Johnson v. State, 58 Ga. 491; Scott v. State, 49 Tex. Cr. 519, 93 SW 740; Dement v. State, 39 Tex. Cr. 271, 45 SW 917; Scott v. State, (Tex. Cr.) 25 SW 783; Swofford v. State, 3 Tex. A. 76.

Cal.-Peo. v. Saunders, 13 Cal. A. 743, 110 P 825. Del.-State v. McDaniel, 20 Del. 96, 54 A 1056.

Ga.-Nail v. State, 142 Ga. 595, 83 SE 226; Hilburn v. State, 121 Ga. 344, 49 SE 318.

Iowa.-State v. Hart, 140 Iowa 456, 118 NW 784.

Ky. Howard v. Com., 69 SW 721, 24 KyL 612.

La.-State v. Hornsby, 33 La. Ann.

1110.

[b] Absence of counsel.-(1) The absence of counsel as a ground for a second continuance is not favored by the courts. Feinberg v. Peo., 174 Ill. 609, 51 NE 798; State v. Dubois, 24 La. Ann. 309; Peo. v. Hildebrandt, 16 Misc. 195, 38 NYS 958; Allen v. State, 75 Tex. Cr. 106, 170 SW 309, (2) And this is especially true, where accused has been given notice that another continuance on that ground will not be granted. Jones v. State, 429, 51 AmD 364. 128 Ga. 23, 57 SE 313; Burnett V. Tex.-Beaver v. State, 63 Tex. Cr.

Mo.-State v. Lynn, 169 Mo. 664, 70 SW 127; State v. Dyer, 139 Mo. 199, 40 SW 768; State v. Inks, 135 Mo. 678, 37 SW 942.

N. C.-State v. Hildreth, 31 N. C.

581, 142 SW 11; Goode v. State, 57 Tex. Cr. 220, 123 SW 597; Bice v. State, 55 Tex. Cr. 529, 117 SW 163: Roma v. State, 55 Tex. Cr. 344, 116 SW 598; Wright v. State, (Cr.) 97 SW 699; Kegans v. State, (Cr.) 95 SW 122; Scott v. State, 49 Tex. Cr. 519, 93 SW 740; Hall v. State, (Cr.) 90 SW 176; Brown v. State, 47 Tex. Cr. 326, 83 SW 378; Bearden v. State, 47 Tex. Cr. 271, 83 SW 808; Dean v. State, 47 Tex. Cr. 243, 83 SW 816; Merrell v. State, (Cr.) 70 SW 979; Ash v. State, (Cr.) 63 SW 881; Dement v. State, 39 Tex. Cr. 271, 45 SW 917; McGee v. State, 31 Tex. Cr. 71, 19 SW 764.

Wash.-State v. Burns, 19 Wash. 52, 52 P 316.

2. Melbourn v. State, 51 Fla. 69, 40 S 189; State v. Jackson, 134 La. 599, 64 S 481.

3. Fla.-Williams v. State, 53 Fla 89, 43 S 428.

Ind. T.-Williams v. U. S., 6 Ind. T. 1, 88 SW 334.

Ky-Futrell v. Com., 141 Ky. 310, 132 SW 555; Hutsell v. Com., 75 SW 225, 25 KyL 262.

Mo.-State v. Lynn, 169 Mo. 664, 70 SW 127; State v. Barrett, 54 Mo. 457.

Tex.-Blalock v. State, 76 Tex. Cr. 609, 176 SW 725; Harris v. State, (Cr.) 172 SW 1146; Manley v. State, 69 Tex. Cr. 502, 154 SW 1008; Drake v. State, 68 Tex. Cr. 440, 153 SW 848; Walls v. State, 69 Tex. Cr. 317, 153 SW 130; Weaver v. State, 68 Tex. Cr. 214, 150 SW 785; Woods v. State, 67 Tex. Cr. 569, 150 SW 633; O'Neal v. State, 66 Tex. Cr. 460, 146 SW 938: Beaver v. State, 63 Tex. Cr. 581, 142 SW 17; Hunter v. State, 59 Tex. Cr. 439, 129 SW 125; Reece v. State, 59 Tex. Cr. 428, 128 SW 1124; Johnson State, 59 Tex. Cr. 425, 128 SW 1123; Wright v. State, (Cr.) 97 SW 699; Perez v. State, (Cr.) 62 SW 748: Renfro v. State, 42 Tex. Cr. 393, 56 SW 1013; Gregory v. State, (Cr.) 48 SW 577.

4. Hutsell v. Com., 75 SW 225, 25 KyL 262; Roach v. State, 47 Tex. Cr. 500, 84 SW 586; Keffer v. State, 12 Wyo. 49, 73 P 556.

5. State v. Webster, 152 Mo. 87, 53 SW 423; Wood v. State, (Tex. Cr.) 189 SW 474; Reed v. State, (Tex. Cr.) 183 SW 1168; Whitfill v. State, (Tex. Cr.) 169 SW 681; Robinson v. State, 71 Tex. Cr. 561, 160 SW 456; Rogers v. State, 71 Tex. Cr. 149, 159 SW 40; Bosley v. State, 69 Tex. Cr. 100, 153 SW 878; Pace v. State, 69 Tex. Cr. 27, 153 SW 132; Maxey v. State, 66 Tex. Cr. 234, 145 SW 952; Bacon v. State, 61 Tex. Cr. 206, 134 SW 690; Petty v. State, 59 Tex. Cr. 586, 129 SW 615; Goode v. State, 57 Tex. Cr. 220, 123 SW 597; Morgan v. State. 54 Tex. Cr. 542, 113 SW 934; Wright v. State, (Tex. Cr.) 97 SW 699; Kegans v. State, (Tex. Cr.) 95 SW 122;

or merely impeaching in character; that the application is made in good faith; that the evidence sought is material and probably true, and that a different result will probably be produced; that the witness would testify as expected;" and that he is not absent with defendant's consent.10

[892] 5. Diligence an Essential Element to Sufficiency of Ground-a. In General. The courts whose duty it is to administer justice on behalf of

Ray v. State, (Tex. Cr.) 85 SW 1151; Bearden v. State, 47 Tex. Cr. 271, 83 SW 808; Brown v. State, 47 Tex. Cr. 326, 83 SW 378; McComas v. State, (Tex. Cr.) 81 SW 1212; Knowles v. State, 44 Tex. Cr. 322, 72 SW 398; Hargrove v. State, (Tex. Cr.) 65 SW 1070; Cauthern v. State, (Tex. Cr.) 65 SW 96; Hamilton v. State, 41 Tex. Cr. 599, 58 SW 93; Wilkerson State, (Tex. Cr.) 57 SW 956; Roberts v. State, (Tex. Cr.) 51 SW 383; Gregory v. State, (Tex. Cr.) 48 SW 577; Brittain v. State, (Tex. Cr.) 40 SW 297; Harvey v. State, 35 Tex. Cr. 545, 34 SW 623.

6. Scott v. Com., 7 KyL 369, 13 Ky. Op. 763; Wright v. State, (Tex. Cr.) 97 SW 699.

7. White v. State, (Ark.) 152 SW

163.

8. Rogers v. State, 71 Tex. Cr. 149, 159 SW 40.

9. Dean v. State, 47 Tex. Cr. 243, 83 SW 816; Solomon v. State, (Tex. Cr.) 65 SW 915.

10. Swilley v. State, (Tex. Cr.) 171 SW 734.

11. Ala.-Kroell v. State, 139 Ala. 1, 36 S 1025. Ariz.-Hurley v. Terr., 13 Ariz. 2, 108 P 222; Elias v. Terr., 9 Ariz. 1, 76 P 605, 11 AnnCas 1153.

Ark.-Turner v. State, 121 Ark. 40, 180 SW 211; Quertermous v. State, 114 Ark. 452, 170 SW 225; Hamer v. State, 104 Ark. 606, 150 SW 142; McElroy v. State, 100 Ark. 301, 140 SW 8; Miller v. State, 94 Ark. 538, 128 SW 353; Jackson v. State, 94 Ark. 169, 126 SW 843; McCrae v. State, 92 Ark. 28, 122 SW 479; Harper v. State, 79 Ark. 594, 96 SW 1003; Weatherford v. State, 78 Ark. 36, 93 SW 61.

Cal.-Peo. v. Fountain, 170 Cal. 460, 150 P 341; Peo. v. Breen, 130 Cal. 72, 62 P 408; Peo. v. Winters, 125 Cal. 325, 57 P 1067; Peo. v. Vanard, 6 Cal. 562.

Fla.-Williams v. State, 53 Fla. 89, 43 S 428; Melbourne V. State, 51 Fla. 69, 40 S 189; Surrency v. State, 48 Fla. 59, 37 S 575; Jones v. State, 44 Fla. 74, 32 S 793; Shiver v. State, 41 Fla. 630, 27 S 36.

Ga.-Burger v. State, 139 Ga. 108, 76 SE 863; Jones v. State, 125 Ga. 307, 54 SE 122; Kidd v. State, 101 Ga. 528, 28 SE 990; Allen v. State, 10 Ga. 85; Moulton v. State, 18 Ga. A. 285, 89 SE 341; Amerson v. State, 18 Ga. A. 176, 88 SE 998; Wooten v. State, 17 Ga. A. 333, 86 SE 740; Williams v. State, 13 Ga. A. 179, 78 SE 1012.

Hawaii.-Terr. v. Watanabe Masagi, 16 Hawaii 196.

Ida.-State v. Fleming, 17 Ida. 471, 106 P 305; State v. Corcoran, 7 Ida. 220, 61 P 1034.

Ill-Harter v. Peo., 204 Ill. 158, 68 NE 447; Dacey v. Peo., 116 Ill. 555, 6 NE 165.

Ind. State v. Place, 127 Ind. 194, 26 NE 768; State v. Norman, 16 Ind. 192. Compare State v. Flemons, 6 Ind. 279 (where it was intimated that less diligence is required of the prosecuting officer than of accused).

Iowa.-State v. Ockij, 165 Iowa 237, 145 NW 486; State v. Hayward, 153 Iowa 265, 133 NW 667; State v. Brown, 121 NW 513; State v. Pell, 140 Iowa 655, 119 NW 154; State v. Hart, 140 Iowa 456, 118 NW 784; State v. Spurbeck, 44 Iowa 667.

Kan.-State v. Bailey, 77 Kan. 850, 91 P 1066; State v. Miller, 63 Kan. [16 C. J.-32]

the state as well as of accused steadfastly refuse to allow the negligence or passiveness of either of the parties to a criminal action to delay criminal justice, and will refuse a continuance to procure evidence of witnesses no matter how material or important it may be, unless it is shown that the applicant has used due diligence to procure such testimony.11 And this rule is adhered to with strictness where the testimony sought does not, in the light of the record and preponderance of evidence

62, 64 P 1033; State v. Lewis, 56 Kan. 374, 43 P 265; State v. McClain, 49 Kan. 730, 31 P 790, State v. Emmons, 45 Kan. 397, 26 P 679, State v. Hodges, 45 Kan. 389, 26 P 676.

Ky.-Patterson V. Com., 146 Ky. 123, 142 SW 206; Allen v. Com., 145 Ky. 409, 140 SW 527; Futrell V. Com., 141 Ky. 310, 132 SW 555; Smith v. Com., 140 Ky. 568, 131 SW 493; Johnson v. Com., 93 SW 581, 29 KyL 442; Messer v. Com., 90 SW 955, 28 KyL 920; Kehoe v. Com., 88 SW 1107, 28 KyL 35; McQueen v. Com., 88 SW 1047, 28 KyL 20; Shepherd v. Com., 82 SW 378 26 KyL 698; Hughes v. Com., 80 SW 197, 25 KyL 2153; Mullins v. Com., 79 SW 258, 25 KyL 2044; Saylor v. Com., 57 SW 614, 22 KyL 472; Moody v. Com., 43 SW 209. 19 KyL 1198; Helton v. Com., 29 SW 331, 16 KyL 464; Goodin v. Com., 16 SW 451, 13 KyL 123; Earp v. Com., 9 Dana 301; Brown v. Com., 7 KyL Com., 7 KyL 443, 13 Ky. Op. 818; 451, 13 Ky. Op. 838; Brumbach V. Galloway v. Com., 7 KyL 166, 13 Ky. Op. 428.

La.-State v. Rather, 138 La. 198, 70 S 96; State v. Hawthorn, 134 La.

979, 64 S 873; State v. Simpson, 133 La. 576, 63 S 179; State v. Reeves, 129 La. 714, 56 S 648; State v. TurKemp, 120 La. 378, 45 S 283; State ner, 129 La. 702, 56 S 644; State v. v. Vicknair, 118 La. 963, 43 S 635; State v. Allen, 113 La. 705, 37 S 614; State v. Lejeune, 52 La. Ann. 463, 26 S 992; State v. Gaubert, 49 La. Ann. 1692, 22 S 930; State v. Morgan, 39 La. Ann. 214, 1 S 456; State v. Nelson, 28 La. Ann. 46; State v. Allemand, 25 La. Ann. 525.

Mass.-Com. v. Millard, 1 Mass. 6. Miss.-Williams v. State, 92 Miss. 70, 45 S 146, 15 AnnCas 1026; Lamar v. State, 63 Miss. 265.

Mo.-State v. McWilliams, 267 Mo. 437, 184 SW 96; State v. Thomas, 250 Mo. 189, 157 SW 330; State v. McKenzie, 228 Mo. 385, 128 SW 948; State v. Devorss, 221 Mo. 469, 120 SW 75; State v. Sublett, 191 Mo. 163, 90 SW 374; State v. Woodward, 182 Mo. 391, 81 SW 857, 103 AmSR 646; State v. Thompson, 141 Mo. 408, 42 SW 949; State v. Banks, 118 Mo. 117, 23 SW 1079; State v. McCoy, 111 Mo. 517, 20 SW 240; State v. Carter, 98 Mo. 176, 11 SW 624; State V. Able, 65 Mo. 357; State v. Wilson, 152 Mo. A. 61, 132 SW 303; State v. Nell. 79 Mo. A. 243.

Nebr.-Hanks V. State, 88 Nebr. 464, 129 NW 1011, 89 Nebr. 203. 130 NW 1037; Kerr v. State, 63 Nebr. 115, 88 NW 240; Hubbard v. State, 65 Nebr. 805, 91 NW 869; Tatum v. State, 61 Nebr. 229, 85 NW 40.

Nev.-State v. Nelson, 36 Nev. 403, 136 P 377.

N. Y.-Peo. v. Browne, 118 App. Div. 793, 103 NYS 903 [aff 189 N. Y. 528 mem. 82 NE 1130 mem].

Okl.-Moseley v. State, 157 P 708; Welty v. U. S., 14 Okl. 7, 76 P 121; Howland v. Terr., 13 Okl. 575, 76 P 143; Smith v. Terr., 11 Okl. 669, 69 P 805; Kirk v. Terr., 10 Okl. 46, 60 P 797; Moseley v. State, (Cr.) 157 P 708; Cross v. State, 11 Okl. Cr. 117, 143 P 202; Buxton v. State, 11 Okl. Cr. 85, 143 P 57; Hall v. State, 11 Okl. Cr. 57, 142 P 1044; Hopkins v. State. 9 Okl. Cr. 104, 130 P 1101, AnnCas1915B 736; Rose v. State, 8 Okl. Cr. 294, 127 P 873; Bethel V. State, 8 Okl. Cr. 61. 126 P 698; Gregg v. Kingfisher, 8 Okl. Cr. 8, 125 P

1093; Thompson v. State, 6 Okl. Cr. 334, 118 P 614; Bryan v. State, 5 Okl. Cr. 542, 115 P 619; Musgraves v. State, 3 Okl. Cr. 421, 106 P 544.

Pa.-Com. v. Gross, 1 Ashm. 281. Philippine.-U. S. v. Jarandilla, 6 Philippine 139; U. S. v. Salvador, 2 Philippine 549.

Porto Rico.-Dyer v. Rossy, 23 Porto Rico 718.

S. C.-State v. Barnett, 98 S. C. 422, 82 SE 795; State v. Sanders, 68 S. C. 192, 47 SE 55; State v. Box, 66 S. C. 402, 44 SE 969; State v. Smith, 42 S. C. L. 460.

S. D.-State V. Sonnenschein, 37 S. D. 139, 156 NW 906. Tenn.-State V. Robinson, Tenn. 204, 61 SW 65.

106

Tex.-Goodson v. State, 32 Tex. 121; Hyde V. State, 16 Tex. 445, 67 AmD 630; Vansickle v. State, (Cr.) 188 SW 1006; Sorrell v. State, (Cr.) 186 SW 336; Sanford v. State, (Cr.) 185 SW 22; Jones V. State, (Cr.) 183 SW 141; Furnace v. State, (Cr.) 182 SW 454; Roberts v. State, (Cr.) 180 SW 1079; Grant v. State, (Cr.) 179 SW 871; Jackson v. State, (Cr.) 178 SW 521; Stacy v. State, (Cr.) 177 SW 114; Blalock v. State, 76 Tex. Cr. 609, 176 SW 725; Keets v. State, 76 Tex. Cr. 384, 175 SW 149; Havard v. State, 73 Tex. Cr. 578, 166 SW 507; Cole v. State, 72 Tex. Cr. 282, 162 SW 880: Beaty v. State, 72 Tex. Cr. 634, 162 SW 877; Chappell v. State, 72 Tex. Cr. 191, 161 SW 964; Miller v. State, 72 Tex. Cr. 151, 161 SW 128; Dugat v. State, 72 Tex. Cr. 39, 160 SW 376; Oliver v. State, 70 Tex. Cr. 140, 159 SW 235; Cowser

v. State, 70 Tex. Cr. 265, 157 SW 758, AnnCas1916B 598; Claussen v. State, 70 Tex. Cr. 607, 157 SW 477; Johnson v. State, 70 Tex. Cr. 347, 156 SW 1181; Manley v. State, 69 Tex. Cr. 502, 154 SW 1008; Ragland v. State, 69 Tex. Cr. 372, 153 SW 1137; Bosley v. State, 69 Tex. Cr. 100, 153 SW 878; Cravens v. State, (Cr.) 103 SW 921; Early v. State, 51 Tex. Cr. 382, 103 SW 868, 123 AmSR 889; Casey v. State, 51 Tex. Cr. 433, 102 SW 725; High v. State, (Cr.) 98 SW 849; White v. State, (Cr.) 98 SW 264) Reese v. State, (Cr.) 97 SW 697; McNamee v. State, (Cr.) 97 SW 96; Brooks v. State, 26 Tex. A. 184, 9 SW 562; May v. State. 22 Tex. A. 595, 3 SW 781; Childers v. State, 16 Tex. A. 524; Greenwood v. State, 9 Tex. A. 638; Huebner v. State, 3 Tex. A. 458. Utah.-State v. Brewer, 48 Utah 252, 158 P 1094; State v. Morgan, 27 Utah 103, 74 P 526.

Va.-Moore v. Com., 9 Leigh (36 Va.) 639.

Wash.-State v. O'Brien, 66 Wash. 219, 119 P 609; State v. Vance, 29 Wash. 435. 70 P 34; State v. Hutchinson, 14 Wash. 580, 45 P 156; State v. Brooks, 4 Wash. 328, 30 P 147.

W. Va.-State v. Farley, 89 SE 738; State v. Duffy, 75 W. Va. 299, 83 SE 990; State v. Brown, 62 W. Va. 546, 547, 59 SE 508 [cit Cycl.

Wyo.-Robinson v. State, 18 Wyo. 216, 106 P 24.

B. C.-Rex v. Mulvihill, 19 B. C. 197. 22 CanCrCas 354, 18 Dom LR 189, 26 WestLR 955, 5 West Wkly 1229 [aff 49 Can. S. C. 587, 18 DomLR 217, 23 CanCrCas 194, 6 West Wkly 462].

"While one charged with a crime is entitled to a fair and impartial trial, which includes an opportunity to procure such evidence as it is within his power to obtain, before

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