Dutton v. StateDutton v. State
- Reporters:
- Before:
- Davison
Dutton, on the 29th of April, 1851, was indicted for forgery in the Steuben Cirсuit Court. He pleaded in abatement as follows: That before this indictment was found, viz., at the October term, 1850, he was indicted in that Court for the identical offence charged in the prеsent indictment, and on his petition the venue in that behalf was changed to the De Kalb Circuit Court; that the parties in this and the former prosecution are the same, &c., and the former indictment is still pending in *534the De Kalb Circuit Court, as by the records, &c., appears, and this he is ready to verify, &c. To this plea there was a demurrer sustained.
The prisoner was then arraigned and pleaded not guilty; whereupon he applied for and obtained a change оf venue. The cause was ordered to the county оf De Kalb for trial, and the clerk directed to transmit a transcript of the proceedings and the original papеrs to the Circuit Court of that county. This change was taken оn the 30th of April, and on the 6th of May, being the second judiciаl day of the May term, 1851, of the De Kalb Circuit Court, such transcript and papers were duly filed in that Court, and on that day the cáse was callеd for trial. Thereupon the prisoner moved for a continuance. In support of the motion he filed an аffidavit, alleging that James Baker, Joseph Woodhall and Abram Walters were material witnesses for him on the triаl; that they resided in Steuben county, in this state; that he expectеd to prove by them that Martin and Mary Price, two material witnesses, who then were in attendance to testify against him, were, аt that time, persons of bad reputation and ought not to be believed under oath; that the change of venuе in this case was granted on last Wednesday, and on the Thursday suсceeding he caused a subpoena to be issued for said witnesses by the clerk of the De Kalb Circuit Court, which was mailed to the sheriff of Steuben county, and received by him on Sunday last, and served on said witnesses on the next day; that the witnesses have not had suffiсient time to be in attendance, but he believes he сan procure their attendance at the next term of this Court; that he knows of no other witnesses by whom he can prove the same facts; and that the affidavit was not made for delay, &c.
The motion was overruled, and the сause submitted to a jury. Verdict for the state. New trial refused, and judgment, &c.
The errors assigned are, 1. The sustaining of the demurrer to the plea. 2. The refusal to continue the cаuse.
The demurrer was correctly sustained. Another indictment pending for the same offence constitutes no ground *535of abatement. This, in criminal prosecutions, seems to be the settled rule, and we perceive nothing in the рlea before us exempting it from the force of that rule. 1 Chitty’s Grim. Law 447.
But the continuance should have been grantеd. Under the circumstances detailed in the record, the affidavit was, in om opinion, sufficient. It shows that a proрer degree of diligence was used to procure the attendance of the witnesses; and it is made to appear that their testimony would have been matеrial on the trial. We think the refusal to continue the cause was not a proper exercise of judicial discretion, and was, therefore, erroneous.
Per Curiam.—The judgment is reversed. Cause remanded, &c.