111 Tenn. 154 | Tenn. | 1903
delivered the opinion of the Court.
A presentment was found July 15, 1903, by the grand jury of Jefferson county against the plaintiff in error, containing two counts; the first charging him with unlawfully selling intoxicating liquors; and the second, allowing and permitting illegal sales of such liquors to be made upon his premises and land by other persons, to the grand jurors unknown, after due notice of the illegal character of such sales; the presentment being predicated upon the act of the general assembly passed for the suppression of illegal sales of intoxicating liquors April 7, 1899, and published as chapter 161, p. 309, of the acts of the general assembly of that year. He was immediately arrested, and upon the next day his application for a continuance, supported by a general affidavit of absence of material witnesses, was denied, and he was put upon his trial, and found guilty upon the second count of the presentment, fined $50, and sentenced to the workhouse of the county for six months. The case is now before this court upon appeal, in the nature of a writ of error.
The plaintiff in error assigns as error the action of the trial judge in refusing him a continuance at the first term at which the case was triable, upon his general affi
1. The affidavit should have set forth the facts proposed to be proved by the absent witnesses. It is true
In the case of Taylor v. State, 11 Lea, 714 (a capital case), the trial judge refused a continuance, at the first term of the court at which the case stood for trial, upon a general affidavit of the absence of material witnesses; and it was held by this court not to be reversible error, it appearing from the record that the defendant was not prejudiced. Similar to this was the case of Brown v. State, 85 Tenn. (1 Pickle), 441, 2 S. W., 895, where the plaintiff in error was indicted, tried, convicted, and sentenced to death at the same term of the court; a continuance having been denied upon a general affidavit on account of the absence of Avitnesses.
In Crane v. State, 94 Tenn., 86, 28 S. W., 317 (a felony case), it was held that there was no error in the action of the trial court in refusing a continuance at the first term upon a general affidavit of the absence of witnesses stated to be material, when no defense to the charge was indicated in the affidavit or upon the trial. Numerous other like cases are to be found in the decisions of this court. The only reason given in the case of Nelson v. State, supra, in support of the practice of allowing a continuance at the first trial term upon a general affidavit of the absence of witnesses, is that at that term the party asking for it may not have had sufficient time to ascertain by whom he Avould be able to prove the particular facts material to support his case or make out his defense, and therefore he should not be required to make
When the case of Nelson v. State was decided — more than fifty years ago—the country was sparsely settled, and travel and communication between different points and sections was slow and often difficult, and conditions then existed which made it reasonable that greater indulgence be given parties in the preparation of cases for trial. But no such conditions are now found. Transportation is now cheap and rapid, and there exists almost instant communication by telegraph and telephone between all points of any importance in the country. Parties are now enabled to communicate with witnesses in a very short time at almost any point, and they should be held to greater diligence in procuring their attendance, and the preparation of their cases for trial.
One of the chief reproaches that has been cast upon the courts of the country, and in some instances not without cause, is the law’s delay in the trial of cases and the settlement of controversies; and it ought to be minimized to the shortest time possible, consistent with the orderly and correct disposition of business and administration of justice. No delay in the trial of any case ought to be allowed unless it be made to clearly appear to the court that it is necessary for the attainment of justice. No
It is well said in Rhea v. State, 10 Yerg., 260, that “the opinion of the litigant upon these matters can constitute no safe or proper ground for the action of the court.” Continuances are frequently allowed upon general affidavits of the absence of witnesses whose evidence when offered upon the subsequent trial is found to be wholly incompetent, and the continuance has only resulted in needless expense and delay, which would not have occurred had the facts proposed to be proven by the witness been stated in the affidavit, as the court would have then denied the continuance. Again, continuances are often procured in this way, particularly in criminal cases, in order that the witnesses for the State may be tampered with, or may be induced to remove beyond the jurisdiction of the court or that they may voluntarily do so, and it be impossible to obtain their testimony at a subsequent term. It is the duty of courts to try and determine all litigation therein pending' without unnecessary delay,- and as speedily as possible, consistent with the
In the case of Nelson v. State, supra, speaking of the rule requiring a special affidavit at the second trial term, the court says: “He [applicant for the'continuance] asks that the law fixing a certain time or term for his trial shall be suspended in his favor, and should not complain that he is required to show clearly that justice’ rgr. Quires it, as one of the terms'-'on which the favor'Is granted. It may appear to the'judge, when he states the facts, that they would be of no avail to him, and that it would be an injury to him to grant the postponement] by an unnecessary accumulation of costs, and a great wrong to the other side by the delay.” And we can see no reason why this should not apply "as well to a continuance at the first term. There may rise cases in which the party applying for the continuance cannot state with certainty the facts expected to be proved by the absent witnesses, or even the names of the witnesses, but they will be rare; and in these there cañ be given some’ outline of the evidence proposed to be offered, so that the court may judge of its materiality. In all such cases the discretion of the trial judge in continuances will be so exercised as to prevent a sacrifice of the rights of parties and injustice, but the reasons why the applicant is not then able to give the facts to which the absent witnesses will testify should be fully stated in the affidavit, that the trial judge may. pass upon their sufficiency, diligence, or want,of diligence, in the matter; and, before allowing a
2. The plaintiff in error was not prejudiced by being-denied a continuance. The evidence of the absent witnesses would not have availed him anything. His guilt was fully proven, and he offered no evidence on the trial, or the motion for a new trial, to the contrary. The four witnesses who were examined in behalf of the State testified that intoxicating liquors were sold in his barn, near and in sight of his residence and storehouse, on all days of the week, Sunday included, to all comers, with his knowledge and consent — a place being fitted up there, with barrels, faucets, funnels, measures, and glasses, for the purpose — and that he received at least a part of the proceeds. A most flagrant and defiant violation of the statute was clearly shown. It was not possible for any defense to be made, under these facts, other than that the sales were made under a proper license, or by discrediting the witnesses for the State, to do which no effort was made. It cannot be contended that the absent witnesses were necessary in order to make out either of these defenses. The records of the office of the county court clerk were accessible upon the first, and the neighbors and acquaintances of the witnesses were available to test their credibility. The plaintiff in error was not examined in his own behalf, and failed in any way on the trial, or the motion for a new trial, to indicate that he had any defense.
There is therefore no error in this record, and the judgment of the circuit court is affirmed, and the case remanded, that the punishment adjudged may be imposed.