42 Ind. 544 | Ind. | 1873
The appellant was indicted for grand larceny, tried by a jury, and convicted, and, over a motion for a new trial, sentenced to be imprisoned in the state prison for three years, to pay a fine of five dollars, and be disfranchised for five years.
The only ground for a new trial was the -refusal of the court to grant a continuance on his motion and affidavit, and the only error assigned is in overruling the motion for a new trial.
The continuance was asked on account of the absence of a witness. The facts, which the appellant in his affidavit stated the absent witness would testify to, were material, and tended to show his innocence of the crime charged against him in the indictment. The question, we think, is, whether he showed sufficient diligence to ascertain the residence of the witness and to obtain his testimony.
The indictment was found by the grand jury in June, 1872. It is not stated in the affidavit, nor does it otherwise appear when he was arrested. The affidavit for continuance was made on the 17th of September, 1873. The statement as to the residence of the witness and the diligence used to obtain his testimony is as follows: “ That he believes the said witness resides in Miami - county, Indiana; that he
We think that when a defendant in a criminal case asks a continuance on account of an absent witness, reasonable diligence to obtain the witness, or an excuse therefor, must be shown, or the application should be refused. The fact that a subpcena was issued and placed in the hands of an officer for service, without showing when it was done, does-not show reasonable diligence. The party delays at his peril.
The judgment of the said Grant Circuit Court is affirmed,, with costs.