Miller v. StateMiller v. State
- Reporters:
- Before:
- Osborn
Thе 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 statе prison for three years, to pay a fine of fivе 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 thе only error assigned is in overruling the motion for a new triаl.
The continuance was asked on accоunt of the absence of a witness. The facts, which the appellant in his affidavit stated the absent witness wоuld testify to, were material, and tended to show his innoсence 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 witnеss and to obtain his testimony.
The indictment was found by the grand jury in Junе, 1872. It is not stated in the affidavit, nor does it otherwise aрpear 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 follоws: “ That he believes the said witness resides in Miami - county, Indiana; that he *545сaused a subpoena to be issued and placed in the hands of a special messenger, who undеr the order of this court made an effort to servе the summons, but.said summons has been returned not found.” That is not sufficient. It is not stated when the subpcena was issued. The residence of the witness may have been known to the appellant all the time, and the issuing of the subpcena negligently postponed until the day beforе the cause was called for trial, and the failure of the officer to find the witness caused by his temporary absence, or for the want of reasonable time to make search for him. Although the provisiоns of the civil code do not necessarily govеrn in criminal practice, it has been held that it is reаsonable to consult them in the absence of special provisions in the criminal code, in estаblishing rules, as the court must, in relation to procedurе in criminal cases. Wheeler v. The State, 8 Ind. 113; McLaughlin v. The State, 8 Ind. 281.
We think that when a defendant in a сriminal case asks a continuance on account of an absent witness, reasonable diligenсe to obtain the witness, or an excuse therefor, must be shown, or the application should be refusеd. The fact that a subpcena was issued and placed in the hands of an officer for service, withоut showing when it was done, does-not show reasonablе diligence. The party delays at his peril.
The judgment of the said Grant Circuit Court is affirmed,, with costs.