40 La. Ann. 210 | La. | 1888
The opinion of the Court was delivered by
The defendant appeals from a conviction of larceny and sentence upon it.
He complains :
1. That his application for a continuance owing to the absence of a material witness was illegally overruled, and
2. That his motion for a new trial, based on several grounds, Should have been sustained.
It is useless to consider presently the bill to the refusal of the trial judge to continue the. case, as that refusal is made one of the grounds upon which the motion for a new trial rests.
Those grounds will be considered and disposed of seriatim.
They are the following :
1. That the verdict of the jury is contrary to the law and evidence.
We have repeatedly held that we have no concern with the sufficiency or insufficiency of the evidence adduced to show the guilt or innocence of the accused, and have authority to pass upon questions of law only arising in the course of the proceedings and presented in proper form for consideration.
2. That the verdict was rendered, received and recorded during the absence of the defendant from court and without his consent or request.
It appears that the accused, who was in the custody of his sureties, absented himself from the court house, and that, though he was several times called by the sheriff by proclamation at the court house door, he failed to come and hear the verdict, as required by the proclamation. The fact is that the accused has actually absconded, though he subsequently returned and was present when sentenced.
It has accordingly been well held, that a cause may proceed to verdict where the prisoner who was on bail, left the court room and went away. Bishop Cr. Prac., vol. 1, § 272.
It has again been held, that if the trial is once commenced and the prisoner, of his own wrong, leave the court, abandons his case to the management of his counsel and runs away, the proceedings will not be stayed and the verdict may be legally received. Wharton’s P. P., § 549.
3. That defendant was taken by surprise by the testimony of cer- ‘ tain named witnesses.
There is nothing to show that the accused pleaded surprise at the reception of the testimony. His omission to have done so implies a waiver of what right he may have had on that ground.
He sought for no relief; none was declined, and no bill was or could be taken.
The complaint on that score comes too late, on a motion for a new trial.
4. That if defendant could have had the benefit of the presence of his absent witness, named Ashworth, he would have established facts which would probably have changed the result of the trial.
The district judge, who heard all the testimony adduced and who. considered the lengthy affidavit of the accused, says that the evidence of that witness, if admitted, would certainly have been merely contradictory in part, with a t mdeney to impeach the credibility of witnesses heard on the trial.
A reference to that affidavit confirms that conclusion, as it is apparent that the object in view was to establish what one witness, at least, had declared, to the absent witness, a declaration which, after all, might have amounted to hearsay only, and would have been excluded.
It is somewhat strange that the affidavit on which such reliance is placed for a continuance appears to have been made the day preceding that on which the motion was calle'd, and that it refers to the absence of the witness, although made at the calling of the case.
The accused presents no case for relief.
Judgment affirmed.