39 La. Ann. 673 | La. | 1887
The opinion of the Court was delivered by
The defendant appeals from the verdict and sentence on a charge of larceny.
The record contains three bills of exceptions :
I.
The first bill is to the refusal of the district judge to two motions for a continuance, based on tbe ground of tbe absence of two material witnesses.
The motions were denied because the accused had not used duo diligence to secure the attendance of the absent witnesses, and that their testimony would have been cumulative only.
The want of due diligence consists in not having given seasonably, as is required by tbe rule of court, the address or locality at which the witnesses could have been found or served.
On this point, and on other grounds, the district judge has assigned, in support of his refusal, elaborate reasons, in which he shows that the directions were not given, and that had the defendant acted as ho ought to have done, he could have secured those witnesses. We deem it unnecessary to reiterate those reasons, which appear sufficient to justify the refusal.
Besides, the testimony proposed to be elicited from these witnesses would have been cumulative only.
What he expected to prove by the absent witnesses, says the judge, he himself then testified to.
The jury would no more have believed those witnesses, who were relatives of defendant, than they gave credence to his own statements.
On the subject of refusal of continuances, on the ground of absence of witnesses, this Court has frequently held that it would not interfere with the large discretion necessarily confided to trial judges, unless in cases manifestly arbitrary and unjust. V., 37 Ann. 775, and authorities there cited.
The complaint shows neither of these features, in the 'present instance.
II.
The second bill is to the refusal of the district judge to road to the jury Sec. 832 of the Revised Statutes.
This section defines the crime and punishment of “receiving stolen goods, lenowing them to have been stolen.”
The accused was not prosecuted under this section, which was therefore entirely foreign to the issue and was not properly asked to be brought to the notice of the jury.
A court cannot be called on to charge on propositions of law which have no reference to the prosecution in progress before it, and which under the evidence adduced can find no application. 34 Ann. 1084; 38 Ann. 41.
Had the jury, under the charge of larceny made in this case, found a verdict of “receiving goods," etc., such verdict would not have been responsive to the charge. State vs. Moultrie, 33 Ann. 1846.
III.
The last bill is to the charge of the district judge, who is represented as having told the jury that it was not necessary that a named person should have been brought into court to testify.
The bill does not justify this complaint, for it does not appear that the judge thus charged the jury absolutely.
The judge charged substantially, that if the jury are satisfied from tlie evidence that the property alleged to have been stolen belonged to Mrs. Ursin Broirssard, without her testimony, it was not necessary that she should have been brought into court; while on the other hand, if they are satisfied that the ownership has not been satisfactorily proved, without the testimony of that person, it was necessary that she should
This, it would seem, is a charge rather favorable than prejudicial to the accused.
Judgment affirmed.