State v. Redmond, No. 151

No. 151 | La. | Oct 15, 1885

The opinion of the Court was delivered by

Fenner, J.

The convicted defendant assigns the following errors In the proceedings:

1st. The overruling of two motions for a continuance, on the ground of absence of witnesses.

The first motion was overruled on the ground that tlie satement contained in it as to the facts expected to be proved by the absent witnesses did not disclose the materiality of the testimony. The statement was that “ he expected to prove by the absent witnesses where he was at the time the offense was alleged to have been committed, and that it was impossible for him to have committed said offense.” This statement is entirely too vague and indefinite to support the motion, as a matter of right. After the judge had refused this motion counsel excepted to the ruling. He then asked permission to make another and more specific application for continuance, which the judge granted under the impression, as he declares, that the former motion and the exception to the ruling thereon were abandoned.

Tlie second motion, containing a more specific statement of the facts expected to be proved by tlie same witnesses, was thereupon filed, and was taken under advisement until tlie following morning. On the opening- of court, and after reading of phe minutes, counsel insisted upon Ms exception to the ruling on his first motion, and asked that the minutes should he corrected so as to note his said exception and secure his right to have it made of record. The judge, thus apprised that both motions for continuance were insisted upon, overruled the second on the ground that a second motion for continuance should not be •entertained when based substantially upon the same subject-matter which had already been tried and decided on a former motion.

We cav.not say that the judge erred. The court was not bound to hear repeated motions for continuance on the same ground. The privilege of making the second motion was matter of grace and not of right, and the party was bound to submit to conditions imposed by the court. If he chose to insist upon his first motion and his exception to the ruling thereon,'that exhausted his right, and the court had the unquestioned power to refuse to entertain the second motion based ■on the same grounds merely stated in more specific language.

We have repeatedly signalized our indisposition to interfere 'with the large discretion necessarily confided to trial judges in matters of •continuances, except in cases of rulings manifestly arbitrary and unjust. This is not such a case. State vs. Clark, 37 Ann., 128; State vs. Johnson, 36 Ann., 852; State vs. Foster, 36 Ann., 877.

2d. The overruling a challenge of a juror for cause. This assignment is robbed of all force by the fact that the juror was challenged peremptorily and did not serve, and a jury acceptable to defendant was completed without the exhaustion of one-half of the peremptory ■challenges allowed him by law.

3d. Exception was taken to the overruling of objections to certain testimony on the ground that it was hearsay, and to certain other testimony of the same witness on .the ground that it was a mere opinion of witness. 'It appears from the statement of the judge that counsel for accused had elicited evidence tending to discredit the testimony •of prosecuting witness, who swore that he had not informed sooner .against accused because he was afraid the latter would kill him. To rebut tiiis attack on his credibility and to sustain his statement, the State offered to prove by the brother of the witness that the latter had •expressed his fears to him at the time, and also that the fears were reasonable on account of the desperate character and conduct of ■accused.

We think the evidence, under the circumstances, was properly, admissible.

Judgment affirmed.