156 N.W. 906 | S.D. | 1916
Defendant was convicted, in the circuit court of Stanley county, of the crime of grand larceny. From the judgment of conviction and an order denying a new trial, this appeal was taken.
“3 p. m. Wednesday, November 25th, 1914. Court reconvened pursuant -to adjournment. Present: The officers of the court. Court adjourned owing-to- the absence of the judge*'and upon phone -call from Highmore'.' Court in recess until Monday to a. m., November 30th, 1914. Andy C. Ricketts, Cleiii of Co-urt.” ■ 's
Defendant contends- that this was not an adjournment by t-hfe order of the court, an-cl -that the -only power of the clerk is ’ tó 'be ítóiind- in section 952, Pol. Code. . This section confers powers upon the clerk,'in the absence of thp judge, to keep- court 'open for four clays from date set for opening a term. It has no application -where the term, as- in -this -case1, had once -been properly opened by the judge of the court. In such case the failure'-of the ju-dige -to appear on the day toi which -the court is adjourned1' dote not cause a' discontinuance of the term. 11 Cyc. 736. Á full discussion of this question will be found in the following .Cashs, all of w'hiich, support the above: People v. Sullivan, 115 N. N. 185, 21 N. E. 1039; In re Dossett, 2 Old. 369, 37 Pac. 1072; Schofield v. Cattle Co. (C. C.) 65 Red. 433; Railway Co. v. Hand, 7 Kan. 380.
The motion for -cootinuanoe was to ¡have been heard on December 4th, but was not owing to defendant’s failure to he present. He had been advised 'but three days prior thereto that a judge would probably be present to- -hear such- motion on or about that date. Om December 4th, through his counsel, he was advised -of the time when this cause would be reached' for trial, and received personal notice thereof from his counsel -on or about December 71th. There was sufficient from which the trial court could h-ave found- that on December 7th defendant had concluded to withdraw his motion for continuance, and so advised the attorneys for the state. On December 21st a large number of jur-o-rs were, with the knowledge- of -defendant’s -counsel, ordered to report on December 28th for the trial of this cause. Without any previous intimation -of change in -intent, the defendant, presented his motion for continuance on December 24th.
At all times after the preliminary hearing defendant was fully advised as to -the importance of the testimony of these four witnesses to- procure whose presence or depositions such -continuance w.as in part sought. One of such parties was a fugitive from justice. Another, one hake, was alleged to be a resident
While one charged with1 a crime is1 entitled to a fair and impartial trial, which' includes an opportunity to> procure such evidence as it is within, his power to obtain, before being entitled to a -continuance to procure such evidence he must' show that he has acted with all diue diligence and in perfect good faith toward the state to whose laws' be is responsible and under whose laws he -seeks protection; “mere procrastination' — delay for 'delay’s salce should not be tolerated.” Hubbard v. State, 65 Neb. 805, 91 N. W. 869. It must .appear that there are reasonable grounds for -believing that such evidence can be procured by the delay. It -must 'appear by .allegations -of fact, and not by a mere statement of defendant’s -conclusion, that 'hie has been -diligent in- his efforts. It must appear that such evidence is not merely cumulative. Rule 17, Circuit -Court Rules of Practice. When defendant has made bis -sholwing, the granting of the motion rests in the sound discretion -of the trial court, and its ruling thereon-will no-t be reversed, except for co-gent reasons. State v. Phillips, 18 S. D. 1, 98 N. W. 171, 5 Am. Cas. 760; 9 Cyc. 168. The
“The most reasonable and natural thing for him to do would he to inquire among persons who he 'knew' were at his house at that time, to find out what ¡they would' be able to1 testify ■to with reference to his presence at home o,n the morning’ of January 25th. * * *
“It would be a dangerous rule- to grant a new. trial upon an ex parte statement .that certain material facts- which had .previously been known had been forgotten. It may be that in a sense a forgotten fact is practically the same as if -it had never been ■known, but the liability ¡too fraud and the temptation to perjury in such cases forbid that a -new trial should be granted -because the party against whom a verdict has gone malees oath that he has forgotten material1 parts of his evidence. In order to prevent, so far as possible, fraud and imposition which- defeated parties may be tempted to -practice as >a last resort- -to escape the*150 consequence of an adverse verdict, applications for new trial on account of newly discovered evidence should always be subjected (to the closest scrutiny by the court. The rules of law which govern' in such cases, if carefully observed, will generally accomplish justice.”
As stated in a note at page 317 of 17 Ann. Gas., supra:
“It :is a well-settled rule that forgotten facts do not constitute newly discovered evidence, and that the want of recollection of a fact, which by due diligence and attention' might have Ibeen remembered, is not ground for a new trial.”
See numerous cases cited in such note.
As to the testimony which it is alleged would be given by one Baird: We have no way of determining the materiality of the fact - which defendant claims such evidence would tend to prove; furthermore, the evidence of Baird without that of Elliott would be of no value, and no affidavit from Elliott was presented. We are unable to see wherein the testimony of the witness Lord could possibly affect the verdict.
The judgment- and1 order appealed from are affirmed.