61 P. 517 | Idaho | 1900
The defendant was convicted of an assault with intent to commit murder. This appeal is from the judgment of conviction, and from the order overruling defendant’s motion for a new trial. Some twenty assignments of error are urged.
The first is that the court erred in overruling defendant’s motion for a continuance. The granting of a continuance is largely in the discretion of the trial court, and, as the record in this case does not contain the ground upon which the motion was predicated, we cannot say that there was an abuse of discretion.
The second, third, fourth, and fifth assignments of error refer to the deposition of .Joseph Whitaker, the party upon whom the alleged assault was committed. This deposition was taken under the provisions of section 7588, of the Revised Statutes. The defendant was present at the taking of the deposition, in person and by counsel, who cross-examined the witness on behalf of defendant at length. The deposition was taken — the examination had — before the judge of the trial court. It is contended by counsel for defendant that the admission in evidence of the deposition in this case was error, under the decision of this court in State v. Potter, 6 Idaho, 584, 57 Pac. 431. In that case we held that the admitting in evidence of the depositions taken on the preliminary examination of the person charged was not permissible, under our statutes, while section 7588, above referred to, makes provision for the taking of the testimony of a witness in a case like the one we are considering.
Defendant’s contention that the court erred in not charging the jury that they might find defendant guilty of any of the lesser offenses included in the charge of assault with intent to murder is settled by this court in People v. Biles, 2 Idaho, 103, 6 Pac. 120.
We have examined the instructions given and refused by the court, and find no error therein prejudicial to the defendant. The judgment of the district court is affirmed.
