12 N.M. 419 | N.M. | 1904
OPINION OF THE COURT.
The first error complained of is that of the court in overruling defendant’s motion for a new trial.
The motion for a continuance in this cause was upon the ground of absent witnesses who resided in the State of Texas at a distance of some five hundred miles from the place of trial. The facts which they would swear to, if present, as set out in the motion for the continuance were certainly very material, and such evidence ought to have been before the jury. The diligence of defendant in trying to have them in court for the trial, the likelihood of their being before the court at any future time of the same term, or at the next term are facts to be established to the satisfaction of the trial court. The continuance of a cause upon application is a matter in the discretion of the trial court and will not be interfered with unless it appears that the trial court abused such discretion. This is the universal rule and has been adhered to by this court in the case of Territory v. Padilla, 71 Pac. 1084.
Section 3145 of the Compiled Laws 1897, is applicable in criminal cases as well as in civil causes. Territory v. O’Donnell, 4 N. M. 196. The court in the last case cited quotes from Martin v. People, 13 Ill. 342, as follows: “The only way for a party to avail himself in this court of objections to instructions in the court below is to except to the decision of the court in giving or refusing them at the time they are made,” referring to instructions by the trial court to the jury; and the court cites a very long list of authorities from many of the States in support of the proposition. In fact, we say that that is-the rule well established by the courts of the United States.
For the reasons given, the judgment of the lower court is affirmed.