80 Ky. 480 | Ky. Ct. App. | 1882
delivered tiie opinion of the court.
Appellant was indicted on the charge of stealing certain municipal bonds of the city of Cincinnati, in the State of Ohio, tried, convicted, and sentenced to the penitentiary for two years.
Counsel for appellant complain, first, that the court erred in refusing a continuance on account of the absence of one Straus, a resident and citizen of Cincinnati, Ohio. The affidavit for continuance shows that Straus was in the habit of visiting Lexington, Kentucky, the place where the trial was pending; that he had been, served with subpoena, and that he had promised to appear at the next term of the court, and it is alleged that appellant could secure his attendance at the succeeding term. It appears that the refusal to grant a continuance for this witness was based entirely upon the fact that he was a non-resident of the .State, no question having been made as to the materi■ality of the evidence, as there, could not be, because it is .stated in the affidavit that, at the time it is attempted to prove that the appellant sold the bonds in the city of Cin-cinnati, he was engaged in business in the presence of the witness, and at a place different from that at which it is ■attempted to prove that the sale of the bonds occurred. The materiality of this evidence is increased by the fact that Dunlap, who claims to have purchased the bonds from appellant, had never before seen him, and as appellant appears to have no marked characteristic of features, form, -or carriage by which to distinguish him from the common herd, the probabilities of a mistake in identification are much greater. Ordinarily, where the evidence, of the absent witness is material, where reasonable diligence has ;been used to secure his attendance, and there are reason
Another question is made by counsel as- to the admissibility of evidence, which is the more important by reason •of its relation to the question just discussed. Appellant ■offered to prove by Vanarsdale, who was present in court, that he had for years been intimately acquainted with appellant; that at the time Dunlap testifies to having purchased the bonds of a person answering in general the personal •appearance of appellant he, Vanarsdale, was in the city of Cincinnati, and there met, at or about the time of the •alleged sale of bonds, a person, who was a stranger to him,
We are also of opinion that the court erred in admitting evidence of character covering the period between the discovery of the perpetration of the offense and the time of the arrest. The discovery that the bbnds had been stolen-by some one was made on the 4th of April, and .the arrest of appellant on the charge was made on the 12th of May following. The court confined the proof of character to the date of the arrest, when it should have been limited to the time of the discovery of the commission of -the offense.
Mr. Wharton on Criminal Law, sec. 638, lays down the proposition, in general terms, that proof of general character subsequent to the discovery of the perpetration of the ■offense is not competent; but all the authorities cited by bim in support of the proposition do not support the conclusión. Those cited to which we have had access are cases in which the question does not necessarily arise, although
Counsel for appellant make the question that the court below erred in refusing to allow the accused to remain on bail during the progress of the trial. The record’ shows that bail had been previously given ; that the surety on’ the bail bond was amply good; that he came into court on the calling of the cause, and offered to stand on the’bond during the trial, and that the court refused to allow this to be done, but ordered the accused to be placed in custody of the officers of the court. • At the time appellant made the application to remain on bond, and his surety appeared and offered to stand on the bond, appellant filed an affidavit stating that his freedom from custody was necessary to the preparation and conduct of his case. This we think was error, and, in view of the refusal of the court to allow a continuance of the cause on account of’the absence of Straus, by whom an alibi may have been proved, and in view of the fact that the personal liberty of the accused may have enabled him to secure the attendance of that witness, the error is a reversible one. Section 183 of the Code provides that the accused shall remain in actual custody during a trial for felony, unless his bail appear personally in court and consent that he may remain on bail, in which case he shall be-placed in actual custody when the case is finally submitted to the jury.
Section 229 of the Criminal Code provides, that during the trial of an indictment for felony, the defendant shall be committed to and' remain in the custody of the proper officer.
The next question is as to whether the proof supports ■the allegations of. the indictment. It is alleged that the ■bonds claimed to have been stolen were of a certain description, issued by the city of Cincinnati, Ohio, and signed and countersigned by certain persons. The evidence admitted was to the effect that the holder of -the bonds purchased them in open market for full value; that they were genuine, and that the person who purchased them from appellant paid full value. Was such evidence competent, and did it go to establish the fact that the bonds were issued by authority, were signed, executed, and delivered ? It should have been observed that the bonds, on their face, import what is alleged in the indictment as to the signing and execution by authority of the State, and that they were read in evidence. We are of opinion that such evidence was competent, and that from the evidence indicated the jury were authorized to find the existence of all the material facts alleged in the indictment,. and necessarily put in issue.
For the reasons indicated the judgment is reversed, and cause remanded, with directions for a new trial.