State v. Lund , 49 Kan. 580 ( 1892 )

Opinion by

Green, C.:

On the 21st day of March, 1892, an information was filed in the district court of Harper county, charging C. Lund, in two counts, with selling intoxicating liquors in violation of the prohibitory law. The defendant was immediately arrested, and, the court being in session, the case was assigned for trial, over the objection of the defendant, for March 30, following. Two days before the case was called for trial the defendant made an application for a continuance. Upon the hearing of the motion, the county attorney consented to the reading of the affidavit of the defendant as to what the absent witnesses would testify to as the evidence of such witnesses. The motion for a continuance was then overruled, and the case was tried on the day it had been set down for hearing. The jury failed to agree upon a verdict, and the casé was again assigned for trial, at the same term of court, on the 4th day of April. The defendant filed a second motion for a continuance, in which he set up the evidence of the same absent witnesses, the fact of the first trial, and the failure of the jury to agree upon a verdict. The court overruled the second motion for a continuance, and the state did not consent to treat the affidavits as the depositions of the absent witnesses. The second trial resulted in a verdict of guilty on both counts. A motion for a new trial was overruled, and the defendant was sentenced to pay a fine of $200, and ordered committed to the jail for 60 days. He appeals from such judgment and sentence.

It is first claimed that the court erred in setting the case down for trial on March 30, 1892, over the objection of the defendant. It is a sufficient auswer to this contention to say that the code of criminal procedure authorizes it: “If the defendant appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause.” (Gen. Stat. of 1889, ¶5222.) It appears that the defendant had over a week to employ counsel and prepare for trial. This, we think, was ample time, and the court committed no error in setting the case down for trial.

It is further urged by the appellant that the court erred in overruling the second application for a continuance, without requiring the state to treat the affidavits of the defendant as the deposition of the absent witnesses. This is more serious. The state upon the first trial had consented that the affidavits might be read. In the second application they were substantially the same. If the showing made in the first instance was sufficient to impose the statutory requirement upon the state to consent to the reading of the affidavits as the deposition of such absent witnesses, we cannot see why the court should not have imposed the same essential condition upon the state when the second application was heard. We are of the opinion that the court erred in overruling the second application for a continuance.

It appeared from the affidavits of the defendant that there were three absent witnesses, whose evidence was material. The affidavits set forth the testimony that each one would give, which, if true, would tend to establish the fact that the defendant did not make the sales of intoxicating liquors charged in the information and upon which the state elected to stand and ask for a conviction. We think, under all of the circumstances, the court should have allowed the defendant to read the affidavits as the deposition qf the absent witnesses, or continued the case until the next term of court.

Por this error, it is recommended that the judgment and sentence of conviction be set aside, and a new trial be granted.

By the Court: It is so ordered.

All the Justices concurring.