State v. Nicholson ( 1859 )

Vooehies, J.

The defendant, George Wilson, was found guilty of uttering a forged and counterfeit bank check, and sentenced to imprisonment at hard labor.

I-Ie asks relief at our hands, on the ground that his application for a continuance in the court below was overruled.

The petition for a continuance states :

“ That George Bingham, a resident of Vicksburg, State of Mississippi, Eli Shepherd, residing on Pearl River, Mississippi, and H. Wheeler, a resident of Covington, State of Kentucky, are material and important witnesses for him in his defence, and with all due diligence which he might use, it would be impossible for him to procure their attendance at this term of the court... .That he hopes and expects to obtain the attendance of said witnesses at the next term of your honorable court, and that the affidavit is not made for delay, but in order that justice may be done in the premises. That though the said witnesses do not reside within the jurisdiction of this court, and are not subject to its process, yet af-fiant has every reason to believe that said witnesses, who are his friends and are well acquainted with him, will repair instantly here to testify in his behalf, as soon as they are informed of his situation.”

The prisoner is entitled to a continuance, when a material witness is absent; but it must appear that due diligence has been used to obtain his attendance, and that his presence will be procured by the next term of court. This rule is not without important qualifications, one of which is, that the absent testimony must be within the process of court. Wharton Am. Cr. Law, p. 595.

It is, however, within the discretion of the District Judge, according to the circumstances of the case, to grant relief to the prisoner; but this court could not interfere with the exercise of that discretion by the Judge of the inferior court.

If the latter did not attach much weight to the' prisoner’s statement that, although his witnesses were non-residents and not subject to process of law, he had every reason to believe that they would willingly appear on his behalf, we cannot interfere.

As these witnesses were not subject to the process of the court, it was useless to inquire whether, before finding of the indictment, it was the duty of the prisoner to use due diligence to procure their attendance.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed.