Sevier v. State

WRIGHT J.

delivered the opinion of the Court:

The plaintiff in error and one John Wilson at the August Term, 1859, of the Criminal Court of Davidson county, and on the second day of the month, were jointly indicted for malicious shooting. At the same term of the court and four days thereafter, the plaintiff in error, being in custody, the Attorney General, on the part of the State, elec-ed to go to trial as to him in the absence of the other defendant. The plaintiff in error thereupon, by his counsel, moved the court to continue the cause on account of the absence of said Wilson, which motion was overruled and he • was put upon his trial and convicted and his term of service for the offence, fixed by the jury, at six years confinement in the penitentiary of the State. He moved for a new trial, but tbis was also overruled by tbe Criminal Court, and judgment pronounced upon tbe verdict, and be bas appealed to tbis court.

In.support of tbe motion for a continuance, be read bis own affidavit in wbicb be stated that said Wilson was a material witness for bim ; that be could not go safely to trial without bis testimony; that be could not prove tbe same facts so fully by any other witness ; that a subpoena bad been sued out for bim and returned not found, and that be was not in attendance ; that be resided in tbe county ag a steamboat-man, and be believed that be could have bim at tbe next term of tbe court; that be would have bad tbe subpoena issued sooner for tbe witness, but be believed be would be at tbe court, it being low water and be remained at borne at low water; that tbe continuance was asked not for. delay, but that justice might be done bim.

A new trial is now claimed at tbe bands of tbis court, because tbe continuance was refused. Tbe writer of this opinion was under the impression that tbe affidavit was defective in not stating, even though it was tbe first term, what Wilson, tbe witness, would swear to; but in this be finds himself clearly mistaken. Nelson v. the State, 2 Swan 482. ⁽¹⁾ But if an affidavit so general in this respect is to be allowed, surely, in other respects, it should contain every reasonable certainty, especially where, as is tbe case here, an accomplice is to be tbe witness. An application for a continuance is addressed to tbe sourd discretion of tbe Criminal Court, and we have repeatedly held that we interfere with tbe judgments of inferior courts, with reluctance, upon matters of practice or things involving an exercise of legal discretion, and that we will never do so, except in cases of palpable mistake, without the correction of which, injustice must necessarily be done. 5 Hum. (567;) Ib. 599 ; 10 Yerg. 259; Meig’s Rep. 197; 2 Swan, 486. ⁽²⁾

Conceding then that under some circumstances, John Wilson might have been a competent witness in the case, still, we cannot say the Criminal Court committed any error in refusing the continuance. Erom aught-that appears in this affidavit, Wilson may have been absent by consent, or procurement of the defendant on purpose to obtain a continuance.^ He is not shown to have been out of the eounty, nor any valid reason given why he was not served. Nor is it shown when the subpoena issued and what time was allowed the officer, if indeed an officer had it, to execute it. And it is reasonably to be inferred from the affidavit itself, that proper diligence would have insured the presence of the witness. Another matter is to be observed, and which we suppose it proper for us now to look at, and that is, that it is not rendered probable, from any thing disclosed in the affidavit, that the plaintiff in error is innocent of the offence whereof he stands convicted. Bellew v. the State, 5 Hum. 568-8 ; Knight v. the State, 5 Hum. 599, 600.

The facts upon which the prisoner was convicted not being set forth in the record, we cannot doubt his guilt; and there being no error in refusing the continuance, the judgment of the Criminal Court is affirmed.

Judgment affirmed.

(1) State v. Morris, 1 Tenn, 211, 220.

(2) Gray v. The State, 10, Yerg. 258, 259; Goodman v. The State, Meigs, 195, 197, Nelson v. The State, 2 Swan, 482, 486.