25 Ky.L.Rptr. 2153
Court of Appeals of Kentucky.
April 20, 1904.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
James Hughes appeals from a conviction.

Appellant's affidavit for continuance, filed at the second term of the court after the return of the indictment, relied upon the absence of certain witnesses, who, it was asserted, would depose to important facts bearing on appellant's defense. It also sought to excuse appellant's apparent lack of diligence by pleading his ignorance of the proceedings in criminal trials, and that his counsel appointed by the court to defend him--he having been unable to employ counsel--neglected to take necessary and usual steps to obtain the attendance of the absent witnesses. The continuance at the first term after the indictment was returned was brought about by the absence of the two witnesses mainly relied on in this motion. It was then claimed, and is yet claimed, that they reside in an adjoining county. No process was taken for them, so far as the record shows, until after the case was called for trial at the term at which the last application for a continuance was made. The court is of opinion that one charged with crime before the court, being of years of understanding, must take notice both of the requirements and privileges of the law, and, furthermore, that the neglect of his counsel, whether it be of employed counsel, or those appointed by the court to defend for him, cannot avail the accused as a ground of continuance.

In the order overruling the motion for a continuance, the court recited that at the previous term of the court he explained to the defendant, in open court, and in the presence of his counsel, that he would be afforded, and was thereby awarded, compulsory process to obtain the presence of all his witnesses. The propriety of the court's recital is questioned. An affidavit filed by the accused for a continuance cannot be rebutted by counter affidavits. Generally its truth must be admitted on the hearing. As the purpose of the affidavit is to apprise the court of the state of facts with which he is not presumed to be acquainted, that he might act upon it with intelligence and fairness, it would, of course, not be necessary to file an affidavit at all if the only matter sought to be shown was something that had occurred in the presence, or was presumably within the knowledge, of the court. Such fact might be shown in the record merely by a bill of exceptions. If, though, the accused sees proper to set it out in an affidavit, the court should not be bound to admit that as true which he knows is not true. To do so would put the court and the administration of justice virtually in the hands of a conscienceless person accused of crime. It was not inappropriate, in our opinion, for the court to recite in an order, or to have incorporated in a bill of exceptions, an occurrence in court that would set it right upon the record, for the protection of all parties to the suit, and for the guidance of this court upon an appeal if an appeal should be taken. The trial judge did postpone the last trial for four days, and awarded compulsory process for appellant's absent witnesses, and appointed a special bailiff to go to the adjoining county to find them. The process was returned not executed because the witnesses could not be found. The court has done all that it should reasonably have done, and all that appellant had the right to ask, in the matter of awarding process to require the attendance of witnesses, and in bringing about a speedy and fair trial of the case. Indeed, it was not incumbent upon the court to have allowed read the affidavit as the depositions of certain absent witnesses who lived in the county, and whose presence might have been obtained apparently by even slight diligence.

The instructions given by the court, to which some complaint is made, have been frequently approved heretofore in other cases from the same and other circuits.

Perceiving no error prejudicial to the substantial rights of appellant, the judgment is affirmed.

Ky.App. 1904.
80 S.W. 197, 25 Ky.L.Rptr. 2153


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