Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Hale & Fee and R. H. Hairston, for Appellant.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, McCarran, J.:
Defendant in this case was indicted by the grand jury of Elko County for the crime of assault with intent to commit rape. The crime with which the indictment seeks to charge the defendant is alleged to have been committed on the 12th day of September, 1912.
1. As appears from the record, R. H. Hairston, Esq., was appointed by the court as attorney for the defendant, and on the 14th day of October the defendant, through his attorney, moved the court for a continuance of the trial of the cause, and in support of his motion filed his affidavit, setting forth in substance that he was the defendant in the above-entitled action; that he could not safely proceed to trial at the present term of the court on the ground that certain witnesses were absent, who resided in San Francisco, State of California; that the cause could not be tried with justice to affiant without the testimony of the said witnesses; that the said witnesses were material witnesses to the defendant; that the defendant would rely upon the defense of an alibi, and that the testimony of said witnesses was material in support of that defense; that the defendant had been in the company of the witnesses named, from the time of his arrival in the town of Elko until a few minutes before he was arrested; further setting forth as follows: That affiant will prove by said George Fisher and Nap O'Grimes that he was never at or near the place
where said crime is alleged to have been committed, and that affiant was at all times in their company. Affiant will prove by the said George Fisher and Nap O'Grimes that upon the day that said crime is alleged to have been committed, that he (affiant) and the said George Fisher and Nap O'Grimes were together, and were in Guldigar's saloon, and in a restaurant near Guldigar's saloon, the whole time, and affiant will corroborate said proof by the testimony of the bartender at Guldigar's saloon; that affiant has used due diligence to secure the testimony of the said George Fisher and Nap O'Grimes; he has caused counsel to place subpenas in the hands of the sheriff of the county of Elko, State of Nevada, but same were returned unserved; * * * that affiant believes the attendance or the testimony of the said George Fisher and Nap O'Grimes will be procured at the next term of this court, and that the grounds for such belief are as follows: Affiant knows the address of friends and relatives of the said George Fisher and Nap O'Grimes in San Francisco, Cal., and through them he will discover the whereabouts of the said George Fisher and Nap O'Grimes.
The motion for continuance having been denied by the trial court, and the cause regularly tried, and a verdict of conviction having been entered against the defendant, he thereafter moved the court for a new trial, setting up, as grounds in support of said new trial, the absence of material witnesses to establish the defense of an alibi. This motion having been denied, appeal is taken to this court from the judgment and from the order denying the motion for a new trial.
Appellant assigns error to the trial court for having overruled the motion for continuance, and in support thereof cites authorities. The question of continuance in criminal cases is one with which both text-writers and courts have variously dealt; and the rule laid down by Lord Mansfield in a very early case, setting forth three essential elements necessary to warrant a continuance, has been more or less generally adopted by courts in recent times. They are: First, that the witness is really
material and appears to the court so to be; second, that the party who applies has been guilty of no negligence; and, third, that the witness can be had at the time at which the trial is deferred. (The King v. D'Eon, 1 Blackstone's Rpts. 510; People v. Vermilyea, 7 Cow. N. Y. 369.)
The general rule, embracing the three elements herein set forth, has been enlarged upon to some extent, but the fundamental principle remains the same. From the very earliest times courts, in considering the question of continuance in criminal cases as well as in civil cases, have kept in mind certain essential elements as guides to the proper exercise of their discretion. In some jurisdictions it is expressly provided by statute that where the proof, which the accused expects to make by the absent witness, is material and cannot be satisfactorily made by other witnesses, and he has used due diligence to procure their presence, a continuance must be granted, unless the state will admit the truth of such evidence. Where statutes of this kind are found, they serve as a guide to the court in exercising its discretion in allowing or disallowing a continuance. Where it is shown that the evidence of the absent witness is material and admissible, and that the testimony, in view of the established facts, is not probably untrue, and that the attendance of the witness can probably be procured at another term, and that the facts expected to be proven cannot be obtained from other disinterested witnesses, these elements, together with the showing on the part of the moving party that he has exercised proper diligence to procure the attendance of the witness, have been generally accepted by the courts as essentials necessary to be established by the moving party, by reason of which the court would be authorized in granting the continuance. (9 Cyc. p. 172.)
2. The question of continuance in criminal cases is always a matter within the sound discretion of the trial court, and, unless the district court abused its discretionary power in refusing the continuance, its ruling upon
that phase of the case must be sustained. By its spirit and its humanity the law means to afford every reasonable opportunity to defendants in criminal cases to obtain their witnesses. However true this may be, the moving party is bound to give at least a reasonable assurance of their attendance at the time proposed for the continuance, and, if he fails in this respect, it is not an abuse of discretion to deny the motion.
3-5. The affidavit filed in support of the motion in this case, in our judgment, falls short of presenting the requisites necessary to authorize the court in granting the continuance prayed for. In paragraph 5 of the affidavit it is stated: That upon the day that said crime is alleged to have been committed the affiant and the said George Fisher and Nap O'Grimes were together, and were in Guldigar's saloon and in the restaurant near Guldigar's saloon, the whole time, and affiant will corroborate said proof by the testimony of the bartender at Guldigar's saloon. Here it is disclosed at least one other disinterested witness could have testified to the facts sought to be elicited from the witnesses Fisher and O'Grimes. Moreover, the affidavit of the bartender at Guldigar's saloon, referred to, might have been produced in support of the motion, if the same were made in good faith.
The affidavit, presumably with the view of showing due diligence, sets forth that subpenas for the absent witnesses had been placed in the hands of the sheriff of Elko County. Diligence which amounts only to the issuance of a subpena may well be regarded as of the very slightest. (State v. Chapman, 6 Nev. 320.)
The affidavit itself shows that neither the defendant nor his counsel had any knowledge or information as to the whereabouts of the absent witnesses. Moreover, the affidavit fails to give any assurance that might be considered reasonable that the attendance of the witnesses could be secured at any subsequent time. There was nothing stated in the affidavit from which the trial court could have even inferred that there was a reasonable
probability that their attendance could be had within any proper time. The affidavit sets forth that he absent witnesses reside in San Francisco, State of California, and, if this were true, they were beyond the power of the court to reach by process of subpena, and it devolved upon the moving party to present some satisfactory showing that he had reason to believe that the absent witnesses could be produced at some definite time in the future. Moreover, the motion should be supported by the reasons for such belief. (People v. Francis, 38 Cal. 183; State v. Chapman, 6 Nev. 320.)
Appellant, in his own opening brief, relies on the case of Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, and especially to that part of the decision in that case as follows: Where an application for continuance on account of the absence of material witnesses, coupled with an affidavit of such witnesses, showed due diligence in endeavoring to secure his presence and that his testimony, if true, would clearly prove an alibi for defendant, and ...