
    *Hewitt v. The Commonwealth.
    April Term, 1867.
    Richmond.
    i. Continuances-Judicial Discretion-Appellate Practice.- -A motion for a continuance is addressed to the sound discretion of the court, under al] the circumstances of the case; and although an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous.
    
      2. Same — Absence of Material Witness. — As a génerai rule, where a wifpess for a .party fails to appear at the time apppintedfor the trial, if such p.arty show that a subvcena for the witness has been returned executed, or If not so returned, was delivered to the proper officer of the county or corporation in which the witness resides, a reasonable time before the time for the trial, and shall swear that the witness is material; and tbat'he cannot safely go to trial without his testimony, a continuance ought to be granted, if there be reasonable ground to believe that the’attendance of the w.itness át the next term can be secured; especially if the case has not been before continued for the same causé.
    3. Same — To Delay Trial-Continuance Should Be Re» fused.— Where the circumstances satisfy the cour$ that the real purpose in moving for a continuance is to delay or evade a trial and not to prepare for it, then though' the witnesses have been summoned, and the party has sworn to-their materiality, and that he cannot safely go to trial without them, the continuance should be refused. ■ ■ ' - •
    At the April .term 1863 of the Circuit court of Bedford county, Wilson C.-Hewitt was indicted for.an assault, and Rattery committed in February, 1863, upon Rowland!). Buford.
    This indictment was made upon the evidence . of Rowland D. Buford, a witness, palled on.by the grand jury. A summons.,, was, thereupon award,ed, returnable to the next term, of the court, but on the next. *day, viz: on the 1st of May, on the motion of the attorney for the commonwealth, writs of capias were awarded against Hewitt to the sheriff of every county and the sergeant of every corporation in the state, returnable to the next term. ,
    ,On the 22d' of -September,! 1863, the defendant was arrested by the- sergeant of the . corporation .of Lynchburg under the process ' sent to-him; and he entered into a-recognizance - with surety- for his,appearance -on. the first day of the-next term of the, Circuit court of Bedford. , ,
    "At the April'term of the court - for 1864 Hewitt appeared by counsel, and an issue was m'áde • upon - the plea of ‘ ‘not guilty. ’ ’ And the case' coming- -on -for trial on the 27th of April; 1864, the jury'found him. guilty, arid-assessed upon him a fine of two-thousand dollars-; for which and the-costs-the court entered up' a jüd-gment.- '
    . When the cause was called for trial He-' witt, by his counsel, 'moved the court for a continuance, on the ground of the absence of material witnesses, viz; John" Downes and John Hurley; and in support of his' 'motion' offered ins 'own affidavit. This affidavit was full as to the materiality, &c., of the witnesses. ’ It bofe date the 23d day of April, 1864. , It was, admitted that .a subpoena had been regularly "issued for ' these witnesses, and had been served on John Downes a short time .before he- left this state for Baltimore, where he resides; and as to John Hurley, returied not found. A. 'subpoena for' Hurley had" aiso been' sent to Richmond; and "wás returned hot found. And the sergeant added after'the "return :' “This man has'beeh di'scfiarged from Castle Thunder, and don’t know, where he ‘has gone. ,T. U. D., Serg’t,” Hurley was known to have "been in Richmond a short "' time before ,thé subpoena was sent "there. He had resided at Liberty until thé winter of .1863-4," w,hen .he ,was arrested *by th.e military authorities and sent ' to Castle Thunder at'Richmond.
    It was also, admitted that He.witt was in Liberty, on the . morning of the ,day the motion for. a,.continuance was made,-and that he left in the cars going west; and the affidavit bore date two. days before the court. commenced. , , ....
    • The oourt refused -to continue -the cause, - and ruled -the defendant to ¡trial, because the oourt was of opinion that the defendant was attempting to. evade a1 trial by absenting himself from court, so' as to prevent a personal examination in open court, on his motion for ■ a continuance. To this opinion of the court, Hewitt excepted; and obtained a writ of error to the judgment.
    Mosby, fon the appellant, and The Attorney General,, for the commonwealth, submitted, the case.
    
      
      Continuances — Judicial Discretion-Appellate Practice. — There is hardly a proposition of law better settled in Virginia than that a motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case; and that, although an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a j udgment on that ground unless such áction was plainly erroneous.
      The principal case is cited as authority for this proposition in Harman v. Howe, 27 Gratt. 686; Roussell v. Com., 28 Gratt. 935; B. & O. R. Co. v. Wightman, 29 Gratt. 447; Walton v. Com., 32 Gratt. 858, 864; The Bland & Giles Co. Judge Case, 33 Gratt. 447; Pairo v. Bethell, 75 Va. 828; Keesee v. The Bank, 77 Va. 132; Com. v. Mister, 79 Va. 10; Carter v. Wharton. 82 Va. 267; Shelton v. Com., 89 Va. 454, 16 S. E. Rep. 355; Welch v. Com., 90 Va. 321, 18 S. E. Rep. 273; Phillips v. Com., 90 Va. 403, 18 S. E. Rep. 841; Norfolk, etc.. R. Co. v. Shott, 92 Va. 45, 22 S. E. Rep. 811; Davis v. Walker, 7 W. Va. 450; State v. Betsall, 11 W. Va. 727; Riddle v. McGinnis, 22 W. Va. 268; Buster v. Holland, 27 W. Va. 534; State v. Harrison, 36 W. Va. 738, 15 S. E. Rep. 985; State v. Maier, 36 W. Va. 770, 15 S. E. Rep. 996. See, in accord, Hook v. Nanny, 4 H. & M. 157, and note.
      
      See also, foot-note to Harman v. Howe, 27 Gratt. 678; foot-note to Roussell v. Com., 28 Gratt. 930; foot-note to Walton v. Com., 32 Gratt. 855; foot-note to The Bland and Giles County Judge Case, 33 Gratt. 445.
      In Myers v. Trice, 86 Va. 837, 11 S. E. Rep. 428, the court said: “Professor Minor says: The continuance of a cause to another term of the court, is a matter peculiarly within the discretion of the court below, and the United States courts hold it, as they hold all other matters of discretion, to be no ground upon which error can be imputed. * * * In Virginia the ill exercise of the discretion may be a ground of error; but it is a well established principle, that the appellate court will only reverse a judgment for that cause, when the refusal of the continuance is plainly erroneous; and so in other cases of discretion, as in the second examination of witnesses, etc., citing Brooks v. Wilcox, 11 Gratt. 411; Hewitt's Case, 17 Gratt. 627; Fant v. Miller, 17 Gratt. 187; Wright v. Rambo, 21 Gratt. 158; Harman v. Howe, 27 Gratt. 676. See 4 Min. Inst., pt. 1st, p. 869.
      “The principle thus deduced from the authorities referred to, is unquestionably stated with accuracy by the learned author, but it does not quite reach the peculiar circumstances of the case in hand, which rests upon the ground of mistake. The principle applicable in the present case is correctly and clearly stated in 3 Am. & Eng. Enc. Law, p. 817, where the authorities are collected, and where it is said; ‘When it appears in- the progress of a-trial that a cause, if required to proceed,1 will suffer from the hon'est mistake Of the party or' his counsel, a continuance should be granted. But the mistaken advice of counsel'not to prepare for trial is insufficient; citing Earnest v. Napier, 15 Ga. 306; Bargin v. Riggs, 40 Ill. 61; Kelsey v. Berry, 40 Ill. 69. And the same principle was recognized by this court in Hook v. Nanny, 4 H. & M. 157, and note.
      
      “These authorities distinctly announce the proposition that a motion for'a continuance is addressed to the sound discretion 'of the court, in view of all the circumstances óf 'th'e base; and'that an appellate court will review and reverse the action of an inferior court, if, in'the exercise of’its'discretion, it has-harshly or unjustly refused a continuance, and especially where there is nothing in the circumstances to'warrant the conclusion that-the real purpose in moving for a continuance is to delay or evade a trial,'and not to prepare for it.”
    
    
      
      Same — Absence of Material Witness.-' — The principal case was cited as'to this point in Walton v. Com., 32 Gratt. 859; Carter v. Wharton, 82 Va. 267; Welch v. Com., 90 Va. 321, 18 S. E. Rep. 273; Phillips v. Com., 90 Va. 403, 18 S. E. Rep. 841; Davis v. Walker, 7 W. Va. 450.
      See also, in" accord, Higginbotham v. Chamberlayne, 4 Munf. 547; Deford v. Hayes, 6 Munf. 390; B. & O. R. Co. v. Wightman, 29 Gratt. 433, and foot-note.
      
    
    
      
      Same — To Delay .Trial — Continuance Should Be Refused. — The proposition-laid dp.wn in the,third head-, note was approved in Harman v. Howe, 27 Gratt. 686; Early v. Com., 86 Va. 925, 11 S. E. Rep. 795; Welch v. Com., 90 Va. 321, 18 S. E. Rep. 273; Phillips v. Com., 90 Va. 403, 18 S. E. Rep. 841; Riddle v. McGinnis, 22 W. Va. 268.
      Upon a motion for ,a continuance, upon the ground of the absence of a. material witness, thp court,, if" it sees cause to, suspept that the party is, mistaken, or that his.object is delayed, may. examine .him,, as to what he. .expects to. prove by the absent witness. Harris v. Harris, 2 Leigh 584.
      See generally, monographic note on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.
    
   MOJXTCUEE), P.,

delivered the opinion of the court:

A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and though an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous. As a general rule, where a witness for a party fails to appear at the time appointed for the trial, if such party show that a subpoena for the witness has been returned executed, or, if not so returned, was delivered to the proper officer of the county or corporation in which the witness resides, a reasonable time before the time for the trial, and shall swear that the witness is material, and that he cannot safely go to trial without his testimony, a continuance ought to be granted. 1 Rob. Pr. old ed. p. 250. The party thus shows, prima facie, that he is not ready for trial, though he has used due diligence to be so ; and in the absence of anything to *show the contrary, the court ought to give him credit for honesty of intention and to continue the case, if there be reasonable ground to believe that the attendant of the witness at the next term of the court can be secured, especially if the case has not been before continued for the same cause. But circumstances may satisfy the court that the real purpose of the party in moving for a continuance is to delay or evade the trial, and not to prepare for it, and in such case, of course, the motion ought to be overruled.

In this case a motion for a continuance was made by the defendant in the court below, on the ground of the absence of two material witnesses, Downes and Hurley; and he exhibited, in support of the motion, his own affidavit, stating in due form the materiality of the witnesses, and that he could not safely go to trial without their testimony. It was admitted that a subpoena had been regularly issued for said witnesses (directed no doubt to the sheriff of Bedford county, in which the prosecution was pending, though the fact is not so stated in the record), and served on the said Downes a short time before he left the state for Baltimore, where he resided, and returned “not found” as to Hurley. A subpoena for Hurley had been sent to Eichmond and returned “not found,” with a memorandum made by the officer at the foot of his return in these words: “This man has been discharged from Castle Thunder, and don’t know where he has gone. T. U. D., Sgt. ’ ’ Hurley was known to have been in Eichmond a short time before the subpoena was sent there. He had resided in Liberty (the county seat of Bedford, in which county the offence was charged to have been committed) till the winter of 1863-4, when he was arrested by the military authorities and sent to Castle Thunder at Eichmond. It was also admitted that the defendant Hewitt was in Liberty on the morning of the day on which *the motion was made, and that he left in the cars going we affidavit bore date two days before the court commenced. The court refused to continue the case, and ruled the defendant into trial, ‘ ‘because, ’ ’ as stated in the bill of exceptions, “the court was of opinion that the defendant was attempting to evade a trial by absenting himself from court, so as to prevent a personal examination in open court, on his motion for a continuance.” The case was then tried, and the jury found the defendant guilty and assessed his fine at $2,000, for which and the costs of the prosecution the court rendered judgment.

The offence for which the defendant was tried was an assault and battery on Eowland D. Buford, which would appear from the amount of the fine to have been an aggravated offence; though as the fine may have been, and probably was, assessed in Confederate currency, we cannot well estimate its true amount in good money. The indictment was found on the 25th of April, 1863, and though found on the testimony of Buford on whom the offence was charged to have been committed, yet it appears that he was not a voluntary prosecutor, but was called on by the grand jury to give evidence. When the indictment was found, a summons was awarded to answer it, returnable to the next term. But on a succeeding day of the same term, to wit, on the 1st of May, 1863, on the motion of the attorney for the commonwealth and for reasons appearing to the court, it was ordered that writs of capias be awarded against the defendant, directed to the sheriff of every county and sergeant of every corporation in the state, returnable to the next term. One of these writs, directed to the sergeant of the city of Lynch-burg, was executed on the defendant in that city on the 22d of September, 1863, when he entered into a recognizance with surety for his appearance on the *first day of the next term of the court, which was to be in a few days thereafter. As stated in the petition, there was no session of the court at the time fixed for that term, nor until the following spring term in 1864, to which time the defendants’ recognizance stood over by operation of law, and it bound him for his appearance then as if it had been taken with express condition therefor. Code, ch. 161, $ 15. Instead of making his appearance then, in discharge of his recognizance, and although he was in Liberty, the county seat of Bedford, on the morning of the day on which the case was called for trial, yet he left in the cars going west on the same morning (for what place bound, or on what business does not appear), leaving his affidavit aforesaid to be used as the ground-work of a motion for a continuance. Under these circumstances we cannot saj’’ that the court was not warranted in the opinion, “that the defendant was attempting to evade a trial by absenting himself from court, so as to prevent a personal examination in open court on his motion for a continuance.” And certainly we cannot say that the court plainly erred in refusing to continue the case.

Judgment affirmed: but without damages.  