People v. Chutnacut

COOPER, C.—

Defendant was convicted of grand larceny, and appeals from the judgment and order denying his motion for a new trial. He claims that the court erred in denying his motion to postpone, in denying his challenge to a juror, and in regard to instructions given and refused. A motion for the postponement of a case on the ground of the absence of a witness rests very much in the discretion of the trial court. It is only in a plain case of abuse of such discretion that we would interfere. The affidavit on which the motion was based stated that two witnesses, named therein, had been subpoenaed and were not in attendance; that the evidence was 'claimed to be material, for the reason that the prosecution claimed that on the twenty-eighth day of February, 1903, at about six o’clock p. m., the defendant and one Syvoymoit, with two other Indians, stole the cow described in the information; that the defendant expected to prove by the absent witnesses that at the time of the alleged larceny Syvoymoit was at their house, some three or four miles distant from the place where the larceny was committed. In other words, the defendant

[684]

expected to prove an

alibi

as to Syvoymoit, but Syvoymoit was not a defendant, and was not being tried. The evidence was therefore wholly immaterial, unless it might have been for the purpose of impeachment under certain conditions that might have arisen. Certainly where the conditions must arise during the trial under which certain evidence might be admissible for the purposes of impeachment, the court did not abuse its discretion in denying the continuance. Furthermore; the affidavit did not show that the witnesses could not be reached by attachment, nor that they could reasonably be expected to have been procured if the court had granted the motion.

The court did not err in refusing to allow the defendant’s challenge to the juror Airhart on the ground of actual bias. In cases where the evidence is such as to be capable of only one construction, and plainly and clearly shows the bias of the juror, the action of the trial court in disallowing the challenge is reviewable here.

(People