People v. Jenkins

McKee, J.: Defendant was convicted of the offense of altering marks and brands, and appeals from the judgment and an order denying his motion for a new trial.

[5]He assigns as errors, that the Court erred in refusing to postpone the trial of the cause ; in overruling objections to a question propounded to a witness in cross-examination in the course of the trial; in giving an instruction to the jury after they had retired for deliberation, without any report of a disagreement between them as to facts, or any request, for additional instructions as to law; and in denying defendant’s motion for a new trial.

• 1. The affidavit for a postponement of the trial was insufficient. It showed that there were two persons without whose testimony the defendant alleges he could not go safely to trial, one of whom permanently resided at the place of the trial, and the other in an adjoining county; but it did not show due diligence in endeavoring to procure the attendance of either, for the resident at the place of trial, it was stated, left for San Francisco on the 23rd of May, 1880, and a subpoena was not issued for him until the day after he had gone; and no steps whatever appear to have been taken to obtain the attendance of the others. The affidavit showed, also, that the defendant expected to prove by those persons certain facts which, it was stated, could not be proved by any other person, “ except as herein otherwise stated ”; but there is nothing set forth in the affidavit as an exception. Besides, the affidavit itself was not made by the defendant; it was made on his behalf by his attorney. An attorney cannot, in the nature of things, be supposed to have cognizance of the witnesses to an alleged criminal transaction, or of the facts which they can prove in relation to it, except so far as he may have been informed of one or the other by his client. Upon such a subject, affidavits, when required, should be made by the defendant himself, or some one else who has direct knowledge of the facts. But the Court below found from the affidavit itself and a counter-affidavit, both of which were read upon the hearing of the application, that the testimony required from the persons named in the affidavit, made on behalf of the defendant, was attainable by two or more witnesses who were then in attendance upon the Court. The testimony wanted by the defendant was, therefore, merely cumulative, and as that appeared to the satisfaction of the Court, and the affidavit itself did not show that the application for a postpone[6]