Linn County v. Morris

Mr. Justice Moore, after stating the facts, delivered the opinion of the court. 1. It is contended by defendants’ counsel that the court erred in overruling their motion for a continuance, and that compelling them to go to trial before the indictments against Morris had been disposed of was a denial of justice. While the statute permits a court, upon a proper showing, to postpone the trial of a cause on account of the absence of evidence (Hill’s Ann. Laws, § 179), the rule is well settled in this state that the granting or refusal of a motion for a continuance is discretionary, and will not be reviewed on appeal unless it satisfactorily appears that there has been an erroneous exercise of judicial authority: State v. O’Neil, 13 Or. 183 (9 Pac. 284) ; State v. Hawkins, 18 Or. 476 (23 Pac. 475); State v. Howe, 27 Or. 138 (44 Pac. 672); State v. Fiester, 32 Or. 254 (50 Pac. 561); State v. Wong Gee, 35 Or. 276 (57 Pac. 914); Lew v. Lucas, 37 Or. 208 (61 Pac. 344). In Mitchell v. Campbell, 14 Or. 454 (13 Pac. 190), Mr. Justice Straiian, in speaking of the exercise of such authority, and the supervision thereof by an appellate court, says: “In ordinary cases the court will not interfere with the discretion of the trial court in matters of practice before it. The law has wisely vested those courts with very large discretionary powers in such matters; but it is a judicial discretion, not to be capriciously or oppressively exercised.” The judicial discretion that is not subject to review on appeal is such an exercise of authority in the mode of proceeding for the enforcement of rights or the redress of wrongs as is reasonably designed, according to fixed legal principles, to promote substantial justice: Powell v. Dayton S. & G. R. R. Co. 14 Or. 22 (12 Pac. 83); Thompson v. Connell, 31 Or. 231 (48 Pac. 467, 65 Am. St. Rep. 818); Hanthorn v. Oliver, 32 Or. 57 (51 Pac. 440, 67 Am. St. Rep. 518) ; Coos Bay Nav. Co. v. Endicott, 34 Or. 573 (57 Pac. 61). In Hyde v. State, 16 Tex. 445 (67 Am. Dec. 630), it was held that evidence produced at the trial will be considered in reviewing a refusal to grant a continuance, the court saying: “But in considering the case upon appeal, where the motion for a new [421] trial brings before us a statement of tbe evidence upon tbe trial, we do not feel bound to shut our eyes wholly to the facts of the ease in considering whether the judgment ought to be reversed for the refusal of the court to grant a continuance. If, upon the trial, there had appeared to be cause to apprehend that a continuance was improperly refused, a new trial must have been granted. But if, on the contrary, it very satisfactorily appears that the application for a continuance could not have been well founded in fact, it must afford an additional reason for refusing a new trial, or to reverse the judgment on that ground.” 2. In the light of this rule we will examine the findings of fact as an epitome of the evidence, to determine whether any error was committed in refusing to postpone the trial. The court found that Morris, as treasurer, had in his possession at the close of his first term, in addition to' the money belonging to Linn County, then on deposit in the banks, the sum of $1,845.26, and that, in the absence of any evidence tending to show that he had converted this sum to his own use during his first term, the court, by invoking the disputable presumption that official duty had been regularly performed (Hill’s Ann. Laws, § 776, subd. 15), deduced the fact that Morris paid this sum over to himself as his successor in office. The court further found that he failed to account for the sum of $3,410.80, of which $1,845.26 of the money so received during his first term formed a part. The bill of, exceptions, in explaining the method of reaching this conclusWn) is as follows: “The plaintiff, to further sustain the issues on its part, introduced the books and accounts kept by the said P. Gr. Morris as such treasurer during the first term of office, showing that at the close of his said first term the said Morris, as such treasurer, besides the money deposited in the banks and other moneys, all being the property of the plaintiff, had in his possession and custody as such treasurer the sum of $1,845.26, not otherwise accounted for, the same being the property of the plaintiff. There was no other evidence, except that derived from said books, as above stated, showing or tending [422] to show that the said sum of $1,845.26 was or was not turned over by the said Morris to himself as his own successor at 'the beginning of his second term of office as such treasurer of Linn County, Oregon.” If Morris’ codefendants had been sureties on his first official undertaking, no prejudice could have resulted from the court’s refusal to grant a continuance, for, having covenanted to answer for the principal’s default, the sureties could have no legal cause to complain on the ground that their obligation was being enforced. Flinn’s affidavit shows that, if the indictments against Morris were disposed of, he would testify that the apparent defalcation occurred during his first term. The transcript discloses that the defendants called Morris as their witness, and propounded to him a question in regard tb this matter; but he, claiming the privilege which the law guaranties in such eases, was excused by the court from answering the interrogatory. It will thus be seen that a possible injustice has been done to the codefendants herein, whereby they are adjudged to pay a charge of $1,845.26 which should have been imposed upon the sureties on Morris’ first official undertaking. The district attorney had charge of the criminal action against Morris, and also conducted the trial of this action. He may have thought that by trying this action first he could obtain evidence with which he might secure convictions on the indictments, and for this reason adopted the method pursued; but.by doing so a great injustice may have been inflicted upon the codefendants. In State v. Harras, 22 Wash. 57 (60 Pac. 58), it was held that when a person charged with the commission of a crime asked for a continuance on the ground that the evidence of one convicted of perjury was important for the defense, and that an appeal was pending from such conviction, it was error to deny a continuance until the appeal was determined. Mr. Chief Justice Gordon, speaking for the majority of the court, in deciding the ease, says: “But we cannot overlook the fact that appellant has been deprived of the benefit of the testimony of a witness, not because of any act for which he is responsible, but because of an illegal judgment of conviction against such [423] witness. Manifestly, lie has not had the benefit of those rights which are vouchsafed to him by the constitution, among which is the right to have witnesses examined in his own behalf. He has committed no act by which the right has become forfeited. The error in the Guse Case was not of his making, nor is it for this court to say that the testimony of Guse would have availed the defendant nothing. If he should testify before the jury as set forth in the affidavit for a continuance, and the jury should believe his testimony, it would entitle the appellant to acquittal; and the question of the credibility of Guse would be one resting solely with the jury. Here is a condition never contemplated by the legislature when it specified what should constitute a sufficient cause for continuance. If the defendant has been deprived of the right to make a defense through no failure or neglect of his own, it would be a shame and a reproach to the law to hold him accountable for the law’s mistake. The ease involves something more than a mere question of the exercise of discretion by the trial judge in refusing an application for a continuance. It involves the larger question of a defendant’s right to have witnesses examined in his behalf. It involves the constitutional right of fair trial. Better —far better — that the course of justice be slow, than that in making haste we should break down those safeguards which experience has shown to be necessary for the welfare and protection of the rights of the citizen. The argument of the prosecution does not meet the question. It is not enough that the record should satisfy us of the actual guilt of the prisoner. The duty is upon the state to demonstrate his guilt by legal evidence, upon a fair trial, where no constitutional or legal right is denied him.” Minn’s affidavit shows that Morris was the only person by whom the defendants could expect to prove that the entire defalcation did not occur during his last term of office. Fear of conviction under the indictments evidently restrained him' from testifying in relation to this important matter, and, as the district attorney had charge of the criminal actions, and was apparently holding the indictments in abeyance until this action was tried, we think the court exer [424] cised its authority erroneously in not postponing the trial herein until the indictments were disposed of. It follows from this conclusion that the judgment is reversed, and a new trial ordered. Reversed.