Commonwealth v. Donovan

99 Mass. 425

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1868
• Status: Published

Opinion

Wells, J.

Such incidents of the trial as motions for con tinuance or postponement are within the discretionary power of the judge presiding, and are not open to exception or revision by this court. Reynard v. Brecknell, 4 Pick. 302, Converse v. Carter, 8 Allen, 568. The practice of allowing such motions, when made on account of the absence of a witness, to be met by a concession that the witness would testify as stated in the affidavit accompanying the motion, giving to it the force and effect of a deposition of the witness, is generally adopted in our courts in civil cases. It has also been allowed in criminal proceedings, with the sanction of this court. Commonwealth v. Knapp, 9 Pick. 496, 515. It is true that in some cases such a concession would be a very inadequate substitute for the testimony of the absent witness. In such cases it might be proper for the court to require the facts themselves to be admitted, or to grant the postponement. But it would be impossible to lay down any rule of law as a guide by which to determine the question. All the circumstances which bear upon the propriety of one course or the other, the evidence of diligence, the indications of good faith or the contrary, the importance of the testimony, and the means of supplying the deficiency from other sources, are before the judge at the trial as they cannot be presented to any revisory tribunal. These considerations show the propriety of holding the whole matter of continuance or postponement to be entirely within the discretion of the judge at the trial. They apply to criminal as well as to civil causes. The statute authorizes exceptions in “ cases civil or criminal ” in the same terms, and limits them to “ matters of law.”

Exceptions overruled.