State v. Hawkins

47 A. 618, 18 Del. 474, 2 Penne. 474, 1900 Del. LEXIS 15

• Court: New York Court of General Session of the Peace
• Decided: April 24, 1900
• Status: Published

Opinion

Lobe, C. J.:

We have considered this matter. An affidavit has been filed alleging the absence from the State of a material witness, upon which is based an application for a continuance of this case until the next term. This question now being distinctly raised and considered, we think that the nature of the evidence ought to be disclosed in the affidavit, upon which the application is made for a continuance, so that the Court may be able to judge whether the facts are sufficient or not. You are to disclose in your affidavit what you propose to prove by the absent witness. You need not go into details; it is only necessary to state the substance of what you propose to prove, so that it may appear to the Court whether it is material or not.

An affidavit was thereupon filed in which the defendant deposed as follows:

“That he has a material witness who resides and now is outside the State of Delaware: that the name of said witness is William W. Power, and that said witness resides in the City of Philadelphia and State of Pennsylvania; that this deponent is unable to secure the attendance of said witness at this term of Court, but that he believes he will be able to secure his attendance at the next term; that the nature of the testimony of said witness is to prove documents and writings showing that the money alleged to have been embezzled by this deponent was not so embezzled, but that all of said money was expended by this deponent in pursuance of the instructions and directions of Charles C. Babbitt, the person whose money this deponent is alleged to have embezzled; and that this deponent believes he could not safely and properly go to a trial without said witness.”

Continuance allowed.