Unsel v. Commonwealth

Court of Appeals of Kentucky

Unsel v. Commonwealth

8 S.W. 144, 87 Ky. 368, 1888 Ky. LEXIS 61

CourtCourt of Appeals of Kentucky

DecidedApril 28, 1888

StatusPublished

Cited by2 cases

This text of 8 S.W. 144 (Unsel v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Unsel v. Commonwealth, 8 S.W. 144, 87 Ky. 368, 1888 Ky. LEXIS 61 (Ky. Ct. App. 1888).

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Opinion

JUDGE BENNETT

delivered the opinion of the court.

The appellant, Unsel, was fined one hundred dollars before a justice of the peace of Daviess county for assault and battery. He appealed to the circuit court, and was there fined seventy-five dollars. He has appealed to this court.

He filed his affidavit for a continuance in the circuit [369]*369court ou the ground of the absence of two witnesses, Floyd and Woolf oik. Woolf oik, after the affidavit was filed, appeared as a witness; thereupon, the Commonwealth admitted the affidavit as to Floyd, to be read as his deposition; thereupon the court forced the appellant to try, notwithstanding his objections.

The main ground relied upon for a reversal is, that the act of the Legislature, approved May the 15th, 1886, allowing the Commonwealth to admit the statements of a defendant’s affidavit in a criminal case, as to what his absent witness would prove, to be read as the witness’s deposition, is unconstitutional. We can not consider the question, for the reason that the appellant’s affidavit failed to show that he'was entitled to a continuance on account of the absence of Floyd. The affidavit says that the appellant “has had process for Floyd at this term of court,” and that he was not served, “and when the case was postponed last Saturday he took an attachment for Woolf oik, and an alias process for Floyd; both of which have not been served.” There is no statement in the affidavit that either process for Floyd was put in the hands of an officer to be served. The process, as far as the affidavit discloses, may never have left the hands of the appellant.

The appellant having failed to disclose proper diligence to obtain the attendance of the witness,. Floyd, he was not entitled to a continuance. Therefore, the Commonwealth having admitted ’ the affidavit as to Floyd, to be read as his deposition, the appellant, rather than being prejudiced, obtained an advantage.

The judgment is affirmed.

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JUDGE BENNETT

delivered the opinion of the court.

The appellant, Unsel, was fined one hundred dollars before a justice of the peace of Daviess county for assault and battery. He appealed to the circuit court, and was there fined seventy-five dollars. He has appealed to this court.

He filed his affidavit for a continuance in the circuit [369]*369court ou the ground of the absence of two witnesses, Floyd and Woolf oik. Woolf oik, after the affidavit was filed, appeared as a witness; thereupon, the Commonwealth admitted the affidavit as to Floyd, to be read as his deposition; thereupon the court forced the appellant to try, notwithstanding his objections.

The main ground relied upon for a reversal is, that the act of the Legislature, approved May the 15th, 1886, allowing the Commonwealth to admit the statements of a defendant’s affidavit in a criminal case, as to what his absent witness would prove, to be read as the witness’s deposition, is unconstitutional. We can not consider the question, for the reason that the appellant’s affidavit failed to show that he'was entitled to a continuance on account of the absence of Floyd. The affidavit says that the appellant “has had process for Floyd at this term of court,” and that he was not served, “and when the case was postponed last Saturday he took an attachment for Woolf oik, and an alias process for Floyd; both of which have not been served.” There is no statement in the affidavit that either process for Floyd was put in the hands of an officer to be served. The process, as far as the affidavit discloses, may never have left the hands of the appellant.

The appellant having failed to disclose proper diligence to obtain the attendance of the witness,. Floyd, he was not entitled to a continuance. Therefore, the Commonwealth having admitted ’ the affidavit as to Floyd, to be read as his deposition, the appellant, rather than being prejudiced, obtained an advantage.

The judgment is affirmed.

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Bluebook (online)

8 S.W. 144, 87 Ky. 368, 1888 Ky. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unsel-v-commonwealth-kyctapp-1888.

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