State v. Dalcour

Supreme Court of Louisiana November 3, 1919

State v. Dalcour, 145 La. 1008 (La. 1919)

83 So. 223; 1919 La. LEXIS 1823

Sommerville

Opinion of the Court

SOMMERVILLE, J.

When defendant was first called for trial he sought and obtained a continuance on the ground of the absence of a material witness. When the case was called the second time for trial he asked for a continuance because of the absence of the same alleged material witness, who appeared to be a resident of the state of Texas.

[1] In denying the motion for continuance the district judge said that the application had been made merely for delay, and the second application for a continuance was refused. The matter of continuances is largely within the discretion of the trial judge, and the ruling thereon will not be reviewed unless it is shown that the discretion has been, abused. It has not been abused in this case, •

[2] The witness was not only absent in another state, but there was no assurance given that he would return to this state on any future trial of the case. State v. Richard, 127 La. 414, 53 South. 669; State v. Hawthorn. 134 La. 979, 64 South. 837; State v. Allen, 129 La. 733, 56 South. 655, Ann. Cas. 1913B, 454; State v. Hill, 135 La. 730, 66 South. 160. Besides, the district attorney offered to admit that the absent witness, would, if present, swear in the' manner indicated in the application for a continuance ;v but defendant declined the offer. There certainly was no abuse of discretion by the district judge in refusing a continuance.

[3, 4] Another bill of exceptions was taken to the use of certain language by the district attorney to the jury in his argument. The language was not objected to at the time that it was used; and the objection comes too late to be considered. Besides, as stated by the judge, the language was not used by the district attorney so as to prejudice the defendant on account of race or other condition. The district attorney simply recited the testimony of one of the witnesses, and referred to the defendant as a negro. This same reference was made by the defendant’s attorney during the whole course of the trial. There was no prejudice shown in the use of' such language, even if it could be considered by the court at this time.

Defendant has not made an appearance in this court.

The judgment appealed from is affirmed.

Reference

Full Case Name: STATE v. DALCOUR
Cited By: 5 cases
Status: Published
Syllabus: (Syllabus by Editorial Staff.) 1. Criminal law &wkey;>1151 — Continuance; REVIEW OF COURT’S EXERCISE OF DISCRETION. The matter of continuances is largely within the discretion of the trial judge; and the ruling thereon will not be reviewed, unless it is shown that the discretion has been abused. 2. Criminal law Refusal to permit second application for continuance on ground of absence of witness, where there was no assurance that witness, who was in another state, would return on any future trial of the case, and where district attorney offered to admit that witness would, if present, swear in the manner indicated in application, was not an abuse of discretion. 3. Criminal law &wkey;>1037(l) — Appeal; necessity OF OBJECTION TO LANGUAGE OF COUNSEL. Alleged improper language by counsel in argument to jury will not be considered on appeal, where not objected to at time it was used. 4. Criminal law Reference to defendant as a negro, by district attorney in reciting certain testimony during argument to jury, was not prejudicial to defendant, where defendant’s own attorney made same reference during the whole course of the trial.