In such states, where one indicted for a felony may not be convicted of a misdemeanor, upon a subsequent indictment for a misdemeanor growing out of the same transaction, the former trial for the felony is no defense. Conversely, if one is indicted for the felony, a plea of former jeopardy for a misdemeanor growing out of the same transaction is no defense. For instance, where assault with intent to rape is merely a misdemeanor, former jeopardy for such offense is not a defense to an indictment for rape.79 Conviction of a minor offense included in the charge of the indictment is acquittal of the higher offense and may be pleaded in a bar of a subsequent prosecution for the higher offense.80 § 954. Injury affecting more than one person.-Where one act similarly injures more than one person, there is but one crime. Therefore acquittal or conviction for injuring one is a good defense to a prosecution for injuring the others. Where one by a single blow kills two persons, conviction for the killing of one is a defense to an indictment for killing the other.81 But there are some contrary holdings; among them that where one assaults two with a pistol and obtains their property, he commits an assault and robbery on each and may be prosecuted for two offenses.82 § 955. Plea of pardon.-If one has been pardoned, this is a bar to trial and punishment for the offense; but in order to take advantage of the pardon, it must be brought to the court's notice. The courts take judicial notice of a pardon, Roby, 12 Pick. (Mass.) 496; State v. Huffman, 136 Mo. 58, 37 S. W. 797. 79 Severin v. People, 37 Ill. 414; State v. Hattabough, 66 Ind. 223; Commonwealth v. Roby, 12 Pick. (Mass.) 496. 80 People v. Knapp, 26 Mich. 112; State v. Belden, 33 Wis. 120, 82 Keeten v. Commonwealth, 92 however, when contained in a public statute.88 If the pardon is executive, it must be pleaded. A pardon may be waived and it is said that the defendant is estopped from taking advantage of the pardon at the trial unless his plea of pardon is made before he has pleaded not guilty.85 However, advantage of it may be taken to prevent punishment even after trial and judgment.8 § 956. Agreement to turn state's evidence.-It was held by the Texas court that an agreement by the accused with the state's attorney to turn state's evidence against his accomplice may be pleaded in bar, the entire question including the sufficiency of the evidence to sustain the plea, being a matter for the court.87 83 2 Hawk. P. C. ch. 37, § 58 et seq. 84 United States v. Wilson, 7 Hawk. P. C. 86 Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699; 4 Bl. Conm. 337; 2 Hawk. P. C. ch. 37, § 59. 87 Cameron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. 763; Cameron v. State (Tex. Cr.) 25 S. W. 288. § 960. Time for trial.-The first step in a trial is getting control of the defendant by arrest, or otherwise. The time of trial is largely in the discretion of the court. The order in which cases must be tried on the docket is usually in the discretion of the prosecuting officer.1 Theoretically, the cause is ready for trial when the indictment is found and returned into court, the defendant is in its possession and arraigned and issue is joined. In most of our states a constitutional or statutory provision gives the accused the right to a speedy trial, or discharge by habeas corpus.2 The Habeas Corpus Act, upon which these provisions are founded, provides that the accused shall be indicted the next term of court or bailed, and that he be tried the second term or discharged. § 961. Continuance.-Though a cause is ready for trial, either party may, if the circumstance justify, be granted a continuance, in the court's discretion, or sometimes as a matter of right. It is only in case of a gross abuse of discretion that a new trial will be allowed for a failure to grant a continuance. In order to obtain a continuance a motion stating the grounds, must be addressed to the court. This motion should usually be accompanied by affidavits showing the grounds. Among the grounds for which a continuance may be granted are the absence of witnesses who will give material testimony, where due diligence has been used to obtain their presence at the trial;5 public excitement or unfair prejudice against the accused; lack of time to make necessary preparation for the trial; and sometimes illness of the accused or absence or illness of his counsel. In order to obtain a continuance because of the absence of witnesses, testimony is not considered material which is irrelevant," or is merely cumulative or could be proved by other wit 2 United States v. Fox, 3 Mont. 512; Ex parte Stanley, 4 Nev. 113. 3 Alexander V. State, 97 Ark. 643, 134 S. W. 953; Commonwealth v. Donovan, 99 Mass. 425, 96 Am. Dec. 765; Commonwealth v. Fencez, 226 Pa. 114, 75 Atl. 19. 4 Mitchell v. State, 92 Tenn. 668, 23 S. W. 68; 1 Chitty Crim. L. 492. 5 State v. Brown (Iowa), 121 N. W. 513; State v. Woodward, 182 Mo. 391; 81 S. W. 857, 103 Am. St. 646; State v. Thompson, 141 Mo. 10 408, 42 S. W. 949; Hart v. State, 61 Tex. Cr. 509. 134 S. W. 1178. 6 Woolfolk v. State, 85 Ga. 69; 11 S. E. 814; Maddox v. State, 32 Ga. 581, 79 Am. Dec. 307. 7 State v. Nash, 7 Iowa 347; State v. Deschamps, 41 La. Ann. 1051, 7 So. 133. 8 Hays v. Hamilton, 68 Ga. 833. 9 Loyd v. State, 45 Ga. 57; State v. Rainsbarger, 74 Iowa 196, 37 N. W. 153. 10 People v. Anderson, 53 Mich. 60, 18 N. W. 561. 14 nesses present,11 or is merely impeaching, 12 or is as to character,13 or if due diligence has not been used to obtain it.14 There must also appear a reasonable prospect of attendance at the time to which the continuance is asked.15 Inability of the accused to attend because of his voluntary intoxication is not a ground for a continuance.16 § 962. Presence of the accused at trial.-As a general rule one charged with a felony must be present at his trial;17 during the time when the jury is called and sworn, while witnesses are being examined, when the jury is charged, arguments of counsel are made, verdict returned, and sentence pronounced. His right to be present at these times is such that it is held that a trial without such presence is without due process of law.18 Some courts hold that the defendant may waive his right to be present. 19 It, however, is not essential that he be present during certain formal matters, such as making motions to quash or for a continuance, for arrest of judgment, or for a new trial, etc.20 Nor is it necessary that he be present during the consideration of his appeal by a higher court.21 Where the accused is on trial for a mis 11 State v. Hillstock, 45 La. Ann. 298, 12 So. 352; Higginbotham v. State (Tex. Cr.), 20 S. W. 360. 12 State v. Howell, 117 Mo. 307, 23 S. W. 263. 13 Rhea V. State, 10 Yerg. (Tenn.) 258. 14 People v. Lewis, 64 Cal. 401, 1 Pac. 490; McDermott v. State, 89 Ind. 187. 15 Commonwealth v. Millard, 1 Mass 6. 16 State v. Ellvin, 51 Kans. 784, 33 Pac. 547. 17 Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262; Dunn v. Commonwealth, 6 Pa. St. 384; Smith v. State, 51 Wis. 615, 8 N. W. 410, 37 Am. Rep. 845. 18 Harris v. People, 130 Ill. 457, 22 N. E. 826. 19 State v. Peacock, 50 N. J. L. 34, 11 Atl. 270; State v. Kelly, 97 N. Car. 404, 2 S. E. 185, 2 Am. St. 299. 20 Commonwealth 97 Mass. 543. v. Andrews, 21 Schwab v. Berggren, 143 U. S. 442, 36 L. ed. 218. |