People v. Ah Yute

The affidavit presented by the defendant was not sufficient to entitle him to a continuance of the cause.

It states that the absent witness, soon after the homicide, left this State for Portland, in the State of Oregon. The homicide was committed in January, 1878, the indictment was found in May, and the affidavit was filed in October of the same year. The defendant does not state that he has heard from the witness since he left this State, nor does he state any fact tending to show that he expects to be able to procure his attendance at a future day. He should have stated facts from which the Court might infer that there was reasonable ground to believe that the attendance of the witness, or his testimony, could be procured at a future day. (People v. Francis, 38 Cal. 188 .)

The affidavits presented in support of the motion for a new trial, on the ground of newly discovered evidence, do not state any evidence as having been discovered by the defendant since the trial, but the only evidence mentioned therein is the same as that which was stated in the affidavit for a continuance. The affidavits are clearly insufficient to support the motion.

Houghtaling, the police officer who…