State v. McConnell — 20 Del. 520

Majority

p. 520

State vs. Morris McConnell.

Headnote

Continuance— Witness, Absence oj; Affidavit— What it must Allege— Practice—Fhidence.

In an application for continuance on the ground of the absence of a material witness, the affidavit alleged that the witness would testify that he was present at the time of the alleged larceny, and that the defendant “did not and could not’’ have committed the offense charged. Held sufficient.

(February 5, 1904.)

Lore, C. J., and Pennewill, J., sitting.

Herbert H. Ward, Attorney-General, for the State.

J. Frank Ball for the defendant.

p. 521

Court of General Sessions, New Castle County,

February Term, 1904.

Indictment foe Labceny.

Ball, for defendant, moved for a continuance to the next term, basing his motion upon an affidavit alleging absence from the State of two material witnesses, naming them; setting forth that the said witnesses would testify that they were present at the time of the alleged larceny and that the defendant “ did not and could not ” have committed the offense charged.

The Attorney-General objected to the sufficiency of the above affidavit on the ground that the words “ did not and could not ” were conclusions of law and not a statement of the evidence.

We think the affidavit is sufficient. Let the case be continued to the next term.