
    The State v. Painter and Lindley.
    Continuance: discretion: trial. While much is left to the discretion of 'the court in passing upon a motion for continuance, its ruling should neither be arbitrary nor in violation of the rights of the parties. In a criminal action, tire state, as w^ll as the defendant, is entitled to a reasonable time in which to procure the attendance of witnesses, and prepare for trial.
    
      Appeal from, Monona, District Court.
    
    Friday, March 19.
    The defendants were indicted on three separate indictments for tbe crime of larceny. The indictments were filed February 7,1874; Lindley was arrested July 17,1874, and remained in custody until the 21st day of July, 1874, the first day of the term of the District Court, when he appeared by himself and counsel, waived arraignment and pleaded not guilty, and demanded an immediate trial. Whereupon the District Attorney filed an application for a continuance of the cause until the next day, which was overruled, and each cause ordered dismissed as to Lindley. The State appeals.
    
      M. E. Putts, Attorney General, and G. II. Lewis, for the State.
   Miller, Ch. J.

The application for the continuance was based upon the following affidavit:

“ State of Iowa, }
Monona County. } ss

I, 0. Ii. Lewis, on oath, dejiose and say that I am District Attorney, 4th Judicial District, Iowa, and the attorney for the State in each of the above entitled actions. That J. 0. Hol-lister and John Fowler are material witnesses on the part of the State, without whose testimony I cannot safely proceed to trial in said' actions, or either of them.

That after the indictments in these cases, and on the 18th day of July,-1874,’I procured a subpoena to be issued from tbe office of tbe Clerk of this Court for said witnesses in each of said cases. And that on tbe 18th day of July, 1874, tbe said subpoenas were duly and legally served upon each of tbe witnesses, Hollister and Fowler, at Harrison county, Iowa, as will more fully appear by reference to tbe returns on the subpoenas filed in this court in tbe above entitled cases, to Avbicb reference is here made.

That said witnesses, and each of them, have failed to attend upon this court, in obedience to said subpoenas. That said witnesses, and each of them, now reside at Missouri Yalley, Harrison county, Iowa, distant about'forty miles, and that said witnesses are at home, as this affiant is informed and believes. And that tlieir attendance can, as I believe, be bad at this term of court, and on to-morrow morning, by attachment. Though I have no positive assurance that said witnesses will be present on to-morrow, or at this term of this court.

And I further depose and say that said witnesses can be held to testify in each of said case's at tbe next term of this court.

And I further state that I expect to prove by the witness John Fowler, that he purchased' of the defendant, Ed. Lindley, the property described in the indictments herein. That he purchased the said property on the day after the same was stolen. That said property when purchased was in the possession'of the defendant Lindley, and the other defendants herein. That this defendant Lindley had secreted the property after he arrived at the town of Missouri Yalley, in Harrison county, where said Fowler then resided and was engaged in the butcher business. And that said Lindley moved the cattle from the place where he stole the same to the town of Missouri Yalley in the night time, and in a, secret manner.

And I further state that I expect to prove by the witness J. C. Hollister that he came by purchase into the possession of an animal stolen by defendant at the time the cattle described in these indictments were stolen. And that said witness will identify said defendant as the party who had said animal on the day, or soon after, said property was taken.

And I further state that I believe all of the above stated facts to be true. And that I know of no other witness by whom the same can be fully proved.

0. II. LEWIS.

Sworn to before me and subscribed in'my presence by 0. H. Lewis, this 21st day of July, 1874.

JOHN K. MoKASKEY,

Cleric of District Court.”

The record further shows that the county seat where the court was being held and the place of residence of the witnesses are connected by railroad; that a person could have reached such residence from the county seat at 6 o’clock, p. m., the 21st day of October, and could have returned at midnight, or at 10 o’clock, a. m., the next day, at his election.

While much is left to the discretion of the court in passing upon an application for continuance, its ruling should not be arbitrary or in violation of the rights of either the State or the defendant. It is manifest to us that in this case the rights of the State have been clearly violated. The defendant was arrested only a few days before the term of the court, the witnesses for the State were subpoenaed on the very next day after the arrest, which was three days before the term; and on the first day of the term, the witnesses not being in attendance, the application for continuance was promptly made. A higher degree of diligence could scarcely have been exercised; the testimony of the witnesses was material, and it was shown that they could have been brought in by attachment by the next morning. The court should at least have continued the case until the next day, and allowed the District Attorney an opportunity to bring in his witnesses. The State, as well as the defendant, was entitled to a reasonable opportunity to procure its witnesses and be prepared for trial. The ruling of the court operated to deprive it of this right, and was, therefore, erroneous, and its judgment must be

Reversed  