
    Reuben Dobbs v. State of Mississippi.
    [51 South. 915.]
    Criminal Law and Procedure. Forgery. Continuance.
    
    An application for a continuance hy a defendant charged witii forgery, because of the absence without his connivance or consent of the only witness by whom he could prove that the instrument charged to have been forged was executed by an authorized agent of the party whose name was subscribed to it, should be granted where the witness was within the jurisdiction of the court and process had been issued for him and returned “not found,” al- . though the state admitted that the witness would, if present, have testified as stated in the application.
    Hrom the circuit court of,' first district, Chickasaw county.
    TIoN. JohN H. Mitci-iell, Judge.
    Dobbs, appellant, was indicted and tried for, convicted of forgery and appealed to the supreme court. The instrument charged to have been forged was a check on a bank, payable to appellant, for $78, to which the name “I. W. Harrington” was subscribed. When the case was called for trial, the defendant moved for a continuance because of the absence of a witness, Willis Bean, who, appellant affirmed, if present, would testify that the son-in-law of Harrington, who had authority to do so, executed the check and delivered it to defendant in payment of a debt. A subpcena bad been issued for tbe witness, but it bad been returned “not found.” Tbe witness was shown by tbe application to be witbin tbe jurisdiction of tbe court and absent without defendant’s connivance or consent. Tbe district attorney agreed to admit that tbe witness would testify to tbe facts set out in tbe application, and tbe court thereupon overruled tbe application for a continuance and forced tbe defendant to trial. In view of tbe opinion of tbe court no further statement of tbe facts is necessary.
    
      George T. Mitchell, for appellant.
    Tbe defendant’s application for a continuance should have been granted. Havens v. State, 75 Miss. 488; Scott v. State, 80 Miss. 197; Watson v. State, 81 Miss-. 700; Montgomery v. State, 85 Miss. 330; Caldiuell v. Stale, 85 Miss. 383; Walton v. Slate, 87 Miss. 296; Waits v. Stale, 9(3 Miss. 757.
    
      George Butler, assistant attorney-general, for appellee.'
    Tbe trial court exercised a' discretion in refusing the continuance and it does not appear that tbe discretion was abused.
   Whiteield, O. T.,

delivered tbe opinion of tbe court.

Tbe testimony of tbe witness Willis Bean was vital, and tbe refusal tó continue on account of bis absence, under tbe showing made in this record, was fatal error.

Reversed and remanded.  