
    John Woodward v. State of Mississippi.
    [42 South. Rep., 167.]
    Criminal Law. Continuance. Absent witness.
    
    The application of a defendant for a continuance, made by counsel appointed to defend him upon call of the case for trial only eight days after the finding of the indictment, should have been granted where it was shown that the preparation of the defense had been promptly begun and subpoenas issued for defendant’s witnesses, that one material witness being in another county was not found, but was willing to appear, and that defendant would have him- in attendance at the next term of court.
    From the circuit court of Amite county.
    Iíon. Moyse H. Wilkinson, Judge.
    The appellant, John Woodward, was indicted on August 21, 1906, for the murder of one Johnson, who had been killed only a few days before, on August 11, 1906. Appellant was unable to employ counsel to represent him on his trial, and, as the charge was a capital offense, the court on August 21, 1906, the date on which appellant was arraigned, appointed counsel to defend him. When the case was called for trial eight days later, counsel for appellant, having used due diligence to prepare for the trial, moved for a continuance, showing by affidavit of appellant that one Robinson, a resident of the county and a most material witness for appellant, could not be found in the county, although subpoena had been issued for him. The affidavit further set forth the substance of what the absent witness would testify, and alleged that the witness was in another county of the state; that he had written that he was willing to appear and testify; and that appellant would have -the witness present at the next term of court. With the affidavit counsel for appellant filed a letter dated August 27, 1907, written from Canton, Mississippi, by the absent witness to appellant’s employer, requesting money or a railroad ticket to enable him to return to tbe county. Tbe prosecution objected to tbe continuance, and tbe court, after bearing testimony in tbe matter, overruled tbe motion, and forced appellant to an immediate trial. Tbe appellant was convicted of manslaughter, and sentenced to tbe penitentiary for ten years. Appellant’s motion for a new trial, based principally on tbe ground tbat tbe court erred in not granting a continuance, wa§ overruled. Appellant thereupon prosecuted an appeal to tbe supreme court.
    
      Ohm V. Ratcliff, for appellant.
    Tbe case should be reversed and remanded. Tbe homicide for which appellant was indicted was committed only a few days before tbe day of trial. Defendant bad no means to employ counsel in bis behalf, hence tbe court appointed counsel for bis defense. Counsel were diligent in preparing for the trial, and in causing process to issue for appellant’s witnesses. Tbe case should have been continued on appellant’s application. Tbe absent witness was material, an eye witness, and it cannot be said tbat tbe verdict would not have been different if tbe absent witness bad been present and testified. Tbe appellant was left without a single witness in bis behalf.
    Tbe application for continuance embodied all tbe requisite elements, and continuance should have been granted. Constitution 1890, art. 3, sec. 26; Whit v. State, 85 Miss., 208 (s.c., 37 South. Rep., 809) ; Montgomery v. State, 85 Miss., 330 (s.c., 37 South. Rep., 835) ; Galdwell v. State, 85 Miss., 383 (s.o., 37 South. Rep., 816) ; Scott v. State, 80 Miss., 197 (s.c., 31 South. Rep., 710); Watson v. State, 39 South. Rep., 689.
    
      R. V. Fletcher, assistant attorney-general, for appellee.
    Tbe only question of serious nature here is whether tbe court erred in refusing to grant a continuance on account of tbe absence of the witness, Robinson. On tbe bearing of tbe application for continuance proof was taken, and it appeared that the witness was in Madison county. He had remained in Amite county until the circuit court was in session, and until the grand jury began to investigate this case. He had left the county, and, it may be, to avoid testifying. It was shown in the testimony that this absent witness, Eobinson, was not present at the scene of the homicide. It would therefore appear that no harm resulted to appellant from the court’s refusal to continue the case.
    This case is in some respects similar to Strauss v. State, 58 Miss., 53. In that case, there was no explanation why appellant’s absent witness, who was present at the committing trial, was not introduced, and there was an entire failure on the hearing of the motion for a new trial to introduce affidavits as to the facts within the knowledge of such witness. And, moreover, the witness in that case was almost momentarily expected to arrive in court.
    The strong showing made by the testimony for the state, to the effect that the missing witness, Eobinson, was not at the scene of the killing, nor in position to see the same, should be conclusive that the court’s refusal to grant continuance was correct.
    Argued orally by O. H. Ratcliff, for the appellant, and by R. V. Fletcher, assistant attorney-general, for the appellee.
   Calhoon, J.,

delivered the opinion of the court.

The indictment is for murder, and was presented August 21, 1906. The case was called for trial August 29, 1906, when defendant below made his application for continuance, on which testimony was taken, and which was overruled on that same day, and on that same day trial and conviction of manslaughter were had, and motion for new trial overruled. In this situation, Strauss v. State, 58 Miss., 53, has no application. On the application before us, the continuance, or a postponement, should have been 'ordered by the court; the testimony of the absent witness appearing to be of value.

Reversed and remanded.  