
    Columbia, November Term, 1812.
    The State vs. William Files.
    A. Crekshaw, for the Motion,
    
    Stark, Solicit. Contra.
    
    The affi-aavit or defendant inafols™" absence'18 *om material is no S’ postpone0 a trial.
    Motion for a new trial.
   Brevard, J.

My opinion is, that this motion ought to be rejected. On the argument, the only ground insisted on, was, the refusal of the Court of General Sessions for Newberry District, to postpone the trial, on affidavits which stated the absence of ma-terial witnesses for the prisoner, who were beyond the limits of this state. If trials for capital offences, should be postponed, on affidavits of this sort, very few cases would ever be tried at all, and none at the first court after the arrest of the offender unless he should be willing. u Affidavits of this kind, Ci ought very sparingly to be admitted. For in cir-ie cuit trials, the prisoners from the time of their Ci commitment, may, and ought to be preparing for il their defence. The place where they are to be {t tried, is in most cases, well known, and they ((have likewise, a reasonable certainty of the time. il long before the circuits commence.5’ Foster’s C. L. 2. If the prisoner has had no time, or opportunity to prepare for his defence, this will be a good ground for a postponement. (State vs. Lewis. 1 Bay 1.) It must be admitted that no crime is so great, no proceedings so instantaneous, but that upon sufficient grounds the trial may be put off; but three things are necessary; 1st, That the witness is really material, and appears to the court so to be. 2nd, That the party who appears, has been guilty of no neglect. 3rd, That the witness can be had, at the time to which the trial is deferred. (The King vs. D'Eon, 1 W. Black. Rep.) The witnesses are said to be in Tennessee. No compulsory process can issue to obtain their testimony. The presumption is, that they would not attend at another court, or they would have attended at the trial, where the life of the defendant was in jeopardy,

From the evidence which is reported to have been given on the tidal, there is reason to believe the witnesses in Tennessee, could have given no material evidence if they had been present, and that the affidavit respecting them, was merely an artifice to evade a trial. If such affidavits were on all occasions to be deemed sufficient, trials might be put off, (as was said in the case of the Chevalier TV Eon) ad Gracas Ralendas.

All the judges concurred.  