
    Argued November 6, 1964,
    affirmed March 24, 1965
    STATE EX REL MIETZNER v. JOHNSON
    400 P. 2d 254
    
      Oscar D. Howlett, Portland, argued the cause and filed a brief for appellant.
    
      John. D. Burns, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
    
      Before McAllister, Chief Justice, and Perry, Sloan, O’Connell and Lusk, Justices.
   McAllister, C. J.

This is a habeas corpus proceeding brought by-petitioner to test the legality of his arrest upon a warrant for extradition to Washington. The trial court discharged the writ and petitioner has appealed.

The governor of Washington issued a requisition to the governor of Oregon demanding the rendition of petitioner as a fugitive from a charge of burglary committed in Kitsap county. The governor of this state honored the requisition and issued a warrant of arrest and warrant of rendition, pursuant to which the petitioner is held in custody by the defendant.

On January 20, 1964 petitioner filed his petition for a writ of habeas corpus, in which he alleged inter alia that he was “not a fugitive from justice and was not in the State of Washington at the time the alleged crime was committed in the State of Washington.” A writ was issued, returnable on January 31, 1964. At the appointed time petitioner was brought into court and defendant appeared by counsel. Petitioner’s counsel did not appear and at petitioner’s request the hearing was continued until February 7, 1964. On February 7, 1964 the petitioner appeared again in person and this time his counsel was present. After the defendant had offered the requisition of the State of Washington for petitioner’s arrest, and the governor’s warrant of arrest and extradition, petitioner’s counsel moved that the hearing be postponed until February 18, 1964 on the ground that “the hearing involves witnesses with respect to his [petitioner’s] alibi, and one of these witnesses, I regret to say, just became incarcerated in the Vancouver, B. C., jail.” The petitioner offered no evidence, made no offer of proof or any attempt to comply with ORS 17.050, and the court denied the continuance. After some colloquy between the court and counsel, to which reference will be made hereinafter, the court then entered a judgment discharging the writ and remanding petitioner to the custody of defendant for delivery to the proper agent of the State of Washington. From that judgment the petitioner appeals.

We think the only issue before us is whether the trial court abused its discretion in refusing to postpone the hearing beyond February 7, 1964 as requested by defendant. In view of the total lack of any showing as to what evidence, if any, the petitioner expected to obtain if the hearing was postponed, we can only hold that the trial court did not abuse its discretion. See State v. Otten, 234 Or 219, 380 P2d 812 (1963), and cases therein cited. It is true that the trial court advised petitioner’s counsel that he would not consider any evidence tending to prove petitioner’s alibi, i. e., that petitioner was not in the demanding state at the time of the alleged crime. We think this anticipatory ruling of the trial court did not excuse petitioner from filing an “affidavit showing the materiality of the evidence expected to be obtained, what diligence [had] been used to procure it, and the name and residence of the witness or witnesses.” No explanation was given for the failure to offer the testimony of the petitioner. For aught we know, if this matter were sent back for further hearing, the petitioner would be unable to produce any evidence material to any issue in the case.

We are satisfied that the court did not abuse its discretion in refusing to postpone the hearing, and we affirm the judgment of the trial court. 
      
       ORS 17.050. “A motion to postpone a trial on the ground of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, what diligence has been used to procure it, and the name and residence of the witness or witnesses. The court may also require the moving party to state upon affivadit the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed. The court, when it allows the motion, may impose such conditions or terms upon the moving party as may be just.”
     