
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1812.
    The State v. William Files.
    The affidavit of defendant in a criminal case, stating the absence from the State of material witnesses, is no ground to postpone a trial.
    Motion for a new trial.
    A. Crenshaw, for the motion. Stark, Solicitor, contra.
    
   Brevard, J.

My opinion is, that this motion ought to be re', jected. On the argument, the only ground insisted on, was, the re. fusal of the Court of General Session for Newberry district, tar postpone the trial, on affidavits which stated the absence of material 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 wii. ling. “ Affidavits of this kind, ought very sparingly to be admitted;. For in circuit trials, the prisoners from the time of their commit', meat,-may, and ought to be preparing for their defence. The place' where they are to be tried, is in most cases, well known, and they have likewise, a reasonable certainty of the time long before the' circuits commence.” 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 poslponement. State v. Lewis. I Bay 1. If 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 : 1. That the witness is really material, and appears to the court so to be. 2. That the party, who appears, has been guilty of no neglect. 3. That the witness can be bad at the time to which the trial is deferred. The King v. D’Eon, 1 W. Black. Rep. The witnesses are said to be in Ten-hessee. 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 tlie trial, where the life of the defen. dant was in jeopardy.

From the evidence which is reported to have been given bn the trial, 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 D’Eon, ad Kalendas Grescas.

All the judges concurred.  