
    Varney v. Commonwealth.
    (Decided January 11, 1924.)
    
    Appeal from Pike Circuit Court.
    Criminal Law- — Denial of New Trial of Charge Tried in Defendant’s Absence Held Abuse of Discretion. — Where a trial was had between 8 and 9 o’clock in the morning in defendant’s absence, due to motor trouble in going to the court house, where he arrived about 9 a. m., and at once moved for a new trial while the witnesses were still present, and filed affidavit that he had defense, the court abused its discretion in denying the motion.
    WILLIS STATON for appellant.
    THOS. B. McGREGOR, Attorney General, for appellee.
   Opinion op the Court by

Judge Clarke

Reversing.

Appellant was charged by indictment with a violation of the prohibition law. The case was set for trial on a certain date, and called and tried in his absence, between eight and nine o’clock that morning.

He lives 38 miles from the court house, and started in an automobile at 5:30 that morning to he present when his case was called, hut owing to motor troubles, did not arrive until about nine a. m., and just after the trial of his case had been concluded. He at once moved for a new trial, which the court denied.

In support of the motion he filed his affidavit setting out the above facts; that he had a defense to the charge, and that the Commonwealth’s witnesses were in the court room.

We are of the opinion, as is the attorney general, that in denying appellant a new trial under these circumstances, the trial court abused the discretion conferred upon him by the Code.

Wherefore the judgment is reversed and the cause remanded for retrial.  