
    Gwatkin v. Commonwealth.
    December, 1840.
    Criminal Law — Continuance—Absence of Witness — Case in which the denial to a prisoner indicted of felony, of a continuance asked on the ground of the absence of a witness, was held error for which judgment of conviction must be reversed.
    Indictment against Richard C. Gwatkin for the murder of Frederick M. Pitman. This case is the same in which the general court, at December term 1839, reversed the judgment of the circuit court of Rockbridge, and awarded a new trial: see the report, 9 Leigh 678.
    After the case got back, the circuit court of Rockbridge, at April term 1840, on the motion of the prisoner, ordered that the trial be postponed until the succeeding term. At the succeeding term, which was held in September 1840, the prisoner again moved for a continuance of the cause, on the ground of the absence of George A. Buckner, one of the witnesses for him. This witness had been examined in behalf of the prisoner at the first trial; on which examination, his testimony (as set out in a bill of exceptions then filed) was to the following effect—
    The witness had known the prisoner eight or ten years. When he first knew him, the prisoner lived *with one Meem of Lynchburg: he then stood very high: he was of a generous, noble disposition, and very much esteemed. He was clerk and salesman in Meem’s store, and was sober and attentive to business. He became intemperate, and Meem discarded him. He then drank very hard ; and having nowhere else to stay, witness took him into his room. He drank to such excess, that witness has frequently known him to go into an apothecary’s shop, and drink large quantities of aicohol, saying, that liquor was not strong enough and would not produce the desired effect. He remained in Lynchburg some time, engaged in nothing but dissipation. While staying in witness’s room, he one day fired a pistol over witness’s head into the wall, saying he wanted to see how near he could come to his head without hitting him. He was always trying projects about pistols, dirks and bowie knives. He because very troublesome, and witness was glad to get rid of him. He left Lynchburg soon after being turned off by Meem, and witness saw him again in 1835 or 1836 at the white sul-phur springs: whenever he saw him, he was excited with liquor and his face very much bloated. Witness saw him in the summer of 1838, a few days before Pitman was killed. Witness saw him and Pitman frequently together. One evening, the prisoner and Pitman came to the springs from Surber’s together. Pitman went to a faro bank, and the prisoner waited for him under one of the trees in the yard till midnight. Whilst under the tree, prisoner said to witness, that Pitman was a fine fellow, and he was waiting for him: that Pitman had horses, and would lend him one 'to ride at any time. Prisoner then also told the witness he would never return to Lynch-burg ; that his sister mrs. Royall had treated him badly, and he wished never to see her again. Witness tried to persuade him to go to Lynchburg, but he refused. Prisoner at the same time told witness, that he was in *want, and witness must pay him the money that he owed him. Prisoner had frequently before, whenever he met the witness, dunned him for 3000 or 4000 dollars, which he said the witness owed him. Witness had always regarded this as a joke; but he thought it possible the prisoner had so often repeated it, that he might perhaps really believe it. Witness did not owe him a cent, but on the contrary the prisoner owed witness about 60 dollars. Prisoner also told him that William Bailey owed him about 300 dollars, which he had drawn from the bank at Brandon, Mississippi, and had not paid over to him, and that unless he did so, he should call him to account for it. Witness saw the prisoner four or five times at Lynchburg, and two or three times at the springs, since he had staid in witness’s room, and he was always drinking, and appeared worse the last time than ever. While under the tree, prisoner asked witness to lend him ten dollars, which he did not do, because he did not have it. Prisoner was not in the habit of playing cards. When witness saw him last before the deed was committed, he considered him a dangerous man, and would not have started to go anywhere with him. Witness went from the white to the blue sulphur springs about three days before Pitman was shot, and when he heard tha.t a man had been murdered, he at once asked if it was not the prisoner who had done it, without having heard his name mentioned. Witness considered the prisoner’s mind affected by his excessive intemperance. Prisoner’s request for the loan of ten dollars was before he asked witness to pay him what he owed him, and the latter demand was made in a laughing way. Under the tree, prisoner told the witness that he had killed two or three men in Mississippi before he could have the standing he was entitled to.
    In support of his motion for a continuance, the prisoner submitted to the court, 1. His own affidavit; in *which he states, that he verily believes George A. Buckner of Lynchburg to be a material witness for him, without whose testimony he cannot safely go into a trial of the cause: that the said Buckner, as this affiant believes, can prove facts material to his defence, which cannot be proved by any other witness: that he was examined as a witness for this affiant on the former trial of the cause, and was summoned as a witness for him to the last term of the court, when he attended, but the cause was then continued: that said Buckner has, as this affiant is informed and believes, been summoned as a witness on his behalf to the present term, but is not in attendance, and this affiant is informed and believes he is prevented from attending by sickness. 2. The affidavit of Charles A. Gwatkin; who made oath, that he is a half brother of the prisoner: that the prisoner has been in close confinement upon the present charge for upwards of two years, and has been disabled, by that and other circumstances, from making preparations for his defence, except by the intervention and aid of other persons: that the active duty of attending to and managing the defence of the prisoner has devolved upon this affiant, who has devoted much time and labour to that object: that he has used his best exertions to prepare the case for trial, in behalf of the prisoner, at the present term, and has attended to the summoning of the witnesses on his part: that he has caused George A. Buckner of Lynchburg to be summoned to attend the present term of the court as a witness on the part of the prisoner, but is informed and believes that the said witness is prevented and disabled by sickness from attending: that he verily believes the evidence of said Buckner, who was examined as a witness for the prisoner at the former trial of the cause, to be important for the prisoner, and that Buckner can prove facts material to the defence, which cannot be proved by any other witness. 3. A subpoena issued by *the clerk of the circuit court, dated the 29th of July 1840, and directed to the serjeant of Lynch-burg, commanding him to summon George A. Buckner to attend the said court, on the first day of the next September term, to give evidence on behalf of the prisoner; with the serjeant’s return thereon, shewing that the same was duly executed. 4. The affidavit of H. H. Booker, who made oath, that he is a resident of the town of Lynch-burg, and is now attending the circuit court of Rockbridge as a witness in the case of the commonwealth against Richard C. Gwatkin: that on tuesday last this affiant visited George A. Buckner (who is also a resident of Lynchburg, and a witness summoned in the said cause) for the purpose of getting the said Buckner to travel in company with him to the circuit court: that he found Buckner on his bed, complaining of being sick: that he had the appearance of beiijg too much indisposed to travel: and that he alleged that in consequence of sickness he was unable to travel to the court, and requested this affiant to communicate such his inability to the judge.
    After the foregoing evidence had been read, the court required the prisoner to be sworn to answer questions; and he was sworn accordingly in open court. The judge thereupon propounded to him the following question — '“Do you expect to prove by the witness Buckner anything more than was proved by him at the former trial?” To this the prisoner answered, that he knew nothing more about it than had been communicated to him by his friends.
    The cause was argued, in writing, by B. G. Baldwin for the plaintiff in error.
    The attorney general for the commonwealth.
    
      
       Criminal Law — Continuance—Absence of Witness.— The principal case was cited with approval in Walton v. Com., 32Gratt. 865; Welch v. Com., 90 Va. 331, 18 S. E. Rep. 373; Phillips v. Com., 90 Va. 403, 18 S. E. Rep. 841. The principal case was disting-uished in Roussell v. Com., SSGralt. 937. See further, mono-graphic note on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.
    
   The court overruled the motion for a continuance of the cause; to which opinion the prisoner excepted, setting out in his bill of exceptions the evidence above detailed,, which had been offered to support the said motion. The bill of exceptions, however, did not embody the testimony of the witness Buckner given upon the former trial: nor did it state the fact (which nevertheless *appeared by the record) that at the April term 1840, on the motion of the prisoner, the recognizance of the said witness had been taken, conditioned for his attendance at the succeeding term to give evidence on behalf of the prisoner.

A trial of the cause being thereupon had, the jury found the prisoner guilty of murder in the first degree, and the court rendered judgment that he be hanged.

To that judgment, on the petition of the prisoner, the general court awarded a writ of error.

The judgment of the general court was as. follows:

“It seems to the court here, that the judgment of the said circuit superior court is. erroneous in this, that the said court refused to grant to the said Richard C. Gwatkin a continuance, at the term when the cause was tried, on the ground of the absence of the witness George A. Buckner.” Therefore, judgment reversed, verdict set aside, and cause remanded to the circuit court for a new trial..  