
    James Comerford v. The State of Ohio.
    Motion for the allowance of a writ of error to Cuyahoga Common Pleas.
    The facts are apparent in the opinion.
    
      Thomas J. Carran, for the motion,
    cited section 10 of the Bill of Rights, Constitution of Ohio; sec. 144, Code of Criminal Procedure; and Kirke v. The State, 14 Ohio, 511.
    
      William Robinson, prosecuting attorney, contra.
   BY the Court.

1. In a criminal, as in a civil ease, an application for the postponement of the trial to a subsequent term is addressed to the discretion of the court. And in a criminal case where such motion is made on behalf of the accused to enable him to procure the attendance, or, under section 144 of the criminal code, the deposition of a witness who resides out of the state, and whose testimony he has-not been able to obtain, it is not error for the court to require the applicant to set out in his affidavit, filed in support of-the motion, the facts he expects to prove by such witness; or to refuse to grant the motion in case the prosecution elects to admit upon the trial that the witness named would so testify, and to treat the statement of facts so set out as his deposition.

2. Where, in such case, the prosecutor was permitted, on the argument of the case to the jury, against the objection of the accused, to comment upon such affidavit, and to read the whole of it to the jury: Held, that this was not error to the prejudice of the accused, the affidavit showing nothing to his prejudice, and the nature of the comments made by the prosecutor not being shown.

Motion overruled.  