
    Hugh C. Metts, plaintiff in error, vs. The State of Georgia, defendant in error.
    A defendant on the criminal side of the Court is entitled to a continuance of his case, when it is called within a few days after the alleged offence, and he-puts in an affidavit stating materia] evidence which he avers to be in possession of witnesses who are out of the county, and whom he had no opportunity to subpeena.
    Indictment for assault and battery, in Whitfield Superior Court. Tried before Judge Crook, April Term, 1859.
    Hugh C. Metts was indicted for an assault and battery upon his wife. When the case was called for trial, he moved for a continuance on two grounds: First, because he had not had time or opportunity to prepare for trial; that indictment was found against him on Tuesday morning of this present week of the Term of the Court, for an offence alleged to have been commited the Saturday before.
    2d. On account of the absence of two material witnesses, residing in Whitfield county, hot who had gone the day before on a visit to Floyd county, and he could not have subpoenaed said witnesses since the finding of the indictment against 'him. That he expected to prove by said witnesses, that he had not been guilty of maltreatment of his wife; that he and his wife remained'together all the evening and night after the alleged’difficulty, and that their conduct towards each other was kind and¿affectionate, and that Mrs. Metis said he had done nothing|but^vhat he ought to have done; that these witnesses were at defendant’s house!;the same night.
    Defendant also-requested a postponement of the trial for two daysyin order to send for the witnesses at his own cost, and to go°to“trial|during the Term.
    The Court’yefusedjito continue or postpone, and ruled defendant on to trial; to which ruling defendant excepted.
    Theyrial. proceeded, and defendant was found guilty.
    Whereupon, he tendered his bill of exceptions, assigning as error thffrefusal to grant the continuance aforesaid.
    Glenn ; and Milner & Parrott, for plaintiff in error.
    Sol. Gen. Johnson, contra.
    
   — Stephens J.

By the Court.

delivering the opinion.

The affidavit for a continuance in this case, shows that the defendant had material evidence which was not absent by his fault. The case ought to have been continued, or the witnesses brought to Court.

Judgment reversed.  