
    Fitzgerald v. The State.
    Submitted October 15,
    Decided November 7, 1906.
    Indictment for misdemeanor. Before Judge Martin. Wilcox superior court. May 4, 1906.
    
      E. H. Williams and J. L. Banlcston, for plaintiff in error.
    
      E. D. Graham, solicitor-general, contra.
   Bumpkin, J.

1. Where a grand jury returned in open court a special presentment against a defendant on the 20th day of March, charging him with keeping open a tippling-house on the Sabbath day, he having been arrested and bound over some weeks before for the offense, and such presentment was entered on the minutes, and no effort was made by him to secure subpoenas and obtain the presence of two certain witnesses until March 27, when subpoenas were issued, and he caused other subpoenas for the same witnesses to be issued on March 28, too late to be served in time to procure the presence of the witnesses at the trial on March 30, the witnesses residing in other counties, and no reason being shown for the delay or why he had not caused them to be served and procured their presence in due time, there was no abuse of discretion in overruling a motion to continue the case on account of their absence.

2. This case differs from that of Rumsey v. State, ante, 419, in which it was shown that the attendance of the absjmt witnesses could not by the use of due diligence be procured before the trial.

Judgment affirmed.

All the Justices concur.  