
    RICHARD SEVIER v. THE STATE.
    (S. C., Thomp. Cas., 192-194.)
    Nashville,
    December Term, 1859.
    1. CRIMINAL PRACTICE. Two jointly indicted, one tried alone, when.
    Where two persons are jointly indicted, one may be put upon his trial in the absence of the other.
    2. SAME. Insufficient affidavit for continuance.
    The defendant so put upon his trial moved the court for a continuance, and in support of his motion made affidavit stating’ that his co-defendant was a material witness for him; that he could not safely g-o to trial without his testimony; that he could not prove the facts so fully by any other witness; that a subpoena had been sued, out for him and returned not found; and that he was not in attendance; that he resided in the county as a steamboat man; that affiant believed he could have him at the next term of court; that he would have had the subpoena issued sooner, but he believed that he would be at court; that it was low water, . and witness remained home at low water; and that the continuance was asked not for delay, but that justice might be done. In refusing a continuance upon this affidavit, the court below committed no error, because it does not show that the witness was not absent by consent or procurement of the affiant; that the wdtness was out of the county; any valid reason why he was not served; when the subpoena-was issued; that it went into the hands of an officer; that the affiant was innocent. [Rhea V. State, 10 Yer., 259-260; Taylor v. State, 11 Lea, 717. Eor continuances, see Code, -secs. 4662-4665, and notes; sec. 7172, and notes.]
    Cited with approval: Bellew v. State, 5 Hum., 568; Knight v. State, 5 Hum., 599, 600.
    3: CONTINUANCES. In sound discretion of lower court.
    An application for a continuance is addressed to the sound discretion of the inferior court, and the supreme court will interfere with their judgments with reluctance upon this and other matters of practice or thing’s involving’ an exercise of legal discretion, and will never do so except in cases of palpable mistake, without the correction of which injustice must necessarily be done. [Walt v. Walsh, 10 Heis., 318; Womack v. State, 6 Lea, 153; Garber v. State, 4 Cold., 163-165; Pitts v. Gilliam, 1 Head, 553; Jones v. State, 10 Lea, 588; note 1 under sec. 4665 of the Code.]
    Cited with approval: Bellew v. State, 5 Hum., 567; Knight v. State, 5 Hum., 599; Rhea v. State, 10 Yer., 359; Goodman v. State, Meigs, 197; Nelson v. State, 3 Swan, 486.
    4. SAME. Sufficiency at first trial term.
    On application for a continuance at the first trial term, the party is not bound to disclose what his absent witnesses would swear to, to entitle him to a continuance. [State v. Morris, 1 Tenn., 330; Jones v. State, 10 Lea, 589; TayLor v. State, 11 Lea, 714; note 7 under sec. 4665 of the Code.]
    Cited with approval: Nelson v. State, 3 Swan, 483.
   Wright, J.,

delivered the opinion of the court:

The plaintiff in error and one John Wilson, at the August term, 1859, of the criminal court of Davidson county, and on the second day of the month, were jointly indicted for malicious shooting. At the same tenn of the court, and four days thereafter, the plaintiff in enor, being in custody, the attorney-general, on the part of the state, elected to go to trial, as to him, in the absence of the other defendant. The plaintiff in error thereupon, by his counsel, moved the court to continue the cause on account of the absence of said Wilson, which motion was overruled, and he was put upon his trial and convicted, and his term of service for the offense fixed by the jury at six years’ confinement in the penitentiary of the state. ITe moved for a new trial, but this was also overruled by the criminal court, and judgment pronounced upon the verdict, and he has appealed to this court.

In support of the motion for a continuance, he read his own affidavit, in which he stated that said "Wilson was a material witness for him; that he could not go safely to trial without his testimony; that he could not prove the same facts so fully by any other witness; that a subpoena had been sued out for him and returned not found, and that he was not in attendance; that he resided in the county as a steamboatman, and he believed that he could have him at the next term of the court; that he would have had the subpoena issued sooner for the witness, but he believed he would be at the court, it being low water and he remained at home at low water; that the continuance was asked not for delay, but that justice might be done him.

. A new trial is now claimed at the hands of this court because the continuance was refused. The writer of this opinion was under the impression that the affidavit was defective in not stating, even though it was the first term, what Wilson, the witness, would swear to; but in this he finds himself clearly mistaken. Nelson v. The State, 2 Swan, 482. But if an affidavit so general in this respect is to be allowed, surely, in other respects, it sh.oh.ld contain every reasonable certainty, especially where, as is the case here, an accomplice is to be the witness. An application for a continuance is addressed to the sound discretion of the criminal court, and we have repeatedly held that we interfere with the judgments of inferior courts with reluctance upon matters of practice or things involving an exercise of legal discretion, and that we will never do so, except in cases of palpable mistake, without the correction of which injustice must necessarily be done. 5 Hum., 567; Ib., 599; 10 Yer., 259; Meigs’ Rep., 197; 2 Swan, 486.

Conceding, then, that under some circumstances, John Wilson might have been a competent witness in the case, still we cannot say the criminal court committed any error in refusing the continuance. From aught that appears in this affidavit, Wilson may have been absent by consent or procurement of the defendant, on purpose to obtain a continuance. He is not shown to have been out of the county, nor any valid reason given why he was not served. Nor is it shown when the subpoena issued and what time was allowed the officer, if indeed an officer had it, to execute it. And it is reasonably to be inferred from the affidavit itself, that proper diligence would have insured tbe presence of tbe witness. Another matter is to be observed, and which we suppose it proper for us now to look at, and that is, that it is not rendered probable, from anything disclosed in the affidavit, that the plaintiff in error is innocent of the offense whereof he stands convicted. Bellew v. The State, 5 Hum., 568; Knight v. The State, 5 Hum., 599, 600.

The facts upon which the prisoner was convicted not being set forth in the record, we cannot doubt his guilt, and there being no error in refusing the continuance, the judgment of the criminal court is affirmed.

Judgment affirmed.  