
    Cook v. Commonwealth.
    (Decided April 25, 1924.)
    Appeal from Pike Circuit Court.
    Criminal Law — Setting Aside Order for New Trial Held Abuse of Discretion. — Where judgment was entered convicting defendant of carrying concealed a deadly weapon, in bis absence on the second day of the term, when be believed bis case was set for tbe third day, and tbe court granted bis motion for new trial, it was an abuse of discretion to set aside tbe order granting tbe new trial on tbe third day when tbe Commonwealth moved for a continuance.
    WILLIS STANTON for appellant.
    DRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.
   Opinion op the Court by

Chief Justice Sampson

Reversing.

A default judgment was taken against appellant Cook in the Pike circuit court on the morning of the .second day of the term at a timé when he believed his case set for the third day, and in his absence. When he arrived at the county seat about eleven o ’clock he forthwith prepared and filed a verified motion and grounds for new trial. He set forth as grounds that he in good faith believed his ease was set for the third day, but in order to be on time he had left home on that morning and did not arrive at the county seat until after judgment was entered; that he lived a long ways from town; had never been indicted or in any trouble, and prayed the court to grant him a new trial. The motion was sustained and the court entered an order to that effect, setting the case for trial on the third day. When the case was called for trial on the third day the Commonwealth was not ready and moved the court for a continuance of the case, whereupon the court upon its own motion and without anything further appearing, set aside the order granting a new trial, thus effectuating the original judgment, finding appellant guilty and fixing his punishment at a fine of $100.00 and thirty days in jail and disfranchisement for the offense of carrying concealed a deadly weapon. Prom this judgment appellant prosecutes this appeal relying alone upon an abuse of discretion on the part of the trial court in setting aside the order granting a new trial.

The court deemed the showing made by appellant sufficient to warrant the setting aside of the original judgment and the granting of a new trial. Everything was regular up to that time. ¡On the next day the defendant appeared and was ready for trial but the Commonwealth was not ready and moved for a continuance. So far as the record shows the appellant did nothing to justify the court in setting aside the order for new trial. Indeed he did nothing at all save to present himself for trial. The Commonwealth for some reason which the record does not disclose desired to continue the case. We learn from appellant’s brief that no witness for the Commonwealth was present. This was no fault of appellant and furnished no ground for setting aside the order granting a new trial.

The whole record considered we are of the opinion that the trial court acted hastily in setting aside the order for new trial and in doing so abused a sound discretion, for which reason the judgment must be reversed for new trial.

Judgment reversed.  