
    6877.
    Yates v. The State.
    Decided November 5, 1915.
    Indictment for assault and battery; from Decatur superior court —Judge Cox. August 14, 1915.
    Jim Yates (the plaintiff in'error) was indicted and tried jointly with Jesse Yates, for assault and battery. The indictment was filed May 10, 1915, and the case was called for trial and tried May 17, 1915. One of the grounds of the motion for a new trial is as follows: “That the defendants should have a new trial because the court overruled the motion of defendants to postpone the hearing of said case until the 18th of May, upon the grounds that the defendants had two witnesses, Will Gray and Ed Gilmore, absent; that they had been subpoenaed and would testify that they were present at the time of the alleged difficulty, and saw and heard all of it; that all Mr. Jesse Yates did was to try to get Mr. Jim Yates not to do anything to the prosecutor, but asked him to let the prosecutor alone; that he was acting only as a peacemaker; that these witnesses were in the county, and that the defendants would have them present and ready to go to trial on the morning of the 18th; that they were the only witnesses by whom they could prove these facts; that the defendant Jim Yates had been in jail some little time, and had asked for a bond several times upon a charge of assault with intent to murder, and that the court had refused to allow him a bond; that he could not get out to see about employing an attorney when his case was called for trial, he having had no notice of the ease being made against him, nor any arrest being made in this case;.that Mr. Jesse Yates had been arrested and given bond only on Thursday next before the trial on Monday before the calling of the case for trial, and that he had been trying all that time to arrange a bond for his brother Jim, upon the charge of assault to murder, and was preparing to try that case, and made no preparation to try this case; that if the case were postponed until the morning of the 18th, the next day, they would be ready for trial. Counsel for defendants stated in his place that he was not ready for the trial, but would be ready on the following day, and only asked a postponement.”
   Broyles, J.

Under the particular facts of this case, as shown by the record, the refusal of the court to grant a postponement of the cause for one day, as requested by counsel for the accused, was error.

Ju,dgmeni reversed.

A. JE. Thornton, for plaintiff in error.

B. 0. Bell, solicitor-general, F. A. Hooper, contra.  