
    The State v. Dyke, Appellant.
    
    Criminal Practice: continuance. The state cannot deprive a defendant of her right to a continuance, by consenting that she may read on the trial the matter set out in the affidavit for continuance as the testimony of the absent witness. (State v. Berkley, 93 Mo. 41, affirmed).
    
    
      Appeal from Jackson Criminal Court. — Hon. Heney P. White, Judge.
    Reveesed and eemanded.
    
      D. S. Twitchell, F. W. Randolph and James O'Brien for appellant.
    
      B. Q. Boone, Attorney General, for the State.
   Beace, J.

On the fifteenth of September, 1887, the defendant was indicted in the criminal court of Jackson county for murder in the first degree for killing one' John Hamilton. On the nineteenth of September she was arraigned, pleaded not guilty and the cause was set for trial on the seventeenth of October. On the eigh. teenth of October, 1887, the case coming on to be tried, the defendant made application, supported by sufficient aifidavits, for a continuance on the ground of the absence of material witnesses. The court held the application and affidavits sufficient to entitle the defendant to a continuance, but upon the prosecuting attorney consenting that the facts therein set out as the facts which the defendant expected to prove by the absent witnesses might be taken and read as and for^ the testimony of such witnesses, the application was overruled and the defendant was compelled to go to trial without the evidence of such witnesses, and was convicted of murder in the second degree and sentenced to fifteen years imprisonment in the penitentiary.

Under the ruling in State v. Berkley, 92 Mo. 41; State v. Neiderer, 94 Mo. 79, and State v. Warden, 94 Mo. 648, the refusal of the court to grant a continuance was reversible error and so the attorney general concedes.

The judgment is therefore reversed and the cause remanded for a new trial.

All concur except Bay, J., absent.  