
    2852.
    Brown v. The State.
   Russell, J.

Where the accused was indicted on Monday, without any previous notice of the prosecution, and placed in jail on Tuesday, and the sheriff subpoenaed one Henry Milton, instead of Milton Milton, who was the witness desired bjr the defendant, and it was made to appear that the testimony of the absent witness was most material to the defense, it was error to rule the defendant to trial, especially as his counsel had only been employed the night before the trial, and stated in his place that he had had no time in which to make preparation to try the ease. Reasonable time should have been granted' the defendant to serve the witness whose presence and testimony he desired, and although a continuance was asked for, it -was in the discretion of the court to postpone the trial for merely a period of time sufficient to enable the accused to prepare his defense. The fact that the testimony in behalf of the State demanded the conviction rendered the testimony in behalf of the accused (which would have required an acquittal) the more material. Judgment reversed.

Decided November 11, 1910.

Indictment for sale of liquor; from Dooly superior court — ■ Judge Whipple. June 22, 1910.

John B. Guerry, for plaintiff in error.

Walter F. George, solicitor-general, contra.  