Knox v. StateKnox v. State
- Reporters:
- ,
- Before:
- McLain
On Sаturday, February 26, 1910, the defendant, George Knox, was indicted for murder in the circuit court of Amite ■county, аnd on the following Monday, February 28, 1910, the ■case wаs called for trial, and the state announcеd ready for trial; but the defendant stated to the сourt that he was not ready for trial on acсount of the absence of Andrew Wells, a matеrial witness. He presented an applicаtion for a continuance on this ground, which application was in due form and supported by аffidavit. The application alleged, among other things, that the witness was then within the jurisdiction of the сourt, and that defendant was informed that he was аt Gulf-*527port, Miss. The state contested the application on the theory that the witness was beyоnd the jurisdiction of the court. The evidence оn this point was conflicting. The court overruled the motión for a continuance, and thereupоn the defendant asked the court to postpone the cause to a future day of the сoprt, which was also overruled by the court, аnd defendant forced to trial. The evidencе taken on this application for a cоntinuance further showed that this witness had but recently left the county, and that he resided, in the state and in thе county where the crime was committed, and thаt he was temporarily absent, and would return soоn.
If the witness was within the jurisdiction of the court, this casе should have been continued, or at least рostponed to some future day of the term. Montgomery v. State, 85 Miss. 330, 37 South. 835. If the witness was beyond the jurisdiction of the court at thе time the application was presented, then, under the facts of this particular casе, a continuance should have been grantеd. In the case of Cade v. State, 96 Miss. 434, 50 South. 554, this court said, speaking through Judgе Mayes: “While the court will not ordinarily interfere with the discretion of the trial court in refusing to grant an application for a continuance bеcause of the absence of a witness, whеn it appears that the witness is beyond the jurisdictiоn of the court,’ yet there are times when the triаl court should allow a continuance, even when it appears that the absent witness cаnnot be reached with process at the time the application is made.” For a full discussiоn of this question, we refer to the above-stated case.
In the light of all the facts of this case, we think the court erred in refusing the defendant’s application for a continuance, and the judgment is reversed and case remanded.
Per Curiam.The above opinion is adopted as the opinion of the court. Reversed.