Knox v. State

52 So. 695 | Miss. | 1910

McLain, O.

On Saturday, February 26, 1910, the defendant, George Knox, was indicted for murder in the circuit court of Amite ■county, and on the following Monday, February 28, 1910, the ■case was called for trial, and the state announced ready for trial; but the defendant stated to the court that he was not ready for trial on account of the absence of Andrew Wells, a material witness. He presented an application for a continuance on this ground, which application was in due form and supported by affidavit. The application alleged, among other things, that the witness was then within the jurisdiction of the court, and that defendant was informed that he was at Gulf-port, Miss. The state contested the application on the theory that the witness was beyond the jurisdiction of the court. The evidence on this point was conflicting. The court overruled the motión for a continuance, and thereupon the defendant asked the court to postpone the cause to a future day of the coprt, which was also overruled by the court, and defendant forced to trial. The evidence taken on this application for a continuance further showed that this witness had but recently left the county, and that he resided, in the state and in the county where the crime was committed, and that he was temporarily absent, and would return soon.

If the witness was within the jurisdiction of the court, this case should have been continued, or at least postponed 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 the time the application was presented, then, under the facts of this particular case, a continuance should have been granted. In the case of Cade v. State, 96 Miss. 434, 50 South. 554, this court said, speaking through Judge Mayes: “While the court will not ordinarily interfere with the discretion of the trial court in refusing to grant an application for a continuance because of the absence of a witness, when it appears that the witness is beyond the jurisdiction of the court,' yet there are times when the trial court should allow a continuance, even when it appears that the absent witness cannot be reached with process at the time the application is made.” For a full discussion 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.