151 Ky. 534 | Ky. Ct. App. | 1913
Opinion.of the Court by
Reversing.
At the September, 1912, term of the Knox circuit court, appellant was indicted for uttering a forged writing. He was tried at the same term of the court, found guilty, and given an indeterminate sentence in the penitentiary of from two to ten years. He prosecutes this appeal, and complains chiefly of the action of the court in refusing to grant him a continuance. The .indictment was returned September 4th, 1912, on which day appel
The affidavit further shows that appellant had exercised due diligence in attempting’ to take Prichard’s deposition, but that he had been unable to do so on account of the shortness of the time, and the great distance from Barbourville, Kentucky, to Lawton, Oklahoma. The court overruled appellant’s motion for a continuance, and forced him into trial which brought about his conviction. The evidence of the absent witnesses wasmlearly material to appellant’s defense.
Appellant moved the court to say to the jury that the material statements in the affidavit, as to what Prichard and the other witnesses would say, were to be taken and
Tbe question must be considered at rest in this jurisdiction, in view of the late decision in Breeden v. Commonwealth, 151 Ky., 217, where the precise question raised was determined favorably to the contention of appellant. Section 189 of the Criminal Code provides that, “When the ground of application for a continuance is the absence of a material witness, and the defendant makes affidavit as to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the Commonwealth admit upon the trial that the facts are true.” By an amendment to said section, adopted in 1886, it was provided that, “The attorney for the Commonwealth shall not be compelled, in order to-prevent a continuance, to admit the truth of the matter which it is alleged in the affidavit such absent witness or witnesses would prove, but only that such witness or witnesses would, if present, testify as alleged in the affidavit ; ’ ’ and that the Commonwealth may controvert the statements of such affidavits by other evidence. It is further provided, however, in said amendment that its provisions shall not apply to a motion for a continuance made at the same term at which the indictment in the action is found.
It will be seen, therefore, that while section 189, supra, has been amended so as not to require the Commonwealth to admit the truth of the statements- of absent witnesses, that restriction, nevertheless, applies if the trial is had at the same term at which the indictment is found.
In considering the effect of section 189, supra, as amended, we used the following language in Breeden v. Commonwealth:
“In interpreting the foregoing provisions of the Code, we have frequently held that the Commonwealth’s attorney will not be entitled to force the defendant into trial at the indicting term .without admitting the facts which the defendant’s affidavit for continuance shows could be proved by the absent witnesses to be true. Wiggins v. Commonwealth, 104 Ky., 765; Hardesty v. Commonwealth, 88 Ky., 537; Pace v. Commonwealth, 89 Ky., 204. In this case, the Commonwealth’s attorney refused
In the case at bar, as in Breeden v. Commonwealth, the trial was held at the same term of the court at which the indictment was found; and, in refusing to direct the jury to treat the ¡statements of the absent witnesses as true, the court clearly erred'. It either should have so directed the jury, or granted appellant a continuance. It is unnecessary to consider the other questions assigned as error.
Judgment reversed.