Whit v. State

85 Miss. 208 | Miss. | 1904

Whitfield, C. J.,

delivered the opinion of the court.

The second application for a continuance should have been granted on the showing made by this record. The attorney-general, realizing this, has had filed here a certified copy of the original subpoena for Wat Bucket, showing that the subpoena was issued and executed May 4th, and an affidavit of the sheriff to the effect that the witness was present in court during the whole trial. But these papers were obtained after the adjournment of the court, and are not a part of this record, and cannot be looked to by us. If the original subpoena was on- file when this application was made, and the witness was in attendance, it would have been easy to show these facts in answer to the application; but no such showing was made; so far as the record discloses. The twenty-sixth section of article three of the constitution, and the decisions thereunder, make reversal imperative.

Reversed and remanded.