| Ky. Ct. App. | Nov 26, 1898
delivered the opinion OE the coubt.
The appellant was indicted for the murder of John Bruce in January, 1897, and the case continued from term to term, until September 6, 1898, when, upon motion of the Commonwealth, the indictment was dismissed, “and this prosecution is remanded to the present grand jury of Muhlenberg county.” On the same day another indictment was returned by the grand jury, accusing appellant of the murder of N. If. Bruce. On the same day the case was called, the Commonwealth announced ready for trial, and appellant moved for a continuance upon the ground of the absence of a material witness, who, it was claimed, would show threats by deceased against appellant, and who had been recognized to appear upon the trial of the first indictment at that term. The court permitted the affidavit to be read upon the hearing as a deposition, but refused to
By section 189 of - the Criminal Code it is provided that “when the ground of application for a continuance is the absence of a material witness, and the defendant mates 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 section 189, adopted May 15, 1886, it was provided that, upon such application, “the attorney for the Commonwealth shall not be compelled, in order to prevent the 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” — with a further provision that-.the Commonwealth is permitted to controvert the statements of such affidavits by other evidence, etc. It is further provided that the provisions of the amendatory section shall not apply to a motion for continuance made at the same term at which the indictment in the action is found.
There seems to be nothing in this record to show that the hilling of N. K. Bruce, charged in the second indictment, was the same offense charged in the former indictment; and, this being so, we are constrained to the conclusion that section 189 of the Code applies, and not the amendatory act, for the reason that the motion for the continuance was made at the same term at which the indictment in the action was found.
Another objection is that, after a juror had been accepted by the Commonwealth and not challenged by the defense, the defense was not permitted, -when the panel was filled, to peremptorily challenge such juror. This