Caldwell v. State

85 Miss. 383

• Court: Mississippi Supreme Court
• Decided: November 15, 1904
• Status: Published

Opinion

Truly, J.,

delivered the opinion of the court.

In view of the facts that the statements contained in appellant’s affidavit for a continuance were not denied or in any wise discredited, the application should have been granted. The record shows that the witness desired had been duly subpoenaed, was in less than one mile of the courthouse, and was too sick to attend the trial. The state should have either contested the truth of these statements, or the trial should have been postponed until the attendance of the witness could have been procured. The record of a completed trial shows that the testimony of the absent witness would have been most material to the appellant, and we cannot say with confidence that the result might not have, been different if that testimony had been detailed by the witness to the jury. Under the facts of this case the error in refusing a continuance was not cured by the district attorney admitting that the witness, if present, would testify to the contents of the application. Defendant was entitled to have his witness present in person. Scott v. State, 80 Miss., 199 (31 South. Rep., 710); Watson v. State, 81 Miss., 700 (33 South. Rep., 491).

Reversed and remanded.