Vollm v. State

51 So. 275, 96 Miss. 651

Opinion

Wi-iiteield, O. T.,

delivered the opinion of the court.

We think the court below erred in not granting the continuance, or, at least, in not setting the ease for a later day in the term. The application for continuance was based on the ground that Mrs. A. E. Hall, who was a witness to the execution of the receipt in question, and who was within the jurisdiction of the court, and had been served with process, and who was then in the county, but sick, would testify “that the clause alleged to have been unlawfully inserted in the receipt 'was in ■said receipt when said I. 0. Prather signed it,” and “that defendant did not insert into said receipt or instrument the words •and matter set out in said indictment as having been inserted by defendant after Prather signed the receipt.” The affidavit for continuance further showed that there was no other witness by whom these facts could be proven. It is manifest that the testimony of Mrs. Hall was of the most vital character, and the' court should certainly have either set the case for a later day in the term, or, if she could not during the term have recovered' from her illness, have continued the case to the next term.

Reversed and remanded.