whether or not, by a refusal, an injury will be done
the applicant,3
,38 although circumstances working a
hardship on defendant are not sufficient grounds if
beyond the control of the court.39 It is not a suffi-
cient ground to allege that the ministerial and other
officers of the court, actually and de facto acting
as such, have no legal right to their respective of-
fices.40

The private and personal convenience of defendant is not a sufficient consideration to authorize a continuance.41

[ 826] b. Special or Particular Grounds—(1) Absence of Counsel-(a) In General. A request for continuance on the ground of the absence of a certain counsel is not looked upon by the courts with

155

Turning state's evidence. Runnels v.
State, 28 Ark. 121; Com. v. Dabney,
1 Rob. (40 Va.) 696, 40 AmD 717.
(19) To enable the accused to inter-
view the prosecutrix. Peo. v. Dun-
can, 261 III. 339, 103 NE 1043. (20)
An unwarranted belief and supposi-
tion of defendant that the case would
not be tried at that term. State v.
Smith, 60 Iowa 755, 15 NW 593. (21)
A witness returned as a juror. Peo.
v. Williams, 118 Mich. 692, 77 NW
248. (22) Where material witnesses
for the defense have been indicted
for a separate offense for the claimed
purpose of affecting their credibility.
McKelvey v. State, (Tex. Cr.)
SW 932. (23) To allow defendant to
move to quash information after
amendment. Moffitt v. Peo., 59 Colo.
406, 149 P 104. (24) That the ac-
cused, having no right to a jury trial,
was summoned to appear for jury
trial but was tried before the court
without jury. Peo. v. Satirichi, 8
Porto Rico 490. (25) For other mis-
cellaneous matters not constituting
ground for continuance see U. S. v.
Fullerton, 25 F. Cas. No. 15,175, 6
Blatchf. 275; Morgan v. State, 120
Ga. 499, 48 SE 238; Graham v. Com.,
164 Ky. 317, 175 SW 981; Rone v.
Com., 70 SW 1042, 24 KyL 1174;
State v. Overton, 85 N. J. L. 287, 88
A 689; Com. v. Scouton, 20 Pa. Super.
503; Peo. v. Pillot, 20 Porto Rico,
353; Thomas v. State, (Tex. Cr.) 189
SW 139; Sanford v. State, (Tex. Cr.)
185 SW 22; Jackson v. State, (Tex.
Cr.) 178 SW 521; Clark v. State, (Tex.
Cr.) 174 SW 354: Fondren v. State,
(Tex. Cr.) 169 SW 411; Branch v.
State, 73 Tex. Cr. 471, 165 SW 605;
Price v. State, (Tex. Cr.) 152 SW
640; Hinson v. State, 51 Tex. Cr. 102,
100 SW 939; Cooper v. State, (Tex.
Cr.) 65 SW 916; State v. Baltimore,
etc., R. Co., 15 W. Va. 362, 36 AmR
803.

[b] Miscellaneous grounds for continuance.-Failure of a stenographer to file a transcript of the testimony at a preliminary hearing within the time prescribed by law. Peo. Treschenko, 159 Cal. 456, 114 P 578. 38. Ark.-Jackson V. State, 54 Ark. 243, 15 SW 607.

V.

Cal.-Peo. v. Flannelly, 128 Cal. 83, 60 P 670.

Colo.-Holland v. Peo., 30 Colo. 94, 69 P 519.

Iowa.-State

Iowa 154.

V. Rorabacher, 19

Ky-Bell v. Com., 3 KyL 395. Mich.-Peo. v. Williams, 118 Mich. 692, 77 NW 248.

Miss.-Johnson v. State, 111 Miss. 828, 72 S 239.

Tex.-Morse v. State, (Cr.) 47 SW

989.

Va.-Early v. Com., 86 Va. 921, 11 SE 795.

[a] Illustrations.-(1) That defendant was in attendance as a juror for a week previous to the calling of his case is not ground for a continuance, where it is not shown that by reason of such service he is less prepared to go to trial than he would otherwise have been. Johnson V. State, 83 Ga. 553, 10 SE 207. (2) The fact that an order rescinding cer

42

favor, especially where such counsel is attending to professional duties in another court, or in some other manner would retard the operation of the court by his personal convenience or business.43 The right to a continuance under such circumstances depends largely upon the nature of the case and the inability to procure other counsel in time for the trial; and, unless the discretion of the trial judge has been abused, a reviewing court will not interfere.44 And generally speaking a continuance will not be granted on this ground where defendant is ably represented by other counsel, and it does not appear that his rights will be jeopardized or that an injury will be done him by the absence of certain counsel;45 or where, defendant's counsel being en

43. Cal.-Peo. v. Russell, 156 Cal. 450, 105 P 416; Peo. v. Goldenson, 76 Cal. 328, 19 P 161.

Colo.-Roberts v. Peo., 9 Colo. 458, 3 P 630.

Ga.-Johnson v. State, 108 Ga. 771, 33 SE 641.

Ill.-Feinberg v. Peo., 174 Ill. 609, 51 NE 798.

La.-State v. Turner, 122 La. 371, 47 S 685.

Mich.-Peo. v. Considine, 105 Mich. 149, 63 NW 196.

N. J.-State v. Di Benedetto, 82 N. J. L. 168, 82 A 521 [aff 83 N J. L. 792, 85 A 1135].

tain procedure has not been entered | uance or a postponement of his case
upon the record of the court does not until the return of an attorney whom
entitle defendant to a continuance, he has not employed to defend him.
where it is not claimed that he was Magruder v. State, 47 Tex. Cr. 465,
surprised by the order not having 84 SW_587.
been entered by record or that he is
not at the time ready for trial. State
v. Gillick, 10 Iowa 98. (3) The mis-
spelling of the names of witnesses
in indorsing them on an information
does not entitle defendant to a con-
tinuance, where his affidavit does not
distinctly allege that he was sur-
prised by the introduction of their
testimony. State V. Everitt, 14
Wash. 574, 45 P 150. (4) Where a
stenographer is in court and it is
clear that his attendance could have
been compelled by a subpoena had he
not been present and that he could
be compelled under oath to develop
from his notes any testimony taken
on a preliminary examination, a fail-
ure to file a transcript of the evidence
contained in such notes is not a good
ground for a continuance, as it is
plain that no injury results there-
from. Thiede v. Utah, 159 U. S. 510,
16 SCt 62, 40 L. ed. 237. (5) A show-
ing in a larceny case that the district
attorney promised defendant ten
days before the trial to continue the
case, and that defendant did not
know that it would be tried until four
days prior to the trial, is insufficient,
in the absence of facts showing prej-
udice, to entitle defendant to a con-
tinuance. Holland v. Peo., 30 Colo.
94, 69 P 519.

39. State v. Ford, 37 La. Ann. 443. But see State v. Harris, 22 Wash. 57, 60 P 58 (where it is held that a continuance should be granted until determination of a pending appeal by a material witness from a conviction of perjury).

[a] While the arrest and indictment of important witnesses for the defendant because of testimony given by them on his former trial might work a hardship upon him, it was a matter beyond the control of the court, and not sufficient ground for granting a continuance. State V. Ford, 37 La. Ann. 443.

40. State v. O'Grady, 31 La. Ann.

378.

[a] Reason for rule.-To permit a party to urge this as a ground would give him the right to commence with a kind of a collateral quo warranto as to the judge, and to continue thus down through the official roster of the court. State v. O'Grady, 31 La. Ann. 378.

41. Peo. v. Jackson, 111 N. Y. 362, 19 NE 54, 6 N. Y. Cr. 392. See also Com. v. Hurley, 158 Mass. 159, 33 NE 342 (holding that no legal or constitutional right of defendant was violated by refusing to postpone a trial until the court should be held three months afterward in the city where defendant lived).

42.

Poppell v. State, 71 Ga. 276;
Long v. State, 38 Ga. 491; Wright v.
State. 18 Ga. 283; Allen v. State, 10
Ga. 85; Curry v. State, 17 Ga. A.
377, 87 SE 685; Castenara v. State, 70
Tex. Cr. 436, 156 SW 1180.

[a] Attorney not employed.-De-
fendant is not entitled to a contin-

N. M.-Terr. v. Lobato, 17 N. M. 666, 134 P 222, LRA1917A 1226.

N. Y.-Peo. v. Jackson, 111 N. Y. 362, 19 NE 54, 6 N. Y. Cr. 393; Peo. v. McGuinness, 60 Hun 584, 15 NYS 230.

Tex.-Davis v. State, 69 Tex. Cr. 86, 154 SW 226; Usher v. State, 47 Tex. Cr. 93, 81 SW 309: Mixon v. State, 36 Tex. Cr. 66, 35 SW 394.

Wyo.-Van Horn v. State, 5 Wyo. 501, 40 P 964.

[a] Reason for rule.-"To reverse the case on the grounds here set up with reference to the absence of counsel would place it within the power of counsel to absolutely control the running of the courts and the disposition of cases." Usher v. State, 47 Tex. Cr. 93, 96, 81 SW 309. To same effect Peo. v. Goldenson. 76 Cal. 328, 19 P 161; Roberts v. Peo., 9 Colo. 458, 13 P 630.

44. Bunn v. Peo., 103 Ill. A. 336; Roper v. U. S., 7 Ind. T. 185. 104 SW 584; Cate v. State, 80 Nebr. 611, 114 NW 942; Davis v. State, 69 Tex. Cr. 86, 154 SW 226; Rex v. Tally, 8 Alta. L. 453.

45. Ark. Walker v. State, 91 Ark. 497, 121 SW 925; Jefferson v. State, 89 Ark. 129, 115 SW 1140.

Cal.-Peo. v. Durrant, 119 Cal. 201, 51 P 185.

Colo.-Epley v. Peo., 51 Colo. 501, 119 P 153.

Fla.-Hopkins v. State, 52 Fla. 39, 42 S 52; Smith v. State. 48 Fla. 307. 37 S 573; Newberry v. State, 26 Fla. 334. 8 S 445.

Ga.-Cliett v. State, 132 Ga. 36, 63 SE 626; Johnson v. State, 108 Ga. 771, 33 SE 641; Smith v. State, 78 Ga. 71; Giles v. State, 66 Ga. 344; Allen v. State, 10 Ga. 85; Bulloch v. State, 10 Ga. 46: Curry v. State, 17 Ga. A. 377, 87 SE 685; Easterling v. State, 12 Ga. A. 690, 78 SE 140.

Ill-Long v. Peo., 135 Ill. 435, 25 NE 851, 10 LRA 48.

Iowa.-State v. Ostrander, 18 Iowa 435 (holding that it is not ground for a continuance where time enough is given to employ another attorney and to enable him to prepare the case for trial).

Kan.-State v. Sullivan, 43 Kan. 563. 23 P 645.

Ky. Mullins v. Com., 172 Ky. 92, 188 SW 1079; Brennon v. Com., 169 Ky. 815, 185 SW 489; Kelly v. Com., 165 Ky. 483, 177 SW 249; Tolliver v.

gaged in the trial of another cause, the court offers to assign him counsel, which offer he declines.46 All that defendant can require, as a matter of right, is a reasonable time to have other counsel become familiar with the facts of the case.47 Where, however, the higher court conceived that the ends of justice required the presence at the trial of a particular counsel, and he was unexpectedly absent through no fault of the accused, it will be held reversible error on the part of the trial court to have refused a continuance.48

The absence of the county attorney from the county when the warrant is returned is sufficient cause for a continuance of the case for a reasonable time.4

been held that such a statute refers only to those who become attorneys before the commencement of the session of the legislature.52

[§ 827] (b) By Reason of Illness. While ordinarily an application for a continuance on account of the sickness of defendant's attorney is within the discretion of the trial court,53 a request for a continuance on such ground is of course received with more favor than when such absence is due to his personal business transactions; and where defendant has been unable or has not had sufficient time to provide other counsel, a continuance should be granted.54 Such sickness must, however, be bona fide and sufficient to incapacitate him from conveniently appearing and making an able defense." Denial of a continuance, sought because of the absence of counsel physically unable to appear, is not an abuse of discretion, where it appears that he was employed by the accused with knowledge of his physical indisposition;56 nor is it error to refuse a continuance because of the sickness of a certain counsel, where defendant has a sufficient array of Tex. Cr. 354, 152 SW 1047; Webb is in attendance upon a session of v. State, (Tex. Cr.) 40 SW 989. the legislature, there is no right given for a postponement because his counsel is attending a session of a constitutional convention, and therefore the question of a postponement on that ground is a matter largely within the discretion of the trial court, and the exercise of this discretion will not be interfered with unless there has been an abuse of it. State v. Hawthorn, 134 La. 979, 64 S 873.

Statutory provisions. By statute in some jurisdictions absence of counsel as a member of the legislature is a cause for continuance.50 However, attendance upon the legislature by defendant's attorney is not a valid ground for a continuance, where the trial was set with his consent upon a day when the legislature would be in session.5 It has also

Com., 165 Ky. 312, 176 SW 1190: Watkins v. Com., 149 Ky. 26, 147 SW 947; Middleton v. Com., 143 Ky. 456, 136 SW 871; Howerton v. Com., 129 Ky. 482, 112 SW 606, 33 KyL 1008; Kennedy v. Com., 108 SW 891, 32 KyL 1381; Sheperd v. Com., 82 SW 378, 26 KyL 698; Moore v. Com., 81 SW 669, 26 KyL 356; Cook v. Com., 114 Ky. 586, 71 SW 522, 24 KyL 1409; Rone v. Com., 70 SW 1042, 24 KyL 1174; Howard v. Com., 70 SW 295, 24 KyL 950; Hatfield v. Com., 55 SW 679, 21 KyL 1461; Stevens v. Com., 6 SW 456, 9 KyL 742; Brown v. Com., 7 KyL 451, 13 Ky. Op. 838.

La.-State v. Cloud, 130 La. 955, 58 S 827, AnnCas1913D 1192; State v. Richard, 127 La. 413, 53 S 669; State v. Golden, 113 La. 791, 37 S 757; State v. Murray, 111 La. 688, 35 S 814; State v. Gosey, 111 La. 616, 35 S.786.

Mo.-State v. Parker, 106 Mo. 217, 17 SW 180.

Nebr.-Becker v. State, 91 Nebr. 352, 136 NW 17.

N. Y.-Peo. v. Curtiss, 118 App. Div. 259, 103 NYS 395.

Okl.-Payne v. State, 10 Okl. Cr. 314. 136 P 201.

Philippine.-U. S. V. Torrente, 2 Philippine 1.

Porto Rico.-Peo. v. Ortiz, 4 Porto Rico 276.

S. C.-State v. Edwards, 86 S. C. 215, 68 SE 524; State v. Hunter, 79 S. C. 84, 60 SE 241.

Tex.-Simonds v. State, 76 Tex. Cr. 487, 175 SW 1064; Thompson v. State, 70 Tex. Cr. 610, 157 SW 494; Collins v. State, 68 Tex. Cr. 354, 152 SW 1047; Monroe v. State, 56 Tex. Cr. 244, 119 SW 1146; Magruder v. State, 47 Tex. Cr. 465, 84 SW 587; Marchan v. State, 45 Tex. Cr. 212, 75 SW 532; Moore v. State, (Cr.) 70 SW 89; Roberts v. State, (Cr.) 51 SW 383; Barton v. State, 34 Tex. Cr. 613, 31 SW 671; Weaver v. State. 34 Tex. Cr. 282, 30 SW 220; Stockholm v. State, 24 Tex. A. 598, 7 SW 338; Walker v. State, 13 Tex. A. 618.

Wash.-State V. Underwood, 35 Wash. 558, 77 P 863.

[a] This rule applies to an attorney in fact as well as to an attorney at law. Smith v. State, 48 Fla. 307, 37 S 573; Allen V. State, 10 Ga. 85.

[b] Absence of leading counsel for the accused is not ground for a continuance where he is duly represented by his other counsel. Smith v. State, 48 Fla. 307, 37 S 573; Caudill v. Com., 155 Ky. 578, 159 SW 1149; Shepherd v. Com., 82 SW 378, 26 KyL 698; State v. Hawthorn, 134 La. 979, 64 S 873; Payne v. State, 10 Okl. Cr. 314, 136 P 201; Collins v. State, 68

51

[c] Absence of one of defendant's local attorneys is not ground for a continuance where the leading counsel is an able criminal lawyer and is assisted by a local counsel. Jones v. State, 8 Okl. Cr. 576, 129 P 446.

[d] Where there is no attempt to explain the cause of his absence, the motion should be overruled. Wilson v. State, 6 Ga. A. 16, 64 SE 112.

[e] Where the issues are simple, the witnesses and facts few, without complication, and such that an attorney may, within a short period of time, readily grasp all the knowledge thereof necessary to make a full presentation of the case, absence of one of defendant's attorneys presents no sufficient ground for continuance. Brennon v. Com., 169 Ky. 815, 185 SW 489.

46. Peo. v. Russell, 156 Cal. 450, 105 P 416; State v. Hedgepeth, 125 Mo. 14, 28 SW 160.

47. Peo. v. Warren, 130 Cal. 678, 63 P 87.

48. Ga.-McArver V. State, 114 Ga. 514, 40 SE 779; Delk v. State, 100 Ga. 61, 27 SE 152; Bagwell v. State, 56 Ga. 406; Johnson v. State, 1 Ga. A. 729, 57 SE 1056.

Ky.-Ray v. Com., 124 SW 792; Jett
v. Com., 139 Ky. 794, 85 SW 1179, 27
KyL 603; Cornelius v. Com., 64 SW
412, 23 KyL 771; Leslie v. Com., 42
SW 1095, 19 KyL 1201; Bates V.
Com., 16 SW 528, 13 KyL 132.

La.-State v. Hollingsworth, 134
La. 554, 64 S 409; State v. Ferris, 16
La. Ann. 424.

N. Y.-Peo. v. Kerber, 172 App.
Div. 755, 159 NYS 215.

Tex.-Scott v. State, 43 Tex. Cr.
610, 68 SW 171.

[a] Arrest of attorney.-Where defendant's attorney who alone was familiar with the facts of the case and who had prepared himself for the trial was arrested after the jury was completed, the case should have been withdrawn from the jury and continued, or trial should have been postponed until the charge against the attorney could be disposed of by the trial court. Scott v. State, 43 Tex. Cr. 610, 68 SW 171.

49. State v. Nerbovig, 33 Minn. 480, 24 NW 321.

50. See statutory provisions; and Peo. V. Goldenson, 76 Cal. 328, 19 P 161; State v. Hawthorn, 134 La. 979, 64 S 873; State v. Richard, 127 La. 413, 53 S 669,

51. State v. Richard, 127 La. 413, 53 S 669.

52. Peo. v. Goldenson, 76 Cal. 328, 19 P 161.

[a] Thus a defendant in a criminal case is not entitled to a continuance because his junior counsel is a member of the legislature, when it does not appear from the record that he was engaged in the defense when the session began. Peo. v. Goldenson, 76 Cal. 328. 19 P 161.

53. Teter v. State, 7 Okl. Cr. 165, 122 P 1115.

54. Cal.-Peo. V. Logan, 4 Cal. 188.

Ga. Flanagan V. State, 106 Ga. 109, 32 SE 80; Allen v. State, 10 Ga. 85.

Ky.-Wilson v. Com., 134 Ky. 669. 121 SW 614; Johnson v. Com., 119 SW 745.

Mich.-Peo. Mich. v. Shufelt, 61 237, 28 NW 79. Porto Rico.-Peo. v. Dominguez, g Porto Rico 483.

Tex.-Kuehn v. State, 47 Tex. Cr. 636, 85 SW 793; Daugherty v. State, 33 Tex. Cr. 173, 26 SW 60.

[a] Where defendant's attorney was taken suddenly sick an hour before the case was called for trial, which sickness resulted fatally two days thereafter, the court erred in refusing a continuance, and under the circumstances should nave granted a new trial. Teter v. State, 7 Okl Cr. 165, 122 P 1115.

55. Garner v. State, 28 Fla. 113. 9 S 835, 29 AmSR 232; Jones v. State, 128 Ga. 23, 57 SE 313; Hanye v. State, 99 Ga. 212, 25 SE 307: Hart v. State, 14 Ga. A. 364, 80 SE 909; Wheeler v. State, 158 Ind. 687,63 NE 975; Murmutt v. State, (Tex. Cr.) 67 SW 508.

[a] Fatigue.-The fact that defendant's lawyer had been engaged in the trial of a number of cases, and was very much worn out and fatigued, was not ground for a continuance, Hanye v. State, 99 Ga. 212, 25 SE 307; Murmutt v. State, (Tex. Cr.) 67 SW 508.

[a] Attending constitutional convention.-While it is provided that 56. Curry v. State, 17 Ga. A. 377. an accused is entitled to a postpone- 87 SE 685; Easterling v. State, 12 ment of his case because his counsel Ga. A. 690, 78 SE 140.

[§ 829] (3) Absence of Witness or Evidence(a) In General. It has been said that the rule governing the granting of a continuance on the ground 56 S 172; Corbin v. State, 99 Miss. | accused him, and to hear their testi486, 55 S 43; Lipscomb v. State, 76 mony." Ehrlich v. Com., supra. Miss. 223, 25 S 158. €2. Veal v. Com., 162 Ky. 250, 172 SW 501.

Mo.-State v. Armstrong, 140 Mo. A. 719, 127 SW 93.

Tex.-Oliver v. State, 70 Tex. Cr. 140, 159 SW 235; Kirby v. State, 68 Tex. Cr. 63, 150 SW 455; Streight v. State, 62 Tex. Cr. 453, 138 SW 742.

Newfoundl.-Reg. V. Parnell, 7

[a] Reason for rule.-"This must necessarily be so, for that court has the defendant before it in person, and can to some extent judge from his personal appearance whether his physical condition is such as to enable him to stand the ordeal of a trial. But this means which the trial court has of determining the defendant's physical condition can not be preserved in the record except in a very imperfect way." Goddard V. State, 78 Ark. 226, 228, 95 SW 476.

[b] The temporary insanity complained of must be clearly proved, and where the physician called upon to prove this condition testifies that, in negro lingo, defendant was "playing possom,' it is no abuse of discretion to proceed with the trial. Especially is this true where defendant, as soon as the motion was overruled, recovered his mental equilibrium and was vigilant and ready in prompting his counsel throughout the trial. State v. George, 37 La. Ann. 786.

61. Veal v. Com., 162 Ky. 250, 172 SW 501; Ehrlich v. Com., 131 Ky. 680, 684, 115 SW 797; Johnson V. State v. Baker, 146 Iowa 612, 125

State, 108 Miss. 709, 67 S 177; Hoggett V. State, (Miss.) 56 S 172; Graham v. State, 72 Tex. Cr. 9, 160 SW 714 (holding that, where an application for a continuance showed that the accused was not mentally or physically able to be tried, and could not be of any assistance to his counsel at the trial because of his mental condition, and probably could not be placed upon the witness stand, a continuance should have been

"When the Commonwealth permits a defendant, at the first calling of his case, to show without contradiction that he is too sick to be present or to manage his defense, then we think he is entitled to a continuance of the case, so as to give him an opportunity to exercise his constitutional right of being present at the trial, to confront the witnesses who

of the absence of witnesses is the same both in civil and in criminal cases.73 Under this rule the accused is not entitled to a continuance as a matter of right,74 but his application is addressed very largely to the discretion of the trial court;75 and in the exercise of this discretion the action of the court will not be reviewed or disturbed 76 except where it is clearly

73. Moore v. State, 59 Fla. 23, 52 S 971; Adams v. State, 56 Fla. 1, 48 S 219; State v. Forbes, 111 La. 473, 35 S 710; Peo. v. Vermilyea, 7 Cow. Contra Hobbs v. State, 8 (N. Y.) 369. Ga. A. 53, 68 SE 515. 74. Furnace v. State, (Tex. Cr.) 182 SW 454.

75. U. S.-Younge v. U. S., Fed. 941, 139 CCA 421.

223

Ala.-Richardson v. State, 191 Ala. 21, 68 S 57; Sanders v. State, 181 Ala. 35, 61 S 336; Gilbert v. State, 2 Ala. A. 94, 57 S 127.

Ariz.-Schaffer v. Terr., 14 Ariz. 329, 127 P 746.

Ark.-Joiner v. State, 113 Ark. 112, 167 SW 492; Davey v. State, 99 Ark. 547, 139 SW 629; Kilgore v. State, 137 SW 1092; Weatherford v. State, 78 Ark. 36, 93 SW 61.

Ga.-Nick v. State, 128 Ga. 573, 58 SE 48; McClaim v. State, 17 Ga. A. 750, 88 SE 409; Hobbs v. State, 8 Ga. A. 53, 68 SE 515.

Ind. T.-Williams v. U. S., 6 Ind. T. 1, 88 SW 334.

Iowa.-State v. Painter, 40 Iowa

298.

Ky.-Prewitt v. Com., 5 KyL 861, 12 Ky. Op. 610.

La.-State v. Hawthorn, 134 La. 979, 64 S 873; State v. Jackson, 134 La. 599, 64 S 481.

Miss.-Johnson v. State, 111 Miss. 828, 72 S 239.

Mo.-State v. Salts, 263 Mo. 304, 172 SW 373; Poplar Bluff v. Meadows, 187 Mo. A. 450, 173 SW 11.

Okl.-Hall v. State, 11 Okl. Cr. 57, 142 P 1044.

Porto Rico.-Peo. v. Santos, 8 Porto Rico 348.

S. C.-State v. Crosby, 88 S. C. 98, 70 SE 440.

Tex.-Furnace v. State, (Cr.) 182 SW 454; Bost v. State, 64 Tex. Cr. 464, 144 SW 589.

Wash.-State v. O'Brien, 66 Wash. 219, 119 P 609; State v. Croney, 31 Wash. 122, 71 P 783.

[a] Granting a continuance to the of the absence state on account witness is proper. of material Com. v. Carter, 11 Pick. (Mass.) 277; 2 Overt. (Tenn.) Scott, State V.

71.

a

[b] A tender of the witness to defendant for private examination and for use on the trial is a sufficient answer to a motion for a continuance based on an unsupported charge that the state is holding one of defendant's witnesses under arrest as an accomplice so as to deprive defendant of the benefit of his testiMoore v. State, 44 Tex. Cr. mony.

526, 72 SW 595.
[c] Where a witness willfully ab-
sents himself defendant cannot be
extent of
held responsible to the
a denial of his application for a con-
tinuance. Wilson v. State, (Tex. Cr.)
190 SW 155.

76. See cases supra note 75.

infra this note;

[a] Discretion not abused.-(1) See Pearson v. State, 119 Ark. 152, 178 SW 914; Johnson v. State, 89 Ark. 46, 115 SW 930; Rucker v. State, 77 Ark. 23, 90 SW 151; Peo. v. Buck, 151 Cal. 667. 91 P 529; Shiver v. State, 41 Fla. 630, 27 S 36; Lewis v. State, 129 Ga. 731, 59 SE 782; Blount v. State, 18 Ga. A. 204, 89 SE 78; Terry v. State, 15 Ga. A. 108, 82 SE 635; Little v. State, 10 Ga. A. 826, 74 SE 295; Hall v. State, 7 Ga. A. 115, 66 SE 390; Adkins v. Com., 161 Ky. 254, 170 SW 607; Napier v. Com., 110 SW 842, 33 KyL 635; Sheperd v. Com., 82 SW 378

shown that there has been an abuse of discretion;" and this rule obtains even though it is a first application for a continuance;78 and when the facts and circumstances on which it acts are not certified to the appellate court, discretion will be presumed to have been properly exercised." If the absent witnesses can be procured by a short postponement of

V.

26 KyL 698; Collins v. Com., 70 SW
187, 24 KyL 884; Robinson v. Com.,
68 SW 1099, 24 KyL 564; Peo. v. Ro-
barge, 147 App. Div. 920, 131 NYS
901; State v. English, 164 N. C. 497,
80 SE 72; State v. Mills, 79 S. C. 187,
60 SE 664; Satterwhite v. State, 78
Tex. Cr. 309, 181 SW 462; Lane v.
State, 73 Tex. Cr. 266, 164 SW 378;
Sanford v. State, 64 Tex. Cr. 607, 143
SW 1172; Bost v. State, 63 Tex. Cr.
464, 144 SW 589; Bice v. State, 55
Tex. Cr. 529, 117 SW 163; Railsback
v. State, 53 Tex. Cr. 542, 110 SW 916;
Hardin v. State, 52 Tex. Cr. 238, 106
SW 352; Godwin v. State, 44 Tex.
Cr. 599, 73 SW 804; McGrew v. State,
(Tex. Cr.) 49 SW 226; Rex v. Toron-
to R. Co., 23 Ont. L. 186, 18 CanCrCas
417, 2 OntWN 681, 18 OntWR 104. .(2)
It was not error to refuse a continu-
ance because of the absence of dece-
dent's skull, which defendant desired
to use in evidence, no abuse of the
court's discretion being shown. Moss
v. State, 152 Ala. 30, 44 S 598.
77.
See cases infra this section;
abused. See
[a] Discretion
supra note 75.
Younge v. U. S., 223 Fed. 941, 139 CCA
421; Schaffer v. Terr., 14 Ariz. 329,
127 P 746; Jones v. State, 99 Ark.
394, 138 SW 967; McLey v. Peo., 49
Colo. 328, 112 P 691; Battle v. State,
133 Ga. 182, 65 SE 382; Little v. State,
121 Ga. 159, 48 SE 904; Brown
State, 120 Ga. 145, 47 SE 543; An-
drews v. State, 84 Ga. 82, 10 SE 503;
Barnard v. State, 73 Ga. 803; With-
worth v. State, 30 Ga. 10; Copenhaven
v. State, 14 Ga. 22; Johnson v. State,
16 Ga. A. 287, 85 SE 204; Watts v.
State, 14 Ga. A. 600, 81 SE 902; Col-
lins v. State, 12 Ga. A. 635, 77 SE
1079; Haines v. State, 8 Ga. A. 627,
70 SE 84; Price v. State, 7 Ga. A.
571, 67 SE 679; McDaniel v. State, 5
Ga. A. 831, 63 SE 919; Howell v.
State, 5 Ga. A. 186, 62 SE 1000; Sut-
ton v. Peo., 119 111. 250, 10 NE 376;
Connors v. State, 183 Ind. 618, 109 NE
757; Jenks v. State, 39 Ind. 1; Clair
v. Com., 154 Ky. 711, 159 SW 523;
Moss v. Com., 138 Ky. 404, 128 SW
296; Settle v. Com., 136 Ky. 440, 124
SW 393; Davis v. Com., (Ky.) 121
SW 429; Allen v. Com., 134 Ky. 110,
119 SW 795, 20 AnnCas 884; Smith v.
532, 118
133 Ky.
SW 368:
Mount v. Com., 120 Ky. 398, 86 SW
Com.,
707, 27 KyL 788; Hendrickson
Com., 73 SW 764, 24 KyL 2173; State
v. Thomas, 40 La. Ann. 151, 860, 3 S
589; State v. Moultrie, 33 La. Ann.
1146; Johnson v. State, 111 Miss. 828,
72 S 239; Knox v. State, 97 Miss. 523,
52 S 695; Dobbs v. State, 96 Miss.
786, 51 S 915; State v. Vollm, (Miss.)
51 S 275; Cade v. State, 96 Miss. 434,
50 S 554; Anderson v. State, (Miss.)
50 S 554; White v. State, (Miss.) 45
S 611; Magee v. State, (Miss.) 45 S
360; Watts v. State, 90 Miss. 757, 44
S 36; Woodward v. State, 89 Miss.
348, 42 S 167; Caldwell v. State, 85
Miss. 383, 37 S 816; Whit v. State,
85 Miss. 208, 37 S 809; Fooshee v.
State, 82 Miss. 509, 34 S 148; Hattox
v. State, 80 Miss. 186, 31 S 579; State
v. Hesterly, 182 Mo. 16, 81 SW 624,
103 AmSR 634, Peo. v. Robarge, 147
App. Div. 920, 131 NYS 901; Peo. v.
Brackerton, 89 Misc. 269, 153 NYS
567; Smith v. State, 10 Okl. Cr. 544,
139 P 709; Payne v. State, 10 Okl.
Cr. 314, 136 P 201; Franks v. State, 8
Okl. Cr. 71, 126 P 582; Teter v. State,
7 Okl. Cr. 165, 122 P 1115; Madison
v. State, 6 Okl. Cr. 356, 118 P 617,
AnnCas1913C 484; Thompson v. State,
Okl. Cr. 334, 118 P 614; Med-

V.

V.

ford v. State, 76 Tex. Cr. 250, 174 SW
607; Wade v. State, 75 Tex. Cr. 572,
172 SW 215; Sparlin v. State, 75 Tex.
Cr. 102, 170 SW 307; Silvas v. State,
71 Tex. Cr. 213, 159 SW 223; Baggett
151 SW
v. State, 69 Tex. Cr. 145,
560; Valigura v. State, 68 Tex. Cr. 12,
150 SW 778; Davis v. State, 65 Tex.
Cr. 429, 144 SW 938; Smith v. State,
64 Tex. Cr. 454, 142 SW 1173; Rush-
ing v. State, 62 Tex. Cr. 309, 137 SW
372; Barlow v. State, 61 Tex. Cr. 64,
133 SW 1050; Keys v. State, 60 Tex.
Cr. 279, 131 SW 1068; Presley v.
State, 60 Tex. Cr. 102, 131 SW 332;
Mason v. State, 57 Tex. Cr. 319, 122
57 Tex.
SW 871; Cameron v. State,
Cr. 316, 122 SW 870; Elkins v. State,
57 Tex. Cr. 247, 122 SW 393; Rankin
v. State, 57 Tex. Cr. 132, 122 SW 25;
Pearson v. State, 56 Tex. Cr. 607, 120
SW 1004; Jones v. State, 55 Tex. Cr.
123, 113 SW 928; Smith v. State, 54
Tex. Cr. 617, 114 SW 827, 828; Roque-
more v. State, 54 Tex. Cr. 592, 114 SW
140; Collins v. State, 52 Tex. Cr. 455,
107 SW 852; Lopez v. State, 52 Tex.
Cr. 226, 106 SW 336; McNamee
State, (Tex. Cr.) 97 SW 96; Phillips
v. State, 50 Tex. Cr. 127, 94 SW 1051;
Robbins v. State, 47 Tex. Cr. 312, 83
SW 690, 122 AmSR 694; Dyer v.
State, 47 Tex. Cr. 253, 83 SW 192;
Lawhorn v. State, 46 Tex. Cr. 555,
81 SW 714; McMahon v. State, 46
Tex. Cr. 540, 81 SW 296; Wallace v.
State, 46 Tex. Cr. 341, 81 SW 966;
Tyler v. State, 46 Tex. Cr. 10, 79 SW
558; Thompson v. State, (Tex. Cr.) 78
SW 803; Swan v. State, (Tex. Cr.)
SW 691; Dean v. State, (Tex. Cr.) 77
76 SW 464; Torno v. State, (Tex. Cr.)
75 SW 500; Knowles v. State, (Tex.
Cr.) 74 SW 767; Bain v. State, (Tex.
Cr.) 74 SW 542; Dewberry v. State,
(Tex. Cr.) 74 SW 307; Cubine v. State,
45 Tex. Cr. 108, 74 SW 39; Bismark v.
State, 45 Tex. Cr. 54, 73 SW 9K5;
Rambo v. State, (Tex. Cr.) 69 SW
163; Jemison v. State, 43 Tex. Cr. 456,
66 SW 842; Cortez v. State, 43 Tex
Cr. 375, 66 SW 453; Whitney v. State,
42 Tex. Cr. 283, 59 SW 895; Dawson
v. State, 38 Tex. Cr. 9, 40 SW 731;
Edmonson v. State, (Tex. Cr.) 36 SW
270; Richards v. State, 34 Tex. Cr.
277, 30 SW 229; Dawson v. State, 32
Tex. Cr. 535, 25 SW 21, 40 AmSR
791; Walker v. State, 32 Tex. Cr. 175.
22 SW 685; Moreno v. State, (Tex.
Cr.) 21 SW 924; Givens v. State,
(Tex. Cr.) 21 SW 44; Arrington v
State, (Tex. Cr.) 20 SW 927; Hyden
v. State, 31 Tex. Cr. 401, 20 SW 764:
Ferguson v. State, 31 Tex. Cr. 93,
19 SW 901; McConnell v. State, (Tex.
A.) 18 SW 645; Clark v. State, 30
Tex. A. 377, 17 SW 933; Ainsworth v.
State, 29 Tex. A. 599, 16 SW 652;
English v. State, (Tex. A.) 16 SW
306; Pitts v. State, (Tex. A.) 14 SW
1014; Gregg v. State, (Tex. A.) 12 SW
732; Sweet v. State, 28 Tex. A. 223, 12
SW 590; Donahoe v. State, 28 Tex. A.
12, 11 SW 677; Brooks v. State, 26
Tex. A. 87, 9 SW 355; Eads v. State,
26 Tex. A. 69, 9 SW 68; Fowler v.
field v. State, 23 Tex. A. 645, 5 SW
State, 25 Tex. A. 27, 7 SW 340; May-
161; Frazier v. State, 22 Tex. A. 120,
2 SW 637; Tucker v. State, 21 Tex. A.
699, 2 SW 893; Schindler v. State, 15
Tex. A. 394; Garcia v. State, 15 Tex
A. 120; McCracken v. State, 6 Tex. A.
507; State v. Pierce, 88 Vt. 277, 92
A 218: Miller v. State, 139 Wis. 57.
119 NW 850.

78.

Sharp v. State, 71 Tex. Cr. 79. 633, 160 SW 369.

State v. Finn, 31 La. Ann. 408: Peo. v. Foote, 93 Mich. 38, 52 NW

later cases, developments and changes

the trial, and this mode is adopted, a continuance
cannot be claimed; 80 nor is it error to refuse a
continuance where defendant refuses to avail him-
self of an offer of postponement sufficient to enable
him to procure their attendance,81 or to take their
depositions;82 nor where he refuses to state a desire
to wait for a witness who has telegraphed that he
is on the way;8
.83 nor where the court is convinced
that their absence is due to the procurement and
connivance of defendant,84 that the continuance is
not requested in good faith,85 or that the real pur-
pose of the continuance is merely to secure delay.86
Certain concurring facts have, from a very early
date, been considered by the courts as guiding stars
to the proper exercise of its discretion in passing on
applications for a continuance based on the absence
of a witness.87 Thus it has been held that the court
must be satisfied that the testimony of the absent
witness is material, that the party applying for it
has been guilty of no neglect or laches in endeavor-
ing to procure the attendance of the witness, and
that there is a reasonable expectation that the wit-
ness can be procured at the term to which it is
sought to put off the trial;88 and where the appli-
1036; Com. v. Carson, 3 Phila. (Pa.)
219.

Presumptions on appeal generally see infra XX.

80. Betts V. State, 66 Ga. 508; Reese v. State, 7 Ga. 373; Salisbury v Com., 3 KyL 211 (holding that § 189 of the criminal code did not preclude the court from so proceeding). See also State v. Lewis, 41 La. Ann. 590, 6 S 536 (holding that, where defendant asks a postponement of the trial because of the absence of two certain witnesses, and says that if one particular witness were present he would go to trial, and that witness appears in court before the request is decided, it is not error to proceed with the trial instanter); State v. Gamble, 108 Mo. 500, 18 SW 1111 (holding that, where several continuances had been granted, both before and after a mistrial, and on the case coming up for trial a further continuance to a day certain was granted because of absence of witnesses, and compulsory process was also awarded, and on the day to which the case had been continued defendant proceeded to trial without further objection, it would be presumed that he either obtained his witnesses or concluded to dispense with them).

81. Smith v. State, 78 Ga. 71; McRae v. State, 52 Ga. 290; May V. State, 25 Tex. A. 114, 7 SW 588; Ferguson's Case, 3 Gratt. (44 Va.) 594, 46 AmD 196.

82. State v. English, 164 N. C. 497. 80 SE 72.

83. Follis v. State, 51 Tex. Cr. 186. 101 SW 242 (holding that the court had a right to proceed in a murder trial, in the absence of one of defendant's witnesses who had telegraphed that he had started for the trial, where defendant refused to state a desire to wait for the witness until the next day).

84. Ford v. San Francisco Super. Ct., 17 Cal. A. 1, 118 P 96; State v. Belvel, 89 Iowa 405, 56 NW 545, 27 LRA 846; Ogles v. Com., 11 SW 816, 11 KyL 289; Wormeley v. Com., 10 Gratt. (51 Va.) 658. See also Bowers v. State. (Tex. Cr.) 71 SW 284 (where the application was held insufficient because it failed to state that the witness was not absent by the consent or the procurement of the accused).

85. Freeman v. State, 78 Ga. 663, 3 SE 700; State v. Belvel, 89 Iowa 405, 56 NW 545, 27 LRA 846: Smith v. Terr., 11 Okl. 669, 69 P 805; Moore v. State, 49 Tex. Cr. 449, 96 SW 327. 86. Kimberly v. State, 4 Ga. A. 852, 62 SE 571; Hewitt v. Com., 17 Gratt. (58 Va.) 627.

91

90

cant makes a satisfactory showing in regard to the foregoing concurrent facts, in the absence of some other fact which is fatal to the application it is ordinarily considered erroneous to refuse a continuance,89 especially where the facts expected to be established cannot be proved by other witnesses, or where under constitutional provisions defendant is entitled to the personal attendance of his witnesses at the trial, or where the adverse party refuses to admit the truth of the testimony expected to be proved by the absent witness as required by statute.92 While it may not be necessary always for the applicant to make an affirmative showing as to all of the foregoing concurrent facts, in order to be entitled to a continuance,93 yet there is ample authority to the effect that it is not error to refuse a continuance where it appears that any one of them is absent; 94 or further, where it appears that the testimony of the absent witness is incompetent or inadmissible 95 where it is merely cumulative or impeaching in its nature," where it is probably not true 7 or would not affect the result if present,98 or where the facts are provable by other available witnesses or evidence.99 87. State v. Nelson, 36 Nev. 403, 406, 136 P 377 [cit Cyc].

88. Ky.-Brumback V. Com., 7 KyL 443, 13 Ky. Op. 818; Scott v. Com., 9 Ky. Op. 835.

La.-State v. Nathaniel, 52 La. Ann. 558, 26 S 1008.

Nev.-State v. Nelson, 36 Nev. 403, 136 P 377.

N. Y.-Peo. v. Jackson, 111 N. Y. 362, 19 NE 54, 6 N. Y. Cr. 393; Peo. v. Vermilyea, 7 Cow. 369.

Porto Rico.-Dyer v. Rossy, 23 Porto Rico 718.

Tex.-Hyde v. State, 16 Tex. 445, 67 AmD 630.

Eng.-Rex v. D'Eon, 3 Burr. 1513, 97 Reprint 955, W. Bl. 510, 96 Reprint 295 (a leading case); Rex V. Jones, 8 East 1, 103 Reprint 256.

Can.-Rex v. Mulvihill, 19 B. C. 197, 22 CanCrCas 354, 18 Dom LR 189, 26 West LR 955, 5 WestWkly 1229 [aff 49 Can S. C. 587, 23 CanCrCas 194, 18 DomLR 217, 6 West Wkly 462].

"The principles upon which a Court proceeds in putting off a trial were very fully considered in the case of Rex v. D'Eon, 3 Burr. 1513, 97 Reprint 955, W. Bl. 510, 96 Reprint 295, where an information was filed, ex officio, against the defendant for a libel on the French ambassador. In that case it was laid down by Lord Mansfield that no crime is so great, and no proceedings so instantaneous, but that, upon sufficient grounds, the trial may be put off; but to grant a postponement of a trial on the ground of absence of witnesses three conditions are necessary: 1st, the Court must be satisfied that the absent witnesses are material witnesses in the case; 2nd, it must be shewn that the party applying has been guilty of no laches or neglect in omitting to endeavor to procure the attendance of these witnesses; and. 3rd, the Court must be satisfied that there is a reasonable expectation that the witnesses can be procured at the future time to which it is prayed to put off the trial." Rex v. Mulvihill, 19 B. C. 197, 203, 22 CanCrCas 354, 18 Dom LR 189, 26 WestLR 955, 5 West Wkly 1229 [aff 49 Can. S. C. 587, 23 CanCr Cas 194, 18 DomLR 217, 6 West Wkly 4621.

89. U. S.-Younge v. U. S., 223 Fed. 941, 139 CCA 421.

Ark.-Jones v. State, 99 Ark. 394,
138 SW 967.

Cal.-Peo, v. McCrory, 41 Cal. 458:
Peo. v. Lee, 2 Cal. Unrep. Cas. 569, 8
P 685.

Ind.-Pettit v. State, 135 Ind. 393, 34 NE 1118; Spence v. State, 8 Blackf. 281.

Iowa.-State v. Painter, 40 Iowa

298.

Ky.-Davis v. Com., 121 SW 429; Strange v. Com., 55 SW 204, 21 KyL 1333; Hunt v. Com., 24 SW 623, 15 KyL 591; Wells v. Com., 13 SW 915, 12 KyL 111; Embry v. Com., 12 SW 383, 11 KyL 515; Smith v. Com., 8 SW 192, 9 KyL 1005; Morgan v. Com., 14 Bush 106; Forman v. Com., 7 KyL 667, 681, 13 Ky. Op. 1021; Galloway v. Com., 7 KyL 166, 13 Ky. Op. 428; Salisbury v. Com., 3 KyL 211; Halsey v. Com., 1 KyL 121, 402, 10 Ky. Op. 671.

La.-State v. Bolds, 37 La. Ann.

312.

Miss. Johnson v. State, 111 Miss. 828, 72 S 239; Brooks v. State, 108 Miss. 571, 67 S 53; White v. State, 45 S 611; Hattox v. State, 80 Miss. 186, 31 S 579; Havens v. State, 75 Miss. 488, 23 S 181; Hill v. State, 72 Miss. 527, 17 S 375.

Mo.-State v. Arnold, 267 Mo. 33, 183 SW 289; State v. Anderson, 96 Mo. 241, 9 SW 636; State v. Farrow, 74 Mo. 531.

Nebr.-Newman v. State, 22 Nebr. 355, 35 NW 194.

Nev.-State v. Nelson, 36 Nev. 403, 406, 136 P 377 [cit Cyc].

Okl.-Lawson v. Terr., 8 Okl. 1, 56 P 698: Smith v. State, 9 Okl. Cr. 15, 130 P 517, 10 Okl. Cr. 544, 139 P 709.

Tex.-Hull v. State, (Cr.) 47 SW 472; Clark v. State, 39 Tex. Cr. 179, 45 SW 576. 73 AmSR 918; Williams v. State, (Cr.) 37 SW 325; Harrington v. State, 31 Tex. Cr. 577, 21 SW 356.

Eng.-Reg. v. Lawrence, 4 F. & F.

901.

90. Younge v. U. S., 223 Fed. 941, 139 CCA 421; Jones v. State, 99 Ark. 394, 138 SW 967; Peo. v. Lee, 2 Cal. Unrep. Cas. 569, 8 P 685; Spence v State, 2 Blackf. (Ind.) 281. And see infra 839.

91. Peo. v. McCrory, 41 Cal. 458; Peo. v. Lee, 2 Cal. Unrep. Cas. 569, 8 P 685. And see infra § 830. 92. See infra § 849.

Ill. Sutton v. Peo., 119 Ill. 250, 10 NE 376; Dacey v. Peo., 116 III. 555, 6 NE 165.

97.

See infra § 842.