The opinion of the court was delivered by

The accused was prosecuted and convicted of larceny. From a judgment sentencing him to hard labor he appeals.

He contends that the motion for a continuance, which he made, when the case was called, to procure an absent witness, duly subpoenaed, should have been allowed.

He claims that he was afflicted with brain fever before the commission of the act charged, and that he has continued so to be; that in consequence he had temporary aberration of mind, during which he is entirely irresponsible, and was and is insane.

He applied for a subpoena for the doctor who attended him, and, on a previous calling of the case, moved for a continuance on the ground of the absence of the witness, which was granted.

He subsequently moved for another subpoena; and when the case fixed again was called, the doctor not being present, he moved for a continuance, based on his affidavit that a subpoena had duly issued and been served; that the witness was material, etc.

The District Judge refused the continuance on the grounds that the affidavit does not state that at the time of the commission of the crime the defendant was insane; that the motion was made for delay, it being the third made for the same purpose.

*1165Granting that the defendant was temporarily insane, it does not necessarily follow that, at the moment that he stole the cow, he was in such a state of temporary aberration of mind that he was irresponsible. Necessarily, he must have had lucid intervals.

Not only should he have so distinctly set forth, but also that the fact is exclusively to the knowledge of the absent physician.

Judgment affirmed.