Cade v. State

delivered the opinion of the court.

While this court will not ordinarily interfere with the discretion of the trial court in refusing to. grant an application for continuance because of'the absence of a witness, when it appears that the witness is beyond the jurisdiction of the court, yet there are times when the trial court should allow a continuance, even when it appears that the absent witness cannot be reached with process at the time the application is made. In this case the ’indictment was returned on the 28th of June, 1909, and the trial set for the 30th, just two days after the indictment was found. The uncontroverted affidavit of defendant, made on the application for continuance, shows that the-absent witness is a very necessary witness in so far as his case *437is concerned, that sbe is a resident of tbe county, that she is away without any procurement on his part or consent, that her absence is only temporary, and that he cannot safely go to trial without her; and what affiant states that this witness will swear to, if believed by the jury, would certainly establish his innocence. Persons charged with crime should have reasonable opportunity to obtain witnesses. Whether the witnesses will be believed or not rests with the jury; but a defendant should be allowed reasonable time to get witnesses. There is nothing in this record to suggest that the application was not made in good faith, and for the genuine purpose of obtaining the witness. It is true that it is shown that the witness is beyond the jurisdiction of the court, and, if there had elapsed any sufficient length of time between the return of the indictment and the date of trial for the defendant fa> have procured this witness, we would not interfere with the court’s holding; but the trial was the second day after the indictment was found, thus giving defendant no reasonable time to exert 'himself to procure this witness.

We think the court erred, in view of the facts of this case, in refusing the application for continuance; and the judgment appealed from is reversed and the cause remanded.