#### Hardy Hattox *v.*State of Mississippi.

Criminal Law. *Continuance. Time to write application.*

Where the absence of the witness, for which a continuance in a criminal case is asked by defendant, is not shown to be due to the fault or laches of defendant, it is error to deny his request for time in which to put in writing his application for a postponement of the trial.

From the circuit court of Lafayette county.

Hon. Perrin H. Lowrey, Judge.

Hattox, appellant, was defendant in the court below; he was tried and convicted of crime, assault-' and battery Avith intent to kill and murder, and appealed to the supreme court.

The facts are stated in the opinion of the court.

*W. V.*Sullivan, for appellant.

' ' If it be, said that a motion for a continuance or postponement should haAie been made in writing, setting out the facts *187to which, the witness would testify, and the reason why subpoena was not sooner issued, we call attention to the fact that this very privilege was asked and flatly refused by the court; the judge contenting himself with the statement that he, the court, “would not delay the matter in order to give time to prepare any application for continuance on this account,” referring to the absence of the material witness whose testimony would have established defendant’s innocence, and who was in the county, but simply “dodging,” as the officer supposed, withoift further ado, requiring defendant then and there to ini-mediately go upon trial, resulting in a verdict of guilty, and a sentence of five years in the penitentiary. This was not a fair and impartial trial, such as the law of the land guarantees to every one.

*W. L. Easterling,*assistant Attorney-General, for appellee.

The record shows that the defendant was indicted at the September term, 1900, and the case was called for trial one year afterward, at the September term, 1901. Counsel for defendant asked the court to have the case passed in order to allow the defendant further time to bring a witness into’ court, which witness had not been served with process, and no subpoena had been even asked for him until the thbn present term of court. The court refused to pass the case. Counsel for' defendant then stated that he wished to make application for continuance on account of the absence of said witness. The court offered to hear any application, but would not delay the case for counsel to write out the application for a continuance on such grounds as had been stated. The return of the officer on the subpoena for the witness showed that the witness was “not found.” The showing made by defendant did not entitle him to either a postponement or a continuance. Furthermore, it does not appear in the whole record how the absent witness, George Dean,- knew, or could have known, anything which would be any help to defendant. The defendant' testi*188Ned. for himself, and it nowhere appears in his testimony where George Dean had ojDportunity to see or know anything about him after he had left Graham’s gate, an hour or more before Graham was shot; and, as to all that happened there, Dean’s testimony would have been simply cumulative.

Terral, J.,

delivered the opinion of the court.

The appellant was convicted in the circuit court of Lafayette county of an assault and battery upon Graham with intent to kill and murder him, and sentenced to the penitentiary for five years. He. was tried at the September term, A.D. 1901, upon an indictment found at the next preceding September term of said court.

On the 11th of September his case was called for trial, when, through his counsel, he asked for further time for obtaining the attendance of George Dean, for whom a subpoena had issued at that term, and had been returned not found, but who was alleged to be within the county, and to be a material witness. This oral request of defendant’s counsel was denied, when he asked permission of the court to put his motion and the facts supporting it in-writing, which was also denied. It does not appear from the.record when Hattox was arrested; nor that he was in any default in having process issued and served, or in calling for new process upon a return of the first subpoena “not found.”

So far as the record discloses a history of the case, no laches is imputable to the defendant; and his request to jlut in writing his application in a matter so important to his interest in the case before the court was, as we think, but a reasonable one, and should have been granted.

The certainty of the evidence upon which Hattox was convicted is not so free of doubt but that the evidence of George Dean might have been of great importance to the prisoner; a formal written application for a continuance, setting out what the witness was expected to testify, would at least have enabled *189the court here to see the grounds of the application, and thereby contributed to the certainty which is to be desired in all judicial proceedings.

*Reversed and remanded.*