Hattox v. State ( 1902 )

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 the 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.