Polk v. State ( 1913 )

Reed, J.,

delivered the opinion of the court.

Appellant was convicted on the charge of unlawful sale of intoxicating liquors. She was not present at the trial of her case on February 2, 1913. She was at the time under bond. Her attorney was also absent. He testified that he thought he was to be notified when the case was called for trial. No defense was interposed.

A motion was made for a new trial. It was assigned as a cause that appellant was an invalid under treatment in a hospital in the city of New Orleans, and physically unable to attend the term of the court then being held. Upon the hearing of the motion there was presented a certificate from a physician fin New Orleans, dated January 24, 1913, in which he stated that appellant was in the Charity Hospital in New Orleans under his care, and that he had advised her to remain until proper treatment could be given her. Another certificate from another physician in New Orleans, dated February 3, 1913, was filed, in which it was shown that appellant was suffering from spinal and neurasthenic trouble, that a railroad trip would be then undesirable for her, and that she had been ordered “to remain in bed until further development.” This last certificate was sworn to before a notary public. Appellant’s husband testified that she had been in New Orleans under treatment for about four weeks, and that she was not able to be present in conrt at the time of the trial. The motion for a new trial was overruled.

After a careful consideration of all the testimony taken on the hearing, we believe that the motion for a new trial should have been sustained. It is i clear from the record that appellant was an invalid. under treatment in the Charity Hospital in the city of New Orleans on February 2, 1913, when her case was tried, and was then unable to he present in the court. It is not shown that she was in any Way to blame for her own absence or the absence of her attorney. Under all the facts and circumstances, we think she should have been granted a new trial, and afforded an opportunity to present such defense as she had to the charge against her. We hesitate to interfere with the discretion given to the trial court. Still.it is our judgment that justice and fairness to the appellant demand that it be done in this case.

Reversed and remanded.