Smith v. State , 53 Okla. Crim. 239 ( 1932 )

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for a period of 30 days.

Defendant contends first that the affidavit and search warrant were insufficient to authorize a search of defendant's premises. This contention is without any merit.

Defendant next contends that the court erred in overruling his application for a continuance.

On July 22, 1931, when the case was called for trial, defendant filed a duly verified motion for a continuance sufficient upon its face to entitle him to have the case continued.

An application for continuance is addressed to the sound discretion of the trial court, and, unless an abuse of this discretion is shown, a judgment will not be reversed on appeal.

In Franks v. State, 8 Okla. Crim. 71, 126 P. 582, this court said:

"When a motion for continuance is filed by an accused setting up sufficient grounds to justify a postponement, it is an abuse of discretion for the trial court to overrule the same, in the absence of any showing that the motion is without merit or made in bad faith." Payne v. State, 10 Okla. Crim. 314, 136 P. 201; Smith v. State, 10 Okla. 544, 139 P. 709.

It appearing upon the record that the trial court abused its discretion in refusing to grant a continuance, the case is reversed and remanded, with instructions to the trial court to proceed with the case in accordance with this opinion.

DAVENPORT, P. J., concurs. EDWARDS, J., absent, not participating.