Diaz

Mr. Justice Terry concurred.

The accused, who was indicted and arraigned upon a charge of murder, moved for a continuance, on the ground of the absence of a material witness.

The affidavit is sufficient, in all particulars, and the materiality of the evidence properly shown. The Court overruled the motion—the district attorney offering to admit that said witness would, if present, swear to the facts contained in the affidavit, subject to contradiction by other evidence, to which the prisoner excepted.

At common law, applications for continuances in criminal cases were addressed to the sound discretion of the Court, and the refusal could not be assigned as error. This rule has been modified by our statutes, which authorizes us to review these orders, upon appeal.

The materiality of the evidence having been shown, it was the duty of the Court, in the absence of evidence tending to discredit or throw suspicion upon the application, to postpone the cause, to afford the *250 prisoner reasonable time to procure the attendance of his witness. It was not sufficient that the district attorney agreed that the witness would have deposed to certain facts, if present; he should have…