151 Postponement for Cause.

CONTINUANCE.

151. Postponement for Cause-When an indictment or information is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, as in civil cases, direct the trial to be postponed to another day in the same or next term. (5837 R. L. 1910.)

Witness must take notice of postponement. See Sec. 893.

State may admit allegations set forth in application to be treated as deposition of witness. Pearce v. Terr., 11 Okla. 438; Woodring v. Terr., 15 Okla. 310; Davis v. Terr.. 15 Okla. 462.

If State agrees that alleged testimony of absent witness may be treated as deposition in trial of cause, it must also admit that such testimony is absolutely true. Madison v. State, 6 Okla. Cr. 356, 118 P. 617.

Sentence modified because county attorney did not ness, if present, would testify to alleged state of facts. 13 Okla. Cr. 195. 163 P. 548.

agree that witOwen v. State,

Continuance is in sound discretion of court and will not be disturbed unless abused.

Hyde v. Terr., 8 Okla. 69; Miller v. U. S., 8 Okla. 315; Garrison v. Terr., 13 Okla. 690; Welty v. U. S., 14 Okla. 8; Heatly v. Terr., 15 Okla. 72; Vance v. Terr., 3 Okla. Cr. 208, 105 P. 303; Milton v. State, 7 Okla. Cr. 407. 124 P. 81; Gregg v. City of K., 8 Okla. Cr. 8, 125 P. 1093; Bethel v. State, 8 Okla. Cr. 61, 126 P. 698; Boswell v. State, 8 Okla. Or. 152, 126 P. 826; Litchfield v. State, 8 Okla. Or. 164, 126 P. 707; Rose v. State, 8 Okla. Cr. 294, 127 P. 873; Houghton v. State, 8 Okla. 526, 128 P. 1105; Jones v. State, 8 Okla. Cr. 576, 129 P. 446; Addington v. State, 8 Okla. Cr. 703, 130 P. 311; Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101; Edwards v. State. 9 Okla. Cr. 306, 131 P. 956; Cox v. State, 9 Okla. Cr. 378, 131 P. 1109; White v. State, 9 Okla. Cr. 442, 132 P. 381; Tucker v. State, 9 Okla. Cr. 588, 132 P. 825; Harrison v. State, 10 Okla. Cr. 210, 135 P. 948; Foster v. State, 11 Okla. Cr. 25, 141 P. 449; Hall v. State. 11 Okla. Cr. 57, 142 P. 1044; Buxton v. State, 11 Okla. Cr. 85, 143 P. 58; Seigler v. State, 11 Okla. Cr. 131; Gentry v. State, 11 Okla. Cr. 356, 146 P. 719; Petty v. State, 11 Okla. Cr. 438, 147 P. 782; Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183; Stephens v. State, 12 Okla. Cr. 90, 152 P. 138; Mosely v. State. 12 Okla. Cr. 402, 157 P. 708; Brewer v. State, 13 Okla. Cr. 514, 165 P. 634; Carnes v. State, 14 Okla. Cr. 585; Collins v. State, 15 Okla. Cr. 96, 175 Pac. 124; Garrett v. State, 15 Okla. Cr. 475, 178 P. 269; Brown v. State, 15 Okla. Cr. 64, 175 P. 66; Robinett v. State, 15 Okla. Cr. 541, 178 P. 890; Richards v. State, 15 Okla. Cr. 582, 179 P. 777.

Continuance should not be granted for purpose of obtaining cumulative evidence. Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707; Rose v. State, 8 Okla. Cr. 294, 127 P. 873; Jones v. State, 8 Okla. Cr. 576, 129 P.

446; Seigler v. State, 11 Okla. Cr. 131; Petty v. State, 11 Okla. Cr. 438, 147 P. 782; Cope v. State, 15 Okla. Cr. 437, 177 P. 920.

Complaining witness may be endorsed on the indictment at time of trial without grounds for continuance. Robinett v. State, 15 Okla. Cr. 541, 178 P. 890.

Not error to grant continuance on ground of absence of counsel. Jones v. State, 8 Okla. Cr. 576, 129 P. 446.

Application should be denied on grounds of absence of counsel when other counsel are present to represent defendant. 10 Okla. Cr. 314, 136 P. 201; Reed v. State, 14 Okla. Cr. 651, 174 P. 800; Richards v. State, 15 Okla. Cr. 583, 179 P. 777; Kline v. State, 15 Okla. Cr. 350, 176 P. 414. Application on grounds of illness of witness must show, what. Brown v. State, 15 Okla. Cr. 64. 175 P. 66.

Application on grounds of absent witness from state, and who has not been served with subpoena, should be denied. Pugh v. State, 6 Okla. Cr. 578, 120 P. 296; Maddox v. State, 10 Okla. Cr. 569, 139 P. 994; Cantrell v. State, 15 Okla. Cr. 280, 176 P. 91.

Application on grounds of absent witnesses must show due diligence. Dunn v. State, 15 Okla. Cr. 245, 176 P. 86; Johnson v. State, 5 Okla. Cr. 1. 112 P. 760; Harper v. State, 7 Okla. Cr. 581, 124 P. 1116; Smith v. State, 14 Okla. Cr. 348, 171 P. 341.

See circumstances under which it was error to refuse continuance. Lawson v. Terr., 8 Okla. 1; Miller v. U. S., 8 Okla. Cr. 315: Thompson v. State, 6 Okla. Cr. 334, 118 P.. 614; Franks v. State, 8 Okla. Cr. 71, 126 P. 582; Payne v. State, 10 Okla. Cr. 314, 136 P. 201; Smith v. State, 10 Okla. Cr. 544, 139 P. 709.

Both state and defendant entitled to time in which to prepare for trial. Lawson v. Terr., 8 Okla. 5.

Application must show that facts could not be proven by any other witness. Hyde v. Terr., 8 Okla. 69.

In absence of record to the contrary. it will be presumed that cause was continued for lawful purpose. Bowes v. State, 7 Okla. Cr. 316.

Not error to refuse continuance on account of absent witness where same was within jurisdiction of court and depositions could have been taken. Dunn v. State, 14 Okla. Cr. 452, 172 P. 463.

Continuance should be denied on account of absent witness where there is no showng made as to reason of such absence, and where defendant has not asked for attachment for such witness. McCarter v. State, 14 Okla. Cr. 305, 170 P. 712.

An unverified application for continuance should be overruled. Hunter v. State, 3 Okla. Cr. 533, 107 P. 444.

Constitutional rights not contravened by postponement of trial to another day in same term. Eubanks v. Cole, 4 Okla. Cr. 25. 109 P. 736. Proceedings ma be suspended over objections of defendant, to enable state to get witness. Havill v. U. S., 5 Okla. Cr. 334, 115 P. 119; Gamblin v. State, 12 Okla. Cr. 381, 157 P. 367.

Defendant need not be present when court passes on his application for continuance. Saunders v. State, 4 Okla. Cr. 266.

An objection to a' postponement of cause until another cause on the docket is disposed of, is a waiver of any right of continuance of the cause for the term. Franklin v. State, 9 Okla. Cr. 178. 131 P. 183.

Application for postponement should be strongly construed against applicant. Rhea v. Terr., 3 Okla. Cr. 230, 105 P. 314; Musgraves v. State, 3 Okla. Cr. 421, 106 P. 544.

Application should show enough facts expected to be proven to enable the court to determine their materiality. Rhea v. Terr., 3 Okla. Cr. 230, 105 P. 314; Foster v. State, 11 Okla. Cr. 25, 141 P. 449.

Application must give name and address of witness, and the probability of procuring their attendance at the trial. Vance v. Terr., 3 Okla. Cr. 208. 105 P. 303.

Application must give name of witness and what is expected to be proven by them. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059; Gregg v. City of K., 8 Okla. Cr. 8, 125 P. 1093.

151A. Affidavit for Continuance-A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a reasonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such witness. (5045 R. L. 1910)

This section governs applications for continuance in criminal as well as in civil cases. Kirk v. Terr., 10 Okla. 52; Parce v. Terr., 11 Okla. 440; Rhea v. Terr. 3 Okla. Cr. 232, 105 P. 314.

ARTICLE XIII.

COUNTY ATTORNEY-SUBSTITUTE FOR.

152.

Court to Appoint Substitute.

153. Same.

152. Court to Appoint Substitute, When-The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act, may appoint by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose. Such attorney shall be paid a reasonable compensation for his services by the county for which he is so appointed. (1558 R. L. 1910.)

153. Same-If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial. (5908 R. L. 1910.)

Office of county attorney not imbedded in the Constitution of the state. Childs v. State, 4 Okla. Cr. 474.

When the law imposes a duty to prosecute a certain class of cases it must be done through the county attorney. State v. Snelson, 13 Okla. Cr. 88, 162 P. 444.

Special county attorney cannot perform duties until he qualifies. Dodd v. State, 5 Okla. Cr. 513, 115 P. 632; Bethel v. State, 8 Okla. Cr. 61, 126 P. 698.

Where no objections are made to appointment until after case is tried, it is then too late. Bethel v. State, 8 Okla. Cr. 61, 126 P. 698.

Court may appoint when county attorney is disqualified by reason of having been counsel in criminal case before his election to office. Dodd v. State. 5. Okla. Cr. 513, 115 P. 632.

"Unable to attend to the duties of his office" means some physical or mental incapacity. Mahaffey v. Terr., 2 Okla. 214.

Private counsel may be employed to assist county attorney in prosecution of criminal cases. Reed v. State, 2 Okla. Cr. 590, 103 P. 1043; Hartgrove v. State, 5 Okla. Cr. 274, 114 P. 343; Cox v. State, 15 Okla. Cr. 133, 175 P. 264; Dunn v. State, 15 Okla. Cr. 254, 176 P. 86.

154. Deposition Defined-A deposition is a written declaration, under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine, or upon written interrogatories. (5069 R. L. 1910.)

155. Right of Defendant-When a defendant has been held to answer a charge for a public offense, he may either before or after indictment or information, have witnesses examined conditionally on his behalf as prescribed in this article, and not otherwise. (6025, R. L. 1910.)

156. Conditional Examination in Certain Cases-When a material witness for the defendant is about to leave the State, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally. (6026, R. L. 1910.)

157. Affidavit on Application-The application must be made upon affidavit stating:

First. The nature of the offense charged.

Second. The state of the proceedings in the action. Third. The name and residence of the witness, and that his testimony is material to the defense of the action.

Fourth. That the witness is about to leave the State or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial. (6027 R. L. 1910)