1. On the call of a criminal case for trial where the defendant was charged with the offense of rape, the defendant made a motion for a continuance, which was overruled. The defendant was *387convicted and recommended to the mercy of the court. One of the grounds for continuance was based on the absence of a witness who if present, it was stated in the exceptions, would testify “that the girl alleged to have been raped told him that the defendant in this case did not rape her.” The exceptions also stated that defendant informed the court “that he was ready, willing, and able to make out a complete legal showing for a continuance by reason of the absence of this witness,” and that “the court stated that inasmuch as he was informed that the witness was in hiding that he would consider his motion in, but would overrule it.” No evidence was submitted at the hearing to show that the witness was “in hiding.” Held, that it was erroneous to refuse a continuance on this ground.
No. 5014. June 22, 1926. W. R. Smith, W. D. Buie, J. S. Story, and Elsie H. Griner, for plaintiff in error., George M. Napier, attorney-general, H. 0. Morgan, solicilorgenerad, and T. R. Gress, assistant attorney-general, contra.2. No ruling will be made with reference to other grounds of the motion to continue, or with reference to the grounds of the motion for a new trial.
Judgment reversed.
All the Justices concur, except Hines, J., dissenting.