This case falls within that of Wheeler v. The State, at this term. The Court should have granted the continuance or required the admission of facts sworn to, agreeably to the rule of practice there laid down, — a rule which, upon reconsideration, we are satisfied with.
The provisions in the civil code do not necessarily govern in criminal practice; but it is reasonable to con-*282suit tbem, iu tbe absence of special provisions in tbe criminal code, in establishing rules, as tbe Court must, in relation to procedure in criminal cases. We tbink tbe case of Hamilton v. The State, 8 Ind. R. 552, should be overruled as to this point of practice.
A. Ellison, for tbe appellant. S. J. Stoughton, for tbe State.,The judgment below is reversed.' Cause remanded for a new trial, and tbe keeper of tbe State prison is ordered to be notified pursuant to tbe statute, to return tbe prisoner, &c.