dissenting. — I dissent from the opinion of the court as to the sufficiency of the affidavit for a continuance. The defendant asked for a continuance on account of the absence of J. R. Andrews, by whom he swears that he expects to prove certain facts which are stated in the affidavit, and he further says that he “ knows of no person by whom the same facts can be as fully proved as by said Andrews.”
In my opinion this is not sufficient. Eor aught that appears, there may have been other persons by whom everything necessary for his defence could be proved, within the reach of the process of the court, whom the defendant might have called as witnesses. He has no right to assume that he can more fully prove them by Andrews. The statute requires him to show what diligence he has used to obtain the testimony, the name and residence of the witness, and what particular facts he expects to prove by him, and he must state on oath that he knows of no other witness by whom the same facts can be fully proved. This the defendant has not done by his affidavit. ' By stating that he knows of no other person by whom the particular facts will be as fully proved as by Andrews, he authorizes the court to infer that there are other persons within his reach, by whom, in the language of the law, “ such facts can be fully proved.”
For these reasons, I think that the affidavit was insufficient and that the continuance was properly refused.