Tlie opinion of tlie Court was delivered by
Todd, J.Tlie defendant, A. Trevauier, appeals from a seutence of twelve months’ imprisonment at hard labor for larceny.
The information was filed on the 26th of November, 1884. On the 6th of December, subpoenas were issued for witnesses in belialf of the defendant, which were returned into court on the 15th same month. Among these was one for Abram Richard, upon whom domiciliary service had been made. Tlie case was called for trial on the next day, the 16th, when it was discovered that Richard was absent, whereupon the defendant asked for an attachment for him, which was refused. Upon this refusal, he made immediate application for a continuance, which the trial judge allowed to be traversed and then overruled the motion. To both of which rulings tlie defendant, took bills of exception, and of which he now complains.
*313There is no authority whatever for traversing an affidavit for a continuance. The affidavit cannot be contradicted, and must, for the jmrposes of the motion, be taken as true. 30 Ann. 296.
The motion was overruled for the reasons assigned by the judge in substance, that he did not believe the affidavit and that the defendant did not swear to the competency of the witness.
Whilst there is a large discretion confided to the judge of the first instance, respecting motions of this kind, yet the principle is well settled that that discretion is not to be arbitrarily exercised, and that where there lias been no lack of diligence on the part of the accused and where his motion and affidavit is timely and conforms to all the requirements of the law, the judge cannot reject the application, because ho does not believe the affidavit, is true.
In this ease, the defendant swore that by the absent witness, who was a resident of St. Landry, but temporarily absent in New Orleans, be expected to prove that ho, defendant, was the owner of the animal charged to have been stolen, that it was purchased from the witness by a person named and subsequently sold to him ; that he knew of no one else by whom this fact could he. shown, and that the testimony could be had by the next term of the court. In short, there was a strict compliance with all the requirements of the law, respecting a motion of this kind. The defendant was not compelled to swear that the. witness was competent, it was sufficient that he, swore to his materiality. Wharton Or. Law, V. Ill secs. 3020, 3021; 1st Chit. Or. L. 493; Arehbold 1 Vol., 569 Notes; Whitley vs. State, 38 Ga. 50; Hyde vs. State, 16 Texas 448. That he was material and competent appears on the face of the affidavit. Wharton Or. Law, Yol.
It- must be. noted that this motion to continue was made at the same term of the court that the information was filed, and within a few days after the filing of the same; and that every possible diligence had been shown to procure the attendance of the witness. Under these circumstances we. have no hesitation in saying that the judge erred in his ruling, and that, by such ruling, the defendant was greatly prejudiced and deprived of rights that the law clearly accorded him.
It is, therefore, ordered, adjudged and decreed that the sentence appealed from be set aside and annulled, and the case remanded to be proceeded with according to law.