delivered the opinion of the court.
On the 20th of April, 1880, an indictment against the plaintiff in error, for an assault and battery with intent'to kill and murder, was returned into the Circuit Court of Warren County. On the same day he was arraigned, and pleaded not guilty, and the trial was set for the 23d of that month. On the last-mentioned day he asked for a continuance, and filed in support of his motion his affidavit, in which he claimed1 that Ed. Harris and John Daveny were material witnesses in his behalf; that he expected to prove by them that he did not cut or strike the prosecutor as alleged in the indictment; that they were present at the altercation on which the indictment is based ; and that he could not prove these facts by any other witness. He further stated that he had caused summons to issue for them, which had been returned “ not found,” and that he had information that they were in the city of' Vicksburg since the summons issued; that Daveny, as he is-informed, is in Yazoo City; that Harris makes his home in Vicksburg, but was temporarily absent; that he is satisfied that he can procure their attendance at the next term of the-court; that he has been confined in jail, and has had no means-of knowing of the absence of the witnesses until he was brought into court- the morning of the day for which the trial was set. On the hearing of this application, J. L. Maganos,, the justice of the peace before whom Strauss had his committing trial, was present in court; and it was admitted by Strauss that the State could prove by him that on that trial no such *59witnesses as those named in the application for a continuance were summoned, though there was a regular trial, witnesses being examined and the prisoner represented by counsel; and that on such trial the evidence did not disclose the presence of any such witnesses. The bill of exceptions which was taken to the judgment of the court overruling the motion for a new trial contains the recital that “ the district attorney permitted the defendant to read his application and affidavit for a continuance in evidence. This the defendant refused to do.” It also appeared that the summons for Daveny and Harris was issued to Warren County, and that on the day set for the trial it was returned “ not found.”
The court refused the application. On the trial two witnesses were examined for the State, who testified to the assault and battery, and that they were present. These witnesses did not disclose that any other persons were present besides themselves and the prisoner, nor were they interrogated as to those present, though it was evident if other persons were present they would have known it. There was a difference between these witnesses as to the particular part of the steamboat at which the altercation took place, one stating the place to be in the fore part and the other in the aft part of the boat, and there was also a material difference between them as to what occurred at the altercation ; but they both stated facts which made the prisoner guilty of the charge.
A motion for a new trial was made, and one of the grounds assigned is that the court refused the continuance. Upon the overruling of the motion the accused presented his bill of exceptions, and now assigns for error the action of the court in refusing the continuance.
It is insisted that the court had no discretion, under the provisions of the statute (Code 1871, sect. 2806), as to the granting of the continuance. This statute provides that, “in all applications for continuance it shall be lawful for the State or the defendant to make any admission of any fact sought to be proved by the other party by any absent witness, and such *60admission shall have the same effect as if the absent witness or other evidence were present in court, and no more ; but if compulsory process will possibly obtain the attendance of the absent witness, aud the defendant has had no opportunity of obtaining such process, the cause shall be continued, unless the defendant desires a trial.”
The full scope and purpose of this statute is very clearly this, and no more: First, to change the rule laid down in Dominges v. The State, 7 Smed. & M. 475, as to the effect of admissions made by the State as to facts expected to be proven by an absent witness, making such admissions have only the effect that the testimony of the witness would have if he were personally present; second, when it has been made out to the satisfaction of the court that the party applying for a continuance would be entitled to it but for the admission of the evidence of the absent witness, then to provide that such .admission shall not have the effect to prevent a continuance if the attendance of the witness can be enforced by compulsory process, unless the defendant should desire a trial.
The statute, so far as it regulates the right to a continuance, does not apply in any case till it has been first made out to the satisfaction of the court that but for a proposed admission of the evidence of the absent witness a continuance would be proper. Until that point has been reached, the court cannot •consider the statute at all. In this case it is clear that the court did not consider that the plaintiff in error was entitled to a continuance but for an admission of the absent evidence. The court did not require such admission to be made. The proposition of the district attorney to allow the affidavit for a continuance to be read seems to have been made on the trial of the case, and not on the trial of the motion for a continuance. And even if made on the trial of the motion, it was the mere offer of the district attorney, not required by the court, nor, so far as this record shows, concurred in by it.
If the'action of the court in holding that the showing for a continuance was insufficient be complained of, it must be tested *61by the rules of the common law, unaffected by this statute. Tested by these rules, it was a case clearly within the discretion of the judge to grant or refuse the continuance. It appears that the district attorney contested the truth of the facts stated in the affidavit, by proof offered that the prisoner had had a regular trial before the committing magistrate, in which witnesses were examined and he was represented by counsel, and that those Arery material Avitnesses, if his affidavit be true, Avere not summoned, nor did it appear from the evidence that they were present and Avitnessed the affair out of which the indictment grew. It is true that the prisoner was not bound to introduce any witnesses on that trial; but Avhen it appears that the result of the trial was his committal to prison, out of which he was not delivered by bail, it would be a reasonable presumption that if he had witnesses Avho could establish his entire innocence, — and his right, therefore, to a discharge, — he would have made some effort to procure their attendance ; or if, from motives of policy connected Avith his ultimate defence on the trial in the Circuit Court, he declined to call these witnesses, then, as he was represented by counsel, he should have shown by the affidavit of the counsel that the witnesses Avere not called for the reason above suggested.
The trial proceeded, notAvithstanding his application for a continuance, and no effort was made to prove by the ejm-witnesses who were examined that these alleged witnesses were present. The failure to prove this, or to attempt to do it, was a circumstance Avhich strongly confirmed the learned circuit judge in the correctness of the refusal to grant the continuance, when he came to consider that ground of the motion for a neAV trial. The prisoner was convicted eight days prior to the end of the term of the court. The absent witnesses are said, one of them, to reside in the city in Avhich the court was held, and the other in an adjoining county. No effort appears to have been made to have them or their affidavits present at the hearing of the motion for a neAV trial. It was plainly the *62duty of the prisoner, under the circumstances, to have had these witnesses, or their affidavits showing what they would swear to, present at the hearing of the motion for a new trial, and to have shown that due diligence had been used and his efforts had proved fruitless.
A judge is better prepared on a motion for a new trial to decide upon the propriety of an application for a continuance than at its first hearing, and he should always have the opportunity of reviewing his.action by such a motion, if it be complained of.
Looking at this application by the light thrown on it by all the facts, we have but little doubt that the conclusion reached by the circuit judge, that it was without merit, is correct.
We take this occasion to say that the circuit judge is not confined, in deciding on an application for a continuance, to a consideration of the facts stated in the affidavit of the prisoner. He has the right to inquire into the truth of the statements contained in the affidavit, either by hearing other evidence or applying his own knowledge of what has occurred in the case up to the time the application is made.
Judgment affirmed.