delivered the opinion of the court.
The appellant, Lettie Corbin, was convicted of the unlawful sale of intoxicating liquors, and appeals to this court.
The only ground relied on for a reversal was the refusal of the court below to grant appellant’s application for a continuance. When the case was called for trial, appellant’s attorney presented an application for a continuance, sworn to by himself, in which he set up that appellant- on account of sickness was unable to be present at the trial, and if present she would testify she did not make the alleged sale, and in support of this application presented the affidavit of Dr. Kelly; appeD lant’s -attending physician, to the effect' that she waS suffering with a serious female trouble, that she had fever, her temperature being 103 degrees, and in his-judgment, if she was brought to court and forced to go through a trial, it would probably result in permanent injury to her health, and might necessitate- an operation endangering her life. On the hearing of the application Dr. Kelly was introduced as a witness, and testified to substantially the same facts as set out in his affidavit. He stated, further, that in his judgment she would be able to attend her trial at a later day in the term. The application was made during the fourth week of the term; the case having been delayed from time to time on account of appellant’s sickness. The court overruled the application, and appellant was tried in her absence.
*492. The court below may have been in possession of facts and. circumstances with reference to the condition of appellant, not shown by the record in this case, which was influential in denying the application for a continuance. But this court can only consider what is in the record.
Appellant was a material witness in her own behalf. When the alleged sale was made, there was no witness present, except state’s witness Williams. She had no testimony to offer, except her own, in denial of the alleged sale. Our judgment is the court erred in not either delaying the case to a later day in the term or continuing it until the next term of court.
Furthermore, the appellant had the constitutional right to be present when tried; such right being guaranteed by the twenty-sixth section of the Constitution, which applies to trials for misdemeanors as well as felonies. In a trial for a misdemeanor, the accused may, by his own fault or misconduct, waive the right to be present. In Garmon et al. v. State, 66 Miss. 196, 5 South. 385, Garmon, who was being tried jointly with another for a misdemeanor, was forced by the court tó go under the rule with the other witnesses. The- court said: “It was his right to be present, and to see and hear -what occurred in the trial, and to advise and assist his counsel; and the fact that he was a witness, as well as a defendant, did not deprive him- of this right. And it does not alter the case that he was being tried for a misdemeanor, instead of a felony, or that he might, by his own default or misconduct, have waived his right to be present.”
Where a party accused of crime is physically unable to attend his trial, it cannot be said that he voluntarily absents himself; and, if tried in his absence, he is thereby deprived of his constitutional right to be present. Reversed and remanded.