Yesterday was a week the defendant was charged at the bar of this court, when he offered his first affidavit, which was postponed for *Page 219 consideration; at the same time the prisoner and his counsel were told the process of the Court for witnesses might be obtained, whatever doubt existed before.
The first affidavit stated the absence of but one of these witnesses; nothing is said in this respecting Coulter and Martin, two other witnesses mentioned in that affidavit. It does not appear that Wallen had any legal process in his possession when he went in pursuit of the witnesses. This he might have done, and procured the sheriff to summon them. In this respect there is a failure in the affidavit, which is fatal, and serves rather to confirm than to diminish the legal suspicion arising from the first affidavit, and circumstances connected with it. But when we reflect that nothing is said respecting Coulter and Martin, whom the first affidavit states as material witnesses; that two women have been applied to, without compulsory process, and both of them pregnant, a suspicion that this application was intended for delay, not for the attainment of justice, is far from being diminished. Let the trial proceed.