|Appeal from Circuit Court, Knox County|
|Rhodes Vs. Commonwealth|
Jan. 15, 1913.
G. W. Rhodes was convicted of uttering a forged writing, and he appeals. Reversed.
At the September, 1912, term of the Knox circuit court, appellant was indicted for uttering a forged writing. He was tried at the same term of the court, found guilty, and given an indeterminate sentence in the penitentiary of from two to ten years. He prosecutes this appeal, and complains chiefly of the action of the court in refusing to grant him a continuance. The indictment was returned September 4, 1912, on which day appellant was arrested and gave bond; and the case was set for Saturday, September 7th, for trial. It was not reached, however, until Monday, September 9th, when appellant filed his affidavit and moved for a continuance on account of the absence of his witnesses, Davis and Partin, of Knox county, and of Prichard of Lawton, Okl., whereupon the court ordered summons to issue for Davis and Partin, and that the deposition of Prichard be taken by the defendant, if he desired so to do; and the case was passed to September 14th for trial. The case was called again for trial on September 16th, whereupon appellant again filed his affidavit, showing due diligence in his attempt to procure the attendance of Davis and Partin, and his inability to take the deposition of Prichard in Oklahoma, in the limited time that had intervened since September 9th.
The affidavit is in proper form, and shows that Davis, if present, would truthfully state that he was present with McDonald, whose name appellant is charged with having forged, after the time of the alleged forgery, and that McDonald stated that he had authorized and directed appellant to collect the money on said writing, and that appellant had done so for McDonald; that McDonald stated that appellant was his authorized agent to transact his business; and that appellant had collected the money on the writing mentioned in the indictment. The affidavit shows that said Prichard, if present, would truthfully state that he knew McDonald and that he had authorized appellant to act as his agent in the transaction of all business, including the transaction mentioned and set out in the indictment, and that said McDonald told said Prichard he had authorized appellant to transact his business for him, including the collection of the money on the writing mentioned in the indictment. The affidavit further shows that appellant had exercised due diligence in attempting to take Prichard's deposition, but that he had been unable to do so on account of the shortness of the time, and the great distance from Barbourville, Ky., to Lawton, Okl. The court overruled appellant's motion for a continuance, and forced him into trial which brought about his conviction. The evidence of the absent witnesses was clearly material to appellant's defense.
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