Superior Court for Law and Equity, Nashville District.
May 1806.
The absence of a material witness on behalf of the State at the term at which the indictment is found, is a sufficient ground for a continuance, there appearing no culpable neglect on the part of the prosecutor. [Acc. State v. Markham, 1 Tenn. 66.]
In this case the prosecutor filed an affidavit, stating that a man who lived in Smith county was a material witness; that he was not present when the other witnesses were bound over, so as to be bound with them; that he has issued a subpoena, but the witness has not attended, c.
WHARTON objected, that no reason appeared why the witness was not present when the others were bound over. The cause could not be continued.
Per Curiam.
There does not appear to be any culpable neglect on the part of the prosecutor, this being the first term at which the bill is found; beside it is not to be presumed that the prosecutor could well tell what witnesses would be necessary, until he consulted the attorney-general,c.
Cause continued.
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