THE PEOPLE v. De LACEY, 28 Cal. 589

By the Court, Sawyer, J. On the motion for continuance there was a counter affidavit tending strongly to show that the application was not made in good faith. And on the motion for new trial no effort appears to have been made to procure the affidavits of the absent witnesses to show that they could testify to the facts desired to be proved by them. One of the witnesses appears to be a police officer, and the other a keeper of a public house in Sacramento, and their affidavits could doubtless have been obtained. If not, the fact' could have been made to appear.

This ground of the motion, under.the circumstances, should have been supported by the affidavits of the absent witnesses. Such is the imperative requirement of the statute where the defendant moves for a new trial on the ground of newly discovered evidence. (Laws 1863, p. 161, Sec. 440, clause 7.) Then there is no reason why the same rule should not be adopted where a continuance has been denied; and particularly so when, as in this case, there is reason to suspect that the affidavit for continuance was not made in good faith.

There was no abuse of discretion in this case. (11 Cal. 162; 8 Cal. 47 ; 20 Cal. 180 ; 9 Cal. 212.) No other point requires notice. ■ Judgment affirmed.