¶1The plaintiff in error was indicted for the offense of adultery, and upon the trial moved for a continuance, upon the ground that he had two witnesses subpoenaed, by whom he expected to prove his innocence, one of whom was the female accused of the offense, which the Court overruled upon the ground of his announcement, that, upon notice, he would send for witnesses, etc. The case proceeded, and the evidence against the accused was entirely presumptive. No witnesses showed or testified to any fact of guilt in the premises. The jury convicted the accused and he moved for a new trial, which was overruled, and this judgment of the Court is assigned as error.
¶21 and 2. We are satisfied the Court erred in the judgment and ruling in this case. The prisoner was entitled to a continuance. His showing came within the rule of law, and the fact of one of his witnesses being the party accused, did not defeat the right. It is true, she was the woman, but she was a competent witness, and certainly, if she swore, none could detail the facts of innocence with more clearness than herself.
¶32. When the proof offered by the State was circumstantial, and depended more upon the opinion of the jury from the opportunity afforded to commit the act, than any proof of its commission; and the evidence taken in its very broadest sense, was very weak and unsatisfactory, it was error in the Court to overrule the motion for continuance, and, especially after the conviction, upon the proof offered, to refuse a new trial.
¶4Judgment reversed.