The opinion
On Rehearing.
PROVOSTY, J.
While the rehearing granted in this ease was without restriction, that is to say, reopened all the questions involved in the case, yet, as a matter of fact, the court was entirely satisfied upon all the points discussed, except upon that of the refusal to grant the continuance applied for on the ground of the absence of the witness Henry Hébert. On this point the argument in support of the application for a rehearing raised some doubt, the benefit of which it was thought the accused should have.
The reargument has not shaken the conviction of the court as to the correctness of the conclusions heretofore reached. Nor has it brought out any new matter which would make it necessary, or in any way useful, to add anything to the very full treatment in the opinion heretofore handed down of all the points involved, except perhaps that of the refusal of the continuance.
It may be said to be well settled in our jurisprudence that the absence of a witness is not ground for a continuance, unless the fact to which the witness would be expected to testify cannot be proved by any other available witness. Marr, Crim. Juris, p. 606. Whether this rule is applicable in strictness in a case where, as in the present one, the cumulative evidence sought to be obtained is *1031 for establishing an alibi, may be questionable. True, in two cases where the defense was an alibi, the court has heretofore applied the rule. State v. Comstock, 36 La. Ann. 308 ; State v. Hillstock, 45 La. Ann. 298 , 12 South. 352 . But the court in those cases adverted to circumstances which made the application of the rule in those particular instances evidently proper, and hence the cases cannot be said to be precedents for a rigid application of the rule.
In the instant case the motion for a continuance left it doubtful whether the accused might not be able to prove by an indefinite number of witnesses the fact expected to be proved by Henry Hébert. Accused alleges in the motion that “there are other witnesses by whom he might prove these facts, but does not know that he can do so”; and he also alleges that he “knows of no other witnesses by whom he can prove these facts.” Such an equivocal affidavit as this is not good ground for putting off a trial, when there has already been one continuance at the instance of accused, and the witnesses are numerous, and it may not be possible to procure them all again at a future day. Continuances are largely within the discretion of the trial court.
Moreover, the motion for a continuance left it doubtful whether the accused would not have been willing to go to trial, if only he could have known positively that he might prove by some one other witness the fact which he expected to prove by Hébert, and the district attorney offered that in that event — i. e., in the event accused could not make this proof by any one other witness— the prosecution would admit that Hébert, if present, would so testify. After this offer of the district attorney there was all the less reason for granting a continuance.
The judgment heretofore handed down herein is therefore reinstated, and made the judgment of the court.