Appeal from Oklahoma County Court; Sam Hooker, Judge.

Ed P. Ryan was convicted of violating the prohibitory law, and appeals. Reversed and remanded.

Guthrie & Cardwell, for plaintiff in error.

Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. Plaintiff in error was convicted in the county court of Oklahoma county on the 23rd day of February, 1909, on a charge of selling intoxicating liquor, and was on the 9th day of March, thereafter, adjudged by the court to pay a fine of one hundred dollars and be confined in the county jail for a period of thirty days. From this judgment an appeal was taken to this court. On the date the case was called for trial, a motion for continuance was filed setting up the fact the plaintiff in error was sick in bed, and a certificate from his physician was attached as an exhibit. Plaintiff in error was not in attendance on the court during the day and late in the afternoon an order was made requiring his presence at 7:30 p.m. He appeared and was sworn as a witness to testify on his motion for continuance. His testimony in addition to the certificate of his physician showed that he was suffering from la grippe; that he had fever at the time; and that he had gotten out of bed to appear in court in order to protect his bondsmen from the expense of a forfeiture. No showing upon the motion was offered by the state. We think that the motion should have been allowed and the cause continued until such time as the plaintiff in error could prepare and appear for trial. The arrest in this case was made on the 26th day of December, 1908. From the record it does not appear that the state would have been prejudiced in any manner by a continuance. The judgment is reversed and the cause remanded with directions to grant a new trial.