Its function is to rectify a misjustice which could not have been corrected upon appeal because at such time the existence of the error in the proceeding, or of some new or undiscovered pertinent fact, was unknown and could not have been discovered by the exercise of proper diligence. Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48; Day v. Commonwealth, 296 Ky. 483, 177 S.W.2d 391; Walsh v. Tuggle, 303 Ky. 200, 197 S.W.2d 253. The writ does not issue as a matter of right but its granting is in the sound discretion of the judge who tried the accused upon a showing that there is a strong probability of a miscarriage of justice.
Ordinarily the question of whether or not a defendant in a criminal action is entitled to a continuance of his case is a matter within the sound discretion of the trial court. Criminal Code of Practice, §§ 188 and 189; Day v. Commonwealth, 296 Ky. 483, 177 S.W.2d 391; Toler v. Commonwealth, 295 Ky. 105, 173 S.W.2d 822. However, in this case there was no evidence presented that appellant was physically able to stand trial.
We have read this testimony and are of the opinion the Judge did not abuse his discretion in overruling the motion. The ruling of the trial court in granting or refusing a continuance will not be disturbed unless there is a flagrant abuse of discretion. Day v. Commonwealth, 296 Ky. 483, 177 S.W.2d 391. Appellant also insists he was entitled to have the services of two attorneys who had represented him in previous cases, both of whom were absent from the county when he was tried.
However, we wrote in Miller v. Commonwealth, 200 Ky. 435, 255 S.W. 96, 97, "a judgment of conviction will not be reversed for refusing a continuance, unless from all the facts and circumstances of the case it manifestly appears that defendant's substantial rights were prejudiced thereby." The testimony of Harrison would be cumulative at the most, and the affidavit, if ever offered to be read, was so defective the court did not err in refusing it. Walker v. Commonwealth, 216 Ky. 26, 287 S.W. 20; Day v. Commonwealth, 296 Ky. 483, 177 S.W.2d 391. This brings us to the contention that the court should have sustained challenges to the jury on the ground of implied bias because six jurors who bad "served in a similar indictment, on which offense the appellants were acquitted."
Since then a large number of criminal prosecutions wherein the defendant on trial sought a continuance because of absent witnesses have been considered by this court, and in every one of them we held that it was not error for the court to overrule the motion for a continuance and to allow the testimony of the absent witness as contained in the affidavit to be read to the jury, unless the testimony of the absent witness was so important as to be of great weight in determining the issue of guilt or innocence, and the other circumstances were such that it was a manifest abuse of discretion to overrule the motion, and especially so when it appeared that there was a probability of obtaining the attendance of the witness at a future trial. Numerous cases are cited in the notes to the Code section substantiating what we have said, and some later ones are: Shelton v. Commonwealth, 280 Ky. 733, 134 S.W.2d 653; Toler v. Commonwealth, 295 Ky. 105, 173 S.W.2d 822 and Day v. Commonwealth, 296 Ky. 483, 177 S.W.2d 391. Others are cited in those opinions. The only case relied on by appellant's counsel in their brief filed in this court is the Shelton case which was a conviction of appellant for murder and in which the death penalty was given. The testimony in that case was largely circumstantial.