Graham v. State
| Decision Date | 14 January 1888 |
| Citation | 6 S.W. 721,50 Ark. 161 |
| Parties | GRAHAM v. STATE |
| Court | Arkansas Supreme Court |
APPEAL from Benton Circuit Court, J. M. PITTMAN, Judge.
Judgment reversed and cause remanded.
L Gregg and B. R. Davidson, for appellant.
Art. 2 sec. 10, const., 1874, guarantees to the defendant in all criminal prosecutions the right "to have compulsory process for obtaining witnesses in his favor." To grant an attachment for his witnesses and then force him into trial immediately, upon the admission of the prosecuting officer that the witnesses, if present, would testify to the facts stated in the motion for continuance, is a mockery of justice. The defendant is entitled to have his witnesses present, if within the jurisdiction of the court, and any law depriving him of this right is unconstitutional. Mansf. Dig., Sec. 5108; Acts, 1887, p. 19; 4 S.W. 24.
D. W. Jones, Attorney General, for appellee.
The language of the bill of rights of Kansas on this subject (Const., sec. 10) is substantially the same as ours, and it was held that a rule of the supreme court which provides that when a defendant files an application for a continuance on the ground of absence of a material witness, he must state what he expects to prove by said witness, and thereupon the cause shall be continued, unless the opposite party consent to the reading of such affidavit in evidence, in which case the trial shall proceed, &c., applied to civil and criminal cases alike. 5 Kan. 159; 6 Id., 209. Afterwards this rule was made an act by the legislature, and it was held to apply to criminal cases as well as civil. 20 Kan. 311.
On the 20th of May, 1887, the grand jury of Washington county returned an indictment against the appellant for arson. On the 25th day of the same month he waived arraignment, entered a plea of not guilty to the charge, and filed a motion for a change of venue. The court directed the cause to be removed to the Benton circuit court to be tried at its next September term, and caused the witnesses for the prosecution and defence to enter into recognizance to appear in that court on the 13th of October--a day of the September term--to give testimony upon the trial to be had at that time. The cause was transferred to the Benton circuit court, and on the 13th of October--the day named for the trial--three of the defendant's witnesses, who had been placed under recognizance to appear on that day, and who resided in an adjoining county, not being present, he moved the court for compulsory process to bring them into court, and asked that the cause be postponed until the process could be executed. The court awarded process as requested, but refused to postpone the trial. The defendant then filed his motion for a continuance of the cause, and the court after holding the affidavit sufficient, and that the defendant was entitled to the postponement, overruled the motion upon the offer of the prosecuting attorney to admit that the absent witnesses if present, would swear to the facts set forth in the affidavit, and directed that the trial proceed. The defendant objected to being placed upon trial upon the concession made by the state, and insisted upon having the personal presence of his witnesses. His objections were disregarded; he was convicted, brought his exceptions upon the record and appealed.
Section 340 of the civil code as enacted in 1868 provided that a continuance might be refused if the opposing party would consent that upon the trial the statements contained in the application should be taken as true. A section of the criminal code made this provision applicable to postponements of criminal prosecutions on behalf of defendants. Cr. Code, sec. 190. The statute remained thus until 1879, when section 340 of the civil code was amended so as to authorize the refusal of the application for a continuance upon the admission by the adverse party that the absent witnesses, if present, would testify to the statements contained in the application. The provision as amended, like the one it superseded, was designed to apply to civil causes and the question is, is it applicable to criminal prosecution? Conceding that it was the intention by section 190 of the criminal code (Mansf. Dig., sec. 21891) to extend the operation of the civil procedure, as amended, to criminal prosecutions, as was ruled in Edmonds v. State, 34 Ark. 720, the question of the power of the legislature to make such practice applicable to criminal prosecutions, remains for determination.
Section 10 of the declaration of rights in the constitution of 1874, among other things, guarantees to the accused in all criminal prosecutions the right "to have compulsory process for obtaining witnesses in his favor."
It is not necessary to recount the evils entailed by the ancient criminal prosecution when the accused was allowed to swear no witness to his defense, or to give the history of the struggle which led to the guaranty to the accused of the right to have his witnesses deliver their testimony orally at the time and place of trial, in order to understand the meaning of this provision. "Compulsory process for obtaining witnesses" means the right to invoke the aid of the law to compel the personal attendance of witnesses at the trial, when they are within the jurisdiction of the court. It is a substantive right, a real right, and not an illusory sham to be satisfied by the issue of process, which is to be rendered ineffectual by hastening on to immediate trial. A reasonable opportunity to make the process effective must be afforded, else what the framers of the constitution term "a right to be enjoyed" by the accused, is only a mockery to vex him. The process is "for obtaining witnesses"--not the less availing concession of the prosecuting officer that the witnesses, if obtained, would swear to the statements made by the accused. The personal presence of a witness of truth is of inestimable value before a jury, and if the application of the statute in question to criminal prosecution would abridge the constitutional right to compel his attendance, the statute cannot be made to apply to that class of cases. The legislature is powerless to proceed in the face of the constitutional restraint. No consideration of expediency, of cost or convenience in the rapid disposition of causes on the criminal calendar can enter into the determination of the question --it is simply one of power, and in that the constitution has set the boundary to the courts and legislature alike, without granting to either the discretion to depart from its mandate upon any idea of expediency.
The statute which governs postponements of trials in civil cases and which the learned circuit judge in this case took for his authority in denying the appellant's application for a postponement, after defining the nature of the matters to be set forth in an...
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