State v. Wilcox

• Decision Date: 07 January 1908
• Citation: 114 N.W. 687,21 S.D. 532
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. M. D. WILCOX, Plaintiff in error.
• Court: South Dakota Supreme Court

21 S.D. 532

114 N.W. 687

STATE OF SOUTH DAKOTA, Defendant in error,

v.

M. D. WILCOX, Plaintiff in error. South Dakota Supreme Court Error to Circuit Court, Gregory County, SD Hon. E. G. Smith, Judge Reversed George A. Jeffers, D. H. Sullivan, French & Orvis Attorneys for plaintiff in error. S. W. Clark, Attorney General P. J. Donahue, State’s Attorney Attorneys for the State. Opinion filed January 7, 1908

HANEY, J.

Having been convicted of grand larceny, defendant brought the record of such conviction to this court for review by writ of error.

It is contended the court erred in permitting the state to avoid a continuance, to which defendant was entitled, by consenting that the affidavit detailing the testimony an absent witness would give, if present, be read on the trial as evidence on defendant’s behalf. The practice in the circuit courts of this state in criminal actions relating to postponements of the trial, not being specifically provided for in the Code of Criminal Procedure, must be in accordance with the practice of the common law, except in so far as that practice may conflict with the state Constitution. Rev. Code Cr. Proc. §§ 316, 643. Though continuances in criminal, as well as in civil actions, are commonly declared to be within the discretion of the trial court, subject to review only for abuse, where one accused of crime shows himself entitled to a continuance on account of an absent witness, an order permitting the state to avoid such continuance by admitting what the absent witness’ testimony would be if present may involve something more than the exercise of discretion, namely, the absolute, substantial, constitutional right “to have compulsory process served for obtaining witnesses in his behalf.” Const. S. D. art. 6 § 7. Such a one is entitled as a matter of right to the presence of his witnesses or every advantage of their presence, if their presence be procurable, and this necessarily includes adequate means to secure their presence or the advantages which would flow therefrom, Hence he is entitled, under reasonable regulations, to process for witnesses anywhere within the state, and to reasonable opportunity to invoke the use of such process. “The law never requires impossibilities.” Rev. Civ. Code, § 2430. State process cannot operate beyond state boundaries. So the absolute right under discussion does not exist with respect to a witness whose attendance cannot be compelled. In cases where the witness is a nonresident of the state the court may, in the exercise of a sound discretion, continue the trial if satisfied that the attendance or deposition of the witness will be procured; and if satisfied that his testimony would be material, that due diligence has been exercised to procure his attendance or his deposition, the court may permit the state to avoid the continuance by admitting that the witness, if present, would testify as stated in the application for continuance. This is so because the reading of the testimony, as stated in such application, will be as effective as would be the reading of the same testimony from a deposition, and a deposition is all the accused is entitled to as a matter of right. Where, however, the accused shows himself entitled to a continuance and the absent witness is within the...