State v. Roark

The opinion of the court was delivered by Horton, C. J.:

Defendant was convicted in the district court of Butler county, of robbery in the first degree. From that conviction he appeals to this court. Various errors are alleged, but the most important and serious one called to our attention is the treatment by the court of the affidavit of the defendant read in evidence upon the trial. The defendant filed an affidavit for a' continuance of the case over the term, on account of the alleged absence of certain witnesses. Thereupon the prosecution consented that the facts alleged in the affidavit might be read and treated as the deposition of said witnesses, but after the affidavit was read in evidence under the agreement, the court held that it could be impeached, on the grounds —1st, that the witnesses were unworthy of belief; 2d, that the defendant might with reasonable diligence have procured the attendance of the witnesses in court, or have taken their depositions as prescribed by law; 3d, that the defendant had good reason to believe at the time he made the affidavit for a continuance, that if the witnesses would testify, *151 :as he alleged, the testimony would be untrue; and 4th, that there are no such persons in existence as those named in the --affidavit.

After all the evidence had been produced in the case, the ■counsel for the prosecution, over the objection of the defendant, discussed the evidence contained in the affidavit, and asserted to the jury that the evidence was fictitious and a myth; that none of said witnesses named therein had been sworn or testified or given evidence; and that the evidence in the affi•davit was a fraud and a put-up job, and rested solely upon the credibility of the defendant. In the charge to the jury, the court, in referring to the affidavit, said to the jury, against the objection of the defendant, “Do you believe the defendant acted in good faith in making his affidavit for a continuance, and truly believed he could procure the witnesses named therein, and that they would testify as he says?”

To the ruling of the court, that the evidence in the affidavit could be impeached on the ground that the witnesses were ‘unworthy of credit, we perceive no objection, if the testimony in reference thereto was confined within proper rules, but the permission to impeach the affidavit for the other reasons given by the court was erroneous, and greatly prejudicial to the rights of the defendant. The course of argument pursued by the counsel for the prosecution in referring to the affidavit cannot be sustained, and the paragraph quoted above from the charge of the court was an improper direction to the jury. The affidavit in the case was read in evidence, upon the consent of the prosecution that the facts alleged might be read and treated as the depositions of the absent witnesses. Under this agreement and the law applicable to such cases, (Comp. Laws 1879, p. 643, § 317, p.756, § 210,) it should have been read to the jury, and treated by the court as the deposition of the witnesses therein named. Section 364 of .the code provides that “no exceptions to depositions other than for incompetency or irrelevancy shall be regarded unless -made and filed before the commencement of the trial.” "Whether the defendant had used due diligence to obtain a *152 continuance Was a matter to the court, preceding the argument to permit the affidavit to be read as a deposition, and after such agreement the question of diligence was immaterial To permit the defendant’s belief as to what the absent witnesses would testify to, if'present, or the actual existence of said alleged witnesses to be put in issue, would bring new and independent matters before the court for trial, which would have the effect to extend the testimony outside of the points-in issue in the case of a plea of not guilty to the charge-of the information, and would require a defendant to be prepared to answer to particular facts, of which he had no notice Under the construction and decision of the court, the consent to have an affidavit read as a deposition, would frequently result in entrapping a defendant in a net and render him absolutely defenseless. The consent would literally be the-“apple to the eye, but ashes to the touch.”

In the first place, parties are not allowed a continuance until they make a proper showing to a court; then the adverse party is under no obligation or compulsion to agree that on the trial, an affidavit deemed sufficient to justify a court to grant a continuance, shall be read as a deposition y but if such consent is given, it cannot be withdrawn, or changed after the trial is actually commenced. Again, if a, party knowingly makes a false and corrupt affidavit to get an unfair advantage, or further time, he can be duly convicted therefor, but it would be hardly just or proper on a trial of a charge of robbery, to try a defendant for perjury. Complaint is further made to the refusal of .the court to delay the trial,, until the attendance could be obtained of certain material witnesses, who had been duly subpenssd, and were within the jurisdiction of the court. As a new trial will be-necessary, it is sufficient to say, that the defendant has a constitutional prerogative to have compulsory process to compel the attendance of witnesses in his behalf. (Sec. 10, Bill of' Bights.) This privilege is stripped of all its benefits to a defendant in a criminal case, if such defendant is forced tetria!, and his trial is concluded, before the return of com *153 pulsory process issued to bring into court' witnesses in his behalf, who have disobeyed subpenas duly served upon them. Of course, no court has the right to limit or deny this constitutional guaranty against the protest of an accused. If a defendant uses due diligence in asking for compulsory process, in having such process issued against a disobedient-witness, the trial ought not to be concluded before the return of such process, or a reasonable showing made for its non-return. The judgment of the district court will be reversed,, because of the errors commented upon, and a new trial, awarded. The defendant will be returned from the penitentiary, and delivered over to the jailer of Butler county,, to abide the order of the district court of that county.

All the Justices concurring.