| Ark. | Jun 12, 1911
(after stating the facts). The motion for continuance should have been granted. The appellant showed that he had exercised all the diligence that could be expected of him under the 'law to procure the attendance of his witnesses. The witnesses had been subpoenaed and were in attendance and testified at a former term. And an alias subpoena was issued for the witness Mase McGough, who was within the jurisdiction of the court, just a short time before the court convened, and the subpoena for this witness had not been returned. While the court has a broad discretion in matters of continuance, which will not be controlled when properly exercised, yet this is not an unlimited discretion, and will be reviewed by this court; and when the facts show that the court has abused its discretion, this court will reverse for the error in not granting a continuance. In Miller v. State, 94 Ark. 545, we said:
“In no case will the exercise of the discretion of the trial court in a matter of continuance be reviewed upon appeal where it manifestly appears that justice has been done without sacrificing the rights of the defendant.”
But in this case it cannot be said that justice has been done and that the rights of the defendant were not sacrificed in -refusing the motion for a continuance, for the reason that appellant had brought himself fully within the requirements of the law in his endeavor to procure the attendance of his witnesses. The presence of these witnesses in person was very material to his defense, as shown by the testimony set up in the motion. This testimony, if true, would necessarily show that the testimony of the prosecuting witness was false. The conviction of the appellant could not have been secured except upon the testimony of the prosecuting witness and her uncle, Marvin McGough. The testimony of Mrs. Berryman, and like-w-ise of Mase McGough, if true, would have shown that the prosecutrix told them there was nothing in the charge against the appellant, that he had really done nothing to her and, in effect, showed that, according to her statement, the charge was one trumped up by herself and her mother to get rid of her stepfather. Had -these witnesses been present in person before the jury and given their testimony, -their appearance and manner of testifying might have -impressed the jury that their testimony was true, and therefore 'have caused them to wholly disbelieve and disregard the testimony of the prosecutrix. The appellant, having exercised all the diligence that the law requires to procure the attendance of these witnesses, could not be forced into trial and have the purported testimony of the witnesses, as set forth in the motion and the alleged testimony of the witness Mrs. Berryman, as given in a former trial, substituted for the testimony of the witnesses in person before the jury. This case, on the facts, is clearly distinguishable from any of the cases in this court where the court has refused to interfere with the discretion of the lower court in refusing to grant applications for continuance. The ruling of the court, we think, under the circumstances of this case was erroneous, and was tantamount to a denial of the appellant’s right under the Constitution to have compulsory process for obtaining witnesses in his favor. Graham v. State, 50 Ark. 161" date_filed="1887-11-15" court="Ark." case_name="Graham v. State">50 Ark. 161. The circumstances were such as to show that an attachment was not proper in the case of the witnesses who were sick and who on that account could not be present, and the last subpoena that had been issued in the case of witness Mase McGough had not been returned. So there was nothing that the appellant could do that he had not done in order to facilitate the trial of the cause. He had no other witness by which he could prove the facts alleged. A continuance under such circumstances is a matter of legal right, which could not be denied appellant without an abuse of the court’s discretion. McDonald v. Smith, 21 Ark. 460" date_filed="1860-07-15" court="Ark." case_name="McDonald v. Smith">21 Ark. 460; Cannon v. State, 60 Ark. 564" date_filed="1895-05-25" court="Ark." case_name="Cannon v. State">60 Ark. 564; Price v. State, 71 Ark. 180" date_filed="1903-01-17" court="Ark." case_name="Price v. State">71 Ark. 180.
Reversed and remanded.