Reversing.
Charged with the murder of his own son, the appellant, John W. Canterbury, for the second time has been convicted of manslaughter. From the judgment sentencing him to serve 20 years in the penitentiary, he prosecutes this appeal, assigning numerous grounds for a reversal. However, we need to consider only one of them.
A clear statement of the circumstances of this homicide appears in the former opinion of Canterbury v. Commonwealth,222 Ky. 510, 1 S.W.2d 976, and need not be repeated.
Upon the call of the case for trial the defendant entered a motion for a continuance and in its support filed his affidavit setting forth his reasons, among which was the absence of several material witnesses. All of them appeared, however, except his daughter, Jane Justice, who was sick, and John Horton. In his affidavit the defendant stated that these two witnesses had testified on the former trial, and that a transcript of their evidence was then in court; and "that he will prove by each of said witnesses substantially the facts set out in the official transcript of evidence . . . and which . . . is made a part thereof as fully and completely as if set out herein at length in so far as the same shows the testimonyin chief of each of said witnesses." The order of court overruling the motion for a continuance recited that the commonwealth agreed to admit the evidence referred to in the affidavit subject to relevancy and competency.
Section 189 of the Criminal Code of Practice provides in part that, whenever an application for a continuance shall be made by the defendant, based upon an affidavit stating the absence of material witnesses and the facts which such witnesses would, if present, prove, the attorney for the commonwealth, in order to prevent the continuance, may admit that such absent witness "would, if present, testify as alleged in the affidavit, in which event the defendant may, on the trial, read such affidavit as the deposition of such absent witness or witnesses, subject, however, to exception for irrelevancy or incompetency." The testimony of the absent witnesses alleged in the affidavit filed in this case was their testimony in chief on the former trial, and that is what the attorney *Page 698 for the commonwealth agreed should be read as their depositions on this trial. There was no agreement that the cross-examination of those witnesses might be read also. On the trial, the defendant's counsel read the direct examination of these witnesses, and, over his objections, the court permitted the commonwealth's attorney to read also their cross-examination, to which rulings proper exceptions were saved.
The Attorney General construes the affidavit as including all of the testimony given on the former trial, while the appellant insists that it includes only the direct examination of the witness referred to. The cross-examination of defendant's daughter tended strongly to destroy the effect of her direct examination. Although inartfully expressed, the defendant seemingly intended to incorporate in his affidavit only the direct examination of the witnesses, and that is our interpretation of the instrument.
The instrument being thus construed, three of the Judges of this court, JUDGES CLAY, DIETZMAN, and LOGAN, are of the opinion that, due diligence having been shown by the defendant to obtain the presence of the absent witness, the commonwealth, in order to prevent the continuance sought, was obliged to permit the defendant to read his affidavit embodying only the direct testimony of his daughter, and that it could not read her cross-examination, and that its agreement that only the direct testimony be read added nothing. In their judgment, when the defendant files his affidavit as to what an absent witness will testify, if it be shown that due diligence was used to obtain the presence of that witness, section 189 of the Code makes it mandatory upon the commonwealth either to admit the affidavit as made, subject to relevancy or competency, or suffer a continuance. Judge REES, however, is of the opinion that, as the commonwealth voluntarily agreed to permit only the direct testimony of appellant's daughter to be read, it must be held to its agreement. However, in the absence of such voluntary agreement, he is of the opinion that the commonwealth could not have been forced to admit the reading only of the direct examination, but could have compelled the appellant to introduce the whole deposition of his daughter, if he wished to use any part of it. In this he agrees with the dissenting opinion of Judge THOMAS. However, being of the opinion that the commonwealth could not violate *Page 699 the agreement it had voluntarily made, he joins with Judges CLAY, DIETZMAN and LOGAN in the reversal of this case.
Judgment reversed.
Whole court sitting.