* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 459, n. 89; p. 460, n. 14; p. 465, n. 62; p. 472, n. 57. On right to continuance to secure absent witness, see 6 R.C.L. 556; 2 R.C.L. Supp. 154; 4 R.C.L. Supp. 425; 5 R.C.L. Supp. 355. Jake Childs appeals from a conviction of manslaughter and a sentence of ten years in the penitentiary. *Page 797
Appellant shot and killed Sam Mauney during a difficulty between the two at a little country store east of Ripley.
Briefly told, the two men became angry with each other, and deceased, Mauney, picked up an iron bar, and with it in his hand advanced upon appellant, who retreated, and, while the deceased was advancing upon appellant, who had reached a place where he could retreat no farther, appellant shot and killed Mauney.
There is a conflict in the evidence as to whether the deceased had the iron bar in his hand and was advancing upon the appellant at the time the fatal shot was fired; the testimony was also in dispute as to who was the aggressor in the difficulty.
The appellant urges a reversal upon several grounds, but we shall notice only two of them which will result in a reversal, and the other questions may not arise again on a new trial.
It is contended that the court erred in overruling appellant's application for a continuance, which was asked upon the ground of the absence of the witnesses Crum and Edwards, who would testify to material facts which the defendant could not prove by any other witnesses. The application shows that these witnesses were within the jurisdiction of the court, and that due diligence by the defendant had been exercised in making every reasonable effort to obtain the presence of these witnesses. All manner of process was secured in an effort to have these witnesses present at the trial, but they could not be found in time to testify in the case.
The homicide took place on Friday; the indictment was found on the following Monday; the arraignment had the next day; and preparation for the trial by the court was begun at once; and the defendant was put on trial on the next Friday, about four days after the indictment was found.
Counsel for defendant repeatedly asked for a continuance so as to secure the witnesses Crum and Edwards to *Page 798 testify on behalf of the defendant, but these requests were, by the court, denied, to which action appellant excepted.
The witness Crum would have testified, if present, that the deceased, with an iron bar in his hand, was advancing upon the appellant, while appellant was retreating, and that the fatal shot was fired while the iron bar was still in the hand of the deceased, and that, when appellant could retreat no farther, he fired.
It will be observed that this was very important and vital testimony for the defendant, and the mere reading to the jury from the application, and the admission that this witness, if present, would have so testified, would not cure the error of the court in trying the case, in the absence of this witness, if the testimony was not cumulative as is contended here by the attorney-general's office.
We do not think the testimony of the witness Crum would have been cumulative, because no other witnesses testified to the fact that the deceased had an iron bar in his hand and was advancing upon the appellant at the time the fatal shot was fired, except the defendant himself, and his ten-year-old son, who testified to this fact. The fact was in dispute, some of the witnesses saying they did not see the iron bar in deceased's hands at the time the shot was fired, and other witnesses testifying, doubtfully and negatively, that the deceased did not have a bar in his hands when he was shot. So the appellant could not prove this very important fact by any one except himself and his ten-year-old son; both of the latter being materially interested in the case.
It is our opinion, moreover, that the testimony of the witness Crum, who was a disinterested person, could not be considered cumulative under the circumstances, for we think that, instead of Crum's testimony being cumulative, it would have been strictly corroborative of the testimony of appellant and his infant son. *Page 799
But whether we say it was corroborative, or additional proof of the fact sworn to by the appellant and his son, and in this sense was cumulative, can make no difference, as we see it, because, in no view, do we think the testimony of Crum would have been useless or unnecessary as being cumulative; it was valuable testimony. Therefore the court erred in putting the appellant to trial without the witness Crum.
As to the witness Edwards, who would have testified to a recent threat made by the deceased against the appellant, we do not find in the record anywhere that the appellant could have made this proof by any other witness. Reading to the jury what this witness would have testified to if present, was not sufficient and did not meet the requirement that a defendant is entitled to have his witnesses present and testify in person.
This case being one in which there is a sharp conflict in the proof as to who was the aggressor, the testimony of Edwards as to the threat made by the deceased was highly important to the defendant, and we think the court erred in not granting the appellant time in which to secure the presence of the witness.
For the two errors committed, the judgment of the lower court must be reversed. There are some other serious questions in the case, but we omit the decision of any of them except the two named.
The judgment of the lower court is reversed and the case remanded.
Reversed and remanded.