I am unable to concur in the majority opinion. The application for continuance set out therein complies in every respect with the provisions of Section 3997, Revised Statutes 1919, and is therefore entirely sufficient in form. The majority opinion seemingly concedes such compliance, for the statute under which the application was drawn is not even mentioned. The trial court's action was sustained solely on the ground that the trial judge did not "abuse his discretion in overruling the application for continuance." I think the trial judge did abuse his discretion in denying the application based on the absence of the witness Helen Greenwood and, hence, I cannot concur in the opinion of my learned brother.
The application was properly ruled in so far as appellant's wife was concerned; but appellant was clearly entitled to a continuance because of the absence of the witness Helen Greenwood, unless we are prepared to say that, no matter how important to the defense of one charged with crime the testimony of an absent witness may be, it is entirely discretionary with the trial judge whether the accused may have the benefit of such testimony. *Page 674
The appellant was diligent in seeking to procure the attendance of Helen Greenwood. He issued a subpoena for the witness on March 8, 1928, and it was actually served on her the same day, which was four days before the trial on March 12th. There is nothing to indicate that before trial day appellant knew any reason why the witness would not be present in obedience to the subpoena served upon her. The application duly verified stated that the witness was not absent by the connivance, procurement or consent of appellant and not the slightest intimation to the contrary appears in the record.
The majority opinion holds that it was not satisfactorily shown that Helen Greenwood was sick at the time of the trial and unable to attend as a witness. The only showing on the point indicates that she was sick. The sheriff's affidavit stated that the witness was "at home and actually confined in bed" when he served the subpoena upon her four days before the trial. The State offered no counterproof and did not even ask for an examination of the witness by a physician. There is no basis in the record for the insinuation that the witness was feigning illness. The appellant was justified by the affidavit of the sheriff in stating in his application for continuance that the witness was ill and unable to attend the trial. It is fair to presume that a witness served with a subpoena will obey it, if able to do so, because witnesses do not expect to disregard the command of court process with impunity. As appellant was not shown to have had information in advance of the trial that the witness, who lived in another town, would disobey the subpoena and remain away, he could not reasonably have been expected to account for the absence of said witness.
The affidavit of the prosecuting attorney, denying the presence of Helen Greenwood at the time of the alleged sale of whiskey and stating that she could not truthfully testify that appellant purchased liquor instead of selling it, served no office whatever. The State cannot be heard to deny that the testimony of the absent witness will be as stated in the application for continuance. [State v. Good, 132 Mo. 114, l.c. 131, 33 S.W. 790; State v. Sassaman, 214 Mo. 695, l.c. 736, 114 S.W. 590.]
The application for continuance stated that Helen Greenwood would testify that she was present at the alleged sale and that, instead of appellant selling liquor to the witness Andrew Brown, appellant bought liquor from said Brown. Such evidence, if believed by the jury, would have completely disproved the testimony of Brown, that he had just purchased liquor from appellant and would have produced a different result of the trial. It was a story peculiarly for the jury to pass upon. Nor was it a story inherently unreasonable. Caught red-handed with liquor in his possession as he *Page 675 left appellant's house, it would have been the natural thing for Brown, even if he actually had sold liquor to appellant, to say that the liquor found upon his person was purchased from appellant. The facts were entirely for the jury. Even if the prosecuting attorney and the trial judge did not believe the truth of the expected testimony of the absent witness, that cannot justify the court's action in overruling the application for continuance.
While it is true that the trial court has large discretion in granting or refusing an application for continuance in a criminal case and its ruling thereon will not be disturbed upon appeal, unless such discretion has been unsoundly or oppressively exercised (State v. Dettmer, 124 Mo. 426; State v. Banks,118 Mo. 117), yet, where the application is in due form and shows the vital importance of the testimony there set forth and due diligence on the part of defendant to procure such testimony, without any evidence of connivance, procurement or consent on the defendant's part in respect to the absence of the witness, this court has not hesitated to hold that the trial court erred in overruling the application. [State v. Hesterly, 182 Mo. 16, l.c. 32, 81 S.W. 624; State v. Swafford (Mo. Sup.), 12 S.W.2d 442, and cases.] In most of the cases where the refusal of a continuance was sustained, the facts cited as justifying refusal fully warranted the ruling. That is not true here.
It is difficult to conceive of a case where the court's discretion in granting or refusing an application for continuance was more unsoundly exercised than in the case at bar. To sustain the ruling is virtually to announce to the bench and bar of this State that this court will not interfere under any circumstances with the exercise of the trial court's discretion in denying a continuance in a criminal case.
In a civil case, the application, otherwise sufficient, cannot be denied unless the opposite party will admit that the witness or witnesses mentioned, if present, would testify as set forth in the application. [Sec. 1390, R.S. 1919.] The party whose witnesses are absent may get some aid from such an admission. But a defendant in a criminal case cannot even get that little consolation, when his application is overruled, for the State cannot admit that the absent witness would testify as set forth in the application for continuance. When the application is denied the defendant simply has to get along at the trial without the slightest benefit from his application, regardless of the good faith of his application. [State v. Warden, 94 Mo. 648, 8 S.W. 233; State v. Berkley, 92 Mo. 41, 4 S.W. 24.]
There is testimony in the record touching the conduct of appellant at the time the officers entered his home which strongly indicates his guilt; but that cannot be considered. The appellant had the right to have a jury hear the alleged testimony of Helen Greenwood, *Page 676 if he could later procure her presence. Appellant had previously been convicted of violating the liquor law. Such conviction doubtless lessened his credibility as a witness and emphasizes the importance of his corroborating his simple denial of the sale, if he could corroborate it, by the testimony by Helen Greenwood.
Appellant may be guilty, but he was entitled to a fair chance to have his guilt passed upon by the jury after hearing all the evidence he could produce. The majority opinion establishes a precedent which may defeat justice in the trial of some good but unfortunate citizen charged with the commission of a crime.
I therefore respectfully dissent. Ragland, C.J., concurs herein.