This cause being called for trial, and the State having announced itself ready, the appellant applied for a continuance for the testimony of two witnesses, by whom, it is stated, he expected to prove that said witnesses were present and saw him purchase the horse which he is charged to have stolen, and that he paid the ¡parties from whom he purchased a valuable consideration for the horse. The application for a continuance was held sufficient. When the district attorney proposed to admit that, if the witnesses were present, they would swear to the facts stated in the affidavit for a continuance, (not, however, admitting the statement to be true,) the appellant declined to accept the admission, and insisted that it should be, that the facts stated in the affidavit were true. The court overruled the application for a continuance upon the admission that the witnesses, if present, would swear to the facts stated in the application.
The attorney general questions the correctness of the ruling granting the order of continuance on the affidavit of *478the defendant, and says that it was insufficient; that the witnesses are alleged to reside out of the county in which the prosecution is pending, and that sufficient diligence was not used to obtain the witnesses. By articles 437 and 437a, Code of Criminal Procedure, it is provided, that where the witness resides out of the county in which the prosecution is pending, the defendant shall be entitled, on application under oath, stating facts, as required in the articles cited, to an attachment. And article 515 provides, that the issuance of or application for a subpoena shall not be considered due diligence in case where the law authorizes the issuance of an attachment. [Paschal’s Dig., Arts. 2908, 2909.] The diligence stated in the application is not in compliance with the statute. Pacts, however, are stated which show that in this case the attendance of witnesses could not have been procured by the use of the utmost diligence. It is stated that sufficient time had not elapsed for the subpoenas to have been served upon the witnesses and for the witnesses to have come to the place of holding the court, and, from the facts before us, we cannot say that there was time sufficient; and if there was not time for the subpoena or attachment to be served, and the witness to travel to and be in attendance on the court, the continuance might properly be granted, if there had not been any attempted diligence as required by statute, where it is stated, and appears to the court, that the testimony of the witnesses could not have been obtained by using the greatest diligence, if the witness reside at such a distance from the place of trial that it was impossible to have procured his attendance at the court as a witness on the trial. The statement of such facts in an application for a continuance may dispense with a statement of the acts of diligence required by the statute. If the witness was absent from the State at the time of the arrest, and remained away till the time of the trial, the statement of those facts must be held as dispensing with a *479statement of acts of diligence which might be required if the witness was within the jurisdiction of the court. And if the witness he in the State, but at a distance from the place of trial so great that a statement of the facts shows clearly that it was not possible to obtain his attendance or testimony by using the greatest diligence, such facts, appealing to the satisfaction of the court, must he held as dispensing with the issuing and sending process that cannot possibly be executed in time to secure the testimony of the witness.
The granting a continuance must be held as reposing discretion in the court granting it, and the action of the court in continuing a cause cannot, as a general rule, he reversed; possibly it might in a case like the present, if the ordering of continuance is first made without any legal and sufficient cause authorizing the continuance, and the order granting the continuance is afterwards set aside for an insufficient cause. Yet if, from the whole record, it should appear that as a whole the action of the court is right, it might he sustained.
It is sufficient to say, that it does not appear from the record in this cause that the court erred in the first instance, in holding the application to continue sufficient. It is stated that sufficient time had not elapsed for the subpcenas to reach the counties to which they were sent, and service had on the witnesses in time for them to be in attendance upon the court at the time of the trial. If this statement was true, and we are not prepared from the record to say that it is not, the appellant was entitled to a continuance.
If the order of continuance was properly made, was it competent for the court to set aside the continuance and require the defendant to go to trial on the admission of the district attorney that, if the witnesses named in the affidavit were present, they would testify to the facts stated *480in the affidavit, without requiring of the attorney representing the State the further admission, that the facts stated in the affidavit for a continuance were true ?
Article 518, Code of Criminal Procedure, provides, that it shall be sufficient, on the first application for a continuance, that the facts expected to be proved by a witness shall be stated, and that it must appear that the facts are material. There is no provision in the statute that, if the applicant shall state facts which entitle him to a continuance, he may be required to be placed upon his trial, if the admission be made that the witness, if present, would testify as stated in the affidavit, leaving the truth of the statement to be controverted by other testimony, or by such means as the party opposing the continuance may be able to bring to bear on the question involved.
In Hyde v. The State, 16 Tex., 457, it was held, that the court erred in receiving the admissions of the State’s attorney, that the witness would testify as stated by the.defendant, and on their admission requiring the defendant to be placed upon trial; that the admission, as to what the witness would testify, would not be a sufficient ground for refusing the motion for a continuance, if the application was otherwise sufficient, and it satisfactorily appeared that the defendant was entitled to the postponement of the trial to obtain her testimony.
Reference is made to The People v. Vermilyea, 7 Cow., 368. That case is much like the case now under consideration. The defendant moved to put off the trial, on the ground of the absence of a material witness, which the judge decided should be granted; but, on the district attorney offering to admit “that the witness would swear what the defendant averred, reserving the right of contradiction and impeachment, the judge directed the defendants to specify what Swift, the witness, would prove, and on receiving such specification ordered the trial to pro*481ceecl.” The defendant was convicted. On appeal, the court say: “If it be admitted that the defendants were entitled to the testimony of the witness, then the only question is, had they the benefit of his testimony? In my judgment most clearly they had not. When testimony was given, showing, prima facie, that the witness could not swear, as it was admitted he would, without being guilty of a contradiction, could the jury shut their eyes to the fact, which was staring them in the face, that General Swift had not sworn anything about it.”
In Goodman v. the State, 1 Meigs, 197, it is held, that “when the admission of the counsel is not merely that the witness would testify as stated, but admits the facts are true as set forth in the affidavit, such admission should not preclude the defendant in a criminal case from his constitutional right of having the witness personally present at the trial.” It is so.
“It were needless to urge upon practical and enlightened minds the difference, in point of legitimate effect, between the personal presence of candid and respectable witnesses, who testify to facts in their detail, ramification, and bearing, and the general admission of these by an attorney general, little impressing the minds of the jury, and constituting, as to its extent and bearing, a fruitful source of difficulty and dispute.”
In the case now being considered, the ruling of the court deprived the defendant of the benefit of having the witnesses before.the jury. A subsequent ruling of the court was calculated to lessen the credit, if it did not destroy the effect, of the admission, that if the witnesses were present they would testify to witnessing a transaction between the defendant and certain other persons, in which transaction the defendant obtained the horse he is alleged to have stolen from the persons referred to. On the trial, it was proposed to prove by the justice of the.peace before whom the de*482fendant was tried, with a view to his commitment for the offense alleged against him, that after the testimony was all taken, and the case closed, the defendant made a speech, in which he stated “that he traded for the horse of two men by the name of Hutton and Brown, in the prairie between Alleytown and San Felipe, and that no other person was present when the trade was made; ” that “witness did not warn the defendant that the statement might be used against him on a final trial of the cause.” At the time of making this speech the defendant was in custody of the officers of the law.
By act of February, 1860, Art. 662, Code of Criminal Procedure, is amended to read as follows: “ The confession shall not be used, if at the time it was made the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court, in accordance with law; or be made voluntarily, after having been first cautioned that it may be used against him; or, unless in connection with such confession he makes statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or instruments with which he states the offense was committed.” [Paschal’s Dig., 2d ed., Art. 3127, Note 761.]
The truth of thé statement made by the appellant is not confirmed by any testimony, except his own affidavit for a continuance. The affidavit confirms the statement testified to before the justice in this, that the horse was obtained by the defendant from persons he met with on the prairie; but it conflicts in stating that two persons were present at the time of the meeting on the prairie. With this conflict it is not likely that the jury gave much weight to the admission of the district attorney as to the facts the absent witnesses of the defendant would testify to if pres*483ent. The effect of the ruling of the court, in requiring the defendant to be placed upon his trial upon the admission made by the district attorney, and overruling his objections to giving in evidence statements made by him while in custody, was to deprive him of a legal right; for which error the judgment is reversed, and the cause
Remanded.