The term of court began on the third day of September, 1883. On the second and seventeenth days of November, 1883, in term time, appellant made application in writing for attachments for several witnesses. These applications were sworn to, and contained all the requisites of Article 489, Code of Criminal Procedure. The learned judge presiding refused the applications, and the attachments were not issued. On the twenty-first day of November the cause was called for trial, and the appellant moved the court to postpone the trial to some future day of the term, in order to procure the attendance of the witnesses for whom attachments had been applied and refused. In his motion to postpone, in lieu of diligence he pleads these applications for attachments and the court’s refusal to grant them. This motion to postpone was overruled by the court, and, being tried and convicted, appellant appeals and assigns as error the refusal of the court to grant his applications for attachments, and his motion to postpone the trial.
Two questions are presented; 1. ■ Was the appellant, at the time and under the circumstances, entitled to his attachments? 2. Having been refused these, must the judgment be reversed, or shall this court apply the same rules of law to this matter as are applicable to motions for continuance?
First question: Was appellant entitled to the attachments? By the Bill of Rights, section 10, in all criminal cases the accused “ shall have compulsory process for obtaining witnesses in his favor.” This right of the accused is controlled and restricted by Articles 488 and 489 of the Code of Criminal Procedure, and these restrictions are reasonable and just. But, though restricted, the right of the accused to compulsory process for his witnesses is very clearly and emphatically stated in Articles 488 and 489. These articles are as follows:
Article 488. “When a witness, who resides m the county of the prosecution, has been duly served with a subpoena to appear and testify in any criminal action or proceeding, and fails to so appear, the State or the defendant shall be entitled to have an attachment issued forthwith for such witness.”
Article 489. “ Where a witness resides out of the county in which the prosecution is pending, the defendant shall be entitled, on application, either in term time or in vacation, to the proper clerk or magistrate, to have an attachment issued to compel the attendance of such witness. Such application shall be in writing and under oath, shall state the name of the witness *511and the county of his residence, and that his testimony is material to the defense.”
By the applications, it appears that the absent witnesses "resided out of the county in which the prosecution was pending,” and hence they were based upon Article 489. As before stated, these applications were in writing, under oath, and stated the names of the witnesses and the county of their residence, and that their testimony was material to the defense. Having complied with the requisites of Article 489 strictly, evidently the accused, the appellant, was entitled to his attachments, unless this Article has been modified or repealed by subsequent legislation. Has this Article been repealed or so changed as to require something further to be done by the accused than is required by Article 489 to entitle him to his attachments? It is insisted by the State that this Article has been repealed or so modified as that this matter is left in the sound discretion of the trial judge, if the application be made in term time, and that this is the effect of the act of April 23, 1883.
Let us examine this act briefly. What is its subject? It speaks for itself, and in such language as cannot be misunderstood. What says its title, which must express its subject? It says that this is "An act to provide for the payment of the expenses of attached witnesses in felony cases.”
Was it the object and purpose of the Legislature in this act to repeal or modify the Constitution or existing laws of this State guaranteeing to the accused compulsory process for obtaining witnesses in his favor? Testing the act by its title—and this is the only test, it being absolutely required that the subject be expressed in the title—it is evident that there was but one subject in regard to which legislation was proposed, which was to provide for the payment .of the expenses of attached witnesses in felony cases. On the other hand, however, if any subject other than "to provide for the payment of the expenses of attached witnesses in felony cases ” is embodied in the act, it not being expressed in the title of the act, such foreign matter— matter foreign to the subject expressed in the title—is void; that is, the act as to this foreign matter is void.
We are of the opinion that Article 489 of the Code of Criminal Procedure was not intended, nor, in fact, repealed or modified by the act of April 23, 1883; that the only object of this act was, as is expressed very clearly in its title, to provide for the payment of the expenses of attached witnesses in felony cases. *512And we are further of the opinion that, if said act contains other matters and treats of other subjects, so far as this may be the case that act is void, because not expressed in its title.
Appellant, therefore, having been deprived of compulsory process for his witnesses, after having complied with the reasonable regulations prescribed in Article 489, was deprived of a legal right—a right of the most vital importance to those accused of crime. Is he, therefore, entitled to a reversal of the judgment, or must the rule contained in Article 560, Code Criminal Procedure, apply? What is the rule in this Article? It is this: “The truth of •the first or subsequent application, as well as the merit of the ground set forth therein, and its sufficiency, shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right; provided, that should an application for a continuance be overruled and the defendant convicted, if it appear upon the trial that the evidence of the witness, or witnesses, named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted,” etc,
Must the rules and principles enumerated above be applied to a case in which the defendant has been denied and refused a plain legal right? Hot only so, but denied a right given him by the supreme law of this State—that law over which the Legislature has no control, and beyond the reach of the mighty powers of legislation? We think not. What a fearful doctrine, indeed, to deny and refuse the accused compulsory process for his witnesses—force him to trial—and when, after his conviction, he moves for a new trial, to test the materiality and probable truth of the evidence of his absent witnesses by the testimony introduced by the State!
In a case in which the application for continuance has been overruled, if it appear upon the trial that the evidence of the witnesses named in the application was material and probably true, a new trial should be granted. If it appear upon the trial from the evidence adduced—all of the evidence, both for the State and the defendant—that the evidence of the witnesses named in the application was material and probably true, a new trial should be granted. How, in testing the materiality and probable truth of the evidence of the witnesses named in the application, the convicted party has the right to' rely and insist upon the whole record—all of the evidence in his favor, as well *513as that against him—and, looking to the whole statements of facts, if the evidence of the witnesses named in his application appear to be .material and probably true, the law gives him a new trial.
What an alarming doctrine, indeed, that the accused can be denied his process for his witnesses, and, after his conviction, test his right to a new trial by the evidence of the State, or the evidence of the State and the evidence of just so many witnesses as the trial judge may see fit to grant him!
We are of the opinion that the appellant has been denied a legal right—one the benefit of which he used the means to obtain prescribed by the law of the land—a right of the most vital importance to his defense and common justice, and that his conviction has not been by due process of law; for which the judgment must be reversed and the cause remanded.
Reversed and remanded.
Opinion delivered June 21, 1884.