(concurring). — It seems to me, that the facts stated in an affidavit made for a continuance, under the provisions of section 3595, Revised Statutes, are authorized by the provisions of section 3596, to be read as the evidence of such witness, without explanation, as to the mode or manner by which such evidence of the absent witness was procured. This is a matter for the court and with which the jury has no concern. I am of the opinion that it was improper for the trial court, as was the fact in this case, to direct the jury that the witnesses, whose evidence the defendant read, would testify or swear to the facts stated in the affidavit, if they were present. For the purposes of the trial, the evidence of the absent witnesses was adduced, and it was as much before the jury as if it had been read in the form of deposition. If it was not, what would be their evidence if they were present to testify; these *501witnesses had in effect, for the purposes of that case, already, practically given their evidence, and it was this which the defendant read to the jury.
Therefore for the court to direct the jury that, that which already had in legal contemplation an actual, potential existence might or could exist, under certain conditions, I should regard a departure, at least, from the spirit of the statute. I cannot think, however, that the remarks of the judge, who presided at the trial of this case, in respect to the said affidavit, though erroneous, furnish grounds for the reversal of the judgment.
I cannot discover that any harm resulted to the defendant, by reason of such remarks. I think the instructions were most favorable to the defendant, and that the case was, in the main, fairly tried and that there is no substantial grounds for complaint of the judgment.
I therefore concur with Judge G-ill in affirming the judgment.