{dissenting). In the case at bar, I dissent on the ground that it was error for the court below to refuse the *334motion, for a continuance. I have consulted all the authorities accessible to this court, both test-writers and digests, and I have been unable to find any application of the rule' stare decisis to sustain an erroneous decision in a criminal case. In discussing that principle, the courts and the writers always declare that the reason for the principle is that' it is better to have a wrong but fised interpretation of the law than to have a varying rule, because contracts are made under and titles depend upon the interpretation of the law by the courts; and it is further stated that to destroy the rule of law already established would be to do injustice to acts done in the past under the impression that the rule established would be permanent; and, further, that when it becomes necessary to destroy such a rule because it is erroneous, the legislature is the proper authority to do so, because it can repeal the rule and save all intervening rights. I cite no authorities upon this point because there is absolutely no authority, to the contrary. But, as between the state and the citizen, surely such reasons should not hold the court to a strict adherence to decisions. There is no wrong done to any individual save Perkins by reviewing the rule in the case of The Territory v. Perkins; neither is there the sacrifice of any right acquired by any person under and by virtue of that decision. The party invoking that rule is the state, whose duty it is, whose wish it is, to allow to every person accused of crime an opportunity to establish his innocence. The state would not lose the right to try the defendant in this mase, or to try any person already accused of crime, if the rule in the Perkins Case was set aside.
In Mead v. McGraw, 19 Ohio St. 55, this distinction is drawn. The court say (page 61): “On the trial the court was asked to charge the jury that, if they believed that the plaintiff had knowingly sworn falsely to any material fact or circumstance, it not only affected his credibility, but it was their duty to reject and disbelieve his entire testimony. This was refused.” The opinion then recites the charge *335given, and the court say (page 62): “The charge ashed is substantially the third proposition laid down in the syllabus in Staffer v. The State, 15 Ohio St. 47. The charge given is in conflict with it. The state of the evidence justified a charge from the court on the subject. ¥e are therefore called upon either to reaffirm or overrule the decision made upon this question in Staffer v. The State. We have not felt satisfied with the ruling in Stoffer's Case upon the case now in question. . . . This is not a case in which we should forbear to correct the error on the principle of stare decisis. It is not a rule of property that is involved, but a rule affecting the practical administration of justice, and which, if wrong, ought at the earliest opportunity to be corrected.”
I dwell fully upon the doctrine of stare decisis, because I wish to express my respect for that principle, and the eminent judges who constituted this court when the Perkins Case was decided, even in the act of adversely commenting on that case. The case has never, as far as I can find, been reaffirmed in any case in our court.
•In the Perkins Case, 2 Mont. 470, the learned judge says: “ The statute provides that the court may grant a continuance for ‘ good cause,5 and that ‘ any cause which would be considered a good one for a continuance in a civil case shall be considered sufficient in a criminal action.5 The party who desires the continuance must file his affidavit ‘showing good cause therefor.5 A motion to postpone the trial of a civil case on account of the absence of evidence must be made upon affidavits showing that the testimony is material, and that due diligence has been used to procure it. If the adverse party admits that the evidence which the moving party expects to obtain be considered as actually given on the trial, the trial shall not be postponed.” “It will be seen that the legislative assembly has made these proviso ions of the civil practice act applicable to criminal proceedings.”
I cannot agree with the learned judge that the “legislative assembly has made these provisions of the civil prac*336tice act applicable to criminal proceedings.'' I think the learned judge has confused the expression, “any cause which would be considered a good one for a continuance in a civil case,” as found in the criminal practice act, with that clause of section 244 of the civil practice act which .provides for the refusing of a continuance of a civil action. Section 244, which the learned judge refers to, does not enumerate, does not specify, what are grounds for a continuance' in civil cases. It merely declares what the practice shall be when the grounds for a motion for a continuance are “the absence of evidence.” In such case it declares that the motion “shall, only be made upon affidavit showing” certain facts required by that section. It in no way, except by inference, declares that “absence of evidence” shall be considered good ground for a continuance. It merely declares the practice in that particular kind of application for a continuance, and then provides that, when the application is made upon that ground, the . court may require the moving party to state the evidence which he expects to obtain, and that, further, if the opposite party makes certain admissions, then the “ time shall not be postponed.” It is certainly evident that section 244 of the civil practice act merely declares the practice in motions for a continuance, and does not provide what the ground shall be; that it provides that in one class of motions, if certain admissions are made by the adverse party, the court shall refuse the motion; and that in other cases the “court may, in its discretion, upon good cause shown, . . . postpone upon other grounds than the absence of evidence.”
To recapitulate, and to put the matter briefly, section 244 divides the practice upon such motion, in civil cases, into two classes. First class is that where there is absence of evidence, in which case the motion must be made upon certain affidavits, and the motion must be refused in those cases. Second class is composed of all other motions for a continuance. In this class “good cause must be shown,” but not necessarily by affidavit in civil cases, and the court, in *337this class, is not obliged to refuse, in any event. He may grant or refuse the motion, in his discretion. That the section referred to is merely a provision for practice, and is not an enumeration of the causes for a continuance, is apparent from this: The latter portion of that section certainly allows a motion to be made without affidavit in cases other than the absence of evidence; while section 269 of the criminal practice act requires that in all cases the motion must be made upon affidavit.
I am firmly of the opinion that the legislative assembly meant to provide, in the section referred to, what the act itself indicates, the practice upon motion; that it did not mean in those sections, or particularly by section 244 of the civil practice act, to enumerate what should be causes for a continuance of a trial; and that it meant to leave such causes to the courts of justice, and merely declare, by section 244, that in one class of motions in civil cases the court should not exercise its discretion to grant a postponement. And in leaving such causes to the inherent power of the courts the legislative power acted wisely; for no such body could imagine the infinite variety of facts which would, in certain cases, constitute “good cause shown” for a continuance.
If this is the correct interpretation,— and I am convinced that it is, — -if section 244 of the civil practice act provides the practice, upon a motion for continuance, and not the cause for continuance, then it (section 244) does not become incorporated in the criminal practice act by virtue of section 270 of the latter act; and the second portion of section 244 of the former act, which takes away from the court the right to use its discretion in such motions on certain grounds in civil cases, does not take away or limit the discretion of the court upon any motion for a continuance in criminal cases.
If I am wrong in my interpretation, if section 244 of the Civil Code is embodied in the criminal practice act by virtue of section 270 of that act, then in no criminal case *338whatever can the court allow a continuance -upon the ground of the absence of evidence when the adverse party (the territory) makes certain admissions; for the court has no discretion. It must refuse the motion. See the opinion of the learned judge in the Perkins Case, who says: “After the district attorney has admitted that Marshal would testify to the facts stated in the affidavit of the appellant, the court could nob postpone the trial for the purpose of securing his attendance.” And I will say, in this connection, that I am not criticising the use or abuse of discretion of the learned judge who presided at the trial of this cause. He was bound by the decision of the Perkins Case, which, as stated, declares that he had no discretion in the matter, but that he ivas bound to deny the motion when the prosecuting attorney admitted that the witnesses would testify to the facts set out in the affidavits used upon the motion for continuance. Of these two interpretations I believe the former is the correct — -the only humane interpretation of the statutes.
In the case at bar the defense was alibi,— a defense which always arouses the suspicions of the jury, as all law-' yers know, although why it should do so no lawyer can tell, except upon the ground that it is sometimes used as a last resort by those who have no other means of escaping the punishment they deserve, in such cases, above all others, then, is the defendant entitled to the viva voce testimony of his witnesses; to have the jury look upon those witnesses, and watch closely their manner and conduct upon the witness stand; to have such witnesses fix with certainty the time at which they saw the accused at a place other than that at which the alleged crime was committed.
By our statute (section 166, p. 310) the time of the commission of the crime needs not to be proved as alleged in the indictment, except where it is “an indispensable ingredient of the offense.” Following the rule laid down in the Perkins Case, which takes away the discretion of the court *339to grant a continuance in all cases where the adverse party makes the admissions specified in section 244 in any case of homicide, the prosecuting attorney could admit that witnesses would testify to the absence of the defendant from the place and at the time alleged in the indictment, and then he could completely destroy the defense of the accused by proving a time other than that alleged in the indictment, for time is not “ an indispensable ingredient of the offense” of homicide.
I am of the opinion that in criminal cases of such a serious nature the accused should not be crowded to a trial; that he should be allowed time in which to procure his witnesses; that he should have time, after having read the indictment, and before his plea, to procure witnesses to meet the allegations of that indictment; that in all criminal cases the court should be allowed to use its discretion in granting or refusing a continuance, as is contemplated by the use of the word “may” in section 270 of the criminal practice act, and which the court below was prohibited from doing by the rule laid down in the Pericias Case/ and that in cases where alibi is a defense, the first application for a continuance should be granted, unless the court below is firmly convinced that the motion is made in bad faith. •
The proper rule in motions for continuance in crimimal cases, in my opinion, is contained in the following authorities: People v. McCrory, 41 Cal, 458; People v. Diaz, 6 Cal. 248; De Warren v. State, 29 Tex. 464.
In People v. Diaz, above cited, the court say: “ The value of oral testimony over all other is too well understood to suppose for a moment that such declarations [admissions by the district attorney, as in this case] would have the same weight on the minds of the jury as the testimony of the witness if he had been examined before them in open court.” This, I think, is the true rule, where the application for a continuance is the first made in the case,— made in good faith, and at the first term of the court at which the case could be heard; and the rule should be confined to *340cases where the good faith of the application is not in doubt.
In the case at bar there was no defect in the motion papers. There was no claim of bad faith. The sole ground for refusing the motion tvas the admissions made by the prosecuting attorney, which, under the rule in the Perhins Case, deprived the court of the right to use its discretion, and necessitated a denial of the motion.
In my opinion such a denial was error, and the judgment should be reversed, and the case remanded for a new trial.