dissenting.
I think this judgment should be reversed for the sole reason that the accused was put on trial over his objections within so brief a period after the offense writh which he was charged was committed that he had no reasonable time to prepare his defense, and was not permitted the assistance of counsel within the proper meaning of the term. The offense was charged to have been committed December 13. The defendant was held to answer December 18. The information was filed December 24. He was arraigned December 26. He was put on trial December 27, less than two weeks after the offense was committed. It is true that there was no showing by evidence preserved in the record of public excitement or prejudice preventing a fair trial. It is also true that a motion for a continuance for the purpose of properly preparing for trial must be supported by proof of the occa*198sion therefor. But .there is a difference between the continuance of a cause and its mere postponement to a future day. The same strictness is not required in order to procure a temporary postponement that is required for a continuance, over the term; and especially in a criminal case, although the application be for a continuance, if the proof be insufficient, the court should postpone the trial if it would be unjust for any reason to proceed at once. This was a capital case. The life of the accused was at stake. We cannot shut our eyes to well-known truths. Counsel, no matter how learned, no matter how experienced, require in all cases some time for preparation. Where his client’s life is at stake, any lawyer, with a proper sense of the responsibility resting upon him, requires a considerable time for the examination of the case, for reflection, and for preparation for trial. I-Iis client is in such a case usually much less able to assist him than in civil cases, or than in criminal cases of minor import. It is not ahvays possible for counsel to even sufficiently inform himself of the facts of the case, and of available evidence, to at once present the formal proof requisite to procure a continuance; and when a man is charged with murder, especially where, as it in this case turned out, insanity is a feature of the defense, a reasonable opportunity should be given counsel, not only to procure the attendance of witnesses, but to examine into the facts of the case and deliberate upon his course of conduct. As said by the supreme court of Louisiana in State v. Ferris, 16 La. Ann., 425: “The law, in securing to them [persons accused of crime] the assistance of counsel, did not intend to extend a barren right; for of what avail would be the privilege of counsel * * * if, on the spur of the moment, without an opportunity of studying the case, the former should be compelled to enter into an investigation of the cause?” I am aware that convictions have been sustained where less time intervened between the commission of the offense and the commencement of the trial than in the case at bar; but, so far as I know, *199there has not been any recent instance of a sentence of death sustained under such circumstances of expedition against the protest of the accused. But the case, to my mind, should not be controlled by precedent. A reasonably speedy enforcement of the criminal laws is necessary; but the court should not permit the clamor of newspapers, or of the public, to so far hasten prosecutions as to substantially deprive the accused of their constitutional privilege of a fair and impartial, as well as a speedy, trial, and to the real assistance of counsel,- — that is, the assistance of counsel who have had a reasonable opportunity to investigate the case and prepare a defense. I think in this case there was an abuse of discretion in not granting the accused a postponement of the trial, and that the judgment should be for that reason reversed.
Ragan, C., concurs in the foregoing dissenting opinion.