dissenting:
In nay opinion, the court did not err in overruling tlie motion of the defendant, McLane, for a continuance. The facts which he expected to prove by the witness Upshire, as set forth in his affidavit, are as follows: “That he will prove by said witness that on Saturday, the thirteenth day of December, a. d. 1879, the day on which the defendant, Mclntire, alleges in his statement that the alleged murder of Fred. Wallbaum was committed, on the afternoon of that day, a stranger, whose name affiant has learned is Joseph Upshire, came up to Wallbaum’s house and asked to stay all night; that Frank Mclntire replied ‘he did not know that he could,’ as the owner of the place was out with stock at Cain Springs; that he, said Upshire, replied ‘ he had no grub with him, and if he could stay he would pay whatever the bill was;’ that he thereupon unsaddled his horse and stayed all night, Frank Mclntire having told two squaws, who were at the place, to prepare his supper; that the said Upshire will further prove that on the said night of December 13 he saw the said Mclntire take two rosettes from Wallbaum’s blind-bridle and put them on a riding bridle which Mclntire claimed to be his own; that the said Upshire left Wallbaum’s shortly after sunrise, but before starting he asked Mclntire what his bill was; that Mclntire replied that it was two dollars; that Upshire then gave Mclntire five dollars in gold, and Mclntire returned him three dollars in silver in change; that Mclntire then told Upshire he would probably see Wallbaum at Coyote Springs, Up-shire having intimated that he was traveling in that direction; that the said Upshire will prove that all this conversation and all the arrangements about stopping all night, and about the supper and the payment of the two dollars for said supper, and the handing the five dollars to Mclntire, and the return of the three dollars in change, took place between Mclntire and said Joseph Upshire, and that affiant had no act, part, or participation in said conversation, or anything that related to the aforesaid acts that occurred between the said Upshire and Mclntire, and that the entire *376statements of Mclntire in relation to wliat he states as having occurred between the said Upshire and this affiant is entirely untrue and without the slightest foundation in fact.”
The record shows that, when this affidavit was presented, the attorneys for the state “admitted that if the witness Upshire were present he Avould testify to the facts set forth in the affidavit, and that such fads are true.”
With this admission, it is apparent that the defendant, McLane, had the full benefit of all the facts set forth in his affidavit. In considering his case the jury, were bound (notwithstanding the testimony of the defendant, McIntire, in his own behalf to the contrary) to accept the testimony that Upshire would have given, if present, as absolutely true. What more could the defendant, McLane, ask ? It is easy to see that a qualified admission, that if a Avitness were present he would swear to certain facts, is not calculated to have the same force and effect as if a credible and respectable Avitness were present in court swearing to the same state of facts. (See State v. Salge, 2 Nev. 325; People v. Diaz, 6 Cal. 249; State v. Brette, 6 La. An. 653; People v. Vermilyea, 7 Cow. 369.)
But it is difficult, if not impossible, to determine how a defendant could be prejudiced in a case where the admission is absolute and unequivocal that the testimony which the absent witness would give is true. In the latter case the defendant could read his affidavit as evidence — as the defendant, McLane, did in the present case — and the state would be precluded from offering any testimony tending to affect the credit or to contradict or impeach the testimony of the absent witness. (Willis v. The People, 1 Scam. 402; Dominges v. The State, 7 S. & M. 478; Browning v. The State, 33 Miss. 71.)
“Under the admission,” to quote the language of the court in the case last cited, “the prisoner was entitled to treat the facts stated in his affidavit as absolutely true, according to their force and effect, as stated, and supposing that he stated the facts not more nor less strongly than the truth, it is not to be presumed that he was prejudiced by their admission.” (See also, Pannell v. State, 29 Ga. 681; *377State v. Mooney, 10 Iowa, 506; Carmon v. State, 18 Ind. 451.)
The fact that the issue in this state “was not exclusively between the state and the defendant;” that “each defendant -was prosecting the other,” did not deprive the defendant,. McLane, of the benefit of the unqualified admission made by the state.
If the witness Upshire had been present at the trial, his testimony would, as McLane claimed, have contradicted the testimony of the defendant, McIntire, and it Avould then have been the province of the jury to decide whether the witness Upshire, or the defendant, Mclntire, had sworn falsely. The defendant, McLane, could only have asked, in that case, that the jury should believe the testimony of Upshire to be true. The admission was certainly as favorable to the defendant as if the witness had been personally present. It was more favorable. It deprived the attorneys for the state from arguing against the credibility of the witness'Upshire, or the truth of his testimony, as they might have done if the witness had been present. It is begging the real question at issue to say that, under the peculiar circumstances of this case, “ the state could not admit away McIntire’s defense,” nor deprive him “of the privilege of testifying in his own behalf.”
Of course the state could not, as against the objection of the defendant, McIntire, admit that Upshire’s testimony was absolutely true; for, as before stated, that would prove that McIntire’s statement, relative to the facts that Upshire would testify to, was false.
The defendant, McIntire, had the unquestioned legal right to have that question submitted to the jury. But in this connection it must be remembered that it is one of the peculiar circumstances of this case that he made no objection to the admission of the truth of McLane’s affidavit for continuance, nor to the reading of said affidavit as evidence. He is not, therefore, in a position to complain. The defendant, McLane, can not take advantage of any error that was solely prejudicial to the defendant, Mclntire.
It may be that, by the admission, the defendant, McIntire, *378was deprived of the full force of the instructions given to the jury, to the effect that it was their duty to weigh and. consider the testimony of each defendant fairly and impartially, and give to each the benefit of it so far as it appeared to be credible. This only furnishes an additional reason why the defendant, McIntire, would have been entitled to a new trial if he had made his objections in the lower court at the proper time. It has no force whatever as applied to the case of the defendant, McLane. There is nothing in the admission made by the state, nor in the instructions, that deprived the defendant, McLane, of‘ any benefit that he was entitled to.
The admission was made in such a manner as required the jury, “ in all their deliberations,” to consider the facts set forth in McLane’s affidavit as “established beyond all controversy.” It is a self-evident proposition that it might have prejudiced the defendant, McIntire, but it could not possibly have prejudiced the defendant, McLane. If either of the defendants is entitled to a new trial, upon this ground, it is the defendant, McIntire, not McLane.
From the state of the facts as elicited at the trial, it clearly appears that the defendants were entitled to a separate trial, if a sufficient showing had been made, and a severance asked for at the proper time.
It is, however, well settled, that if a defendant fails to make a motion or an objection, when required by the rules of practice or the principles of the law, he can not thereafter take any advantage of his own omission of duty in that respect.
In my opinion, the action of the court in refusing to grant the defendant, McLane, a separate trial, is sustainable, upon the ground that the motion was made too late. The motion should have been made before the court commenced to impanel the jury.
I concur in the conclusions reached by the court upon all of the other points.
It necessarily follows from the view's I have expressed, that, in my opinion, the judgment of the district court should be affirmed against both defendants.