(dissenting-). I fully concur in what is said by SMITH, P. J., but I think there are other reasons than those set out in his dissenting opinion why the judgment of conviction should be reversed and a new trial granted. It appears from- tire record that the defendant had a preliminary examination and was bound over to the circuit court some time during the month of March, 1912. He employe i a practicing attorney as his counsel and left the matter of conducting his defense entirely in the hands of s-uch counsel. The information upon which defendant was tried was filed on the 7th day of May, 1912. On the following day he pleaded- not guilty to this information, and without being allowed any time at all for the preparation of -his- -defense, was forced into trial immmediately upon entering- his plea. The record shows conclusively -that there were -a number of -material witnesses whose -presence and testimony was necessary in the defendant’s behalf. Some of these witnesses lived’ at such a distance from- the •place of trial -that they could not possibly h-ave been subpoenaed, upon subpcenaes issued after the filing -of the information, and have reached -the place of trial in- time to give their testimony. The defendant had no notice that an information would -be filed against him on. the 7th -day of May, nor even that an information would he filed -against him at all — much -less- had he any knowledge of the date upon which the -case would be moved for trial, even taking it f-or granted that an information' would be filed. Moreover, it .appears that the attorney whom- he employed to conduct his case made no preparation whatever for the trial. This, in itself, is no evidence of negligence on the part of defendant nor his counsel, or that there was any lack of diligence- on the part of either. There is no presumption -that air information will be filed -against a -person although he has been accused of a *254crime and has been bound o-ver to- the circuit court to answer therefor, and, until ah information has been filed, -such -person is not bound to go to the expense of subpoenaing' witnesses- to testify on his behalf. A person -charged' with a -crime is entitled to a ■sufficient 'length of time, after -the information has been fi-led and before the date of his trial, to subpoena his witnesses and make necessary preparations for trial. But, in addition- to this, I think the defendant’s showing for a continuance was amply sufficient to entitle hi-nn to such continuance. If the absent witness would have testified to the facts set out in defendant’s affidavit, -and, for the purpose of the motion, it must be conclusively presumed that he’would have so testified, then his testimony would have proved conclusively that -the -defendant was not guilty of the offense charged in the information. Whether or not his testimony -would have been the truth was a m-atter to be -passed upon- -by the jury, and one upon which .the court h-a-d no- -right to entertain an opinion.
It i-s -claimed in the -argument by the respondent, and so-stated in the majority opinion1, that -there are such discrepancies between the defendant’s affidavit .for continuance and his testimony given on the -stand' that they indicate that the affiffid'avit was-untrue. This conclusion is not warranted by the facts. It is true that there were some cliscrepencies but they were n-o greater t-han the discrepencies in the testimony of the witnesses- for the prosecution, and they were such discrepencies as are susceptible of -explanation, had they been called to the defendant’s notice when -he was on the witness stand. The affidavit contained all the requisites for a continuance under the rule stated in State v. Wilcox, cited in the majority -opinion. I-t not only showed that the testimony of the absent witness was material, but that it would be decisive in- the case. The defendant had used all the -diligence to procure his attendance that could be used up to the time the witness left the state. Defendant -bad seen him, talked over the matter of his testimony with him, and the witness had promised, faithfully, to- -be in attendance -at the trial. It is difficult to see what more, in the course of cl-ue diligence, the defendant could have done; unless the co-ur-t intends to lay down the rule -that a man who- has been bound over to answer for a public -offense must proceed to- subpoena his witnesses and get *255ready for trial 'before an information has been tiled and before he knows, or has any way of knowing, when their attendance in court will be required. The defendant stated in his affidavit, postively, that, if the -continuance were granted, the witness would return and be -present and give his testimony at the next term of -court. This, -taken in -connection with the witness’ promise -to attend- and give his testimony, is as near to a certainty- in regard to the future conduct of any -one as it is possible to- get. There is no- su-ch thing as giving absolute assurance o-f the future conduct of any one; he -may change his mind, his return may be prevented by circumstances over which -he has no control, and he h-a-s no certainty that he will not be overtaken by death before the -date set for such return. Neither were the statements of the defendant relative to the return of the witness matters of -c-o-nclusio-n unaccompanied by any facts that would have justified the trial co-urt in believing that' it was reasonably certain that the witness would be present at the next term of court. The witness had given -defendant his promise to be present, and defendant -had -n-o intimation tli at he intended to leave the -state, nor -had he any reason for taking the witness’ deposition-. Moreover, the very labored argument in the majority opinion, found necessary to uphold the trial court in denying the continuance, is, of itself, very convincing that the court" erred in such denial. But, even- though the continuance were properly denied, the court should at least have postponed the trial long enough to have given the defendant time to subpoena such witnesses as were within the jurisdiction of the court, and, because of the failure of the court to give him such opportunity, the court deprived the defendant of his constitutional right to a fair -and impartial trial.
But if we were to concede that the defendant did have a fair trial, I think the judgment ought to be reversed and a new trial granted, because of the newly discovered evidence set out in the affidavits presented on the motion. The 'defendant was a farmer in Gregory count}- having- a farm about four miles south of Herrick, in that county — but was living on a government homestead in the northwest corner of Tripp -county and was therefore a. resident of Tripp county. The complaining witness and one Daniel W-ier (-a witness for the prosecution) lived in the immediate vicinity with defendant. The cattle that were the *256subject of. the larceny were at home on the 21st day of February, 1.912, but were missed by the owner that night. He -made diligent search for them during the next few. days and', on the 1st day of March, found them- in the possession of one John Giedd, about two miles northwest of Naper, in the state of Nebraska, and at a distance of about 100 miles from home. It 'was on Sunday, the 25th of February, at the place of one Ed'. Johnson, about nine miles southeast of home, that the complaining witness found the first trace of his cattle. He learned there that a man, with, some cattle and a wagon, had passed by on the evening' of Friday the 23d. He testified that he found the tracks and recognized them as the tracks of his cattle because they were the tracks of three large and three small animals, and the wagon track accompanying them was the track of defendant’s wagon because it had been made by a wagon with wide tires. Defendant’s wagon had wide tires. B£e followed the track of this wagon and these cattle for a distance of 24 or 25 miles to a place about 9 males north of Colame, which, according to his testimony, would have been about thirty-three or thirty-four miles from home, and from1 the defendant’s place. From' there he continued his search in the same general direction! and by inquiry until he located, his cattle, as above stated, in the possession of the said John Giedd, who testified that the cattle, were brought to- his place and delivered to-him by the defendant.
The witness Daniel Wier testified that tire -defendant -came to his p-l-ace on the morning of Friday, the 23d day "of February. Defendant told the witness that -he was going to- Herrick and expected to be gone five -or six days, and made arrangements with the witness to take care of -the defendant’s stock while he (the defendant) was gone. Defendant told witness that he was going to go home -and load up a couple of hogs and take them to town. Defendant left -the witness’ place about 11 o’clock, but -the witness saw him again about 4 o’clock in the afternoon of the same day going across the prairie. The defendant' testified that, -after returning home from the witness Wieris, he loaded up' a couple of hogs and took them to Witten, where he tried to sell them to- a butcher, by the name of Short, but, being -unable to agree on a price, no- sale was affected, and he continued on to Dallas, which place he reached late at night, and, in the morning, disposed of his *257■hogs, .transacted some other business, and, that afternoon, continued on to Burke. This 'testimony is corroborated by the affidavit of said Short, used 'by defendant on his motion for a new trial, from which it appears that defendant -was in Witten with hogs on the afternoon of the 23d, and, judging from the distance he was obliged to drive to reach there) he must have been in Wit-ten at about the time the cattle, answering the description of the stolen ones, were driven past the farm of the said Johnson. This same Johnson was a witness for the prosecution in the case and testified that some catttle were driven past his place just after dark, on the evening of the 23d, and that the man driving them had a team and wagon, but he saw no hogs in the wagon; nor did he know whether it was a four-horse team or not. Defendant’s testimony (that he was in Dallas, during the forenoon of February 24th) is corroborated by a number of affidavits that were used on the motion for a new trial; among others, that of the postmaster, whose records showed that he sold the defendant a money order that morning, and the affidavit of the butcher who-bought the hogs. It is conceded that the defendant did not take the stolen cattle with him from home on the 23d of February, and that he did not have them with him in Witten on the afternoon of that day.
The majority opinion is based upon the assumption — although there is not a suggestion of evidence to' that effect in the entire record — 'that the defendant took these cattle some time during the 21st or 22d of February and cached them at or near the farm of the witness Johnson; that he then returned home, and-, on the afternoon of -the 23d, went to Witten with his load of hogs, but that his trip to Witten was only a blind; and that, from there, he drove to the place where he had cached the cattle, from which place it was only 30-odd miles to Dallas, and that: “It would not be impossible for him, especially when trying to- throw people off their guard, to have driven from Johnson’s .place to Dallas, before morning. There is no evidence of any other person or upon the trial or in the affidavits offered to show that he was seen at Dallas before 7 o’clock in the morning, full 12 hours from' the time he passed Johnson’s- place. In a new country, the roads are undoubtedly largely across -country, and a diagonal road from Johnson’s *258to Dallas would be some 30 -to 32 miles. This he could have made 'during' the night.”
This, too, is 'based entirely upon assumption. There is no ■evidence to show whether the distance from Johnson’s place to Dallas was 32 miles or 40 miles, and the only evidence tending to show what time the defendant reached Dallas shows that he reached there between 2 and 3 o’clock in the morning. Neither is there any evidence to show that the roads run “across country and diagonal,” or that the distance assumed could have been covered by the defendant, with loose cattle, in 12 hours; and it would be impossible to make any jury, of 12 sane men who knew anything about cattle, believe that any man could drive a four-horse team and wagon and six head of loose cattle across an open country a 'distance of more than 30 miles, in the dark, in that length of time.
Again, there is not one scintilla of evidence in the record that iu any wise connects the defendant with the stolen cattle in Tripp oounty. The only time he is ever claimed to have been seen with, or in the same neighborhood with, -these cattle is in the vicinity of Burke, in Gregory county, and- a distance of 12 or 15 miles from the boundary line of Tripp county. This fact, in connection with the other conceded facts, shows that he could not have been connected with the larceny -of these cattle unless he had an accomplice who started with them a day or two ahead of defendant and was driving them while defendant was at Witten and Dallas and on the roia-d with his. hogs between these two places and his h-omestead in Tripp county. But the record nowhere contains any -suggestion of an accomplice.
It may 'be true, as stated in the majority opinion, -that the -defendant did not explain -to his -counsel the facts and circumstances set out in the affidavits used on the motion for a new -trial; neither does it appear that his -counsel who had charge of his case at that -time ever -took any steps whatever to learn the facts in th-e case -or -made -any -preparation whatever for the defense, and it i-s certain that no- time was allowed by the court, after the filing of the information, for his- counsel to .ascertain the facts -or to make any .preparation for the trial. But, whether his counsel was negligent in the matter or not, it was none -the less the duty of the court 'to see that the 'defendant was given a constitutional trial, *259and this -he did not have. I -think the -court committed reversible error, both in -denying- the, -continuance and the defendant’s application for a new trial.