Defendant appeals from a judgment adjudging him guilty of a felony; also from an -order denying a new trial.
[1] When the case was called for trial the state gave notice of a desire to indorse upon the information, as the name of a witness for the state, a party whose name had not theretofore appeared thereon. The state advised appellant of what it expected such witness would swear to. Appellant, claiming surprise, asked for a continuance of two weeks in which to- seek evidence to-meet the testimony of such new witness. After considering- affidavits submitted on b-oth sides, the court announced that, if appellant desired, it would grant a continuance of four or five day-s. Appellant declined this offer, and the cause proceeded to trial. Appellant assigns error. We have considered the facts shown, and are of the opinion that there was no abuse of discre*569tion. Even though appellant feared that the time offered was too short, he should have accepted the offer and then used his best efforts to procure the desired evidence. He would- -then- have been in a good position to ask for further time if he found he needed it.
[2] The state called a witness whose name did not appear on the information. It was undisputed that this person was a witness for the state upon a former trial of this case, but it did not appear that he was known to- the state’s attorney at the time of filing the information. Appellant could not have been taken by surprise. The. court committed no- error in allowing such witness to testify. State vs. Matejousky, 22 S. D. 30, 115 N. W. 96.
[3] Appellant took the witness stand. He assigns as error the rulings of the trial court by which the -state, on cross-examination, was allowed to question him in relation to his conduct after the date of the alleged crime. We are of the opinion that the trial court did- not allow the examination to g-o- Beyond the -bounds of what' was reasonable or to include anything that would not tend .to aid the jury in reaching a true verdict.
[4] Appellant assigns as error the giving of a certain instruction. The state contends that such instruction was not timely excepted to, and that therefore this court has no jurisdiction to consider same. It appears that no exception was taken at the trial. Several months thereafter counsel then representing the state entered into a written stipulation in which, among other things, it was stipulated that an exception to- such instruction might be settled as of the date of -the instruction. On the date of such stipulation the trial court allowed an exception to such instruction. Appellant contends that such stipulation binds the state. When appellant failed to interpose an exception at the proper time neither counsel for the state nor the trial court could grant him any relief except such relief, as the court could have granted under the provisions of section 151, C. C. P. But we will assume that the trial court allowed -the exception because of some showing of excusable neglect. Under the holding of this court in State v. Pock, 35 S. D. 393, 152 N. W. 507, there was no error in the instruction.
Our lawmakers, fearing lest the innocent might be convicted of crime, and' possibly -being of the opinion that it is better for *570society that many guilty escape rather than that even one innocent person suffer punishment, have, by statutory enactments, builded a wall, which, though intended for the protection of the innocent, does, in actual use, all too often serve as a barrier preventing the hand of justice from reaching the guilty. The blocks of which this wall are buildedi ’have well been termed the “privileges of crime.” While our courts must not, through statutory construction or otherwise, destroy a single one of these blocks, yet it behooves them, lest our criminal procedure become a farce and society be left without legal protection, thus inviting mob law, to see to' it that they do not, to the slightest extent, raise this statutory barrier. In this case the trial court went no farther than to see that such barrier was not raised.
The judgment and order appealed from are affirmed.