Defendant was convicted of the unlawful possession of intoxicating liquor in a public place. Pie appeals from the judgment and from an order denying a new trial.
Before the trial began he moved for a continuance of the trial because of the absence of three witnesses. He filed an affidavit giving the names of the witnesses, their residence as Geddes, S. D., and setting forth, in substance, what their testimony would be. Thereupon the state’s attorney admitted in open court that said witnesses, if present, would testify to the facts set forth in the defendant’s affidavit, and by reason thereof the trial court denied the motion for continuance. Such ruling constituted error. Rule 17 of Trial Court’s Rules (40 S'. D: prelim, p. 23), which provides for such procedure in civil cases, has no application to criminal cases. Trial Court Rule 45. In State v. Wilcox, 114 N. W. 687, 21 S. D. 532, this court said:
“Where, however, the accused shows himself entitled to a continuance and the absent witness is within the state, or, being *5a resident of the state, it is reasonably certain that his presence can be compelled at the time to which the trial would be postponed, it is clearly erroneous to permit the state to avoid the- continuance by merely admitting that the witness, if present, would testify as alleged in the affidavit.”
But the Attorney General says that, in view of the facts in this case, the ruling was not prejudicial, even though erroneous. We will not inquire into that. Even though, as stated by our colleague, the affidavit for continuance was false, yet having made a solemn, stipulation in open court that the witnesses would so testify, the state’s attorney could not be permitted to repudiate that stipulation after the trial had begun. State v. Roark, 23 Kan. 147; Briscoe v. Kinealy, 4'Mo. App. 595. If the affidavit was false, a charge for perjury would lie against the affiant.
In another portion of the opinion in State v. Wilcox, supra, this court said:
“Though continuances in criminal, as well as in civil actions, are commonly declared to be within the discretion of the trial court, subject to review only for abuse, where one accused of crime shows himself entitled to a continuance on account of an absent witness, an order permitting the state to avoid such continuance by admitting what the absent witness’ testimony would be if present may involve something more than the exercise of discretion, namely, the absolute, substantial, constitutional- right to have compulsory process served for obtaining witnesses in his behalf.’ Const. S. D. art. 6 § 7. Such a one is entitled as a matter of right to the presence of his witnesses or every advantage of their presence, if their presence be procurable, and this necessarily includes adequate means to secure their presence or the advantages which would flow therefrom. Hence he is entitled, under reasonable regulations, to process for witnesses anywhere within the state, and to reasonable opportunity to invoke the use of such process.”
See, also, State v. Finder, 81 N. W. 959, 12 S. D. 423; State v. Thompson, 180 N. W. 73, 43 S. D. 425.
For the violation of appellant’s substantial right above discussed the judgment and order appealed from must be reversed.
It will be so ordered.