dissenting-.
I am unable to concur in the opinion of the court in this case.
How the course pursued by the trial court with reference to the motions made for a countinuance and to lay the case over to a later day of the term, in order that counsel might confer with the prisoner and prepare for his defense, made in the utmost good faith, as counsel assured the court, can be condemned as it is in the opinion, and yet it be held that the denial of these motions was harmless error, is beyond my comprehension.
The offense with which the prisoner was charged was committed on April 24, 1905. The prisoner was arrested in Blue-field, W. Va., the next day, and voluntarily returned to Giles county, where he was lodged in jail to await indictment by the grand jury; he haying waived a preliminary examination before a justice. The regular grand jury terms of the court of Giles county are February and September, and prisoner did not know and had no reason for knowing that a special grand jury would be impaneled to consider his case, and had therefore made no preparation for the trial, when, on the 8th day of May, 1905, a special grand jury was impaneled and brought in an indictment against him for murder in the first degree. The prisoner being *867unprepared for trial, without counsel to conduct his defense, and without means to employ counsel, the court appointed two members of the bar to defend him, and the trial was immediately gone into.
Even after the refusal of the continuance asked by the prisoner, to which he was entitled, as the opinion of the court admits, and the request of counsel that the case be laid over till a later day in the term that they might properly prepare the prisoner’s defense, was denied, the trial court saying, that “it would award process for the witnesses and permit them to testify provided they arrived before the trial was concluded; otherwise this-evidence would be taken and considered upon a motion to set aside the verdictand after the evidence for the Commonwealth had gone to the jury, counsel for the prisoner again asked that the case be passed until the summons addressed to the sheriff of Buchanan county on the first' day of the term had been returned, and this request was also denied. - ■ - ,
It will be observed that the opinion of the court, after discussing the rights of one accused of crime which are to be safeguarded, and stating the course pursued at the trial of the prisoner, says: “Such pratice, we conceive, violates both the letter and spirit of the Constitutionyet it is held that the several errors committed by the court below were harmless, because it appears “both by the return upon the process and the testi-many of the deputy sheriff of Buchanan county, and the sheriff of Dickenson county, that no such persons lived in either county, or could be found.there, and as the sole ground assigned for delay was the absence of these alleged witnesses, the prisoner could not have been prejudiced by the ruling of the court in the particulars mentioned.”
This leaves out of view the fact that the prisoner had been affored no opportunity whatever to be prepared to refute the *868statements made by tbe deputy sheriff of Buchanan, county and the sheriff of Dickenson county, after he had been tried and convicted, and assumes, to the prejudice of the prisoner plainly, '■that these officers knew every person who could be found in their ■Respective counties, although they did not profess to have such knowledge. Was it to be expected, under these circumstances, that the prisoner would be prepared to refute the statement of these officers ? Surely not. Who knows but that, by reason of these persons whom prisoner desired as witnesses being at or near the deceased’s house when the alleged crime was committed, and the excitement in the neighborhood over the occurrence, they were in hiding in the apprehension that they might be considered as particeps criminis ? The widow and daughter of the deceased, it will .be observed, qualify materially their statement ’ that “there were no such witnesses on the outside of the house, as claimed by the defendant,” when they' add, “if there were they did not know it.”
Of course, whenever it is made to appear that the application for a continuance is for the mere purpose of evading, or to delay a trial, the continuance should be denied. In Hewitt's Case, cited in the opinion of the court, the indictment for assault and battery was found April 25, 1863, the accused was arrested September 23, 1863, and admitted to bail. There was no term of the court of Bedford county till April, 1864, when the case was called for trial. The accused was not present when his counsel made a motion for a continuance, based on the affidavit of the accused as to the materiality of a witness who had been summoned but was absent, made two days before, and on the morning that the motion was made the accused was at Liberty (the county seat), and left going west, not saying where he was going. Held, that the trial court did not err in its opinion, “that *869the defendant was attempting to evade a trial by absenting himself from court, so as to prevent a personal examination in open court on his motion for a continuance.”
That case and the case before us are wholly dissimilar.
The cases cited in the opinion of the court in this case in support of the conclusion that the prisoner was not prejudiced by the rulings of the trial court complained of by the prisoner are all civil cases, in which the court was dealing only with the question, whether or not the party complaining was prejudiced by instructions given or refused, and not with the question presented in this case.
The case before us involves human life, and the question to be determined is whether or not the citizen condemned to suffer the. extreme penalty of the law has had that fair and impartial trial guaranteed to him by the Constitution of the State. In the consideration of that question, the enormity of the crime charged, and the evidence in support of the charge, are to be left out of view, for however grave the charge, or incriminating the evidence in support of it or how the accused’s station in life may be, he was nevertheless entitled to the trial the mandate of the Constitution of the State requires in all cases involving the life or liberty of the citizen.
If, however, we are to look to the evidence for the prosecution in determining the question, whether or not the prisoner in this case has had such a trial — which, I repeat, we have no right to do — a horrible murder has been committed 'by him, and if, upon such a trial, he had been found guilty of the crime charged against him, he would rightly share the fate that now awaits him; but not without such a trial, as appears plain to me. Although the Commonwealth was, in the acquisition and submission of its evidence, unhampered, it fails to show malice on the part of the prisoner towards his victim, or that there was any premeditation in the act of shooting him; while the theory of *870tbe prisoner’s defense was, tbat tbe shooting was accidental, and be, wbo alone testified in bis bebalf, so testified. Tbe record does not, in my opinion, justify tbe statement in tbe opinion of tbe court, tbat tbe prisoner invaded tbe borne of tbe deceased, etc. On tbe contrary, it appears tbat be bad been there tbat very evening of tbe shooting as tbe guest of tbe deceased, on tbe most friendly terms, and bad been absent from tbe bouse but a very short while when be returned to look for something be claimed to have left or missed after be went away.
Under tbe circumstances surrounding tbe trial of tbe pris-onér, can it be safely said what tbe verdict of tbe jury would have been bad tbe trial court done what clearly it should, at least, have done, postponed tbe trial for a reasonable time to afford tbe prisoner an opportunity to prepare for bis defense ? I think not.
Far better and safer, in such a case, as it seems to me, to award tbe prisoner a new trial, than to carry tbe doctrine of harmless error to tbe extent of establishing tbe dangerous precedent tbat a trial court may impose upon one accused of a crime a hardship and a wrong, and then put him upon terms of extricating himself, in tbe event tbe jury finds him guilty, without affording him an opportunity to do so, and bind him to tbe results by subsequent testimony taken and considered by tbe court, which tbe victim of the practice could not, under tbe circumstances, by any possibility have refuted.
In stating my views of this case, I have done so with tbe utmost deference to tbe views of tbe majority of tbe court, and of tbe learned and conscientious judge wbo presided at tbe trial in tbe Circuit Court; but, believing as I do tbat a very dangerous precedent is to be established in tbe refusal of a new trial to tbe prisoner, I deemed it necessary to state my reasons for dissenting.
Affirmed.