Dissenting Opinion.
DeBlanc, J.There 'are circumstances under which the sworn application of a prisoner for a continuance may and should be traversed, on motion of the State Attorney and with the leave of the court. Otherwise, and particularly in the country parishes, where the jury sessions *300are held at long intervals, the administration of justice in criminal matters, shall be — if not entirely defeated — at least indefinitely checked and' suspended by an unbroken succession of unassailable affidavits.
If though manifestly false, the sworn statement of a murderer, a. thief or a perjurer must be taken as true, at what term of any court, could they or either of them be tried, unless by their consent? Would they not, at every term, -unhesitatingly swear to any fact necessary to postpone and avoid a dreaded trial — to the materiality of the evidence of a parent, a brother, a friend, an accomplice — the cause of whose absence, on the day fixed for the trial, ceases to be a secret to any one,, as soon as the affidavit is read.
Which of the prisoner’s rights could be either curtailed or impaired by allowing the prosecutor to traverse his suspected declaration? Would it deprive him of compulsory process for obtaining witnesses in his favor, or of the privilege of meeting those witnesses face to face ? If, to entitle him to the craved continuance, there is a just, a reasonable, a real cause, the traverse would establish the existence of that cause: if not, the course of justice would not be impeded by a mere technicality, destructive of the interest of the State and of society, useless to those who swear to what is true, useful to those alone who add a perjury to the crime, for the alleged commission of which they are prosecuted.
To test the propriety and justice of a rule which has so long been adhered to, let us suppose an extreme case. — for instance, that a prisoner has sworn that Frank is one of his material witnesses — that he was cited, but could not be found — that he is absent from the parish, &c.— and that, on hearing the affidavit read, the clerk and the sheriff were to rise in front of the bench, and inform the court, the first — that no witness of that name was cited — the other, that the unnotified and desired witness is in court, leaning on the prisoner’s box; would the judge answer I am bound, by an inflexible rule, to believe the affidavit, and to disbelieve the clerk, the sheriff, the record and my own eyes ? Assuredly not.
In regard to applications for a continuance, far from being restricted, the discretion of the judge should be as enlarged as it can properly be, without affecting the constitutional privileges of the prisoner, or reducing those liberal guarantees which should surround his trial. Unless the too rigid rule which prevails in the other States of the Union be slightly bent, in so far only as it impedes the legitimate action of our courts, and so modified as not to embarrass the execution of our laws, the inevitable affidavit shall ever be held up as a shield between the criminal and the sentence, the crime and the penalty, and — beyond the limits of this city — our courts shall be almost powerless to even try, much less to' check or punish any violation of our laws.
For this reason, I respectfully dissent from the opinion of my associates.