Dissenting.—On one of the points decided in the foregoing opinion, I do not concur, and, therefore, I will now discuss the correctness of the ruling which compelled the defendant to go to trial, notwithstanding his affidavit and application for a continuance. This discussion will, of course, involve the constitutionality of section 1886, which is as follows:
“ Section 1886. Testimony of absent witness may be admitted—effect of. If in any such case the adverse party will consent that on the trial the facts set out in the application or affidavit, as the facts which the party asking the continuance expects to prove by the absent witness, shall be taken as and for the testimony of such witness, the trial shall not be postponed for that cause ; but the facts thus set out shall be read on the trial and shall be taken and received by the court or jury trying the cause, as the testi*194mony of the absent witness; but such facts may be contradicted by other evidence, and the general reputation of such witness may be impeached as in the case of other witnesses who testify orally or by deposition.”
This section has been passed upon heretofore, but its constitutionality was not even alluded to in the case of State v. Miller, 67 Mo. 604; nor in that of State v. Hatfield, 72 Mo. 518; though it seems to have been taken for granted. But the constitutionality of this section was evidently questioned in the case of State v. Underwood, 75 Mo. 230, and the former cases were very doubtingly and with extreme reluctance followed. The judgment in that ease, however, was reversed solely because the trial court, in its instructions, took an unwarrantable distinction between the testimony of witnesses personally present, and the statutory testimony of those who were absent. The latest adjudication on the subject is the State v. Hickman, 75 Mo. 416. In that case, though section 22 of article 2 of the constitution is quoted, the constitutionality of section 1886 is not discussed.
It is impossible to overestimate the importance of the point thus presented, since, upon its proper determination, may depend the life or liberty of every citizen against whom is brought a criminal accusation. In discussing a topic of such importance, all questions of expediency, all questions of cost, all questions of convenience, all questions of a rapid disposition of causes on the criminal calendar, are not entitled to a moment’s serious consideration. When compared with and weighed against a great fundamental right, such minor questions as above noted resemble indeed the “ small dust of the balance.”
The only point to be looked to, therefore, is, what does section 22 of article 2 of that portion of our constitution, commonly called the Bill of Rights, mean when it says that “ in ' criminal prosecutions the accused shall have process * , . to compel the attendance of witnesses in his behalf?” Mr. Justice Story has said in reference to the *195proper method to be pursued in construing constitutions :
“ They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understanding. The people make them, the people adopt them; the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in' them any recondite meaning or any extraordinary gloss.” Story Const., § 451. In short, that the words of such an instrument are to be taken and received in their ordinary acceptation and import, and no hidden, abstruse, specious, plausible, out-of-the-way meaning is admissible. And that learned author and eminent jurist elsewhere says that “the first and fundamental rule in the interpretation of all instruments, is to construe them according to the sense of the terms and the intention of the parties,” and that “ words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use.” lb., § 400.
It would only be the assertion of an acknowledged fact to say of the words under discussion, that “ in their usual and most known signification,” that in “ their general and popular use ” they mean, and have always been construed to mean, the right of the accused, in his own behalf, to compel the personal presence of his witnesses at the time when and the place where the “ criminal prosecution ” is in progress. Eor what purpose are those witnesses thus compelled personally to attend at the time and place of such “ criminal prosecution ?” Only one answer can be given to this question, an answer derived from contemporary construction and habitual practice, ever since the constitutional provisions were adopted, and that is, that those witnesses may testify orally and in open court touching the innocence or guilt of the accused.
The framers of our American constitutions were well acquainted with the history of criminal trials in the mother country. They were many of them profound and learned’ *196lawyers, and they knew by heart that dark and bloody history. They knew that in criminal trials in England the accused was not allowed, in capital cases, and all felonies were capital, to have compulsory process for his witnesses; to have them, when present, even so much as sworn; they knew that Lord Coke had vainly denounced such practices as contrary to magna charta, tyrannical and unjust, and had declared that a trial “according to the law of the land” meant and included the right of the accused to have witnesses sworn for him. They knew that the English judges absolutely refused to permit a party accused in criminal cases to exculpate himself by the testimony of any witness. They knew that even those judges, the subservient tools of the British crown, had at last grown so heartily ashamed of such a practice,'that they gradually introduced the practice of examining witnesses for the accused, but not upon oath. The consequence of which was, that the jury gave less credit to this latter evidence than to that produced by the government. They knew of those gloomy transgressions of natural and positive law that rendered the English courts, “ in eases of treason, little better than caverns of murderers.” They knew that such trials proceeded with “ the want of all evidence except written, perhaps unattested examinations or confessions.” Hallam Const. Hist., 138. They knew that the criminal jurisprudence of England was “ crimsoned with the blood of persons who were condemned to death, not only against law, hut against the clearest rules of evidence.” 2 Story Const., § 1792. Knowing all this, the framers of our State constitution were not content to say, as they do in section 30 of article 2 of our Bill of Rights: “ That no person shall be deprived of life, liberty or property, without due process of law,” but they went further and ordained section 22, already referred to, declaring thereby in the most positive and emphatic terms:
“ In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the *197nature and cause of the accusation; to meet the toitnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county.”
Of a similar provision in the amendment to the constitution of the United States (article 6, amendments,) Mr. Justice Story remarks: “ The wisdom of these provisions is, therefore, manifest, since they make matters of constitutional right what the common law had left in a most imperfect and questionable state. The rights to have witnesses sworn and counsel employed for the prisoner, are scarcely less important privileges than the right of a trial by jury. The omission of them in the constitution is a matter of surprise, and their present incorporation is a matter of congratulation among all the friends of rational liberty.” 2 Story Const., § 1794.
Mr. Justice Cooley, when treating of the force and effect of that portion of a written constitution, termed a Bill of Rights, says: “Other clauses are sometimes added declaratory of the principles of morality and virtue; and it is also sometimes expressly declared, what indeed is implied without the declaration, that everything in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void. * * While they continue in force they are to remain absolute and unchangeable rules of action and decision.” Cooley Const. Lira., 46.
In the light, then, of the obvious meaning of the words employed in the section of the constitution under discussion, in the light of their usual signification, in the light of the contemporaneous .construction of those words, in the light of the habitual practice in the courts, in the light of the authorities I have quoted, not a doubt lingers in my mind that section 1886 of the statute, is in conflict with section 22, article 2, of the Bill of Rights; that those rights are “ excepted out of the general powers of the government ;” that they constitute absolute and unchangeable *198rules of action and decision, and section 1886 being contrary thereto, is of consequence void, for no one can doubt, but for this statute, the right of a party accused, whose affidavit discloses due diligence, to have the full benefit of the constitutional provisions ordained in his behalf. State v. Farrow, 74 Mo. 531. But under the operation of the statute an accused party who makes the proper showing for a continuance, is deprived of, and cut off from, his constitutional right, at the option of the prosecuting attorney, by the latter merely consenting that the allegations of the affidavit for a continuance shall be taken as and for the testimony of the absent witness. If the prosecuting attorney were required by the statutes to directly admit the truth of the allegations of the affidavit, there would be more plausibility in the view that the requirements of the constitution were fulfilled, and some of the authorities hold that such direct admission will answer. People v. Vermilyea, 7 Conn. 369; Van Meter v. People, 60 Ill. 168; People v. Diaz, 6 Cal. 248; Dowings v. State, 7 S. & M. 475; State v. Butte, 6 La. Ann. 652; Wassels v. State, 26 Ind. 30.
There were no statutory provisions, however, in the state where those cases were decided, but if it be true, as the autorities hold, that over the rights secured by the Bill of Rights no department of the government, neither executive, legislative nor judicial, has any control, and all laws contrary thereto are void, the case at bar must be regarded in the same light as if the statute under discussion had not been enacted; and if this be true, then those cases are not without bearing upon the present investigation, holding, as they do, that an admission of the allegations of the affidavit by the prosecuting attorney, such as that provided by section 1886, and which that-offieial was allowed to contradict, was altogether insufficient.
In Vermilyea’s case, supra, "Wadsworth, J., in speaking on this point, said : “ The defendants were entitled to the oral evidence, or what was equivalent, or they were entitled to nothing. Is it, then, an answer to say ‘Glen. Swift would *199so swear ?’ Is such a mode of receiving a witness’ testimony known to the law ? Should time be taken at this day to show the difference between such evidence and the oral testimony of a witness, to demonstrate the vital importance of an open and public examination before a jury? "Whore the witness speaks not only in direct language, but by his appearance, his explanations, his corrections of what may be doubtful, inconsistent or apparently untrue ? Such was the testimony to which the defendants were entitled, if to any; not evidence reflected through their affidavits; subject, besides, to have its already diminished and feeble force destroyed by adverse testimony. A witness is called. He is impeached in certain particulars. Is he not uniformly called again to correct and explain ? Is it not familiar with the whole profession that such a course is material and many times essential to the ends of justice? We all know the superior weight of a witness attending in person ; how important it is, especially in a complicated matter, that he should be on the spot to obviate seeming contradictions. There seems to me no doubt that this admission was very far from giving the defendants an equivalent for Gen. Swift’s personal testimony. Witnesses were introduced, the tendency of whose evidence was to show that he knew nothing ; that he was entirely unacquainted with the transactions in controversy. Various explanations might have been given to that evidence by Gen. Swift. I know of no rule, which, in a case like this, stops short of an absolute concession of the facts stated in the affidavits of the party.”
And in that case that of Hooker v. Rogers, 6 Cowan, 577, is spoken of approvingly, where the judgment was reversed because the witness, being unable to attend, this was held sufficient cause for putting off the trial, on the ground that “ substituting the examination of witnesses on interrogatories for their personal attendance might prejudice the defendant’s rights. He was entitled to their personal attendance.” N ow, if this be the rule in civil cases, then, a fortiori, it should be the rule in criminal cases. In *200Van Meter’s case, the supreme court of Illinois hold that the only admission which ought to be received from the prosecuting attorney was one “ admitting the statements of the affidavit to be absolutely true.” And when speaking of permitting the affidavit to be contradicted by the prosecuting attorney, remarked: “ This would take from the accused what might be of the greatest importance if his affidavit may be contradicted—the right to have his witnesses seen and heard by the jury.”
Eor these reasons, already stated, and others presently given, I am of the opinion that the better view of this subject is that taken by the supreme court of Tennessee, where it is held that even an unqualified admission of the truth of the facts set forth in the affidavit, will not answer the demand of the constitution. Ruse, J., remarking: “In the case referred to in 10 Yerg. we say that the practical operation of such an arrangement upon the rights and fate of the defendant must often, if not always, be perfectly illusory. We now go further than the intimation contained m that ease, and say that where the admission of the counsel for the State is not merely that the witness would testify as stated, but that the facts are true as set forth in the affidavit, such admission should not preclude the defendant, in a criminal ease, from his constitutional right of having the witnesses personally present at the trial. It were needless to urge upon practical and intelligent minds the difference in point of legitimate effect between the personal presence of candid, respectable witnesses, who testify to facts in detail, ramification and bearing, and the general admission of these by an attorney-general, little impressing perhaps the minds of the jury, and constituting as to its extent and bearing a fruitful source of difficulty and dispute. It were needless to urge how such a practice would tempt the unfortunate defendant, if he must forego the advantage of personal attendance of his witnesses, to seek an undue equivalent by amplifying at the hazard of perjury, the statement in his affidavit so as to obtain the broadest possible admis*201sion from the State. In every view, therefore, as it regards the rights of the defendant, and the safe, equal and pure administration of justice, the practice referred to is improper and erroneous.” Goodman v. State, Meigs, 195. This ruling was followed in the cases of De Warren v. State, 29 Tex. 464; People v. Dodge, 28 Cal. 445.
But I am told that the sole object of the section 22, aforesaid, “is to enable the defendant to get the testimony of his witnesses.” If such was the purpose of the section, the framers of the constitution were singularly unhappy in the employment of words whereby to convey their meaning. If those framers of the constitution had intended any such thing they would unquestionably have left out the meaningless words, “attendance of witnesses,” and substituted therefor, “ the testimony of witnesses in his behalf,” thus keeping alive and fostering the very evil which the whole history of the subject shows they intended to pluck up and destroy root and branch.
If, as Judge Cooley says, the rights secured by the Bill of Rights are “ absolute and unchangeable rules of action and decision;” if “they are excepted out of the general powers of the government; ” if “ all laws contrary thereto should be void,” by what authority is it, the legislature can say that any assumed equivalent can be given the defendant in lieu of these rights, which the constitution, in such plain and unmistakable terms bestows?
By what authority is it that the legislature makes this forced exchange with the accused ? By what authority do they wrest from him his clear, simple, and plain constitutional right, and give him in lieu thereof such a beggarly substitute ? By what authority do they give him a paper for a man.
If the legislature may thus emasculate one provision of the Bill of Rights, why not another ? Why may they not, with equal propriety and consistency, go further, and deny the accused, when on trial, the personal presence of his counsel, and provide in lieu thereof, that “ it shall not be *202necessary in criminal prosecutions that the counsel for tlie accused shall be personally present, but that it shall be sufficient in all such cases that the counsel for the accused shall deliver to the jury a written brief of points on which he relies, and that such brief shall be taken and received by the court or jury trying the cause as the brief of the absent counsel?” Surely, if the legislature may do the one thing, they may also do the other. If they may, then, in the expressive language of Judge Norton, in the Lafayette county case, “ constitutional provisions accomplish nothing, and organic laws may be set at naught by the merest evasion.” When treating of the. binding and obligatory force of constitutional provisions a very learned and accomplished jurist of New York, Judge Bronson, has expressed himself in this elevated and noble language: “It is highly probable that inconveniences will result from following the constitution as it is written, but that consideration can have no weight with me. It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground they may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written constitutions will be worse than useless.”
“ Believing, as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for the latitudinarian constructions, which are resorted to for the purpose of acquiring power—some evil to be avoided, or some good to be attained, by pushing the powers of government beyond their.legitimate boundary. It is by yielding to such influences, that constitutions are gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people *203can amend it, and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the institution which nothing can heal. One step taken by the legislature or judiciary in enlarging the powers of the government, opens the doors for another, which will be sure to follow, and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are j ust what those in authority please to call them.” Oakley v. Aspinwall, 3 Coms. 547. And Chief Justice Marshall, when treating of unconstitutional provisions, remarks:
“ To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers, is to repeat what has been already said, more at large, aiid is all that can be necessary.” Ogden v. Sanders, 12 Wheat. 213.
And Chief Justice Black has said:
“I am thoroughly convinced, that the words of the constitution furnish the only test to determine the validity of a statute, and that all arguments based on general principles outside of the constitution, must be addressed to the people and not to us.” [Sharpless v. Mayor, 21 Penn. St.]
All lawyers experienced in criminal trials, feel and know the supreme importance of oral testimony, of the personal attendance of witnesses. They know full well the difference between a written statement and oral testimony, between a paper though admitted to be true, and the personal presence and demeanor of a witness, who looks the jury in the eye when telling his story of the transaction. They know that very often the statement of a witness when made in chief, appears highly improbable, but that *204the witness upon cross-examination by the state will, by a clear detail of the facts and surrounding circumstances, so support and fortify his examination in chief as to convince every hearer of the entire truth of his testimony. Besides that, they know that very frequently the witness, when testifying, will disclose what the accused did not and could not know, that others were present who will corroborate and confirm his story in every essential particular. But all these advantages—'advantages which the constitution in express terms bestows—will be swept away from the accused if denied compulsory process for his witnesses. I, therefore, do not feel at liberty to hold section 1886 constitutional, at least so far as concerns witnesses who are within the jurisdiction of the court, or of whose return, though temporarily absent from such jurisdiction, there is a reasonable and well-grounded prospect. Rex v. D’Esu, 3 Burr, 1513.
In Kansas, a state possessing constitutional and statutory provisions substantially similar to those under discussion, the supreme court there says: “ The defendant has a constitutional prerogative to have compulsory process to compel the attendance of witnesses in his behalf. [Sec. 10, Bill of Rights.] This privilege is stripped of all its benefits to a defendant in a criminal case, if such defendant is forced to trial, and his trial is concluded before the return of the compulsory process issued to bring into court witnesses in his behalf who have disobeyed subpoenas duly served upon them. Of course, no court has the right to limit or deny this constitutional guarantee against the protest of an accused.” Whether the statute now being discussed as to witnesses who are confessedly non-residents ’ would be obnoxious to constitutional objections, it would be premature now to discuss. It has been held, however, by this court, that compulsory process cannot, under the constitution, be demanded for witnesses who reside beyond our state boundaries. [State v. Butler, 67 Mo. 59.]
In the case at bai’, the affidavit shows grounds amply *205sufficient for a continuance, tlie witness having been duly subpoenaed, and in consequence of sickness, being unable to attend.
I will not be understood as meaning that section 22 of article 2, is to receive any unreasonable construction. I will not be understood as abating the exercise of that reasonable judicial discretion, which the law confers on the trial courts. But I do mean that when the affidavit for a continuance discloses all the diligence of which the circumstances of the case admit; that when that affidavit discloses fair and reasonable grounds for the belief that a material witness is within the compulsory process of the court, or only temporarily absent from the territory of its jurisdiction, and that his attendance can be secured by the next term, that then the constitutional right of the accused asserts itself, compelling a continuance, and imperatively forbidding any legislative makeshift from being foisted upon him. If it be asked how often is a continuance to be granted to a defendant, I reply, each case must be governed by its own circumstances, and if it be in doubt whether the trial court exercised its discretion soundly or unsoundly, the presumption will be in favor of its action. State v. Farrow, supra
But I certainly would not undertake to say in advance, that a case might not present such features of diligence, such features of the material nature of the desired testimony, such features of inevitable accident and unavoidable delay, as would, if a second affidavit for a continuance were denied, shock any man’s sense of native justice, and compel the declaration, that the judicial discretion had been unsoundly exercised.
Under the ruling in Hickman’s case, supra, the issuance and service of a single subpoena, and the issuance and attempt to serve a single attachment, although the witness resides within the jurisdiction of the court, and within a stone’s throw of the court-house, exhausts the constitutional right of the accused, and leaves him to the tender mercies of *206the statute and of the prosecuting attorney, and converts the reasons given in the affidavit for a continuance, into reasons for its refusal, at the option of that officer.
Under that ruling the application for a continuance is in reality addressed, not to the discretion of the court, but to that of the prosecuting attorney, and in his hands are the issues of life and death
The constitution confides that discretion to the breast of the court, as its sacred and only repository, and the fact that the statute, in order to become operative, removes that discretion and arbitrarily lodges it in the breast of the prosecuting officer, is sufficient of itself to brand the section in question with the stigma of unconstitutionality. I cannot persuade myself that the constitutional rights of a defendant, in a criminal case, are held by so slight a tenure, or that they can so easily be abrogated.
In marked contrast with, the ruling in that case is a decision of that eminent j urist, Lord Mansfield, where no constitutional question was indeed involved, but only such rights as appeal to the best emotions of our common humanity.
A poor woman was indicted in England for having received a pension as an officer’s widow, the indictment charging she was never married to him. Brought to the bar of the court to answer to the charge, it became known that her witnesses resided in Scotland. No process could issue from England to that country, nor was there any means known to the law for obtaining their testimony. Upon the facts becoming known, the court told the prosecutor that, unless he would consent on record that the depositions of the witnesses should be taken in Scotland and read in evidence on the trial, they would “continue the case forever.” Cited in Mostyn v. Fabrigas, 1 Cowp. 161.
I have spoken of cases of inevitable accident, unavoidable delay, etc. I will instance one such case, and then I havb done:
“ For the Argument, both apt and ample,
Is, for instance, the example.”
*207In one of tlie counties on our western border, on a certain night, a most atrocious murder is committed. The evidence is wholly circumstantial, hut points with sufficient directness toward a certain man as the perpetrator of the crime. He is arrested. Popular excitement is great. Circuit court being in session, he is forthwith indicted for the murder. Fortunately he is able to prove by a physician, as eminent for his integrity as for his professional ability, and known and esteemed by the people of the whole county, that on the fatal night he, the defendant, was twenty miles distant from the scene of the crime. A subpoena is issued for this witness, and he is duly served, and a return thereof duly made. The prisoner is duly arraigned and pleads not guilty to the charge. After this, asked if he is ready for trial, upon his request the witness is called and fails to answer. Being pressed for an announcement, he causes an attachment for the witness to be sued out, and it proves unavailing. Then a letter is received from the witness stating that he had been suddenly called across the state border to attend, in his professional capacity, one dangerously ill, but that he would probably return in about a week’s time and testify in the cause. Thereupon the defendant files an affidavit for a continuance, setting forth all the usual matters ; that the witness is the only one by whom defendant can prove his alibi and his innocence, and affixing the letter to the affidavit, asks that a continuance be granted him to a time named, stating his belief, and his reasons for his belief that if a continuance be granted, as prayed, that he will be able to have his witness in attendance, etc. Whereupon the prosecuting attorney, on conviction bent, knowing that he has the defendant on the hip, and relying on the ruling in Hickman’s case, decides to “ prevent a further delay in the trial by consenting that the facts which the absent witness is expected to prove, and which are set out in said application, shall be taken and received by the court or jury trying the cause, as the testimony of such absent witness.” This being done, the defendant vainly begging *208for brief delay; vainly insisting on bis blopd-bouglit constitutional right “ as a lamb to the slaughter, and as a sheep before her shearers,” is forced into trial, and popular indignation running high, and having only paper testimony, is, as might be expected, convicted of murder in the first degree.
"With all deference to my associates, I can only say that such a conviction, amid such surroundings, though secundum legem, as goes Hickman’s case, is worthy alone of “ tioelve butchers for a jury and Jeffries for a judge l” And I here confidently venture the prediction that when a real case like the hypothetical one shall come to this court, my associates will say aye to this declaration.