The defendant was indicted for the murder of Martin Carlos, by striking him with a club. The jury, before whom the cause was first tried, failed to agree; the second trial resulted in a conviction of murder in the second degree. The errors assigned relate to the refusal of a continuance; permitting the prosecuting attorney to admit that the absent witness, Hopkinson, would testify to the facts as set forth in the affidavit for a continuance, were he personally present; the giving and the refusing of certain instructions, and the failure to give an instruction in relation to a lower grade of offence than murder in the second degree.
I. The first point for discussion is, whether the continuance should have been granted. It showed, in the circumstances detailed in the affidavit, due diligence, and the trial court in effect so held, by calling on the prosecuting attorney to say whether he would admit, etc.; and under the strict terms of section 1886, it is. requisite that the application for a continuance should be sufficient in form ; should show ample grounds why the continuance should go, before that section becomes *46operative, and the prosecuting attorney is called upon to say whether it shall go or not.
This case, therefore, presents the question of the constitutionality of that section, and will decide how far the legislature may go counter to the organic law, and their acts still be held valid. Section 22, of article 2, of our state constitution, known as the Bill of Rights, so far as necessary to quote the same, is as follows: “In criminal prosecutions the accused shall have the right * * * to have process to compel the attendance of witnesses in his behalf.” Mr. Justice Cooley, when discussing that portion of a written constitution termed a Bill of Rights, says: “ 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. Lim. 36. The words of the constitution now under discussion would seem too plain for interpretation. They interpret themselves. They are to be understood according to their usual and most known signification. 1 Story Const., sec. 400. Nearly every schoolboy knows what process is, what attendance of witnesses is, and that the witnesses are to attend and testify at the place from whence the process or writ issues, and to which it is made returnable. This is the sense of the words used by the constitution, and they will admit of no other.
Does section 1886 interfere with the constitutional provision above quoted % It does. How does it do this ? Just in this way: It is only where the application for a continuance shows all possible diligence that section 1886 comes into play. The witness may be most important and material; his testimony may have been discovered almost on the calling of the case for trial; he *47may be temporarily absent from the state, and yet the continuance cannot go, without the consent of the prosecuting attorney, and when it does not go, the applicant is deprived of his constitutional right of the testimony of his witness; deprived even of his deposition, and forced to go to trial, upon the simple consent of the prosecuting attorney that the facts set out in the application “ shall be taken as and for the testimony of such witness.”
Is it necessary to argue, at this late day, that this method of procedure is wholly unwarranted by, and in contravention of, the plain words of the organic law ? Is it necessary to say that the rights which those plain Avoids confer, are, in the language of Judge Cooley, “excepted out of the general powers of government, and all laws contrary thereto shall be void”? Is it necessary to speak of the inestimable value to the accused to have the testimony of his witnesses delivered, ore tenus, before the tribunal where that accused is on trial for his life ?
If it is necessary, it argues a great want of attention to, or familiarity Avith, that historic struggle, which finally led to the right in question being embalmed in our American constitutions, both state and federal. The right is an absolute one; it is not the subject of diminution, barter, or exchange. The importance of its being maintained cannot be over-estimated. Speaking on this subject, that eminent jurist, Chief Justice Marshall, said: “ The right of an accused person to the process of the court to compel the attendance of witnesses seems to follow, necessarily, from the right to examine those witnesses; and, wherever the right exists, it would, be reasonable that it should be accompanied by means of rendering it effectual. * * * The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial; and they, consequently, allow to the accused the *48right of preparing the means to secure such a trial. * * * The constitution and laws of the United States will now be considered for the purpose of ascertaining how they bear upon the question. The eighth amendment to the constitution gives to the accused, ‘ in all criminal prosecutions, a right to a speedy and public trial, and to compulsory process for obtaining witnesses in his favor.5 The right, given by this article, must be deemed sacred by the courts, and the article should be so construed as to be something more than a dead letter.” 1 Burr’s Trial, 178-9.
But this right, sacred as it is, by the operation of the statute in question, is made “a dead letter” at the option of every prosecuting attorney in the state. Prom whence does the legislature derive its power to divest the trial court of that judicial judgment and discretion lodged there by the constitution, and confide them to the breast of the prosecuting officer? In my humble opinion, the legislature has no more authority to do this than to authorize him to pass on the defendant’s-application for a change of venue, or his motion for a new trial. Prom whence does the legislature derive the power to deny the simple right conferred by the organic law, and, in lieu thereof, compel the accused to accept such a beggarly substitute as section 1886 offers ? If such legislation is valid, then there is no boundary and no limit imposed by the constitution, which may not be over-ridden and destroyed in the same way, whenever the legislature so wills it.
I have already suggested the inestimable value to-the ac.cused of having the testimony of his witnesses delivered ore tenus, at the time and place of his trial. All the sages of the law have so regarded it. Speaking on this subject, Blackstone observes: “This open examination of witnesses, viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth than the private and secret examination taken *49clown in writing before an officer, or his clerk, * * * where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. * * * Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witness on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery which can never be had upon any other method of trial. * * * In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behavior, and inclinations, of the witness ; in which points all persons must appear alike when their depositions are reduced to writing, and read to the judge in the absence of those who made them ; and yet as much may be frequently collected from the manner in which the evidence is delivered, as from the matter of it.” 2 Cooley’s Blackstone, pt. 1, 373.
Touching the same matter, Starkie says: “In these, as in so many other cases, it is for the jury to estimate the degree of influence by which the testimony of a witness is likely to be corrupted, and to determine whether, under all the circumstances, he may be the witness of truth. In arriving at this conclusion, a consideration of the demeanor of the witness upon the trial, and of the manner of giving his evidence, both in chief and upon cross-examination, is, oftentimes, not less material than the testimony itself. An over-forward and hasty zeal on the part of a witness in giving testimony which will benefit the party whose witness he is, his exaggeration of circumstances, his reluctance in giving adverse evidence, his slowness in answering, his evasive replies, his affectation of not hearing or not *50understanding the question for the purpose of gaining time to consider the effect of his answer, precipitancy in answering without waiting to hear or to understand the nature of the question ; his inability to detail any circumstances wherein, if his testimony were untrue, he would be open to contradiction ; or his forwardness in minutely detailing those where he knows contradiction to be impossible ; an affectation of indifference — are all, to a greater or less extent, obvious marks of insincerity. On the other hand, his promptness and frankness in answering questions, without regard to consequences, and especially his unhesitating readiness in stating all the circumstances attending the transaction, by which he opens a wide field for contradiction, if his testimony be false, are, as well as numerous others of a similar nature, strong internal indications of his sincerity. The means thus afforded, by a viva-voce examination, of judging of the credit due to witnesses, especially where their statements conflict, are of incalculable advantage in the investigation of truth; they not unfrequently supply the only true test by 'which the real character of the witnesses can be appreciated.” Starkie’s Evid. [9 Ed.] 727, 728.
Elsewhere the same learned author observes: “As the deposition of dead or absent witnesses are, in point of law, of a secondary nature to the viva-voce testimony of witnesses subjected to the ordeal of cross-examination, so are they inferior and weaker in point of force and effect. So true is it, that a witness will frequently depose that in private, which he would be ashamed to certify before a public tribunal. It is by the test of a public examination, and by that alone, that the credit of a witness,'both as to honesty and ability, can be thoroughly tried and appreciated. Warn minus ohstilisse videtur pudor enter paucos signatores, is an ancient and a powerful observation in favor of_oraltestimony.” Ibid, 766.
*51If the deposition of absent witnesses are, in point of law, of a secondary nature, to the viva-voce testimony of ■witnesses subjected to the ordeal of cross-examination, how low in the scale of evidence, both in point of law, and in point of fact, must we place the affidavit of the accused, swearing what some one else will swear f But, it may be urged that the legislature has provided that the facts set forth in the affidavit “ shall be taken and received by the jury as the testimony of the absent witness.” So it has, but all-that a legislature enacts does not necessarily pass for law. So, too, it might enact that a piece of palpable pot-metal, should be “taken and received” by a jury, as genuine guinea gold; but I imagine that all the legislatures in the land would not have sufficient power to make a common-sense jury so take and receive it. There is a limit to the power of the legislature ; there is a boundary over which it may not pass. It cannot make the impossible, possible, nor in defiance of the Bill of Rights, compel the accused to accept a piece of paper instead of a man.
“The question presents itself, whether anything may be made the law of the land, or may become due process of law, which the legislature, under the proper forms, has seen fit to enact \ To solve this question, we have only to consider for a moment the purpose of the clause under examination. That purpose, as is apparent, was individual protection, and limitation upon power, and any construction which would leave with the legislature this unbridled authority, as has been well said by an eminent jurist, ‘ would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense.’ The people would be made to say to the two houses, ‘You shall be vested with the legislative power of the state, but no one shall be disfranchised or deprived of any of the rights or privileges ■of a citizen unless you pass a statute for that purpose. *52In other words, you shall not do the wrong unless you choose to do it.’ ” 2 Story’s Const. [4 Ed. ] sec. 1943.
Speaking of the sixth amendment to the constitution of the United States, already quoted, Mr. Justice Davis says : “These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original constitution was proposed for adoption it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors ; for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse- of more than seventy years, sought to be avoided. * * * The history of the world had taught them that what was done in the past might be attempted in the future.”' Ex parte Milligan, 4 Wall. 120.
Moreover, I regard section 1886 as in plain violation of section 1, of the fourteenth amendment of the constitution of the United States, which forbids that any state “deny to any person the equal protection of the laws.” I illustrate this view in this way: Here are two defendants in the same court, both on trial for their lives; both make equally meritorious applications for a continuance. In one case, the prosecuting attorney graciously waives the interposition of his veto, and the trial court is consequently allowed to exercise its ordinary judicial discretion, and the grounds therefor being ample, the continuance goes, and that defendant secures, as a matter of favor, what belongs to him as a home-loom constitutional right, the -attendance of his witnesses. In the other case, the prosecuting attorney does veto the-*53application; does overrule the judicial discretion of the court; does over-ride the constitutional right of the defendant; and so the latter is forced into atrial on whose result his life depends, with nothing better than a piece of paper, on which is written something which, on its face, does not bear even so much probative force as hearsay testimony. Thus, three constitutional rights are stricken down by one and the same blow ; the constitutional right of the trial judge to the exercise of his judicial discretion in all cases coming before him ; the constitutional right of the defendant to compulsory process for his witnesses, and his constitutional right to the “ equal protection of the laws.” State v. Hayes, 81 Mo. 574. Thus affording an apt illustration of what Judge Cooley so strongly says : £ £ The securities of individual rights, * * * cannot be too frequently declared, nor in too many forms of words ; nor is it possible to guard too vigilantly against the encroachments of power, nor to watch with too lively a sxxspicion the propensity of persons in authority to break through the £ cob-web chains of paper constitutions.'1 ” 2 Story’s Const., sec. 1938.
I will not pursue the subject further. I have already done so on a former occasion, where will be found collected abundant authorities in support of the positions here taken. State v. Jennings, 81 Mo. loc. cit. 193.
II. It is unnecessary to notice the numerous instructions in detail. There were seven given on behalf of the defendant, fourteen on behalf of the state, and three as modified by the coxxrt, making twenty-four instructions in all, enoxxgh, in all conscience, to confuse and mislead any jury in the land. I will take one as the type of the rest. The seventh instruction, given at the instance of the state, is faulty in the same particular as were the instructions in State v. Partlow, 90 Mo. 608, because it makes no distinction in regard to bringing on *54a difficulty with a felonious intent, and in bringing it on without such felonious intent. There is an .obvious difference, as in that case was ruled.
III. An instruction should have been given in relation to a lower grade of homicide than murder in the second degree. The evidence tends to show that the killing was the result of a sudden quarrel. This would furnish basis for such an instruction. Indeed, the fourth instruction given on behalf of the state recognizes that defendant’s guilt could fall below murder in the second degree. State v. Wilson, 85, Mo. 134; State v. Barham,. 82 Mo. 67.
We reverse the judgment and remand the cause.
Black and Brace, JJ., concur; the former as to paragraph one in a separate opinion; Judge Brace in loto. Norton, C. J., dissents as to all the paragraphs except number three, and Ray, J., does the like.