Dissenting. — It needs no argument to establish the proposition, that a statute which denies to a person criminally charged the right to process to compel the attendance of his witnesses is unconstitutional and void. The proposition is self-evident and the bare statement of it establishes its truth. But I do not understand, as is assumed by the court in its opinion, that the statute in question, either expressly, or impliedly, or by proper construction, denies this right. It is clear that on its face it contains no such denial, but. *56on the contrary, as construed by this court in State v. Hickman, 75 Mo. 418, it was held to be operative, only, in a case where the accused had had the benefit of the process of the court, and where such process proved to be ineffectual in bringing the witness into conrt. The true purpose and intent of the legislature, as thus construed, so far from denying to the accused process for his witnesses, was to give him the benefit of the evidence of the witnesses which the process of the court had failed to secure to him by bringing the witness into court, thus declaring that the trial should not proceed without such evidence being admitted.
I am not prepared to say and will not say that the General Assembly, the members of which were as capable as we are to appreciate the importance of the right conferred by the constitution on persons criminally accused to have process to compel the attendance of their witnesses, and who, doubtless, were animated by as ardent a desire as we are to preserve in its integrity and full force such right, have transcended the limit of their power, in the enactment of the statute in question which, in no way, impairs such right by a denial of such process, unless the constitutional provision be so construed as not only to give the accused a right to process to compel the attendance of his witnesses, but that the accused cannot legally be tried till such process proves to be effectual in bringing the witness into court to deliver in person his evidence.
While the reasoning of the opinion results in such a construction, I cannot believe that it is intended so to construe the constitution as would render the trial of a person criminally charged impossible so long as the party accused might will it to be so. If, as is argued, the chief object of the constitutional provision is to secure the attendance of the witness, and his evidence only as an incident, then it logically follows that the accused might stand on such right and refuse to be tried *57till the attendance of the witness was secured. If, on the other hand, the object of such provision is to secure the evidence of the witness, and his attendance as a means of securing it, how can it be said that a statute, which provides that the accused, before he can be put on his trial, shall, when the process of the court has failed to bring the witness, have the benefit of the evidence of such witness, is obnoxious to the constitution? The law deals in substance, and not in shadows.
And if it is, as intimated in the opinion, within the discretion of the trial judge to refuse to grant a continuance in a case where the person accused has had' the process of the court to compel the attendance of his witnesses, which has proved to be ineffectual, and compel him to go to trial without either the attendance of his witnesses or their evidence, how can the statute in question be condemned as unconstitutional, which, as heretofore construed, provides that where the process had has not brought the witness, the accused shall not be put on his trial unless the state admits, through its prosecuting attorney, what the accused avers in his affidavit for a continuance the absent witness would prove or swear to if present. It is, however, assumed in the opinion that the statute in question interferes with the judicial discretion of the court, in that it provides that if the prosecution admit as the evidence of the witness, on account of whose absence a continuance is asked, what the applicant for the continuance states he expects to prove by him, the cause shall not be continued, but the trial shall be proceeded with, and that the statute is unconstitutional and void on that account and for that reason. How this can be said to be an interference with judicial discretion, I am not able to perceive. If it is, then, for the same reason, section 1884, Revised Statutes, which provides what an affidavit shall contain before the court can grant a continuance, must also be condemned.
Besides this, from an early period in the history of *58jurisprudence in this state, there have been on the statute books laws providing that in civil cases, where one party applied for a continuance on account of the absence of a witness and stated what he expected to prove by such witness, that the cause should not be continued if the opposite party would admit either the truth of such statements, or that they might be received as the evidence of such witness, and, although the state, during all that time, has not been lacking in astute lawyers and judges, none of them till now have been astute enough to discover that such statutes were unconstitutional and void because they interfered with the discretion of the trial judge. Section 8596 of the revision of 1879, on that subject, is as follows : “ If the affidavit does not contain a sufficient statement of facts as herein required, the court shall overrule the same ; but if, upon the contrary, the court shall find the affidavit sufficient, the cause shall be continued, unless the opposite party will admit that the witness, if present, would swear to the facts set out in said affidavit, in which event the cause shall not be continued, but the party moving therefor shall read as the evidence of such witness the facts so stated in such affidavit and the opposite party may disprove the facts disclosed, or prove any contradictory statements made by such absent witness in relation to the matter in issue and on trial.”
For the reasons herein given, I dissent from the conclusion reached by the majority of the court, that the statute in question is void, and in the views expressed,.
Judge Ray concurs.