(concurring).
The writer concurs with some reservation in our affirmance. I have substantial doubt that traditional American notions of fairness were served by the denial of a continuance under the present circumstances.
The defendant is charged with the armed robbery of Dennis Graham. On February 24, 1971, present counsel was appointed to defend the accused. The trial was fixed for April 19, 1971.
On learning that Graham had moved tp New Jersey, counsel telephoned him and found that Graham said he could not identify his robber. (At oral argument before us, the district attorney admitted this witness’s testimony was at least shaky as to identification.) Thereupon, on March 15th, counsel obtained an order to secure attendance of the out of state witness, Graham.
Service out of state on Graham .could not be made, for reasons here immaterial. A week or so before the trial date, counsel informs us without contradiction, he so informed the district attorney. On the trial date, he attempted to secure an extension. The district attorney objected to the continuance, and the trial judge refused it.
The situation,, then, is this: The accused is on trial for the robbery of Dennis Graham. The state concedes that this essential witness’s testimony tends to be favorable to the accused, in that he could not identify him.’ After his appointment, the defendant’s new counsel makes diligent but *339unsuccessful effort to bring the testimony of this witness before the court, although he had moved out of state. When he seeks a continuance to do so, previous subpoena efforts having failed, the district attorney obj ects.
The refusal of the district attorney to facilitate efforts to let the trial jury have the benefit of this essential testimony, favorable to the accused, comes perilously close to a denial of fundamental due process. Cf., Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
I would unhesitatingly find an abuse of the trial court’s discretion in denying a continuance (and possibly a denial of due process by so doing), if it were not for a circumstance to which I shall advert shortly-
Nevertheless, even aside from these considerations, I have some reservations whether, in the face of an unsuccessful good faith effort of the defendant to secure attendance of the victim of the crime, the district attorney lives up to his function by opposing a continuance for such purpose: As the American Bar Association Standards of Criminal Justice state, The Prosecution Function, Section 1.1(c): “The duty of the prosecutor is to seek justice, not merely to convict.”
Despite all these reservations, I concur, at least for the time being. The narrow issue before us may be considered, did this trial judge abuse his discretion under all of the circumstances before him ?
Although present counsel cannot be charged with bad faith or dilatory tactics, probably the trial judge was influenced to deny the continuance because, through prior counsel, the accused had obtained three continuances (one on his own motion, two by joint motion). At the first trial date of September 8, 1970, the victim Graham is stated by the district attorney (in argument at the trial court against the continuance) to have been present and ready to be a witness at the trial. Although present counsel does not share any responsibility, nevertheless the net effect is that the complaining witness Graham is not available as a witness at least partially because of repeated continuances requested by the accused through prior counsel.
With some reservations, therefore, I concur that the trial court may not have abused its discretion in denying this additional continuance. I do so, however, with the feeling that the interests of justice would better have been served by granting it and by letting the trial jury have the benefit of the testimony of the victim of the robbery, a most essential identification *341witness. The whole problem would not have arisen had not earlier continuances been granted, when all witnesses were present in the state, and when their memories of the robbery of November 21, 1969 were considerably fresher.