People v. Dodge

By the Court,

Sanderson, C. J. The affidavits upon which the motion for a continuance was made were sufficient to entitle the defendant thereto, unless [448]he was bound under the circumstances to obtain the testimony of the absent witness in the manner authorized by the statute in such cases. (Wood’s Digest, p. 314, Secs. 562 to 582 inclusive.) The defendant knew, as appears from the record, that the witness would not, in all probability, be able to attend the trial, and had ample time to obtain her testimony by deposition had he elected to do so; but it also appears that her illness was believed to be temporary, and that she would be able to attend the trial if postponed until the next term of Court. Under these circumstances was the defendant bound to take her testimony on commission or go to trial without it? Such was the only ground urged against the motion in the Court below, and such seems to have been the only ground upon which the motion was denied ; and in view of the affidavits used upon the motion, it is clear that there could have been no other ground for the ruling of the Court.

A defendant in'a criminal action is undoubtedly entitled to the personal attandance of his witnesses at the trial, if the same can be obtained without unreasonable delay. Such is the policy of the law, not merely from considerations affecting the defendant only, but also from considerations affecting the ends of public justice, irrespective of individual interests, which is manifest from the fact that the depositions of such witnesses are allowed to be read in evidence only upon further evidence at the trial that their personal attendance cannot be obtained. (Section 582.) It is to the interest of the people, as well as the defendant, that the witnesses of the latter should be made to give their testimony in the presence of-the jury, for we all know, by daily experience, how much weight is added to "dr taken from testimony by the personal appearance, bearing and manner of the witness while under examination ; if these add to the weight of his testimony, the defendant ought not to be deprived of such effect, except upon grounds of necessity; and if they detract therefrom, such effect should be secured to the people, in order that the ends of public justice may be subserved. Thus this rule requiring the personal attendance of witnesses, if the same can be had, is founded [449]