The defendant failed to take any steps to obtain the testimony by deposition or commission. He had from the time of his arrest to do so. He had nearly two months from the finding of the indictment. He had twenty days from the day the case was called and was set for trial until the day of trial. As the record shows, he knew the witness lived in the county; that she was likely to be too sick to attend the trial. It does not show but that she was able to testify upon deposition. There was an entire want of diligence on the part of defendant. In a civil case he could have obtained no continuance on this state of facts. (Pierson v. Holbrook , 2 Cal. 598.) If there is any difference, the Criminal Practice Act, as to taking depositions in criminal cases, is stricter than the Act making such provisionin civil cases. The same rules govern in criminal as in civil cases in these matters of continuances, and the same amount of diligence is required. (Commonwealth v. Gross, 1 Ash. Pa. 281.) The granting or refusing such orders rests in the sound discretion of the Court below, and this Court will not interfere unless for the most cogent reasons, even though the Court below in its action approached very nearly to an arbitrary exercise of its discretion. Its action must be arbitrary and oppressive to warrant interference by this Court. (Sealy v. State, 1 Kelly Geo. 215; Pilot Creek Canal Co. v. Chapman , 11 Cal. 162; Griffin v. Polhemus , 20 Cal. 181.)
JUDGES: Sanderson, C. J.
OPINION
SANDERSON, Judge
The affidavits upon which the motion for a continuance was made were sufficient to entitle the defendant thereto, unless 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 Dig., 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 attendance 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. (Sec. 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 or 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 upon considerations of the wisest policy, and the provisions of the statute whereby the defendant is enabled to examine conditionally, on commission, a witness who is about to leave the State, or is sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, were not designed to impair the rule or abridge the previous rights of the defendant, but, on the contrary, to enlarge those rights by enabling him to secure testimony of which he would otherwise be deprived, and at the same time preserve the rule in full force, so far as the same could be done in view of the right conferred by the statute. When, therefore, it is made to appear that the personal attendance of the absent witness may be procured without unreasonable delay, a resort to the statutory mode of taking his testimony ought not to be forced upon the defendant against his will under penalty of going to trial without it. What would be an unreasonable delay must of course depend upon all the circumstances of the case; but it is certain that a delay of one term of Court upon a first application would not be unreasonable.
Judgment reversed and a new trial ordered.