
    Goodman vs. The State.
    Constitutional Law. Practice — continuance. Where a defendant in a criminal case, offers a sufficient affidavit for a continuance, stating the facts^ to which the absent witnesses are expected to testify, it is error to refuse a continuance, even though the prosecuting attorney offers to admit, not simply that the witness would testify to the facts stated, but also, the truth of the facts stated: for the defendant has the constitutionaliright, to have the witnesses personalfy present at the trial. Art. 3, $ 9.
    Practice. Continuance. Where the circuit court refuses a continuance for the insufficiency of the reasons stated in the affidavit, the court of errors would be extremely cautious and circumspect in controlling its discretion, though they entertained a clear opinion that the reasons were sufficient.
    The plaintiff in error and another were indicted in the circuit court of Hickman, at July term, 1838, for open and notorious letodness. A capias was issued for the defendants, and being in custody thereupon, they were put to the bar for trial, on the 11th' of July, before his Honor Judge Dilla-jiünty. The plaintiff in error moved, upon affidavit, for a continuance of his cause. The affidavit stated the names of the witnesses who were absent, the reasons for their absence, and what he expected to prove by each. The attorney general, Thomas, agreed that the affidavit might be read as evidence; and his Honor thereupon ordered the jury to be sworn and the cause to he tried. The jury found the defendant guilty and assessed a fine against him of one hundred dollars. He moved for a new trial, which was refused, and the court pronounced judgment of imprisonment in the common jail of Hickman, for four months, and that the slate recover the fine, &c. A hill of exceptions was tendered in which the evidence was set out, as also a copy of the affidavit for the continuance, and the defendant appealed in error.
    
      December 14.
    December 15.
    It is unnecessary to detail the facts of the case, or those stated in the affidavit, with respect to which latter, it is enough to say that they were considered by the court to present a sufficient ground for a continuance; and the only question was — whether, where that is the case, the court can refuse a continuance because the prosecuting attorney admits the facts stated in the affidavit?
    Dew, for the plaintiff in error,
    insisted that the court has no such power. He said that the rule laid down in Ham-monds vs. Kemer & Wife, 3 Haywood, 145, that it is not error to refuse a continuance wbere the evidence wanted is admitted by the adverse party, is not applicable to criminal cases, which distinction he said was sustained by this court in Rhea vs. The State, 10 Yerger, 258.
    The Attorney General for the state.
    Cahal, in reply,
    cited the constitution of Tennessee, art. 1, § 9, 'and contended, that it was a violation of the right of the accused in criminal cases, “to meet the witnesses face to face,” to force him to a trial in the absence of his witnesses. He said that the right being absolute, the party could not be deprived of the enjoyment of it but by his own laches; that if the defendant cleared himself of the just imputation of neglect in the use of the lawful means to obtain the witnesses, the court could not say that there was any equivalent for this absolute right, which, if he had extended to him, would equally maintain his security; that to have an admission on behalf of the state of the facts which he expected to prove by his witnesses, was not “to meet the witnesses face to face,” nor equivalent to it; and if it were equivalent, it is not the right itself, and to assume to substitute equivalents, is to attempt to defeat what is absolute and indefeasible.
   Reese, J.

delivered the opinion of the court.

We deem none of the errors in this case assigned upon the record, or in argument, as meriting discussion, except the refusal of the circuit court to continue the cause upon the grounds stated in the affidavit of the defendant; and with respect to that, the only proper inquiry for us is, whether those grounds are sufficiently material to constitute good cause foi* the postponement of the trial?

To respond correctly to this inquiry, it is our duty to limit our view of the case to the character of the offence charged in the indictment, and to the aspect of the defensive grounds set forth in the affidavit, as bearing upon that offence; and we are not at liberty to look into the proof upon the trial as exhibited in the bill of exceptions. Considering the question in this view, we are of opinion that the affidavit did contain sufficient grounds for the continuance of the cause. But as was said by us, in the case of Gray vs. The State, 10 Yer., we regard the supervisory control of this court, over the legal discretion of the circuit courts in the application and enforcement of their rules for the conduct of causes before them, as of very delicate character, exacting from us, the utmost caution and circumspection, and to be exerted neither frequently, nor upon slight grounds. If, therefore, the circuit court had merely refused to continue the cause upon the ground of the insufficiency of the affidavit, we should have hesitated long before we would, for that reason, have reversed the judgment. But the record manifests that the circuit court thought as we do, that the affidavit was sufficient, and refused to continue the cause, because the attorney general offered tc admit, not that the facts stated in the affidavit were true, but that the witnesses there mentioned, would, if present, testify as stated by the defendant.

In the case referred to in 10 Yerger, we say, that the practical operation of such an arrangement upon the rights and the fate of the defendant must often, if not always, be perfectly illusory. We now go further than the intimation contained in that case, and say, that when the admission of the counsel for the state, is not merely that the witnesses would testify as stated, but that the facts are true as set forth in the affidavit, such admission should not preclude the defendant, in a criminal case, from his constitutional right of having the witnesses personally present at the trial.

It were needless to urge upon practical and enlightened minds, the difference, in point of legitimate effect, between the personal presence of candid and respectable witnesses, who testify to facts in their detail, ramification and bearing, and the general admission of these by an attorney general, little impressing, perhaps, the minds of the jury, and constituting, as to its extent and bearing, a fruitful source of difficulty and dispute.

It were needless to urge how suehfa practice would tempt the unfortunate defendant, if he must forego the advantage of the personal attendance of his witnesses, to seek an undue equivalent, by amplifying, at the hazard of perjury, the statement in his affidavit, so as to obtain the broadest possible admission from the state. In every view, therefore, as it regards the rights of the defendant, and the safe, equal and pure administration of justice, the practice referred to is improper and erroneous.

Let the judgment be reversed and a new trial be granted'.  