State v. Mobley

(concurring).

I concur in the decree in this case, but not in the doctrine that the fact that the testimony of an absent witness would be merely cumulative is a sufficient reason for the judge to overrule a motion for a continuance or postponement of the trial of a person charged with crime. It is true that article 322 of the Code of Criminal Procedure requires that a motion for a continuance or postponement of the trial must show that the facts intended to be proved by the absent witness cannot be proved by any witness then in court. But the Constitution, article 1, § 9, guarantees that every person accused of crime shall have compulsory process for obtaining witnesses in his favor. To deny a person accused of crime the right or opportunity to summon a witness, on the ground merely that he already has a witness who will swear to the fact or facts which he intends to prove by the absent witness, is such a restriction as to be virtually a denial of his constitutional right in that respect. One of the reasons given by the trial judge in justification of his overruling of the motion in this case — that the defendant and his wife testified to the facts which the defendant might have proved by the absent witness — is a striking illustration of the severity of the rule. It is because of the showing of improbability, in this case, that the absent witness could have been found if the trial of the case had been postponed, that I concur in the ruling on this bill of exception.