GATES, J.¶1The defendant was- convicted of grand larceny. The precise o-ffense charged- -was the -stealing of -six -head of cattle 'belonging to -one Frank -Maul-i-s, a near neighbor -o-f defendant, -o-n February 21, 191-2. This- appeal is taken from the judgment and order denying -a new trial. The only assignments -o-f error -relied up-011 -are the action of the court in denying -the -motion of the defendant to -continue the case and- denying the motion for a new trial. The -case was called for trial on May 8, 1912, which was the same -date that the defendant .pleaded to- the information. Thereupon the defendant on his motion for a continuance pre*247sented an affidavit -the substance of which was that he could not •safely proceed to trial without the testimony of one Lewis Jones; that Jones was a material witness for the defendant; that there was no one else by whom the facts sought to be proven by Jones could be proven; that in a conversation with Jones on or about April 15, 1912, Jones “faithfully promised this defendant to voluntarily appear and testify in behalf of this defendant at this term of court; that on or about the 1st day of May, 1912, this defendant came to Winner, Tripp, county, to- have a subpcena issued and served on said Jones, but on arriving at Winner he learned and found- -that said Jones had gone to the state of Colorado on business, and would n-ot return until the fore part of June or the latter part of May, 1912; that this -defendant tried -to ge-t into 'communication- with, the said' Jones-, but has been unable -to do so since he has left the -state of South Dakota; … that the said witness Lewi-s Jones- is not absent from this state, through any procurement or connivance and fault of this deponent; and that this deponent knows that the said Jones will return -to Tripp county S. D., before the next term of this -court and the court will -procure his testimony at -said term.” It is claimed in the affidavit -that if Jones were, present he would testify that Jones was wi-th the defendant during all the period of his trip overland -from, Witten-, S'. D. to Njape-r, Neb., and .part way back, and that it would have been impossible for -this defendant t-o have stolen the cattle from the complaining witness during that time without the knowledge of Jones and that Jones would testify that -the defendant d-i-d not take, steal, or carry away any cattle nor have them -in his possession. - No -counter affidavits were -presented- upon said motion for continuance, and thereupon the court entered an order finding the motion and affidavit insufficient and denied the same.
¶2[1] In State v. Wilcox, 21 S. D. 532, 114 N. W. 687, the three principal requisites of an affidavit upon a motion for continuance in a criminal case are set forth. These are: First, that the testimony of the absent witness- must be material; second, -that the -defendant has- used due diligence to procure the attendance of the witness or his deposition; third, that it is reasonably -certain that the presence of the witness or his testimony will be procured by the time to which the trial would be post*248poned. And the court, ©peaking through HJaney, J., said: “If the showing fails in either of these -respects, -the application to continue should be denied.” „
¶3[2] We are of the opinion that the affidavit failed to comply with the third requisite.. The statements of the defendant are entirely matters of conclusión .unaccompanied by any facts, that would have justified the trial court in believing that it was reasonably certain that the witness would be present at the next . term of court. It is not sufficient for the affiant to state conclusions. He must set forth fact© upon which the -reasonableness of a belief can be based. 9 Cyc. 204; State v. Philips, 18 S. D. 7, 98 N. W. 171, 5 Ann. Cas. 760; Chambers v. Modern Woodmen of America, 18 S. D. 173, 182, 99 N. W. 1107; State v. Wilcox, 21 S. D. 532, 114 N. W. 687. Unless it appeared reasonably certain that Jones would return, defendant was not entitled to a continuance to procure his presence. Such affidavit did not -make it appear that it was reasonably certain that Jones would return, nor was there anything in such affidavit that would make it reasonably certain that, if defendant so desired, he would be able to procure the deposition of Jones -provided Jones- remained out of the state. Of course, if there was no1 showing that defendant could probably procure either the presence or the deposition , of Jones, then the state could not have been required ' to admit that Jones, if present, would have testified to the matters ' contained in su-c-h affidavit, even if the court had been asked to-require such admission. Therefore the motion for continuance was rightfully overruled, and the court committed no error in not requiring the state to- make the admission that Jones would have testified to the facts stated in such affidavit.
¶4After the -denial of such motion, n-o request was made by the defendant for any continuance for the purpose of securing witnesses
¶5[3-4] In view of the fact that one of the grounds for the motion for a new trial was the alleged neglect of one of defendant’s attorneys in -preparing for trial, we deem it proper to state that in our opinion the proceedings had at the trial show that -the affidavit of .the defendant submitted upon application for continuance was untrue. Therefore he was not prejudiced by any failure -of his -attorney to more fully state the requisite facts *249in such affidavit, even assuming that there ,-were facts which would justify such additional statement. We think that the trial 'court acted- within its discretion in denying the continuance; but, even if it was dfror rto‘’dehy the motion frefer The view-point at the time t-h-e motion was' made, it ■•appegfg- frofe the subsequent development of the case that no such perso-m a’s the alleged witness Jones accompanied the defendant upon hisntrip, and- that the affidavit for the continuance was- false in that----respect. Therefore the action- of the trial court should not be distuibe-d at this time. Blumen v. State, 33 Tex. Cr. R. 43, 21 S. W. 1027, 26 S. W. 75; 9 Cyc. 208. While- if (is true that in -his testimony -defendant -stated' in- general terms - that Jones 'was. -with him from Witten to-Naper and thus far corroborated ■his affidavit theretofore made, still, when the defendant- come to give the, details of his trip showing the various places that he stopped ■ and the names- of the persons who saw -him, he entirely omitted any mention of Jones. S'o far as appears- from the-evidence and from the ten affidavits accompanying the- motion- for a new trial, nobody saw Jones with the defendant on his-• overland trip. - Furthermore, in -his affidavit on the motion for continuance, the defendant started .that Jones and he spent the entire day of February 21; 1912, in the town of Witten. In his testimony ■ he said that -on February 21, 1912: “I dug post holes on my'place close to my home and worked there most -all day; I -did not g'o anywhere that day.” Again, in the affidavit on the motion for continuance -defendant said that Jones was a resident of Tripp -county. Upon the trial he ¡testified, “Jones is a farmer in Gregory county, around Herrick.” From- the whole record we -cannot help but believe that the -man Jones is a- myth.
¶6[ 5-6] It is -claimed by defendant that ■ he left his home, which was about five miles north of .Witten, -on February 23, 1912, with a -load of hogs-; that he went to Witten, then-ce to Winner, thence to Calóme, thence to Dallas-, where he sold the bogs, thence to Burke, thence to his ,-other place about -fo-ur miles south of Herri-ck, thence -to the farm of one John Giedd a short distance over the South Dakota line- into Nebraska. The cattle were seen with the defendant by two- witnesses towards sundown on the 25th -day of February, 1912, near the other farm of defendant, south' of Herrick in Gregory county, a distance of *250about 60 miles by direct line and not to exceed 80 miles by section lines .from where the cattle were stolen. The witness Giedd testified that he found -the cattle on his farm on the 26th of Febru-, ary, and that Davies claimed that they were his and asked Giedd to take care of .them for him until he should move down to his other place. There is no direct testimony oonnecting' defendant with the possession of the cattle in Tripp county. There is, however, strong circumstantial evidence to that effect. Defendant asked for a new trial upon, the further ground of newly discovered evidence. It appears clearly that this evidence w.as not newly discovered, and that outside of the affidavit of defendant himself there are no facts sworn to in the ten affidavits .presented upon th’. motion for a new trial that are inconsistent with the defendant’s guilt. The only real ground urged for the new trial is the neglect of defendant’s attorney in his not having subpoenaed the witnesses by whom defendant might prove bis claim of alibi. It is certain that a new trial should not ’be granted owing to the neglect of defendant’s attorney except in an extreme case and to prevent a clear failure of justice. People v. McCann 247 Ill. 130, 93 N. E. 100, 29 Ann. Cas. 499. If defendant’s affidavit had shown that he advised his counsel of the -names of parlies whom he had met on his claimed trip through Winner and Colóme, and if, in addition -thereto, there had 'been presented the affidavits of suich parties claiming to have met defendant at "Winner and Colorne on the afternoon1 or evening- of February 23d, it would have presented a 'showing upon which we think the trial court should have granted a new trial, as, with such facts proven, it would render it ianipossMe for a jury to believe the defendant guilty of the crime. But the fact-s, as they appear from +be record, are that, while defendant, when a witness, swore to seeing a butoher at Winner and to feeding his horses at a certain farmer’s, and also- to- making certain inquiries at Colorne, in his affidavit asking for a new tidal he does not state that he advised his attorney of these facts and of the names of these persons, neither do any such person's present affidavits. It is clear to us ’hat defendant was at Witten about 3 o’clock, as testified' by him and as claimed by the stockbuyer in his affidavit. Undoubtedly he did not have the cattle with him at that point, as he had undoubtedly driven them, either cn the 2nst or the 22d, to some point east *251or northeast of there. His trip into- Witten might well have been a mere blind. There was plenty of time after he left Witten for him to- have gone -over to the Johnson place, picking up the cattle meanwhile. The jury could 'well believe that lie was at the Johnson place and also at Witten. In February it is 'dark as early ais 6 to half past '6 o’clock. It would not be impossible for him, especially when trying to throw people off their guard, to have driven from Johnson’s to Dallas before morning. There is no evidence of any other person, either upon the trial or in the affidavits offered, to show that he was seen at Dallas before 7 o’oclock -in the morning, full 12 hours from the time he passed the Johnson place. In a new country the roads are undoubtedly largely across country, and a diagonal road from Johnson’s to Dallas would be but some 30 to 32 miles; this he could have made during the night. The fact that parties saw him at or near his other place in Gregory county and that, when they saw him, there were no cattle in sight, is of little value. The proof of a negative in this case would in no manner weaken the testimony of the affirmative as testified by several of the state’s witnesses, as he may not have been with these cattle at all times.
¶7[7] Waiving the question/ as to whether the evidence brought forward upon the motion for -a new trial was newly discovered, and conceding the defendant to have been seen by the persons at the times and place’s as- shown in the affidavits Upon the motion for a new trial ;the facts set forth in -said affidavits are not inconsistent with the fact that the defendant drove the cattle from Tripp county to the place where they were seen in Gregory county -and thence into Nebraska. Defendant would have to have done much driving by night in order to have covered the distance between-the farm of the complaining witness- -and- his own- farm south of Herrick and to have been at the -places testified to in the affidavits; but he admitted on the trial that during a part of the trip he did travel by night, arriving at Dallas between 2 -and 3 o’clock a. m. on February 24th. While the testimony implicating t-he defendant with the removal o-f the cattle from- Tripp county to Gregory co-un-ty is circumstantial, the clear impression that is left in our minds by a careful study o-f the evidence is that it *252is the defendant who removed them. We are convinced that the defendant was justly competed of the crime.
¶8The judgment and order denying a new trial, are. affirmed.
SMITH, P. J.¶9(dissenting). I feel impelled to dissent from the conclusion reached by the majority of the court- in this • case. I do not. ¡believe the accused has been accorded his legal right to a.fair trial on the.question of his guilt or innocence. .The evidence against him is wholly circumstantial, and the jury were not instructed1 as- to the probative weight'of that character of evidence. It may be that the accused cannot urge this as error because no request for sirch instruction was-made. The majority opinion, however, in effect, tries out the question of- -guilt in a discussion of the evidence; but even in this discussion the court does not give the accused the benefit of the rule referred to. The 'rule is well stated in Bowen v. State, 140 Ala. 65, 37 South, 233: “The test of the -sufficiency of circumstantial evidence,- in a criminal case, is whether the circumstances, as -proven, are capable ' of'explanation -upon any reasonable hypothesis consistent with the defendant’s innocence, and, if they are capable of such explanation, then the -defendant should be acquitted.” The matters of evidence discussed, I -think, -should- be submitted- -to- a jury; -and this end cou-ld be attained- only by a new trial. The allegation that such a man as Jones exists is unchallenged ¡by the state, except by the mere theory that the accused may have been lying in his affidavit for continuance. That the evidence it is -alleged- that he would give, if present at the trial, is material, cannot :be doubted. That the accused was not guilty of laches in failing, to- .have the ■ witness in court is perfectly dear. That the witness will be ¡present at the next term -of court is ¡positively -averred in the affidavit, and is evidently founded on the promise -of the witness to' be present and testify at the trial. Affiant could ¡hardly be called upon tosíate further facts, in. view of the unexpected absence of the witness from the state. I think -the continuance should have 'been granted by the trial court, and that this cour-t exceeds its authority when it states that: “The clear impression that is ■left in our minds by a careful study .of the evidence is that it is the .'defendant who removed them (the ¡cattle). We are convinced that -the defendant w.as justly convicted of the crime.” I am willing to admit that the court makes a good argument -to prove defendant’s *253guilt; 'but, so far as we know, it was never presented to a jury. It should be addressed -to a jury by the state’s 'attorney, after the accused has had an opportunity to place before them all the competent evidence in his behalf, and an opportunity should be given his counsel to answer it as best they may. If, after such a hearing, a jury shall say the accused is guilty, he can have no just ground of complaint. He is entitled to and should have a fair trial, whether guilty or innocent, and this, in my judgment, is denied him by the decision of this court.
