¶1 dissenting. Sec. 18, Art. I of the istitutie i provides that the accused shall have comijory process for obtaining’ -witnesses in his favor, id this provision is 'mandatory. This right is not ex- . usted because a witness at one time was arrested and b ;nd over to attend 'Court, hut continues until the accused isyplaced upon his trial, unless waived' or forfeited by his coj.duct, of which there is no evidence whatever in this casá, nor doe's the record show that the ruling of his Honor, thg presiding Judge, was based upon such ground. As long as his right continues, the accused can not be forced- to- trial, evQt? though the solicitor may be willing to accept as testimcr :y what the witness would swear, if present.
¶2 Por these reasons I dissent.
¶3 concurring: I concur in affirming the judgment on the grounds that there was nothing before the Court to show the materiality of the absent witness. The Constitution gives the accused the right “to have compulsory process for obtaining witnesses in his favor.” Obviously, this does not mean the Court is- bound to issue compulsory process for anybody the defendant may designate as a witness. Much less does it mean that the cause must be continued for the absence of any -one who may be designated as a witness for defendant. There must be a showing -that the person wanted is really a witness "in favor” of the defendant — that his testimony would be material to defendant’s cause.