Wright, C. J.
Tbe counsel for tbe prisoner, bave urged several alleged errors, arising on tbe record before us, either of wbicb it is claimed, must reverse tbe cause. We shall,, however, pass upon but one. And that is, should tbe court below bave granted tbe prisoner á new trial ? To determine this, it becomes necessary, to refer, somewhat in detail, to tbe motion made therefor in tbe court below. This motion was made on substantially tbe following grounds. Defendant filed bis affidavit setting forth that for six months previous be bad been sick, and for most of tbe time confined to bis bouse; that upon consultation with bis counsel, be bad concluded be must obtain a change of venue to another judicial district, in order to secure a fair and impartial trial, and that bis counsel informed him, and be verily believed, that upon making tbe proper affidavit, tbe venue would be changed; that be bad expended all bis means in tbe payment of bis counsel; that but one of them continued in bis defence, after tbe venue bad been changed; that sick and feeble, and with bis mind so confused and excited, that be was unable to attend to tbe most ordinary business, be came to that court; that tbe overruling of tbe application for a change of venue, took him by surprise; that but one of bis original counsel remaining, be bad to depend upon tbe assistance of appointed counsel, who was a stranger to, and unacquainted with bis cause; that thus circumstanced, be attempted to prepare for trial, but that because of bis sickness and tbe excited state of bis mind, be could not recollect tbe names of bis witnesses, nor what be expected to prove by them, and that many important items of testimony were thus omitted to bis prejudice. He then refers to bis former affidavit for a continuance, and to tbe fact be bad there omitted to. refer to, tbe absence of several witnesses material to bis defence, because of .bis surprise in being refused a change [517]*517of venue, and tbe condition of bis mind, from bis feeble state of bealtb; and that these witnesses were subpoenaed, but bad failed to attend. He then proceeds to detail tbe substance of tbe testimony of these absent witnesses, to which it is unnecessary to refer, further than to say, that he swears to its materiality, founded on his own belief and the advice of counsel He also says that on another trial, be could impeach tbe .testimony of a certain material witness for the ■state, by persons whose names he gives, as also what they will swear. ' He also states that he was entirely and completely taken by surprise by the testimony of a certain Mrs. Mozena, whose testimony on the previous trial had been his ■chief reliance, to show that -the deceased was advancing on him, with a drawn club, at the time the blow was given, which was claimed to have eaused his death; but that on the trial producing his conviction, she had testified to the reverse, and that he, the prisoner, was, in fact, advancing on the deceased, and the deceased retreating at the time. And finally, he says be can prove, if a new trial is granted, by other witnesses, that tbe deceased was advancing on him with a drawn club, at the time the fatal blow was struck. He also produces the affidavit of three persons, who state, that the witness, Mrs. Mozena, on the first trial, did swear that as the prisoner “ stepped back, the deceased advanced toward him with a stick of wood raised,” one of tbe affi-ants being of counsel for tbe prisoner on said former trial. He also produces the affidavit of his son (who was named ■as an absent witness in the affidavit for a continuance, and whose testimony was, as already stated, in that way before the jury), who states that the deceased was advancing on his father with a drawn club, at the time he was struck; that the deceased raised his club first, and that the difficulty or -affray all occurred so quick, that bis father had no time to escape; and that the reason of his not being at the trial was, that his mother and three of his brothers and sisters were sick, and that there was no person to leave them with, except one small brother; that being some thirty miles distant, it was impossible for him to leave home, after be bad received [518]*518tbe message requiring bis attendance. Tbe record also tends; to show, that “ on tbe trial, a large heavy stick or bludgeon was introduced and exhibited before the jury, as tbe one used by tbe defendant in giving the fatal blow, and was. commented upon, but not identified.” We say that tbe record tends to show this, for it is difficult to say, from tbe very confused record, whether tbe language above quoted, is part of tbe matter contained in the- motion for a new trial, or is set forth in tbe bill of exceptions as a fact that actually occurred.
Tbe question that we are now to determine is, whether,, under tbe circumstances, tbe court below erred in refusing- a new trial; or whether, without fault or negligence on bis part, tbe prisoner has bad that fair and impartial trial,, which is guarantied to him by law. "We have partially examined all tbe circumstances, and have come to tbe conclusion, that such new trial should have been granted; the most prominent reasons for which are these : In coming to this conclusion, we give no weight to those matters stated in tbe affidavit of defendant, which are not fairly and legitimately sustained by tbe statements of other persons, and by tbe record. With this preliminary remark,- let us look at tbe -circumstances. First. Defendant was refused a change of venue; and while a majority of tbe court cannot say, that tbe court below so far abused tbe discretion reposed in it by tbe Code, • in refusing tbe change of venue, as to amount to error, yet we can well conceive that any person might, with much degree of confidence, have relied ujron obtaining such change, and that the refusal thereof, would almost necessarily take him by surprise. It is said, that ignorance of the law excuseth no man, and that the prisoner cannot claim protection, because be acted upon a mistaken view of what tbe court would bold on this question. But this rule should not be applied with its full rigor,, without reference to the character of tbe question involved, or the circumstances under -which tbe ruling was made. Such refusal should, at least, have weight, as an equitable consideration, in determining this question.
[519]*519. In tbe second place, it is a matter of doubt in tbe mind of at least one member of tbe court, wbetber. tbe prisoner was not entitled to tbe presence of bis witnesses, and wbetber the state could, by admitting tbat tbe absent witnesses, if present, would state tbe facts set forth in tbe affidavit for a continuance, compel bim to go to trial. This practice is found in our Code, alone in tbe chapter regulating civil proceedings; and there are, at least, plausible grounds for bolding tbat it does not apply to criminal trials. Tbe prisoner, by tbe constitution, has a right “ to compulsory process for bis witnesses,” and if be insists upon it, it would seem but reasonable, that sucb process should be made fully effectual in bringing bis witnesses before tbe jury, tbat their credibility might be judged,' and their testimony have, weight and influence, as well from their manner and appearance, as from tbe agreement of sucb testimony with other proof. But without determining this, it is sufficient to say, tbat tbe circumstance tbat be was thus tried, without the presence of bis witnesses, should have some weight in determining wbetber be should not have another trial, 'in order to produce said witnesses, who, it is evident, axe material and important in bis defence.
Again: tbe constitution guaranties to every person charged with crime, tbe assistance of counsel.
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Wright, C. J.
Tbe counsel for tbe prisoner, bave urged several alleged errors, arising on tbe record before us, either of wbicb it is claimed, must reverse tbe cause. We shall,, however, pass upon but one. And that is, should tbe court below bave granted tbe prisoner á new trial ? To determine this, it becomes necessary, to refer, somewhat in detail, to tbe motion made therefor in tbe court below. This motion was made on substantially tbe following grounds. Defendant filed bis affidavit setting forth that for six months previous be bad been sick, and for most of tbe time confined to bis bouse; that upon consultation with bis counsel, be bad concluded be must obtain a change of venue to another judicial district, in order to secure a fair and impartial trial, and that bis counsel informed him, and be verily believed, that upon making tbe proper affidavit, tbe venue would be changed; that be bad expended all bis means in tbe payment of bis counsel; that but one of them continued in bis defence, after tbe venue bad been changed; that sick and feeble, and with bis mind so confused and excited, that be was unable to attend to tbe most ordinary business, be came to that court; that tbe overruling of tbe application for a change of venue, took him by surprise; that but one of bis original counsel remaining, be bad to depend upon tbe assistance of appointed counsel, who was a stranger to, and unacquainted with bis cause; that thus circumstanced, be attempted to prepare for trial, but that because of bis sickness and tbe excited state of bis mind, be could not recollect tbe names of bis witnesses, nor what be expected to prove by them, and that many important items of testimony were thus omitted to bis prejudice. He then refers to bis former affidavit for a continuance, and to tbe fact be bad there omitted to. refer to, tbe absence of several witnesses material to bis defence, because of .bis surprise in being refused a change [517]*517of venue, and tbe condition of bis mind, from bis feeble state of bealtb; and that these witnesses were subpoenaed, but bad failed to attend. He then proceeds to detail tbe substance of tbe testimony of these absent witnesses, to which it is unnecessary to refer, further than to say, that he swears to its materiality, founded on his own belief and the advice of counsel He also says that on another trial, be could impeach tbe .testimony of a certain material witness for the ■state, by persons whose names he gives, as also what they will swear. ' He also states that he was entirely and completely taken by surprise by the testimony of a certain Mrs. Mozena, whose testimony on the previous trial had been his ■chief reliance, to show that -the deceased was advancing on him, with a drawn club, at the time the blow was given, which was claimed to have eaused his death; but that on the trial producing his conviction, she had testified to the reverse, and that he, the prisoner, was, in fact, advancing on the deceased, and the deceased retreating at the time. And finally, he says be can prove, if a new trial is granted, by other witnesses, that tbe deceased was advancing on him with a drawn club, at the time the fatal blow was struck. He also produces the affidavit of three persons, who state, that the witness, Mrs. Mozena, on the first trial, did swear that as the prisoner “ stepped back, the deceased advanced toward him with a stick of wood raised,” one of tbe affi-ants being of counsel for tbe prisoner on said former trial. He also produces the affidavit of his son (who was named ■as an absent witness in the affidavit for a continuance, and whose testimony was, as already stated, in that way before the jury), who states that the deceased was advancing on his father with a drawn club, at the time he was struck; that the deceased raised his club first, and that the difficulty or -affray all occurred so quick, that bis father had no time to escape; and that the reason of his not being at the trial was, that his mother and three of his brothers and sisters were sick, and that there was no person to leave them with, except one small brother; that being some thirty miles distant, it was impossible for him to leave home, after be bad received [518]*518tbe message requiring bis attendance. Tbe record also tends; to show, that “ on tbe trial, a large heavy stick or bludgeon was introduced and exhibited before the jury, as tbe one used by tbe defendant in giving the fatal blow, and was. commented upon, but not identified.” We say that tbe record tends to show this, for it is difficult to say, from tbe very confused record, whether tbe language above quoted, is part of tbe matter contained in the- motion for a new trial, or is set forth in tbe bill of exceptions as a fact that actually occurred.
Tbe question that we are now to determine is, whether,, under tbe circumstances, tbe court below erred in refusing- a new trial; or whether, without fault or negligence on bis part, tbe prisoner has bad that fair and impartial trial,, which is guarantied to him by law. "We have partially examined all tbe circumstances, and have come to tbe conclusion, that such new trial should have been granted; the most prominent reasons for which are these : In coming to this conclusion, we give no weight to those matters stated in tbe affidavit of defendant, which are not fairly and legitimately sustained by tbe statements of other persons, and by tbe record. With this preliminary remark,- let us look at tbe -circumstances. First. Defendant was refused a change of venue; and while a majority of tbe court cannot say, that tbe court below so far abused tbe discretion reposed in it by tbe Code, • in refusing tbe change of venue, as to amount to error, yet we can well conceive that any person might, with much degree of confidence, have relied ujron obtaining such change, and that the refusal thereof, would almost necessarily take him by surprise. It is said, that ignorance of the law excuseth no man, and that the prisoner cannot claim protection, because be acted upon a mistaken view of what tbe court would bold on this question. But this rule should not be applied with its full rigor,, without reference to the character of tbe question involved, or the circumstances under -which tbe ruling was made. Such refusal should, at least, have weight, as an equitable consideration, in determining this question.
[519]*519. In tbe second place, it is a matter of doubt in tbe mind of at least one member of tbe court, wbetber. tbe prisoner was not entitled to tbe presence of bis witnesses, and wbetber the state could, by admitting tbat tbe absent witnesses, if present, would state tbe facts set forth in tbe affidavit for a continuance, compel bim to go to trial. This practice is found in our Code, alone in tbe chapter regulating civil proceedings; and there are, at least, plausible grounds for bolding tbat it does not apply to criminal trials. Tbe prisoner, by tbe constitution, has a right “ to compulsory process for bis witnesses,” and if be insists upon it, it would seem but reasonable, that sucb process should be made fully effectual in bringing bis witnesses before tbe jury, tbat their credibility might be judged,' and their testimony have, weight and influence, as well from their manner and appearance, as from tbe agreement of sucb testimony with other proof. But without determining this, it is sufficient to say, tbat tbe circumstance tbat be was thus tried, without the presence of bis witnesses, should have some weight in determining wbetber be should not have another trial, 'in order to produce said witnesses, who, it is evident, axe material and important in bis defence.
Again: tbe constitution guaranties to every person charged with crime, tbe assistance of counsel. The spirit of this provision would seem to iuclude, not only tbe assistance of some person learned in tbe law, but tbat be should be appointed at sucb a time, as tbat be could truly be of aid and assistance to the accused. In this case, it appears, and’ is not controverted, tbat two of tbe counsel originally employed by tbe prisoner, were absent; one only remained. Another was assigned bim, and amid tbe burry of refusing tbe change of venue, and tbe application for a continuance, they entered upon his defence. Whatever their energy and ability, we think, tbat under sucb circumstances, they could be but little prepared to discharge fully tbe onerous and delicate duties devolving upon them. On this ground, also, then, we should hesitate before we-conclude tbe prisoner [520]*520from a further bearing in. a cause, which so vitally affects Ms liberty, and even Ms life.
And again: it is urged, that tbe prisoner was taken by surprise, by tbe testimony of Mrs. Mozena. The instances, in which courts have granted new trials for this cause alone, are numerous, each one depending on its own peculiar circumstances. In this case, it is shown by tbe sworn statements of the prisoner and three other, persons, that on tbe first trial, tbe witness testified to matter wbicb clearly tended to show, that tbe accused was acting in self defence; and on the last trial, it appears by tbe affidavit of one of tbe counsel, as also of tbe defendant, that she testified that be advanced towards tbe deceased, before tbe fatal blow was given. That this testimony was material, and on a point on wbicb tbe whole defence turned, is very evident, and is not controverted. It is true, we cannot say that be was entirely without fault, in not preparing for this development, or in not breaking its effects, after it occurred; but we think it is fairly deducible, that bis position was such, that be could not reasonably have foreseen or prepared to obviate it. For this cause alone, we should strongly incline to give tbe prisoner a future bearing, that be may have a fair and full opportunity, being forewarned, to relieve himself from tbe effect of a surprise, that would seem to be almost fraudulent in its character. And when taken in connection with all tbe other facts developed, it receives much additional weight and importance. If be was being tried before a judge, who, be believed, was prejudiced, and before whom be did not believe be could obtain a fair and impartial trial; if be was deprived of tbe personal attendance of important witnesses; if be was deserted by bis former counsel, and bad to depend, in part,, upon tbe assistance of one who was a stranger to bis defence, bow embarrassing it must have been to him. to have tbe material witness for bis justification, become bis accuser, is palpable to any comprehension.
Another important consideration, is tbe exhibition of tbe club or bludgeon before the jury, as tbe one with wbicb tbe alleged homicide was committed, without its being identified. [521]*521If it clearly appeared that this was done, it would alone be ample cause for reversing this case.
Indeed, the improbability that any court would permit so flagrant an outrage on the rights of a prisoner, should, and does, lead us to doubt whether it is sufficiently shown to have been done. To say the least of it, however, it is a matter of so much doubt, that we should give the prisoner the benefit of the objection.
"Without further enlarging, we conclude by saying, that did the determination of this cause, depend upon any one of the above grounds, we should not be unanimous, in reversing the judgment and ordering a new trial. When considered together, however, and viewing the case in its most equitable circumstances, we cannot believe that‘the prisoner has had that full, fair, and impartial trial, which is secured to him by law; and without which, no man should suffer its penalty. There may have been negligence on his part, but we think none such as should close his mouth against complaints, or deprive him of the right of being again heard before a jury. The authorities for ordering new trials, even in appellate courts, on such general view of all the equitable circumstances, are numerous and well sustained. Warren v. State, 1 G. Greene, 110; Jones, Scott & Co. v. Fenimore, Ib. 134; Jerry v. State, 1 Blackf. 395; Mahan v. Jane, 2 Bibb, 33; Hughes v. McGee, 1 Marshall, 29; Millar v. Field, 3 Ib. 109; Haggin v. Christian, 1 Marsh. 591; Jackson v. Warford, 7 Wend. 62; 1 Archb. Cr. Pl. 177, note 1.
Judgment reversed, cause remanded, and new trial granted.