This is the second appeal of this case. In Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982), we ordered a retrial because the trial court had refused to instruct the jury on justification, commonly known as self-defense. Doles shot James “Sonny” Harris either in the doorway or on the front porch of the house where Doles and his father both lived in Amity, Arkansas, located in Pike County. At his first trial Doles was convicted of second degree murder and sentenced to 20 years imprisonment; the judgment was exactly the same in his second trial.
This time Doles argues that his conviction should be reversed because there was insufficient evidence to support the charge because Doles was in his own home and any killing there is presumed to be justified; he also argues that the trial court should have admitted a statement taken from Lisa Dean who was present at the killing and was unavailable at the first and second trials. We find no error and affirm the judgment.
Whether the killing was justified was a jury question. The jury was instructed on a recent Arkansas statute although it was not in force at the time of the killing. That statute is Ark. Stat. Ann. § 41-507.1 (Supp. 1983), which essentially provides that there is a legal presumption that any force used in one’s home is justified unless overcome by clear and convincing evidence. This statute has not legalized murder. The jury undoubtedly found from the evidence Doles knowingly caused the death of Harris under circumstances manifesting extreme indifference to the value of *301human life — conduct which constitutes second degree murder.
Doles and Harris were acquaintances and on the day in question they were arguing about Lisa Dean and Harris’ treatment of her. Doles had originally picked Dean up as a hitchhiker, but she was living with Harris at the time of the killing. Harris was drunk that day. The autopsy showed he had a blood alcohol content of .28 — a very high content. Doles said he knew Harris was drunk. When all the parties finally arrived at the home of Doles’ father, about 1:00 a.m., the argument continued. Lisa Dean was present. Doles’ father, hearing the argument, came out of the home and pulled a knife. Doles took the knife away. Later, his father got the rifle with which Harris was shot, and Doles took that from him.
Harris had no gun. He was merely advancing on Doles when Doles shot him. Harris’ arms were at his side. Doles shot him, probably as he reached the doorway of the home. When the police arrived, Doles’ father at first lied, saying he had shot Harris. The body was found outside the door on the porch; the officers testified that, in their judgment, it had not been moved. Harris was five feet four inches and weighed about 125 pounds; Doles was six feet two inches and weighed 170 pounds. Harris was drunk, Doles evidently was not. Doles claimed that he shot Harris out of fear. The j ury found the killing unjustified. We cannot say there is not substantial evidence to support the verdict, which is our test on review. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983).
Lisa Dean disappeared. She could not be located for the first trial and the parties stipulated she could not be found for the second trial. The appellant argues that since Lisa Dean is unavailable, he is entitled to either an indefinite continuance or, in the alternative, that the State must admit the veracity of Dean’s statement. We ruled in the first case the statement was hearsay and not entitled to admission as an exception to the hearsay rule because it did not qualify under the usual exceptions, and did not have “equivalent circumstantial guarantees of trustworthiness.” Unif. R. Evid. 804. That ruling applies to this case. The appellant concedes that *302but contends the constitutional right to compulsory attendance of witnesses requires that Dean’s statement be introduced and that the State admit its veracity or, in the alternative, that he be granted an indefinite continuance. That is not the law. A person is not entitled to an indefinite continuance simply because a potential witness cannot be located. The elements of the diligence of the defense and the cooperation, or lack of it, on the part of the State are highly relevant in such cases, as is the likelihood of the movant ever procuring the witness. Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973). The State had tried to locate this witness, and the parties agreed that she could not be found and there was no basis for believing that she could ever be located. The court issued a subpoena but it was obviously a futile effort. Where there is no evidence that a witness can ever be procured, denial of a continuance is proper. See Thacker v. State, supra; McCarthy v. State, 90 Ark. 384, 119 S.W. 646 (1909).
The constitutional right to the compulsory attendance of witnesses is the right to have the force of the judicial process available to secure a witness’ presence. Ark. Const, art. 2, § 10. See Graham v. State, 50 Ark. 161, 6 S.W. 721 (1889). Doles cites Arkansas cases where the State agreed to admit the truth of the facts in affidavits in order to avoid delays. See, e.g., McCarthy v. State, supra; Graham v. State, supra. See also Ark. Stat. Ann. § 27-1403 (Repl. 1979). That principle cannot be distorted to compel the State to admit facts favorable to the defense’s theory where a defense witness is unavailable. Doles had the force of the judicial process available to him and that is all the constitution requires.
Affirmed.
Purtle, J., dissents.