These defendants, and six others, were indicted in August last, (1826,) for a conspiracy to defraud several incorporated companies, and several individuals, named in the indictment. A trial was had of all the defendants, in the oyer and terminer in September last; but no verdict. Another trial was had of three defendants, and some of the others in November last; when the defendants, now before us, were convicted. But before judgment was given, the cause was removed into this court by certiorari; and at the last May term, a new trial was granted, for irregularity in receiving a juror on the second trial, who, when called to the book, admitted he had formed and expressed an opinion as to the guilt of the defendants, from having heard the whole testimony on the first trial. Joseph Gr. Swift, was tried separately in the oyer and terminer, after the trial of these defendants, and was acquitted.
According to the usual, and, I believe, invariable practice of this court, the record was retained ; and a trial or*
The defendants, Barker and Vermilyea, now move for a
1. Barker’s papers were withheld, and in possession of the district attorney. It certainly does not appear that Barker used due diligence to obtain these papers. It is true, that the district attorney had them, and informed Barker that he had them not. But they would have been obtained, if the mistake had been explained ; or, if then refused, application should have been made to the court, either to compel their delivery, or to postpone the trial on the ground that this was refused. [1]
2. Exception has been taken to some of the .jurors, which has béen very properly abandoned as to all except Bruen. The declarations relied on, were made nine months before the trial, and soon after the indictment found, What the juror’s opinion was founded on, does *not appear. But, as he was not on the grand jury, it could not have been on hearing the testimony. It was probably on common report. But the charge is denied by the juror himself. Other facts are shown, which render it improbable that the words imputed were ever spoken; and his conduct in the jury room shows, that if they were spoken, he had changed his Opinion before the trial, He then seemed rather friendly to Barker than otherwise.
3. The mode of drawing the jury was correct. The act, (1 R. L. 331, s. 20,) directs, that the clerk of the court, or some other indifferent person, by direction of the court,, shall, in open court, draw out twelve of the papers or parchments, one after another; and if any person, whose name shall be so drawn, shall not appear, or be challenged and set aside, then such further number thereof shall be drawn as shall make up the number twelve, who do appear,
4. Another ground is, the acquittal of Davis. He has become a competent witness in virtue of his acquittal; but the absence of all authority on the point, is a strong argument against the sufficiency of this ground for granting a new trial. [1] Such a rule would be highly inconvenient in practice. The proper course was, if the testimony against *Davis was slight, to have the jury pass on his case, and then introduce him as a witness on behalf of his co-defendants. Such testimony is not newly discovered, though the acquitted defendant is now, for the first time, competent as a witness. This ground, of itself, cannot be considered sufficient, though I will not say, that, among other considerations, it is not entitled to some weight.
5. A separate trial was refused. The judge, who pre sides at a trial, must exercise a discretion upon many questions. In The People v. Howell, (4 John. 302,) it is said, that in all cases where the right to peremptory challenge does not exist, defendants jointly indicted may be tried either jointly or separately; and when two or more persons are charged in the same indictment with a capital offence, a separate trial, without the consent of the public prosecutor, is not matter of right in the parties, but of discretion in the court. (U. States v. Marchant, 12 Wheat. 480.) In case of an indictment for a conspiracy to commit a joint
6. The defendants asked for a postponement of their trial, on account of the absence of a material witness. This is a good ground for putting off a trial under certain circumstances. When there is no cause for suspicion that the object is delay, it is sufficient to state that the absent witness is material ; that he cannot be procured at the time when the trial is about to be brought on; and that there is reasonable ground to expect his future attendance. But if there are suspicious circumstances attending the application, then the court will require the party to be more minute in stating the circumstances and facts on which the *application rests. This general rule is found in books of practice both civil and criminal. (2 Tidd, 708; 1 Archb. 210; 1 Dunl. 586, 7; 1 Chit. Cr. Law, 492.)
The case of The King v. D‘Eon, (1 Bl. Rep. 510, and 3 Burr. 1513,) is a leading case on this subject; and contains the principles which have since prevailed in relation to putting off trials. Lord Mansfield says in that case, “ three things are necessary to put off a trial. 1. That the witness is really material, and appears to the court so to be. 2. That the party who applies has been guilty of no neglect. 3. That the witness can.be had at the time to which the trial is deferred.” Wilmot, J., said the rule is the same in criminal and civil cases; and Yates, J., said, whatever indulgence the law gives to defendants in civil cases, it ought, a fortiori, to give in criminal.
In that case, however, the motion was denied; the court not being satisfied upon any of the points necessary to' be sustained. First, it was apparent that the witnesses named
In the case of The King v. Jones, (8 East, 31 to 37.) the defendant moved to put off his trial, till he could procure testimony from Barbadoes, Grenada and Dominica. The motion was made upon the common affidavit; but the court required him to show in what respect the evidence was material; recognizing the whole doctrine in D‘Eon’s case. Lord EUenborough intimated that in ordinary cases, *the common affidavit was sufficient when the trial was to be put off from one assizes or sittings to the next; but when so long a time must intervene, it was necessary to be more particular; there being a temptation to offenders to gain time. Lawrence, J., said it was not required of him to state his evidence, but the nature of it. Accordingly, at another day, he made another affidavit, showing generally the nature of the transactions in question; and that the persons named were acquainted with them; that the application was not for delay; but to obtain evidence which he was advised and believed to be material. The motion was not further opposed by the attorney general; and was granted, the court relying on the case of The King v. D‘Eon.
This court has several times granted a new trial, when, as it appeared to us, the defendant’s application to put off his trial should have been granted. In Ogden v. Payne, (5 Cowen, 15,) the judge refused to put off the trial on the common affidavit; requiring the defendant to state what
In the case of Hooker v. Rogers, (6 Cowen, 577,) the witness was unable to attend; and this we held sufficient cause for putting off the trial; saying, that substituting an ^"examination of witnesses on interrogatories for their personal attendance, might prejudice the defendant’s rights. He was entitled to their personal attendance.
In all cases of this description, the questions are. 1. Is the witness material ? 2. Has the defendant been guilty of any laches ? 3. Can the attendance of the witness be procured at the next court? If these questions can be satisfactorily answered by the defendant, his trial should be postponed.
Let us see how the present defendants appeared, and answered these interrogatories in June last, when their causes were brought on to trial. The materiality of the testimony, was sworn to by them, not by way of the general affidavit; but stating particulars to the satisfaction of the judge who held the court. This was going farther than was necessary in the first instance, unless laches were imputable to them. As to the 2d particular; can it be said that any culpable negligence was imputable to them ? There had bean two trials in the oyer and terminer, when this cause re
But if laches are imputable to them, they have done all that can be required. They have disclosed what they expect to prove by them witness. I am aware that this is not now entirely conceded j but it was conceded by the judge at the circuit, who was in the first instance the judge of the sufficiency of their disclosure. Without laches, the general affidavit would have been enough. But being guilty of laches, they atone for it by disclosing the evidence they expect from their absent witness. The judge was satisfied on that point; and I think correctly.
Thus far, the judge appears to have acted discreetly and correctly. If he erred at all, it was in compelling the defendants to go to trial on the admission of the public prosecutor, that if their witness was present, he would swear as the defendants expected he would.
If it be admitted that the defendants were entitled to the testimony of the witness, then the only question is, had they the benefit of his testimnoy ? In my judgment, most clearly they had not. When testimony was given *showing, prima facie, that the witness could not swear as it was admitted he wohld, without being guilty of a contradiction, could the jury shut their eyes to the fact which was staring them in the face, that Glen. Swift had not sworn anything about it ?
It is true that had the witness been examind on commission, (and this is all the testimony the defendants are sure of obtaining,) his testimony might still have been attacked in the same way. But they will then, at least, have the oath of the witness; and such interrogatories may be put as will lead to a full disclosure of all the facts necessary to every explanation. But should the defendants procure the personal attendance of the witness, and this does not seem to have been thought improbable at the circuit, then it cannot be pretended but that the defendants would be in a much better situation, than with the stipulation of the district attorney.
The practice of requiring concessions in such cases is novel; and I apprehend not well calculated to advance jus
Though this is comparing small things with great, still the principle is the same. The defendant before the justice, by his oath, was entitled to an adjournment. So were these defendants. The right of the defendant before the justice arose under ttie statute, and the right of these defendants by virtue of the common law. Both laws are of equal obligation. When the defendants here and before the justice had, by their affidavits, brought themselves within the provisions of the law, there was no more discretion in the one case than in the other. The discretion of both was a legal discretion: the very same discretion which
Under these views of the rights of the parties, and the power and discretion of the court, I feel hound to say that an error was committed in compelling the defendants to accept of the offered stipulation: and, of course, that a new trial must he granted.
[1].
See Com. v. Williams, 2 Ashm. 69; Gilbert v. State, 7 Humph. Rep. 524; Bennett v. Com., 8 Leigh, 745; Com. v. Benesh, Thatch. Cr. Cas. 84; State v. Harding, 2 Bay, 267; Friar v. The State, 7 How. Miss. Rep. 365; The State v. Blennerhassett, Walker’s Rep. 7.
See.fdrthér Waterman’s Archhold’s Cr. Practice & Pleading, tit New Trial.
(a).
Would not the statute be considered as directory merely; and satisfied by either course, if no abuse appear ? (Vid. Cole v. Perry, 6 Cowen. 584).
[1].
See U. S. v. Gilbert. 2 Sumner. 20; Com. v. Chauncey, 2 Ashmead, 90.