The court refused the motion, but gave time to the prisoner’s counsel to join in a commission to Philadelphia, by consent of the district attorney, to obtain the testimony of the witnesses named in the affidavit, to be read upon his trial; and further stated that if the counsel for the prisoner did not choose to comply with the recommendation of the court, and a subsequent application was made for the postponement of the cause, he would be compelled to show the facts such witness was expected to prove.
Price again moved the court, being the last day of the term, for a postponement of the case to the next term.
He offered an affidavit he had received from Mr. Walton, sworn to before Mr. Barker, and alderman of the city of Philadelphia. The District Attorney objected, and said he might have joined in a commission, since the last motion : it might have been executed and returned : it was clearly irregular to read affidavits obtained in this exparte and informal manner.
Price finding the members of the court against an adjournment, handed the clerk a writ of certiorari.
*29Note.—Let the depravity of the criminal be ever so great, and the fact of his guilt ever so apparent, he may, by offering the court sufficient reasons, obtain a postponement of his trial. But it is due to him ex gratia, and not of right.
1. If by publication of the circumstances of the case, the pub-lie mind has been improperly influenced, 1 Burr. 510, 511.
2. Where a person charged, consents to become a witness, and fully and fairly discloses the guilt of his associates. In \ such case, if he is prosecuted at all, the court will postpone the case, to give him time to apply for a pardon, &c. Cow. 339, 340.
3. Where a witness, whose evidence is material to the trial," has no sense of the obligation of an oath. The case will be adjourned and the witness instructed in the principles of moral duty. 1 Leach Cas. 430. n. a.
4. Where the counsel of the prisoner is unable to attend, through sickness. Say. Rep. 63.
5. By an affidavit of the absence of a material witness. Foster, 2.
The trial will not.be postponed.
1. If the witness was present when notice of trial was given. Barnes, 442,
2. Where the witness resides in a foreign country, out of the reach of the process of the court, and not expected to return. 8 East, 37. 3 Burr. 1514. 1 Black. Rep. 510.
3. Where the prisoner has been guilty of laches, or delay. 1 Black. Rep. 514.
4. Where the testimony expected goes to character only. 8 East, 34.
Formerly it was held, that an affidavit properly verified, of the absence of a material witness, has always deemed sufficient to postpone a trial; and withopt stating the facts such witness would be expected to prove. It was ruled to be sufficient in cases of treason, felony, and misdemeanors.
But courts of law have become a little more strict. The case of Mr. Charles Radcliffe, Foster, p. 40. is a leading one. The prisoner was charged with treason, and the postponement of the trial was refused, although the affidavit was in the usual form, and stated *30the witness was materia!. The trial proceeded, and he was after-wards executed.
following note, inserted between brackets, in Bac. Abr. Title Trial, vol. 6, letter H. p. 650. seems too fall of good sense to pass unnoticed. It lays down the rale. Whore there is bj cause of sue* piden, the affidavit should state : The
I. That the witness is material.
8. That the prisoner has endeavoured to obtain his attendanco.
3. That he is in hopes of procuring it.
But if there is cause of suspicion the court should be satisfied from circurnsiancis.
1. That the witness is materia!.
3. That the prisoner has not been guilty of laches.
3. That he has a reasonable expectation to have his attendance, &e. Vide. 3. Burr. 1514. 1 Black. Rep. 436.
The following cases in point, have been decided in this court, and the ■ above rule has been fully recognized.
In John W. Brigham’s case, City Hall Rsc. Vol. 1. p. 30. the facts were these : Bingham was indicted for a larceny, and made an affidavit in the common form, for the postponement of the trial. The affidavit also stated that he expected to prove by the witness that he took the article, by mistake, for his own. Counter-affidavits were admitted to show that the witness could not be material; they prevailed, and the prisoner was convicted and sentenced.
The case of Catharine Foote, Post, page—is also a case in point. Tí¡e prisoner was charged with keeping a disorderly house, of a peculiar kind, where young girls were seduced, &e. She presented an affidavit to the court stating that a Captain --r, who has gone to Savannah, was a material witness, without whose testimony she coaid not safely go to trial,, and that she expected to be able to procure his attendance at the next term. The court refused the motion for a postponement, unless the prisoner would state the facts she expected to prove by Captain-:—, which was not done, and the trial proceeded: sho was convicted and sentenced to two years imprisonment.