10 Ga. 85 | Ga. | 1851
By the Court.
delivering the opinion.
Did the Judge err, in overruling the application for a continuance in this case ?
In determining this question, it may be urged on the one side, that if persons are permitted to postpone their trials on slight grounds, that but few criminals will be brought to justice. To say nothing of other casualties and chances, the jails in many of the Counties are so insecure that with the assistance of confederates from without, many effect their escape, and thus elude the criminal justice of the country. Besides, as the Courts are held only twice in the year, the expense, from delay, becomes a grievous burthen to the Counties.
On the other hand, the rights of humanity require, that every citizen, whom the law presumes innocent till found guilty, should have a fair and impartial trial, and every reasonable indulgence allowed him to procure his witnesses. That there is no crime so great — no proceeding so urgent, but that the Court would, upon proper grounds, grant this motion.
With these general observations, let us proceed to examine the affidavit upon which the continuance was claimed.
The prisoner states, that he has employed in his defence, Charles J. McDonald, Esq. and that said counsel is absent without his leave or consent; that the bill of indictment was
In Post vs. Wright & Buchan, (1 Caines’ R. 111,) the absence of counsel was urged as an excúse, but the Court refused to admit it. Hoffman pressed strongly the rigor of the practice, and said that it was the first instance where such strictness had been enforced. The Court answered, there must be a first time in all proceedings.
In Sayer vs. Finck, (2 Caines’ R. 336,) the same excuse was reluctantly admitted, though the plaintiff’s counsel was absent, from an opinion that the cause would not come on, induced by expressions from the partner of. the attorney on record, for the plaintiff.
In McKay vs. The Marine Insurance Comyany, (Ibid, 384,) the Court refused a continuance on account of the absence of counsel, declaring that all excuses of that sort ought to be discountenanced.
In The lessee of Shultz vs. More, (1 McLean’s R. 334,) it was held, that where the leading counsel in a case is prevented from attending the Court by sickness, and the counsel in attendance is not prepared to go on with the trial, it is good cause for a continuance. The motion was based upon the affidavit of the counsel himself, which stated that he was sick and unable to attend the Court — that the affiant was the first counsel engaged by the defendant — had appeared as his attorney in the same case in the State Court, and was intimately acquainted with the grounds of defence — that he had possession of the papers, and that he did not believe justice could be done in the cause, under present circumstances, in his absence.
In the case between the States of Rhode Island and Massachusetts, (11 Peters, 226,) the senior counsel appointed by the Legislature to argue the cause for the State of Rhode Island, was prevented by unexpected and severe illness, attending the Court, and the Supreme Court, on the application of the Attorney General of the State, ordered a continuance for the term, though not without strenuous opposition from Mr. Austin, the Attorney General of the State of Massachusetts ; andthehnotion was argued on the peculiar character of the cause, it being a controversy between two of the sovereign States of the Confederacy, upon the decision of
The Comt, therefore, did not err, in our opinion, in refusing the application on this ground.
The record does not disclose when the prisoner was arrested and committed — whether at, or immediately preceding the term at which he was tried, or months beforehand.
Some have thought, that a person merely charged with an offence before a Magistrate, and previous to indictment found and issue joined, could not of right, have compulsory process for
To place the accused on equal ground with the prosecution, it would seem that the latter construction ought to he adopted. hi witnesses, from the time of arrest and commitment, may be recognized to appear in behalf of the State, why should they not for the accused ? Why should the public be allowed the means of securing the evidence to convict, and not the prisoner to prove his innocence ?
Tested by this rule, this affidavit is insufficient.
A person indicted for felony, made affidavit that he had four material witnesses who were absent, without naming them, or that he expected to be able to get their attendance. It was held that a continuance could not be granted. Hurd’s Case, 5 Leigh, 715.
In Springer vs. Mendenhall, (3 Harrington (Del.) 381,) a continuance was refused, though the party had been in prison six weeks before the term at which the bill was found.
Let the judgment be affirmed.