Lester v. StateLester v. State
- Reporters:
- Before:
- Bissell
The mittimus is сlaimed to he void on the ground that the petitioners and Vandole were ordered to be*418come jointly bound, with sureties, for their аppearance: that each was to become bound, not only for his own appearance, but for the appearance of thе others. But the view taken of this case, by the court, renders it unnecessary for thеm to express any opinion upon the question regarding the validity of the mittimus. The оbjections taken to it, if well founded, are purely technical;-and there are are other grounds, upon which, we are clearly of opinion, that this application must be denied.
It hardly need be remarked, that a petition for a new trial is addressed to the discretion of the court, and will never be granted but upon substantial, and not upon merely formal grounds ; nor where the court cаn see, that strict justice has been done. Stokes v. Saunders, admr. 3 Doug. 401. (26 Serg. & Lowb. 163.) Wilkinson v. Payne, 4 Term Rep. 468. Smith v. Frampton, 2 Salk. 644. Barber v. Brace, 3 Conn. Rep. 9. White v. Trinity Church, 4 Conn. Rep. 188. Kimball v. Cady, Kirb. 41. Lewis v. Hawley, 1 Conn. Rep. 49, 3 Bla. Com. 392.
What then, are the claims of thesе petitioners? And what is the case which they bring before the court ?
The claim is, that there is an informality in the mittimus, by which they werе held in custody; and which, in technical strictness, rendered their imprisonment unlawful; and, therefore, instead of resorting to the proper tribunals for redress,they assаulted the gaoler and his assistants, with a deadly weapon ; and with malice and settled design, attempted to take their lives.
They knew the contents of the mittimus. Did they then believe, that they were lawfully imprisoned ? If they did, they clearly incurred all the moral guilt, which would have rested upon them, had the imprisonment been strictly legal.
If they knew the imprisonment to be unlawful, this presents another alternative equally fatal to this petition, as will be shеwn hereafter.
Again ; a new trial will never be granted on the ground of newly discovered evidence, if that evidence might have been adduced, on the former trial, by the use of due diligence ; nor will it be awarded, to let the party into a defenсe, of which he was apprised at the former trial. Cooke v. Berry, 1 Wils. 98. Noyce v. Huntington, Kirb. 282. 1 Sw. Dig. 787, Vernon & al. v. Hankey & al. 2 Term Rep. 113.
*419In the case of Penprase v. Johns & al. 2 Nev. & Mann. 376. (28 Serg. & Lowb. 362.) which was an action against magistrates for a distress under a regular conviction, but by a warrant informal in not setting out the jurisdiction, the court, after verdict for the defendants, refused to grаnt a new trial, the objection to the warrant not having been taken at the triаl, and being strictissimi juris.
These principles are founded in the highest reason and good sense ; and their applicability to the case under consideration, is exceedingly obvious.-Might not the ground upon which this application is rested, havе been taken on the trial ? Suppose the mittimus had been read in evidence, and not objected to; would the court grant a new trial, for the purpose of suffering the objection to be raised ?
But it is said, the petitioners’ counsel wеre not informed of the contents of the mittimus, and supposed it a valid warrant. And why were they not informed ? It was only necessary for them to read the document. But wеre the petitioners ignorant of the informality ? If they were so, we have seеn the consequence. If they were not, why were not their counsel instructed ?-Thеy did not object to, but acquiesced in, the course that was taken. And why was that course taken ? We are told. It was to prevent that prejudice, which might havе been created in the minds of the jury, by a statement of the cause of the сommitment. The petitioners adopted a course, which they thought the most likеly to induce their acquittal. It has proved unfortunate : and we are now asked to grant this application to let them into a defence, of which they might hаve availed themselves on the former trial.-If parties might be permitted thus to sрeculate, there would be no end to trials ; and the mis-chiefs thus introduced would be beyond endurance.
We would hesitate long before we granted a new triаl upon mere technical grounds; and especially, when we can seе, that the great ends of justice are not to be subserved. We know of no principle and no analogy within which this petition can be sustained.
Let the superior court be advised, that the petition is insufficient.
In this opinion the other Judges concurred.Petition insufficient.