18 N.H. 173 | Superior Court of New Hampshire | 1846
The statutes provide that “ every person indicted for any offence, the punishment of which may be death or confinement to hard labor for life, shall be entitled to a copy of the indictment before he is arraigned thereon; a list off the witnesses to be used on the trial, and of the jurors returned to serve on the same, with the name and place of abode of each, to be delivered to him forty-eight hours before the trial; counsel, learned in the law, not exceeding two, to be assigned him by the court, at his request,” &c. Rev. Stat., ch. 225, sec. 8.
Under this clause of the statute, the respondent, now plaintiff’ in error, after one witness had been examined without objection, excepted that the place of abode of the several witnesses was not designated in the list of witnesses which had been furnished him.
Undoubtedly it is competent to the respondent, when a witness is called in such a ease to be examined against him, to except that such witness is not named in the list furnished to him, for the purpose of excluding the testimony of that witness. And it seems to be equally clear that he may, in like manner, except that the place of abode of the witness has not been furnished or designated, for a like purpose, if the objection does not equally apply to the whole list, so as to be in effect that no list, such as the statute requires, has been furnished.
The plaintiff in error might have taken this exception
We are of opinion that it is not competent to a respondent, at that stage of the proceedings, to take an exception to the list of witnesses, nor to take an exception of that character to an individual witness, which is alike applicable to all the others. It is, in effect, an objection that no evidence can be admitted except at the pleasure of the respondent, and that, if he permits the case to proceed, no witness can be examined except by his consent. It is, substantially, that no list, such as the statute requires, has been furnished to him. If such be the fact he may object, when the case is called, to proceeding with the trial until the requisition of the statute is complied with. And if he do not take the objection at that time and for that purpose, as he may do, but proceeds with the trial without objection, he must be regarded as waiving it, unless the court, in its discretion, should 'afterwards receive the objection for the purpose of postponing the trial, in order that a proper list may be furnished. The statute was intended to secure to persons indicted means of information which would enable them to make their defence, and not to furnish them an exception, to be shrewdly used as a means of escape from justice.
For both of these reasons, there was ¡no error in the ruling in relation to the list.
Nor was there error in the refusal to instruct the jury that they could only convict the respondent of an assault, because a copy of the indictment was not furnished to him before he was arraigned. The exception is ingenious, but utterly unsound. Some of the reasons already suggested respecting an objection to the list of witnesses, apply here. The provision is intended to secure to the respondent full means of information respecting the charge which is made against him, that he may be enabled to judge how to plead, as well as howto make his defence. If there is an attempt to arraign him before a copy of the indictment has been furnished to him, he may object to plead; should he plead, in ignorance of his rights, he may, before the trial, claim delay, and another arraignment after a copy has been furnished. lie cannot well proceed to trial in ignorance of his rights, because,
If the defendant’s position were founded upon any principle, it would go farther than the motion in this case. So much of the indictment as charged an offence punishable by imprisonment for life, should not be road to the jury, because, by reason of the failure to deliver the copy of the indictment, he could not be tried on that, but only for such a lesser offence as required no delivery of a copy; and thus we should have the absurdity of a trial for a crime for which the party was not indicted, and which was not included in the alleged crime for which he was on trial.
The fair inference here is, that the defendant lay by, in order to take advantage of the omission at a stage of the trial when he supposed it was too late to supply the defect.
We have gone far enough in sustaining trivial exceptions on which the guilty may escape punishment.
It is not to be regretted, however, that the law is so tender of the rights of persons accused, that there is much stronger probability that a guilty person will escape than that an innocent one will suffer.
Judgment affirmed.