People v. Vermilyea, 7 Cow. 369

7 Cow. 369 | N.Y. Sup. Ct. | 1827

Lead Opinion

*Savage, Ch. J.

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* dered in the circuit court, to be held in and for the city of ¡¡Slew-York. This direction was given to the cause on the 29th of May; when the district attorney rose, and, addressing the court, remarked that he should not proceed on this hidictment; but would procure a new indictment in the court of oyer and terminer. The object of this communication probably was, to give notice to the defendants, then in court, that no proceedings would be had-in the circuit, provided a new indictment could be procured in the oyer and terminer. I infer such to have been his object, as this court was not concerned to know what were the intentions of the district attorney. On the next, or succeeding day, these defendants ¿ntered into recognizance to appear here at this term, and in the mean time, to attend at the next circuit court, to be held in and for the city and county of Mew-York. On the 13th of June, the district attorney gave notice to the defendant, Barker, that the trial would be brought on against the three defendants, Barker, Vermilyea and Davis, on the 17th. The trial was, in fact, moved on the 19th of June; when the defendant, ^Barker, moved for a separate trial, which was refused ; the judge saying that each case should be submitted to the jury separately, in regard to each defendant. The defendant, Vermilyea, then moved to put of the trial, on the ground of the absence of a material witness, Joseph Gr. Swift; which the judge decided should be granted. But, on the district attorney offering to admit that Gren. Swift, would swear what the defendant averred, reserving the right of contradiction and impeachment, thejudge directed the defendants to specify what Swift would prove; and, on receiving such specification, ordered the trial to proceed; an affidavit having been read, that there had been previously two trials of this cause in the oyer and terminer. The defendants, Davis and Barker, also moved for a postponement of the trial, on account of Gren. Swift’s absence"; which motions were on the same grounds as that of Vermilyea. A jury was then impanneled and sworn. The defendants, Vermilyea and Barker, were convicted, and Davis acquitted.

The defendants, Barker and Vermilyea, now move for a new trial, on several grounds; some of which até common to both, and some relied on by Barker only. These grounds I will briefly consider, though not in the order in which they were arguéd.

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, after all causes of challenge allowed, as fair and indifferent, &c. My construction of this act is, that if a juror does appear when first called, the panel is to be gone through, if necessary, for the purpose of obtaining a full jury, before the clerk shall call, a second time, those who were absent on the first call. I will not say, however, that should the contrary method be adopted, that would be good ground to set aside a verdict, provided there was no reason to suspect the fairness of the proeeeding.^(a) I desire to be understood as saying merely, that the mode adopted in this instance corresponds with my notions of correct practice in drawing a jury under the statute.

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 offence, the discretion of the judge ought not to be lightly interfered with. But the defendants had substantially the benefit of a separate trial. The testimony, applicable to each, was separately laid before the jury, and they passed separately upon it in that way. To have put each upon separate and successive trial, might have consumed unnecessary time, and unduly embarrassed the prosecution. That the jury were capable of separating the testimony applicable to each, is proved by the fact that one of the defendants was acquitted.

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 could not be material, as they had left England, and gone to France in November or December; and the libel, in respect to which the defendant was indicted, was not published till March or April after: Secondly, the defendant had notice of the information on the 12th of April; and no effort had been made on the 30th. of June, when the motion was made, to bring over the witnesses: Thirdly, there was no probability that the persons named would return to England. They were subjects of France, in the service of the king of France; and would not probably be sent by him to testify against his then minister, who had been libelled by D‘Eon. The whole court, therefore, were clearly of opinion, that putting off the trial could not tend to advance justice; but on the contrary would delay it.

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 he expected to prove by the witness, who was attorney for the plaintiff. This he refused to do, and the trial proceeded. We granted a new trial, saying that the practice requiring a specification of the testimony did not apply, unless circumstances of suspicion are made to appear. In the case of The Bank of Utica v. Hilliard, (May term, 1826,) we granted a new trial after a former verdict had been set aside; the judge at the circuit having refused to put off the trial on an affidavit, that a material witness had lately removed from Lockport to the state of Ohio, as he, the defendant, was informed and believed, about three months before the trial; and that he expected to procure the attendance of the witness at the next circuit. The judge thought the affidavit too loose in merely stating information and belief of the witness’ removal. We were of opinion that it was sufficient in the first instance; no suspicion existing that delay was the object.

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 removed by certiorari. After the conviction of these defendants, Gen. Swift was acquitted. He then became a tent witness. In April, he left the state, and went to Tennessee. Could the defendants have examined him as a witness, had that been established as necessary at any stage ? That it is not necessary, is strongly intimated in Hoolcer v. Rodgers. But it would surely have been premature in this case. The defendants knew not, when Gen. Swift left the state, that a new trial would be granted at all: and could they have anticipated our decision on that question, there was another difficulty: they could not foresee whether their cause would be tried at the circuit or the oyer and terminer. It seems to me, therefore, that any attempt to examine Gen. Swift would have been premature and irregular. In omitting this, then, there was no laches. It is said, however, that, at the May term, the defendants should have applied for a commission, and for a postponement of the trial until the return of the commission, or until the attendance of the witness could be procured. It is certainly true, that this might have been done. *But are they not excused for not making this application, by the declarations of the public prosecutor, who intimated very strongly that he should proceed no farther upon this indictment; and gave no notice of an intention to try till four days before the circuit. These circumstances surely are entitled to consideration ; and go far in excuse for the negligence of the defendants in not making some proper motion, after this court had decided that the cause should be tried at the circuit.

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.

As to the third particular, the defendants swore that the wjtness had sent a message to one of them, and the other was informed and believed, that he would attend when it should become necessary. These affidavits were not contradicted by the district attorney; and there is no presumption against the attendance of the witness, as there was in D'Eon's case. It does not appear from the papers before' us, that the probability of the witness, attending on a future occasion was doubted by the judge; for he decided that there was sufficient cause shown for the postponement.

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 justice. But if to be encouraged, it seems to me that the. prosecutor should admit all that the defendant can possibly tain by the witness; which is the truth of the facts proposed to be proved. Such seems to have been the opinion of this court in Brill v. Lord, (14 John. 341.) That cause came up on a certiorari from a justice’s court. The defendant below wanted an adjournment, on the ground of the absence of a material witness. The plaintiff proposed to admit what was expected to be proved by the absent witness, and the cause proceeded to trial. This court held the proceeding regular. They said the object of the adjournment, as avowed, was to procure the testimony of a certain witness; and the plaintiff offered to admit, and did admit what it was alleged the witness would prove. If the plaintiff will admit the testimony, no time can be wanted for that purpose; besides, it is added, in this case the defendant agreed to go to trial upon such admissions; and he ought not afterwards to be permitted to violate such agreement. In that case, the court did not place the regularity entirely upon the admission of the testimony *by the plaintiff; but they say emphatically that the defendant had agreed to go to trial upon such admissions. Had the justice then refused the adjournment oh the plaintiff’s admitting that the defendant’s witness would swear as the defendant alleged, and he had protested against going to trial upon such admission, there cannot be a doubt that this court would have reversed the judgment.

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 we are now called upon to exercise in deciding the present motion.

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.

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Concurrence Opinion

Sutherland, J.

I concur with the chief justice, except as to. that branch of the case which relates to putting off the trial.

The principles upon which the courts are to act in postponing the trial of a cause, on account of a material witness being absent, are not disputed. In general, it is sufficient, 1, That the witness required be material; 2. That there have been no laches in procuring his attendance; and 3. That there be reasonable ground to suppose his attendance can be procured at the time to which it is proposed to put off the trial. Where there is no reason to suspect that the object of the application is mere delay, and the trial has not been .put off by a previous application of the party, the general affidavit is all that should be demanded; *which briefly states why the witness has not been already obtained: that the party expects to be able to procure his attendance thereafter; that the witness is material to the defense of the cause ; and that without his testimony the party cannot proceed to the trial, as he is advised by counsel and believes. The rule is substantially the same both in civil and criminal cases; though, in the latter, the authorities all agree that the matter is to be scanned more closely, on account of the superior temptation to delay, and escape the sentence of the law. The distinction is certainly of no great consequence. In a case where the common affidavit applies, the court has no discretion. The postponement is a matter of right, resting on what has become a principle of the common law. But where there has been laches, or there is reason to suspect that the object is delay, the judge at the circuit may then take into consideration all the circumstances; and grant or deny the application at his pleasure. When the subject takes this turn, the application ceases to be a matter of right; and rests in discretion. A lattitude is to be indulged which does not attend a case where the common affidavit applies. One of the usual conditions is, that the testimony of the absent witness should be stated at large; so that its materiality may be seen and judged of by the court.

Accordingly, we are first to inquire, in this case, whether the judge was bound to put off the trial on the common affidavit. This is not a very material inquiry; for the testimony of the witness was, in fact, disclosed particularly ; the judge all along treating the case as one of suspicion; and which called, therefore, for explanation. In this I think he was right. The neglect to make application for a commission at May term, was one ground calculated to excite suspicion. This cause has been twice tried before; and the materiality of Gen. Swift’s testimony must have been well known to these defendants. ISTo attempt was made to account for the omission. Gen. Swift was a foreign witness. He was beyond the reach of our process. He resided in another state, out of onr jurisdiction. * According to the strict legal mode, his testimony could be obtained only through the medium of a commission. If the defendants had deemed him material at May term, the commission would naturally have suggested itself to their counsel; and such a course would have obviated the suspicion that his absence was resorted to at the trial, by way of pretence or after thought.

It is said that Gen. Swift declared his readiness to attend, on notice. But no assurance of this kind directly to the parties, is sworn to. It is, at most, a declaration to, or message through a third person, not very satisfactorily established. Though these circumstances might have been entitled to weight in the estimation of the parties, and may have regulated their conduct, they are certainly not of sufficient consequence to justify their supineness. They let a term pass, without the step which alone could, with any great certainty, secure Gen. Swift’s evidence; and go down to the circuit with this very suspicious circumstance against them. Had they deemed him material, it is to be presumefi that a motion would have been made for a commission> This all-important witness is heard of for the first time when the cause is called at the circuit. Ho motion in May term to postpone; no motion for a commission. A vacation- intermediate the May, and August term, must be wasted without the ability to take one legally efficient ' step in procuring the testimony. Here were circumstances calculated to operate powerfully on the mind of the judge; to excite a suspicion that the application was the pretence of the moment, which had not before been thought of.

It has been urged that the defendants were thrown off their guard, by the declaration of the district attorney that he would indict de novo ; and proceed on the criminal side. Probably this declaration was intended for no such purpose. Indeed, we should assume, I think, that it was not. Had the parties realized the importance of Gen. Swift’s evidence, we fiave n0 right to suppose they would have been misled by such a circumstance; and I cannot but regard *the case as standing upon the same ground as if no such declaration had been made.

In The King v. D’Eon, which was the case of foreign witnesses residing in France, lord Mansfield puts it as one ground for denying the application, that no attempt had yet been made to obtain their attendance. Issue had not been joined in that cause till the 29th of June, when the cause was immediately noticed for trial. On the 30th of June the motion was made. A term of only one day had elapsed, from the time of issue; and the defendant had not appeared and been served with a copy of the libel till the 8th. If delay for so short a time was cause of suspicion in that case, much more so in this, where the parties must have been conscious that they would be pressed to a trial.

Another circumstance entitled to consideration was the nature of this case, and of the transactions to be given in evidence. It was apparent that Gen. Swift could know nothing which might not be reached through the medium of other witnesses. The facts had been gone over upon previous trials; and the particulars of Swift’s testimony were now disclosed. It was doubtless seen by the judge that most, if not all of them, might be shown by others; a circumstance which must have operated upon his mind. The transactions in question were of a public character, or at least, of a nature much more likely to be known than acts which usually pass under the eye of a single individual. It is easy to see how a subscribing witness to the execution of a deed may be essential; so of any single narrow ground of defense, or any important or decisive fact; an alibi for instance. But where the circumstances are numerous, and probably known to many, these motions to delay trials for the absence of one, come with diminished force.

Yermilyea stated that he could not tell what he should rely on as expected from Swift, till he knew what the public prosecutor inténded to prove. This was certainly calculated to induce a suspicion, that the motion to postpone was rather a speculation upon what Swift would *swear to, than resting upon any certain knowledge of his materiality.

Another reason against postpo ning was, the great number of witnesses who had been sworn on the previous trials; and who, it was apparent, would be required on the trial in question, as more or less material. In such a case, to postpone a trial, for the absence of any single witness that the party will make affidavit is essential, would operate not only as a great delay; but the denial of any hearing at all. It is hardly to be supposed that, in such a case, the cause can ever be moved on for trial, without some one of the witnesses being absent upon good cause.

The motion, too, which the defendants made for a separate trial, I understand as implying a readiness to proceed.

The question is not whether we should have granted or denied this application, had we been directly applied to in the first instance. It was an application, addressed to the sound discretion of the judge, to be exercised upon all the circumstances. Though we think that we might have postponed the trial, it does not follow that we should now grant a new trial. If the discretion of the judge be not regulated by well settled rules of law, which have been violated, no greater latitude has been taken than should be allowed; the exercise of discretion which we ought not to coerce or control.

Under the circumstances, the judge thought, not that the trial should be forced on with the absolute deprivation of Gen. Swift’s evidence; but that it should be tried, on the district attorney stipulating to admit that Gen. Swift would testify, upon the trial, to the facts supposed in the defendant’s affidavits. Till this concession was made, I do not understand the judge as deciding definitely one way or the other. He had barely expressed his opinion as the question progressed, upon its state and appearance at the time. It is said, that the admission of the district attorney, with the reservation attached to it, of a right to impeach -the evidence to be received under it, is not equivalent to the testimony of Gen. Swift upon commission. Perhaps it is not precisely so. 'Want of personal explanation *from the witness, however, applies equally to both cases. It is said the jury could not shut their eyes against the fact that Gen. "Swift'had not, in truth, sworn to anything. This might have been so. We cannot say exactly what view the jury may have taken of the case. But I think too much importance has been attached to the evidence by which Gen. Swift’s credibility was sought to be shaken. I do not understand it as amounting to anything more than a declaration by him, that he knew little or nothing on the subject. Under the circumstances, this could have no great weight. The declaration was made after he was indicted for criminality in the very transactions relative to which the defendants say he can testify; and while his trial was pending. The jury could not but see the influence that prompted such declarations. It was their duty to act without considering Gen. Swift’s testimony as materially impeached by such a circumstance; and, I think, they must have so acted If so, -the admission operated substantially as a concession of the facts themselves,- to which it was said the -witness would testify. The defendants -had the benefit of them, at least, as fully as if they had been sworn to on commission. At any rate, considering the question as still progress! re, when the stipulation was made, I think the judge had a right to exact a trial. I have already endeavored to show that he might have refused, in his discretion, absolutely, to postpone the trial. Having this right, of course, he had the inferior right to order it on upon certain conditions imposed on, or agreed to by the district attorney.

I must not be understood as advocating the idea that such an admission could, in any degree, warrant the ordering on a trial, where the common affidavit would apply. Nor would I be understood as saying, that I should not, had the application been made to me, holding this circuit, have put off the cause. All the decisions in the English books are upon cases of original applications to the court. I do not remember a single case, where a new trial was granted, on appeal, from a decison at nisi prim. The case at bar was peculiarly one of discretion; and before we can interfere, *it should clearly appear that there has been an abuse of discretion. We are called on so to apply our own discretion, as to overrule that of the judge; and that, too, when it seems very probable there were various circumstances before him, by which he might properly be guided; but which we cannot appreciate. The nature of the case, the character of the testimony, the number of witnesses, the length of the trial, the time already consumed on former trials, and the various means which the defendants had to supply or nearly supply the want of Gren. Swift, by ether evidence; these, and many other considerations, might properly have had their weight in this case of discretion. We do not lightly interfere with discretion, on appeal. The reluctance of this court to do so, is evinced by the whole current of authority.

Under these various views of the case, I have come to the conclusion that a new trial ought not to be granted. I am happy that this result can, whether right or wrong, work no prejudice to the defendants; for I understand both my brethren to have come to a different conclusion.

Woodworth, J.

It has already been stated, that we

are unanimous in regarding all the grounds taken for a new trial as untenable, except the refusal of the circuit judge to pUt ^ ^.r;ap Qn ^is head, we are to be satisfied ^gther there were laches in the defendants; and if not, whether the stipulation of the district attorney was a fair equivalent for the testimony of Gen. Swift. We have nothing to do with the merits; but only with the question, whether the legal course of practice has been pursued, to reach those merits. The defendants are,, in common with every other citizen, entitled to a trial according to the law of the land; and if the rules of that law have been mistaken, I hold it my duty to give them a new trial.

What was the state of the cause when the motion was made to postpone? True, there had been two previous trials at the oyer and terminer; but is there a doubt that this was to be considered a first attempt to try, for all the purposes of this question ? On the first the jury disagreed; *on the second there was a conviction; but a new trial was granted, and the cause retained on the civil side. So far, I do not see how laches can be imputed. The defendants could not pre-judge the consequences. I admit, that after the decision in favor of a new trial, we are to look at the conduct of the defendants, and scan it critically. They go down to the circuit within a few days after they are apprized of the new trial; there they make affidavits, containing a full disclosure of what their absent witness will proye. To this there was no answer.

But we are told that a commission should have been moved in May term. Mow, I admit the defendants were bound to ordinary diligence, but nothing more. This cause was put at issue the last week of May term. All the non-enumerated days, within which alone, according to the common practice of the court, this motion could have been made, had passed. From Friday, the day when this cause took its final direction, till Tuesday of the next week, the judges were engaged night and day at their chambers; coming into court only at short intermissions, for the purpose of delivering opinions. If laches could otherwise be predicated of omitting to move a commission at that term, these circumstances are an answer. It is not the course of this court, on questions of diligence, to hold so strict a rein. The declaration of the district attorney might very have thrown the defendants off their guard. But put this out of view; to hold the parties to'move with such rapidity, would be going much beyond anything we should require in a civil cause. They could not know that we would hear the motion, after the regular day had passed. "We had a right to deny it, on the ground that it was out of season. On so late an issue in a civil cause, (and this stands on the same ground in strictness,) no counsel would have thought of moving for a commission till this term; when, under the circumstances, we might have made such commission a stay of the proceedings.

But suppose negligence as to the commission. It is not such neglect as affected the parties’ rights. They were not bound to take up satisfied with a commission. They "-were entitled to a full and fair opportunity of obtaining the witness’ personal attendance, and the benefit of his testimony ore tenus. In a fair case, the party may always apply to put off a cause for his purpose, even where he has procured a commission. Laches, therefore, cannot avail, unless they are applied to this point. A party cannot be driven to take out a commission. It seems to me this is well settled. It is fortified by the case of the chevalier D’Eon. One reason given there against the motion, was, that the king of France would not suffer the witnesses, who were in his service, to appear and testify. This expression pre-supposes that the party may put himself on the personal attendance of his witnesses, instead of a commission, or a proceeding in nature of a commission. In that case, too, as in this, the witnesses lived out of the jurisdiction within which they were to testify. Yet the court conceded that, on a first application, this, of itself, was not cause for denying the motion. If the application be a second one, I admit the rule does not apply. The trial now in question, was not only to be regarded as a first trial, for the reasons which I have mentioned ; but Gen. Swift was, in truth, a party to this indictment, and a,n incompetent witness, until after the second trial at the oyer and terminer. If an assurance on the part of Gen, Swift was necessary, that he would listen £0 reqUest 0f party, and attend as a witness for him, we have it. It is said the evidence on this point is slight; hut-it is shown-that he -sent a message to one of the parties, promising to attend. ■ I cannot say that this is all a pretence. It might have been by letter. If the defendants had reasonable ground to hope for his voluntary attendance, it is sufficient. The truth and fairness of the affidavits are not impeached, in this respect. Had the experiment been tried, and the witness had failed of attending, I admit that a second postponement should not be granted in this case of a foreign witness. The party should secure himself against consequences, by a commission.

We must be confined to the facts before us. I do not feel authorized to indulge in presumptions. I cannot speenlate *on the question, whether the defendants might not have been able to prove the facts sought -through Gen. Swift, by other witnesses. Such a course appears to me to be contrary to .all experience.

This case has been treated as if the circuit judge had a view of various facts not now before us ; and which controlled him in the exercise of his discretion. Let us attend to this. I understand the case very differently. He decided on the affidavits produced. Ho question was then before him as to the admission on the part of the prosecution. The result is, that the judge who had presided on both of the previous trials¡ with all the facts before him, held the application to be completely sustained. We, then, have Ms opinion, that, in the exercise of a sound -discretion, the trial should be postponed. This involves a direct negative upon all -laches.

Another view of the case here very naturally suggests itself. The judge having pronounced the affidavits sufficient, ought we now to listen to the imputation of laches, • even,supposing them to have appeared at the circuit ? Had the judge taken a different course, and rejected the motion on the ground of apparent laches, the defendants might have explained the imputations; and shown, that what had this appearance, arose from causes which diligence could not conquer. As the cause stood, after the decision in favor of the affidavits, all explanation was put out of the question, by that very decision. It would have been impertinent. Explanations, too, not required at the circuit, are the last that would be thought of being given here. In Hooker v. Rogers, (6 Cowen, 577,) we held, as one reason against hearing an objection to a similar affidavit, that it was not raised at the circuit.

I admit, that in reviewing the decision, which is considered as resting upon discretion, we should be careful not to overrule it, unless the rules of law have been violated. What is judicial discretion ? It is an enlightened view of the case, and a correct application of the known rules of law. In the view which I have of this case, it can hardly be said there was a discretion. The application seems to "be as plainly within certain fixed and known rules, as almost any other. Discretion itself, however, is not arbitrary. That, too, is confined by rules of law.

We then come to the question, whether the stipulation of the district attorney should have been received as an answer to the motion. I do not understand this to have entered into the views of the judge at all, in determining that the cause should go off. That decision was absolute, that the defendants had a right to the postponement. Nor do I understand the decision, that the stipulation should be received, as at all connected with the first decision; or as founded in the weakness or suspicion of the defendants’ case. It must, then, have gone upon the notion, that it was a full and fair substitute for the oral evidence of Gen. Swift. The defendants were entitled to the oral evidence, or what was equivalent; or they were entitled to nothing. Is it, then, an answer, to say “ Gen. Swift would so swear ?” Is such a mode of receiving a witness’ testimony known to the law ? Should time be taken, at this day, to show the difference between such evidence, and the oral testimony of a witness ? to demonstrate the vital importance of an open and public examination before a jury ? where the witness speaks not only in direct language, but by his appearance, his explanations, his corrections of what may be doubtful, inconsistent, or apparently untrue? Such wag the testimony to which the defendants were entitled, if to any; not evidence reflected through their affidavits, subject besides to have its already diminished and feeble force destroyed by adverse testimony. A witness is called. He is impeached'in certain particulars. Is he not uniformly called again to correct and to explain ? Is it not familiar with the whole profession, that such a course is material, and many times essential to the ends of justice ? We all know the superior weight of a witness attending in person; how important it is, especially in a complicated matter, that he should be on the spot to obviate seeming contradictions. There seems to me no doubt that this admission was very far from giving the defendants an equivalent for Gen. Swift’s personal testimony. Witnesses *were introduced, the tendency of whose evidence was to show that he knew nothing; that he iyas entirely unacquainted with the transactions in controversy. Various explanations might have been given to that evidence by Gen. Swift. I know of no rule, which, in a case like this, stops short of an absolute concession of the facts stated in the affidavit of the party. The case of Brill v. Lord,, (14 John. 341,) cited by the chief justice, virtually concedes this principle.

Such being my views of the case, I concur with the chief justice, that a new trial should be granted.

New trial granted.

On the opinion of the court being pronounced as above,

Ogden moved that a commission issue for the examination of Gen. Swift, and that the rule for such commission be made a part of that for a new trial.

Rule accordingly.