5 How. Pr. 105 | N.Y. Sup. Ct. | 1850
The affidavits show that the defendant was indicted in March last for publishing a libel upon Mr. Jordan late attorney general of the state; that he appeared and put in a plea of not guilty, by Mr. Dean his attorney, of this .county; that Mr. Dean was employed to watch and attend to the cause, and was present and assented to its being set down for the day on which it was tried. It further appears that the defendant had employed counsel in the city of New York to attend the trial, and that such counsel was prevented from attending by sickness, and that the counsel here was not put into possession of the information and means necessary to a defence.
The cause was brought to trial on the 24th September, in the absence of the defendant. Mr. Dean appeared for the defence and requested a postponement, but was not possessed of any affidavits to ground a motion upon. The cause therefore proceeded, and after the evidence had been given and the cause- summed up by the respective counsel, the jury rendered a verdict of guilty. The defendant now swears that Mr. Dean was not authorized to appear for him on the trial in his absence.
I am entirely satisfied that Mr. Dean was employed by the defendant as his attorney and counsel in the cause generally; and that he was authorized to do all that he could fairly do to defend his client. No blame is, or can be, properly, attached to him for assuming any powers not delegated to him. I am also satisfied that no sufficient reason was shown to the court to postpone the trial of the cause, and that it was fairly and regularly conducted in all respects if the defendant was legally present. If, therefore, the case had been a civil one, or one in which the appearance oí an ordinary attorney would suffice, there, could be no plausible pretext assigned for disturbing the verdict.
But I am not satisfied that the statute has been complied with. On the contrary, the question not having been raised or suggested on the trial, its precise terms were overlooked. It was assumed that a defendant indicted for a misdemeanor would appear by attorney, and that the attorney present had the legal authority. Common practice sanctioned the assumption.