Mr. Dаllas, can you show that before indictment found the person committed or bound to appear, and answer, &e., can have a capias against his witnesses to compel their attendance?
Mr. Dallas.—This is understood in practice in the criminal courts of the state, to be a matter of right, and is allowed; and by the 8th article of amendments to the constitution of thе United States, it is provided, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall havе been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Milnor & Hopkinson replied.
BASSETT, Circuit Judge, to the counsel for the defendant.—Would you object to the terms of taking the depositions of the sailors, in custody, de bene esse, on the part of the United States, as a condition of our granting your motion?
Mr. Hopkinson.—We think the affidavit and facts entitle us to a postponement of trial unconditionally. We have great objections to the depositions of these sailors. We wish to examine them in court and before the jury. We have good reason to suspect a conspiracy among them, to fix this crime on the defendant. They have evinced the greatest heat and resentment towards him. A viva voce examination before the jury is necessary to our safety. On depositions, though we cross-examine, we shall lose the manner, appearance, tempеr, &c„ of the witnesses, so important in weighing their credit.
THE COUR'l made some inquiry from Lewis and Ingersoll, gertlemen of the bar, whether it was understood to be the right of the person accused, before indictment, to have compulsory process from a magistrate or the court, for his witnesses. They answered, that it had been so practised in the state courts, and upen an idea that it was of right; but that no adjudication had been given on the point.
GRIFFITH, Circuit Judge.—Upon principle it struck me, 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 his witnesses; and I am not satisfied, that the 8th article of amendments to the constitution of the United States, makes any alteration of the previous lаw. I think that
BASSETT, Circuit Judge.—The defendant was charged with this offence and committed for it, some months ago. He had counsel employed; he knew the nature of the prosecution; his witnesses were all in Philadelphia within a few days past; and in my opinion, he might have had process to secure their attendance at this court, before the indictment found. Hе knew of their being about to depart also, just before the court. For these reasons, I think there appears a want of due diligence in the defendant, in securing his testimony in the event оf a bill being found. At the same time, I do not think this omission, being antecedent to an indictment, is of a nature to deprive the defendant of the-benefit of a postponement of the trial, upon the grounds stated in his affidavit, of due diligence having been used since the indictment, and the absence of his material witnesses. But as he might have taken out process for the witnesses (though pеrhaps not strictly bound to prepare for his trial before an indictment) and the witnesses might have been detained, I am of opinion that this was such negligence, as will authorize the court to annex the condition proposed. I shall therefore be for allowing the motion on the terms, of taking the depositions of the witnesses on the part of the United States, who are in gaol, before one of the judges, with leave' on the part of the defendant, to cross-examine..
TILGHMAN, Chief Judge.—I am of opinion that the defendant should take his motion, but subject to the terms mentioned by his honor, Judge BASSETT. I ground myself upon the-construction of the eighth article of amendments to the constitution of the United States;- and I wish to have it understood as my decided opinion, that a party charged with a crime, and bound to answer, or committed for-it, may have compulsory process for his witnesses, in that stage of the prosecution. It is a “public prosecutiоn,” and is instituted and' commenced when the party, by process, or otherways, is brought before a court or magistrate, and on information or proof is held to answer. The subsequent indictment is but а continuation of the prosecution so begun. Any other construction would seem to me against the letter of the article, and very injurious to the party under the prosecution. He оught to be on equal ground with the prosecutor. Witnesses, at that stage, may be bound over, or brought in on process for the United States, and why not for the accused?' Many cases might be put to illustrate the hardship of the contrary construction. A
This was done; the sailors examined and discharged.
Notes
It has been the practice in Pennsylvania to commit to prison such witnesses for the cоmmonwealth as cannot find security for their appearance at court to testify, in cases where the justice does not think their personal recognizance sufficient; but I find no authority for it. By the statutes of 1 & 2 Phil. & M. c. 13, and 2 & 3 Phil. & M. c. 10, the justice has power to bind the witnesses by recognizance or obligation to testify, and if they refuse to be bound, to commit them for contempt. The same power is said to be virtually included in their commissions; but it is no where said that they, may be compelled to find security, or be committed. See 2 Hale, P. C. 52, 282.