FOR THE TRIAL OF CRIMINAL CASES. BY AUSTIN ABBOTT, Assisted by WILLIAM C. BEECHER, Late Assistant District Attorney of the City of New York. To determine the policy of counsel, neither principles nor precedents to apply a principle safely, attention to the technical significance of the precedents is SECOND AND ENLARGED EDITION BY THE PUBLISHERS' EDITORIAL STAFF. THE LAWYERS' CO-OPERATIVE PUBLISHING COMPANY, ROCHESTER, N. Y. 1902. In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress in the year nineteen hundred two By LUCY ABBOTT MARTIN, In the Office of the Librarian of Congress, at Washington. This volume, prepared in consequence of many requests from members of the profession, is the second in a series of practical manuals for the aid of the practitioner, the preparation of which has grown out of my custom of making careful briefs in preparation for trial in all cases in which I have been concerned. In using selections from these briefs as the nucleus of such a work, I have of course pruned out every. thing ephemeral, and have modified whatever, on careful consideration of the subject in a broad light, I could feel might be unreliable as a general guide, and have extended the topics systematically, so that scarcely anything of my original briefs can be recognized, but I have adhered to the form of a trial brief as being the best for assistance in everyday practice. The line which I laid out to pursue in the preparation of this volume, like that of the similar Brief for Jury Trial in Civil Cases, lies along that constantly debated border ground between familiar general principles on the one hand and the evervarying phases of application by which those principles are incessantly tested and molded anew. On the one hand, I have used but little space to state the commonplaces of the law, however much space they may deservedly fill in the treatises. On the other, I have not taken space to give rulings on very peculiar and unusual points, much less to quote in detail comments on either class of questions. My aim has been to present those debatable questions which are now most constantly mooted at the trial,-to carry the exposition of each into sufficient detail to meet all ordinary aspects of the subject, and upon such questions to furnish counsel with the materials for discussion and discrimination, arranged in that concise analytic form which we all find the most convenient as an aid to the memory in dealing with questions which may unexpectedly arise in court; a form equally advantageous also as an aid in making that thorough preparation for trial that is becoming more and more essential. In order that I might not err through lack of actual experience in any special class of cases, I enlisted at the outset the assistance of William C. Beecher, Esq., whose experience in prosecution, both as Assistant District Attorney in New York County, and thereafter as active counsel for the New York Society for the Suppression of Vice, and in defense in a long succession of causes since his term as Assistant District Attorney expired, has peculiarly qualified him to aid me in the most practical and useful manner; also the assistance of Morris Cooper, Esq. (author of a work on Referees), whose experience, both in defense and in authorship, has enabled him, in carrying out my preparations in detail, to analyze in a very intelligent manner a very large number of selected authorities. I am also indebted for valuable assistance, in extended research on various special subjects, to Messrs. Sumner B. Stiles, J. Hope Caldwell, Charles J. Osborn, and Frederick H. Cooke. These pages, however, present only a fraction of the authorities that have been analyzed and compared. I have sifted out of the inexhaustible mine of reported adjudications those which have appeared to me convenient and suitable authorities in the various jurisdictions, and fit to be cited in court if necessary, in support of a rule of practical importance at the present day; the value of the result here, as in the Trial Brief for Civil Cases and in Trial Evidence, depends much upon thus getting rid of the encumbrance of that which is obsolete, or for various reasons unworthy to control, leaving in compact form a concise indication of useful authorities. I have sought to give the varying rules in different jurisdictions, so that each practitioner may have a brief adapted to the rulings of his home tribunal. My hope is that what is here set down may prove useful, not only in preparation for trial, but more especially in enabling Bench and Bar, engaged in trial, to come at once to the debatable point raised by an offer or objection; to deal with the question at once in the situation in which the existing state of the authorities present it; to appreciate more readily the reason and consequences of the rule; to see it quickly in the varied light in which varied applications of the law present it, and thus to avoid or shorten profitless discussion on what is settled, and facilitate those necessary and noble controversies of the forum on the adequacy and completeness of which the safe administration of criminal justice must always depend. NEW YORK, JANUARY, 1889. AUSTIN ABBOTT. PREFACE TO THE SECOND EDITION. The Brief for the Trial of Criminal Cases, published by Austin Abbott in 1889, has had extensive use and has been greatly appreciated by the profession. After thirteen years the demand for a new edition which would bring the book down to date has resulted in the present enlargement of the original work. The present volume, though at a casual glance it does not appear so, is in reality about twice the size of the former when the quantity of its contents is considered, and it contains also about twice as many cited authorities. Nearly one hundred entirely new sections have been added. Most of the chapters show considerable additions,—especially those on Pleas to the Indictment, Postponement, Selection of Jurors, Reception of Evidence, Rules of Evidence, and Instructing the Jury, while some of the chapters contain more than twice as much as they did in the first edition. Those most enlarged include the chapters on Counsel, Presence and Custody of Accused, Arraignment, Demurrer to Indictment, Removal of Cause, Change of Venue, Right to a Speedy Trial, Separate Trial, Supervision of Jury, and Documents for Jury. This enlarged work is submitted to the profession in the belief that it will be found to be a very valuable aid in the trial of criminal causes. |