stances of the case, the court will sometimes put the trial off to a more distant time.1 The affidavit of the prisoner is receivable even in capital cases." The affidavit must in general be made by the party applying;3 though, in some cases, his attorney or a third person has been allowed to do it in his stead, as if he be abroad or unable to appear.4 To obtain an order for putting off the trial, the affidavit should be full, satisfactory, and direct as to material allegations for a continuance. It should state the facts, in order that the court may determine their importance. The defendant's opinion of the importance of undisclosed facts, can constitute no safe or proper grounds for the action of the court. It should state the names and places of abode of the absent witnesses, and that they are material to the defence." In resisting the motion, the district attorney may state facts touching the merits of the application, and the demeanor, conduct and conversation of the prisoner in the presence of the court, may properly be taken into consideration; and the minutes of the grand jury may be referred to, for the purpose of ascertaining the materiality of the matters proposed to be proved by the absent witnesses; and in deciding upon such application, the same credence cannot be given to the affidavit of a person indicted for felony as to the uncontradicted affidavit of a party to a civil action.8 In a note to HETTICK'S case, the observation is made that, let the depravity of the criminal be ever so great, he may, by offering the court sufficient reasons, obtain a postponement of his trial. But it is due to him ex gratia, and not of right. He has not such absolute right even upon the strongest affidavits, and though his trial be brought on immediately after his indictment. 1 Chit. Cr. L., 494. • Id. Com. v. Knapp, 9 Pick., 496. Peake's N. P., 97; Barnes, 448; 1 Chit. Cr. Law, 493; 9 Pick., 515. 5 Humph., 599. • 10 Yerg., 258; 8 Sme. & Marsh, 401. * 8 East., 35; Fost., 2; 8 Gratt., 695; Hurd's Case, 5 Leigh., 715; Gordon v. Spencer, 2 Black., 286. Vide Peo. v. Horton, 4 Park. Cr. R., 222. Peo. v. Horton, 4 Park. Cr., 222. 1 Whee. Cr. Cases, p. 29. 10 1 Chit. Cr. L., 491. But the court may exercise its discretion upon all the facts of the case, though it should be careful to give the prisoner every fair advantage. It is said that the trial will be postponed: 1. If by the publication of the circumstances of the case, the public mind has been improperly influenced.2 2. Where a person charged consents to become a witness and fully and fairly discloses the guilt of his associates. In such case, if he is prosecuted at all, the court will postpone the case to give him time to apply for a pardon.3 3. Where a witness whose evidence is material to the trial has no sense of the obligation of an oath, the case will be adjourned, and the witness instructed in the principles of moral duty.1 4. Where the counsel of the prisoner is unable to attend through sickness.5 6 5. By the affidavit of the absence of a material witness. The trial will not be postponed. 1. Where the witness resides in a foreign country, out of the reach of the process of the court and is not expected to return.7 In such case, the prisoner should apply for a commission to examine the witness. 2. Where the prisoner has been guilty of laches or delay. 3. Where the testimony expected goes to character only. That an indictment was recently found is not a ground for putting off a trial in a capital case, especially where the prisoner has been a long time in prison charged with the offence.10 Formerly it was held that an affidavit, properly verified, of the absence of a material witness was always deemed sufficient to postpone a trial, and without stating the facts such witness would be expected to prove. It was ruled to be sufficient in cases of treason, felony and misdemeanors; but courts of law have become a little more strict. The case of Radcliffe" is a leading one. The prisoner was charged with treason, and the postponement of the trial was refused, although the affidavit was in the usual form and stated the witness was material; the trial proceeded and the prisoner was afterwards executed. The following note, inserted between brackets, in Bac. Abr., tit. trial, vol. 6, letter H., p. 650, seems too full of good sense to pass unnoticed. It lays down the rule, where there is no cause of suspicion, the affidavit should state: 1. That the witness is material. 2. That the prisoner has endeavored to obtain his attendance. 3. That he is in hopes of procuring it. But if there is cause of suspicion the court should be satisfied from circumstances: 1. That the witness is material. 2. That the prisoner has not been guilty of laches. 3. That he has a reasonable expectation to have his, attendance.1 The following cases in point have been decided in the City Hall in the city of New York, and the above rule fully recognized. In Bugham's case the prisoner was indicted for larceny, and made an affidavit in the common form for the postponement of the trial; the affidavit also stated that he intended to prove by the witness that he took the article by mistake for his own. Counter-affidavits were admitted to show that the witness could not be material; they prevailed, and the prisoner was convicted and sentenced. In another case3 the prisoner presented an affidavit, stating that a captain, who was gone to Savannah, was a material witness; without whose testimony she could not safely go to trial, and that she expected to be able to procure his attendat the next term. The court refused the motion for a postponement, unless the prisoner would state the facts she expected to prove by the witness, which was not done, and the trial proceeded.4 In the above case, the court remarked: In ordinary cases an affidavit of an absent witness has been sufficient in this court to put off the trial to the next term. But cases may occur where 1 Vide 3 Burr, 1514; 1 Black. Rep., 436. ' City Hall Rec., vol. 1, p. 30. Peo. v. Foot, 1 Whee. Cr. Cases, 70. Vide 1 Whee. Cr. Cas., vol. 1, page 30. the jury. In all such cases the questions are: 1. Is the witness material. 2. Has the defendant been guilty of laches. 3. Can the witness be procured at the next court. The court has a discretion as to putting off, but it is a legal discretion.1 § 60. TRIAL POSTPONED BY NEGLECT OF PROSECUTOR. The trial of the cause may also be put off by the mere laches or neglect of the prosecutor to bring it on. § 61. PRISONER WHEN ENTITLED TO RELEASE BY REASON OF NEGLECT TO TRY HIM. If any prisoner indicted for an offence triable in the court of sessions and committed to prison, whose trial shall not have been postponed at his instance, shall not be brought to trial before the end of the next term of the court of sessions, which shall be held in the county in which he is imprisoned after such indictment found; he shall be entitled to be discharged, so far as relates to the offence for which he was committed.2 And if any prisoner indicted for any offence not triable in a court of sessions, but which may be tried in a court of oyer and terminer and committed to prison, whose trial shall not have been postponed at his instance, shall not be brought to trial before the end of the next court of oyer and terminer, which shall be held in the county in which he is imprisoned after such indictment found, he shall be entitled to be discharged, so far as relates to the offence for which he was committed.3 But if satisfactory cause shall be shown by the district attorney to any court to which application shall be made, under either of the two last sections, for detaining such prisoner in custody or upon bail, until the sitting of the next court in which he may be tried, the court shall remand such prisoner, or shall hold him to bail as the case may require." § 62. THE TRIAL BEING POSTPONED, WITESSES TO BE RECOGNIZED TO APPEAR AT TRIAL. Whenever the trial of an indictment shall be postponed by the court in which the same shall be pending, it shall be the duty of 1 1 Peo. v. Vermilyea, 7 Cow., 368. ' Idem, § 31. 2 R. S., 737, § 30. • Idem, § 32. the district attorney to cause all the witnesses on the part of the people in attendance, deemed by him material to be recognized, to appear at the time and place to which such trial shall have been postponed.1 The court may, in case of the refusal of the witness to enter into the recognizance, commit him to the common jail of the county, to secure his attendance as a witness at the court to which the trial has been postponed; and in case of the insolvency of the witness in its discretion, may order him to find sureties to secure his attendance as such witness, or in default thereof, to stand committed until he enter into a recognizance with sufficient sureties. Where the recognizance is entered into in open court, the clerk, before making a record of the same upon his minutes, makes the following address to the witness and his surety, if one: "You, and each of you, acknowledge yourselves to be indebted to the people of the State of New York, to wit: You A, B, in the sum of one hundred dollars, and you C, D, in the sum of one hundred dollars, to be levied of your, and each of your goods and chattels, lands and tenements to the use of the said people, if default be made in the condition following, to wit: The condition of this recognizance is such that if A B shall appear at the next court of (sessions or oyer and terminer), to be held in and for the county of Rensselaer, then and there to testify on the trial of an indictment against E F for grand larceny (or whatever may be the offence), not to depart the court without leave, and to abide its order and decision, then this recognizance to be void; otherwise, to remain in full force and virtue. Are you, and each of you, content." In case of the commitment of the witness to jail for inability to furnish sureties for his attendance at the adjourned court, he may enter into such recognizance at any future day of the same term; or in case he does not succeed in finding sureties until after the adjournment of the court, he may, with sufficient sureties, enter into a written recognizance with the same condition as above. A recognizance for the appearance of witnesses must contain an acknowledgement of indebtedness to the people, and must mention the offence charged. An entry in the clerk's minutes under the title of the cause, stating that R was recognized in 'Laws 1845, ch. 180, § 19. |