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of the condition of such recognizance; but on such breach being found or confessed, or upon judgment by default being entered against the defendants, the judgment shall be absolute for the penalty of the recognizance.1

All the provisions of the Code of Procedure are applied to all recognizances forfeited in any court of sessions or of oyer and terminer, in any of the counties of this State.2

And by the same act all laws, or parts of laws, or provisions of statutes in any wise conflicting with the application of the Code of Procedure to forfeited recognizances are repealed.3

As to suits upon recognizances in the city and county of New York, see preceding section entitled, "Of the lien of recognizances upon real estate."4

§ 59. POSTPONING THE TRIAL ON THE DEFENDANT'S APPLICATION. In case the defendant is not ready for a trial by reason of the absence of his witnesses, or for other sufficient reasons, his counsel makes an application to the court for a postponement of his trial until some subsequent term of the court; or, as it is technically called, for an order of continuance.

The old English practice of traversing the indictment, as it was called, in cases of misdemeanors-that is, that the defendant was not bound to submit to be tried at the same assizes or sessions at which the bill was found; but had a right to traverse it, that is to put off his trial until the next following assizes or sessions for the same county-does not apply with us.5

No notice of the application is required to be given to the district attorney; the appliction is generally made at an early day in the session of the court, although sometimes the prisoner's counsel waits until the case is called up for trial by the district attorney, and then reads the affidavit and makes his motion for an order of continuance. The trial is generally postponed until the next term of the same court, or the next term of the court of oyer and terminer or of sessions to be held in the county, as the case may happen to be; although, from the particular circum

1 2 R. S., 485, § 27; vide 10 Barb., 35; 4 Wend., 387.

* Laws 1855, ch., 202, § 1; see § 471 of the Code.

• Id., § 2.

⚫ Ante p. 301.

Arch. Cr. Pl., vol. 1, § 110; 4 Blac. Com., 351.

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.2 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

9

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. E., 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."

4. Where the counsel of the prisoner is unable to attend through sickness.5

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.s 3. Where the testimony expected goes to character only.9 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 Radcliffe11 is a leading

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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 case2 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 case the prisoner presented an affi davit, 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.1

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

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the court will compel the prisoner to show how the absent witness is material, by stating in his affidavit what he expects to prove by them.

It has, however, been decided in this State that an affidavit made for the postponement of a trial during the same term an indictment is found, and within a few days after such finding, need not allege the particular matters which the defendant expects to prove by such witnesses.1

In suspicious cases, where an affidavit is made in the usual form, of the absence of a material witness, the court will direct the counsel for the prisoner to join in a commission with the district attorney to take testimony of such absent witness, and will allow a reasonable time for the execution of the commission; but if he does not choose to join in such commission, they will compel him to show that his absent witness is material.2

The courts of this State have held that on motion for the first time to put off the trial where there are no circumstances of suspicion, the common affidavit of the absence of a material witness is sufficient, and the applicant cannot be required to state what he expects to prove by the witness.3

Although the judge has a discretion in certain cases to refuse putting off a trial, he should not refuse unless by counter affidavit, or otherwise circumstances of suspicion appear.4

In a late case in this State, it was held that the trial of a criminal case will be postponed on the application of the defendant, on the general affidavit of the absence of a material witness, unless it is apparent that the application is made for the purposes of delay, in which case an affidavit will be required, showing the nature of the defence intended to be sustained by the absent witnesses, that the court may judge of their materiality.

In the above case, an application was made to postpone the trial of an indictment for murder, and it was claimed by the district attorney and was not controverted by the defence, that no living person was present at the alleged murder, and there was no pretence of an alibi, such general affidavit was held to be insufficient, and the prisoner was required to disclose what

1 Brood's Case, 3 City H. Rec., 7.

2 Peo. v. Hettick, 1 Whee. Cr. Cas., 26.

5 Cow., 16; 6 Cow., 577; 7 Cow., 383; 3 Hill, 323; 3 How., 49.

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