defence he expected to establish by the evidence of the absent witnesses. In the same case the court also observed, that trials in criminals cases will not usually be postponed on account of the absence of witnesses to character, and where an application was made to postpone the trial of the indictment to enable the defendant to procure witnesses to character, and the district attorney, in opposing the motion, offered to admit the previously good character of the prisoner; the motion was denied on the making of such admission.1

A party is not entitled to a postponement of the trial for the absence of witnesses unless he shows that the witnesses are material, and also that he has used due diligence to secure their attendance.2

Where a prisoner neglects to subpoena a witness, and relies upon his promise to attend, the court will not put off the cause in case of his non-attendance.3

The absence of a transient witness, whom the party had an opportunity of examining before the trial, is no cause for putting off the trial.3

Affidavits of this kind are easily made, and public justice often suffers by them; the court has a discretion to allow them or not, as they please; and in proper cases the court should exercise their discretionary power to compel the prisoner to state what he expects to prove by the absent witness. In most cases where adjournments are granted, public justice is defeated.

be

In The Peo. v. Vermilyea it was said that where, on a cause being carried down for trial for the first time, the defendant moves to put off the trial for the absence of a material witness, having used due diligence to obtain his attendance, though such witness reside out of the jurisdiction of the court, the trial should postponed. It is no answer to the application to admit that the witness required would, if present, testify to the facts supposed in the affidavit on which the motion to postpone is founded, though semble it would be an answer to admit unqualifiedly the truth of such facts; short of this the party is entitled to time for obtaining the oral examination of his witness before

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

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.

$100 to appear at, &c., to testify for the people in the above cause, is not a recognizance and cannot be sued as such.1

§ 63. WITNESSES IN SUCH CASES MAY BE ATTACHED AND PROSECUTED

FOR FAILURE TO APPEAR.

The court before whom any witness on the part of the people, in a criminal prosecution, shall have been recognized to appear by recognizance taken before a magistrate or a court of record having criminal jurisdiction, may proceed against such witness for any default in appearing pursuant to the condition of his recognizance by process of attachment, in the same manner and with like proceedings therein as if such witness had failed to appear in obedience to a subpoena; and the recognizance of such witness filed with the clerk or the court, if taken before a magistrate, or the record of the recognizance, if taken before a court of record, and the entry in the minutes of the clerk of the court of the default of such witness shall be sufficient evidence for issuing such process of attachment. The issuing of an attachment against a witness, as above provided, is not a bar to the prosecution of his recognizance. District attorneys are prohibited from receiving any fees for the appearance of any witness who shall have been recognized to appear in the same prosecution and at the same court designated in such subpœna.2

Before an attachment is issued in case of the failure to appear of a witness, who has been placed under a recognizance to appear and testify, a proclamation should be made by the crier for the witness to appear the same as in case of disobedience to a subpœna duly served.

§ 64. PRISONERS IN JAIL ALLOWED TO CONVERSE WITH THEIR

COUNSEL.

Persons detained for trial may converse with their counsel and with such other persons as the keeper, in his discretion, may allow, but prisoners under sentence shall not be permitted to hold any conversation with any person except the keepers or inspectors of the prison, unless in the presence of a keeper or inspector.3

§ 65. PRISONERS, WHEN NOT TO BE REMOVED BY HABEAS CORPUS

DURING SESSION OF OYER AND TERMINER.

After the court of oyer and terminer shall commence its sessions in any county no prisoner, detained in the common jail of any such county upon any criminal charge, shall be removed therefrom by any writ of habeas corpus, unless such writ shall have been issued by such court of oyer and terminer or shall be made returnable before it.1

§ 66. OF SUBPOENAS FOR WITNESSES FOR THE PEOPLE.

The district attorney of every county has power to issue subpoenas for witnesses in support of any prosecution to appear at any court without the seal of such court, and every such subpœna, subscribed by the district attorney issuing the same, is as valid and effectual as if the seal of the court at which any witness named therein is required to appear had been affixed thereto.2

§ 67. SUBPOENAS FOR THE DEFENDANT, AND HOW ISSUED. The clerk of any county in which an indictment shall be found, or any proceeding before the sessions shall be instituted, upon the application of the defendant, without requiring any fees, shall issue subpoenas, as well during the sitting of any court as in vacation, for such witnesses as such defendant shall require residing in or out of the county.3

If such subpoena be issued to compel the attendance of any witness at any court of sessions it shall be issued under the seal of the county court of the county, shall be tested in the name of the first or senior judge of such county, and on the day it is issued, and shall be made returnable at any day of the sitting of the court at which the attendance of the witness shall be required.4

If such subpoena be issued to compel the appearance of any witness at any court of oyer and terminer, it shall be issued under the seal of such court, if there be one; and if there be none under the seal of the county court of the county, shall be tested in the name of the circuit judge of the circuit on the day

12 R. S., part 4, chap. 3, tit. 1, art. 2, § 27.

2 R. S., 729, § 66.

2 R. S., 729, § 62.

Id., § 63.