CHAPTER III.

CALENDAR OF ISSUES FOK TRIAL.

SECTION 395. District attorney to furnish note of indictments to clerk, four days

before the term.

396. Clerk to prepare calendar.

397. Order of disposing of issues on the calendar.

398. Indictment pending before term, not to be tried, but by consent, un

less placed on the calendar.

399 Defendant to have four days after plea, to prepare for trial, if he

require it.

400. The clerk to keep a register. Register what to contain.

401. Register to be submitted to the court, at its opening at every term.

§395. The district attorney must, at least four days before the term, furnish the clerk with a note of the several indictments then pending and to be tried at the next term, containing the title of each indictment, and the day when it was filed, and specifying whether it be for a felony or a misdemeanor, and whether the defendant be in custody or on bail.

§ 396. The clerk must, therefrom, prepare a calendar of the indictments to be tried at the term, enumerating them according to the date of the filing of the indictment, and specifying opposite the title of each action, whether it be for a felony or a misdemeanor, and wheth er the defendant be in custody or on bail; and must in like manner enter thereon all indictments found during the term, and on which issues of fact are joined.

§ 397. The issues on the calendar must be disposed of in the following order, unless, npon the application of either party, for good cause, the court direct an indictment to be tried out of its order:

1. Indictments for felony, where the defendant is in

custody:

2. Indictments for misdemeanor, where the defendant is in custody:

3. Indictments for felony, where the defendant is on bail: and

4. Indictments for misdemeanor, where the defendant is on bail.

§ 398. An indictment pending before the term cannot be tried thereat, unless it be placed on the calendar, as provided in sections 395 and 396, except with the consent of the defendant.

The last four sections propose a course of proceeding, as to the order of the trial of causes, which the Commissioners believe will be conducive to great convenience both to the bench and bar, and at the same time promote the substantial rights of the people and of the defendant. Great complaints have existed, (especially in those parts of the state where there is a large amount of criminal business,) of the inconvenience resulting from a want of regulation on this subject. The order of the trial of criminal cases is, as the practice now stands, entirely under the control of the district attorney, who may bring them on in any order and at any time he may see fit. This has led to much embarrassment, not merely to the defendant, who is thus compelled to be ready for trial at any moment, but to the court, whose business is often delayed and thrown into confusion, by the necessity of the postponement of the trial, which arises from the fact that no rule as to the order of business is prescribed. The Commissioners propose as a remedy for this inconvenience, that a calendar shall be made of all the indictments ready for trial at each court, arranging them in the order in which the indictments were found, and distinguishing between felonies and misdemeanors, and between the cases in which the defendant is in custody or on bail. The cases are then to be tried in this order; first, those in which the

defendant is in custody; and second, those in which he is on bail. Either party may apply, however, for a postponement of the trial; but if no sufficient cause be shown for the postponement, it must be tried or dismissed, subject to the right of the court, according to the justice of the case, to determine whether or not a dismissal of the indictment shall be a bar to another prosecution. See p. 186, 187.

§ 399. After his plea, the defendant is entitled to at least four days to prepare for his trial, if he require it.

The object of this provision is, to give the defendant a reasonable opportunity to prepare for trial, after plea. It may be objected, that unnecessary delay may be produced thereby; but the Commissioners cannot see any just ground for the objection. In civil actions, the cause cannot even be put upon the calendar for trial, unless upon ten days previous notice: and surely no good reason can be given why a case involving the life or liberty of the defendant, should be presssed on with undue haste.

§ 400. The clerk must keep a register of all the criminal actions in the court, in which he must enter,

1. All cases returned to the court by a magistrate whether the defendant be discharged or held to answer:

2. All indictments found in the court, or sent or removed thereto for trial, with the time of finding the indictment, or when it was sent or removed: and

3. The time of arraignment, of the demurrer or plea, and of the trial, conviction or acquittal of the defenddant,; together with a brief note of all the other proceedings in the action.

§ 401. The register must be submitted to the court at its opening at every term.

The object of the last two sections, is to bring, at every term, to the notice of the court, the business pending before it. This will enable the court to exercise a supervision over the criminal business, which is required by a due regard for the public interests.

SECTION 402.

CHAPTER IV.

POSTPONEMENT OF THE TRIAL.

When and how ordered. Affidavits to be filed.

403. If defendant appear for trial, and cause for postponement be not shown by district attorney, indictment to be discharged unless otherwise specially ordered.

404. Effect of the discharge.

The practice in respect to the postponement of the trial in criminal cases, is now wholly unregulated, either by statute or rule. The district attorney may require the trial of the cause, at any time which may suit his convenience, and may, without giving any reason, postpone or delay the trial as long as he pleases, subject only to the power of the court to discharge the defendant, either on bail or on his own recognizance, if the cause be not brought to trial before the end of the second term. 2 R. S. 3d. ed. 821, sec. 28-30.

The defendant, on the other hand, must be always ready, and unless a sufficient legal cause for postponement be shown, the case may be brought to trial, at any time. Even if he be discharged on bail or on his own recognizance, the indictment still remains, and he may, at any time, no matter how distant, be compelled in like manner to go to trial.

This is not so in civil actions. By the Amended Code of Procedure, sec. 258, it is provided that, "either party giving the notice, may bring the issue to trial, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require."

Why should a different principle prevail in criminal cases? Why, if the defendant show no sufficient ground for postponement, should he be compelled to go to trial, while no such duty is imposed upon the prosecution?

This chapter embodies principles which abundantly explain themselves, protecting alike the interests of the public and the rights of the defendant.

§402. When an indictment is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, direct the trial to be postponed to another day in the same term, or to another term. The affidavits read on both sides upon the application, must at the same time be filed with the clerk.

§ 403. If, when the indictment is called for trial, the defendant appear for trial, and no sufficient cause for postponing the same be shown by the district attorney, the court must order the indictment to be discharged; unless, being of opinion that the public interests require the indictment to be retained for trial, it direct it to be so retained.

§ 404. If the court order the indictment to be discharged, the order is not a bar to another prosecution for the same offence, unless the court so direct. If the court so direct, judgment of acquittal must be entered.