State v. Evans
| Decision Date | 30 September 1806 |
| Citation | 1 Tenn. 211 |
| Parties | STATE v. EVANS. |
| Court | Tennessee Circuit Court |
OPINION TEXT STARTS HERE
Indictment for Horse-stealing a Capital Offense.a1 On Monday in the second week of the term, the defendant was brought out and charged. Upon being asked if he had counsel, he answered that he had not; that he was not able to employ any; that he had been speaking to Mr. M'Campbell, who had not as yet undertaken for him; upon which the prisoner had a short conversation with Mr. M'Campbell, who informed the Court that he had been retained by the prisoner as his counsel, and desired to consult with him. The prisoner was permitted, in custody of the sheriff, to retire behind the bar with his counsel. After being absent a few minutes, the counsel and prisoner returned, and Mr. M'Campbell offered an affidavit for a continuance upon the following grounds: that John Coulter, Lydia Baker, and Daniel Martin, living in Anderson county, were material witnesses for the prisoner, that ?? could prove by them the mare, for the stealing of which he was indicted, was purchased by him of Robert Baker, in that county. That he could not procure their attendance at this term for want of time, since finding of the bill by the grand jury, and that he believed he could procure their attendance at the next term. The prisoner was re??ded to afford time for consideration. On Saturday following he was again brought to the bar. Previous to this the counsel for the prisoner had, upon the arraignment of another person from the same county, on Monday, for a similar offense, moved for and obtained a continuance; upon which he was remanded to jail. He also moved to continue, upon a similar affidavit, the case of the State v. Morris, a citizen of the same county, for horse-stealing, which was also continued for consideration.
The affidavit is in the usual form upon which continuances are allowed. No instance having occurred of refusing a continuance in such a case; therefore let the prosecution be continued.
White, J., stated the case minutely.
No case can be recollected where it was not considered necessary for the defendant to account for his not having used due diligence in preparing for trial. A week has elapsed since finding the bill, and none of the witnesses live at more than forty miles' distance, he has not disclosed to us any exertion to procure the testimony of his witnesses in this time; the cause ought not to be continued.
The case is new, therefore let the prisoner be remanded until Monday, and I will examine the authorities, and endeavor to form an opinion. On Monday he delivered, in substance, the following opinion:--
The investigation of this subject has involved questions, not only of the first concern in the practice, but of great magnitude as respects the liberty and safety of the citizen. It must be confessed that my practice has been limited in criminal cases. The first inquiry which presents itself is, what is the practice of the State? Every prosecution is understood to stand of course for trial at the same term in which the bill is found, and must be continued, as in civil cases, upon affidavit on the part of the State or defendant. It is true, as stated from the bar, that no instance has occurred since my acquaintance with the practice of the courts in which a continuance was refused upon the first application, founded on a general affidavit like the present; but it never was made a question whether the Court had the power to refuse a continuance or not.
We will next consider the practice in England, either by the common law or statute, and, lastly, whether the Statute of 1715, c. 16, Ird. 11, is introductive of new principles, so as to make a different practice necessary. By the common law, witnesses for the defendant were not heard on oath, of which Lord Coke complains. 4 Reeve's Hist. Com. Law, 493, 494.
The statute of Anne, c. 9. Anno, 1702, settled the point that witnesses for the defendant in capital cases should be heard on oath as well as for the State. From 2 Haw. 614, it appears that in England the committing magistrate issues subpoenas for the witnesses of the defendant. No such practice has obtained here, nor is the statute of Anne considered in force. Our statute in relation to the commitment of criminals appears to be the same in substance as 1 & 2 P. & M. c. 13. The act is careful in securing the attendance of the prosecutor and witnesses in behalf of the State, directing the committing magistrate to bind them over. No method is provided for securing the attendance of the defendant's witnesses, though their examinations are directed to be taken in writing. In practice, our superior courts have proceeded upon the same principles as the courts of oyer and terminer and jail delivery in England; they combine the power of both courts. Tenn. Law, 1794, c. 1 section 38; 1801, c. 26, section 2; hence we find the same practice in trying criminals for capital offenses the first term after commitment.a1No practice is understood to have existed in the State authorizing the committing magistrate to compel the attendance of witnesses for a defendant; they must therefore look to this court for compulsory process.d1 Upon consulting the clerk of this court, who has had considerable experience, he is at a loss to determine whether he has power to issue subpoenas for a defendant before finding of a bill or not. His practice has been not to do so, but uniformly to issue them after the bill found; considering a case to be then pending in court. Upon this view of the case, in considering the exertions of the defendant to prepare for trial, we must return to the time of finding the bill. And first, whether since that time he has disclosed in his affidavit due diligence, and if he has, taking all circumstancess into view, whether the statements in the affidavit are true. When an affidavit is offered it becomes the business of the Court, in criminal cases, to judge of its truth,a2 nor is it a matter of course to continue upon an affidavit in the common form d2; the true rule appears to be laid down in D'Eon's case, M'N. 662; Sell. Pr. 422; Tidd's Pr. 500; 6 Bac. 652, Lond. ed.; reported in 3 Burr. 1515. But much better in 1 Bl. 512. These authorities show that a common affidavit is sufficient to continue, unless in the exercise of a legal discretion a well-grounded suspicion arises that the affidavit is materially defective in point of truth. In this case many circumstances combine to produce a suspicion. Three men, all from the county of ??son, stand accused, and are now in jail, for horse-stealing: Atkins, the defendant, and Morris. Similar affidavits have been offered in each case; upon the first application for a continuance, in this case of Atkins, it was allowed by the Court; immediately afterwards comes this, and one, in the case of Morris; the two last are suspended for consideration. When the Court perceived in the two last cases that the defendants stated the want of time to procure witnesses, and knowing the county of Anderson, where the witnesses are stated to reside, is not more than forty miles distant, there certainly was time since the finding of the bill, nine days ago, to procure their attendance.
This in itself furnishes a well-grounded suspicion that this application is not for the attainment of justice, but for delay. If the Court were permitted to take into view other circumstances than those disclosed by the affidavit itself, but little doubt remains that the application is for the delay of justice. It is well known to this court that it requires a guard to secure the prisoners, the jail being entirely insufficient; such a state of things, being immediately under the eye of the Court, can not be otherwise than known; and it would seem may be judicially weighed in exercising a sound discretion.a1 If this case should be continued the chances of escape would be great. Foster, ed. 1744, 1, 2, and M'N. 659, 660, state that affidavits in common form are sparingly admitted. This however is not the case here, but the reason of the practice stated by these writers ought to have weight, and though we may not be astute in looking for circumstances of suspicion, yet when they do appear the authorities apply. Agreeably to the English practice, the defendant has it in his power to have his witnesses summoned at the time of commitment, which necessarily would dispose a judge there to look more narrowly into an affidavit than is usual here, where no compulsory process for witnesses on the part of the defendant is provided until after the finding of a bill by the grand jury. This idea is also enforced by the ninth section of our Bill of Rights, which requires that the accused shall have compulsory process for obtaining witnesses in his favor. The counsel for the defendant have expressed a desire to be informed whether the Court will hear another affidavit, should they be of opinion the one offered is insufficient for the continuance of the cause. This was opposed by the attorney-general, who observed, that, if opposing affidavits were allowed, he could disprove the affidavit stated. In considering this part of the case, it appears our practice has not been settled, except in motions for new trials, certiorari and to discharge. In none of these cases will cross-affidavits be heard. Upon motions to continue in criminal cases, cross-affidavits may be received, 3 Term Rep. 405; M'N. 662; but supplementary affidavit are generally refused in the K. B. practice, though otherwise in the C. B. 5 Term Rep. 552; 1 H. B. 10. I have not been able to find a single case where a supplementary affidavit was received. Andr. 71 furnishes a case of an explanatory affidavit, and such a case happened at Jonesborough. It seems probable an additional one would be allowed upon matter puis darrein affidavit. The affidavit upon which the application is bottomed seems to have been drawn in haste, and not...
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