3 Del. 562 (Del.Oyer.Ter. 1842), State v. Early

Citation3 Del. 562
Opinion JudgePer Curiam.
AttorneyGilpin, Attorney-general for the State. Ridgely and Brinckloe, for defendant.
Judge PanelBooth, Chief Justice.
CourtCourt of Oyer and Terminer of Delaware

Page 562

3 Del. 562 (Del.Oyer.Ter. 1842)




Court of Oyer and Terminer of Delaware.


Fall Sessions, 1842

In an indictment for spiriting away a witness, it seems not to be important to prove the materiality of his testimony.

Indictment for obstructing public justice, by persuading a witness to absent himself.

The indictment set forth that in a certain prosecution pending here against Early, for selling spirituous liquor by the small measure to a certain James Adams, said Adams was duly summoned as a witness for the State; that his testimony was material; that Early persuaded him to go off, so that he could not be produced as a witness; and that he did go off.

The defendant's counsel contended before the jury, that it was necessary for the State to show on this indictment that the testimony of the witness spirited away was material; and that this was disproved by the result of the trial, Early having been acquitted on the testimony of Adams alone. (2 Chit Cr. Law 235; 1 Russ. 148, 184; 1 Hawk., ch. 85, sec. 11, ch. 21, sec. 15.)

Gilpin, Attorney-general for the State.

Ridgely and Brinckloe, for defendant.

Per Curiam.

Booth, Chief Justice.

Without entering into the question whether the averment be necessary, (which we doubt,) we think the fact of the materiality of this witness is abundantly proved. Early was indicted for selling liquor by a measure less than a quart to James Adams. Adams was the only witness; the indictment was found on his evidence alone; the trial of that indictment was delayed two terms by his absence, and when finally tried he only was examined. His materiality is, therefore, apparent; and the obstruction of justice, occasioned by his absence, also apparent. It is argued, that because Early was finally acquitted on the testimony of Adams, that testimony could not have been material. This does not follow. An acquittal may have been had on various other grounds, consistent with the materiality of Adams' testimony for the prosecution...

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