Kolle v. People — 17 How. Pr. 565

Majority

p. 565

SUPREME COURT.

Kolle agt. The People.

Headnote

In criminal as in civil cases, it is discretionary with the judge at the trial, in view of all the circumstances, to permit further testimony to be introduced, even in favor of the prosecution, after the summing up has commenced; and no appeal or writ of error lies from such decision.

New-Yorh General Term,

June, 1859.

Writ of error to general sessions.

The prisoner was convicted in the general sessions of stealing eight one hundred dollar notes of the Mechanics’ and Manufacturers’ Bank of Philadelphia. On the trial, after the case for the prosecution was closed, the prisoner’s counsel objected, that no proof had been given of the existence of the alleged bank, or of the value of its notes—if they had any value—and that his client, on that ground, as matter of law, was entitled to an acquittal. To meet this difficulty, the district-attorney, by permission of the court, notwithstanding the summing up had been commenced, was allowed to introduce further witnesses. The prisoner excepted to the ruling; and the only question presented by the writ of error is, does the admission of fresh evidence at that stage of the trial constitute a ground for setting aside the verdict of the jury ?

The statute (2 R. S. 735) declares that “ the provisions of law in civil cases, relative to compelling the attendance and

p. 566

testimony of witnesses, the examination, &c., shall extend to trials and other proceedings, on indictments, so far as they may be in their nature applicable, subject to the provisions contained in any statute.” And further, that on such criminal trials “ exceptions to any decision of the court may be made by the defendant in the same cases and manner provided by law in civil cases.” Whatever, therefore, may be the practice in other states, in this we have a precise statute for our guide. Trials on indictments for public offences are placed on the same footing as trials on complaints for private wrongs.

In civil actions, the plaintiff ordinarily is required to introduce all the evidence in support of his side before resting. He cannot afterward, it is said, supply omissions “ as matter of right” (Leland agt. Bennett, 5 Hill, 286 ). But this implies that he may do so as matter of favor; in other words, that it is discretionary with the judge, in view of all the circumstances, to grant the permission or to refuse it; and that no appeal, in such case, lies from his decision. But were the decision applicable, we think it was not erroneous. The judge exercised a sound discretion in allowing the testimony to be introduced. Indeed, had he arbitrarily refused the permission in such a case of mere technical oversight, his conduct would have been justly open to criticism. Judgment affirmed.