People v. Hettick — 1 Wheel. Cr. Cas. 26

Majority

p. 26

The People vs. Charles Hettick.

Headnote

In suspicious casos, where an affidavit is macic m the usual form, of the absence witness, the reot sel for the fo'inhTa commission_ with the District Attorney to take the testimony of such abs’nt witness and will allow a reasonable time for the sion : but if choosTto join in such com-win'“compel him to show witness is material.

Grand Larceny.

Motion of Adjournment..

Price appeared before the conzt in "behalf oí the pr:sonanCi read an affidavit to r/aí cS ilio trial to the next , A term.

,rpiie 0f the case are these : Dr, Carmichael, a gentiernan of fortune, who lives ia the city of Natchen, came to dle northern states to spend tite summer. Ho Lad been to the springs at Saratoga, and was coming to New ^01% on bis return home, in the steamboat wish Hottick, aacj a great number.of passengers, when the felony^[1] was committed, charged upon the prisoner. The trunk in which the property was secured, contained near three r 1 ' thousand dollars in cash, besides other valuables, altogether í0 n3ar focv thousand dollars,

The trunk was taken' between 10 and 11 o’clock in the out: a grest number of trunks and baggage cn board the boat, usually stowed away upon deck : at dusk i'le doctor observed his trunk about half way out from the heap of baggage that lay upon the deck. He was curious to know how it came in that situation, and kept his eye upon it occasionally, through the evening. At 11 o’clock, it being very dark, he took a candle to seethed it was safe, but could "not find it, after it had been taken, and the money, it is suppos¡ecuriug th trunk and contents, were thrown overboard,

On the arrival of the boat at New York, Dr. Carmichael went to Washington flail, and informed his friends

p. 27

of his loss ; here again ho met the prisoner, who appeared particularly friendly to him, oiicrinj the irse of his ward-. robs, &c. proffering kirn Us services in any way for his comfort; tut “ too much honey made the pie hitterhis iaeccsaat oilers of cervices excited suspicion ; besides, friends of the doctor; v/hose opinion of tho prisoner was by no means as favorable as Ills own, suspected Hettick to bo the robber. Measures were immediately taken, and plans laid to detect the prisoner, at the exchange offices, and places of prostitution, which it was ascertained he fee- \ GuanteJ ; but before this was effected, Mr. Sapelye, a clerk i:i the police office, arrested him, and upon examination, fifteen hundred dollars in bank bills, some of which were identified by Dr. Carmichael, were found upon him. He was committed, and was this day brought out for trial.

The affidavit of the prisoner ’.ras in the usual form, and stated that Messrs. Walton and Weeks, lumber merchants in Philadelphia, were material witnesses for him, and that ho could not safely go to trial without the benefit of their testimony, ¿be. without stating what facts they would bo expected to prove.

Maxwell, District Attorney, and David B. Ogden,

for the prosecution, contended that the allegation set forth in the affidavit, was groundless, as might be seen from tho circumstances of the case. The witnesses mentioned as material, live in another state: the robbery was committed in the interior of New York; they were more than one hundred and fifty miles distant at the time and place of the felony. The affidavit was got up merely for delay and. to circumvent the. means of justice ; for it was known the prosecutor was obliged to leave the city for Natchez, before the next term ; the prisoner, it was plain, intended to take advantage of his absence, and finally, that in the most favourable view of it, it was a suspicious case. The

p. 28

cases reported in the books, clearly and conclusively showed that the English authorities were, that in suspicious cases the court required the party to show his absent witnesses were material; to state the facts in the affidavit he expected to prove by them, and cited East vol. viii. p. 34.

Price in reply,

contended that there was nothing in this case that took it out of the cases to which the general rule applied ; that rule was, that an averment, that the absent witness was material, and that due dilligence had been used to procure his attendance, was always deemed sufficient, without showing how he is material; and cited the case of Amos Board, reported in the City Hall Recorder, vol. iv. p. 7.

The court refused the motion, but gave time to the prisoner’s counsel to join in a commission to Philadelphia, by consent of the district attorney, to obtain the testimony of the witnesses named in the affidavit, to be read upon his trial; and further stated that if the counsel for the prisoner did not choose to comply with the recommendation of the court, and a subsequent application was made for the postponement of the cause, he would be compelled to show the facts such witness was expected to prove.

Price again moved the court, being the last day of the term, for a postponement of the case to the next term.

He offered an affidavit he had received from Mr. Walton, sworn to before Mr. Barker, and alderman of the city of Philadelphia. The District Attorney objected, and said he might have joined in a commission, since the last motion : it might have been executed and returned : it was clearly irregular to read affidavits obtained in this exparte and informal manner.

Price finding the members of the court against an adjournment, handed the clerk a writ of certiorari.

p. 29

Note.—Let the depravity of the criminal be ever so great, and the fact of his guilt ever so apparent, he may, by offering the court sufficient reasons, obtain a postponement of his trial. But it is due to him ex gratia, and not of right.

1. If by publication of the circumstances of the case, the pub-lie mind has been improperly influenced, 1 Burr. 510, 511.

2. Where a person charged, consents to become a witness, and fully and fairly discloses the guilt of his associates. In \ such case, if he is prosecuted at all, the court will postpone the case, to give him time to apply for a pardon, &c. Cow. 339, 340.

3. Where a witness, whose evidence is material to the trial," has no sense of the obligation of an oath. The case will be adjourned and the witness instructed in the principles of moral duty. 1 Leach Cas. 430. n. a.

4. Where the counsel of the prisoner is unable to attend, through sickness. Say. Rep. 63.

5. By an affidavit of the absence of a material witness. Foster, 2.

The trial will not.be postponed.

1. If the witness was present when notice of trial was given. Barnes, 442,

2. Where the witness resides in a foreign country, out of the reach of the process of the court, and not expected to return. 8 East, 37. 3 Burr. 1514. 1 Black. Rep. 510 .

3. Where the prisoner has been guilty of laches, or delay. 1 Black. Rep. 514 .

4. Where the testimony expected goes to character only. 8 East, 34.

Formerly it was held, that an affidavit properly verified, of the absence of a material witness, has always deemed sufficient to postpone a trial; and withopt stating the facts such witness would be expected to prove. It was ruled to be sufficient in cases of treason, felony, and misdemeanors.

But courts of law have become a little more strict. The case of Mr. Charles Radcliffe, Foster, p. 40. is a leading one. The prisoner was charged with treason, and the postponement of the trial was refused, although the affidavit was in the usual form, and stated

p. 30

the witness was materia!. The trial proceeded, and he was after-wards executed.

following note, inserted between brackets, in Bac. Abr. Title Trial, vol. 6, letter H. p. 650. seems too fall of good sense to pass unnoticed. It lays down the rale. Whore there is bj cause of sue* piden, the affidavit should state : The

I. That the witness is material.

8. That the prisoner has endeavoured to obtain his attendanco.

3. That he is in hopes of procuring it.

But if there is cause of suspicion the court should be satisfied from circurnsiancis.

1. That the witness is materia!.

3. That the prisoner has not been guilty of laches.

3. That he has a reasonable expectation to have his attendance, &e. Vide. 3. Burr. 1514. 1 Black. Rep. 436 .

The following cases in point, have been decided in this court, and the ■ above rule has been fully recognized.

In John W. Brigham’s case, City Hall Rsc. Vol. 1. p. 30. the facts were these : Bingham was indicted for a larceny, and made an affidavit in the common form, for the postponement of the trial. The affidavit also stated that he expected to prove by the witness that he took the article, by mistake, for his own. Counter-affidavits were admitted to show that the witness could not be material; they prevailed, and the prisoner was convicted and sentenced.

The case of Catharine Foote, Post, page—is also a case in point. Tí¡e prisoner was charged with keeping a disorderly house, of a peculiar kind, where young girls were seduced, &e. She presented an affidavit to the court stating that a Captain --r, who has gone to Savannah, was a material witness, without whose testimony she coaid not safely go to trial,, and that she expected to be able to procure his attendance at the next term. The court refused the motion for a postponement, unless the prisoner would state the facts she expected to prove by Captain-:—, which was not done, and the trial proceeded: sho was convicted and sentenced to two years imprisonment.