1.

the trial may be put off, for sufficient reasons shown. (q) And in general the trial may be postponed on the ground of the publication of a libel tending to influence the minds of the jurors in forming their decision.(r) So the illness of the defendant's attorney has been allowed as a sufficient reason.(s)

But the most usual ground for the delay is the absence of a material witness, which if properly verified, will be sufficient, on an indictment for treason, felony or misdemeanor, at the instance of a defendant.(t) If, however, the witness was not absent at the time notice of trial was given, it seems the court will not grant the application on account of auy subsequent absence.(u) And where the witnesses are in a foreign country and not likely soon to come hither, the court have refused to allow it ;(v) though as the witnesses may be examined on interrogatories sent out abroad, it should seem that when the evidence is very material the trial may be delayed till such examination has been obtained. (w) But when the defendant has been guilty of laches or delay, the court will refuse to put off the trial, or at least will impose terms upon him, as that he shall consent to examine upon interrogatories a material witness for the people.(x)

To obtain an order for putting off the trial, an affidavit must be made stating the names and places of abode of the absent witnesses, and that they are material to the prosecution or defence.(y) This affidavit should state at what time the witness' return may be expected; but this may be in some cases dispensed with. (z) It is also necessary the affidavit should be positive that the absent witness is material, and not merely that the deponent believes him to be so.(a)

When there is no cause for suspicion of mere desire to delay, it will be sufficient generally to swear that the absent party is a material witness, without whose evidence the party cannot safely proceed to trial; that he has endeavored, without effect, to serve him with a subpoena, and that there is a reasonable ground to expect his future attendance.(b)

This affidavit must, in general, be made by the party applying ;(c) though in some cases his attorney, or a third person, has been allowed to do it in his stead, as if he be abroad or unable to appear. (d)

(w) 1 Chit. Cr. L. 492.

(x) Id. ib. 1 Black. Rep. 514. 2 M. & S. 602.

(y) 8 East, 35. Fost. 2.

(z) 1 Black. Rep. 514. 1 Barnard, 39.
(a) Id. ib. Bac. Abr. Trial, (H.)
(b) 1 Chit. Cr. L. 493.

(c) Id. ib. Barnes,437. 9 Pick. 515.
(d) Peake's N. P. 97. Barnes, 448.

Notice of an application to put off the trial is not usually given, in this

state.

When the motion is granted, it is seldom for more than the next term or session of the court. But upon the particular circumstances of the case, the court will sometimes put off the trial to a more distant time.(e) The above observations apply to the putting off a trial by express order of the court, on the application of either party. The trial of a cause may also be put off or postponed by the mere laches or neglect of the prosecutor to bring it on. In cases of this kind, the revised statutes give a remedy to the prisoner, by providing for his discharge, if he shall not be brought to trial before the end of the next term of the court after the indictment is found; unless good cause shall be shown for detaining him.(f)

16th. New trial.] Under the provisions of the revised statutes allowing the defendant, on the trial of any indictment, to take exceptions to any decision of the court, in order to bring a writ of error or certiorari to the supreme court,(g) there can be no doubt that a new trial may be granted to the defendant, in all cases where he takes exceptions on the trial and brings a writ of error. But there is no provision authorizing the public prosecutor to file a bill of exceptions, or to bring a writ of error or certiorari on the part of the people, in case the defendant is acquitted. Either party, however, may remove the indictment into the supreme court, before trial, by certiorari; (h) and where an indictment, after having been so removed, was tried at the circuit and the defendant acquitted, the supreme court decided that for offences greater than a misdemeanor, a new trial cannot be granted, on the merits, whether the accused be acquitted or convicted. (i) In misdemeanors, it seems a new trial may be granted where the defendant has been improperly convicted, but not where he has been acquitted.(k)

Inferior courts, as the general sessions, have no power to grant new trials upon the merits. (1) But they may for irregularity.(m)

Courts of oyer and terminer, however, have authority to grant new trials on the merits.(n)

A new trial may be granted for want of a proper jury, as where they

are not duly returned ;(0) or for the misbehavior of the jury, as if they cast lots for their verdict,(p) or refresh themselves at the cost of the prosecutor. (1) But a new trial will not be granted on account of the incompetency of a juror;(r) or for a trifling neglect of the clerk in drawing the jury, productive of no injury to the prisoner ;(s) or because the judge declined to charge the jury, in a case where there was no dispute as to the law ;(t) or upon the ground that further testimony to impeach the credibility of a witness has been discovered-his character having been testified to at the trial;(u) or because one of the witnesses has been discovered to be incompetent since the finding of the jury; (v) or has made a mistake in giving his evidence. (w)

But where material witnesses have been prevented by illness from attending, or gained credit on the trial by circumstances since falsified by affidavit, or afterwards convicted of perjury or shown to be evidently foresworn, the court will, in some cases, allow a second investigation of the proceedings. The mere finding a bill for perjury, however, will not suffice, because it is grounded on ex parte evidence; nor is it of course to receive affidavits impeaching the credit of witnesses. (x) Another reason for granting a new trial may be the misdirection of the judge, or the refusal of legal, or the admission of improper evidence. (y) And it may be obtained on the ground that the verdict is without, or contrary to, evidence, if the judge himself expresses his dissatisfaction at the issue.(z)

If a new trial be ordered by the supreme court, upon a writ of error or certiorari, the same shall be had in the court in which the indictment was first tried. (a)

Where the defendant has pleaded to an indictment in an inferior court, which is tried, but on certiorari to the supreme court a new trial is ordered, he need not, in strictness, plead de novo; for the old plea stands. (b)

(0) 1 Chit. Cr. L. 655.

(w) Say. Rep. 27. But see 1 Bing.

(p) 12 Wend. 272. 12 Pick. 521. 1 145. Mass. R. 542, n.

(q) 1 Str. 642. 2 Salk. 645.

(r) 4 Yerg. 111. 1 id. 206. But see

7 Dowl. & Ryl. 684.

(s) 7 Wend. 417.

(t) 5 id. 289.

(u) 5 Mass. R. 261. See 3 Greenl. 77. (v) 1 T. R. 717.

(x) 1 Chit. Cr. L. 656.

(y) 2 Salk. 649. 2 Wils. 273. Bull. N. P. 327.

(z) 1 Burr. 12. 2 id. 665, 936. 2 Bailey, 29.

(a) 2 R. S. 741, § 26.
(b) 7 Cowen, 108.

CHAPTER X.

Verdict and Judgment.

1st. VERDICT.] The verdict in all cases of felony and treason, must be delivered in open court in the presence of the defendant.(a) But in all trials for inferior misdemeanors, or where no corporal punishment is to be inflicted, a privy verdict may be given, and there is no occasion for the presence of the defendant. (b) And it seems, that in England, by consent of parties, it may be delivered at the house of the judge, even where it is situated beyond the limits of the county in which the trial was But no such rule exists in this state.

had. (c)

Verdicts are either, general, as to the whole charge-partial, as to part of it-or special, where the facts of the case alone are found, and the legal inference is referred to the judges.(d)

No jury can be compelled to give a general verdict, so that they find a special verdict showing the facts respecting which issue is joined, and therein require the judgment of the court upon such facts.(e)

A general verdict of guilty is valid, if one count of the indictment is good, although the others are defective.(ƒ)

The jury may acquit the defendant of a part and find him guilty as to the residue. Thus, they may convict him upon one count of the indictment and acquit him of the charge contained in another; or upon one part of a count capable of division, and not guilty of the other part, as on a count for composing and publishing a libel, the defendant may be found guilty of publishing only.(g)

And in general, where, from the evidence, it appears that the defendant has not been guilty to the extent of the charge specified, he may be found guilty as far as the evidence warrants, and be acquitted as to the

(a) 1 Chit. Cr. L. 636. 1 Wend. 91. I T. R. 434.

(b) Id. ib.

(c) 5 Burr. 2667.

(d) 4 Black. Com. 361.

(e) 2 R. S. 421, § 68. 1 Chit. Cr. L.

637.

(f) 1 John. 320. 1 Chit. Cr. L. 640. 1 Blackf. 319.

(g) 1 Chit. Cr. L. 637.

residue; as where he is charged with engrossing one thousand quarters of wheat, and the evidence amounts to but seven hundred.(h) And where the accusation includes an offence of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious. Thus, upon an indictment for burglariously stealing, the prisoner may be convicted of the theft, and acquitted of the nocturnal entry; upon an indictment for murder, he may be convicted of manslaughter; on an indictment for stealing privately from the person, he may be found guilty of larceny only; on an indictment for grand, the offence may be reduced to petit larceny; robbery may be softened into felonious theft; and on an indictment founded on a statute, the defendant may be found guilty at common law. (1) So, under the revised statutes, on an indictment for an offence consisting of different degrees, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and guilty of such offence in any inferior degree, or of an attempt to commit such offence.(k)

Although several are frequently included in the same indictment, yet as the charge is distinct against each of them, the jury may, on the evidence, acquit some of them and find the others guilty.(1) So where the jury have agreed as to one or more of several prisoners, their verdict, as to them, ought to be received, though they cannot agree as to the rest, and are from necessity discharged by the court.(m) Even where they are all charged with the same offence, some of them may be acquitted and others convicted.(n). So, where two defendants are charged, one as principal in the first and other in the second degree, as being present, aiding and abetting, the latter may be found guilty, though the former is acquitted.(0) And they may be convicted of different degrees of crime arising out of the same circumstances; as one of them of murder, and the other of petit treason, on any indictment against both for the latter;(p) but it has been considered that one of several defendants cannot be found guilty of burglary and the others of larceny, when all are accused of the former.(q) And where the charge is of such a nature that one, as in case of conspiracy, or two, in that of riot, cannot be guilty without the union of others, if all the rest are acquitted, and the indictment does not charge

(h) 1 Chit. Cr. L. 637. 2 Camp. 583. (i) 1 Chit. Cr. L. 638, 9.

(k) 2 R. S. 702, § 27.

(1) 2 St. Tr. 526. 3 T. R. 105. (m) 6 Serg. & Rawle, 577. 12 Mass. Rep. 313.

(n) 3 T. R. 105.
(0) 1 Leach, 360.
(p) Fost. 104.

(g) 1 Chit. Cr. L. 640.