defect in the proofs. (k) The revised statutes define and limit the powers of the court and simplify the course of proceeding. The article of the statute relating to this subject is as follows: Who to allow certioraris.] A writ of certiorari to remove into the supreme court a conviction had before a court of special sessions may be allowed on the application of the party convicted, by any justice of the supreme court, or by any officer authorized to perform the duties of such justice in vacation. When to be applied for.] The party desiring such certiorari, or some one in his behalf, shall apply for the same within ten days after such conviction shall have been had, and shall make an affidavit specifying the supposed errors in the proceedings or judgment complained of. When to be granted.] If the officer to whom application for such certiorari shall be made shall be satisfied that any error has been committed in the proceedings or the judgment, he shall endorse upon the writ his allowance thereof and shall certify the affidavit upon which the certiorari was allowed. But where the defendant shall have been tried by a jury, no certiorari shall be allowed upon the ground that the verdict of such jury was against evidence. (See 5 Wend. 530. 12 id. 347.) How served.] The said writ and original affidavit shall be delivered to the magistrates, or one of them, before whom the conviction was had, within ten days after such allowance. Return.] The magistrates to whom the certiorari shall be delivered, shall make a special return to all the matters specified in the affidavit accompanying the writ, and shall cause such writ, affidavit and return to be filed in the office of one of the clerks of the supreme court, within twenty days after the service of the said writ. The supreme court shall have the like power to compel the making of such return, and to require the same to be amended and perfected, as in cases of mandamus. Notice of argument.] A certified copy of every such certiorari, affidavit and return shall be served by the party prosecuting the writ, upon the attorney general, with at least four days' notice of the argument thereof. Proceedings in supreme court.] It shall not be necessary for the party convicted to appear in the supreme court upon the prosecution of such certiorari; nor shall any assignment of errors or joinder in error be necessary; but the supreme court shall proceed to hear the parties, and give judgment on the return to such writ. (k) See Revisers' Notes, R. S. pt. iv. ch. 2, tit. 3, art. 4. Staying execution on conviction.] If, at the time of his conviction, any defendant shall notify the magistrates before whom the same shall have been had, that he intends to remove such conviction by writ of certiorari, and shall offer to become bound in a recognizance, with satisfactory sureties, to appear at the next general sessions of the peace to be held in the same county, and to abide the judgment or order of that court in the premises, it shall be the duty of such magistrates to take such recognizance, and thereupon to suspend the execution of any sentence upon such conviction. But such sentence shall be pronounced and entered in the minutes of the proceedings. Discharging prisoner.] If the party convicted shall have been committed to prison in pursuance of his sentence, upon becoming bound with a condition as provided in the last section, with such sureties as shall be approved by the officer allowing the writ of certiorari, he shall be entitled to be discharged from such imprisonment; and the certificate of such officer stating the fact, and ordering the jailer to discharge such prisoner, shall be a sufficient warrant for his discharge. Filing recognizances.] The magistrates or officer, by whom any recognizance under either of the two last sections shall be taken, shall immediately cause the same to be filed with the clerk of the county. Proceedings by general sessions.] The court of general sessions, in which the party is so convicted and recognized, shall be bound to appear, and have power to continue such recognizance, or to require a new recognizance with further or other sureties, until the decision of the supreme court shall be had in the premises; and in default of compliance with any such requisition, the said court of general sessions may commit the party so convicted to close custody. Judgment of supreme court.] If the conviction be reversed, and the defendant be in prison by virtue thereof, the supreme court shall award a writ of supersedeas for his discharge. If the defendant shall have been let to bail, as above provided, the judgment of the supreme court, whether the conviction be reversed or affirmed, shall be remitted to the court of general sessions of the proper county, to be by that court carried into effect. Proceedings of general sessions thereon.] Upon such judgment being received, the court of general sessions, if the couviction be reversed, shall discharge the defendant; if the conviction be affirmed and the defendant shall have been sentenced by the court of special sessions, such court of general sessions shall order that such sentence be executed; and if the defendant shall have been let out of prison as herein provided, he shall be remanded to such prison for the remainder of the term for which he was sentenced. If the conviction be affirmed and the defendant shall not have been sentenced, the court of general sessions shall proceed to sentence the defendant upon such conviction, in the same manner and with the like effect as if such conviction had been had in such court of general sessions. Quashing certiorari.] If it shall appear to the supreme court that the person prosecuting such certiorari has unreasonably delayed to notice or bring on for argument the return to such writ, such court may enter a rule to quash the certiorari; and upon the same being certified to the court of general sessions in which the person prosecuting such writ shall be bound to appear, such court shall proceed thereon, in the same manner as if the judgment of the court of special sessions had been affirmed by the supreme court.(k) A court of special sessions before whom a conviction is had, may proceed and cause their judgment to be executed, notwithstanding notice of an intention to remove the conviction and the entering into a recognizance by the defendant, if a certiorari is not actually sued out. (1) The proceedings of a court of special sessions will not be reversed, on certiorari, for the errors of the magistrate before whom the complaint was made.(m) On certiorari the supreme court cannot pass upon the question whether the finding by the jury before a court of special sessions was against or without evidence; and therefore, though the facts of the case be returned, they will not look into them to see whether or not the jury erred. (n) (k) 2 R. S. pt. 4, ch. 2, tit. 3, art. 4. (1) 5 Wend. 110. (m) Id. 530. BOOK VII. Evidence. UNDER this title the general rules and principles only of evidence will be treated of. The evidence applicable to each particular species of offence will be found stated under its appropriate head, in connection with each offence remarked upon in this work. It may be proper here to premise, that the rules of evidence in criminal cases are, in most respects, the same as in civil cases. The chief distinction which prevails will be found to originate in that caution which is always observed when life or liberty is in question, and in those benign presumptions with which the law meets every accusation involving moral turpitude.(a) The subject will be considered in the following order: I. General rules of evidence; and what allegations must be proved. 1. Public documents and records. 2. Private documents. III. Parol evidence: 1. In what cases admissible. 3. Credibility of witnesses. 4. Examination of witnesses. 5. Compelling attendance of witnesses. 7. Privilege of witnesses from arrest. IV. Secondary evidence. V. Presumptive evidence. VI. Hearsay evidence. VII. Confessions. (a) See Cowen & Hill's Notes, 419. 3 Day, 283. 2 Hale's F'. C. 193. |