
    STATE vs. EVANS.
    Indictment for horse stealing a capital offence. On monday in the second week of the term, the defendant was brought out, and charged; upon being asked if he had counsel, he answered that he had not; that he was not able to employ any; that he had been speaking to Mr. M'Campbell, who had not as yet undertaken for him; upon which the prisoner had a short conversation with Mr. M'Campbell, who informed the court, that he had been retained by the prisoner as his counsel and desired time to consult with him. The prisoner was permitted in custody of the sheriff, to retire behind the bar, with his counsel. After being absent a few minutes, the counsel and prisoner returned, and Mr. M'Campbell, offered an affidavit for a continuance, upon the following grounds; that John Coulter, Lydia Baker, and Daniel Martin, living in Anderson county, were material witnesses for the prisoner, that he could prove by them the mare, For the stealing of which he was purchased by him,of Robert Baker, in that county. That he could not procure their attendence at this term for want of time,since finding of the bill by the grand jury; and that he belived he could procure their attendance at the next term. The prisoner was remanded to afford time for consideration; on Saturday following he was again brought to the bar—Previous to this, the counsel for the prisoner, had, upon the arraignment of an other person from the same county, on Monday, for a similar offence, moved for and obtained a continuance; upon which he was remanded to jail! He also moved to continue, upon a similar affidavit, the case of the state vs. Morris, a citizen of the same county for horse stealing, which was also continued for consideration.
    
      What is necessary to be shewn to entitle a defendant in a criminal prosecution to a continuance, and how far explanatory affidavits are admissible. Supplemental affidavits are not to be received in any case.
    
      
      By act of 1807, c. 83. s. 4. the first offence is punished by whipping, branding, imprisonment and pillory; the second with death.
    
   Campbpell, J.

The affidavit, is in the usual form, upon which continuances are allowed: No instance having accurred of refusing a continuance in such a case; therefore let the prosecution be continued.

White, J.

stated the case minutely.

No case can be recollected where it was not considered, necessary for the defendant to account for his not having used due diligence in preparing for trial. A week has elapsed since finding the bill, and none of the witnesses live at more than forty miles distance, he has not disclosed to us any exertions to procure the testimony of his witnesses, in this time, the cause ought not to be continued.

Overton, J.

The case is new, therefore let the prisoner be remanded, until Monday, and I will examine the authorities, and endeavor to form an opinion.—On Monday he delivered in substance the following opinion:

The investigation of this subject has involved questions, not only of the first concern in the practice, but of great magnitude as respeets the liberty and safety of the citizen. It must be confessed, that my practice has been limitted in criminal cases-The first enquiry which presents itself is, what is the practice of the state. Every prosecution is understood to stand of course for trial, at the same term in which the bill is found, and must be continued as in civil cases, upon affidavit on the part of the state or defendant. It is true as stated from the bar, that no instance has occured since my acquaintance with the practice of the courts in which a continuance was refused upon the first application, founded on a general affidavit like the present; but it never was made a question whether the court had the power to refuse a contiunance, or not.

We will next consider the practice in England, either by the common law, or statute, and lastly, whether the statute of 1715 c. 16. Ird. 11. is introductive of new principles, so as to make a different practice necessary-By the common law witnesses for the defendant, were not heard on oath, of which Lord Coke complains, 4 Reeves Hist. Com. law, 493. 4.

The statute of Ann.c.9. Anno.1702. settled the point that witnesses for the defendant in capital cases should be heard on oath as well as for the state. From 2 Haw. 614. it appears that in England the commiting magistrate issues subpoenas for the witneses of the defendant. No such practice has obtained here, nor is the statute of Ann considered in force. Our statute in relation to the commitment of criminals appears to be the same in substance as 1st & 2d, P.& M. c. 13. The act is careful in securing the attendance of the prosecutor, and witnesses in behalf of the state, directing the commiting magistrate, to bind them over. No method is provided for securing the attendance of the defendants witnesses, though their examinations are directed to be taken in writing. In practice, our superior courts have proceeded upon the same principles as the courts of Oyer and Terminer and Goal Delivery in England; they combine the power of both courts. Ten. Laws. 1794. c. 1. s. 38. 1801. c. 26. s. 2. hence we find the same practice in trying criminals for capital offences, the first term after commitment.

No practice is understood to have existed in the state, authorising the commiting magistrate to compel the attendance of witnesses for a defendant; they must therefore look to this court for compulsory process. Upon consulting the clerk of this court, who has had considerable experience, he is at a loss to determine, whether he has power to issue subpoenas for a defendant before finding of a bill, or not. His practice has been not to do so, but uniformly to issue them after the bill is found: considering a case to be then pending in court. Upon this view of the case, in considering the exertions of the defendant to prepare for trial, we must return to the time of finding the bill. And first whether since that time he has disclosed in his affidavit due diligence, and if he has, taking all circumstances into view, whether the statements in the affidavit are true.—When an affidavit is offered, it becomes the business of the court, in criminal cases, to judge of its truth. nor is it a matter of course to continue upon an affidavit in the common form the true rule appears to be laid down in D. Evans case, M’N. 662. Sell. Pr. 422. Tidds Pr. 500. 6. Bac. 652. Land. Ed. reported in 3 Bur. 1515. But much better in 1 Bl. Rep. 512. These authorities shew that a common affidavit, is sufficient to continue, unless in the exercise of a legal discretion, a well grounded suspicion arises, that the affidavit is materially defective in point of truth. In this case many circumstances combine to produce a suspicion. Three men,all from the county of Anderson, stand accused, and are now in jail for horse stealing. Atkins,the defendant, and Morris. Similar affidavits have been offered in each case; upon the first application for a continuance, in the case of Atkins, it was allowed by the court; immediately afterwards comes this, and one in the case of Morris, the two last are suspended for consideration. When the court perceived in the two last cases, that the defendants stated the want of time to procure witnesses and knowing the county of Anderson, where the witnesses are stated to reside is not more than forty miles distant, there certainly was time since the finding of the bill, nine days ago, to procure their attendance.

This in itself furnishes a well grounded suspicion, that this application is not for the attainment of justice, but for delay. If the court were permitted to take into view other circumstances than those disclosed by the affidavit itself, but little doubt remains, that the application is for the delay of justice. It is well known to this court, that it requires a guard to secure the prisoners, the jail being entirely insufficient ; such a state of things being immediately under the eye of the court, cannot be otherwise than known ; and it would seem may be judicially weighed in exercising a sound discretion. If this case should be continued the chances of escape would be great. Foster. ed. 1744. 1. 2. and M‘N. 659. 660. state that affidavits in common form are sparingly admitted—This however is not the case here, but the reason of the practice stated by these writers ought to have weight, and though we may not be astute in looking for circumstances of suspicion, yet when they do appear the authorities apply. Agreeably to the English practice, the defendant has it in his power to have his witnesses summoned at the time of commitment, which necessarily would dispose a judge there to look more narrowly into an affidavit than is usual here, where no compulsory process for witnesses on the part of the defendant, is provided, until after the finding of a bill by the grand jury. This idea is also enforced by the ninth section of our bill of rights, which requires that the accused shall have compulsory proces, for obtaining witnesses in his favor—The counsel for the defendant have expressed a desire to be informed, whether the court will hear another affidavit, should they be of opinion the one offered is insufficient for the continuance of the cause. This was opposed by the attorney general, who observed, that, if opposing affidavits were allowed he could disprove the affidavits stated. In considering this part of the case, it appears our practice has not been settled, except in motions for new trials, certiorari's and to discharge. In none of these cases will cross affidavits be heard. Upon motions to continue in criminal cases, cross affidavits may be received 3. T. Rep. 405. M‘N. 662, but supplementary affidavits are generally refused in the K. B. practice though otherwise in the C. B. 5. T Rep. 552. 1. H. B. 10. I have not been able to find a single case, where a supplementary affidavit was received. Andr. Rep. 71 furnishes a case of an explanatory affidavit, and such a case happened at Jonesborough. It seems probable an additional one would be allowed upon matter puis darrein affidavit. The affidavit upon which the application is bottomed, seems to have been drawn in haste and not agreeable to form: and as to the disclosure of want of time, some what uncertain,

in not giving the reason why there was not time; in itself, it would seem, there was; but as he does not shew any exertions to have been made; as in the present state of things, there appears a cloud of suspicion hanging over the affidavit, as to its truth; and as by a trial a complete view of the case will be attained, when a new trial can be granted if necessary; the case ought not to be continued upon the affidavit before the court. Considering however, that the person was without counsel when brought to the bar, and was compelled, in haste to disclose his case, and most probably the counsel having written it in haste, without an opportunity of deliberating, affidavits may be received in explanation, as well as the additional affidavits of any other, than the prisoner, to explain any doubtful point in the affidavit. -After a pause of some length the prisoner was demanded to be brought to the bar, and a jury to be impaneled and sworn: when he was brought to the bar. M' and Williams. of counsel with the defendant produced, the additional affidavit of Wallin and a supplementary affidavit of the defendant, which they moved should be heard-The attorney objected, and said he understood the question was decided.

Overton J.

The attorney general will recollect that the case was left open for affidavits-An additional affidavit is now produced, made by Wallen, as nothing less than the life of the accused, is concerned in the trial, let it be received.—Williams then spoke at considerable length in opposition to the attorney general.

Campbell, J.

The affidavit cannot be received as being without the course of practice, after the prisoner has been brought to the bar.

Williams, insisted, that the court ought to hear another affidavit of the defendant, which would disclose matter discovered since the last affidavit. Being good ground for a new trial, it surely would be equally so for the purpose of a continuance.

Overton j.

A supplemental affidavit, cannot in any case be received, though in special cases explanatory ones will, as in the case at Jonesborough. The affidavit of the defendant cannot be received. Wallen’s affidavit I could wish to hear but as its reception would form an exception, it cannot be heard, the court being divided.

Williams, then moved to withdraw the affidavit filed, as it was done in haste, and that he might be permitted to file another.

Overton, J.

No instance can be found of such a procedure.

The counsel then stated that it would be impossible to render his client any further services, that he felt satisfied under the circumstances that would appear to the court upon trial, they never would grant a new trial; and if they should, an impression would be left on the public mind: That he wished the court to give him an opportunity of looking into the books, upon the subject of affidavits, so as to be able to ascertain, whether authorities could be found, authorising the reception of the further affidavit of the defendant.

Overton, J.

Though the prisoner is at the bar, I will patiently wait until Mr. Williams, can have an opportunity of examining his books; upon which he left the bar, observing that he should abandon the cause of his client, unless the court would adjourn, so as to give time. The judges then about three o'clock left the bench, the prisoner bring in custody of the officer, and a little past four resumed,their sitting when it appeared the trial could not be finished until late at night. The prisoner was remanded by consent of the attorney general.and the prisoner's counsel. On the next day, the prisoners counsel again renewed their motion to hear the affidavits of the defendant, and Wallen.

Overton, J.

As to the defendants affidavit the question is whether we shall re consider the question of yesterday, this cannot be done; the affidavit of Wallen he still wished to bear, believing it might be received under all the circumstances of this case. It was a rule with him,though his own mind might be satisfied upon any point, upon which one of his colleagues was not, to agree to further investigation.

Campbell, j.

I do not wish it understood, that any reconsideration in this is necessary. I am satisfied with the opinion heretofore, but as the court is now full, I have no objection to hear it.

The affidavit of Wallen was then read, it stated the deponent had set out on Saturday, at the defendant’s request, to bring Lydia Baker, and Nancy Walker, and offered to assist them in coming but they were pregnant and could not attend; he believed if they, were present they could prove an honest purchase of the mare, and they were, he believed, not absent by collusion. He did not return to this place until Monday morning.

Overton, J.

Yesterday was a week the defendant was charged at the bar of this court, when he offered his first affidavit, which was postponed for consideration; at the same time, the prisoner and his counsel were told the process of the court for witnesses, might be obtained, whatever doubt existed before.

The first affidavit stated the absence of but one of these witnesses; nothing is said in this, respecting Coulter and Martin, two other witnesses mentioned in that affidavit. It does not appear that Wallen had any legal process in his possession when he went in pursuit of the witnesses. This be might have done, and procured the sheriff to summon them. In this respect there is a failure in the affidavit, which is fatal and serves rather to confirm, than to diminish the legal suspicion, arising from the first affidavit, and circumstances connected with it—But when we reflect, that nothing is said respecting Coulter, and Martin, whom the first affidavit states as material witnesses; that two women have been applied to, without compulsory process, and both of them pregnant, a suspicion, that this application was intended or delay, not for the attainment of justice, is far from being diminished. Let the trial proceed.

White, J.

Much argument has taken place, and still the case is open. The additional affidavit does not form such a ground, as to alter my opinion heretofore delivered; and therefore the prosecution ought not to be continued—It is not necessary to examine every part of the affidavit, the principal ground, is the want of time, and yet we find, that after the first affidavit, a man set off on Saturday evening, for the purpose of procuring the attendance of these two women, and returned on Monday morning; there is no account of exertions before, though more than a week had then passed since the finding of the bill. As to affidavits, he believed it to be a general rule, that when the court had heard one affidavit, they would not receive another; but this, like all general rules, may under particular circumstances, admit of exceptions. Without giving any opinion on that ground in this case, it is now open, and he would only say, that when he gave his opinion on Saturday, he did not take into view, that the prisoner was first brought to the bar without counsel; and thought that this circumstance might have produced a relaxation of the general rule.

The jury was impannelled and sworn: The evidence offered shewed the place where the offence was committed; some doubted whether it was in this state—The line dividing this state from Kentucky had never been marked near this place, nor were any of the witnesses, certain, whether it was in this state or Kentucky. Being a new settlement, it had not obtained any reputation, as to which state it lay in. A witness was asked his opinion, but this was objected to.

Per Curiam. The best evidence in such cases is furnished by facts not opinions; if facts exist, such as paying taxes, going to muster, or exercising the rights of sovereignty by either state; if no such proof on account of the newness of the settlement can be had, common opinion may be resorted to: not the opinion of the witnesses. The common opinion in this case, was, that the locus in quo, was within this state; if without the limits of this state we clearly should not have jurisdiction. Kaims, Pr. Eq. 547. 8. Willams for defendant cited 2 Haw. 94, s. 21. Morg. Essays 424. The attorney general in reply, 2. M‘N, 577. 8. 9.—Verdict guilty. Judgment of death; but the defendant was afterwards pardoned. 
      
       4 Bl. Com. 351.
     
      
       2. M'N. 666.
     
      
       2. M'N. 659
     
      
      It is certainly much more compatible with justice and the constitution, that the commiting magistrate should be directed to issue subponeas for the accused, returnable to court, Sec. 1. Bur. trial, 177 to 180.
     
      
      2 M. N. 666.
     
      
       See Tay. Rep. 65. 1 Hay 101 2 Hay. 79. 1 John Rep 477 9.
      
     