
    Young v. The Commonwealth.
    1847. December Term.
    1. A material witness for the prisoner is taken sick during the progress of the trial, and before he is examined, so that he cannot give testimony in the case; but the facts which the prisoner states the witness could have proved, were deposed to by other witnesses who were examined. This is no cause for a new trial.
    
      2. A material witness for the prisoner, has been omitted to be summoned, but the counsel say they will be able to get him by the next day, and they will go into trial. The trial proceeds, but the prisoner is not able to procure the attendance of the witness. This is no cause for a new trial; especially as the material facts which the prisoner states the witness would have proved, were deposed to by other witnesses who were examined.
    The prisoner was indicted and tried in the Circuit Court of Lunenburg for the murder of James W. Hudson. The jury found him guilty of murder in the second degree ; and fixed the term of his imprisonment in the penitentiary at twelve years.
    
      After the jury had rendered their verdict the prisoner ♦ filed an affidavit and moved the Court for a new trial.
    It appeared from the evidence that the killing occurred in the yard of Snead’s tavern at Lunenburg courthouse in the presence of several persons; and resulted from an altercation which had occurred in the house about thirty minutes before. That altercation was sudden, and on its occurrence the prisoner attempted to strike the deceased with a stick which he had in his hand, and the deceased pressed upon him with a knife which he brandished about the throat of the prisoner, or as some of the witnesses thought, with which he attempted to kill the prisoner, but was prevented by the tavern keeper, who pushed him out of the room. The deceased then became very much excited and made violent threats against the prisoner, of which he was informed and advised to be on his guard; and a certain John U. Wallace furnished him with a revolver pistol, with which the deceased was shot. At the moment of the shooting, though the deceased used some abusive language towards the prisoner, it did not appear that he threatened any attack upon him.
    The evidence upon the trial certainly fully sustained the verdict; and the propriety of granting a new trial depended upon the facts stated in the affidavit of the prisoner, which was sustained by the affidavit of one of his counsel. The affidavit related to the absence of Zechariah D. Burnett, a witness who had been summoned for the prisoner, and who was present when the trial commenced, but was taken sick before the evidence for the Commonwealth was concluded, and could not therefore attend to give his testimony. It also related to the absence of John U. Wallace, who had been examined before the Examining Court, but by some inadvertence had not been recognized to attend the Circuit Court. Both these witnesses, the prisoner stated, were material to his defence, and that but for the facts which he stated, and which are also stated in the opinion of the Court, he would have asked for a continuance of the cause on account of the absence of Wallace. And he stated, from the record of the evidence given by the witnesses before the Examining Court, the facts which he expected to prove'by them.
    The Court overruled the motion for a new trial; because as to the witness Wallace, when the case was first called for trial, and it was discovered that the witness had not been summoned or recognized on behalf of the Commonwealth or the prisoner, the prisoner’s counsel said he was an important witness, and asked a delay of the trial until he could be sent for. The Court, accordingly, delayed the trial and dispatched a sheriff for the witness. The sheriff returned and reported that he could not find the witness; .and the prisoner’s counsel then said that Wallace’s brother was in Court, and said he knew where Wallace was, and they expected they would be able to secure his attendance the next day; and that they would go to trial: and because the same facts which the prisoner alleges he expected to prove by Wallace and Burnett were deposed to by other witnesses examined in the cause, with the exception that Wallace would prove that he offered the prisoner the pistol and told him he thought he was in great danger and he had better be on his guard.
    The Court having overruled the motion for a new trial, entered up a judgment on the verdict. And the prisoner thereupon applied to this Court for a writ of error.
   By the Court.

The writ of erroi is refused.

Brown, J. dissented.  