
    Supreme Court. New York General Term,
    May, 1859.
    
      Roosevelt, Sutherland and Lott, Justices.
    John Kalle v. The People.
    In. criminal as well as in civil cases, it is within the discretion of the court to receive further evidence on the part of the prosecution after the summing up has been commenced.
    The prisoner was convicted, in the General Sessions of the city and county of New York, of stealing eight $100 notes of the Mechanics’ & Manufacturers’ Bank of Philadelphia. On the trial, after the case for the prosecution was closed, the prisoner’s counsel objected that no proof had been given of the existence of the alleged bank or the value of its notes, if they had any value, and that his client, on that ground, as matter of law, was entitled to an acquittal. To meet this difficulty, the District Attorney, by permission of the court, notwithstanding the summing up had commenced, was allowed to introduce further witnesses. The prisoner excepted to the ruling, and brought the case on writ of error to this court.
   By the Court,

Roosevelt, P. J.

The only question presented by the writ of error, is, does the admission of fresh evidence, at that stage of the trial, constitute a ground for setting aside the verdict of the jury.

The statute (2 R. S., 735), declares that “the provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, &c., shall extend to trials and other proceedings on indictments, so far as they may be in their nature applicable, subject to the provisions contained in any statute.” And further, that on such criminal trials, “ exceptions to any decision of the court may be made by the defendant in the same cases and manner provided by law in civil causes.”

Whatever, therefore, may be the practice in other States, in this we have a precise statute for our guide. Trials on indictments for public offences, are placed on the same footing as trials on complaints for private wrongs.

In civil actions, the plaintiff, ordinarily, is required to introduce all the evidence in support of his side before resting. He cannot afterwards, it is said, supply an omission “ as matter of right.” (Leland v. Bennett, 5 Hill, 286.) But this implies that he may do so as matter of favor; in other words, that it is discretionary with the judge, in view of all the circumstances, to grant the permission or to refuse it; and that no appeal, in such case, lies from his decision. But were the decision appeal-able, we think it was not erroneous. The judge exercised a sound discretion in allowing the testimony to be introduced. Indeed, had he arbitrarily refused the permission in such a case of mere technical oversight, his conduct would have been justly open to criticism.

Judgment affirmed.  