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admission of evidence is largely within the discretion of the trial court. This we have seen, and when it is further considered that one of the most elementary principles of practice that can be stated is to the effect that the exercise of a mere discretion, upon the part of the presiding judge, is never a fit subject for comment or review, unless there is palpable evidence of gross abuse, it becomes apparent that material evidence is always in order at any time before the conclusion of the arguments, provided the right to its admission is sanctioned by the court. Mr. Justice Lumpkin expressed these sentiments in more appropriate language in delivering the decision in an early Georgia case: "I must say that so much adverse am I to withholding testimony, that I can hardly conceive of a case so gross and palpable that I should feel constrained to control the discretion of the circuit judge from receiving at any time additional affirmatory, cumulative or corroborative evidence of facts previously proved, or which tends to strengthen and add force or probability to such evidence." kerv. Walker, 14 Ga. 242.

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110. Views of Judge Rosevelt.-Judge Rosevelt,in a criminal case decided by the New York general term in 1859, entertained similar views with the full concurrence of his associate judges, Sutherland and Lott. From a careful review of that case it appears, that 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. Ordinarily, the prosecution must introduce all the evidence in support of the indictment, before resting. A prosecuting attorney may supply an omission, as matter of right; 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. Kalle v. People, 4 Park. Crim. Rep. 591.

These positions are sustained by a formidable array of authority. See Com. v. Ricketson, 5 Met. 412; Taylor v. Shemwell, 4 B. Mon. 575; Fleet v. Hollenkemp, 13 B. Mon. 219; Hess v. Wilcox, 58 Iowa, 380; State v. Rose, 33 La. Ann. 932; Tierney v. Spiva, 76 Mo. 279; State v. Clyburn, 16 S. C. 375; Ruggles v. Coffin, 70 Me. 468; Breedlove v. Bundy, 96 Ind. 319; George v. Pilcher, 28 Gratt. 299; Larman v. Huey, 13 B. Mon. 436; Caldwell v. New Jersey S. B. Co. 47 N. Y. 282; McDowell v. Crawford, 11

Gratt. 377; Williams v. Hayes, 20 N. Y. 58; Eggspieller v. Knockles, 58 Iowa, 649; Darland v. Rosencrans, 56 Iowa, 122; McKinney v. Jones, 55 Wis. 39; State v. Porter, 26 Mo. 201; State v. Coleman, 27 La. Ann. 691; Johnston v. Mason, 27 Mo. 511; Couch v. Charlotte, C. & A. R. Co. 22 S. C. 557; Jackson v. Tallmadge, 4 Cow. 450; Lewis v. Ryder, 13 Abb. Pr. 1; Alexander v. Byron, 2 Johns. Cas. 318; Stacy v. Graham, 3 Duer. 444; Burger v. White, 2 Bosw. 92; Anthony v. Smith, 4 Bosw. 503; Speyer v. Stern, 2 Sweeny, 516; Williams v. Hayes, 20 N. Y. 58; Kellogg v. Kellogg, 6 Barb. 116; Barrett v. Carter, 3 Lans. 68; People v. Rector, 19 Wend. 569.

In the case last cited, it was said: "The refusal to recall a witness to restate his testimony, after a cause has been summed up and the jury charged, is a matter of discretion appertaining to the court before whom the trial is had; with the exercise of which a court of review will not interfere."

§ 111. Constitutional Reception of Evidence on Promise to Show Relevancy.-That a court may base its action upon the avowals and declared purposes of counsel is shown by Dunn v. People, 29 N. Y. 523. It would too much hamper the trial courts in their proceedings, if they were much restricted in the exercise of a discretion in the order in which proof should be received. There must be a discretion vested in them, in such case, for the convenience and dispatch of business, and often for a proper understanding and appreciation of the testimony. McCarney v. People, 83 N. Y. 408, 415, 38 Am. Rep. 456.

A well considered case in Michigan holds directly contrary to the New York rule and the practice generally regarding the conditional reception of evidence must be regarded as involved in more or less contradiction. People v. Millard, 53 Mich. 63; Zell v. Com. 94 Pa. 558, 2 Crim. L. Mag. 22.

§ 112. Continuance Granted when.-Continuances ought always to be granted when, from the showing, justice requires it to be done, and to enable a defendant to procure all legal and competent evidence necessary for the fair presentation of his case, if he had used due diligence to obtain the same. Technical objections should not ordinarily prevent the granting of the motion for continuance, if it is necessary to the proper presentation of the defendant's case. But continuance will not be granted unless it is shown that there is some necessity for the production of the

proposed testimony. Hence, in affidavits for a continuance, it is the uniform practice for the party applying for the continuance, to state that he has no other witness by whom he can establish the same fact. Continuances will not be allowed to enable the party to produce evidence that is merely cumulative, unless there is some necessity shown therefor,-such as, that there will be a conflict in the evidence in reference to the particular matter in regard to which the absent witness is expected to testify. Eighmy v. People, 79 N. Y. 546; Roberts v. People, 9 Colo. 458; Dunn v. People, 109 Ill. 635; Bagwell v. State, 56 Ga. 406; State v. Dakin, 52 Iowa, 395; Beavers v. State, 58 Ind. 530; Walker v. State, 13 Tex. App. 618; State v. Lewis, 74 Mo. 222; Shook v. Thomas, 21 Ill. 87.

The evidence usually relied upon to secure a continuance in a criminal case is brought to the attention of the trial court through the medium of affidavits, or upon such direct statements in open court by reputable counsel as will entitle them to judicial consideration. In cases of felony the absence of the accused is a sufficient cause for a continuance. Brown v. State, 24 Ark. 620; State v. Cross, 27 Mo. 332; People v. Perkins, 1 Wend. 91; Graham v. State, 40 Ala. 659; People v. Koehler, 5 Cal. 72; Jackson v. Com. 19 Gratt. 656; State v. Dooly, 64 Mo. 146; Sneed v. State, 5 Ark. 431; State v. Bertin, 24 La. Ann. 46; N. Y. Code Crim. Proc. § 465.

Public indignation against the accused, owing to the enormity of the alleged offense, when satisfactorily shown to the court should result in a continuance. State v. Wells, 61 Iowa, 629; Bishop v. State, 9 Ga. 121; Cox v. State, 64 Ga. 374; Beavers v. State, 58 Ind. 530. Sudden illness of the attorney for the accused, and possibly unavoidable absence may be shown in support of a motion for continuance. Bagwell v. State, 56 Ga. 406. And, in most jurisdictions, insufficient time to properly prepare the defense may be urged with propriety. State v. Lewis, 74 Mo. 222.

By statutory enactment in New York, the defendant after a plea of not guilty is entitled to a continuance of at least two days to prepare for his trial if he require it. The trial itself however, be had in absence of the accused if he appear by counsel, may but, if the indictment be for a felony, the defendant must be personally present. N. Y. Code Crim. Proc. § 356, 357.

It is the constitutional privilege of one accused of crime to have

the assistance of counsel and this privilege carries with it the coordinate right to a personal interview. See U. S. Const. 6th Amendment; Cooley, Const. Lim. 334. To give life and effect to this constitutional provision, and to make the presence of counsel upon the trial a valuable right it must include a private interview with his counsel prior to the trial. Westbrook, J., in People v. Risley, 1 N. Y. Crim. Rep. 492.

So "every person who is indicted of treason or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried or some judge thereof shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire, and they shall have free access to him at all seasonable hours." U. S. Rev. Stat. § 1034; N. Y. Code Crim. Proc. § 108; People v. Willett, 3 N. Y. Crim. Rep. 54, 1 How. Pr. N. S. 197.

Any failure to accord this right may be shown by affidavit, and where it satisfactorily appears that further time should be allowed to perfect the defense, a continuance should be granted.

Ex parte affidavits are evidence in judicial proceedings only as some law has declared them to be evidence, and they are not evidence of any facts stated in them unless some law makes them such. Still they may be effectively employed in an application for a continuance as a basis for the motion.

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CHAPTER XIX.

EVIDENCE NECESSARY TO SECURE A CONTINUANCE.

§ 113. Rule the Same as in Civil Cases.

114. Right not Affected by Admissions of Opposite Party.
115. What Evidence is Necessary to Secure.

116. What Motion Papers should Prove.

113. Rule the Same as in Civil Cases.-"The rule governing applications for a continuance," said Sutherland, J., in People v. Vermilyea, 7 Cow. 369, "is substantially the same in civil and criminal cases; though in the latter the authorities all agree that the matter is to be scanned more closely, on account of the superior temptation to delay and escape the sentence of the law.

In cases where the common affidavit applies, the court has no discretion. The postponement is a matter of right, resting on what has become a principle of the common law. But where there has been laches, or there is reason to suspect that the object is delay, the judge at the circuit may then take into consideration all the circumstances, and grant or delay the application at his pleasure. Where the subject takes this turn, the application ceases to be a matter of right, and rests in discretion." This doctrine seems to be borne out by the authorities. 2 Phil. Ev. Cowen & Hill's Notes, 353.

§ 114. Right not Affected by Admissions of Opposite Party. -Shall a party who has made out good grounds for a continuance, on account of the absence of witnesses, be ruled to trial upon the admission of his adversary, that his witnesses who are absent, if present would swear to the facts which he states he expects to prove by them; or shall he be required to admit the fact proposed to be proven by them?

The common law rule of confronting the jurors with the witnesses in a public, oral examination, has ever been regarded by the wisest jurists as a most invaluable rule in the ascertainment of truth. By such an examination, a party has not only the benefit of the naked fact detailed, but also the benefit of the deportment, the manner, the physiognomy, the impression, detail, and intelligent reasons given by his witnesses, which are calculated to force

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