1877.

Special Term.

State v.

Betsall.

she went out and got liquor for him at his request, and she is positive the prisoner did not go away from her house before Wednesday morning; that affiant has bɩen an invalid for several weeks, unable to go to the court house to give evidence; that she did inform the prisoner's counsel of what she knew, as aforesaid, until the 14th day of April 1877, after the trial had closed."

On the 14th day of April 1877, judgment was entered upon said verdict of the jury, to which judgment a writ of error was granted.

John A. Hutchinson, for the prisoner :

1st. (a.) The continuance should have been granted as set out in exception No. 3. The affidavit of plaintiff in error was sufficient for the purpose; and no artifice of the prisoner appeared to justify the belief that the purpose was delay. Whitey v. State 38 Ga. 50; State v. Frazier, 2 Bay 96; State v. Lewis, 1 Bay 1.

(b.) The court erred in considering, upon the application for continuance, the facts which it certified as existing within its own knowledge; not proven in the presence of the prisoner.

These facts, if pertinent, ought to have been adduced orally before the court in presence of the accused. How was he to know upon what information of fact the court would act, in the determination of the motion?

Facts shown to the court, as well as those personally within the knowledge of the jury, must be given in the cause under the sanction of an oath, in the presence of the prisoner: Cooley's Const. Lim. 318 side page; Jackson v. Corn, 19 Gratt. 656; Wade v. State, 12 Ga. 25.

The Constitution of this State, article III., §14, requires that the witnesses against the accused shall confront him; that he shall have a reasonable time to

prepare for his defense. These guarantees were not secured to the plaintiff in error.

2d. The instruction set out in bill of exceptions No. 1, ought to have been given to the jury. It correctly stated the law.

It was for the jury to find from the evidence whether there was such joint ownership of the house or barn as made a variance from the description of it in the indictment. If such variance was found it was material: East. P. C. 499; 1 Am. Cr. Law §595; 2 Rus. on Cr. 86; 2 Am. Cr. Law §1822; 2 Am. Cr. Law §1833; 2 Am. Cr. Law §1610; Hughes's Case, 17 Gratt. 565.

3. The verdict was contrary to the evidence. The only testimony as to the commission of the offense was that of the pretended accomplice Charles Woods.

Russell 2 vol, 960, says: "It has long been considered as a general rule of practice that the testimony of an accomplice ought to receive confirmation, and unless corroborated in some material part by unimpeachable evidence the judge should advise the jury to acquit." Ibid 962.

The corroboration must be on some point which connects the prisoner with the charge: Ibid 963; Rex v. Webb, 6 C. & P. 595 (25 Eng. Com. L.); Rex v. Addis, 6 C. & P. 388, (25 Eng. Com. L.); Rex v. Farler, 8 C. & P. 10634 (25 Eng. Com L.); Rex v. Stubbs, 33 Eng. L. & Eq. 552; 1 Whar. Am. Cr. Law §789 (7th ed.)

It will be impossible for the most astute mind to find in the evidence certified, in exception No. 2, anything material to the charge, and which directly or indirectly connects the accused with it, corroborative of anything testified by the alleged accomplice, Woods. This exception shows that Woods was contradicted in several material particulars by other witnesses.

It will appear by the record, that the prosecution deemed it sufficient matter of corroboration, to prove that the stable had been broken open and the furs stolen; but, as the judges in the cases cited say, this is not corroboration in material matters.

1877. Special Term.

State

V.

Betsall.

1877. Special Term.

State

V.

Betsall.

What does it prove towards connecting the accused with the charge, to show that the stable was broken and the goods stolen? Of course the thief who did commit the crime, and who comes forward to implicate another, will be able to swear to mechanical circumstances, to show that an offense was committed; but this does not advance the proof of the guilt of the accused. These distinctions are clear in all the authorities: Rex v. Webb, 6 C. & P. 25; Eng. C. L. 595; Com. v. Bosworth, 22 Pick. 397.

4th. (a). It was error not to grant a new trial on the ground of after-discovered testimony. Bill of exceptions, No. 4.

It was important testimony to be considered by a jury, and would doubtless have changed the result of the trial, had the accused had the benefit of the evidence, he discovered after the trial had closed: Reed's Case, 22 Gratt. 924, 946.

(b). It was error to permit the State to introduce, in opposition to the motion for a new trial on the ground of after-discovered evidence, the counter-affidavits, made part of exceptions No. 4. The prisoner must be confronted by the witnesses at every stage of the proceedings calculated to deprive him of life or liberty. Prepared evidence, by deposition or affidavit, is never admissible against the accused, in a case involving life or liberty, in this State. These privileges are too sacred to be taken away upon mere affidavits: Jackson's Case, 19 Gratt. 656.

But, the value of the grounds for the motion was to be determined by the facts the prisoner brought before the court. Whether the witnesses, upon whose testimony the accused was seeking a new trial, were worthy of credit or impure, was not a question to be passed on summarily by the court. It was not involved in the

motion.

The affidavits, thrust in by the prosecution, go to the

extent of impeaching the chastity of the witness, Rosa Wires, whose testimony was after-discovered.

The court seems to have given weight to these counteraffidavits, to the prejudice of the prisoner. Had the prisoner consented in open court to the reading and consideration of these affidavits, it would have been in violation of constitutional right, which he is not permitted, in a felony case, to waive: Rex v. Foster, 7 C. & P. 495; 3 Whart. C. L. §2997; Maurer v. People, 43 N. Y. 1.

The Attorney General cites: $3164, 3 Whart. Am. C. L. This action is founded in certain civil cases, not a criminal case can be found in which such practice is admitted.

In Grayson's Case, 6 Gratt. 712, so far as Judge Scott stated the rule applicable to a motion for a new trial, because the verdict was contrary to law and evidence, it may be correct; but Judge Lomax would not go that far, and the case is not in point on a motion based on afterdiscovered evidence: People v. Lambert, 5 Mich. 349, where in "criminal" proceedings it was held, that the prisoner must be confronted with the witnesses against him: People v. Dray, 6 Col. 248; Hooker v. Com., 13 Gratt. 763, per Samuel Judge; People v. Jones, 24 Mich.

215.

The Court no doubt will observe the zealous conduct. of the policeman Baker, who made two of the affidavits in the record. The affidavit of Rachel Davis plainly shows that Baker was seeking to keep away important testimony, which the prisoner was entitled to.

Notwithstanding this, the prisoner is deprived of his constitutional guarantees, and suffered to be degraded and punished upon the uncorroborated testimony of a pretended accomplice.

There was no finding that the indictment was "a true bill."

Attorney General, for the State :

A motion for continuance is addressed to the sound

1877.

Special Term.

State

V.

Betsall.

1877.

Special Term.

State

V.

Betsall.

discretion of the court; and unless it clearly appears to the court in this case, that this discretion was improperly exercised by the court below, the case should not be reversed, because of the refusal to grant the continuance asked for: Smith v. Commonwealth, 2 Va. Cases 6; Bledsoe's case, 6 Rand. 673; Russell v. Commonwealth, Va. Ct. of Ap. reported in Va. Law Journal for July 1877; 17 Gratt. 629, Hewitt's case.

The court below, upon the motion to continue, could clearly, consider not only the affidavit of the prisoner, but the statement made by the prisoner upon his voluntary oath, (voluntary, because he could have refused to have made it), and also whatever may have taken place in open court, in the presence of the prisoner, as to the trial of the case; and it is therefore submitted, that leaving out of view" the facts and circumstances" which it is complained the court "assumed to exist," the court did not err in refusing the continuance asked for.

Without these "facts and circumstances" referred to, which it is claimed were not proved or established, on the hearing of the motion, in the presence of the prisoner, how stood the facts as shown by the record?

He

At the request of the prisoner, a special grand jury had been summoned. He was indicted. This was on Monday. He then stated in open court that he would be ready for trial on Thursday. For his accommodation the trial was postponed until Thursday, in order that he might prepare for the trial and have his witnesses, if any he had, then in attendance. Thursday arrived. moved for a continuance, relying alone on his own affidavit that there were witnesses in Ohio, whose testimony he says was material. He had issued no subpœna. He had taken no steps to procure the attendance of witnesses. So far as it appears, he knew their materiality upon Monday as well as he did on Thursday. His father and brother, residing in Parkersburg, were able to go for the witnesses, only twelve miles away, yet they