The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-02-22


duce has been offered and rcceivey, 10 tell the
Jury that there is no evidence to iuppo.t the
claim, or The ,efence: or when proof i offered
,of a certain fact, to determine that iuch faCt is
mot proper to De Given in evidence.
/. Hence Il rrtrns, AID j. every DAYS practice,
that when witneis is produced, or writing
is offered in evidence, the orpoiitc party tavins
a right toohieettothe evidence ifhc fhcuid think
1t improper, requires TO be informed what the
wilnris is 60 prove, or to fee the writing, be-
fore the frR is examined, on the fecond is read
50 the Jury. The court has the fame right,
refulting uecei,ariiy from lis power 20 decade
all queGioas relative to the adnliiiibi;y of evil
dence. This right our courts arc in the conitant
! hshit of eXerCihng not only when objections
arc made by the parties, hut when there being
no ohiettion the court i.ieif hls reafon 20 fui-
pea that the tcRimonyi is improper. IN NOT
cafes, hut not in ali, content by the Oppohte
party removes ali objections TO the admiilibi.i-
~ OF evidence, ard courts fometimes infer con-
fem from iileuce but as it is their duty to
take care, that no improper or illegal evidence
! goes 90 tine Jury, uulefs the objection 20 it be
removed by content ofparties; it isconitqueu;-
iy their duty, IN AL cafes where they Zee reafon
/ to iuipe6t that the evidence offered IS inpro-
/ Ter, to aicCtajn whether content has been 81
ven, or whether the tecming acquieicence OF
! the oppoti'e party has proceeded from inatten-
ton. This is more particularly their duty in
criminal cafes, where they are bound 70 BE
council for the government, as well as for the
party accu{cd.
Il being thus the right aud duty of a court
before which trial takes place TO inform it,tlf
of the nature ofthc evidence offered. 10 as to
be athletic judge whether fuch evidence be pro-
per, it reini'S necefiafly that they have right
70 require, that any queitiou intended TO be put
60 w'ithefs, lhould he reduced 10 writing. for
that is the form in which their delibrratiou up.
on II may be mott perfeGt, and their Judgment
viii be mott likely to be correct. In the cafe
now under confederation, the court did exer-
ciic this right When the teftimony of John
! Taylor was offered the court enquired of the
traverfer' counft, what that winefs was TO
prove. The it5ternent of his tcftimony given
in anfwer, induced the court t. fuipett that it
was irrelevant and inadmifible. They there
fore, that they might have an opportunity for
more careful and accurate confederation, called
upon the couafei 30 fate in writing, the oucGi-
ons intended 60 nc put TO the wtnefs.
This is the atf done by the court, but concur
red in hythe Respondent, which has been ie-
le|Fed and sdducei rs one Of the proofs and in
fances of g Hlanifeft injuticc, partially and
intemperance" en- his part. ~ owes an apo
loCy 20 this honomabIe court, for having oc-
CAPPED 10 much of it, time with the refutation
ola charge which has 10 claim to ferrous con-
liberation, except what it derives from the re-
fpett due TO the horor1hie BODY nv which il
was made, and thr high character cf the court
where II is preferred.
The next circumstance tatcL By the article
now under CONFEDERATION, as an in6ance and
p'ooE Of m2n;fy} iniuilice. partiali,v and IN
temperance" in this Respondent, is MS tefufai TO
poitpoue The trial Of the flid James Thomp.
Ton Calender, although an affidavit was re-
'trf,l grl.- 90 Mt -, =
Witnsilt' "a behalf of the accuitG, and although
Il was msnifef with the ufmoR diligence, the
attendance of fuch witnefes could not have
heen procured at that term"
Tins respondent, in aniiRer to this part of the
charge, admits, that in the above mentioned
trial, the trsve.fers council did move the court.
wh'ic this Respondent fat in il alone, for
continuance of the cafe until the next term ::
not merely pofponement the trial, as The
eXPreihons ufed in this part ofthe article would
ieeu to import and did file as the ground
work of their motion, an affidavit of the ira
verier, a true and official copy of which, mar
Eed exhibit No. 5, this Respondent herewith
e%niolts, and bcsS leave TO make part OF this
antwer; but he denies that any fufficient ground
for continuance until the next term. was dif
clofed by this affidavit AS he fruits win clear
D., y appear from the following facts and obler-
vatious.
i uS tl!"i OF an iaulcttnc0t ut the term when
1t Is found blythe grand jury, is matter of
courie, which the protector can claim as
right unlefs legal caUGa can b. ihewn for 4 con
tlnudnce. The profecUtOr may cunfcnt TO
continuance, but if he Yvithholds his content.
t0e court cannot grant continuance without
Legal cauie Ofthe Efficiency end legality of
this caufe, as every other qusfion Of Law,
the court muf judge bu. it muR decid, OH
TINS as on every other point, acc 3rding to the
! Fixed and known rules ofa
One ofthe legal grounds, and the principal
one on which fuch a continuance may he grant
ed, is the abfence of competent and material
w'tneies whom the partycaulot produceat the
proitnt term bvt has a reaJoRable GROUND FOR ex-
pettiug TO be able to produce at The next term.
Analogous to this is the inability to procure at
the Prefsnt term, legal and 1aafsr'qI writ n
testimony, which the party has reay5qG5L ev-
! Peaafi0a OF being able to procure at the next
| term.
Theie rules are as reafonahie and mn in
themleives as they are eiiential to the due adj
miniifraton of juHice, to the punilhment Of
offences on the one haT !, and to the protect
! on OF innocence onthe other. IF the contn-
a'nce OF a caufe, on the application of the par
! ~ accuied, were matter Of right, it is mani
| ieit that no indictment would be brought 70
trial untilaFter dslayofmany months. If, optl,e
other hand, the granting Of continuance de-
pendec not on hSed rules, but on the arbi-
I trary Will OF the court, It would follow that
weakness or Part'ality might induce 4 cor,t