The Placer herald., 1861-05-11

of the State in prosecuting tne caSe! AS w tne
absence of Mr. Laherty, he thought the appllca-
tion was prematare, for Mr.. Laherty might then
be on his wav if not already arrived, ana besides
it did not appear that he knew anything which
could not be proved by other witnesses who were
present.
Mr.. Hereford also opposed the motion for
continuance especially urging the right OF the
defendant to a speedy trial. He had already been
in ial four months. ard it would be unjust to keep
him longer on account of the iacheS of the State
There was no evidence before the Coroner's jury
such as had been referred to. and the defense had
never been notified of any documentary evidence
He discredted the whole story. The defendant
was ready for trial with his witnesses brought
from yreat distance, and was to be crippled and
ruined for life, in reputation, honor and worldly
goods upon the affidavit Of an interested witness,
ignorant even Of the law governing the case?-
They ght as well wipe from the statute book
the law by which the defendant was guaranteed
Il speedy trial.
Mr. hamilton said it was necessary in reply
only to refer the Court to the history of this case,
of which he first had official cognlzance only
fortnight ago Since then, rs counsel had ad-
mitted he had exercised due diligence and ex-
truordinary diligence, but had not been able to
prepare the case to be properly presented FOR
trial or even to possess himself OF all the material
facts connected with it. He maintained that
Stewart had right to appear as an atfiant in the
case. connected as he was by kindred ties with
the victim of the homicide, and his affidavit, the
truth Of which WAS unquestoncd. connected with
that of the District Attorney. showing due dill
gence ought to be final and conclusive.
Mr.. Mills said he had certified copy OF the
evidence before the Coroners jury, and it did not
appear that any other witness than Lahrrty could
testify to the fact Of defendants pursuing Newell
previous to the homicide He denied that it
was the duty Of the District Attorney to make
all the aidayts IN the case. he was only to make
affidavit OF facts within his own knowledge, as he
had done. He insisted that the evidence of the
Newclls in Oregon. was material. and that sutfi-
cient showing had been made to warrant the
Court in granting the continuance asked for.
DECISION OF THE COURT
Judge Myres sal The defendant is certainly
entitled to speedy trial. stated by his counsel
but if he has been imprisoned any great length OF
time it is not in consequence OF any proceedings
in this Court The application must be taken IN
connection with these facts, that at the time the
trial WAS set in this Court. and think on the
very day. the business of the term was about dis
posed Of, and that at that time the dciendcnt
himself was not ready, and sought for further
time till about this period 1t was suggested by
his counsel at that time that if the set
fol trial to day there WAS probability that those
absent witnesses could be here, and upon this sug
geston. believing what Was stated, set the
for trial to-day not as strict matter of right to
either party. for | do not understand that Courts.
after having disposed of the business OF their
terms, are required to adjourn over to a certain
day. and wait until parties may be ready for trial.
These remarks | make in answer TO the state
ments OF counsel that defendant is entitled to
speedy trial | do not think that the case was
set for trial to-day upon the principle OF strict
right 10 either the people or the defendant; it Was
matter rather of favor than anything else, and
for the purpose Of disposing of the case at once.
If it could be done. Now, in regard to these affi
dayits, | think | am bound to consider them in
connection with each other. for they are referred
10 each by the other. The substance Of the atfi-
davts on the part OF the p 'oplc is, that the pro
secution hts used due diligence, and | think it
can scarcely be quc.toncd that there is materia
ty in The evidence for which The continuance is
asked. 1t is perhaps enough to state that one of
the absent wl.neSaes-thc son Of the editor, !
think the brother Of tire deccaSed-Wll testify
to an old grudge that has existed between the
deceased and the defendant, and this certainly
would be material evidence In regard to the
objection that the afiant. Stewart does not state
his means ofknowlcdge, | think it is not material.
| think it is not my duty to 20 beyond the afli-
davit in which he says he knows this fact. and re-
quircs him also 70 state bis means OF knowledge.
In regard to this other witness, Laherty. | think
his evidence is also material. and if il should be-
come necessary TO attach witnesses. presume |
should find it necessary to examine lis case. and
to wait Tor the return Of the officers serving Writs
Of attachment. and consequently il | should un-
dcrtake to 90 or now | should not b. able to
dispose OF the case this week. and | must ncccs-
sarily be in FL Dorado next week. | think on the
whole that due diligence has been shown by the
prosecution, and that the evidence OF absent wit
nesses is material The order Of the Court there
fore is that the case stand over to the next term,
and | will set it down for the first day in the
term.
Mr.. Robinson Can we go to trial now by ad-
lnitting the contents of the affidavis?
Judge Myres-W Would you admit the facts al
legged to be proved by the witnesses?
Mr.. Mills Under late decisions of the Supreme
Court. think in cases like this we cannot receive
admissions from the defendant.
Mr. Robinson We shall propose in legal
manner. to admit all the facts in the case but
wish time to consult in regard to it.
Judge Myres-Unlcss you certain in regard
to it, | think | will not change the order of the
Court. aud the case will stand over until next
term
Mr.. Hamilton asked for an order Of the Court
for the attendance of witnesses at that time
Judge Myrcs said he had better serve fresh
subpGms.
The jurors were then discharged for the term,
and the Court adjourned
prnoaedinorc of tho poorj nf Gurorr;.or.