Year: 1873

/ The following is an outline OF Judg'


Emmons' opinion overruling the motion


to continue the case of the United States


against Thomas G. Boyd: '5'' |Hi}.i


His Honor said that where there ha(


been such lapse of time as lprin1d fdciG tt


afford opportunity to prepare for trial, three


things. in all cases were necessary to be
shown in order to continue criminal


cause. That there was defense ON the
merits, that material witnesses were ab'
sent and that the defendant had used due
| diligence to procure their attendance


When active eXertions had not been made
SO as to comply with the last requisite facts


which c.rcused it would satisfy the rule.


Last evening counsel were Informed that
as the affidavit then was, the existence of
defense and the absence of material
witnesses sufficiently appeared. There was
10 necessity for an amendment IN that re-
1 gard, but as there was not a word TO show
| phy the witnesses were not here i'll case
two years before the court, there was moth
| ing upon which we could act.
There was recommendation to amend
the paper by showing some. reason why
preparation for trial had not been made


A second postpOnement was granted


for this purpose He had listened
anxiously to its reading as now
amended and patiently to the impas-
stoned and really impressive appeals of the
| learned counsel, but nowhere in averment
or argument had there appeared fact or
suggestion having the slightest tendency
! to show that there had been any effort to
procure witnesses. II does not appear
| that even q request for their presence had
been made, and no subpoena has been is
sued and served. The only reference to
such q process is that two terms since a


part of the witnesses acknowledged ser
vice for their appearance. But-this is
wholly immaterial. 1t did not bind them
to do so, and the affidavit conclusively
shows not only that the defendant did not
erpect them at the term referred to, but
was himself absent. He had fled from


Justice in circumstances so extraordinary
and so carefully planned as to enable his
bail, as he Swears he intended they should
do, to suggest his death upon the record,
with the Intention of still further defraud'
ing the Government of the sums in which
they were bound for his appearance. Where
he was during his absence, what commune
cations he held or might have held with his
witnesses, whether they are friendly or hos
tile and would have come upon request why
he did not subpoena them, what reason
he has hereafter to expect them or had that
they would be here now, or seven that he
expected them at all is not teven limited at



the manifold circumstances which we can
conjecture might have given him reasona- |
bic ground to suppose he would have been
prepared for triai or showing at least a
plausible excuse why he omitted prepare
ton and could therefore ask continuance,
are given. es@-


Upon what around learned counsel sup
posed the court could, without gross vio-
latiOn of law, continue this cause we are
IL IL
seems to have been framed in the idea that
there was no duty Of diligence incumbent
upon the defendant. Its apparent argu-
ment would seem to assume that the Gov
ernment must not proceed until the con-
venience and even the caprices and
desperate experiments of the defendant in
endeavoring to defeat trial at all had left
him leisure to attend to the ordinary and
lawful modes Of meeting public accusa-


tion in court. 1t presents but the bald,


unrelieYed case of a defendant fleeing from
Justice after trial in one case, and from
twenty-five other similar indictments, and
without detail of any kind a return day
or two before the trial, and an announces
ment that, for some wholly unexplained
reason he is not ready for trial-lChy, is not
said. No frank, eXcusatory explanation
of the years negligence is made, but in the
attitude of an accused the high officials of
the government and its counsel, the action
of grand jurors and prosecutions are de-
n0uneed as oppressive. o... .r.s,.-,


The number of indictments is assumed
per sc to be evidence of tyrannical public
action and continuance demanded, not
because the defendant in the peculiar cir
cumstances attempts to modify and palliate
his exceptional conduct but because of the
character of the governmental proceedings
against him, The paper is unprecedented
and was suffered to be read because in the
rapidity of its reading the court was in
doubt as to its real purport. We think
there is much in it highly improper In
its relevant and legitimate averments, it
does not contain facts constituting even
plausible ground for continuing the,cause
Counsel have pronounced it the strongest
affidavit they ever presented for a similar
purpose. 1t is strong in its pathOs and the
beautiful and touching manner in which
it describes the misery and dependency of
an innocent man, fleeing from the false
accusations of enemies, the oppressive
power of a great and bad government and
uncomfortable and unjust suspicious of
friends. Did the facts which the same
eloquent paper so fully comedies to be true,
sustain any appreciable .relation to these
affecting appeals, we might in quite differ


ent considerations, find some cause for a
continuance. o6s t.tt -ft sF


The condition of public opinion is said


to be so against the defendant as to war
rant continuance on that ground. There


is nothing but the unsupported affidavit of
the defendant to show this Such collater-
al facts are never left to he unsupported
opinion of defendant. There are abun-
dant reasons in this case why we can not
act upon it alone. Such an extraordinary
fact must be sustained by the statement of
leading, responsible citizens who know
public feeling. Itwould be unseemly as
it would be unprecedented for court to
pronounce judicially the citizens of this
defendant upon his unsupported oath that
he so believes. He has stated his belief in
anymatters in this paper the court would
be slow to conclude he was not in his own
excitement and necessary prejudice, great