UNITED STATES v. CALDWELL,2 U.S. 333(1795)
THE UNITED STATESversusCALDWELL.
THIS was an indictment for a misdemeanor committed inNorthumberlandCounty, in which asubpœnahad issued, on the part of the defendant, to summonSamuel M`Clay, Esq. andJohnM`Pherson, Esq. Associate Judges of the County Courts ofNorthumberland, to appear in the Circuit Court asPage 334witnesses on the 4th ofMay. Thesubpœnawas served on Mr.M`Clayon the 28th ofApril, and on Mr.M`Phersonthe next day.E. Tilghmannow produced an affidavit, "that they were material witnesses, without the benefit of whose testimony, the defendant apprehended and believed he could not safely proceed to trial;" and moved for a postponement, not only in this case, but, also, in cases ofMontgomery, LangandStockman;in which, to save expence, nosubpœnahad issued, though the same persons were material witnesses for the respective defendants.
Rawle, the District Attorney, objected, that from the 4th ofMay, when thesubpœnawas returnable, a sufficient time had elapsed to have brought the witnesses toPhiladelphiaupon an attachment; but he consented to consider thesubpœnaas having issued in all the causes. There was no legal necessity for the witnesses, merely because they were County Judges, to attend theNisi Priusof the Supreme Court, which is alledged in excuse for their absence; and as this is not a capital case, the application for delay is not entitled to be treated with any peculiar indulgence.E. Tilghmanreplied, that thesubpœnahad been served in a reasonable time; and, although no attachment had been moved for, it is some excuse for the defendant, that he expected the trials for treason would first come on; and for the witnesses, that their official situation seemed to prescribe a respectful attention to the Judges of the Supreme Court, who were then holding a Court ofNisi Prius, in the County ofNorthumberland.But after the oath which the defendant has taken, the Court will not presume, that his application for delay is without just cause; and if there is just cause, they will not compel him to proceed to a trial, under such disadvantages. Besides, it is not desired, to put off the trial 'till the next Term, but only for a few days, that an express may be sent for the witnesses; as with the benefit of their testimony it is immaterial to the defendant when he shall be tried. Though, if the delay is limited to a few days, it will be necessary, in order to remove all future cavil, to move for an attachment against the witnesses.
BY THE COURT: — We have no hesitation in granting the indulgence of a delay for a few days. The cause may, therefore, be continued 'till this day week; and, in the meantime, let the attachment issue; but it can only be in the case, in which thesubpœnahas been actually served. The practice must alwaysPage 335be strict in the previous stages of the business, before an attachment can be awarded; and all the documents, upon which it is awarded, must be filed with the Court.