§ 15. DEFENDANT NOT APPEARING. If a defendant in any indictment shall have been let to bail after the bringing of any writ of error, as provided by the statutes above cited, and shall neglect to appear at any new trial that may have been ordered, or to appear and receive judgment, the court authorized to render such judgment, or in which such new trial shall have been directed, may cause such defendant to be arrested in the same manner as upon the finding of an indictment, and may forfeit his recognizance, and direct the same to be prosecuted.1 SECTION IV. OF MOTIONS FOR NEW TRIALS. Section I-NEW TRIALS UPON THE MERITS, OR FOR IRREGULARITY, OR ON THE GROUND OF II.-GROUNDS OF THE MOTION. a. NEWLY DISCOVERED EVIDENCE. b. ON THE GROUND OF SURPRISE. c. IRREGULARITY IN SUMMONING AND DRAWING THE JURORS. d. BIAS OR HOSTILITY OF THE JURORS. 6. TAMPERING WITH THE JURY. f. MISCONDUCT OF THE JURY. g. VERDICT AGAINST EVIDENCE. h. VERDICT AGAINST LAW. § 1. NEW TRIALS UPON THE MERITS, OR FOR IRREGULARITY, OR ON THE GROUND OF NEWLY DISCOVERED EVIDENCE. A new trial may be defined to be the re-investigation of the facts in a case, or rather of the legal rights of the parties upon disputed facts. In other words, it is a re-hearing of the cause granted by the court on motion of the party dissatisfied with the result of the previous trial, upon a proper case being presented for the purpose before another jury.2 The subject of a new trial, in criminal cases, is of paramount importance to the ends of justice as well as to the accused, personally. If the defendant has been improperly convicted, he should neither suffer the punishment nor the disgrace which attaches to his conviction. The law should supply the means of correcting the error, and if it fail to do so it is remiss in its highest duty-that of full protection to the rights of the citizen.3 1 2 R. S., 742, § 29. 2 G. & W. on New Trials, 32. 'I Arch. Cr. Pr., 178, note. The English rule, that in no case of felony can a new trial be granted, has no foundation in reason, and has never been established as authority in our courts. There is no reason why a man who has been defeated by surprise, by failure in proof, or for any of the numerous causes for which new trials are granted in circuit suits, should be permitted another opportunity to establish the right, which does not exist and cannot be applied with more force for allowing an innocent man, who has been wrongfully convicted, the right to assert and prove his innocence by another trial.1 Courts of sessions, by statute, have the power in the several counties of this State, to grant new trials upon the merits, or for irregularity, or on the ground of newly discovered evidence, in all cases tried before them.? But the court of oyer and terminer has no power to order a new trial upon the merits, after a conviction for felony.3 Where the conviction is in the oyer and terminer, and it is desired to make a motion for a new trial, on the ground of an irregularity, which does not appear upon the record, the proper course is to remove the proceedings into the Supreme Court, either by writ of error after judgment, or by certiorari before judgment; and after the writ has been returned, and not before, affidavits may be read upon the argument to correct an error arising out of an irregularity prejudicial to the rights of the prisoner, which does not appear upon the record, and where he has no other legal mode of redress, such as improper conduct on the part of one of the jurors.4 The application, when made to a court of sessions, to set aside a conviction for irregularity, surprise, or upon the ground of newly discovered evidence, must be made before judgment. The statute does not give power to set aside a judgment regularly entered.5 As to whether the provisions of the act of 1860, granting leave to make motions for new trials in criminal cases, extends to the Peo. v. Stone, 5 Wend., 42; Peo. v. Judges, 2 Barb., 282. Laws 1859, ch. 339, § 4, p. 794. • Appo v. The Peo., 20 N. Y. (6 Smith), 531. Willis v. Peo., 5 Park., 621. Peo. v. Donnelly, 21 How. Pr., 406. court of general sessions of the city of New York, there are conflicting decisions.1 But the Court of Appeals have held that the court of general sessions, and the court of sessions of any county, are one and the same tribunal.2 The superior court of Buffalo, has power to grant a new trial to a defendant convicted of a misdemeanor, either on the judge's minutes, at the same term at which he was convicted, or on a case at general term.3 In considering an application for a new trial upon the merits, or for irregularity, or on the ground of newly discovered evidence, the motion is usually made in the ordinary manner of other motions upon affidavits, accompanied with a notice of motion upon the usual notice. The first of the above mentioned grounds, in relation to a new trial upon the grounds of irregularity, though it may not be made upon a case or exceptions, is in general made upon the judge's minutes at the time of the trial, in an analagous manner to similar motions in civil actions, as regulated by the code of procedure, rather than upon a notice of motion and motion papers. The other grounds of surprise and newly discovered evidence, however, as they relate more particularly to matters resting without the knowledge of the trial judge, could not be made upon his minutes, and are properly brought before the court upon a regular notice of motion, accompanied by affidavits and papers establishing the facts upon which the new trial is sought to be had, and in cases where the motion is made upon the ground of newly discovered evidence, it has been the practice to have a case duly made and settled, in order that the court may see in what respect the newly discovered evidence is material. The statute, conferring the power to make the motion, is silent as regards the details of the practice. Under the civil practice, where a motion was made for a new trial upon the ground of newly discovered evidence, and nothing but the affidavits in support of the motion were handed up, the court refused to hear the motion, because the affidavits were not accompanied by a case 1 1 Peo. v. Powell, 14 Abb., 91; Peo. v. Sessions, 15 Abb., 59. 'Lowenberg v. Peo., 27 N. Y., 336. Peo. v. O'Brien, 4 Park., 203. ⚫ Code, § 264. showing what transpired on the trial; observing that was the settled practice of the court, and that it could not be departed from. And it has been held, in the Superior Court of the city of Buffalo, that the motion must be either upon the judge's minutes or a case made and settled.2 It is too late to raise the objection that the case is not made after commencing the argument.3 The facts required to be established by the affidavits, will more fully appear by reference to the reported decisions, stating the instances in which such an application can be sustained. It may be well to remark, that the strongest case must be made out, as the courts are reluctant to grant relief upon such applications, unless alsolutely necessary for the purpose of a due administration of justice. An order granting a new trial upon the ground of newly discovered evidence, and surprise does not involve the merits of the action. The new trial is granted to ascertain what the merits are.4 § 2. GROUNDS OF THE MOTION. Among the grounds of a new trial, may be enumerated any flagrant misbehavior of the party prevailing, toward the jury, which may have influenced their verdict, or any gross misbehavior of the jury themselves, the fact that the verdict is contrary to evidence, or without evidence, or if the judge himself has misdi rected the jury, so that they have found an unjustifiable verdict, or where the defendant has been surprised, or where there is newly discovered evidence, for these, and for other reasons of the like kind, it is the practice of the courts to award a new or second trial; but if two juries agree on the same, or a similar verdict, a third trial is seldom awarded, for the law will not readily presume that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones. (a) Newly Discovered Evidence.-In regard to granting new trials on the ground of newly discovered evidence, the following principles are said to be settled : 1. The testimony must have been discovered since the former trial. 2. It must be such as could not have been obtained with reasonable diligence on the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case, and not to impeach the character of a former witness. 5. It must not be cumulative.1 Evidence is cumulative when it goes to the fact principally controverted on the former trial, and respecting which the party asking for a new trial, produced testimony on the trial of the cause.2 It cannot be objected to the granting of a new trial, on the ground of newly discovered evidence, that such evidence is cumulative, if the evidence alleged to be newly discovered, is of a different kind and character from that adduced on the trial; as where the evidence on the trial is wholly circumstantial, and the evidence newly discovered is positive and direct.3 It is well observed in the cases referred to, that it is the duty of parties to come to the trial prepared upon the principal point, and that new trials would be endless, if every additional circumstance bearing on the fact in controversy, or the discovery of an additional witness was a cause for a new trial. Such a practice would not only occasion great delay, but would offer strong temptations to the subornation and commission of perjury. Cases sometimes arise in which it is difficult to determine whether the newly discovered evidence is strictly cumulative or not; but where it is clearly of that character, consisting of additional witnesses to the same facts testified to on the former trial, or of additional facts and circumstances tending to establish the principal point established before, it has universally been held, not only in this State, but in England, that it is no ground for granting a new trial. An exception to the rule has been made in this State, in Peo. v. Superior Ct., 10 Wend., 285; Porter v. Talcott, 1 Cow., 359; 4 Bosw., 622; 30 Barb., 655; 2 Hilt., 285; 2 Cai., 132-163; 3 Id., 186; Peo. v. Mack, 2 Park., 673; 18 John., 489; 8 Id., 86; 15 Id., 212. * 10 Wend., 285; Brisbane v. Adams, 1 Sandf., 195; Fleming v. Hollenback, 7 Barb., 271; Guyot v. Butts, 4 Wend., 579; 15 Wend., 270; 1 E. D. Smith, 107; 12 John., 354. Guyot v. Butts, 4 Wend., 579. C. P.-30 |