People v. Judah

*486The Recorder delivered the opinion of the court, and observed, that the application had been made to him at chambers, under his ex officio commission, for a certiorari. He had refused it on the ground that the sovereign of a country, who is considered as the fountain of justice, has a right to select the tribunal by which offences shall be 'tried; and as the people are, in this country, sovereign, they, by the district attorney, have the same right. Judge Blackstone, in his Commentaries says, that a cer^orar^ may be granted at the instance of either the prosecutor or the defendant; the former as a matter of r^§b.t, the latter as a matter of discretion ; and th ere-fore it is seldom granted to remove indictments from the , . „ . . - - justices of jail delivery, or after issue joined, or confession of the fact in any of the courts below. In cases of felony it has been settled by the Supreme Court, that unless in great and peculiar causes, a certiorari shall not be granted and although in the case of Hetti'ck, which had been alluded to, it- had been granted by Judge Platt, yet the decision was-overruled by the Supreme Court, and the case remanded to this court for trial. If such was the law in felonies, the reason of the rule was still stronger in misdemeanors ; for it would be monstrously inconvenient if every case of misdemeanor was liable to be transferred form its appropriate jurisdiction. There were some cases in which indeed, it seemed to be necessary, and the case of Parker, alias Hoag, was cited; but nothing appeared before the' court to convince them , , ,. , - , . , . . . . that a jury could no be found in this- city, at this time, by whom the defendant could have a fair and impartial trial.* The court, therefore, did not think the apprénhension well founded; yet, as the counsel for the defendant *487adhered to the idea of excitement, and as the time asked for was but a few days, the court had unanimously decid-' ed to grant it.

*4864 B1 Com 321. 2 Hawk, Burr *749 cto od win-’s case. 18Johns Rep. 187.

5 City Hall Rec. 124.

*487The counsel for the accused were' directed to give notice to the district attorney of their application to the Supreme Court for a certiorari, and the case was postponed to the fourth day of the sitting in August term.

*488The Counsel for the prisoner abandoned her defence. A plea of not guilty was entered under' the act of assembly *489of the state and the trial proceeded. She was convicted, and. was sentenced to the State Prison. The indictment was found, and the trial took place the first term after the felony committed, and the first term after the charge and arrest made.

I am not certain that this case is entitled to any authority, notwithstanding the great experience of the Judge, who presided at the trial.

First. Because I am not certain of the accuracy of the case, although I have two anonymous reports of it, and the above is the substance of them.

Secondly. Because it is an extreme case.

The prisoner had been so long before the public charged with high crimes, and was known to every "one to be a woman of very extraordinary powers, which were exerted in the commission of crimes and offences, as various as the mind of a wicked woman could devise, and a set of desper' ale associates 10 execute, that public justice seemed to demand a course of proceeding out of the common order. For in common cases, an application supported by the first <\ affidavit read in this case, would be considered sufficient with respect to the second affidavit, the exceptionable manner in which it was worded would seem to imply that but little attention was, or ought to have been paid to it.

Ante, p. 30.

In this city, where the court sits for the trial of criminal cases every mouth, it is customary to postpone the trial to the next term, merely on the application of the prisoner, stating that he is not ready for trial. In other cases, the court will require an affidavit of the absence of material witnesses ; and in suspicious cases they will compel the *490prisoner to show how his absent witness is material. The Oourt no doubt, have a sound discretion in granting and refusing applications of this nature, which is exercised upon a view of all the circumstances of the case, to further the ends of justice~ and secure a fair and impartial trial.