Opinion
April 3, 1934.
William C. Dodge, District Attorney [ Edwin B. McGuire, Assistant District Attorney of counsel], for the plaintiff.
Bernard H. Sandler, for the defendant.
Counsel for defendant moves for an order directing that an open commission issue in this action to a duly accredited and stated officer to examine under oath Edward Davis, Lewis R. Bishoff, Elihu A. Greenhouse, Meyer Emil Maurer and John Doe and Richard Roe and Jane Doe, employees of A.J. Holman Bible Publishing Company, Philadelphia, Pa., all residents of that city and State as witnesses on behalf of the defendant herein, and that the People be at liberty to join in the said open commission for the examination of said witnesses in connection with the determination of a motion for a new trial returnable before this court on March 29, 1934. Application is also made to have the determination of such motion for a new trial held in abeyance pending such examination.
The defendant has been found guilty of a conspiracy and is now serving a penitentiary sentence, arising out of an attempt to defraud the estate of Ella T. Von Wendell, deceased. It is claimed by the defendant that his conviction was obtained upon certain perjurious testimony; and that by the examination of these new witnesses it can be shown that material facts were concealed upon the trial.
The district attorney opposes this application. Article VIII, chapter IV, sections 636 to 657 of the Code of Criminal Procedure deals with the examination of witnesses on commission. There is no provision in the Code of Criminal Procedure which authorizes the issuance of a commission in aid of a motion for a new trial. A commission can be issued only for the taking of testimony to be used upon a trial when an issue of fact is joined upon an indictment. Judge VANN wrote in People v. Haight (13 Abb. N.C. 197): "The power to issue a commission for any purpose is an innovation upon the common law, it must be strictly pursued. It depends solely upon the statute, and cannot be extended to any case not provided for by the statute."
Under section 465, subdivision 7, of the Code of Criminal Procedure the court has power to grant a new trial "Where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative; and the failure to produce it on the trial was not owing to want of diligence. The court in such cases can, however, compel the personal appearance of the affiants before it for the purposes of their personal examination and cross-examination, under oath, upon the contents of the affidavits which they subscribed."
Motion denied.