People v. Northrup , 1867 N.Y. App. Div. LEXIS 177 ( 1867 )

By the Court,

Gilbert, J.

I. The question of the legal- . ity of the adjournment to Bedford, is one of power only. There is not the slightest reason for the suggestion, that the prisoner has suffered any injury, of which the court can take cognizance, in consequence of such adjournment. This power of adjournment is original and exclusive in the same sense as the power of appointment. (Code, §§ 22, 24.) The limitation, as to the place of holding the courts, applies to both. They are to be held in the places “ designated by statute for holding circuit or county courts.” It is not disputed that the court house in Bedford is one of the places so designated. As, therefore, courts might have been appointed to be held at Bedford, it is difficult to perceive why they may not be adjourned to be held there. A power to adjourn imports a power to put off the holding of the court to another time or place. (Vin. Ab. Adjt. A. Com. Dig. Adjt, and Assize B. 25. Jac. Law Dic. Adjt. Goodel v. Baker, 8 Cowen, 286. People v. Martin, 1 Seld. 22.) The only restriction on the power is, that the place be one designated by statute. The language used in section 24 of the Code, viz : “ May be adjourned to be held on any future day,” is not restrictive of the legal import of the word “ adjourned,” but was evidently intended as a requirement to fix the time ; for the statute then in force and referred to in this section had fixed the place. The adjournment is to be made “ by an entry to be made in the minutes of the court, and it should specify time and place.” Taking into view the whole of section 24, it is quite apparent that the legislature intended to leave the law, regulating the places of holding courts, as it stood at the timé of the passage of the Code. I am of opinion, therefore, that no error was committed in this respect.

[Orange General Term, September 9, 1867.

II. The wife was properly admitted as a witness. The exception of cases like this from the general rule of the common law, excluding the testimony of husband and wife for or against each other, is too well grounded to be questioned at the present day, when the tendency of legislation is strongly towards an abrogation totally of the rule itself. (Ros. Crim. Ev. 6th ed. 118. Taylor on Ev. § 1000. People v. Carpenter, 5 Barb. 580.) Being a competent witness, I am not aware of any rule whereby any part of her testimony ought to have been excluded. It was intimated by Solroyd, J. in Bex v. Whitehouse, (cited in 2 Russ. Crimes, 3d ed. 984,) that. the husband and wife could only be admitted to prove facts which could not be proved by any other witness. But I cannot find any case where such a restriction has been applied. Mr. -Taylor, in his treatise cited before, says of it, “ it may be doubted whether this be not restricting the rule within too narrow bounds.” It seems to me that such a restriction would be impracticable, and would serve no useful purpose.

III. I have considered the other objections raised by the prisoner’s counsel, and am of opinion that each of them has been satisfactorily answered by the district attorney.

The proceedings should be remitted to the court of oyer and terminer for the county of Westchester, with directions to proceed and render judgment. (2 B. 8. 741, § 25.)

Lott, J. F. Barnard, and Gilbert, Justices.]