Here again it must be borne in mind
that such applications are often legitimate and proper and
should be granted in simple justice to the defendant.
Although this right to take the testimony of absent witnesses
is confined in New York State to the defendant and does not
extend to the prosecution, and is undoubtedly often the
subject of much abuse, it not infrequently is the cause of
saving an innocent man.
An example of this was the case of William H. Ellis, recently
brought into the public eye through his connection with the
treaty between the United States Government and King Menelik
of Abyssinia. Ellis was accused in 1901 by a young woman of
apparently excellent antecedents and character of a serious
crime. Prior to his indictment a colored man employed in his
office (the alleged scene of the crime) disappeared. When the
case was moved for trial, Ellis, through his attorneys, moved
for a commission to take the testimony of this absent, but
clearly material, witness in one of the remote States of
Mexico--a proceeding which would require a journey of some two
weeks on muleback, beyond the railway terminus.
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