"l, l"
t); ox til
' v ' v
't8Y.O. E. ODC'DbA.NDEIt fit CO.
miNCIPLES, not MEIT.
TFRK3-S1 25 per Autnm, if ru'dln cdvnrro.
Ni;vsia;iKslvoL. yo
SVOL. XXXI. WHOLE NO. KAS.
clearfikld, pa. wi:dnksla, pi:h. 20, ion;.
mil it'
f i ii n t" it ii ri n u n
s
DI.SSKNT1NU OI'IXIOX OF
BON. GEORGE W. WOODWARD,
In rnt Csthcakt Mciiuer Cask.
John Culhcnrt vs. tho Commonwealth.
Error to Oyer on I Terminer of Clearlield
County. Dissenting opinion by
Woodward, '. I regivt tlio noces-ity I
arn tinder, to dissent Ii-om (Mo opinion 01
't the majority of the Court in thi cas. It
" is desirable at till times that the judgments
of the court should bo luianiuiotis, nnd it
it especially no when the life of a fellow.
. ' Kiiiit ta aliitA.l 11 i-irtrl flu uaitA 'I lift fill.
"'enceofonoof our n imber on't.ccotint of
sickness, inuk( it still morn important
ip that the f.vir judi's who pnl in the nrjru
!,' mint should nre in the judgment. Eeel
in th w.''lit of these cont.i(lv'ratioiis,
and entei'tuitiin tho most unt'eiL'ned r-
ftlMft ifw tm t-1 ti u it ilia nl' 111'.' I n'ttl 1 1 n it.
I is upon no flight or ouettional.le grounds 1
t mat 1 have nmdf up trv inind to uttseni
from their judgment. Nor Imvo 1 been ;
able to content my sene. r.r d:ilv with n Pt'y uiul severalty ; and such, it is believ- nieu
simpN dissent, entered of record ; but i has been tho unitorm practice under 1 hesenppeflr to me o bo reasons in fa
it seems to 1 c due to the t'luve nutMion our constitu'.ion. and in our sister States, vor ot the ancient mode of swearing ju
before us, tint I express my reasons, with ! Then our eonstimtion must bo read as ( rors, but if they are not if I am misla
as much fullness as the pressure of oilioiid enjoining this mode of swearing. Judge ken in supposing there was go.d reason
j...:-. .,.! ..oi ,;,!, .,.,.). ! I vnn tells us it waj not oborved on the from the hecmnina for tho several oath
ii brevity a tho nalure of tho onolions will
ajjov(fi (
k The government of the Commonwealth
proposes to nu: to death a citizen, because
of a judicial c nviction of the crime of i
murder, lie I. as removed tho record of.
that conviction into- this court, and coin
plains, among other thir gs, that his con
utitutional rights wore violated, in the
manner in which his trial was conducted.
If this complaint be well grounded, I sup
pose tho government, through none of its
ofilcial organs, has tho rinht to put him to
.if... i.i i.-1.:.. Tie..
KA -MLI1"" IHIL Jld HUlvO 1113 Hit- HO Ul Ci t Utlll I I
in
an docs, urldcr all tho fuaraniies o; the
mslitution-tiiat the judicial rrcanj of
uonsiituiion tifii i oe inuieiai rrcauo i
lliA iTovernnienl Iifivi r.n ini'imlie' in"i toll
condemn h.rn, except in the very forms ofij"' arisen un(Ior tho
the constitution, und that it is not too late
for him to .lead bis constitutional rights,
whilst (hit, the highest c urt in i he Com
monwealth, is deliberating cn his rase.
The pniiiciil.ir in which the accused
complains r f the violation of his constitu
tional rights, was in the manner of swear
ing the iurv. Th t 1 no'v omit or mistake
tiothinu 4 the f.icu or re.tsor. on which i
tJ6 court proceeded in this particular, I
copy tho full language of Judge Linn, as
delivered on the motion for now trial
and in .T-rest of j..:';rine nt, :
iiiiu nuicii itv-
I ...i.:,.l. 1,
uss ceriilied and cnt up to us.
The find
reason unsigned
for
new
trial and in nrreU of ju Igment ' as, that
the jurors aeve not properly sworn ; in
common' ivg on and overruling which, the
learned j.ulge said :
" In r.&!n tjion this alipgod reason fnr ft now
trlai, I Imvo ueon rcq'.:clci ly the prisonor's
eounssl in ft.ito llio u.a!inr in wliiih thejury
were uin, to that if un errur bus been rornuiit
tod, the iiiinuncr mry i.ot lo di prit crl f the ten.
cfitoftt. Tu thj reiiu-st wo choerfu'tv ftssont.
v.... , r .!. .. ... ..,ll .l".. k..l.
iic jut v ni'iu D,i"'i, iiiiin liiu ntiuiu
odnnni-lorod tu t b in , nut tenarntelv, but as
many ns sworu by the boolt wore nskei to arie,
and tiny wore tworn tliusi'You and each of
you swear,' Ac, Liinp the form nf oath, and aa
o OS to tho so who ntro quulifu'd in a different
form. Thu dtfendant's counsel now exoopt ta
thii mnrla of wearini the larv. and iniet that
each juror fhould have bceu aworn aepurale
. . . . I.. .i - .i .... i
V.sr nwure tnat orainarny una ia uuuc
tbs sourt woio inauco i in una cubo m uibi j
swearlnx tho jury until me panel was iuii, '
twelvs ere eu.pnnelled. The oath was thon!MV, wiiei, the " trial ui called, the jurors
.. . . Sl1.' I .
they micht bo sliced, on acoount oi tne rumoin " ..-...v ... - - ,
IhUh misht prevail throughout the county, to the recent enactment alluded to. caretul- deprived of a constitutional l ight for re.
diamUi tlio jury uud continue the aaw. We can- v prepared by competent codifiers. it is tsons that were wholly, inadeqate, lrim.eed
nu e any rco'son why the mode adopted is un. worthy of rom.trk that there was no at- any reasons could justify a court ir. with
lawful. The jury were by th:a'a.ode placed under tempt to change it. They 'eft theadrain- holding a constitutional right from an ao
th.s ohli-itiuns of the oath, jut a effcotually, to :stratiou 0f the oftt'n to tho . common law, cused citizon, und I come now to the
SAr" W.r.." T,tltt Te j where th, cbnsti.ution leaves it. If que.-ion why should he not have redress
cannot see how the case of the prisoner can bo the legislature have not changed it. and in t his con 1
prejudiced by this practice. BmIOs. we are of could not change it. hoiv could the Court ; The single reaon assigned by the ma.
I-il! .h.. oi,u.;,.n k.i . mit.r nf f o ....,.-t T.n nf f 'inii 1,1 ennntv uiritv. is that the matter complained ol
furin, tlionld huvo been made at the ti the
jury w..tc twurn. and that it is no reason for
grunting a new trial. It :t eaid by the counaol,
that tho I'ri.juer may reinaiu silent, take hit
chano'i of an ucpui tal, and, after conviction,
Urge the objection. There are, however, Irregu
larities, which the prisoner munt object to at the
time, or they will be conidered ni waived j and
it seenii to us that ihii is una of t bat cburucler."
' We have thus placed before us, in the
niot dis:inct character possible, the fact
that the jurors weie not sworn severally,
one ly one. but jointly, as they would
hare been in a civil action, or on atrial
for aiai It and buttery.
" 5'!ie sixth section of the ninth article of
tbe Constitution of Pennsylvania say-,
"that the trial by jury shall be as hereto
fore, and tho right thereof remain Invio
lute "
Tins provision has been in all our con
trillions since 1776, ai.d has al Rys been
uivleri.v I as cu arunty ing to the citizens
of Pennj lvnnia, the r'ghts of trial by jury
as they "x!stod at common la-v at and be
fore I fi nt da: o. Very many cases of civil
juriMlic.iion, and so'ino of sninll misdo
meanors, have htcii denied trial by jury,
by legislation; but the legislature have
i ever nt ton p't d to t per the common la
forms o-.' iriiil for the higher erinus. On
the contrary, all our legislation has aimed
facilitating and systemati;.ing jury trials !
"itJii i ins umidu i
for high r.i imes and misden
pu.eanors. I
11 i.v ih'ti, weie.iur.es sworn at com
mon law. in capital caes. before
the be-
gfrniiii cf our constitutional
mrnl "
govern-
In Hale's
tu. f th. Crnxn ran il
r.-.. .1 m.:.... .r..mtmi.iii nf ili.'mnn in ..ni. ii.. r,m nf iIia rmih in
-! UC-l 1 4141 11 U IIIO 11 '"'f " . - " . -
rwiso:.er, the summoning tnd calling of
the jurors, and the form of cha.lfnges, we
tto told -If no challenge hinders, the
jo'vaiecmnnandfdtolookon the pris-
oror. then teveruflif tw;!e of th". "
A.'f mirenr less, are' sworu.' Yon shall
Well nn,l i. nlv ii v " Xe
' f n.. rule i. laid down in the same words
in -'neon's Abiiii 'ement. 5th volume, raae
i a
Te..v . ..ii. .. .t (CO
'. i
" n-'i'n reus un, in sui voi n.
W:.e., ti.e trial is called on, the juroM
re ia U sworn in theytpf.trr, to th Bum-
bur of twelvo, unless they are challenge true deliverance to make between the
ed." Commonwealth and tho prisoner whom
Mr. Chitty, in his Criminal Law, p. 532, h - shall have in ch'itge, and a true ver
suys, " As noon us cuoli juror ia sworn, dirt to give according to tho evidence."
h is not apart in tho jury-box ; " and a! What in human affairs, is better calculi
nolo 00 the muiio wise reads, "aoeordinir ted to impress the conc;enoe and '
to 4 Hargrove's Stuto Trials. 72,'i. each j ken all proper sensibilities? An oath,
juror is sarorn when called and not cbal. jduly considered, is a drrndfnl tiling, un
lenged," der ony circumstances, but oiving to its
Archibald, in his Criminal ricadings 'commonness, it has como to be very
and Evidence, 1st vol., p. 102, says, " In 'slightly regarded, ond when administer
treason and felony, tho numes of the ju- :ed to 11 group of mon in a jury box, is no
rors are then separately culled over by tho much a matter of course, that it is liabln
clerk of arraigns or clerk of the peace, to pass as an idle form, and not to pene
and the crier of the court ad ministers th,trutc tho conscienco. lint when it is laid
iC'1'1' ,0 ""' ot' them thus: 'you shall ,
well and truly try," Ac. ' dox, and while no swims in tne nnmoui-
And lo murk a difference, thin writer Into presence of the c.iurt and tho prison
immcdiatcly add, " but in mitdemeanor$, er, it nniit have n power, or to suy the
tho jury are at once sworn, usually four least of it, it may have a power altogoth
jurors at u time," er pemtlinr to itself, with which no court
These niiilioritiea T Riuinose. m-o sufli- has ft rifht to dispense. Obligations 81-
M, to show that before our constitution,
ei. hi wminou " ".".
"worn smrul'j, in capital cases, and never ,
'"! of the present plaintiff in error. As
to tlio reasons assigned for not observing
it. 1 shall have something to say hereaf-
tor. I5ut for the present, I wish only to .
-'vet attention to the tact that Hie prison-
' constitutional right oi trial ny jury
as tho same prevailed fioni time imrnem-
orial, Aas not conceded to him in tho
form and manner of swearing thejurors. !
An. I it U nmiiM-inl i, nniicc. th it it was !
withhold by tho mere action of the court,
without anv sanction whatever of the
legislature. Many statutes have
been
passed, rcau'atina trial bv iurv. one of tho '
I ' J tl ' l
last ot wincl: was our very recent code oi :
criming procedure, adopted March 31. !
i0
And a constitutional (jueslion
has ;
thirty-sevonth sec-
tion of that enactment, which cives to .
the Commonwealth four peremptory chid -! form, should have been made at the time
lenges in all criminal cases. That was an ! thejury was sworn, and that il was an ir
innovation on the common law trial of j regularity, w h '.oh must bo considered as
felonies, for at common laiv the Crown waived.
w.is allowed no peremptory challenges, lcnnnotasreeth.it it was matter of
and trenched hard on the constitutional form. For the reasons 1 have ventured to
proiision under consideration ; but I ac- I suggest, I think it was matter of sub-
flull!sco
iii th opinion ol my brother
,u 1 .., l'"TC'1"' ""
case oj 1 he Comnionweulih vs. arren, ,
f'-om the Oyer and terminer of Berks
COUIllV. SUSiain llil llie vaiUUV DI me en
., " ... .. - . ...
! iri.,1 v iurv und I trn williriLf to sav that ;
actOH'lll. 1 DH COhSIliUllOU proiecis llie
tiie does not commence till tho jury irregularity, as the prisoner did in Mills' j error of tho justices, magistrates, und
i uro ad'nd and challenged. All statutes, Case, 1 II. f.tfO. and Peifrer's Case, 3 II. j courts of this Commonwealth, in the pro
I therefore, that relate to summoning, cal- 470, I would bo obliged to say as Ch. J.jce.s. proceedings, judgments and decrees,
llingnnd chi.llenging jurots.anrf which do , Gibson did in tho lust of these cases. "I j as well in criminal as in civii pleas or pro.
I...,: ..;...,;,-,,.. ...,. i nrU a.-a' think no consent ofa prisoner, in the ex- ceedings. and thereupon to reverse, modi-
not tin institutional"; and that, 1 think, J
is very clearlvsho-vi in Judge Thomp.
. ' . . ....... . '
son s opinion,
willing to go.
s opinion. liiiL this is as lur aa i m
ti.. ,.i . uinr. 1
.k1i. -ii.'xl '
ot the trial.
u. " . . I
are to bo sworn as they appear." And in ;
p!tr..i.' Case 3 11 470. Judge (jibson .
baid, ' A juror is c1 w ged with a prisoner
as socn as ho has locked upon hira and i
taker, tho oath ; for he cannot bo with-
'rlrnivn. Tho tivnl has commenced, and
Uoiv-' tho prisonerstands before him as ono of,
fUt : his judge." With the mode of swearing '
iMt'theni, the legisliture couldnot.I pre-1
, - -. .
,, xnlB,rern.a,i i
change it? There has been no attempt
to answer this question, whilst the fact is
. ...
patent that that court dul substitute lor were uuiy rmpuueneu, n o, -the
ancienl. practice, the every day usages ed, and applying the maxim that all
of the Quarter sessions and the Common things are to be presumed to have teen
Pleaii j correctly done, they conclude that the
I mnm iui i to consider tha reasons as- jurors wore sworn in the manner they
.;nri I v tlio iii i m fnr tha ehnnfo. I
admire the frankness with which Judgo
L'-nn has spread the facts before us, " in
order," as he says, "that if an error has
heen committed, the prisoner may not
be daprived of the bonefit of it;" but I
dissent totally from th reasons assigned
(or what lis did.
The fir.t is, that he feared the pa;:el
4 hefo: the box was
r.iii onri ih.it thn eua would have ta be:
continued. The result shows that the
fear was groundless ; but even if the panel
had been exhausted and talesman could
not have been obtoined, it was no excuse
for this unheard of innovation. The
prisoner's con-titutional r'ghts weresus.
penried on no men slender thread of
convenience. He was entitled to have
his jury sworn according to tho law of
the Und UDtil they were so sworn or
affirmed, the court had no jurisdiction to
Urv him. nor the government to hung him
The next reason is, that "thejury were
1 nu ii imsi j.
hv this mode, severally placed under the
obligations of the oath, just as elleclually,
to all intents ond purposes, as though it
had been administered to each one in
succession."
!Mui ..i.i.j ik. ..nunf ilia mm.
. IIO I Cl, IU Villa . I, vim W'mt w.
....... .V .911111 ...oivi... w. ....
capital eases, in the manner lliov did ; but
every observant spectator of criminal
trials must hv been impressed with the
solemnity of the ceremony. Ajuror.in-
dividuated and seperated from the sym-
pathies of companionship, is called to
confront the accused whnra he is to have
in charge, and then, alone, on his resp n
; sibilitie m ariian with an eye single to
'. i :i i .1. .ii j . ' i
llje answer wuien un eimii renaer lo ird
li il,. FMittflar. hn iiHn nnnn him
.-- ., ----- -----
. self, by solemn oath or offirmul.ou, the
obligation win aoci iruiy iv iry, inu
upon each man before ho passes into the
sumed by a muliiiudo never press on
. , i n
and weight as when individually ossus
I reply, wel ','o it so; but there is the mod
plainly prescribed, and il ivo cannot dis-
cern tho i easins for it.no judge has a
right to set it nsulo upon the gratuitous.
asbumption
that another less
solemn
1 mode will do as well. Whether
the le-
lslaturo could reform it and substitute
something else, is not the question, for
the legislature huvo not attempted it. but j
thot a iuik-e cannot break awav from lone
established modes of procedure in a crim-
in'il caso involving the highest interests
of the citizen, and violate constitutional
rights which tne people have decreed
.. . .
sua i oe invioiiuo, is a
ought to need n3 argui
proposition
that
sup-
urucnt lor Us
port
The next and final reason of the court
is. that the ohiection. heme matter ol
stance, nut wiiemer lorm or -uosiance. it
- , . ,e... ...
and therefore should have been conceded
t him without question or denial. II is
iiiniire in fAte u ui n.mi uircs nwi
, ... " ,r ... ., .. I i
uimu:iihii- nun. ii, nil icm uuii-i uuiiu
he
had expressly agreed and assented to the
tren.ity of his need, ought to bind him ;"
or as Ch. J. Abbott did in Rex v. Wolf. 1
ri. r en ,k T.innnr nnirlil.
vihh,.u. tu,,,,.,. ' ,a ' 6
not. to lie asked to consent, loan irreau-
'larity. 11 express conseni nouiu nui
T .. .. a I I . I
have bound nim. much loss his silonce.
To have put him to object; ng and excep-
i . 1 . I i ! . I 1 J'..
ting to orders of (ho court intended for
me convenience ot jurors, wouin m
compelled him to preji.dico his triers,
and imperil bis life at the threshold of
t etrial. It was the business of the couit,
and not of tho prisoner, to direci tho
forms of the proceeding, and if a mistake
were made lo his prejudice, he is entitled
to the benefit of it.
I have now shown that the prisoner was
v . . .
does not appear upon tno recoru. inej
read in the docket entries that thejurors
should have been. Tho statement of
Judge Lynn, which I have quoted in full,
as showing how Ihojuty we sworn, is said
to be no part of the record, and that it
has been often held that the record can-
rot hi corrected by such statements.
Even if it could, it is said tho same opin
ion shows that no objection was made to
the manner in which the oath oraflirma-
tion was .vlininistored.
The majority do n;t attempt to justify
Judga Linn's departure from the forms nf
the common law, nor do they express any
doubt of tho accuracy of the statement of
facts ho has sent lo us, but the judicial
; conscience cunnot know that he blun.
dorod because the prisoner did not except
; at the time, and thus bring the blunder
within the narrow compass of that which
is culled " the record."
' I have two specific ground of dissent
from thi conclusion, which I now proceed
to state.
First. The matter complained of touches
. .. o . i . i.i.
. the jurisdiction ot tne court, and tiieieiore
may oe pieuuou, iu.iuSu uu uuk
of rocord
That the Court of Oyer and Terminer of
Clearfield county had jurisdiction of the
. . i i ..i . i.... :
Case, is not to ueuuuuteu; wuvjuniu
. lion is the rigfittotryonadecideacase
i
' Boror line to law. It must not only at-
, I .1 i I
tach legally, but it must be proceeded in
according to those rules of (ho lonsiitu-
tion and laws which dehnj the courts
powers. Idonotmwinihateveryjudici.il
mistake omts thejurisdiction of l he judge.
but 1 mean that wherein his powers and
prerogatives have been denned bylaw,
he must keep himself within thorn, or else
irl.at he does is null. The jurisdiction of
inferior court a not of record, must appear
on the faci? of their proceedings, but that
- - - , . - , ... ,
of the superior courts is pre.uiued till the
want wi juinuiwuvii ii-e). -
And that may h by n hat appean of re.
i.oni, or ty liictn (Anthe record. Toe
jiimdietion of the Federal courts, which
is always in controversy, ih olieu shown or
disproved by facts which do not Appear of
record.
If Jude 1. inn's commission had expired
before he tried the defendant, or if
the offence had been tried in another
county than that laid in the indictment,
or if. as once haoiiened. thirteen juror
,pi
had sat in theense. I suptofe no one would
doubt that his proceedings would have
been coram ntn judice, and Diight be set and at the end of it a note of the ilntenu
aide, though the facts supposed did not ant's exception, and u forinid bill, duly
nppeiT of record. In I'oust's case, II 'signed and sealed by the judge. This is
Casey. 338. we entertained an objection to followed by the clerk's crrtificnta tinrler
the jurisdiction of a (,'ourt of Over and iseul. that this paper was filed of rop.ord,
Terminer, ami reversed tho judgment, on
grounds that did not appear of record.
1 intimated at the commencement of
this opinion, that the government, acting
through its judicial agents could acquire
and hold jurisdiction over the life of the
prisoner, only by proceeding in strict ac
cordance with tho constitution and
luws of Pennsylvania. He alleges a flits
grant departure from one of our coiiitiiu
tutional usages, in the conduct of capital
trials, and he has proved it by tha volute.,
tary and honorable testimony of tho judge
who made it. I suppose that no judge on
this bench doubts tho facts- so palpably
before us. On what ground, then, cm we
permit the government to take the j.ris
oner's life ? Because the facts are not on
the record ? I reply that consent cannot
give jurisdiction, and, therefore, iviintol
objection at the proper time cannot. And
what I aid in answer to this reason, as
assigned to Judge Linn, applies here.
Theu I cannot concur in tho judgment
which seals the prisoner's doom. 1 would
give him the bonefitof the mistake, which
is clearly pointed out and fully admitted,
and voulci order him to another trial, lo
be had in the forms of the constitution
and laws.
Second. Hut in the next place, I submit
that the majority are mistaken, in treating
the matter which is not upon the record.
What is a record T Bluckstone tells us,
''A court of record is that where the acts
and judicial proceedings are enrolled on
irrhm t fnr a tierriptnnl memnriiil and
testimony which rolls are called the
records of the court, and are of such high j
and supereminont authority, that their!
truth is not to bo culled in question. Not
tho docket entries merely, but all the;very beginning oi his trial lor nie, it it
" acti and juditial procecdingt' a', the court
which are enrolled, constitute the record.
The jurisdiction of this court is to "ex-
; amine
anu correct ail und id I manner ot
, iy, or allirn, such judginents and decrees
or .proceedings as the law-dot . or M. all
direct." And bv the r.mtli section ot ihe
l7 , .r oo u.' itoo i....i.. vii .. n-
ui o uv, n... nuuun, on, n
' n.nt -kAuxn sn linltnnc Ii nrl
""j ui r1"'1"
him
or
themselves oggrie ed with the ju Igment
of any of the said courts ot general quartor
fngMi.no ni tliA nnAAA inn fd im dA iiiahii
sessions ol the peace, and of jail delivery.
mum uuu mibj lu '"
Irinttv nr nnrtian nil floisrieved. tn hftVA hift
I J 1 to "
.or their writs of error.
These old. statutes, it will be observed,
do not confir.o our jurisdiction to what
r.iay happen tj be docketed, but extend
to all the "acts and judiciul proceedings"
of the court which may aggrieve the party
complainant. The remedy, however, is
If be by writ of error, and this writ lies
from an appel'ato court only upon matter
of law arising upon the face of tho pro.
ceedings. If the judgment be erroneous
:.n tnattor of fact only, i,t is in the English
court a w rit of error coram nobis, issuing
out of the same cojri. With us, we ad
minister the same justice by means of new
trials, and by oponir;; and modifying
judgments eiroiioously i n'ered.
Whilst, however, the it of error from
a superior to an interior court tu?t be
founded on matter of law arising on the
face of the proceedings, it is to be remem
bered thit the laiv of every case arises
out of tbe facts of the caso, and therefore,
nn!..ss ili. (nets be trot to appear on the
f,.rw nf Im nrnneedini's. the. rit of error.
and our hirg! jurisdiction as defined by
statute, would avail but little. Henco
arose the necessity for a bill of excep
: ii ki .ition l,u iininiA nf
given
Westminster, 2d, 13th Edward I., but the
statute related only to parties "implead
ed," and not to those indicted ; and
henco it happened that the bill of excep
tions, was confined to civil cases, and to
courts of civil jurisdiction. The facts out
of which the legal rights of parlies ijrew,
eould be brought upon the record in civil
eases, bv means of this invention of the
v.:il J.vnimn, Imt not. ii ci in na en,
scs If they appeared necessarlv in the
making up of the docket enirio., they ,
could bo noticed on a writ of error if
they did not., the court of error could
tako no notice of them. To remedy so'
ere it an incongruity in the conduct ot
nivil and criminal cases, or. r legislature,
bv tho Act of 6th Novem., 1851;. l'urdon.
11)7. provided that on the trial nf any
indictment for murder or manslaughter.
it should be lawful for' the defendant to
except to any decision of tho court "upon
any point of evidence ord law, which ex-
ception shall be noted by the court, and
filed of record, as in civil cases." j
This was an extension of the law of bills
of exception to tho two hinh crimes men.
tioned, and no facts can be brough'-
upon the record--not t.,e d..ke', but
brought upon the rolls in criminal tria't
of these two crimes, with the same effect
as iu civil cases. All the evidence, or any
part of it all or part of tho charg6 of the
ludce, moy be thus got up. To use the
language of B'ackstone. 3d vol., p. 372,
"If either in his directions or decisions,
th? judge mistakes the law ly Ignorance,
rj
inadvertence or design,
the counsel on
either side may require him
publicly to
se d u bill of exceptions, which is rxstnS'nn ufllrtoanco of ihoju lament, t'neMvonld
nable in tho
h rii of error.
The practice in the caso foeloro us whs
coi.l'uruuible to this Mute of tho law.
Jtj.'iiie Lvnn (ells im in th extract 1 have
maiiti fr;tn tho paper-books, that tho
jmy were not rnpropo ! vtvnrn ; but tho
papor-bc oks do not contain the lull opin
ion. On iele:ing lo "tho lolls," I find
the paper which contains his siftio
menl of f icU, ia entit!el in the motion of
. on est of judneiner.t and for a now f.inl,
and it is certified by two of tfio judges in
return to our writ of error, as part of
the " record und proceeding" in tho
cause. !
Is'o'.v I submit, that in viow of these
facts, il is not possible tor ui lo say with
truth, that the circumstances utt'.'nding
the Mvpnring of the jury, are not on iho
record. Wo ru iy say that tht y ure untm; r
tunt, or improperly cn tin- reci'id. but wo
cannot say they are not judicially before
ii. It may be granted that Juilgo Lynn
might have refused to placo them on the
record that ho might have said ho would
not entertain the defendant s exception,
and seal a bill at so lato a stage of the
trial, but he did not. On tho contri ry,
he noted '.he exception, and sealed the
bill, and filed thepipsr of record, "a in
civil cases," and now we must repeil
Ac! of 1 85'i, or treat that paper as part of
the record. Shall we say that wo will
disregard the facts, because the judgd which only dates back soma 1JJ year. -ought
not to have sealed tho bill? lsub- Job was n rich man. and pr.ibably o'.-ned
mil that we have no right to disregard u a -10 barrel well. Ho was tho first opera
bill of exceptions duly sent up. Hut on tor in Petroleum of whom wo have any
what ground would we reject it if wo had account, though oil is also mcution.'i in
the power? i Deuteronomy xxsii, 13."
The Act of IS (C does not prescribe at 1
what time durin the trial bills shall ba A 1Ocilk Husband In Portland, r'ro-
sealed, and though they tire generally gon, there is a man who lived who his
and regularly sealed us toon as the judge wife several years, and they had seve: "!
decides, yet if he allows them ofterwards, children. At last she got tired of hi:n,
we have nothing to complain of. for the ond proposed that thev should p i a di-
only consequence of their being out of voree. said he had no ohje'-nnn, if
time is, that he -as deprived ol an op. she would nupport bin). 8te agreed to do
noitunitv to repair his mistake hiiuself.
But where, as here, the matter of the the
exception was a "direction" of the judge,
with which it wojld have seemed iin per-
tinent for the prisoner to inlet-fere at the
carrying harsh justice very t.ir to say that
an exception is too late, which is tnado
the instant the judge decides on the le-
galofiecl of hi "diraction It were
. ..on ttn.t iltuf tens tlii mitri . a
time to except.
"
Hut the question then before tho court
wu9, whether the judg menl should be
arrested and a new tiral granted. What
o! that? Tho faots count bo. arid were,
brought upon the record us eli'ectually ot
that s'ageoftho proceeding), us at any
other. It is trje, we do not reverse
courts for granting new trials ; ond why ?
Not because the facts upon which tho
motion is grounded, may not, if the judge
chooses, bo placed upon the rec r i, but
because a motion for n new trial is ah ap
peal to the discretion of the court, und we,
as an appellate court, do not review exer
cises of judicial discretion, but on'y judg
ments und decrees. Whon u court renders
a judgment, or decree, it is supposed to
express, not the discretion of the judg,
but the mind of the law when judicial
discretion is exerckod, it is is indeed,
regulated to some extent by legal princi
pies, but it rests for its ultimate founda
tion, on the judge's view of what is n't.,
convenient and just. And as tho legal
principles which ragulate his discretion
are a'l for himself toupply, it is apparent
that the decision can be nothing at It).-1
but the expression of his dircretiou, und
us such it is not reviewable
Rut besides tho'motion for a now trial,
there was h motion in arrest of judgment,
and the disposition of that motion was no',
a matter of discretion, but the overruling
it was itself a legal jndjtunt, whisli ap
pears of record. With facts before him,
which ho has now placed before us, the
learned judge decided that thy judgment
I should not
be arrested ana i new tual
granted.
Passing on the aa:e facts he did. I hold
that judgment erroneous. He ought to
have arrested the ludgment. because he
had no jurisdiction lo enter it up. He
ought lo huvo arrested the judgment or
granted a new trial, because he hud not
given the prisoner a trial according to
law. This is judging the record by itself
strictly, as strictly as any casuistry which
it itself legal, can demand,
Nor is there anything in either Jewell's
Case, 10 II. 91. or that ol Fife vs. Jones, 5
tasev. -i-J. tu reuuire aucu exuessivu u-
tia on our part as woull ignore part of
tho record. There are soint. extravagant
dicta in the former of these caes, but they
car. have no application Da case which
comes up under the Act of ,850, for the
Act wos not passed until lhres years after
that case was decided. These dicta niay
indeed have been umong the causes which
moved the legislature to tho enactment,
On some points, tho case of Fife vs Jones
is very questionable law, but on the point
I havf discussed in this opinion, there is
nothing in it inconsistent with what I
have advanceJ.
My ground is, then, that the ourt dec-
ded that the novel mode of e wearing the
jury wos sufficient in luw. and placed ihm
decision with the fuels of the point on th.
record, in the usual manner ot proceeding
u nder the Act of 1850 that ducision so
pronounced and enrolled, is erronoous
and ought to be reversed ; but instead ,o
arresting the judgment, I would award
tbe prisoner a new trial,
I have views about iheVoof nd th.
charge of the court, wbioh diiinr fiou
lhoo of my brethren, ,but 1 Jo not rx-
press mom, imi;u, u.i- ..nj
not necessarily lead mo to anni nou
tend to show that the ipcst;. ' "i,".!,. r
lh prisoner kiU"'! vife nr-Ai'' ninlly,
or tvt'i ml!re
.meiit, a much
iH'iis , l , in try iiM, '.
ii:.'i,t' dose .iiid lie ! i .'ite
luestnn, thanj ii- ni.tiri'v cuv.. 'u.f ;t.
1 waive nil Ji.-'.v of that o'i.ilion,
and rhoo'n toeon-ider il a vn'r, cl
"'ife inurf'-tr; lul beau.-"1 il is so, I insi-t
earnesily on giving ;Ik r v; -..i. or u!!
ciisiituiional r i t I ' ? -. It h in ( .v'.roir.c
mergencios that the e.i c...v
f .'OllSlil II"
tio.u'l i.'Ofiinnties ai c ies' I
If iv i. -vr,
pivc the very guiltv ill" benefit of tlie.i:,
t in iess guilty and the i-ii.ocri ', obtain
fresh asvui'.ir.cn ! lint they nil' nut ii oho
i;em in vain. Tho iuibit cf iwognrir.i;
a id enforcing such gih.i ii.iiees o'liy v h,:n
it is agrtvaiiio to our prejudices to io
is of pprnicious teiidcn.:v. for tii fce.i
sions of disregarding them will gi oi;
multiplying, until at last in.' i:'" 'iir-it
fore will bo lost, but their very e.-i-fene1
will bu foi gotten
Ornate or Otr. Wtt.i.s In Venango
and the bordering oouui:'.. v.l.cic
ppfilc livv, talk and even swe,'.r I, tlioi"
oil wells, tlio ne'vjjpaprs c.iineui, th'i;i
sol vos by disrsusirg tho origin of ii-3?j
singular natural productions T S.c
i.jr man, who ii 'well up in I
citc?bi-:n
finally carries off thu pidiii by c-HtubU-'iu
ing Johns liio liitt man that ovi sprung
a well. Unsays:
'Job xxxix, C, the text mads Tho
rock poured ine out rivers of oil.' This
is the oldest, record of tho i'etr:,!anm
business and more ancient t'mn th a;j
counts of the discovery of oil in B'nn.ili,
art. and thev were divorced, fs'.ie. is mw
married to another man, and supports her
former hmLnnJ by retaining hir in tho
family ns a servant,
Urave Joke. A waz going through a
gravevird, observed on one of the stores
the following lines:
: Ag j am notVi so you mtHt ba
, Prepare for death and follow mo."
1
Wa t rtL rtiir liio finntil anfl ti t-ntrt IiA
Aav k vil v aai0 m,iii.ii iTiuku wv
low:
"To follow you I'll not consent,
Until I know which way you went."
A CrRious ErtTAPtt. There is a con
cipeness and rhyme in the following epi
tapn that are pleasant to rcinoiubcr, and
may serve as n model:
Iter? lio.s
Elizabeth Wise
She died of thund 3r ont from heaven
In 1777.'
CrA young Thespian was once ii.
trusted to deliver the following inersage
tj Lord Randolph in the play :" My
Lord, the banquet tvaits.'r Cut hnvinir
lost ih run of the sentence, he cal'?d out
amidst the roars of the audience, " r.
KanJulph. your supper has bticn waiting
for some lime."
I tiiT"A Kr'.tcr in nn Arkansas paper, who
i evid"ii''y no friend of Lincoln, gives us
his " sentiment" in the following style:
" Two posts standant,
One beam erossant,
One rofio pendant,
Abnitn nt the end on't
Glorious 1 Splendent I"
UarAn exchango thus pathetically fle
scribos tho fainting, of a young lady:
" Down fell the lovely maiden,
Just like a blauptitered bmib ;
Uer hair hung down her pallid choeks,
Like sen weds round a clam."
$?A man in I:ns county, Ohio, hi
made 18 barrels of syrup the past sea o i
from watermelons raited on one ncr 'd
1 nd. The syrup so' 1 for 80cenls pergrU
Ion. giving $460 for the land und labor.
This beatt the beet.
C?TX.To the east ot i lie Jordan there a-
'h(.!o cities, beautift'lly built, nnd aduro -ed
with oil the beauties of Grecian in '.
Romnn art, still ttantling in dcolato m..
jestv, with no inhabitant but tho vo.;
and the hyena.
BC0"ever ridicule sa' red things or wl ui
others may esteem such, however obsuid
they may appoar.
Never to show levity when people ore
professedly engaged in worship.
"Porter's Spiiit of tho Times" has an ac
count of dreadful old f How, who would
rather tell a lie on six month's credit than
tell the truth for cuhIi 1 The Idea is di
cidedly original.
Csg-It is very well for children to b
lambs, but a very bad thing lor them to
grow up sheep, and still worse for them to
become young " bucks."
&cTAn old Grecian philosopher ndvig.
td oil men to knov themselves, lhats
advising a g od many to form very low
and disreptitble acquaintances
There's no place like home," said
a friend of ours the other day lo a p;elt
voung lady. "Then." said fcbo, "why
on't"you s'tny there?"
JtiyA gentleman said to his friend Uns
older dav. " How do vou like the new
m nister?" lie repliwl, " i'"irst rate bV
never tuedJlos with poltio nor relqjioft.'