Clearfield Republican. (Clearfield, Pa.) 1851-1937, February 20, 1861, Image 1
"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.'