r i i iY Q. B. GOODLANDER & CO VOL. XXXI.-WHOLE NO. tilSSENTISO OPINION OP EON. GEORGE W. WOODWARD, I.N THE CaTIICART MtBDIR CASE. John Cutheart vs. tbo Commonwealth. Error to Oyer and Terminer of Cloni field County. Dissenting opinion by Woodward, J. I regret liie necessity I urn under, to dissent horn (lie opinion of the mj ority of the Court in this case. It is desirable at all times that the judgments of th court should be unanimous, mid it ii especially so when the lifo of a fellow beinc is slaked upon tho issue. The nb- i-nce of one of our number on account of sickness, makes it still more important, that the four judges who sat in the argu mint should agree in the judgment. Feel ing the. weight of these considerations, and entertaining tho most unfeigned re spect lor I lie opinions of my brethren, it it upon no slight or questionable grounds that 1 have muds u mv mind to d iftKunl from their judgment. Nor have I been sworn Morally in capital cases, nnd never able to content rry sensu of duty with a joi'ilty ami severalty; and such, it is believ simple dissent., entered of record: but I cu. has been the uniform practice under iUeeius lo !e due to the sravo tiuetlions our constitution, and in our sister States. before in, that I express my reasons, with as much fullness as the pressure of ofrieiul diitiei permit nnd yet w ith as much bvevily ns tho iiutine ol the quostions will . allow. The government of the Commonwealth proposes to pui lo aealli u citizen, because of a judicial conviction of the crime of,iv,' ntitntion to tho fact thit :he prison murder. He has removed tho record of that conviction into this court, nnd com plums, among other thiigs, that his con tlilutionul rights were violated, in tho -manner in which his trial was conducted. If thin complaint be well grounded, I sup pose the government, through none of its 4'tliciul organs, has the right to put him to ilfiith that ho holds bis life as every other ni;ui does, under all the guaranties oi'tlm Cunsiiiution that the judicial (.rgamof tho government have no jurisdiction to condemn him, except in the very forms of tho constitution, nnd that it is not too late for him to plead his constitutional rights, wM st lhi, the highest court in the Com monwealth, is deliherating on his ease. The purticular in which the accused compla ns of the violation of his conslitu tijiiul l ights, w as in the manner of swear ing the jury. That I may omit or mistake nothing of the facts or reasons on which Lie court proceeded in this particular. I y the full 'language of ililivoreu on the motion or a new trial i nnd in arrest ol lodgment and which ho I Iim certified and sent up to us. I ho third reason assigned for a new trial nnd in nrrrU of judgment was, that the'juinrs were not properly sworn; in com in ting on and overruling which, the learned nidire said : , . ... , , trial, I hive licon rcipiest,t by tlio prisoner's cmni-l to ftnte tbo ;uanner in wlii'h die jury trt iworn, fo that if an errnr has been rnminit- hi iu'iiuk uiiuu utu itiu-zoii reuiuD inr n ncn uii, the jirifonor iy i.ot lo deprived of the ben- j willing lo go. 1 ho swearing ot the jurors not lo l c nskml lo consent loan irregu 0t of It. To tho rsquofit we cbeoifullv ussent. is a very iinnoitaiiL nnrt of tlm lii:il. 'hint v." If exrires i-onmnt uoolil not Sum of tie jury ne.o mom until tho wholo , lilackslone, in the placo 'ilready cited, ' Uclvo were euiijiinellea. The oath nai tben,M,lve .... ihn " trial is mlf.;l lli inims ! uramiiioreu 10 mem, not separately, but as iD7 m iwore by the book were asko l to arife, id tliey wiro sworn llnis:'You and each uf, you swenr.' ie., urine the form of oath, and ee mil to thopo who wtre iiiilifiud to a dirToront turn. The defendant! couiKel now except to lliii lande of trenrin the jury, nnd inaiet that 'Ji'h jufir nhoiild have been .worn .enarnlulv. Wrnw,ir that ordinarily this is dono; but vbt court wore inducM in this cae to defer wearing tlio jury until the panel was full, lost 'J nii(;iit bo ipijMgeJ, on ai-count or the ruiuori "bub might prevnil throughout the county, toj umifi tlie juiy nnd continue tho n.e. We can- Hfeatij roa.on why the mode adopted is un uvful. The jury were bv this Hindu nluvcd under lh ohiicutiuiis of the oalh. lust a tllocluall v. to ill intend ond purpose?, ns ihouh it hnd boon nlmiiii.tored to eneh oo in ucceslon We etnnnt no how the case of the prisoner con bo Prejudiced by this practice, liesides, ire nre of o?ioion that tho objection, being a iniitxruf frio, thonld ),nvo been ninda nt the tin.. the Jir; tfuie sworn, and that it is no reason fur ranting a new trial, It is laid by the counsal, lh;it dm rjoner may remain silent, hike his (lane-is of nn ncpuiltnl, and, lifter conviction, fje the objection. Thorcnre, however. Irregu. uritics, which tho nrisnner uiuct ohiect to at tho ltof, or llifv nill be ounsidered ns waived) and HieuDj to us that this is one of that cbursclcr." We hnvo thus placed beforo us. in the ol distinct character possible, tho fart lhl the jurors weie not sworn severally. he ly one, but jointly, us tbt-y would ""e been in n civil nction. or on n trial for usault and Imttorv. T!i sixth section of the ninth nrticle of W Coiiiitiution of Pennsylvania sny "tlisttlia trial by jury shall be as hereto 'oi, and tiio right thereof remain Invio lile." This provision hns been in nil our con- "ihitlons sine 177tl. ai.d has nl l avs been unJurstoo I ns ru.irautying to the citizens f Pennsylvania, the rights of trial l yjury st!iey .vistod at common law nl and be- wetliut date. Very inuny cuses of civil jsrisdiriinn. and somo of small misdo- "loann's, ,avo beon denied trial by jury, 'f legislation ; but the legislature have i I'BVer nlU,. .i...1 I A . Ii I 1... n.nrnti In Mrnwof iiial for tho higher crimes. On eontMry, nil our legislation has aimed 'S'litating nnd fystetnatizing'ju'-y trials 'Of high crimes and misdemeanors. U'.IW tilrtr tVAPA IiimIas ws-kutt nt "on U-v. in cnnitHl ensea l,V.r the be-! (iom- th iT'inil,,. -i , ' miti Bent? of our constitutional govern In llnlr, r tO( "If l,.ILn. hln.Un. .1.1 JUrT Me rommnnded to look on the pris- lu "le" fvcralli twelve, of them, nn mire nor lest, nre' sworn. '' shall 1 land truly try "Ac. in V" rU' w ,lc"vn tUeSttme words m Abridgement, 5tb volume, p ago .. ckktone tells us, in 4ih vol., p. 582, V. . lLtI e lri'1 U lled on' tlie juror, ' lo be ,ivva thmjyi-j the cum- n iinle'f Pleas of the Crown, cap. 41, 1 not what animated the sages or tue "i.er describing the arraignment of thejmon law to fettle the form of tho oath v. Jirw?er, the summoning tnd calling of I capital cases, in the manner they did ; but jurors, und the form of challfnges, we 'every observant spectator of crimmnl 1613. bor of twelve, unless they are chulleng. true deliverance to make between the it Commonwealth nnd the prisoner whom Mr. Chitty, in his Criminal Law, p. 532, he ahull have in ehurgo, and a true vor snys, As soon us eucti juror is sworn, d;ct to give according to the evidence." he is set apart in the jury-box;" and a j What in human affairs, is bettor calculi mtf iT 'ilB 8"n, $,af?c 1 J,i. "according, ted to impresa tho conse'ence and awa o 4 Ilargrave's State Trials. 723. each ken all rronor ensil,il:ii. ? i n.,ii. juror is is worn when called and not chaU; duly considered, is a dreadful thine un-' leneed." I.i... .... i... ...... e.' .... " i i . . . . vi-i mii unuuiusiuiiees, Kill b owing ;o us Archibald, in his Criminul rieadings j commonness, it has come to bo very and Evidence, 1st vol., p. 102, says, ' In slightly regarded, and when administer treason and felony, the names of the ju- ed lo a group of men in a jury box, is so rors ure then separately called over by the much a mutter of course, that it is liabU ciei-K or arraigns or clerk ot the peace, and the crier of the court administers the oath to ea :b of them thus : ' vou shall well and truly try,'" Ac. And to mark a difference, thin writer immmli..lAl.. . I t. i. ..... ; , . . M..II.I VMOU-IJI h'hij, oui in tmrnemeanorw, the jury are at once sworn, usual!;- four jurors at u time," These authorities, I suppose, are sufli- ci"nt, to show lliut before our constitution. .lUrOl'S Were, ilk pnnininn Imiv ulivnv. were, at common '' hen our constitution must bo rend as enjoining this mode of sweating. Judgo ' I J ": 'i lls ui it wa not observed on the ,r'l ' the present Iaintifl in error. As ' to the reasons assigned for not observing I shall have something to say bereaf- 'V1' J ul tor the present, 1 wish or. ly to er's coiiititutional light of trial bv jury, as the same provaileU from time immcm-1 isliitura could reform it and substitute orial, .vas not conceded to him in tho something else, is not the question, for form and manner of .wearing the jurors. 1 the legislature huve not attempted it, but And it is material to notice, that it w.t j that a jude cannot break awuy from long withhold by the mere action of the court, established modes of procedure in a critn without any sanction whatcvr of tho ' imil case involving the highest iuterests legislature. Many statutes have been 'of the citizen, and violato constitutional passed, rcyu'aling trial by jury, one of the rights wl.ijh the peoplo have decreed iasi of w hicL was our very leccnt codo of j shall bo inviolate, is a proposition that criminal iroi-iiure, adopted March SI, jought to need na argument lor its sup l.SilO. And a constitutional queiion bus port. just arisen under the (hit ty seventh sec- Tho next and final reason of the court tiou of that enactment, which gives to ! is, tha, the oljection, being matter of tlio Commonwofilth four peremptory chul-1 form, should have been mada at the time lenges i;i all criminal case. That was an j the jury was sworn, and that it was an ir innovation on tho common law trial of .regularity, which must bo considered as felonicp, for at common law the Crown waived. was allowed no peiemptoiy challenges,! I cannot agree that it was matter of and trenched hard on the constitutional ( form. For the reasons I have ventured to provision under consideration ; but I nc-! suggest I think it was matter of sub quiesce in thu opinion of my brother ; stance, hut whether form or ?ubbtance it 1 uompson, delivered thus term, m tho , l 111 I t 14 t 11 U'UII III. iq U. from the Oyor ami Terminer of Berks i county, sustaining tlio validity of tlio en- n.Hment. 1 he constitution protects the trial by jury, and I nrn willing to say that the trial does not commence till tho jury are called and challenged. All statutes, therefore, that relate to dumaioiiiug, cal ling and challenging juroi v,and uh.ch da (wiiiixiMic rijni or a ran- nun, r ngree, are not unconstitutional ; nnd that, 1 think, . i . i . i . . i is very clearly shown in Judge Thomp-, ton's opinion, But this is as far na I urn nre to bo sworn as t hoy appear." And in i 'l'eillt-rs Laso, i!ll. 4iU, Judge uibson "aid, A juror Is ci t;rged Willi a prisoner ns soon ns he has looked upuii him and taken the oath ; for he cannot bo with- drawn. Tho trial has commenced, and the prisoner ttiirtda1 before him as ono ot his judges." With the mode of swearing ' them, tho legislature could not, I pre- sumo, constitutionally mterlere; and in I the recent enactment alluded to, careful- ly prepared by competent codiliers, it is worthy ol reni n k that there tvns no at- nny re.voii3 could tuntiiy a court ir. with tempt lo change it. They 'eft the admin-, holding a constitutional right from nn ac istratiou of the oath to tho common law, where thn constitution leave il. If the legislature have not changed it and could not change it, how could Ilia Court ' of Uyernnd Terminer ol'Clearfiold county chingoit? There has been no attempt does not appear upon tho record. They to answer this question, whilst the fact is read in the docket entries that thoj'urors patent that thai court did substitute for ' were duly empunclled, sworn or nllirni the ancieni practice, the every day usages ed, nnd applying the maxim that nil of tho Quarter sessions and tho Common I Pleas. I come no v to consider the reasons as signed Ly tho judgo forthe change. I admire the fruiikness with which i-udgo J,''hn has spread tlio l.icts before us, " in order." as ho save, "that if aii error has been commit'lc.i, tho prisoner way not . has been often held that tho record can be doprived of the benefit of it;" but 1 ; rot bd corrected l.y such statements. dissent totally from the reasons assigned Even if it could, it is said tho same opin lor -.r lint ho did. j ion shows lhat lio objection w as made lo The first is, that he feared the par.el the manner in which Ihc oath oruflirma niight he exhausted before the box was , lion was administered, full, nnd that the eauo would have t3 be j Tho majority do not attempt to justify continued. The result shows t lint the , Judg9 Linn's departure from the forms of fear was groundless ; buteven if tlie panel the common law, nor do they express any had bean exhausted and talesman could doubt of tho accuracy of the statement of not have been obtoined, it was no oxruso facts he has sent lo us, but tho judicial for fin's unheard of innovation. The conscience cannot know that ho blun prisoner's constitutional rights weresus- dered because the prisoner did not except ponded on no tuch slondor thread of at tho time, and thus bring the blunder convenienre. He wns entitled to have within the narrow compass of that which his jury swoni a-cotdin to the law of is called " the record." thclirid. Until they wero so sworn or' 1 have two specific ground of dissent atfirnind, the court had no jurisdiction lo from thii conclusion, which I now proceed try him, nor tho government to hang him. to state. The next reason is. that "the jury were 1 First. The matter complained oftouclits by this mode, severally placed under (he the jurisdiction of the court, and therefore obligations of the oath, just as effectually, may bo jileaded, though it do not appear to nil intents and purposes, as though it had bepn administered to each on in I .succession !...." The reply to this is ton constat. I know trinls must hava been impressed witn the ( v ' " , aolomnity ortbc ceremony. A juror, In- divlduated nndseperatel from the ym-j pnthiesof cjmpanionship. is c .lled to confront the accused whim he is to have in r.hirge, and then, alone, on his rep n slbilitiesRsanian-withnneye single to the answe- which ho shall render to God at the rr-nt day, he Sssum. s upon him-! self by solemn oath or affirmation, the, obligation "well nd truly to try, and. PRINCIPLES, CLEARFIELD, PA. VVEDNESEA, FEB. 20, 1861. to pass as an idle form, and not to pene trate the conscience. But when it is laid UDOIl each man before lie ninaou into llio ' box, and while hn stands in the immedU ate presence of the cmirt and the nrisnn- .... . i ,er, it must nave a power, or to say tho least of it, it may have a power nltogoth or peculiar to itself, with wlm h no court has a right to dispense. Obligations as sumed by a multitude never presi on each individual with that distinctness and weight as when individually assu med. These appear to me to bo reasons in fa rors. but if tlmv nre nntif f am ini.ia. vor oi me ancient nioilo ot swearing ju ken in supposing there was good reason from tho beginning for the several oath I reply, w el''o it so; but there is the modj plainly prescribed, und if we cannot ijjs- cern the rensins for it, no judge has a right to sel it nsido upon tho gratuitous RSSIinitlt mil t lilt nnnl iiil' Itm crtlmi-iii that modo will do as well. Whether the le- wiw a constitutional right of tlio nccused. nn.l I l...,.,.r,x.... I.I I I. ..I to him without question or denial. His failure lo except ut tho linio does not conclude him. If, on (hn other hand, he had expressly agreed and assrnted to the irregularity, as tho prisoner did in Mills' Ca-e, I IICSO. and IViH'er's Case, 3 II. 470, 1 would bo ol lined to say as Cli. J. Gibson did in the last of these cues, "1 iiiiiik no consent ol n prisoner, in the ex tremity of his need, oui'lit tn bind him: .. e , , " ... or as Ch. J. Abbott did in l.ex v. Wolf, 1 Chilly's tt. li'l, that "a prisoner ought have bound niin, mueh less his silence. To hsvn mil l.in. nl, ., ,i,l .ir,...- ling to orders of (lie court intended lor the coi'vonience ot lurors, would havo compelled him lo prejudice his triers, nnd imperil his life at tho threshold of t.eirial. It was tho busineasof the. com I, and not of tho prisoner, to direct tho forms of tho proceeding, and if a mistake were made to his prejudice, ho is entitled to tbo benefit of it. 1 hava now shown that the prisoner was doprived of a constitutional right, for lea- sons that wero wholly inu.doj.ile, if indeed cused citiz.m, and I couio now to the question, why should ho noi have redress in this court? Tho Ringle reison assigned by tho ma. jnrily, is that tho matter complained of things nre to be presumed to have teen correctly done, they conclude that the juror; wore sworn in the manner thov should have been. Tho statement of Judge Lynn, which I havo quoted in full as showing how the jury we sworn, lssan to le no part of the record, nnd that it pi rucoru. That theCourt ofOyer amnermincrof Pluni'liidil conn I v had jurisdiction of the case, i' not fo be doubted ; but jurisdic coni-jiioiiis.no nu according to tach legally, bi a -cording to il tion is the right to try nnd decide a case law. It must not only ut- iut it must be proceeded in those rules of tho tonsiitu- lion ana ia nu ii ucmu me ramrii i I ... ...I .1. .1. C i I. ., powers, l uo not mean i inn every juurciai mistake ousts thojnrisdictinn of thejudgo, but I mean that wherein his powors nnd prerogatives have kicii defined by law, lie must keep himself within them, or else i hat he does is null. 1 he jurisdiction of inferior court not of record, mut appear on the face of llisnr prooeedings but that of tho superior courts is presumed, till the want of jurirliction is allege! aod jhowii. not MEN, And that may bo by what appears of re cord, or by facts de hors the record. Tim jurisdiction of the Federal courts, which in always in controvcr;y, is often shown or disproved by fuels which do not appear of record. -, If Judge Linn's commission had expired ItA APQ .in ... ...1 .1. 1 . ... , ."" ' ,CY ucienuani, or 11 iihu ueun n-ipii in nnouipr t- . j . . " ' 4UIU IU U1U IIIUICIUIPIIL. or it, as once liapneiied, thirteen jurors i l.. i . Cas' ""I'l'0 110 0,,B wo,,ld Houbt that his proceedings would have been coram titn nuhec. nnd nurht ba set aside, though tlQfucU supposed did notjant's execptiou, and a formal bill, duly appear of record. In roust's case, 1 1 signed and sealed by the judge.' This is Oase.oJS,we entertained an objection to , followed by tbo clerk's certificate under the jurisdiction of a Court of Over and Terminer, and reversed the judgment, on grounds that did not appear of record. I intiniuled at the commencement of tins OTinitin, that the government, acting through its judicial ngents could acquire and hold jurisdiction over the life of tho prisoner, only by proceeding in strict ac cordance with the constitution nnd 1'iws of Pennsylvania, lie alleges a fla grunt departure from ono of our conp.titu tutinnnl usages, in the conduct of capital trials, and ho has proved il by the volun.. lai-y nnd honorable testimony of the judge who made it. I suppose that no judgo on this bench doubts the facts-so palpably before us. On w hat ground, then, can w e permit the government to tako the pris oner's life 1 Because the fuels aro not on the record ? I reply 1 1. at consent car.net give jurisdiction, utid, therefore, want of objection ut tho proper time cannot. And what 1 said in answer to this reason, as assigned to Judgo Linn, applies here. Then I cannot concur in the judgment which seals tho prisoner's doom. 1 would give him the benefit of the mistake, which is clearly pointod out and fully admitted, and would older him to another trial, to be had in the forms of the constitution nnd laws. Second. But in the next place, I submit that the majority are mistaken, in treating tlio matter which is not upon the record. What is a record? Blackstone tells us, ''A court of record is that where the ucls und judicial proceedings aro enrolled on parchme t, for a perpetual memorial and) testimony wincii rolls aro called the . , . , i ....! uts ami judicial proccedtn,,, o! the court .. : . - hich are enrolled, constituto the record The jurisdiction of this court is to "ex amine nnd correct ail und all manner of error of the justices, magistrates, and courts of this Commonwealth, in the pro cess, proceedings, judgments and decrees. 1 as well in criminul as in civil pleas or pro' ceeuingn, und thereupon to reverse modi. ly, orallh m such judgments and decree or proceedings, as tho law dolli or chnll direct." And by the r.tnth section of the Act of 1220 May, 1722, Purdon, 311, "If any person or peisons shtill find him or . themselves nggrieed with the ju Iguietu of any of the said courts ol' general quurter j sessions ot tho peace, und of jail delivery, it shall und may be lawful to and for the 'paity or parties to aggrieved, to Lave his or their writs ol error." These old statutes, it will be observed, do not confir.o our jurisdiction to wdiut may happen li be docketed, but extend lo all the "acls and judicial praceedings" of the court which may aggrieve the party complainant. The remedy, however, is to be by writ of error, and this writ lies from un appcl'nte court only upon matter of law arising upon the face of the pro ceedings. If the judgment be erroneous :.n matter of act only, it is in the English courts n writ of error coram nobis, issuing out of the same co.iri. With us, we ad minister tho same justiie by means of new trials, and by opening and modifying judgments erroneously entered. Whilst, however, tho writ of error from a superior to an interior court uiu?t be founded on matter of law arising on the face of the proceedings, it is to bo remem bered tlut tho law of every case nriscs out of the fuels of the case, and therefore,! uuless the facts be got to appear on the faco of the proceedings, the writ of error, nnd our larg. jurisdiction ns defined by statute, woulu avail but little. Hence arose Iho necessity for a bill of excup. .eeoius oi tue courr, nni nre ot such high . exception was a "direction" of the judge, and superemineiit authority, that their! with which it would have seemed imper- truth is not to bo called in question.,' Not titient for the prisoner to iuterfere ut the tho docket entries merely, but. nil tlui'verv luniiiniinu nf hi. irinl f.,i- l;r w iioiih. n was nisi given by itaiuto ot nave arrosiou me juuguioiu, oecause no Westminster, 2d, 13th Edward I., but tbo had no jurisdiction to enter il up. Ho statute n lated only to jmiiies "implead-: ought to have arrested the judgment or ed," and not tu those indicted: nnd granted a new trial, becaiuo ho had not hetuo it happened that the bill of excep-1 given tho piisoner a trial according to lions wus confined to civil cases, and to 'law. This is judging the record by Usulf courts of civil jurisdiction. Tho facts out strictly, as strictly ns any casuistry which of which the legal rights of parties j;rew, ! i itself legal, can demand, could be brought iiion the record in civil ! Nor is there anything in either Jewell's cases, by means of this invention of the : Case, 10 II. 94. or that ol Fife vs. Jones, 5 bill of exceptious, but not in criminal ca! Casey, 42;i, to require such excessive ai'w es. If they appo.ired necessai-'ly in the fa on our part as would ignore part of making up of tho docket cnirio.', they Hho record. There are somo extravagant could lie noticed on a writ of error if dicta in tho former ol these cases, but they they did not, the court of error could car. have no application tin cuso which tako no notice of them. To remedy so comes up under the Actof lNili, for the great an incongruity in tho conduct ot' Act wus not passed until three years nf un civil nnd criminal casus, otr legislature, j that case was deoided. These dieta may by tho Act of (lh Novom., 18.il., Purdon. indeed have been among iho onuses which 1157. provided that on tho trial of any ; moved tho legislature to tho enactment, indictment for murder or manslaughter, , On some points, (hn ca.e of Fife vs. Jones it should be lawful for the defendant to is very questionable law, but on the point except to nny decision of the court ' upon ' 1 have discussed iu this opinion, there is nn v point of evidence or of law, wiiieb ex-; nothing in it inconsistent with what 1 ocplion shall be noted by tho court, and have advanced. filed of record, us in rivii cases." My ground W, then, that the c m it decl- This was an extension of the law of bills ded that the novel mode of swearing the of exooitio2 to tho two high crimes men jury was sufficient In law, ui.d placed tbut tioned, and no facts can be brought decision with the facts of the point on the upon the record--not the docket, but , record, in the usual manner of pronecding brought upon the rolls- in criminul tria'i u ndor the Act of 1850 ihut decision bo of these two crimes, with (he same effect as in civil cnsesl All the evidence, or any pnrt of it nil or pnrt or tho charge of the ludgp, may bo thus got up. To use the the prisoner a new trial. , Innguage of B'ackstono, 3d vol., p. 372, ' I have views about the proofs smithy "If either in his directions or decisions, charge of the court, whinh'differ from the judge niislaksi tlie law by ignorance, those of my brethren, but 1 do not ex inadvertence or design, the counsel on press thorn, because, whilst they would either side may reniro him publicly to not necessarily lead me (o dient from , TERMS seal a bill of exceptions, which is exam! nable in tho next superior court," on w i ii of error. The practice in the case before us was conformable to this state of tho law. Tll.ltTA T.vlin latla 11. in fliu dtIpuM T 1.iu. made from tho paper-books, that the juiy were not imprope -ly sworn ; but tlio . . - . I I .,w-v ..V.W...W.I, i..UiU,,vj'IM n&iiar.iii tit tin .int. nis.iiin.i iiiu t.,u nmn : JOn. OH II' A- lltr In in U " I hiwl'nni.n,Ii, An :........ .1, ,:. the paper which contains his slate ' mont of faeU' " pntit'-ed 'o tl'o motion of , arrest of judgement and for a new trial, and nt tlm eml nf if nntn r( tlx. .i,rUu,' .on .i.n ,i.;u ..n..AH .... n i:i...i r i ov.ti, ,iinv tins itiivri a lllllA Ol d of and it is certified by two of the judges in return to our writ of error, as part of is of pernicious tendency, for the occa the " record and proceedings " in the sions of disregarding; them will go on 'J-0, r , , multiplying, until at last not only their .Now I submit, that in view oO(jhese fere- will bo lost, but their very existeucj facts, it is not possible tor us to say with wiM bo forgotten truth, that the circumstances attending . ..- the swearing of the jury, nre not on the Oiikjin of Oir, V rats. In Venango recon'. Wo may say that they are uuiinp ?r- and the bcrderiug oounties where the taut, or improperly cn the recoid. but we people Iiv, talk and even swear by their cannot say they are not judicially bel'oro oil wells, the newspapers content them us. It may be granted that Judge Lynn selves by disusdng the origin of these might have refused to place them on the singular natural inductions. The ec record (hut he might havo said ho would Gorman, who is 'well upin his catechism, not entertain the defendant's exception, finally carries ofl' the palm by tstublkh.. nnd seal a bill nt so lute a stago of the ing .Job the first man that ever sprung ii imi, uuuiamu nvik. vsii iiju i-unii.iiv, no noted the exception, nnd sealed the bill, and filed the piper of recird, "as in civil cases," nnd now we must roped Act of 185(i, or treat that paper as purl of the record. Shall we say that we will disregard the facts, because the judgo ought not to have sealed tho bill ? 1 sub- jh was a rich man. and probably owned mit that we have no right to disregard a 40 barrel well, lie was the first opera bill of exceptions duly sent up. But cn tor in fetroleum of whom we lift ve a if what ground would we raject it if we had noconi.t. though oil is also mentioned in tue power? Deuteronomy xxxti, 13." 1 ho Act of 1850 does not prescribo nt! what timo durin the trial bills shall bo A Pocilk TTisiund In Portland, Ore sealed, and though they are generally gon, there is a man who lived with bl and regularly sealed as toon as tho judge wife --veru1 years, nnd they hnd sever..! decides, yet if he allows thorn afterwards, cflldren. At last she got tired of him we have nothing to complain of. for tho nnd proposed that t hoy should cet a di' oniy consequence ot thoir being out ol time is, that ho was deprived ot an op. poriuimy 10 repair ins mistake hnuseii. But where, us here, tbo mat tor of thu tlm . ' . .. . .---j "-o o carrying harsh justice very far lo say that on exception is too late, which 4. mado 1 1... i.l..!...l ..'..:i-. .i. i tnu insulin, iijwjuugi. utieiuos on Hie i rnl nll.irl nf l.i. . 1 1...... I I. ... I, . butler lo say that that was the suitublo time to exjupt. 1 But tho question tLen beforo the court was, whothtr the judg mont should bo arrestod and a new lira I granted. What of that? The fails could be, und were,! brought upon the record us etl'ectually at, that stage of tho proceedings, as ul any other. It is true, we do not reverse online- for granting new trials ; imd why? Not because the facts upon which tho motion it-grounded, may not, if the judge choosos, ha placed upon the rec r but because a motion for a new trial is un ap peal (o the discretion ofthe court, and we, as un appellate court, do not roview exer cisos of judicial discretion, but only jmlj mentt and decrees. When a court renders a judgment, or decree, it in supposed to express, not the discretion of mo judg, but the mind of tho law when judicial discretion is exercised, it is is in. Lied, regubited to some extmt by legal prinoii pies, but it rests for its ullimutf founds.! lion, on the judge s vieiv of what is tit, convenient nnd just. And as the leal principles which regulate his discretion nre all for himself to apply, ills apparent that the decision can be nothing ul last but the expression of his dircreliou, and as such it is not reviewable. But bo.ides the motion for a new triul, there was a motion in arrest of judgment, and the disposition ol that motion wus no. a matter of di-cretion, but tho overruling ''ihes the fainting of a young laity : . if , ,. ... e...r ..... . . il. was used a lugai judgment, wiiuli ap pears of record. With facts before him, which he has now placed bel'oro us. the learned judge decided that the judgment should not be arrested and i new triul granted. Passing on the same facts he did, I hold that judgment erroneous. Jlo ought to pronounced and enrolled, is erroneous, and ought to be reversed ; but-in-dead ,ot arresting the judgment,! would award $1 25 per Annum, If paid in advance. NEWSEKIES VOL. I. NO 31. 'an affirmance of the judgment, they wouM tend to show that the question whollier the prisoner killed bin wife accidental1;, , or with malice prepense, Ik, i my judgw mont, a uitn'li more close and delicr.tc o,uesiion, than the majority oonidrH. i waive h 1 1 discussion of tbut iiiest:on. . and clioo.e to consider il a tuik casn "t i . 1.... i KMC IllUiVri , UUl LKit'nU nf it is so, I insist. 'constitutional rights. It is in extreme amergencics that the slrongth of oustitu tional guaranties mo tested. If We can 1 :i. . .... fie iess guilty and the innocent ohL.iu fresh nssurnroo that they will not iurffl.e them in vain. The habit of rco-nir.ir e , rt . . . c u is agreeable to our prejudices to do so. ftwell IIOSUVS! '.lob xxxix, 6, the text read 'The rock poured me out rivers of oil.' This is the oldest record of the Petroleum business and more ancient than the ac units of tho discovery of oil In Birmah. which only dates back some 4l)0 years. voice. He said he had tvj objection, if she would support him. HUo nareed to do so, and they wore divorced. She is now i i,,. .. .. i i. farmer husband by retaining him in the family as a servant. ' - t ., nn.ii-.uv. ,w iiii.fiiiii Mill ii, iiu auiiiiui 19 uri UK.VVE uuki. a wa7 coin. I n rnii tr n rravm-irJ. observed on one of the ston. tho followin z lines " As I nm now, so you must lie, Prepare for death and follow me." He t3ok out his pencil and wrote b- low "To follow you J'll not consent. Until I know which way you wont." A Ci.mois I'.piTAPit. There is a con cieeness and rhyme in the following ejii tnpn tiiat are pleasant to remember, and, may servo ns a model : Here lias Elizabeth Wise She died nf thumUr sent from heavoa In 1777.' JOT A young Thespian was once ln- trusted to deliver the following messagi t Lord Randolph in the piny: " My Lord, the banquet waits." ' But hay'inj: lost tho run of tbo sentence, hn called nut amidst the roar nf the audience, Hi . Kaiidolph. your supper has beon waiting for some time." r'.ter in an Arkansas pupor. who. is evidently no friend of Lincoln, gives u.i his " sentiment" in the following stj'le: " Two posts standard, One beam crossant, One ropo pendant, Abmm at the end on't Glorious! Splendent!" lis"" An exchange thus pnlhflticaUy de-i " Down fell the lovely maiden, Jusl like a slaughtered lamb; tier hair hung down her pallid -cheeks, Like sea weeds round a clam." i ......... . . . ljjrn man in l oss county, uuio, Jim "im,e 10 '"'"H'ls ot syrup me pnst cento i roni water Melons raised on erne aero 1 ,nd. Tho syrup sold for 80 cents pergiU Ion. giving $400 for the lund and labor. -This- bents the boot. XPi,To the east of the Jordan there n --i whole cities, beautifully built, and adori . ed with nil the beauties of Grecian io 1 Boinnn nrt, still landing in desolate ti,. jesty, whh no inhabitant bu', the Wolf und the hyena. BuXerer ridicule snored things or viluU others may esteem such, however nbtiu ( they may appear. Never t show levity when people ar professedly engnged in worship. ' Porter's Spirit of the Times" lias an a. , count of dreadful old fallow, who would rather tell a lio on six month's credit thai, toll (ho truth for cash ! Tho idea is d cl.lcdly original. fcTlt is v ry well for ohilJren to ,1m lambs, but a very bad thing (or thnm I grow u ji sheep, und still worse for thorn t, . become young " bucks." BKf?Aii old Ureciun philosophor ndvir, ed all men to know themselves. ThH. ndvising a g iod many to form very lovy und disiejituble acquaintances. foj-c There's no place like horaej' sal. I a friend of ours tho other day lo' a prett voung lady. " Then," said she, ' wh. don't J'ou stay there?" , .,.,!,.?. , 'fc?rA gontloman said to tis, friend tf:f ' other d iv. " How do veil, like the) W ' m outer i" Uo replied, " First ralej t , neter U'.dllci with pollig nor religion,'
Significant historical Pennsylvania newspapers