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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 .
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-!
iT'inil,,. -i , '
our constitutional govern
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
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
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
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.
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
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
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
That theCourt ofOyer amnermincrof
Pluni'liidil conn I v had jurisdiction of the
case, i' not fo be doubted ; but jurisdic
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.
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
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
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
.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
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
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
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
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.
'.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-
"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 :
She died nf thumUr sent from heavoa
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
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
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,'