author: Walworth, J. —

text:
    Franklin Oyer and Terminer.
    July, 1825.
    Before Walworth, Circuit Judge, and Clark, Bates, Collins and Pierce, county Judges.
    The People vs. Stephen Videto.
    In criminal cases, the jury are judges both of the law and facts. They have a right to disregard the opinion of the court in a criminal case, even upon a question of law, if they are fully satisfied that such opinion is wrong,

    Presumptive or circumstantial evidence is admissible both in civil and criminal cases, and in prosecutions for some of the worst species of crimes, is often the most satisfactory and convincing that can be produced. The reasons for this opinion stated in a comparison between positive and circumstantial evidence.
    The treatise entitled ‘ ‘ The theory of presumptive proof, or an inquiry into the nature of circumstantial evidence,” which is found bound up with the first American edition- of Philips’ Evidence, disapproved and declared to be in opposition to the judicial decisions upon that subject; and the eleven cases published in the appendix of that work for the purpose of supporting that theory by illustration, held to be unauthenticated and unreliable.

      The nature of presumptions discussed; and violent presumptions. probable presumptions, and light or rash presumptions described and illusu ated by examples, and directions given as to their application, and as to the weight that should be severally given to them.
    The prisoner was tried upon an indictment for the murder of Fanny Moseiy, by shooting her, in February, 1825. This case depended entirely upon circumstantial evidence. Very few questions of law arose upon the trial, and it is only necessary to notice that part of the charge of the court which relates to the principles which are to govern the jury in deciding a case depending upon circumstantial evidence.
    The case was summed up to the jury, upon the law and the facts of the case, by

      A. Hascall, (Dist. Att’y,) and E. C. Gross, for the people.

      W. Swetland and J. Lynde, for the prisoner.

       This is in accordance with the opinion expressed m the last case by the same judge, but is at variance with the law as laid down in The People v. Finnegan, p. 147, and The People v. Crozier, p. 453.

   By the Court,

Walworth, J. —

After stating to the jury that in criminal cases they were judges both of the law and the facts, that the decision of the questions of fact belonged exclusively to them, and that they also had a right to disregard the opinion of the court, in a criminal case, even upon a question of law, if they were fully satisfied that such opinion was wrong, proceeded as follows:

The decision of this case, gentlemen of the jury, depends altogether upon what is called presumptive or circumstantial evidence. This species of evidence is admissible, both in civil and in criminal cases, but more frequently in the latter, because it is adopted the more readily in proportion to the difficulty of establishing facts by positive testimony. In cases of murder and other crimes of the higher grades which are usually committed in secret, it is frequently the only evidence which can be adduced to substantiate the fact of the commission of the crime. Philips, in his excellent treatise on the law of evidence, says that in prosecutions for some of the worst species of crimes, this kind of evidence will often be the most satisfactory and convincing that can be produced; and the remarks of this elementary writer have been sanctioned by the opinions of many of the most eminent judges.

There can be no doubt of the truth of this observation in those cases where there are many separate circumstances, proved by several different witnesses, all tending to the same point and necessarily producing the same result. For it is a valuable maxim of the law, notwithstanding what some visionary writers have said to the contrary, that “ circumstances can not lie.” It is true circumstances may be proved by witnesses, and those witnesses may lie. But it is also true that if a corrupt witness intends, by perjury, to convict an innocent man, such witness will be much more likely to' swear positively to the fact of the commission of the crime, than to circumstances which alone may not have the desired effect to convict the object of his malice.

In most cases of conviction upon presumptive proof or circumstantial evidence, there are many different witnesses swearing to several distinct circumstances, all tending to the same result, each of which circumstances is a necessary link in the chain of evidence required to produce a conviction of the accused; and there is therefore the less danger of perjury in such cases in consequence of the number of perjured witnesses which it would be necessary for the prosecution to produce to effect an unjust conviction. For if one perjured witness should swear to a fact forming only one link in a chain of circumstances, the rest of the witnesses being honest he will be in danger of detection from the discrepancy between his testimony and theirs; when he might have sworn positively, but falsely, tc the commission of the crime, by the accused, without the possibility of being contradicted. For this reason, although from the imperfection and uncertainty which must ever exist in all human tribunals, I have no doubt that there have been cases in which innocent persons have been convicted on presumptive proofs, yet from my knowledge of criminal jurisprudence, both from reading and from observation, I have no hesitation in expressing the opinion thai where there has been one unjust conviction upon circumstantial evidence alone, there have been three innocent persons condemned upon the positive testimony of perjured witnesses. I speak more particularly in reference to that country from which our laws have mostly been derived. Fortunately for the people of the United States, perjury has seldom, in any shape, connected itself with prosecutions for any of the higher offences in our courts of justice.

Much has been read to you, as law, during this trial, from a treatise called, “ Tbe Theory of Presumptive Proof, or, an Inquiry into the nature of Circumstantial Evidence.’-' This “theory,” which is the production of an anonymous English writer, has been republished in this country, and is found bound up with the first American edition of Philips’s Treatise on the Law of Evidence, and has frequently been confounded with that valuable work. But it is my duty to tell jmu, that the theory of this anonymous writer, which the American editor has published, and had bound up in the same volume with Philips’s treatise, is not considered as law by the courts in this or any other country. It is an attempt, by a theoretical writer, to overturn the decisions of the judges of the superior courts in England, and to set up his individual opinion in opposition to the law as settled in the courts of justice both there and here.

This writer has remarked very freely, and in some instances very justly, upon the case of Captain Donnellan, who though he was probably guilty of the murder of his brother-in-law, was convicted upon very slight circumstantial evidence, if his case is correctly reported. In addition to his “ theory,” the writer, in an appendix to his work, has collected eleven cases, for the purpose of illustrating his ideas, and to show the danger of convicting upon circumstantial evidence. These cases have been seized on with avidity, and are generally read and commented upon by those who are engaged in the defence of criminals, whether the evidence against the accused is positive or only circumstantial.

In most of the cases stated in that appendix, it is said tne accused were unjustly convicted, and that it was afterwards ascertained they were innocent. But, in nearly all of those cases, the fact of the innocence of the accused depends altogether upon hearsay, or tradition.

It is but a few years since a story was published in nearly all of the newspapers of the United States, that a man by the name of Hamilton had been condemned and executed in one of the western states, and that his innocence was afterwards clearly established, by the confession of the man who had actually committed the murder. This story, for a time, gained entire credit, and was generally believed wherever it was told. Yet, fortunately for the administration of justice, the report of his innocence was discovered to be a base fabrication, put in circulation by some of his surviving friends for the purpose of removing a stigma from the name of the man who had justly suffered the penalty of the law for a most wicked and aggravated robbery and murder. It is not improbable that some of the cases collected in his appendix, by the anonymous writer, before referred to, are cases of that description. But if they were all supported by well attested facts, they would not in the least diminish the weight which ought to be given to circumstantial evidence. For upon examination, it will be found that most of those cases were convictions upon the positive testimony of mistaken or perjured witnesses.

His honor then adverted particularly to each of the cases stated in that appendix, and observed that they only went to support the opinion he had before expressed, that there were more unjust convictions upon the positive testimony of mistaken or perjured witnesses, than from erroneous conclusions of juries in deciding upon circumstantial evidence.

He then commented upon the nature of presumptic ns, which he told the jury were of three kinds:

1. Violent Presumptions. — Where the facts and circumstances proved would necessarily attend the fact presented. As if your horse had been shot in the stable by a musket ball, and it was proved that a man was seen immediately before to load his gun and go into the stable; that the report of a musket was heard in the stable, and that the man immediately came out with his gun unloaded and fled. These circumstances would raise a violent presumption that the man shot the horse, because the loading of the gun, the report in the stable, and the gun being unloaded when he came out, are all facts which must necessarily attend the fact presumed; to wit, that he shot the horse. And upon such testimony, unexplained, it would be the duty of a jury to give a verdict against him, equally as it would be if the shooting of the horse was positively sworn to by the same witness. For in either .case, if the witness was to be credited, there could be no reasonable doubt of the guilt of the accused, although there was a possibility of his innocence.

2. Probable Presumptions. — Where the facts and circumstances proved, usually attend the fact presumed. As if your horse is stolen, and shortly thereafter he is found in the possession of the accused, who refuses to give any explanation as to the manner in which the horse came into his possession. These circumstances raise a probable presumption that the accused committed the theft. It is every day’s practice to convict on such circumstantial evidence, if the transaction is unexplained.

3. Light or Rash Presumptions. — When the facts and circumstances proved might probably attend the fact presumed. As if a man gave medicine to his wife, and she died shortly afterwards, it would be a light presumption of the fact that he had given her poison instead of medicine, and could not legally authorize his conviction for murder.

But, he said, there are many circumstances which, taken separately, would only amount to light or rash presumptions, and as such entitled to no weight, which, if they were well proved and connected together in qne case, might amount to probable or even to violent presumption of guilt. As if a wife die very suddenly, with the usual symptoms of having been poisoned. It is proved that she and her husband were on ill terms; that he had threatened her life; that he gave her liquor to drink shortly before those symptoms appeared; that he was seen to put something into the bottle of liquor; that he purchased arsenic the day before; that the bottle being inquired for he immediately flung away the liquor remaining therein; that he gave no satisfactory account of what had been done with the arsenic; that he caused her to be buried unusually soon after her death; that the contents of her stomach being analyzed were found to contain arsenic. Each of these circumstances, taken by itself, and perhaps two or three of them together, would be nothing more than rash or light presumptions of the guilt of the husband. But if all the circumstances I have enumerated were satisfactorily proved by credible witnesses and were left unexplained by the accused, they might, when taken together, carry irresistible conviction to the minds of the jury that he had killed his wife by poison. This is what is called a chain of circumstances. And in proportion to the number, to the strength and to the close connection of the links of which that chain is composed, must be its power to draw the minds of the jury to the conclusion of fact which it is intended to establish.

As the facts and circumstances in each particular case must be in some respects necessarily peculiar and different from all others, it is very difficult to lay down general rules for the guide of jurors in such cases. One rule, however, which ought never to be departed from, is that no one should be convicted of murder upon circumstantial evidence, unless the body of the person supposed to have been murdered has been found, or there be other clear and irresistible proof that such person is actually dead. Secondly. Each circumstance should be satisfactorily established by evidence, and should not be presumed by an assumption of the fact that the accused is guilty. Third. The jury should give as much weight to each circumstance which is in favor of the accused, as they do to circumstances of the same importance against him. Fourth. If the existence of any circumstance against the accused is not established beyond all reasonable doubt, the jury, in favor of life, should reject such circumstance. Fifth. The jury should always act upon the presumption that the accused is innocent, and should endeavor, if possible, to reconcile all'the circumstances of the case with that side of the question. And in such cases it is also proper that the former good character of the accused, if it was good, should be taken into consideration, and given its full weight in behalf of the accused.

His honor told the jury that these were the principles and rules by which they should be governed in the decision of this cause, and requested their undivided attention while he examined the testimony, for the purpose of bringing the principal facts to their recollection, and to assist them in the examination of the evidence. He reminded them that the question of the prisoner’s guilt or innocence was one which it belonged to them exclusively to decide, and added that if, in commenting upon the testimony, he should, unintentionally, intimate any opinion upon that question, they must reject it, and found their verdict upon their own unbiassed convictions, arising from the testimony before them. He then examined the testimony in the case at length, and concluded by observing that if the jury, after a careful examination of all the circumstances, could by the assistance of their reason, reconcile the facts with the innocence of the prisoner, it would be their duty, as he had no doubt it -would be a pleasure, to pronounce a verdict of acquittal. But if, on the contrary, after they had fully examined and reasoned upon the testimony, they should find the dreadful truth pressing upon their minds with such irresistible force as to remove therefrom every rational doubt of the prisoner’s guilt, it would be their imperious duty to pronounce, as the result of their deliberations, that he was guilty of the felony, and murder charged in the indictment.

The prisoner was convicted, and subsequently execi ted.


source: Caselaw Access Project

author: The Chancellor. —

license: Public Domain

text:
    At Chambers
    November 3, 1842.
    Before Reuben H. Tfai~ worth, Chancellor of the state of New York.
    John C. Colt vs. The People.
    The court of Oyer and Terminer, in which á criminal case has been tried and verdict of guilty is given, ought not to delay the sentence for the purpose of having the decision reviewed by certiorari, except in cases of great doubt and difficulty; in other cases, the defendant should be left to his writ of error.
    Even in capital cases, it can seldom be necessary to delay the sentence, the governor being authorized in these cases to take the opinion of the attorney general and of all the high judicial officers of the state, before he permits the execution of the sentence, and to suspend the execution of the sentence, that the case may be brought before the Supreme Court and decided on a writ of error, if he or any of these officers entertains any doubt as to the legality of the conviction.
    Writs of error in cases not capital, issue of course; but they do not stay the sentence, without an express order to that effect from a circuit judge, or a judge of the Supreme Court.
    In capital cases, no writ of error can be issued unless allowed by the chancellor, or one of the justices of the Supreme Court, or a circuit judge upon notice given to the attorney general, or to the district attorney of the county in which the conviction was had; and it is the duty of the officer to whom the application is made, to disallow the same, if he has no reason to doubt the legality of the conviction.
    Where at the Oyer and Terminer the initiatory proceedings of a trial for murder had been commenced, by calling the jurors as directed by law, and only nineteen of the jurors answered to their names, whereupon three hundred additional jurors were summoned by the sheriff under direction of the court, and the court refused to delay the trial for two or three days, as requested by the prisoner’s counsel, to enable them to examine such list of additional jurors, it was held that the question to be decided on such application was a matter of discretion, and that no exception could lie to such refuasl.
    Held, also, that the summoning of so large a number of additional jurors was a matter of sound discretion, to be exercised by the court, with a view to get a sufficient number who were qualified and competent, from which a full jury could be obtained; and that such discretion should be exercised, upon the knowledge which the court possessed, of the probable effects which a report of the facts, in the public papers and otherwise might have had, in biassing the minds of jurors, so as to disqualify them from serving on the trial.
    Where on a trial at the Oyer and Terminer, the prisoner called as a witness a woman, by whom he proved that she was living with the prisoner as his mistress and not as his wife, so as to make her a competent witness in his behalf, and then proved, by her, facts deemed material in the case, and no attempt was made on the part of the public prosecutor to impeach her testimony, it was held that the prisoner was not at liberty to introduce testimony to sustain her character for truth and veracity,

    Where there is no evidence‘before the grand jury, or known to the prosecutor, at the time of finding the indictment for murder, to show what instrument was used to produce the mortal wound, it is proper to charge, in the indictment, that such wound was inflicted by some instrument to the jurors unknown; and under such an allegation, it is competent for the public, prosecutor to introduce evidence to raise a presumption that the wound was caused by a pistol ball; and to prove, for that purpose, that the prisoner had pistols in his possession and that a ball, propelled by the explosion of a percussion cap, would be likely to produce such a wound; or to prove that the prisoner had such pistols, for the purpose of satisfying the jury, if possible, in connection with other evidence in the case, that the prisoner had taken the ramrod from the pistol and driven it into the head of the deceased.
    The finding of the jury at the Oyer and Terminer upon a mere question of fact, can not be reviewed by the appellate court on a writ of error, although it appear affirmatively that the bill of exceptions contains all the testimony given on the trial.
    The provision of the Revised Statutes, (2 R. S. 204, § 28,) authorizing the Mayor, Recorder and Aldermen of the city of New York, or two of them, to sit in the Oyer and Terminer held in that city, as a constituent part thereof, is not a violation of Art. IY, Sec. 7, of the state constitution in force at the time of its enactment.
    This case came before Chancellor Walworth, in November, 1842, upon an application for the allowance of a writ of error to the court of Oyer and Terminer of the city and county of New York.
    The applicant was indicted for the murder of Samuel Adams; and was tried and convicted at a court of Oyer and Terminer in the city and county of New York, composed of the circuit judge of the first circuit and two aldermen of that city, in January, 1842. After the verdict the sentence or judgment of the court was suspended for the purpose of obtaining the decision of the Supreme Court upon certain questions raised upon the trial. The case was accordingly brought before the Supreme Court by certiorari, as authorized by the revised statutes, and some of the objections, or alleged grounds of error, raised and argued upon this application to the chan* cellor, were argued and disposed of upon that certiorari. The Supreme Court having ordered the proceedings to be remitted to the court of Oyer and Terminer, with directions to proceed and pass sentence upon the prisoner, final judgment was given against him' accordingly.
    The prisoner’s counsel, wishing to carry the case before the court for the Currection of Errors, supposed it was necessary, to enable them to do so, first to bring the case again before the Supreme Court by writ of error, and have the judgment of the Oyer and Terminer affirmed there, and then to sue out another writ of error to the Supreme Court, returnable .in the court for the Correction of Errors. They therefore applied, in the first place, to the circuit judge before whom the prisoner was tried, for the allowance of a writ of error, with a stay of proceedings. That application being denied, they applied to one of the justices of the Supreme Court at chambers, who with the concurrence of both of his associates on the bench, also denied the application; which was then renewed before the chancellor. On this application some new questions, particularly one as to the constitutionality of the organization of the court of Oyer and Terminer before which the prisoner was tried and convicted, which were not raised before the Supreme Court upon the certiorari, were raised by the counsel, for the prisoner.
    It appeared from the testimony in the case that Adams went to the room of the prisoner to obtain payment of a debt due from the latter; that a witness in an adjacent room heard a scuffling, and the noise of some heavy body falling on the floor, and looking through the key hole of the prisoner’s door, which did not enable him to see within three or four feet from the floor, he discovered the prisoner stooping down, and doing something which caused his shoulders to raise and fall alternately. The body of the deceased had been put into a box by the prisoner and transported to one of the wharves of the city to be shipped to a distant place. And when found there was upon the head of the corpse the marks of one or more blows with a hatchet or hammer; and a small round hole in the side of the head, leading directly to the brain, about the size of a pistol bullet, which it was found difficult to account for, as no report of a pistol was heard by the witness who was in the adjacent room. It appeared, however, by the testimony before the coroner and on the trial, that there was found in the prisoner’s room, where the supposed murder was committed, one of Colonel Colt’s revolvers which was not loaded, and a ram rod, which was detached therefrom, but fitting the bore of the revolver. A hammer hachet was also found in the prisoner’s room. One count of the indictment, therefore, charged the murder to have been perpetrated with a hatchet; and- another charged that it was done with some instrument to the jurors unknown. Under this last' count the court, before which the prisoner was tried, allowed the public prosecutor to produce evidence tending to show that the round hole in the head of the deceased might have been produced by a pistol ball propelled from the revolver by the means of a, percussion cap, or in some other way which would not cause an explosion sufficiently loud to be heard in the adjacent room. To the admission of this testimony, the prisoner’s counsel excepted.
    In the course of the trial it became necessary for the prisoner, as his counsel supposed, to introduce a witness with whom he was cohabiting at the time of the alleged murder, and to show that she was not his wife but his mistress, to show that she was a competent witness in his favor. Having examined her as a witness, his counsel offered testimony to prove that her general character for truth and veracity was good, notwithstanding she was living with him as his mistress. That testimony was objected to by the public prosecutor and overruled by the court.
    The prisoner having pleaded not guilty to the indictment, on Monday the 17th of January, the clerk of the court proceeded to call the names of the persons on the panel of jurors returned for that' court, preparatory to the drawing of the jury, for the trial of the prisoner. And twenty-four persons duly drawn and summoned to attend that court not having appeared, the court under the provisions of the third section of the title of the revised statutes relative to the trial of offences, &c., ordered the sheriff to summon three hundred persons duly qualified to serve as jurors, to complete the number required by law, to attend on the next Wednesday morning, at ten o’clock; and all further proceedings were postponed until the time mentioned in that order. At that time the clerk was directed to call over the original panel of jurors, and only fifteen of them answered to their names. The prisoner’s ■ counsel then moved that they might be furnished with a copy of the list of the three hundred additional jurors summoned pursuant to the order of the court, and that two or three days’ time should be granted to them to examine that list before the trial. The court refused to grant the postponement asked for, and directed the trial to proceed forthwith. The counsel of the prisoner thereupon challenged the array of the three hundred jurors so summoned; because so large a number had been ordered to be summoned; because only two days were allowed to the sheriff to execute the order of the court; because the sheriff had not furnished the prisoner’s counsel with a list of the persons so summoned before the day of trial; and because the sheriff had obtained the names of such jurors by taking them from the list of grand and petit jurors returned to the county clerk’s office as persons qualified to serve on juries. But the court decided the challenge was not sustainable on either of those grounds.
    The objection to the organization of the court of Oyer and Terminer was that the aldermen, being elective officers, and not appointed by the governor and senate, could not constitutionally be judges of that court.

      Dudley Selden and David Graham, far the applicant for a writ of error.

      James R. Whiting, (Dist. Ait’y,) for the people.

       See The People v. Gay, page 308, and S. C. 3 Selden, R. 378.

   The Chancellor. —

This is an application on the part of John C. Colt, who has been convicted of the crime of murder, for the allowance of a writ of error to the court of Oyer and Terminer of the city and county of New York, to remove the record into the Supreme Court, and for a certificate that there is probable cause to stay the proceedings upon the judgment, which has been pronounced against the prisoner.

The questions arising upon the writ of error have already-been before the Supreme Court, and were decided against the prisoner there; and the avowed object of his counsel is to carry his case ultimately to the court for the Correction of Errors. But they suppose that as the court of Oyer and Ter-miner stayed its judgment upon the verdict of the jury, and permitted the case to be carried before the Supreme Court before sentence, there is now no other way to get the case before the court of dernier resort, but by carrying it again before the Supreme Court by a writ of error; and after that court shall have affirmed the judgment, which has been given pursuant to the former direction of that court, to sue out a second writ of error, from the court of dernier resort, directed to the Supreme Court.

Provided the prisoner’s counsel are right in supposing they can not now go directly to the Court of Errors, which I am inclined to think is .the fact, and if a writ, of error from the Supreme Court to the court of Oyer and Terminer will lie, in such a case, the prisoner’s execution must necessarily be suspended until these forms of law are gone through with, in case of the allowance of this writ; should the governor think proper to suspend the execution of the sentence for that reason alone. But necessary delay, which the forms of law require, is no ground for refusing the writ, in a proper case. It only shows that the legislation which allowed criminal cases to be carried before the Supreme Court before judgment, was highly inexpedient; or that the court in which the prisoner is tried should not permit counsel to try experiments of that kind, by a delay of the sentence, except in cases of great doubt and difficulty.

Indeed, even in capital cases, it can seldom be necessary thus to delay the sentence; for the governor is authorized to take the opinion of the attorney general, and of all the high judicial officers of the state, in such cases, before he permits the execution of the sentence. And it would be almost a matter of course for him to suspend the execution of a sentence until the case could be brought before the Supreme Court, and decided upon a writ of error, if he or any of those officers entertained a doubt as to the legality of the conviction. And in cases not capital, the judges of the court who try the prisoner certainly ought not to stay the sentence, and burthen the county with the expense of supporting the convict until the case can be carried to the Supreme Court, when they have no doubt as to the correctness of the conviction, as the statute provides for a stay of proceedings after sentence, by the order of a justice of the Supreme Court or circuit judge.

Writs of error, in cases not capital, issue of course; but they do not stay the execution of the sentence, without an express order to that effect,- from a circuit judge or a judge of the Supreme Court. In capital cases, however, the law has provided that no writ of error shall be issued unless allowed by the chancellor, or one of the justices of the Supreme Court, or a circuit judge; upon notice given to the attorney general, or to the district attorney of the county where the conviction wms had. This provision of the statute necessarily implies a duty, on the part of the officer to whom the application for the allowance of the writ is made, to disallow the same if he has no reason to doubt the legality of the conviction of the prisoner.

All the justices of the Supreme Court having declined to allow a writ of error in this case, and the application having now been renewed before me, and counsel having been heard at length thereon, I have carefully examined the whole testimony in the case, as well as the particular questions referred to by counsel on the argument as grounds of error, to see if there was any thing therein which could justify me in interfering, by the allowance of this writ.

The first error relied upon relates to the organization of the Court of Oyer and Terminer, before which the prisoner was tried, convicted and sentenced; the questions arising upon which point I shall consider after examining the objections to the decisions of the court upon the trial, which the counsel for the. prisoner have thought of sufficient importance to call my attention to on the argument.

The first objection raised at the trial was to the refusal of the court to delay the trial two or three days, after the initiatory proceedings had commenced, by calling the jurors as directed by law, to enable the prisoner’s counsel to examine the new list of additional jurors summoned under the statute. This was a matter of discretion in the court, if the court was authorized to postpone the trial at all, after the commencement of the initiatory proceedings, by an attempt to get a jury in court for the trial of this particular case. And I am satisfied that discretion was not improperly exercised. The summoning so large a number of additional jurors was a matter of sound discretion, to be exercised by the court with a view to get a sufficient number who were qualified and competent to discharge the duty, from which a full jury could be obtained.

Such discretion must of course be exercised upon the knowledge which the court possessed out of the case, of the probable effects which a report of the facts in the public papers and otherwise might have had in biasing the minds of jurors so as to disqualify them from serving on the trial. And although the particular circumstances which operated upon the minds of the judges to induce them to order so large a number to be summoned can not appear upon the record, the result which does appear conclusively shows that the number ordered to be summoned was not unnecessarily large. For out of the nineteen jurors who answered to their names when the attempt to em-pannel the jury first commenced, and the additional three hundred summoned by the sheriff, but two hundred and twenty-five attended. Of these, twenty-seven were excused from serving, for legal causes, one hundred and sixty-nine were challenged for cause and were found to have made up their opinions upon the case, and eighteen more challenged pen nptorily by the prisoner. So that but eleven jurors were obtained from the whole list, and it was still found necessary to award a tales to complete the jury.

The objection that the prisoner was not permitted to introduce testimony to sustain the character for truth and veracity of his own witness, Caroline Henshaw, who was not attempted to be impeached, is clearly untenable. The case of People v. Rector, (19 Wend. 569,) which is relied upon to sustain this objection, although it went farther than I before supposed the principle had ever been carried, is a very different one from this. Here the prisoner himself is compelled to call a witness and show that she is living with him as his mistress and not his wife, to render her competent, and to enable him to prove facts which he wished to get before the jury, and which could only be known to her from lodging with him. And no attempt is made on the part of the public prosecutor to impeach her testimony. It would certainly be a violation of all principle to permit the party calling a witness to introduce proof of general good character in such a case.

In Rector’s case, the witness’s particular bad character was drawn out upon his. cross-examination, for the purpose of rendering him infamous, as he justly deserved to be, and thus discrediting him before the jury. On the contrary, in this case, the public prosecutor directly disavowed any intention to impeach the witness, and declared his belief to the jury that she had intended to testify truly. And I think no one who reads the testimony of this erring woman, however deeply she has sinned in another respect, can doubt that in this case she did not intend to add to her other moral offence the still deeper crime of perjury. For her testimony, while it proves little or nothing in favor of the prisoner, whom she had strong inducements to screen from punishment, if she believed him innocent, supplied very important links in the c’ ain of evidence on the part of the public prosecutor.

Even upon the point upon which the prisoner’s counsel supposes her testimony to be most material in favor of the prisoner, it appears to me it is generally against him. He made no complaint of the injury upon his neck or shoulder when he came home late in the night succeeding the fatal encounter, nor did she then witness any attempt to conceal such a bruise. But the next day, after he had been seen lowering- down the box with the edge of it against his shoulder, he went home and bathed his shoulder and neck in spirits and went to bed, and took pains to conceal the injury by pinning up his night shirt about his neck.

I think the circuit judge was right, according to the settled law, in allowing evidence to be given to raise a presumption that the small wound in the side of the head of the deceased ■was caused by a pistol ball, under either count of the indictment. As there was no evidence before the grand jury, o'r known to the prosecutor at the time of finding the indictment, to show with anything approaching to certainty, or even probability, what instrument was' used to produce that wound, which, of itself, was sufficient to produce death, it was proper to charge in the indictment that a mortal wound was inflicted with some instrument to the jurors unknown. And under that count it was allowable to introduce the evidence that the prisoner had in his possession such pistols, and that a ball propelled by the explosion of a percussion cap would be likely to produce such a wound; or the public prosecutor, under that count, might have produced evidence of the prisoner’s having in his possession such pistols, for the purpose of satisfying the jury if possible, that he had taken the ramrod from the pistol, wnen Wheeler saw him go to the table, and had driven it into this part of the head by a blow of the hatchet, while the deceased was lying senseless upon the floor.

If this wound could not have been made with the hatchet, and there had been proof that the pistols had a rammer corresponding with the size of the ball, I should suppose this a more probable supposition, in connection with the testimony of Wheeler, than that a pistol ball could have been shot through this part of the head with a mere percussion cap, and at so short a distance. The testimony of Dr. Rogers, however, is, that the corner of the hatchet’s edge, if he d by a person standing in front of the deceased while he was on his feet, exactly fitted this hole in the skull, and as the skull and hatchet were placed together before the jury, they could, of course, see whether he was correct, as it required no surgical skill to see that the corner of the hatchet filled the hole with the handle toward the face.

As the statute uses the words “ by accident and misfortune, and not done in a cruel or unusual manner,” in defining excusable homicide,I do not see how any one can doubt the correctness of the judge’s charge in telling the jury that those expressions were not to be rejected as surplusage for the purpose of bringing the case within the second subdivision of the fourth section of the statute on this subject.

In addition to the questions raised by the bill of exceptions, the counsel for the prisoner insists that as it is admitted by the public prosecutor that the bill of exceptions contained all the testimony, the court above, upon a writ of error, has the right to reexamine the finding of the jury upon matters of evidence under the provisions of the revised statutes, and to reverse the judgment, if the judges of the appellate court have any doubts, from the evidence, as to the guilt of the prisoner.

I have, therefore, carefully examined the whole testimony, in connection with the arguments of counsel upon the facts, for the purpose of satisfying myself whether there was any reason to doubt that this was a case of willful murder. But as I am satisfied upon a full examination of the provisions of the revised statutes, to which I was referred, that the decision of the jury upon a mere matter of fact can not be reviewed upon a writ of error, it is unnecessary that I should state the conclusion [ have formed as to the prisoner’s guilt or innocence, or the reasons upon which my opinion is based.

The objection as to the organization of the court involves the question whether there has been any court of Oyer and Ter-miner constitutionally organized in this city since the first of January, 1823, or whether every conviction in that court for the last twenty years has not been illegal and unconstitutional, except in one case, in which a special commission of Oyer and Terminer was issued. Indeed, it involves the question whether any court of' Oyer and Terminer can he held in this city, under the provisions of the revised statutes, without such a special commission to be issued by the governor with the advice and consent of the senate. For the courts of Oyer and Terminer in this city, by the provision of the revised statutes, (2 R. S. 204, § 28,) must be held by one or more justices of the Supreme Court, or of the circuit judges, or by the first judge of the Common Pleas, together with the mayor, recorder and aldermen of the city, or with two of them. That is, if all the justices of the Supreme Court, or all the circuit judges, were present on the bench, they could not hold a court without having also associated with them the mayor, recorder and aldermen, or at least two of those officers. And as the mayor as well as the aider-men is now elective, if none but those who are appointed by the governor and senate can act as justices of Oyer and Terminer, it follows, of course, that there is no law in force by which a court can be organized here, without calling the senate together to consent to the issuing of a special commission.

This does not show that the prisoner, or any other person who has been convicted, in the Oyer and Terminer within the last twenty years in this city, if not already executed, may not still raise the constitutional question which is now agitated. But this long acquiescence in the construction of the constitution, renders it highly probable that the construction which was given to it upon the first organization of the government under it in 1823, and which construction has been also given at nearly every session of the legislature since that time, is most probably correct. Still if there is any reason to believe that the judgment in the present case will be reversed by the court for the Correction of Errors on that ground, and certainly if I have any reason to doubt whether the prisoner has or has not been convicted before a court organized in direct violation of a positive provision of the constitution, I can not refuse him the benefit of a writ of error, where I have the power to grant it. I therefore proceed to examine the grounds upon which his counsel suppose it probable that the judgment may be reversed on account of the supposed illegal organization of the court.

In the case of The People on the relation of the Attorney General v. Varian, the Mayor and certain Aldermen of the city of New York, (25 Wend. Rep. 9,) which arose out of the trial of a justice in the court of common pleas for alleged misconduct, the question was brought before the Supreme Court, whether the mayor and aldermen, or either of them, could act as judges in the county court of that city. That court unanimously decided the constitutional question m favor of the mayor and aldermen. (25 Wend. Rep. 10, 26.) And the case being carried to the court for the Correction of Errors, the judgment of the Supreme Court was affirmed by a tie vote. Seven of the law members of that court voting in favor of the affirmance, and Messrs. Root, Dixon and Lee, who were also lawyers, voting for a reversal of the judgment of the court below.

It will be seen, however, by an examination of the opinions of Mr. Dixon and Gen. Root, that they placed their opinions upon two provisions of the constitution, the last of which has no application to this case; the first being the general provision as to the appointment of judicial officers, and the other being that which in express terms required judges of the county courts to be appointed for five years. And it is evident that Senator Dixon’s opinion was mainly based upon this last clause of the constitution.

Senator Hull also, a most worthy and conscientious member of that court, who is not a lawyer, but who delivered a written opinion in favor of the reversal of the judgment of the supreme court, confines his remarks to,the right of the mayor and aider-men to act as judges of the court of Common Pleas, in violation, as he supposed, of the constitution, and says nothing of their right to act as justices of the Oyer and Terminer. It is very doubtful, therefore, whether any considerable number of those who voted to reverse the judgment cf the Supreme Court, would have given the same vote if the question had arisen as to the right of the mayor and aldermen to act as justices of Oyer and Terminer in this and other cities of the state, where the statutes have authorized them to act as such.

Again; the case of The People v. White (24 Wend. 520) was decided by the same court and at the same time; in which case the question as to the right of the aldermen to act as justices of Oyer and Terminer arose and had been argued by counsel. And in that case both General Root. and Senator Dixon held that the fact that aldermen acted as justices of Oyer and Ter miner upon the trial of the prisoner, was no ground for reversing the judgment. I think, therefore, that if the case was brought before the judges who decided the case first referred to, upon the question which the prisoner wishes to raise, as to the organization of the court, there is not the remotest probability that he would have succeeded in reversing this judgment, and there probably would not have been two votes in his favor on that ground. For the same and other reasons I do not think there is any probability that any considerable number of those who now are or hereafter may be members of that court, will vote to reverse a judgment on the ground that aldermen were associated with the circuit judge in the organization of the court of Oyer and Terminer, before which the prisoner was tried.

It is true I then did and do still differ in opinion with those who think a prisoner can not upon a writ of error avail himself of the objection that the law organizing the court before which he was tried and convicted, was unconstitutional; even if the judges of such a court would not themselves be liable to be punished criminally for directing their illegal sentence to be executed upon him. But I am much more confident that I am l'ight in supposing there is not the least probability that the court of dernier resort, to which it is now sought to carry this case for review, will reverse the judgment on the ground that the court of Oyer and Terminer was not properly organized.

No one not immediately acquainted with the condemned individual whose case I have been considering, can more deeply regret than I do the situation in which he is placed, or sympathize more sincerely with his numerous connections. It has been my good fortune to be acquainted with many of them, and I know them to be among the most respectable inrnny commu nity. With one of them, a lady who is a very near relative, I have been on terms of intimacy and friendship for more than thirty years. But in the administration of justice, upon which not only the safety of the community, but all that is dear in life depends, the calls of private friendship must, or at least should, always give way to the stern demands of public duty. And as the prevention of crime depends almost as much upon the rapidity as upon the certainty with which the punishment follows upon the detection of the offence, the judge*who improperly retards the execution of the sentence of the law after the accused has been rightfully and legally convicted of the offence, does nearly as great an injury to the public as one who screens him from punishment altogether.

Having therefore arrived at the conclusion that there is no prohable cause for supposing that there is any error in the judgment in this cause, or any reason to doubt that the prisoner has been properly convicted, if the jury came to a correct conclusion upon the questions of fact which it belonged to them exclusively to decide, I must do as the justices of the Supreme Court have done, refuse to allow this writ of error.


author: Harris, J. —

text:
    Greene Oyer and Terminer.
    December 1854.
    Before Harris, Justice of the Supreme Court and the Justices of the Sessions.
    The People vs. Martin Morrison.
    A court of Oyer and Terminer has power to grant a new trial on the merits, after a defendant has heen convicted of a felony.
    The cases of The People v. The Judges of the Dutchess Oyer and Terminer, (2 Barb. Sup. Court R. 282,) and the United States v. Gilbert, (2 Sumner, 19) reviewed and disapproved.
    The question, whether the court of Oyer and Terminer is a Superior Court of general jurisdiction, discussed.
    To warrant a conviction for rape, under the 2d sub. of § 22, (2 R. S. 663,) it ought to appear that there was the utmost reluctance and the utmost resistance on the part of the prosecutrix.

      The defendant was tried at the Greene Oyer and Terminer, held in April, 1854, Harris, J., presiding, for the crime of rape, and convicted. Upon the application of the defendant’s counsel, sentence was suspended, and, at an adjourned session of the court, held in May following, a motion was made for a new trial, upon the ground that the verdict was against the weight of evidence. The facts will sufficiently appear in the opinion of the court.

      P. C. Mattoon, (Dist. Att’y,) and M. Sanford, for the people

      L. Tremain, for defendant.
   By the Court,

Harris, J. —

The power to grant a new trial either in civil or criminal cases, constituted no part of the jurisdiction of the court at common law. The first reported case of a new trial being granted, upon the merits, is that of Wood v. Gunston, in 1655, (Style, 466,) where, in an action of slander, the verdict was set aside and a new trial awarded on the ground of excessive damages. Indeed, in that case, the decision was put upon the misbehavior of the jury. It was regarded rather as a case of irregularity, than an application for a new trial upon the merits. Just before this, it had been said by Rolle, J., in Slade’s case, (Style, 138,) that the only remedy for the party, complaining of the injustice of a verdict, was to attaint the jury. (See 3 Bl. Com. 388.) It was not until the time of Lord Mansfield that the power of the common law courts to grant a new trial in any case where it was necessary for the attainment of justice was fully established. (See Bright v. Eynon, 1 Burr, 394; Vernon v. Hankey, 2 Term R. 113.) In the latter case, decided in 1787, and during the last of the thirty-two years that Lord Mansfield presided in the court of King’s Bench, Buller, J., said, “ motions for new trials have been very much encouraged of late years, and I shall never discourage them, for nothing tends more to the due administration of justice, or even to the satisfaction of parties themselves.” And, in the former case, Lord Mansfield himself said, “ Trials by jury in civil cases could not subsist now, without power somewhere to grant new trials. A general verdict can only be set right by a new trial, which is no more than having the cause more deliberately considered by another jury when there is reasonable doubt, or perhaps a certainty that justice has not been done. The writ of attaint is now a mere sound in every case.” And again he says: “ It is absolutely necessary to justice that there should, upon many occasions, be opportunities of reconsidering the case hy a new trial.”

But in criminal cases, where the offence amounts to a felony, a new trial is not granted in England. The same, end is accomplished in another and more summary way. The entire separation of judicial and executive powers, which is so prominent a characteristic of both the state and federal governments of the United States, is not found in the British constitution. On the contrary, the king is regarded as the fountain of all justice as well as mercy, and the judiciary but his ministers to dispense his judgments. While, in the United States, the pardoning power can only be exercised after conviction, in England, there is no such restriction. The king may pardon before trial, and even before indictment. The accused, upon being arraigned, may plead a pardon of his crime. “ This,” says Blackstone, “ is indeed one of the great advantages of monarchy in general, above any other form of government — that there is a magistrate, who has it in his power to extend mercy wherever he thinks it is deserved; holding a court .of equity in his own breast, to soften the rigor of the criminal law in such criminal cases as merit an exemption from punishment.” (4 Bl. Com. 397.) If, upon a criminal trial, the presiding judge is in doubt upon a question of law, he reserves it for the consideration of all the judges. If he is dissatisfied with the decision of the jury, he suspends sentence, or may reprieve the prisoner, and reports the case, with his recommendation, to the ministers of the crown. Such recommendation is never disregarded. The punishment is modified, or the accused is wholly discharged, according to the views the judge may entertain of the merits of the case. Under such a system, a second trial can never be necessary. The prisoner can never be punished unless the court agree with the jury in the justice of their verdict. Where this is not the case, the court takes the matter into its own hands, and, through the instrumentality of the crown, modifies the punishment or dispenses with it altogether, according to its own notions of justice, uncontrolled by the verdict. Thus, all the advantages which could be secured to the party accused by granting him a new trial are attained without the intervention of a second jury.

It is quite unnecessary to say that nothing analogous to this practice has ever found its way into the criminal jurisprudence of the United States. From its earliest history the criminal courts, both state and federal, have assumed and exercised, with singular uniformity, (he power of granting new trials upon the merits. After a most diligent examination, I feel great confidence in asserting that the case reported in 2 Barb. 282, (The People on the relation of Case v. The Judges of the Dutchess Oyer and Terminer,) is the only American case in which it has been adjudged that a court of Oyer and Terminer, or any other court of kindred jurisdiction, has not the power to grant a new trial upon the merits. Although, from the nature of criminal trials, it is not often that they find their way into judicial reports, yet there are reported cases in this state, and in most, if not all the other states, and in the criminal courts of the United States, where this power has been asserted without hesitation, and freely exercised. And whenever it has been denied or doubted, with the exception of one or two cases which I shall- have occasion to notice presently, it has been vindicated and maintained. I am confident, too, that there are but few lawyers of extended experience, who can not call io mind instances of unreported cases in which new trials have been granted upon the merits, in criminal cases.' It is true that in 1799, the Supreme Court of this state granted a mandamus to compel the court of General Sessions in Chenango to proceed to sentence a prisoner who had been convicted of felony, although that court had awarded a new trial on the merits, the conviction being, in its judgment, against the evidence. The court there say that, in cases of felony, considerations of policy and expediency would prevent the Supreme Court itself from granting a new trial, and that, in such cases, the usual course was to recommend the convict for pardon. The People v. Justices of Chenango, (1 John. Cases, 179.) Were it at all to my purpose, I think it might be shown that the arguments by which the court reached the conclusion that the General Sessions had not the power to grant a new trial-when the verdict was against evidence, are unsound. But it is enough to say, that the court, while referring to the “ policy and expediency” of granting a new trial does not deny or question its power. This power had been exercised but two terms before, in the case of The People v. Townsend, (1 Johns. Cases, 104.) In The People v. Stone, (5 Wend. 39,) the question was fully considered, and it was held, upon both principle and authority, that courts of Oyer and Terminer have the power to grant new trials upon the merits. Marcy, J., in delivering the opinion of the court, says: The policy, in respect to new trials in criminal cases, which the English courts have pursued has never been countenanced by our courts, and would never be tolerated by our people.” But in The People v. Comstock, (8 Wend. 549,) which came before the court two years after the decision in The People v. Stone, upon an application for a new trial, after the defendant had been acquitted, Sutherland, J., has unfortunately cited the English rule on the subject of new trials in criminal cases, as if no distinction existed in the practice in the two countries. He refers to the rule as stated by Chitty, in his Treatise on English Criminal Law, and quotes from the argument of counsel and the opinion of the court, in The King v. Mawbey, (6 Term Rep. 625,) but takes no notice of any of the American cases, not even of The People v. Stone, in the decision of which he had himself so recently concurred. The question was not in judgment at the time. The principle that, having been once acquitted, he should not again be put in jeopardy secured the defendant against another trial. The court had no occasion, therefore, to refer to the question whether, after a conviction, it had the power, upon the application of the prisoner, to set aside the conviction and award a new trial. It is quite evident, I think, that having thus incidentally, if not inadvertently, stated the English doctrine on the subject of new trials in criminal cases, it did not occur to the learned judge to notice the distinction between that and the American practice, which he had himself so recently recognized.

And yet, strange as it may appear, this case has been made to contribute largely to the work of unsettling the law on the subject now under consideration. “ In the case of The People v. Comstock,” says Mr. Justice Story, in The People v. The Judges, &c. (2 Barb. 291,) the late Supreme Court, in effect, overruled the decision in The People v. Stone, and followed the common law rule; that being the latest decision on the subject, is of course entitled to the greatest weight.” *And, again, the same judge, in the same opinion, relying upon the dictum of Mr. Justice Sutherland, as he must have done, for it is the only instance in which the power in question has been denied or doubted, says: “ The decisions of the late Supreme Court, on the question now under consideration, have not been uniform, and we are at liberty to adopt such rule as we think the law requires, without a material departure from the principle ‘stare decisis.’ ” Thus', an inconsiderate remark in The People v. Comstock, upon a subject inapplicable to the question then before the court, has been made to serve the purpose of opening a question of criminal law which had been settled by an uninterrupted course of decision and practice reaching back as far as our judicial history will carry us. Finding the question thus open, the court, in The People v. The Judges-, fyc., felt itself at liberty to examine it anew and “ to adopt such rule as it should think the law required.”

In other states, the power has been maintained with the same uniformity and distinctness. “ In Pennsylvania,” says Wharton,” it has been the constant and unquestioned practice in the court to exercise the right of granting new trials in criminal cases after conviction of every grade.” (Wharton’s Am. Cr. Law, 2d ed. 873.) In support of this proposition he refers to Com. v. O’Hara, 7 Smith’s Laws, 694; Com. v. Brown, 3 Rawle, 207; Com. v. Green, 1 Ashmead, 289; Com. v. Murray, 2 do. 41; Com. v. Williams, 2 do. 69; Com. v. Hanagan, 7 Watts & Serg. 415; Com. v. Harman, 4 Barr, 269; Com. v. Moslee, ibid, 264.

In J\Tew Jersey, new trials are granted upon the merits, in criminal cases, even by courts of inferior jurisdiction. In The State v. Parker, (1 Halstead, 148,) an attempt was made, as in The People v. The Justices, &c., of Chenango (1 John. Cases, 179,) to compel a court of sessions to proceed to render judgment upon a verdict of guilty, notwithstanding a rule for a new trial. The Supreme Court denied the motion for a mandamus, on the ground that the right to grant a new trial had been exercised so long, that, even if it had been questionable at the first, it would b.e inexpedient to deny it now.

“ In Kentucky,” says M’Lean, J., in The United States v. Keen, (1 M’Lean, 429,) “ new trials are often granted in capital cases. They are not reported, as such trials take place in the circuit court, and the right in the court to set aside a verdict of guilty seems never to have been doubted. And, indeed, this may be said of Ohio.” So, also, in Indiana. (See Jerry v. The State, 1 Blackford, 396; Weinzorpflin v. The State, 7 Blackford, 186. In Illinois: See Baxter v. The People, 3 Gilman, 368; Holliday v. The People, 4 do. 111; Pate v. The People, 3 do. 644.) In the latter case, the defendant, having been convicted of forgery, moved for a new trial, on the ground of newly discovered evidence, and also because the verdict was against evidence, and the circuit court having denied the motion, a writ of error was brought to the Supreme Court. Treat, J., in delivering the opinion of the court, said: “In criminal cases, motions for new trials rest entirely in the discretion of the courts where they are made and the propriety of their decisions in refusing them can not be reviewed in this court.”' In Iowa, it has been held that it is the duty of the court to interfere and grant a new trial where it thinks manifest injustice will be done by giving effect to the verdict; that the application for a new trial, when based upon the facts, is addressed to the sound discretion of the court. (Cook v. United States, 1 Green. 56.)

In Virginia, the question was thoroughly examined in the case of Ball v. The Commonwealth, (8 Leigh. 726.) The prisoner had been convicted of murder in the second degree. A motion for a new trial was made before the court in which the trial was had, but the judge, being of opinion that the power of granting a new trial was clearly denied by the principles and practice of the English law, and was not warranted by any statute of Virginia, or the authority of any adjudicated case, denied the motion. The case having been brought before the General Court, upon exceptions to the opinion of the court below, the judgment was unanimously reversed and a new trial granted, upon the ground that the evidence was insufficient to warrant the verdict. Fry, J., in delivering the opinion of the court, said, “Without deciding whether it is proper for this court to review the judge's opinion of the evidence, or that it was proper to certify the fact, we proceed to inquire whether it is in the power of the judge, in a case of felony, to grant a new trial after conviction, where he is satisfied that the evidence is utterly insufficient to warrant the finding. Having stated the English rule that a new trial can not be granted in any case of treason or felony, he asks, “ Is this principle a part of the common law with us, and are the courts of this state bound by it? We are all of opinion that it is not, and that our courts are not bound to follow it. It is believed that a contrary practice has long prevailed in this state; many new trials are remembered by some of the judges, and we think this practice is suitable to our constitution and laws and agreeable to justice and humanity.” The judge who had decided the case in the court below concurred in the judgment; and, in a later case, the court said, “Where the finding of the jury is clearly against evidence, or without evidence to justify it, it is the duty of the court to set the verdict aside, upon the application of the prisoner, and to grant a new trial. - ’(McClure v. Com. 2 Robinson, 790; sea also Grayson v. Com. 6 Gratt, 712.)

In North Carolina, a new trial was granted on the ground of newly discovered evidence in a case of perjury as early.as 1795, (State v. Greenwood, 1 Hay, 141.) “ Instances of new trials for felonies, in that state,” says Wharton, “ are frequent, on account of mistake of law or irregularity in trial.” (See State v. Miller, 1 Dev. & Bat, 500; State v. Barton, 2 do. 196; State v. Sparrow, 3 Murphy, 487; State v. Lipsey, 3 Dev 485.)

In South Carolina, a new trial was granted in a capital case in 1794, in a court in which Judge Rutledge, afterwards chief justice of the United States, presided. It is true, as was said by Justice Story, in The United States v. Gibert, (2 Sumner, 54,) that “ no point was made at the argument as to the power of the court to grant a new trial, and that it was silently taken for granted on all sides.” But it is also true, as is well remarked by Wharton, thatts the precedent has since been acquiesced in and enforced by a court, the learning and sagacity of whose judges forbid the supposition that they were ignorant of the existence of the English practice or of the consequences of overturning it.” (Wharton’s Am. Cr. Law, 374; see State v. Fisher, 2 Nott & McCord, 26; State v. Lines, 2 Bailey, 29; State v. Anderson, 2 do. 565; State v. Hooper, 2 do. 37.)

In Georgia, the right of the presiding judge before whom a conviction has been had, to entertain a motion for a new trial has never been questioned. When, in the exercise of his discretion, he has denied such a motion, it must be a very clear case of error in law,” say the court, in Jones v. The State, (1 Kelly, 610,) or a very naked, bald case as to the facts, which will authorize the court to control that discretion in a criminal cause.” (See also McLane v. The State, 4 Geo. 335; Roberts v. State, 3 Kelly, 310; Giles v. State, 6 Georgia, 276, Alfred v. The State, 6 do. 483.)

In Tennessee, new trials have been constantly granted in criminal cases when the verdict, in the opinion of the court, is not warranted by the proof. (Davis v. State, 2 Humph. 439; Kirby v. State, 3 do. 289; Bedford v. The State, 5 Humph. 552; Copeland v. State, 7 do. 479; Cochran v. State, 7 do. 544; so, also, in Mississippi, (see Kethler v. State, 10 Sme. & Marsh. 192.)

In Massachusetts, the question was thoroughly examined in the case of The Commonwealth v. Green, (17 Mass. 514.) The case was argued for the commonwealth by both the solicitor general and the attorney general. The opinion of the court was pronounced by Ch. J. Parker. His conclusion was, that the court had power to grant a new trial on the motion of one convicted of a capital offence, sufficient cause being shown therefor, notwithstanding the superior courts were supposed not to exercise such authority.

In Connecticut, the supreme court, in granting a new trial in The State v. Lyon, (12 Conn. 487,) which was a case of arson, said that the power to grant a new trial might be exercised, when the verdict was without evidence, or was manifestly against the weight of evidence.

In New Hampshire, a new trial was granted in a case of murder. (The State v. Prescott, 7 N. Hamp. 287.) The court said, “ No question of the right of the court to grant the prisoner a new trial has been raised upon the argument, nor have the court any hesitation upon the subject. The prisoner was entitled to a fair and impartial trial, and if, in any respect, this right has not been secured to him, God. forbid that he should be sent to pray of the mercy of the executive a pardon for an of-fence of which he has not been legally convicted..”

In Alabama, in a case which came before the court upon an application for a new trial after a conviction for murder, the opinion of Mr. Justice Story was relied upon in opposition to the motion. The court, after referring to the practice of the English courts, said, “ It does not, however, follow that it is against the principles of the ancient common law that the court should have power to grant a new trial where a doubt exists as to the correctness of the verdict. It would seem to be more consistent with the spirit of humanity which pervades it, that a new trial should be granted by the court, than that the prisoner should depend on the mercy of the executive.” (State v. Slack, 6 Alabama, 676.)

Thus it appears that in eighteen states the power to grant new trials in criminal cases has been asserted and maintained. I have not had access to the reports of the other states, but I nave no reason to believe that this singular uniformity of decision and practice has been departed from, in a single instance, in any other state.

The same doctrine is held, too, in the federal courts. It is true that in The United States v. Gibert, (2 Sumner, 19,) Mr. Justice Story has argued, at great length, to show that, where a trial has been regularly had, before a court of competent jurisdiction, upon a good indictment, and a verdict has been regularly rendered by a competent jury, the party can not be tried a second time. That distinguished judge thought the provision of. the constitution which adopts the maxim of the common law that a man shall not be twice put in jeopardy of life or limb for the same offence, presented an insurmountable barrier to a second trial, even upon the application of the defendant himself. But, in the same case, Judge Davis, though he concurred in denying a new trial upon the merit, dissented from that part of the opinion which denied the power to grant a new trial upon the merits. He was of opinion that the provision in the constitution was intended for the security and benefit of the party accused, and that, as such, it might be waived. One of the most eminent lawyers in the United States has denominated this opinion of Mr. Justice Story as “ an extra judicial dissertation of a single judge which has caused the whole disturbance of our criminal system in this matter.” And he adds, that it is a dissertation, “ not close in point of argument, and far from being either respectful or accurate in the consideration of authorities.” (United States v. Harding, 1 Wallace, Jr., 127, per David Paul Brown, arguendo.) In the latter case, three defendants had heen jointly indicted for murder; one had been convicted of murder, and the other two of manslaughter. They all applied for a new trial, which was granted, although the effect was again to expose them all to a conviction for murder. Kane, district judge, delivered the opinion, of the court. In noticing the opinion of Mr. Justice Story on the question he said: “ I am aware tl at one i f the most eminent of our jurists has found an inhibition in the constitution against the grant of new trials in cases involving jeopardy of life. But I can not realize the correctness of the interpetration which, anxious to secure a citizen against the injustice of a second conviction, requires him to suffer under the injustice of the first. Certainly I would not subject the prisoner to the hazards of a new trial without his consent. If, being capitally convicted, he elects to undergo the sentence, it may be his right, as it was to have pleaded guilty to the indictment. When, however, he asks a second trial, it is to relieve himself from the jeopardy in which he is already, and it is no new jeopardy that he encounters when his prayer is granted, but the same, divested of the imminent certainty of its fatal issue.” Again, he says: “Within the limits of this circuit at least, from the earliest judicial date to the present time, there has been no recorded case in which a new trial has been refused for the want of authority in the court to grant it.” He might have safely added, I think, that no such case had occurred within the courts of the United States, for the case of The People v. The Judges, &c. (2 Barb. 282,) had not then been decided. It is proper to state that Mr. Justice Grier, of the Supreme Co. rt of the United States, concurred in the opinion of Judge Kane, in The United States v. Harding.

In a case which occurred in the same district, at a very early period in the judicial records of the country, a new trial was granted in a case after a conviction for treason, Iredell, then one of the justices of the Supreme Court of the United States, presiding, Rawles, district attorney of the United States, and Sitgreaves appeared as counsel for the government. They conceded, in arguing, that the power to grant a new trial in a capital case could not be denied. (United States v. Fries, 3 Dallas, 515.) Judge Story, in noticing this case, admits that it is an authority directly in point, but he thinks there are circumstances in the case which greatly weaken if they do not impugn its authority. “ The clause in the constitution of the United States,” he says, “was not even alluded to, much less reasoned out. The court did not, in giving their judgment, in any manner speak to the point. The judges were divided in opinion as to the propriety of granting a new trial for the cause shown, but Judge Peters yielded and acquiesced in granting the np,w trial. Now, under such circumstances, it is not too much to say, that the court might have been surprised into the decision.” “ This, truly,” says the distinguished counsel whose name I have already mentioned, “ is to make trim reckoning of a judicial adjudication.” And I have only to say, that, if in 1795, judges and counsel like those in that case— men, all of them, of education and understanding, bred in the apostolic age of our country, and breathing the air of the constitution when it imparted every where its energy and spirit, could not, any of them, see, in that constitution, aught which touched the case before them, then that no such thing existed there; or, at any rate, it will not be given to either judge or counsel in these later days to discover it.

Mr. Justice Story himself, in the following year after the trial for piracy, reported in The United States v. Gibert, seems to have lost sight of his constitutional impediment in the way of a new trial in criminal cases, for, in the case of The United States v. Battiste, (2 Sumner, 240,) when arguing against the right of the jury to determine the law for themselves, he says, “If the court should err, in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the court may require.” Now, if, as the learned judge had so earnestly contended, in The United States v. Gibert, the constitution when it declares that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, means “ that no person shall be tried a second time for the same offence, where a verdict has already been given by a jury,” how could he say, as he did in The United States v Battiste, that if the court should err, in laying dovm the law to the jury, there was an adequate remedy for the injured party, by a motion for a new trial, or a writ of error?

In The United States v. Keen, (1 M’Lean, 429,) Mr. Justice. M’Lean bas most emphatically repudiated the construction of the constitution for which Mr. Justice Story so earnestly contends: “ In favor of life,” he says, “ presumptions arise which seem to relax, and in fact sometimes do relax the rigor of the law. But, in the construction contended for, this maxim is reversed. The prisoner is found guilty by the jury, and, whether right or wrong, he must stand convicted. He claims, under the constitution, a fair and impartial trial, and he shows gross prejudices against him by the jury who have convicted him on testimony wholly insufficient. But he is answered that the constitution protects him from being put in jeopardy a second time for the same offence, and that a new trial would violate this provision. In other words, the constitution guarantees to him the right of being hung to protect him from the danger of a second trial. Whatever may be said, theoretically, of such a constitutional protection, practically, the subject of it can have no very strong reason to appreciate it.” In The United States v. Conner, (3 M’Lean, 573,) the same judge granted a new trial in a case of perjury. The motion was opposed on the ground that the circuit judge had no power to grant a new trial in such a case, but the Gourt said the question had been considered and decided, and would not again be examined; that there could be no doubt that the court might, on cause shown, grant a new trial in any criminal case.

Indeed, upon the question of constitutional construction, Mr. Justice Story stands alone. Not a judge of any court in the United States has been found to concur in his views. Even Mr. Justice Strong, while he denies the power of the court to grant a new trial, does not venture to put his judgment upon the ground of constitutional prohibition. Our state constitution, like that of the United States, declares that no person shall be subject to be twice put in jeopardy for the same offence. (Const. of 1847, Article 1, §6.) Mr. Justice Strong, like every body else, except Judge Story, regards this provision as applicable to a case of acquittal. “ If the accused is acquitted,” he says, ” however conclusive the evidence may have been against him, the public are precluded, by a provision of the constitution from obtaining a new trial. Were it otherwise~if the constitution of the United States, or of this state, is to be regarded as prohibiting a new trial, whether the accused is acquitted or convicted — it is obvious that the provisions of the revised statutes authorizing the Supreme Court to review the decisions of a court of General Sessions or Oyer and Terminer, upon a bill of exceptions, are in conflict with this inhibition, and should be declared void. I-presume no one wo aid be found with sufficient courage to maintain such a proposition.

Mr. Justice Strong, in the case of The People v. The Judges of the Dutchess Oyer and Terminer, has drawn an argument against the power of the court to grant a new trial, from the fact that the legislature has seen fit to confer that power upon the Supreme Court, in certain cases, and omitted to grant it “in any other case or to any other court.” His inference is, that the legislature intended “ to adhere, in all other respects, to the common law rule.” But I can not subscribe to the soundness of this argument. I deny that the inference is legitimate. When the provisions of the revised statutes were adopted, the power oí the American courts to grant new trials in criminal cases had never been denied. It needed no legislative enactment to justify them in exercising this undisputed right. Courts proceeding according to the course of the common law, had been in the practice of granting new trials upon the merits, both in civil and criminal cases, as a necessary incident of their jurisdiction. But, as it had been found inexpedient to provide for a review of the decisions of the court exercising original jurisdiction upon questions of law in civil cases, so also it was thought that the protection of the rights of the citizen required that he should not be concluded by the law as declared by the court in which he had been tried, but that he might have a review upon exceptions and writ of error. It was a privilege to the party who had been convicted, superadded to the right he before possessed of applying to the court in which he had been tried for a new trial upon the merits;

I do not deem it very important to determine whether a court of Oyer and Terminer should be regarded as an inferior or a superior court, or whether or not it is a court of general juris» diction. I do not perceive how this question involves the power to grant a new trial. It certainly has power “ to hear and determine all crimes and misdemeanors.” It is the only court of original criminal jurisdiction that possesses such power. If a court is to be classified as superior, when there is no court of a higher grade of kindred jurisdiction, then the Oyer and Term-iner is a superior court. There is no court above it exercising original criminal jurisdiction; nor can this question be aifected by the fact that a judge of the Supreme Court, who is also a judge of the Oyer and Terminer, may by allowing a certiorari transfer the trial from the Oyer and Terminer to the Supreme Court. All that this proves is, that after the criminal action has been instituted, another court has concurrent jurisdiction with the Oyer and Terminer to try the issue and render judgment.

Nor can I see that the question is much aifected by the fact that the Oyer and Terminer is limited in its jurisdiction to crimes and misdemeanors committed within the county where it is held. The Supreme Court is undeniably a superior court of general jurisdiction, and yet the court in which Mr. Justice Strong sat when he laid down the rule that a superior court of general jurisdiction must have full cognizance of one at least of the principal departments of the law throughout the state, had not such full cognizance. It had no jurisdiction over any matter or proceeding pending without the limits of the second judicial district. This fact, however, does not tend to show that the learned judge was not then presiding in a superior court of general jurisdiction. He was. The court was not the less a court of general jurisdiction, because, in territorial extent, its jurisdiction was not coextensive with the state.

Upon authority, I regard the power of the court to grant a new trial as established beyond all possible controversy. But if the adjudged cases had been found conflicting to such an extent as to require that general principles should be resorted to, I should have no hesitation in pronouncing in favor of the power. Where the court is satisfied that injustice has been done upon the trial of a civil action, it will not. hesitate to set aside the verdict and order a retrial. The most obvious principles of common justice require it. .If this should be done when the action only involves the right to land or money, how much more when liberty or life itself is at stake1? To refuse, in such Cases, to allow the defendant the benefit of the same principles which are applied in civil actions, is to deprive him of a legal right; to deny him a fair and impartial trial. It is but a pitiful substitute for the court, conscious as it may be that great injustice has been done by the verdict, to say to the accused that he can not have a new trial, however well he may be entitled to it, but that he must apply to the executive for pardon, adding, perhaps, in the language of Mr. Justice Story, that the court, if conscious of any serious error, would cheerfully aid in the application.” To address language like this to a man unjustly convicted would seem like mockery of his wrong.

But suppose that even though the court, “conscious of serious error,” should “ aid in the application,” the executive should refuse to pardon? Is the prisoner, though unfairly tried, and perhaps innocent, to be hung? Is he, though it is seen that he has been convicted through the mistake or misapprehension of the jury, or perhaps under the influence of passion or prejudice, to endure the penalty of crime without redress? It may be said that I am supposing an extreme case. This may be so. It is undoubtedly a rare thing for a jury to convict against the weight of evidence. Mr. Justice Strong says, in the opinion to which I have already had occasion to refer, that in a practice of twenty years as public prosecutor, he did not recollect an instance. It is possible that the learned judge might have thought otherwise, had he looked on from a different point of observation. It will be admitted that such cases may happen, and this is enough for my purpose; upon such a question extreme cases may well be supposed. Again, I ask, what is to be done where such a case does happen? The court believe the accused innocent, and yet the jury have pronounced him guilty. The executive certainly is not bound to interpose for the relief of the court. Its office is, not to reverse unjust decisions, but to remit punishment due to the guilty. The very idea of mercy implies guilt. An innocent man needs no mercy Let him but have justice and he is safe. A pardon, therefore, is not the appropriate remedy for an erroneous or unjust conviction. Justice can only be effected by granting a new trial. The power to set aside such a conviction is, therefore, indispensable.

• The question whether a motion for a new trial in criminal cases ought not to be entertained has become the subject of discussion even in England. Commissioners appointed to revise the criminal laws, in a report recently made to parliament, an extract from which maybe found in Waterman’s edition of Archbold’s Pleadings, (vol. 1, page 177, note,) have expressed a decided opinion in favor of a modification of, the existing law on this subject. “ It appears to us,” they say, that the law of England is at present very defective as regards the means afforded for the correction of errors in criminal proceedings. And especially such as are frequently, and indeed are almost necessarily incident to the trial by jury. In this respect, indeed, the law is inconsistent in entertaining the motion for a new trial in some instances, and denying it to others, without any adequate reason for the distinction, and is thus faulty, either in denying a new trial where it would be consistent with justice to grant one, or in granting a new trial where it ought properly to be withheld. We can not but observe that the distinction made between indictments for felony, and those for misdemeanor, is one not warranted by any intelligent principle.”

Again they say: “Looking at the nature of the inquiry, it is quite as likely that error or mistake should occur in the investigation on a criminal charge, as on that of a mere civil claim. As regards the consequences of error in the one case and the other, it can not be denied that a failure of justice in a criminal case, where it may concern not only properly, liberty, but even life itself, is of much more serious importance than in civil cases, where a mere question of property is concerned. The law in this respect is at variance with itself, and several evil consequences naturally result. Great mjusth <■ m often done to an innocent party who, but for the technical rule, would entitle himself to a new trial, for it can not be doubted that cases not unfrequently occur, when the convict is either altogether innocent or not guilty of the aggravated offence charged.”

Convinced as I am that the inconsistency of which these commissioners complain never found its way into the criminal jurisprudence of the United States, and that the power to grant a new trial for the purpose of correcting errors or mistakes either of the court or jury, is as clear and undoubted in criminal cases as it is acknowledged to be in civil actions, it is only necessary to inquire whether we have before us a proper case for the exercise of that power.

Both parties to the transaction were respectable. The defendant at the time of the trial was supervisor- of the town in which he resided, and the father of the prosecutrix was a magistrate of the same town. The prosecutrix herself, at the time of the alleged offence, was but sixteen years old and the defendant about twenty-five. They had attended a party at the house of a neighbor, and the prosecutrix, upon the invitation of the defendant, rode home with him on horseback. The house of her father stands some fourteen rods from the road. The pro-secutrix testified that when they reached the gate or bars the defendant hitched his horse, and they went towards the house together, the defendant having his arm around her waist; that after they had proceeded a short distance, the defendant proposed to her to go aside from the path, but she declined, saying she was going to the house; that he then pulled her a few steps aside from the path, and, with his arms around her waist, laid her upon the ground, and then had connection with her. She made no outcry, nor did she pretend that she made any resistance. She stated that she told him to let her go, and that she tried to get away; that after he had raised her clothes and lay upon her person, he put his mouth upon hers; that she made no outcry before he did this, but she did halloo once before she left the ground; that she was not upon the ground to exceed a minute. The prosecutrix was herself a strong, healthy girl. The family, consisting of her father, two brothers, and a lad sixteen years old, together with several females, were m the house at the time. They were in the front part of the house where a light was burning.

To constitute the crime for which the defendant was tried, there must be an unlawful and carnal knowledge of a woman by force, and against her will. There must be “ the utmost reluctance and the utmost resistance. It was well said by Cowen, J., in The People v. Abbott, (19 Wend. 192), “ a mixed casé will not do. The connection must be absolutely against the will.” In this case there was no great inequality of strength between the parties. The prosecutrix, if she was the weaker party, was bound to resist to the utmost. Nature had given her feet and hands with which she could kick and strike, teeth to bite and a voice to cry out; all these should have been put in •requisition in defence-of her chastity. I can not see that any thing like this was done. The- girl herself does not pretend that she made any physical resistance, and, according to her own account, the only outcry she ma-de was after'the offence had been committed. No marks of violence were left-upon her person, and she did not disclose what had occurred until several days after. It was proved, too, on the part of the defence, that the sister to whom she made the disclosure, had said that she did not suppose that the prosecutrix would ever have told what had happened if she had supposed the defendant could be hurt for it. Upon, a state of facts like this, I can not concur with the jury in pronouncing the defendant guilty of a rape. He may, indeed, be guilty of seduction, an offence-kindred in morals, but by no means the same in law. The verdict is not sustained by the evidence, and a new trial must be granted.