The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-21

higher court, it was provided in all cases, that the
the judgment, or Of the sentence thereon, when
there express direction therein that it should
operate as stay. Thus q harmonious system
va vas adopted BY which the prisoners right to have
his case reviewed was cured to him; delays on bis
part were provided against, and ample time for
such review was provided for. The act Of the
judge, complained Of in this case is that while he
thought in the exercise OF the discretion vested In
him, that the case was proper one for review, he
provided the time necessary for that purpose, by
ordering the execution Of the sentence to be stayed
until the decision Of this Court on suoh review;
The section authorizing judge to order stay Of
proceedings, In terms applies to all criminal cases
where writ of error is allowed, and the prior sec
ton prohibiting the interference of any officer, ex-
cept the Governor in the execution of sentence,
seems to apply to all case, of reprieve suspen-
sion in a capital If the two provisions are in
conflict with each other, then the which have
ast named must yield to the Other because prior
rule tnat the last expression Of the Legislature Is
supposed to best declare its intention But if they
can be so construed, as to allow both to operate,
and they do not necessarily conflict, such construc
tion must be given to them as will allow full force
to both The two sections may, it is true, be made
to conflict by certain construction, but they do
may be SO construed that both may exist harmo-
niously together. Full aliment may be found
for both. Thus, if the section which forbids
the interference OF Judge, is confined to cases
\
poses ether than q review Of the case in
higher court, and the section which allows him
to grant stay of proceeding, s confined solely to
cases where such review is sought they can exist
with the whole system There will then be left
with the judges that which is conceded to them in
all other cases, civil and criminal, tho power,
namely; to stay proceedings until o review can be
had In higher tribunal; and there will be left to
the Governor his full power to pardon, suspend, or
repreve execution This construction is COM
cd IN ia Ia orI 49,
well settled rules Of construction to enactments
apparently conflicting, but by the difficulty we
encounter in finding any reason why the statute
should exempt oapt al cases from q rule which ap-
plies in all other imaginable cases, civil or criminal
important uncomfortable. But there are still
other considerations. In these cases the court
before whom the trial is had may suspend all pro-
ceedings after conviction provided they do so before
they pronounce sentence, and for the purpose
of having the case reviewed What good reason
can be found for denying the exercise Of the
pronounced Again, If the Judge who presdes at
the trial should refuse to allow the writ of error,
his decision is not fnal but another Judge may allow
IL. Of what use would that be in capital case, II
the proceedings could not be stayeda The allow
of the writ, which would be, in effect, certi-
fcate by judge of this court, that there was pro-
badly error in the conviction, would, in such an
event, be the Sruslsst mOcke5y, and the writ be
carried still further, by rejecting moment on the
state Of things which existed when these statutes
were enacted. 1t was Circuit Judge who presided
at the Oyer and Terminer. He might think there
was no error or doubt in the case, and SO refuse
either to suspend the judgment, or allow writ of
error Yet, the Chancellor, or Judge of the Su-
preme Court, might think there was error, orat least
doubt and allow the writ of error. Yet according
to the construction commended for, he (he superior
ofcer) would be obliged to leave the prisoner for
execution, with that d0ubtor error hanging around
the case, because the inferior officer had said 80.
There is another consideration to be regarded.
Although writ Of error did not, from its nature,
operate as stay Of proceedings yet il had so often
and so generally been clothed with that attribute
ton, and incorporated into our law, that at the
time of revising our statutes, 1t generelly sup
posed it would SO operate per Sc The revisors so un
derstood it, and hence the enactment is, not that
judge may grant stay, but that no writ Of errer
shall operate as such unless 1t contains In 1t d.
recton to that effect So that but for that restric
tion when the statute gave writ Of error in cri-
mnal cases, it would, in the then prevailing opin-
ion, be Of itself stay and the repreve or suspen-
sion Of execution that might thus be worked out,
would be, not by the direct interference Of "any
court, judge or other officer" but by the very ma
ture and Office of this high writ. Again, the sta
tute has made another very important distinction be-
tween wrts Of error In capital and in ether cases. In
all cases, not capital the writ may be allowed by any
County Judge, Recorder, and Supreme Court Com
missioner ndwthout notice to the public prosecutor;
but in capital cases only BY the Chancellor, Judge
Of the Supreme Court or Circuit Judge, the high
est Of our Judicial officers, and then only after mo-
Why this distinction, ifthere to be stay ofex
ecution! Why was the allowance Of the writ Of error
confined to those officers who are alone trusted by
the statute With the power to stay proceedings
And why, above all, this care and caution about q
Wi. Of error, which, when unaccomp Anied by q
stay ofproceedings, would become 80 illusive and
nugatory In fine, the granting Of pardons and
repreyes, and suspending execution in criminal
cases, provided for in one Of these sections now,
under existing constitution and laws, purely
executive power, and Is con6ded to the Governor
alone; and the staying proceedings upon q judg-
nent in either civil criminal case, for the pur-
pose of enabling party to enjoy fully the benefit
Of the review which is secured to him, is purely q
judicial power, which has always been exercised by
the courts, ard cannot be abandoned without sub
jecting to great peril, the important interests
fded TO and passed upon in them. We are, there.
fore, Of opinion, that this motion must be denied.
The District Attorney then said-Now, II your
honors please, move that we 60 on with the ar
gument on the bill Of exceptions.
Mr.. II. l.. Clinton wished IL to 90 over until
Tuesday morning, that he might have the oppor-
tunity Of comforting with Mr.. Jordan.
The Court decided that IL should be the frst case
taken up on Tuesday (this) msrning.