The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-12-20
= e = 7 Aw co y = = 3.

Supreme Court.
oPMioN OF JUDGE MITCHELL ON PIE LReAL CUES.
floNs Arising IN THE CASES OF CLARK AND SUI
Ts People %. Clark, Tas People -. Suuipsu-Judgs
MischeLErhe prisoners in both these were tried
At the eyer and Teruiner and found guilty Of murder
The Jusgs who ssdsd ct the trial charged the jury
to ths meaning of the statute defining murder; the
~. :. was brought !: III. court TS oeur
DSenounsed the charge VI the Judge eronsous and In
May last, ordered trial In pursuance OF statute
" review judgment and the Court Of Appeals has
reversed judgment and affirmed that Of the Oyer and
NAMED in prison except whom they have bsea Ssought
before the Oyer or Tsrminer this Court They are
nsw brought before to sections 2a and "A
Of r. $50, the District Attorney missing that the
sentence Of death remains in full and that legal
exist against the execution Of the sentence and
eang the Court 70 issue warrant fer the execution
The prisoners by their counsel insist in opposition 70
ths motion that the order Of this Court granting new
hiai remains In force and assign various reasons sn
jurisdiction Of tho case when their decision was made
The prisoners counsel very properly reainsd from I'D
sison Of the higher Court the point whish that
Court and this offered II the appellate Court had
when RENTED 70 this execution became the
law and judgment Of this Court by virtue Of the higher
sstAe1ity q that Court and . We would have seen
TO the judgment Of thir Court, while It remained
vsrsa bound to receive the Judgment Of the
sioa when that Court has decided within it, jurisdiction,
whatever may be individual opinions But the qnss
on whether the Court Of Appeals had jurisdiction ~:
very properly argued befose 1t may BE- admitted
that appellate Court. and especially Tn the words Of
Oh Aasha tba. the Court Of dsrnier resort IN every
State decides upon Its own ursdictoD" u Peters u
H. s3O) but in this case, the question pre.ented
whether in criminal where the punish u to b
t. Hs s.v
tbst court and 80 that court did net decide upon it,
swn jurisdiction in that respect" The question: tdsreor
ysNains open. Certainly there In which 1t
would Se plain duty to pass tueh question: and
H. IN any should hesitate 20 fulfil that duty
1t would DO when tbs iaw directs to aoertain whehsr
" stands In full force" asd whether any legal rsa
rops exist sgs1st the execution Of such sentence "
II the act Of March ~, 1864, giving the Court OF
Appeals jurisdiciion in such case, had not bsen
passed, then. according to its own decision in the
iurisdicton and i.s decision consequently have
Of Authority aud 1t sould have eeea Inc daty Of
sns soar. no, 20 car, ou. s ~ -. asa had
recalled that decision had the poser TO do 70; but
there evidence that had examined It, or pro-
fessee TO ON the question Of It's Jurisdiction again,
the be that question had been
ovsHeoked rather tbsn that the court had indirectly
reyensa made directly the point
The Supreme Court OF the United States where 1t
jurisdiction much above the Court Of Appeals a that
court 10 above tkis yet the writ OF error had issued
the et 1863. from The Uned States Court to
this court the United states Court had pronounced
the judgment that the Court Appeals has this
would have right to obey It, as the supreme
Oourt can issue its Of only cases and
then the highest of law equity Of the 6csts
highest Nor wsud that the hghcat tribunal Of
the ssuAtry dsspprovs of such In tbs Of
Bsv against PsIkard that court decided that tbs Judg
Of the Court for the Correction OF Errors
and sontended that tbs Judgment of the Court
for the Of Errors in this State be reverted and
that the cause renanded Court for the Coreo
ton Of Errors with directions to conform its to
that opinion e Peters U. s. r. 32l) The Court OF Err
evadd conforming its judgment to tnat opinou by
anBouneipk IN its jLdgSeu the opinion OF the United
States Ocuit and then declaring that the Court Of Err
had jurisdiction to decision Of our su
the witt Of which had Issued thus in effect,
lef the judgment Of tbs Supreme Court In full
force The Unittd States Court recognizing the princi
pie that the Of derner resort In the Se, could
concusvey judge of its jurisdction yielded to is
decision and affirmed this last Judgment Of the Court Of
ErreH By this dccnon of toe highest court Of our
6tate decision needed that point, there
where has juIisdc.ion and that decision is
anrmts BY the highest triSuna! In the Union 10 The
OAKLEY W Aspinwsn q Comst $50 when that court
vasatea Its svn Judgment Of reversal because one men
bad right {, sit there account of being distantly
rsssd to one OF the parties although the counsel who
It admitted and proved that the prisoners we're ct no
time before the Court Of Appeals and the record shows
m.n a. csur Il tsss tSs ;usameUt Of tn.
Court he reverted and that OF the Oyer and Terniner
Ill things affirmed and that the record be remitted 70
euprs Court order that this court may direct
the Of deah to be executed The cases state,
most decidedly, that corporal punishment can -
lawfully awarded the In the absence OF the prf
soner whether they mean that the judgment awarded
In his sbscnce would be erroneous merely, without
jurisdiction, is neutral question In nons 4es the
and desired TO discharge the prisoner ON some cor
poreal punishmept, A. he was too poor to pay fine
n ss.:ai.m and imposed fss Of one shilling The
Of Rex against Harris and against Duke In ,,
Rnlsn ILL., IL reported In . number Of a9tnorMe y,
the sbsnce Of the party after he ouawsd In Holt
sss J, Holt il reported to have saidE"Sir samuel
Astny tells there writ to the snerin 70
take any that ut large and to put him in the
pillory Therefore. think We cannot give any such
ssssu.s We him to tho
fhal and entry IL the roll that the marshal do ex
ecuton pe,cuio inenDbente And We we're to SEND him
int eoneretshe there s to be writ Of assistance 70
the sheriff but II he from Newgate hither, then
be be rsnanded there goes indeed writ to the sheriff.
are that there was no writ known after judgment TO
bring the prisoner before the officer Who was to exc.
cute the judgment and that Il such writ issued at not
bringing the party into but before the officer
only the person taken would have no opportunity to
show that he not the ~ho by the Judgment wns
to be- punished These would mot exist In an
appellate court which the sentence to
b executed. but to devola that responsibility on
the court below. c. J. Hot sdded 9 / never knew
corporal pun en unless the party were
present except in the Buckrdge, which was
irregular" In the case Of Duke, he said" Judgment
be given against in his absence for cor.
porsal punishment BE mu o. present when 1t u done
II man was outlawed for ebony execution was never
awarded against the eon til brought TO the bar There
is precedent Of any atry for il give judy
men that be should be pa she pillory 1t might b
demanded when; and the spswsr wonid be, whsn they
catch him And there writ to take man
snd put him in che pillory lie not like to cspiss
fms which to bring him i court TO pay the money
A defendant may submit ~ fn though absent, II he
has clerk In court that - undertake for the hne )"
The opinion is given to tn. anne efse; in Lord Rsyn
2e7, l sslk, 400, and skinner 684 Combrobaek,
az and IL; More 1866 and section Haak. pl err oh.
IS and H. and Bsrbour's Criminal Law The difficulties
here like character those before noticed,
and Do net apply court which not to awsd the ex
ecution merely to order another court to award It.
In Sslk 5s Queen Templeman, 1t was again said
that when IL to receive any csrpore punishment,
judgment cannot be given against him in his ABSENCE for
there process to take and put hi a In the po-
ry. In Rex Ham end Price e Burr, 1881 1t was
~ that nns only to be imposed It was In the
discretion Of the court to give In the absence OF
the dsfsn6ants but otherwise they should be present.
And 1t said that hns to be imposed and
the Of nature the defendants should ap
pear person. for the sake Of example and to prevent
the like offences being committed BY others - the
notoristy Of THAR beiBg called up to snswer
oriminaly fer sach offences would very much
oondace to deter others from venturing TO com
NIT the like. Tbess reasons also only apply when
the sentence s about to be executed Chity In his
Criminal Law Go5 when oorporeal puuinhment