The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-12-20
3z \ LAW couR 3.

oBnsIsN OF JUDGE MITCHELL ON PIE LEGAL oUss
fIoNs Arising IN THE CASES OF CLARK And SUI
Tbs People %. Clark, The People o. SulIvsn-Judgs
Hische-rhe prkoners in both these cases tried
e the eyer and Ternnsr and found guilty ef murAsr
70 the meaning Of the statute defining murder; the
prisoners BY their counsel excepted the charge and
Dyenounssd ths change q the Judge srensous, and i.
May last ordered trial In pnrsuanse Of statute
passed in the preceding March writ OF brought
review judgment and tho Court Of Appeals has
reversed uogmsAt and affirmed that Of Oyer and
Tsrnines Daring all this time the prisoners have 70
NAMED In prison except when they have been thought
before the Oyer Tsrminer or this Count They are
nsw brought up before to sections 23 and
Of n sos the District Attorney missing that tn:
exist against the execution Of the sentence and
calling On the Court 70 issue warrant for the execution
The prisoners by their counsel. insist In opposition 70
this motion that the order Of this Court granting new
tal remains in force and assign various al in
tended 10 show that the Court Of Appeals had not gained
jurisdiction tho case when their decision made
The prisoners counsel very properly rerained from sd
dressing to the Court single against sAs ds
Court and this offered: II the appellate Court had
uriidisen its dseson became the law Of the cass and
when reted this Court for execution, became the
judgment Of this Court by virtue Of the higher
authority Of that Court and ~ We would have bssn
to the juds OF th Court, while It remained
vsrsta bound to receive the judgment Of the
ton vSsn that Court has decided Within it, jurisdiction
Whatever may DO indivdaa opinisns But the qass
Mon whether the Court OF Appeals had jurisdiction,
that appellate Court and especially In the words Of
Oh Marsha that the Court Of dsrnier resort every
State decides upon Its own jurisdiction, q Peters, u
r. 830 but In this case the question new presented
whether In criminal where the punish uen II to be
ee.gorss any court he. ursdi,ea over the prisoner
tbst COURT and that did net decide upon its
svn jurisdiction in that respect" The question thsreors
RENAME open. Certainly there In which 1t
would se plain duty TO pass fush question: and
H. IN any should not hesitate 20 fulfil that duty
would be when tbs Law directs to aosrtAn whethsr
the sentence Of death against individuals still
stands in full force" asd whether any legal rsa
FOE: exist against the s1sSnslo. 2. suGa Sentence
Appeals jurisdiction in such = case, had not bsen
passed, then. according to ito own decision In the
People " Corning q Comst %, 1T would have had no
jursdiction is decision would consequently have
been Of Authority aud would have BEEN Inc duty Of
this court not to carry out Its dsctien 80 msds. II,
howe profess exsriuaon OF thst It had
recalled that decision IL had the poser TO do 70; but
there were NO evidence that had re- pro-
fesse0 pas the question Of jurisdiction again,
hs fair inference would be that that question had bean
ovsHeoked rather tbsn that the court had indirectly
ts deberAt decision made rectly The point
The Supreme Court the United States Is where 1t has
jurisdiction much above the Court Of Appeals as that
this; yet If the writ OF had issued
anos the oct 1862 from The United States Court to
this court the United states Court had pronounced
the tams that the Court o. Appeals has thus
court would have right to obey It. as the Supreme
Court s silt Of only in certain and
then 70 the highest court Of law equity Of ths scsts
in which the decision nadeo ana not 70 any but the
highest csar Ner would that the hgheat tribunal Of
the country dsspprovs Of such course In tbs case Of
Of the Court for the Correction Of Errors
and sontended that ths Judgment of the Court
for the Of Errors In ths be and
that the be remanded the Court for the Correo
ton Of Errors with directions to conform its judgment to
that opinion Is Peters, U. r. 8sl The Court Of Err
ansouseips in its ccge the opinion Of the United
States Ocuit ana then declaring that the Court Of Err
pxsns Court for in fact and therefore qusshed
the wit Of which had issued and thus In effect
1 the IRE judgment Of tn. Supreme Court In full
pie that the Of dernier in the State could
eoncusyey judge of its own yielded to is
decision and affirmed this last Judgment Of the Court Of
ErrsSs By This dccinon OF toe highest court Of our
state decision needed that point, there are
where has jurisdicon and that decision is
affirmed by the highest tribunal in the Union To the
effect 10 the decision of the Court Of Appeals in
0a.:, " =. A,Rinrsn g oonst sas when that soat
her Of the csurt bad sat ct the argument Who BY law
had no right :, sit there account Of being dtanty
mevsd the judgnsnt requested him to sit
It admitted and proved that the prisoners were ct no
that they appeared there BY their counsel The judg
ment Of that court Is that the judgment Of the supreme
ali thiDrs affirmed and that the record be remited to
the euprsms Court In order that this court may direct
"a: !. ds: . 20 Pc o.n g.
wfuy awarded By the court In the absence OF tbs pr
.oner Whether they mean that the judgment awarded
In his absence would be erroneous merely or without
jurisdiction, Is . neutral queetion In Lott 100 the
court was informed that the crown inclined to mercy
and desired TO discharge the prisoner ON some cor
They said they could net award corporeai
N .ss.p and imposed nm: Of One 'h nas Ins
william ILL., II reported In numser OF antnorties.
Then the court called to pronounce judgment in
D ae9 J. Holt 10 reported to have said"Sr Samuel
Astny tells me there never was writ TO the sheriff 70
pillory Therefore. think We cannot give any SUCH
In the absence Of the party which cannot be
executed he be in court we deliver him to tho mar.
shal and entry il the roll that the marshal do OK
ccuton pesicuio ineunbente And We to send him
int soneretshIe there to be writ Of assistance 70
the sheriff. but If be came from Newgate hither, then
he be rsnanded there goes indeed writ to the sheriff.
hut then de PERSONAL The difficulties here stated
bring mp the prisoner bsors the officer Who was to
cute the judgment and that il such writ issued lit not
bringing the party into consc but before the Scss
show that he not the ~ho BY the Judgment was
to bepupihea These objections would not exist in an
b executed. but to devora' that responsibility on
the sourt below. G. J Hot sdded : never knsva
corporal pun en unlees the party were
present except in the case ,s Buckrdgs which was
irregular" In the case Of ilake, he said" Judgment
cannot he given against Any in his absence Tor cor
poreal punishment BE mu oe present when 1t u done.
II man outlawed for ebony execution was never
awarded against the eon M nrcught to the bar There
is no precedent Of any soeh atry for il we give judy
that he should be pue i the pinory- 1t might b
demanded when; and the apAwer would be wAsn they
and put him in the pillory Il is not like to ospiss pre
fms which to bring him court to pay the money.
A defendant may submit ~ hni though absent II he
has clerk In court that 81 undertake for the hne :"
The opinion s given to the cec. in Lord Rayin,
2e7, l eslk, 400, and skinner, 6S4 Combrobaek,
az and IL; More 1866 and section q Hank. pi oh.
40 and H. and Bsrbours Criminal Law. The difficulties
here stated VI like character 10 those before noticed
and DO net apply which not to awsrd the
ecution but merely to order another court to award It.
In Salk 5s Queen Templeman. 1t was again said
that when man IL TO- receive any csrpore punishment
judgment cannot be given against him in his ABSENCE for
there s no process to take and put hi In the po
ry In Rex Ham and Price e Burr, 1852 1t was
agreed that nns only to be imposed 1t in the
discretion Of the court to give Judgment In the absence Of
the defend but otherwise they should Be present.
And 1t said that hns to be imposed and
the Of nature the DESCENDANTS should ap
pear person for the sake Of example and to prevent
the like offences being committed by others - the
notorty Of thar being called up to answer
oriminaly fer snch offences would very much
oondHce TO deter others from venturng TO com
NIT the like. There reafons, also, only apply when
the sentence s about to be executed Chitty In his
Criminal Law, p 6e5 when any corporal punishment
n to be inflicted the defendant It Is absolutely necec