Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1861-02-20

tuc pfdCllCe IN tue CdSe before us Was
cortormable to this state of the law
Judge Lynn tells us in the extract have
made from the paper-books, that the
jury were not imprope 'ly sworn but the
paper books do not contain the full opin
ION. On Ieie.ing TO 'the rolls" ] find
the paper which contains his state
ment of facts, is entitled in the motion OF
arrest of Judgement and for new trial,
and at the end of it note of the defend
ants exception, and formal bill. duly
signed and sealed by the Judge. This is
followed by the clerks certificate under
seal, that this paper was filed of record,
and 1t is certified 10y two of the judges in
return to our writ of error, as part of
the al record and proceedings in the
cause.
Now submit, that in view of7ahe hese
facts, it is not possible for us to say with
truth, that the circumstances attending
the swearing of the jury, are not on the
record. We may say that they are unimp NJ
taDt, or Improperly cn the record but we
cannot say they are not .judicially before
us. 1t may be granted that Judge Lyon
might have refused to place them on the
rccord-tha he might have said he would
not entertain The defendants exception,
and seal bill at so late stage of the
trial, but he did not. On the contrary,
he noted The exception, and sealed the
bill, and filed the paper Of rec ord, "as in
civil cases." and now we must rcpe Il
Act of 1856, or treat that paper as part OF
the record. Shall we say that we will
disregard the facts, because the Judge
ought not to have sealed tho oill? | sub
nit that we have no right 10 disregard u
bill of exceptions duly sent up. But on
what ground would we reject it five had
the power?
The Act of 1856 does not prescribe at
what time durin the trial bills shall be
sealed, and though they are generally
and regularly sealed as soon rs the judge
decides, yet ifhe allows them afterwards,
we have nothing to complain Of for the
only consequence Of their being out of
time is, that he was deprived OF al op.
/ portunity 10 repair his mistake himself.
I But where, US here, the matter of the the
; exception was direction" Of the Judge,
with which it woald have seemed impec-
tinent for the prisoner to interfere ut the
very beginning of his trial for life, it is
carrying harsh justice very far TO say that
an exception is too late, which i, made
the instant the judge decides on the le-
gal OBJECT of his direction" II were
better TO say that that was the suitable
! time to except.
But the question then before the court
was, whether the judg mcnt should be
arrested and a new trial granted. What
o. that? The facts could be, and were,
brought upon the record as eilectualIy at
that stage of the proceedings, as at any
other. IL is trae We do no. reverse
courts for granting new trials and why1
Not because the facts upon which tho
motion isgrounded, may not, If the Judge
chooses, he placed upon the rec r !, but
because motion for new trial is an up-
peal to the discretion of the court, and We,
as an appellate court, do not review exer.
cises of judicial discretion, bat cnly judg.
mcnts and decrerS. When a court renders
a Judgment, or decree, it is supposed to
express, not the discretion Of Tie Judge,
but the mind of the law--when judicial
discretion is exercised, it is is indeed,
regulated to some extent by legal princl,
pies, but it rests for its ultimate iouuda-
tion, on the Judge view OF what is fit,
convenient and just. Aud as the legal
principles which regulate his discretion
are all for himself to apply, it is apparent
that the decision can be nothing at last
but the expression of his dircreIion. and
as such II is not renewable.
But besides the motion for new trial,
there was motion in arrest of Judgment,
and the disposition of that motion was no,
a matter Of discretion, but the overruling
it was itself a legal Judgment, which ap.
pears of record. With facts before him,
which he has now placed before us. the
learned judge decided that the judgment
should not be arrested and new trial
granted.
Passing on the same facts he did, hold
that judgment erroneous. lie ought TO
have arrested the judgment, because he
had no jurisdiction TO enter it up. lie
ought to have arrested the judgment or
granted new Trial, because he had not
giyon the prisoner trial according to
law. This is Judging the record 10y itself
strictly, as strictly as any casuistry which
is itself legal, can demand,
Nor is there any thing in either JEWELS
Case, 10 II. 81, or that oi Fife VS.. Jones 5
Casey, 429 to require such excessive dsu.
ia on our part as would ignore part of
the record. There are somo oxtrayagant
dicta in the former OF these cases, but they
car have no application to a case which
comes up under TIE Act of $780, for the
Act was not passed until three years after
that case was decided. These dicia may
indeed have been among Tue causes which
moved the legislature tc the enactment
On some points, the case Of Fife VS. Jones
i. very questionable law, bot on the points
have discussed in tins opinion, there is
nothing in it inconsistent with what |
have advanced.
Ny ground is, then, that the court dec-
ded that the novel mode of swearing the
Jury was sufficient in law, and placed that
decision with the facts OF the point on the
record, in the usual manner ofproceeding
under the Act of lS56--that decision so
pronounced and enrolled, is erroneous.
and ought to be reversed but.in,tsad OF
arresting the judgment, would award
the prisoner new trial.
| have views about the proofs and the
4. r Al a. ,.,ls Ill III a.