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

writ Of error.
The practice in the case before Us was
coulormable 10 this state Of tho law
Judge Lynn tells usin the extract | have
maGe from the paper-books, that the
jury were not imprope 'ly sworn but the
paper.bC oks do not contain the foil opin
ION On referring TO "the rolls" ] find
the paper which contains his state
menL of facts, is entitled in the motion OF
arrest Of judgement aud for a new trial,
and at the end of il n note Of the defend
ants exception, and Il 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 it is certified by two of the judges in
return to our writ of error, us part cF
the "record and proceedings in the
cause.
Now | submit, that in view Of these
facts, il is not possible for Us TO say with
truth, that the circumstances attending
the swearing Of the jury, are not ON tho
record. We may say that they are unimp}r-
tRnt, or Improperly On the record. but "e
cannot say they are not judicially before
las. 1t may be granted that Judge Lynn
might have refused to place them on the
record that he might have said he would
not entertain the defendants exception,
and seal a bill at so late stage Of the
trial, but he did not. On the contrary,
he noted :he exception, and sealed the
bill, and filed thepaper of record, "as in
civil cases." and now we must repeal
Act of 1856, or treat that paper as part Of
the record. Shall we say that we wilt
disregard the facts, because the judge
ought not to have sealed the oill? sub
nit that we have no right to disregard a
| bill of exceptions duly sent up. But on
what ground would we reject it If we had
the power?
| The Act of 1856 does not prescribe at
what time durn the trial bills shall be
sealed, and though they are generally
and regularly sealed rs soon as the Judge
decides, yet ifhe allows them afterwards,
we have nothing to complain Of. for the
only consequence Of their being out OF
I time is, that he vas deprived OF an op.
portunity 10 repair his mistake himself.
+ But where, as here, the matter of the the
! exception was direction" Of The Judge,
with which it would have seemed imper-
tinent for the prisoner to interfere at the
very beginning of his trial for life, it is
carrying harsh justice very far to say that
an exception is too late, which is made
the instant the judge decides on the le-
gal OBJECT of his direction" 1t were
better 10 say that that was the suitable
time to xcept.
But the question then before the court
was, whether the judg ment should be
arrested and new trial granted. What
o. that? The facts could be, and were,
brought upon the record as eDectual!y at
that stage Of the proceedings, as at any
other. 1t is trle, we do no. reverse
courts for granting new trials and why !?
| Not because the facts upon which tho
motion is grounded. may not, if the judge
chooses, he placed upon the rec r !, but
because a motion for new trial is All 0p-
| peal 10 the discretion of the court, and we,
as an appellate court, do not review eXer.
cises Of judicial discretion, but only judg.
ments and decreeS When u court renders
| Judgment, or decree, it is supposed to
express, not the discretion of the judge,
but the mind of the law--when judicial
discretion is exercised, it is is indeed,
regulated to some extent by legal pTinci'
piles, but it rests for its ultimate iounda-
ton, on the judges view of what is fit,
convenient and just. Aud as the legal
principles which regulate his discretion
are ali for himself to apply, it is apparent
that the decision can be nothing at last
but the expression Of his drcretion, and
as such it is not renewable.
But besides the motion for a new trial,
there was motion in arrest Of Judgment,
and the disposition Of that motion was not
matter of discretion, but the overruing
it was itself 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 anew trial
granted
Passing on the same facts he did, hold
Hhat Judgment erroneous. lie ought 10
have arrested the judgment, because he
| had no jurisdiction TO enter it up. He
ought TO have arrested the judgment or
/ granted new trial, because he had not
given the prisoner a trial according to
/ law. This is judging the record by itself
strictly, as strictly as any casuistry which
is itself legal, can demand,
Nor is there anything in either JEWELS
Case, 10 II. 81, or tha: oi Fife VS.. Jones, b
Casey, 429, to require such excessive dSht'
tia on our part as would ignore part Of
the record. There are some oxtravagant
dicta in the former of these cases, but they
can have no application b case which
comes up under tie Acto $50, for tie
Act was not passed until three years after
that case was decided. These dicta may
indeed have been among the causes which
moved the legislature tc the enactment.
On some POINTS the case of Fife vs.. Jones
is very questionable law, but on the points
have discussed in thus opinion, there is
nothing in it inconsistent with what |
have advanced.
My 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 OF proceeding
under the Act of lS56-that decision So
pronounced and enrolled, is erroneous,
and ought to be reversed but instead ,ol
arresting the judgment, would award
the prisoner o new trial.
have views about the proofs and the
cbarpe of the court. which differ from