The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-03-26

new trial ordered, or It may be followed by,
sentence OF judgment Punishment Of fine or
imprisonment or both, does not follow the
verdict unless IL is approved by the Court and
verdict. wv
AS Blackstone lays Il down, ,the next stage of
criminal prosecution, after the trial and con-
viction are past, Is that of judgment" This is
referred to in this connection for the purpose
of showing that before process can issue to
carry into effect verdict there must be iudp-
ment by the court. And this must hold as to
every verdict which requires the interposition
of the court to carry It into effect. II the de-
termination OF the jury iu this case, by which
the county is ordered to pay the costs is in
itself the final result, and s in itself iudg-
ment, then the parties claiming costs do not
need the order contemplated by the rule, which
they have taken. Process on judgment Is of
right. If the verdict does not give right to
execution, then the prosecutor is before his
time, in asking that the rale he made absolute
lie should first move for judgment on the YER
dict or on that part of it which disposos, as far
as q mere verdict can, of the costs of the prose-
cuton .
This would of itself be sufficient to require us
to discharge the rule, and to refuse the execu-
ton, which we are asked ut this time to award.
But as we think there is good reason why we
should not enter Judgment on the verdict for
costs against the city we may as we'll state them
at this time.
The conspiracy with which the defendants
were charged in the indictment grew out of
speculations in oil, to which the prosecutor,
O'Cenner, and the defendants were parties.
AS n consequence of the alleged conspiracy
OConner asserted that he had been defrauded
out of large sum of money by the defendants. .
The indictment was found at the March sessions
OF 1865, and, after n protracted trial the jury,
not being able TO agree upon verdict, were dis
charged. At the January sessions of 1862 the
bill was laid before the jury without evidence
and a verdict of not guilty was rendered. The
prosecution was abandoned by the District
Attorney with the consent of O'Conner and by ,
an agreement between him and the defendants,
all questions of dispute were withdrawn from
the several courts in which they were pending
and referred to an arbitrator for final determine
tion.
This, it is truc does not appear upon the
record, but was admitted by the counsel for
OConner in the argument submitted by him,
and are the facts which transpired in the pub
lie conduct of the prosecution and are therefore
known to and within the breast of the Court,
as the law expresses ii.
The act of the 31st of March. 1860, has been
cited, and by the terms of which, it is con-
tended, the city is fixed for the costs. But this
contemplales, in our judgment, something
more than formal verdict, such as was rem
dered in this case.
The statute does not give to the jury an Un-
limited and unqualified power over the costs, in
every case OF an acquittal of defendant
charged with having committed misdemeanor.
Its directions are, that the jury trying the
oiGenee shall determine whether the county or
the prosecutor or the defendant shall pay the
cests, or whether they shall be apportioned be-
tween the prosecutor and the defendant.
This implies trial, and trial upon the
merits. For unless the jury have heard the case
upon its facts, unless they have investigated il
upon its merits, how can they find The fact
which they are required to dispose of, as to who
ought TO be punished with COSTS? They may be-
lievc from the testimony that the prosecution
was groundless, or that it was instituted from
improper motives, and in rendering
verdict of not guilty they may, under
| tlat he hp i'm iftta tba
| prosecution shall pay the costs Or the evidence
may require them to acquit upon the plea of the
! statute OF limitations, or because the testimony
does not establish the charge as laid in the
Indictment, though showing conduct worthy of
blame in the defendant. In either case they are
empowered to impose the costs upon him who
is declared by their verdict not guilty in manner
and form as he stands indicted. If the Jury do
not find the charge proved beyond reasonable
doubt, and have no reason to impeach the in
tegrity of the prosecutor, they may determine
| that the costs shall be paid by the county, and
| if the justice of the case requires it they may
| apportion all the costs between the prosecutor
| and defendant.
| 1t is impossible that this can be done with
| understanding unless the jury have heard the
witnesses; for without such light, as can in this
| way only be shed upon the case they cannot
| know where the costs should fall. 1t certainly
! was never intended to leave the disposition of
an important question in the cause to caprice or
to mere guess, or to allow that conclusions
is a verdict which involves the payment of
money, and to the prosecutor or the defendant,
as the case may be, it may be followed by inn
! prisonment, upon default of payment, after sem
| tence on the verdict.
The case before us is an illustration of the OPP
| pressioG which verdict as to costs may be if
| followed by judgment If it had been imposed
| on the defendants, ii might have resulted in no
| slight inconvenience to them; and to the city of
| Philadelphia IL is burden which 1t ought not
| to be required to bear, unless the law and the
| Justice of the require il at her hands
| We have said that the act of 1860 contem-
! plated not formal verdicU merely, but trial
| of the question of the guilt or innocence of the
| defendant. A trial is defined to be the exami-
! nation, before q competent tribunal, according
to the laws of the land, of the facts put in issue
in the cause for the purpose of determining
such issue. A trial by jury implies the proper
| selection and swearing of the jury,
| the examination of witnesses, or the
| submission of documentary evidence, or both;
| the right of counsel to address the jury upon
evidence. and the formal determination of the
| issue by the jury, in the form of verdict. The
record does not in this case show trial upon
| the merits, and it is admitted by O'Conner that
! the bill was submitted as the result of a com
! promise, without proofs; that this mode of
| settlement was carried into effect by the agree
ment of the prosecutor and the defendants.
This verdict Is doubtless good as il stands for
| some purpose. 1t would be good as a defense
| upon retrial of the defendants, upon the plea
| of dlttre .foiS dcquu. But we hold there was no
! such trial as to warrant the jury in determining
that the county shall pay the costs of the prose-
cution. To recognize that which has been done
as binding on the county would be to permit
| parties, prosecutor and defendant in effect TO
| determine q question which the law saws the
| jury shall try and determine.
! The taxation of prosecutors costs was not
appealed from, and this perhaps is conclusive