The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-07-11

The Decision of the Supreme Court, Affirming
the Judgment of the Cumberland County
Court and SubiectiDg the Prisoner the
Penalty of Death-Sharp Comments on Hasty
Legislation.
In the Supreme Court, on the 9TH instant,
Judge AgneW delivered the opinion of the
Court on the motion for opening the judgment
in the former writ of error in the case of DR..
Paul Schoeppe, the Carlisle murderer refusing
the motion and ordering the record to be remit
ted. In the course of his decision Judge Agnew
said:-
In this case a special application for writ of
error was made within thirty days to Chief Justice
Thompson; who, after conference with Read and
Sharswood, j. j. they concurring with him) found
sufficient cause to allow the writ of error, and it
was therefore refused. The prisoners counsel then
writ of error under the 33d section of the act of
1860. The Limitation to thirty days and TO cause
Incompatible with the issuing Of writ OF error
upon the mere consent of the Attorney
General at any time afterward. The At:
torney-General, however, from motives of
humanity, and the point not having
before arisen in practice gave his consent and the
Philadelphia. But the defendant having to oring on
his bills of exceptions under the 59th section of the
act of 1860 it became evident that the writ of
then brought before us brought up nothing but the
common law record, in which 1t was not pretended
there mS was any Tae Of the Court Of
the case passed into final judgment for the affirm
ance; being by the highe court in the State, there
could be no writ of error to it. Thls judgment
being rendered, the record was remitted to the
court below on the l4th day Of February, 1870.
on the 18th OF February, 1870, law was passed
allowing writs OF in cases OF murder and vol
untary manslaughter as matter of right, without a
special application under the act OF 1860 The case
OF Paul Schoeppe having been decided before the
passage OF the act he has obtained second writ OF
error from the Prothonotary, claiming it as matter
OF right under the late act and this writ is be-
fore us. The Commonwealth, relying ON the judg-
ment of airmance under the former writ, has plead
ed that Judgment in bar OF this writ. The act OF
1870 applies only to future Wrts OF and those
pending in this court when the law was passed.
record remitted on the l4th of February, the case
was not pending before us the 10Th, when the law
vail. The defendants counsel, perceyine this una
voidable Jesuit, has moved TO open the Judgment
OF aifrmance, given IN the former writ of error, in
the hope that we may, on opening it, treat the case
writ pending at the passage of the law, intend
ing then to apply to 1t the provisions OF the act OF
1870 This motion is also before us and involves
two questions-one upon the power of the court to
open the former judgment after the term had eX-
pred and the other upon the applicability OF the act
Of 1870 to the case if the Judgment should opened.
1t is not necessaryto decide the question OF power,
but 1t is opposed by authority and some strong
sons. The Commonwealth VS. Malioy, I, P. F.
Smith, decided against the exercise OF this power
oy the Courts Of Quarter Sessions and oyer and Ter
miner, after the expiration OF the term notwith-
standing rule has been entered to show cause
| against the sentence. The same reasons therein
The fact that we act as court OF review to correct
the OF lower courts does not seem TO justify
| revision OF our own final judgments.
The English authorities are against the power, and
there appears TO be no good reason for It's exercise
IN thls state tnat does not exist elsewhere. Ine
power being admitted after the first term has passed,
there is no limitation of time, and the doors OF pri-
sons and penitentlarles may be opened at any time
| before sentence is finally executed. This clearly
would be an infringement OF the pardonng power
in our case as much as 1t could be affirmed OF the
judges OF the inferior courts Judicial discretion is
| not the pleasure OF the court, nor the arbitrary
result OF our will, but is governed by sound j1dg-
| ment founded on good reason and controlled by a
conscientious conviction OF right In this case there
has been no mistake made, no which our sense
of justice calls upon us to correct 1t cannot be pre-
tended that our Judgment on the former WIFI OF
error was incorrect =.
| Having no ground OF error or mistake in our
| former Judgment the act OF 1870 having no appllca-
ton, and the defendant being IN no better position
| by the opening OF the Judgment We are compelled to
decline opening 1t.
IL Is not improper before doing so to say a few
words In reference TO the act OF 1870 TO draw aten
ton 70 OF its defects and 70 the radical change
| in our criminal jurisprudence It will produce. II
was passed for this case, but owing to the GOV
ernors veto il came too late IL is another evidence