New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-08-24

but when the court prOnOuuccs SchtchcV ~ WIN
not he according to the trial or convic-
ton, but in direct antagonism to both.
The prisoner would stand regularly tried and
convicted of several Oifenscs, but the Court III
rendering Judgment must stultify its own ac-
ton and the verdict of the jury by pronounc-
ing itself incompetent to punish the oitenses
il has tried Now in respect to this conclusion
of the Court we find : Q) 1t was not based on
any statute no statute so declares none Is
referred to by the Court. (2) 1t was not based
on any precedent; no such precedent eNisis
nor does the Court assert that any such prece-
dent exists. (3) Two precise and exact pre-
ccdents do exist in favor of the Judgment OF
the Court of Oyer and Terminer which the
Court of Appeals Overruled.
The first precedent is the TichbOrne case.
The defendant was convicted on two counts
of distinct offenses, and sentenced to the full
term of imprisonment on each count, the term
ON the second to begin on the termination OF
that on the first. 1t was the deiberative
Judgment of the Court of Queens Bench III
banc. The second is the case OF lex agt.
Robinson. list Moody's c. Cases. A statute
against uttering counterfeit com had TWO
clauses. For the Ofitnse described in the first
the punishment was imprisonment not TO ex-
cced one year; tor that in the second, lmpris-
onment not to exceed two. The defendant
was indicted on two counts for distinct
offenses committed as to different persons at
different times, convicted, and sentenced to two
years' imprisonment On writ of error 1t was
held that the indictment described the Offense
of the first clause that general Judgment
for two years WAS erroneous; that the Judg-
ment should have been for one year the full
term) on the first count, and for one year (tne
full term) on the second count, to commence
ON the termination of the first. precise pre-
cedent exists also in Massachusetts (CarltOn
AIT. Commonwealth. 5 Metcalf, 1922, and one
in Pennsylvania Commonwealth agt Birdsall,
90 Burr, 4S2), except that the judgment in
those cases was single, though i'll excess OF
what could have been rendered on any one
count
Mr.. O'ConOr holds that n precise precedent
also exists in the Fisher case, decided lew
years since by this very Court OF Appeals.
The defenders of the Court say that that
being an action to recover large number OF
penalties against q railroad company for col
Letting excessive fare, was only civil action.
Not so. 1t was penal actiOn-in other words,
q criminal action-an action allowed for the
purpose of punishment for breaking the law
and to prevent its repetition. In England there
were several procedures for the punishment OF
crime; an Indictment was one, an ex-Ofhclo
information by the Acknowledgement was an
other, civil action by the Government,
or by an infOrmer, or by any designated pri-
yate person, was a third. Our Constitution
limits the procedure for any capital or III
famous crime to indictment but for other
crimes the Legislature may prescribe any pro-
ccdurc that it may choose. Between the Tweed
Indictment and the Fisher complaint the diff
ference il one of procedure. Between the
Fisher complaint and al ordinary civil action
for compensation the difference is one of sub
stance. Judge Aliens opinion quotes and
approves of Mr. OCOnOr's brief referring
"to the analogy between civil actions for
"ponaltics and criminal prosecutions In
that same brief of SIR. O'COnor, pronounced
unanswcrabic' by Judge Allen, may be
found these words Civil actions for penalties
"and forfeituros are III substance and effect
"part OF the legal machinery for administer
"ing criminal justice. They were such in the
"natve land of the common law, and there IL
"no ground for regarding them in different
:" light here. So far a. the principle III ques-
"tion is concerned, q civil action for penalty
4" is not distinguishable in matter of substance
I" from a criminal prosecutions" That the
Court also regarded the penal action
az substantially criminal action appears
from the language of Judge Grover in another
place from that quoted by Mr. OConor Up.
654 of 46 y. Y. Rep) After showing that
but one penalty had been incurred, he says:
This answers the suggestion of plaintiffs
counsel, that if but one penalty can be rocoy-
"ered in this case party can be convicted
"of but one crime though guilty of several"
Nor was the language of the Court in that
case O6;ier. The point was directly raised and
strongly pressed, and deliberately considered
and decided. Ii cannot be considered oJiter
because the Court also decided another point in
the case.
We thus see that the Court did not render
this Judgment in obedience to any statute or
precedent; on the contrary, it directly over
ruled two precedents in England, one in Mas
sachusetts, one in Pcnnsy lvania, and, we cannot
escape the conclusion, one mate by itSet. Pre-
cedents favored the opposite decision. What
then were the controlling reasons that in
fuenccd the Court to decide to release Tweed
not only mithom precedent but against pre-
cedent
After a careful perusal of the opinions it is
safe to say that no reason is given by the
Court other than the embarrassment and con-
fusion that may possibly be caused to de-
PENDANT from having to defend several acc,lsa-
tons in one and the same trial. With sngu-
lar inconsistency, however, Mr.. Justice Allen
says
II there could be hut one punishment as for u single
misdemeanor irrespective Of the number of oicnses