Morning journal and courier., 1882-06-10
$sournaI ano Courier.
iierning. June 19. l8s2.
The 'sChip" Smith Case.

supreme Court opened Chief Justice Park | said, Proceed with the case, gentlemen" l to the case of Taylor SJ Go. vs. | Brooks x Scott. State Attorney Doolittle arose and said that he supposed the James Smith plea in abate- ment the first to be heard. Ut won't take more than fifteen or twenty minutes" said Mr. Doolittle. "They have withdrawn their original answer and fifteen minutes ago filed new one. But I ask for no delay"
 The new answer to the plea in abatement is this:
 The plaintiff in error demurs to the plea a abate ment ;Eh,t or the % defendant in error; because.
 l. Ihls comes to the Supreme Court of Errors by
 g. Matters of fact and matters of may be joined, and law
 g. If question of fact is presente1 to this court it is the on one that could pass upon it. And said fact or facts appear upon the record in the in which judgment is sought to be reversed.
 The chief justice, after consulting his asso- ciates, asked if Mir. Blydenburgh was in.
 "He was here," said Mir Doolittle, land I told him l supposed the plea. in abatement would come up. He said he would go to his office and get his brief I said I didn't see why he shouldn't have brought it with him, except that it was in keeping with his resorts to every possible thing in his scheme to have the matter postponed"
 Judge Park ordered messenger sent for MT. Blydenburgh, but the missing lawyer soon appeared.
 'Proceed with the case of State vs James Smith" " said the chief justice.
 MT. Blydenburgh at once proceeded with his argument
 He said that there was no doubt as to the first question as the claimed error in the in | dictment was question of law. The other, the State insists, raises a question of error I in fact The attorney for the State has seen fit to attempt to bar us by technicality, and prevent this court passing on the ques- tions raised The question of error in the omission of the judge to file his charge and the defendants request with | the clerk Is not question of fact that could be raised before the jury, or in the court below. It Is an error of law apparent l on the record, aud comes here by original l process. lt 1t be an error of fact it is one l that couldn't be proven or known before the | case closed, and the court has jurisdiction The statutes of 1881, page ,, give this court l jurisdiction of errors, both of law and fact. I Mir. Doolittle says this act '82 repeals it. we ] say it doesn't 1t merely defines the right and perhaps extends the powers of the court. | And If 1t does more than this it should be re- membered that it went into effect after the ! original writ was signed, but before the sub- | stltute was prepared.
 Ii It should interfere it would be 8 misfor- | tune. The only question raised by the State | Is that there IS 8 misjoinder in the writ. In l Ripley vs. Bank fist Conn, 19O, the writ as whole was not abated, but the error of 1 fact was stricken out. So in Lewis vs Law l son, lst of Root, 262, and in 2d of Root 525 | On page 61 of the same volume the error in fact was held to be immateria1 and stricken | out. We say that the plea is insufficient. l The alleged error of fact is in reality an CT. TOT of law. and the only way to bring it here I Is the way we have taken.
 Mir. Doolittle in reply said that the requests to change are not matters of record and dc not so appear. writ of error cannot oe brought to reverse requests. Page of the record contains the statement that the writ ten requests were not filed. That allegation l Is utterly unfounded; it is not true. The requests were delivered to the clerk, and this gentleman had them and filed his motion fo, new trial, of which they were part, within eight instead of with in fifteen days as allowed by law It isn't an error if Mir. Inge1soll neglected te write the word filled" on them He has nc right to go into that. It is enough if the judge merely hands them to the clerk. waited until this morning for him to file ar answer which he was ordered to do Wednes day. But whether the court filed them is matter of fact The Superior Court has ju | day thought when tho law was handed me that the statute of '81 was repealed by the statute of '82, but I don't think now that i 1 was. The statute of '91, however, doesn' reach the point. It does not refer to the Su preme Court at all, but to the Superior Court. Issues of law and of fact may b' taken there, but they cannot be joined. Int fist of Connecticut, 19O, does not sup port the plaintiffs point at all, ol I fail to understand the case. II that case no bond was given, and if no bono had been given the case not properly before the Supreme Court. The error il fact was not in the court below. The plet in abatement was held to be suficient-tha 1 is that the bond ought to have been given So in the Fist of Conn, Treadway vs. Coe 2S3. the court decided that writ of errol could not be brought on an interlocutory judgment. And the record disclosed whether ! the judgment was interlocutory or not 1 Where there is error of fact after judg
 ment, writ of error, Qtt0Tano 7l065S, must bt brought to the Superior Court to reverse it
 rhis9is laid down in Swift. Swift also says that the proper mode of taking advantage o a misjoinder is plea of abatement. In the 2d of Root the u'isjoinder of errors of fact with errors of law is cor l rected by an amendment, by striking out the errer in fact and paying costs
 The error of fact, it is alleged, was moi known till the case was closed; why it closed ! did not occur till then. Your honors car | hold this to be an immaterial fact after the verdict and the sentence of law. This mar has been sentenced to death, and no error oi the judge after that could defeat it. That is not an error on which to base writ. Such an error must occur before judgment. You might as well bring writ of error that after the sheriff had hung the man he didn't en dorse on his warrant that he had done SO But the plaintiff was subject to no in convenience; he obtained the requests and charge within eight days and completed his motion. What wrong has he suffered ! And beyond all this the statute he cites does not refer to criminal actions; but to civil ones alone The court is not compelled to have written charge nor file them with the clerk. I think your honors can hold that the error of fact was immaterial and that, if the plaintiff wishes to amend by striking 1t out, he can be heard on the question of law pre- sented in this record, and MT. Blydenburgh presented certificate of Clerk Ingersoll that ] the requests to charge were presented to the court. This was to amend the record that this fact might appear therein.
 Mir. Doolittle objected. The court could tell whether they were presented, but the clerk only knew that some one told him they were.
 MT. Blydenburgh said if the record needed verifying he wished the certificate might come in for that purpose, so that he could raise the question apparent on this record that the requests were not filed with the | clerk, or do not appear so on the clerks rec | ord." He said it was true he had the charge in time to make up his motion, but it was because he employed stenographer.
 MT. Doolittle thought this showed that | he placed no reliance the judges manu- | script.
 i've didn't have it." said Mir. Blyden- burgh.
 'I know you did," said Mir. Doolittle.
 q don't know why on earth we should have gone to the trouble of having short hand translated into long hand if we had his honor's charge, which we could copy"
 He submitted the case of Hopp vs. People, decided in the United States Supreme Court, March 20, and reported in THe Reporter for April as being on the question he had raised, and concluded by saying: 1T will not dis cuss the question further. We are not here for the purpose of making speeches. but to present that which will aid your honors in arriving at just conclusion"
 The dc cision was reserved until afternoon, when the judges decided the plea in abate- ment sufficient and that the writ of error should be dismissed unless the plaintiff ir error chooses to amend before 2 o'clock Monday afternoon, by striking out the ale gations of error in fact. If thIs is not done the case will be arguedaon it's merits. Court will meet again on Monday at 7 o'clock