Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1889-04-21


court or Judge. The sfiidayits here referred
10 are such as are Introduced TO show lie
gality. and not mere irregularity, In the de-
tention OF the prisoner. The Legislature
never intended to give authority to this or TO
any other court to review upon afiidayits on
ha6eas corpus the judgment OF another court
for the purpose OF correcting mere errors IN
that Judgment. The solemn judgments OF
the courts OF the Commonwealth are not 10
be colaterally set st nauRht IN that way; and
q Judgment Of justice Of the peace, whose
over the case appears, Is az secure
from collateral attack az Is q Judgment
OF q court OF general jurisdiction. Both IN
this regard stand upon the same footing, the
only difference being that Ia respect to the
former the Jurisdiction must atirmatively
appear, whereas in the latter ease jurisdiction
10 presumed. Freem. JUdgm. SEQ. j2i;
Hurd HAb. Corp. 367; Comstock vs.. CraW-
ford, Wall. 1876.
TIE COMMITMENT.
8. We are OF the opinion, however, that
tho third point made by the petitioner is
good one-that is to say, the commitment is
defective.
The Code provides that a defendant who
Is sdjudged 10 pay fine may be committed
until the fine is paid, but prescribeS no par
ticular term OF imprisonment. The commit
ment, however, in the present case con-
mands the petitioner to be kept ID jail for
term OF one year, unless the tine be sooner
paid. &c. This was such a departure from
the terms OF the statute "a to render the COM
mitment invalid. II it be suggested that
commitment for year, unless the fine be
sooner paid, is not less favorable 10 Defend
ant than general commitment until pay
ment he made, and Is therefore not to his
prejudice, tho answer is: That the ques-
ton is not to be determined with reference
to any consideration Of that sert, but accord
ing to the letter Of the statute alone. See
Jones's case, % Graft. S4S. The authority
OF the Justice in such case is derived ex-
clusively from the statute, and must there
fore be strictly pursued, else the commit
ment will not be valid. 1t is laid down IN
work OF high authority that inasmuch az the
power OF Justice to convict an offender III
summary way without trial by Jury is In
re straint OF the common law. The special
power given by the statute must be strictly
pursued, otherwise the common law will
break In upon him and level all his proceed
ings. l Burns Justice, til. Conviction.
And the rule OF course applies 10 the COM
ROD. Pr. Oil.
The petitioner is therefore entitled to be
discharged from custody uuder the commit
ment OF the Justice, but an order will be
entered commanding the officer In whose
custody he is to again take him into custody,
and forthwith carry him before the Justice
by whom he was committed to be further
dealt with according to law. Authority for
such procedure, il authority were needed,
may be found In Young's cast Rob. Rep,
sos.
It is proper, however, to add that we do
not concur IN the view urged by counsel Tor
petitioner that inasmuch as no provision Is
made for Jury trial before a justice OF the
peace, section III Of the Code, authorizing
a commitment for fine imposed by justice,
is unconstitutional the proceeding IN ques-
ton. as already said, WAS in ts nature not
criminal but civil. Tbs commitment IS not
a part OF the punishment annexed to the
offence, but s means provided for carry
ing the judgment into effect after the trial is
over. And even IL the nature OF the pro-
ceedlng we're otherwise the result would be
the same. The provision OF the Consutu-
ton relied on-namelg. that in all capital
or criminal prosecutions man hath q right
= to speedy trial by an impartial
Jury us not to be construed 10 extending
any more than restricting the right OF trial by
Jury as It existed at the time the ConstItu-
tion was adopted. lis the right as known
and enioyed by the people OF the state at
that time that is preserved and guaranteed
by the Constitution. Aud we know that
Sabbath aud a great variety OF
petty offences OF the same class were not only
cogniZabIe by justice at the time our Con-
stitution was adopted, but for centuries be-
fore.
blackstone, whose commentaries were
published before the revolution, and whose
partially for the common law system OF
Trial by Jury Is displayed throughout his
great work, deyotes whole chapter TO the
subject OF summary convictions, in the
course OF which be says: "Another branch
OF summary proceedings IS that before jus
tees OF the peace, IN order to inlet divers
petty pecunsry mults, and corporal penal
ties denounced by act OF parliament foi
many disOrderly offences, such as common
swearing, drunkenness, ysgrancy, idleneSs
and n vast variety OF others, for which
must refer the student to the justice book
formerly cited" ETC., 81. Comm. go. ApC
in Burns Justice, referred to by Blackstone
an almost infinite number OF such offences
are mentioned, and forms gwen for tbeii
prosecutions; among them being the onenc'
OF publicly crying, showing forth, or eN
posing 10 sale any goods, wares, or mcr'
chandise with certain exceplons) on The
LORDS day, for which the offender, upOI
convection before justice. was required {
pay a fine, and in default OF such payment
it was directed by the statute that he be or
derci to be publicly set in the stocks.
Burns Justice. tit. LORDS Day. see, also
Boo. Abr. tit. Justices OF Peace (E)
Cooley, Const. Lin. 4l0. note; Protfat OF
Jury trial, See. 9j.
Pomeroy In his note to Sedgwick on th'
construction OF statutory and constitutions
law. at page 48I, well says: cit - the RICH
OF trial by jury which exists and 1
preserved, and what that right is Is
purely historical question, a fact to b.
ascertained like any other social, legal
or political fact. As Constitution
speaks from the time OF Its adoption
the fac. OF the right to jury trial
which is aScertained 10 have existed at tina
time. must necessarily determine the mean
ing OF the clause which recognizes and pre-
serves thai right"
The adjuGged cases to the same effect ar
numerous aud uniform. Many OF them ar
collected by the learned gnnotatOr OF Oh
American Decisions (Mr. Freeman) in hi
note TO the case OF Flint River SIeambos
Company vs.. Roberts. As Am. Dec. ut psg
1S6, TO which we refer.
The subject was considered by the Su
preme Court OF the United States IN the re
cent case OF Callan vs.. Wilson, l27 u.
$40, and while It was there held that th
crime OF conspiracy. such as was charge
against the defendant In that case, was nc
OF a class OF petty or minor offences triabl
without Jury. consistently with the Con
stituron, In the Police Court OF Washing
ton, in the District OF Columbia. yet IL wa
conceded, in the opinion Of tue court, th'
there IS class OF MINOR offences which ar
80 triabIe, and many OF the cases so decide
were cited, including Bigers VS.. Commou
wealth, AZ Pa. ST., 80, aud state vs.. Glenn
81 Nd, 512.
IL was also held In the same case thu
where party Is entitled 10 be tried by
Jury at all, he is entitled 10 be so tried |
the first instance, and that riaht OF nppeI
10 a higher court, In case OF conviction
where he Is accorded q jury trial, does no
meet the requirements OF the Constitutions
The question Is an Important one, an
there are decisions the other way. but as
does not arise In the present case, We el
prass no OplniOn uD0D III