The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1896-10-08
IS A WRIT Or RIGHT
Text Of the Court of Errors
Decision in the Kohl
Case.
JUSTICE DIXON READS THE OPINION
The Higher Court Must Issue the
Writ, However-New Lease of
Life for Nurderers.
JUSTICE DIXON READS THE OPINION
Specio,fo the Jcrscy Cst,, Ns,us.

the Court of Errors and Appeals in the
Kohl murder case affirming the decision
OF the Supreme Court in dismissing the
writ of error issued by the Supreme Court,
and declaring that a writ of error in
capital cases Is a writ of right, was filed
yesterday. The decision of the court was
after the conference on Mon
day, and is concurred In by the ten mem
bers Of the court present. These were:-
Chancellor Alexander n. McGill SUI
preme Court Justices Dixon, Garrison,
Lippincott and Magic, and Judges Bar
kalow, Bogert, Dayton, Hendrickson and
Nixon.
The effect of the decision, giving as it
does a new lease Of life to the con-
demned murderer, Henry Kohl. was
published on Tuesday. The opinion,
however, is also of interest, inasmuch as
1t establishes a new practice In criminal
cases punishable by death.
The syllabus says
Under the act of March u, 1873
pamphlet Laws 1878, page 500, the writ
OF error in cases punishable with death
Is a writ of right, but such writ must
peals in the first instance.
Quaere: Whether the authority of the
Supreme Court to review convictions in
cases punishable with death, on writ of
error issued by order of the Chancellor,
still remains.
The opinion Of the court, delivered by
Justice Dixon, is given below in full:-
The plaintiff in error. having. been con-
of murder of the first degree and sem
fenced to be hanged, caused a writ Of
error TO be issued from the Supreme
Court ON April 6, 1896. in order to test
tho faUaIify nf hf1 nnnrrfnftnn I'm mo-
ton Of the public Prosecutor this writ
was dismissed by the Supreme Court be-
cause it had not been allowed by the
Chancellor. This action of the court is
now before US for revision.
On behalf of the plaintiff In error it is
urged that his writ of error was a writ
OF right by virtue of the amendment to
mere srim p 1s7s procedure 5 1s7s act z az app T5;eh
Is as follows:-'Be it enacted, &c, That
the eighty-rhird section OF the act entitled
An act regulating proceedings in GRIM
mai cases (Revision),, approved March
'Writs of error in all criminal cases not
punishable with death shall be conssd-
cred as writs of right n issue of course:
and in criminal cases punishable with
death writs of error shall be considered
as wrfts Of grace, and shall not issue but
by order Of the Chancellor for the time
being, made upon motion or petition, no.
ttice whereof shall always be given to the
Attorney General or the Prosecutor of
tho State be and THE same is hereby
amended, and 1t is hereby enacted as fol-
lows, viz.:-Writso of error in all criminal
cases shall be considered as writs of right
and issue of course; but in criminal cases
punishable with death VIRUS of error shall
be Issued out of and returnable to the
shall be heard and determined at the
term of said court next after the judy
ment of the court below, unless for good
reason the Cour OF Errors and Appeals
0h1ll nnnHff In 1lA tho ~ o1rr crthz1
quenat term"
1t is plain that, il this enactment is to
have the force which its language Inn
ports, the writ of error is, in an criminal
death, a writ of right, but it is equally
plain than, In cases punishable with death
the writ OF right Is to issue out of the
Court of Errors and Appeals alone.
Hence. taken as a whole, the words Of
the statute afford no upport to the claim
that such a writ may issue out of the Su-
preme Court.
Counsel for the plaintiff in error, how
ever, further that, according to the
decision of this Court In Entries v. State,
IL Vroom 140, the Constitution has vested
In the Supreme Court bhe power of re-
viewing judgments of the Courts of Oyer
and Terminer In riminal cases, and the
Legislature cannot prevent the exercise
of that power by authorizing writs of
fsrlor tribunals; and thence they infer
that so much of the act OF 1878 as re-
quires the writ to Issue out of the Court
of Errors and Appeals alone is unconsti-
making the writ a writ of right, remain
without limitation.
The language of the opinion in the En-
tries case, which was not a capital case,
must be restricted to the principle on
which the decision rested. That princi-
pie is that the jurisdiction of the Supreme
Court existing at the adoption of our pres
ent Constitution was established by that
instrument and cannot ne taken aUau
by statute. What jurisdiction the SUI
preme Court had at that time by writ of
error in criminal cases, was de1ne by
Procedure act, passed March s, 1895 {Pat.
Laws, page 1922. which, prior to 1873,
stood as the eighty-third section of the
above recited. Under this law, the SUI
preme Cour had absolute jurisdiction to
revise on writ of error all judgments in
criminal cases not punishable with death,
not confer on this court the primary
right to review. But in cases punishable
with death the authority of the Supreme
Court was confined to the rcview of those
order a writ of error to issle. Whether
this dependent authority is a jurisdiction
guaranteed by the Constitution We need
not now decide. If 1t be not it forms
no impeachment to the legislative grant OF
the writ of error issuing as of right out
of this court in all criminal cases pun
lsnapie Win uealn, Il u pe, II narfoWs
Of the Supreme Court extends, leaving the
convict entitled as of right to his writ
of error out of this court whenever the
Chancellor refuses to order the writ of
grace of the Supreme Court.
1t thus appears hat there is no con-
stitutional obstacle in the way of our
giving reasonable effect to the will of the
Legislature, that in all criminal cases
there shall be a writ of error as of right,
but that in cases punishable with death
the writ Of right shall issue out Of this
court alone
The writ sued out by the plaintiff in
error was neither the writ of grace pro-
vided by the act of 1895 nor the writ of
right given by the act of 1878, and there
fore was properly quashed.
The decision under review hould be
affirmed.
TO MAKE THE FAIR A SUCCESS.