Year: 1868

The Supreme Court of Appeals yesterday
pronounced its opinion in the case of PhlL-
lips Us. The Commonwealth. The opinion is
a very long one. The conclusion, which we
may as well state here as elsewhere, is that
the new trial asked for is refused. The
opinion of the court is in substance as fol-
lows:


The question of jurisdiction was the lead
ing one in this case. The plea in the re-
cord contains but one direct averment, and
that is, that "by the law Of the land, the
statute in such case made and provided,
this honorable court .the Circuit Court
hath no jurisdiction for the trial of this in
dictment." The rejection Of this plea was
tantamount to q finding of the Jurisdiction.
What advantage would it have been to the
prisoner to have had this anomalous issue
of Jurisdiction or no jurisdiction Joined,
provided the Judge should find against him
upon it? And shall we now send it back
for this replication and issue, when We
must know that the court expressed its ad-
verse finding upon such issue by the rejec-
ton of the plea? Such course, l think,
would be frivolous. f. ..s.s....-.f. -.


But the rejection of this plea in the court
below for matter of form ought not to be
allowed to put aside this question of juris-
diction. The absolute want of jurisdiction
in any form or upon any conditions is CON
fessedly good cause Of arrest of judgment
and the execution of the sentence in this
case, provided no jurisdiction be found,
would be properly characterized as judicial
murder. This important and interesting
question cannot be evaded, and must be
solved by us some way or other.


1t clearly and solely depends upon the
effect and application we shall give to the
act of 9th April, 1867, Sess. Acts 1867,
ch. 1lS, p. 9l5. IT,.


This act gives discretion to the circuit
courts--in which any prosecution for q
misdemeanor, OF for any felony not pun
ishable with death, is pending when this act
takes effect-to try it. or transfer it to the
county court, &c., and peremptory re-
ouirement is made of the circuit courts to
retain trials of all pending prosecutions for
capital felonies. (Sess. Acts lS66-'67, P.
945, s. A. 1t is admitted that the repeal
of chapter 205 is absolute and if it stood
alone, there is ample authority and reason
for asserting that all proceedings under the
old law would be instantly abrogated and
annulled by the repeal. But this repeal
does not stand alone, butts part and parcel
of new system of criminal procedures or
dained to go into effect on the lst of July,
1867. This repeal is plainly consequent
upon the change of the commitment /;
whereas under the old law it was commit
ment for examination now, under the re-
pealing law, it is supplanted and super
seeded By commitment for trial. Chap
ter CCIV. Of the Code, so far as pertains to
the process of arrest, bail, examination, or
trial before the justice, is literally copied
and reGnacted down to the sixteenth Sec
ton. 5"There occurs the first and funda-
mental departure from the old procedure.
This sixteenth section is new in its provi-
sions, while the succeeding sections of the
same chapter are again copied from the
Code. The change effected by this sixteenth
section is the substitution Of the commit
ment for trial in place of the previous COM
mitment for examination Itisthe key to un-
lock the meaning of this statute. 1t is the
initial point from which the old and new
proceedings diverge. And the moment the
Legislature decided to commit for trial


=. 20. for examination, the examining