1 Park. Cr. 360 | N.Y. Sup. Ct. | 1852
The prisoners in both these cases were tried at the Oyer and Terminer, and found guilty of murder. The judge who presided at the trial charged the jury as to the meaning of the statute defining murder. The prisoners, by them counsel, excepted to the charge, and a writ of error was brought to this court. This court pronounced the charge of the judge erroneous, and in May last ordered a new trial. In
The Court of Errors evaded conforming its judgment to that opinion, by announcing in its judgment the opinion of the United States Court, and then declaring that the Court of Errors had no jurisdiction to reverse a decision of our Supreme Court for an error in fact, and therefore quashed the writ of error which it had issued, and thus, in effect, left the erroneous judgment of the Supreme Court in fall force. The United States Court, recognizing the principle that the court of dernier resort in the State Could conclusively judge of its own jurisdiction, yielded to the decision, and affirmed this last judgment of the Court of Errors. By this decision of the highest court of our State, if a decision were needed on that point, there are cases where it has no jurisdiction, and that decision is affirmed by the highest tribunal in the Union. To the same effect is the decision of the Court of Appeals in Oakley v. Aspinwall (2 Comst. 548), where that court vacated its own judgment of reversal, because one member of the court had sat at the argument, who, by law, had no right to sit there on account of -being distantly related to one of the parties, although the counsel who moved to vacate the judgment had requested him to sit. It' is admitted and proved that the prisoners were at no time before the Court of Appeals, and the record shows that they appeared there only by their counsel. The judgment of that court is that the judgment of the Supreme Court be reversed, and that the record be' remitted to the Supreme Court, in order that this court may direct the sentence of death to be executed. The cases state most decidedly that no corporeal punishment can be lawfully awarded by the-court in the absence of the prisoner. Whether they mean that the judgment awarded in his absence would be erroneous merely, or without jurisdiction, is a material question. In Lofft. 409, the court was informed that the crown was inclined to mercy, and was desired to discharge the prisoner on some corporeal punishment, as he was too poor to pay a fine. They said “they could not award corporeal
In The People v. Son (12 Wend. 348), Savage, Ch. J., also says that the rule is, that when any corporeal punishment is to be inflicted on the defendant, he must be personally present
The practice in our courts, in this respect, seems not to have been uniform. In the ease of Hector, he was brought into court and so in many other cases. In others, the argument has been without the presence of the prisoner. If the final judgment were in his favor, of course he would not object, and if the judgment of the court below were against him, and that were affirmed on his writ of error, he could not object.
The cases in which the courts have proceeded without the presence of the prisoner, are sufficiently numerous to lead to the conclusion that the presence of the prisoner in the higher court was not essential to its jurisdiction, even if his absence would make the proceedings erroneous. And when the highest court of the State gives a judgment which makes void an order for a new trial, and speciaEy and carefuEy orders the sentence of death to be pronounced, it can hardly be supposed that it was done without the court considering that it had jurisdiction of the person of the prisoner. To obtain jurisdiction over the person, it is generaEy necessary only to have process served on the party, in due form of law, giving him such notice of the new action as the court regards as an equivalent to the bringing him into .court. That .was done in this case, by serving a copy of the writ of error on the prisoner.
In other cases, especiaEy in inferior courts, a special statute has sometimes prevented their obtaining jurisdiction unless the party were actuaEy before the court. Such was Bigelow v. Stearns (19 J. R. 39). In other cases it has been held that,
It is also true that at common law the defendant could not appear by. counsel, and that the privilege to appear by counsel, now granted, was not intended to dispense with the prisoner’s personal appearance. But that again does not apply to the appellate court; there it is believed counsel could always argue for the accused. Undoubtedly the presence of the accused may be of great service to suggest to counsel even arguments of law, for self-interest often excites an acuteness of perception in the client, which the learning of the counsel may have failed to exhibit. That is a fair argument why the prisoner should be present even in those cases, but not an argument to show that without his presence, the appellate court is without jurisdiction.
The statute authorizing the writ of error in behalf of the people was passed March 22, 1852. A motion was made in the Court of Appeals to dismiss the writ, on the ground that by the record, as made up for that court, the judgment of this court purported to have been given in February preceding; but it appeared that, although the argument was in February preceding, yet, in fact, the judgment was rendered in May, 1852, and that court denied the motion.
That decision binds us to regard the writ as applicable to this case. It was also argued, that the act of March 22, 1852, gave the Court of Appeals power only to review the judgment of the Supreme Court, and not to reverse or modify it; and it was argued that the appellate court, therefore, only had power to review the judgment and state what the law was, and that