150 A. 555 | N.J. | 1930
John King, the plaintiff in error, was indicted and tried in the Hudson Oyer and Terminer for the crime of murder. He was convicted of murder in the first degree and sentenced to imprisonment for life, according to the recommendation of the jury. He sued out a writ of error from the Supreme Court to review the legality of his conviction, and that court in a percuriam said: "The writ of error must be dismissed, as it does not appear in the state of the case sent up with the writ of error that application was made to the Chancellor for a writ of error to the Supreme Court. This must be done under the case ofState v. Giberson, 119 Atl. Rep. 284." See, also, the official report,
Upon dismissal of the writ of error out of the Supreme Court plaintiff in error sued out a writ of error from this court directed to the Supreme Court, and under it not only seeks to reverse the judgment of the Supreme Court on the ground just adverted to, but also argues the merits of the case upon the other assignments of error and specification of causes for reversal assigned and filed in the Supreme Court, which is *340 proper practice, in the event the case was properly in the Supreme Court, and therefore properly here. They all are: first, that the Supreme Court erred in dismissing the writ of error issued out of the Supreme Court as improvident, and if that point be decided for plaintiff in error, second, that there was error in the refusal of the trial court to charge as requested by defendant, third, that there was error in the charge of the court, and fourth, that the verdict was contrary to and against the weight of the evidence.
First. The judgment of the Supreme Court dismissing the writ of error was proper.
Counsel for the plaintiff in error on this head argues that many cases which he cites, apply because they were considered on error to the Supreme Court without an allocatur of the Chancellor. However, whenever the court's attention was directed to the point under review it was decided that the statute of 1795 was still in force and effect.
In the case of In re Baronne,
In the case of State v. Mowser,
It is the contention of the plaintiff in error that his punishment for the offense of murder in the first degree, coupled with the recommendation to life imprisonment, while it may have been potentially punishable with death up to the time of his conviction, from the instant the jury made its recommendation it came within the words of the statute, that writs of error in all criminal cases shall be writs of right and issue of course.
The trouble with this is that counsel for the plaintiff in error does not give due and proper effect to the decision of this court in the case of State v. Kohl,
The case of State v. Giberson, supra, decides that if a person convicted of murder in the first degree, whether sentenced to death or to imprisonment for life, desires to review the judgment, he is obliged to apply to the Chancellor for a writ of error under the act of 1795, and, if the Chancellor refuses the writ of grace therein provided for, then the convict may sue out a writ of error from the Court of Errors and Appeals as a writ of right under the act of 1878.
Second. Counsel assumed, as already stated, to argue the merits of this case as presented to the Supreme Court but not passed upon by that tribunal, for it dismissed the writ as improvidently sued out, which precluded a decision of the merits. This court ordinarily will not hear a party as to a question not raised in the court below (unless it goes to jurisdiction, or public policy is involved). State v. Verona,
If the question here discussed goes to jurisdiction or public policy, the answer is that it has been decided adversely to the plaintiff in error in the Kohl, Baronne and Giberson cases. *343
In Williams v. Connolly Contracting Co.,
In the Semple case just mentioned the Court of Errors and Appeals said that the matter of appeal was not made the subject of proof and consideration in the court below and the court above therefore ought not to give a hearing on the appeal.
In Champlin v. Barthold,
It must be perfectly obvious that an inferior court cannot be reversed on a question or questions it never decided. For a superior court to do that would not be to review its proceedings and reverse an erroneous decision, but to make a decision as though it was a court of original jurisdiction.
Where the Supreme Court held that a writ of error was improvidently issued and dismissed it for that reason, as in the case at bar, and this court, on appeal, should be of opinion that that holding was erroneous, it would reverse on that ground and remit the cause to the court below with directions to it to proceed to consider and decide the merits.
Not so here: in this case the writ of error was properly dismissed, which left no merits for consideration and determination *344 in the Supreme Court, and there are consequently none here to be passed upon.
The judgment of the Supreme Court dismissing the writ of error in the case at bar as improvidently issued, should be affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CAMPBELL, LLOYD, CASE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, WELLS, JJ. 12.
For reversal — None.