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Vol. IV.)

McDonald v. TuE STATE.

[No. 11.

set forth the time from which the imprisonment was to date. For these two errors, say the court, “ the judgment of the court below is reversed without disturbing the verdict, and the cause remanded with directions to the court below to pronounce its judgment in accordance herewith, haying first duly inquired of the defendants whether they have anything further to urge why its judgment should not then be pronounced.' No question was made in argument, and no authority is referred to by the court, in support of the power to remand thus exercised, and this has led us to examine the statutes of that state as to the powers conferred on its appellate court at that tiine. As expected, we find (Hutchinson’s Code, 927) that that court was clothed with very full authority in such cases. They had power, upon the reversal of any judgment or sentence, to render such judgment or pass such sentence as the court below should have rendered or passed; and the power to remand in criminal as well as in civil cases, where there is anything uncertain in the judgment or sentence, is also given in very broad and general terms. We think, therefore the court in this case rested their action not upon the supposed possession of any inherent or common law powers to that end, but upon statutory au-. thority well understood and recognized in that state.

The other case is that of Beale v. The Commonwealth, 1 Casey, 11, decided by the supreme court of Pennsylvania, in which the opinion was delivered by C. J. Lewis, from which Woodward, J., dissented. To understand what weight as authority justly attaches to this case, we must first look to the antecedent decisions and legislation on this subject in that state. It

appears that in the course of the argument in Drew v. The Commonwealth, 1 Whart. 279, which took place in 1835, Rogers, J., referred to a recent case in which he said the supreme court had decided that where the indictment was good, and the trial good, that court would do what the court below would do after a new conviction, viz., sentence the party de novo and aright. In the following year, 1836, the legisla

ess wer to the court, “ to examine and correct any and all manner of errors of the justices, magistrates, and courts of the commonwealth, in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas or proceedings, and thereupon to reverse, modify, or affirm such judgments and decrees or proceedings as the law shall direct.” After this came the case of Daniels v. The Commonwealth, 7 Barr, 371, in which the opinion was delivered by Rogers, J. In that case this statute is set out, and the court say that by it, “in addition to the power to reverse or affirm heretofore given, we have authority to modify the judgment; that is, to change its form, vary or qualify it, and this as well in criminal as in civil cases. It would certainly be better if the court had power also to remit the record, but as this is not given by the Act of 1836, we must examine the sentence and do right and justice according to circumstances ;” and accordingly, acting under the statute, the court struck out the words “ hard labor " from the sentence and affirmed it in other respects. It appears to us the court in that case clearly decided they had no power to remand the record, and that their only power to modify the sentence was derived from the statute. Then comes the case referred to of Beale v. The Commonwealth, in which C. J. Lewis says: “ The doubts which formerly existed respecting the power of the

ture gave es

Vol. IV.)


(No. 11.

supreme court upon reversing a judgment in a criminal case are entirely dissipated. We have authorities to show that the supreme court, on reversal of a judgment in a criminal case for error in the sentence, has power to pass such sentence as the court below ought to have passed." For this position Drew v. The Commonwealth, and Daniels v. The Commonwealth, are first cited. What these cases, and especially the latter, decide, respecting this power and whence it was derived has been stated. Two other cases, Commonwealth v. Ellis, 11 Mass. 465, and Kane v. The People, 8 Wend. 211, are also added in the same citation. These we have examined, but are unable to perceive that they have any bearing upon the proposition stated. We have fully shown what the Massachusetts and New York decisions on the question under consideration actually are, and as respects them there can, we think, be no doubt. He then says, “it has also the power to award a procedendo in a criminal case.” For this Rex v. Kenworthy, 1 B. & C. 711, is cited, and that case, the subsequent English decisions have declared, was one in which no judgment was rendered in the court of original jurisdiction. That case is therefore no authority for the position that a procedendo can be ordered after a reversal of a judgment in a criminal case for error in the sentence itself. He then adds " and it may, in its discretion, remit the record with orders to proceed on the indictment after the reversal of an erroneous judgment.” For this Commonwealth v. M'Kisson, 8 Serg. & R. 422, and Commonwealth v. Church, 1 Barr, 110, are cited. These were cases brought up by the state from judgments quashing the indictments, and the court reversed the quashing orders, sustained the indictments, and remanded the cases, to the end that the parties might be tried under them. There the parties had never been tried, and no judgments had ever been pronounced against them. If nothing more was meant to be asserted by the proposition than was decided in these cases we have no occasion to quarrel with it. A large number of cases in this and other states might be cited to the same effect. But he then says, “ The Act of 16th of June, 1836, conferred no new powers in this respect. It was designed to remove doubts which had arisen in consequence of conflicting decisions.” If, however, the court in Daniels v. The Commonwealth did not decide that this act conferred a new power upon the court as to their control over judgments in criminal cases, they were certainly unfortunate in the language they there use, or we are unfortunate in being unable to comprehend it. Nor have we been able to find in the published reports any anterior conflicting decisions from which doubts as to the power of the court in such cases could have arisen. We may have overlooked them, or the reference may be to some unreported and unpublished decisions of that character. But certain it is that neither in the title, preamble, nor other parts of this act is there any reference to such doubts or conflicting decisions. Such reference or recital is frequently, if not usually, made in statutes passed for such purposes. The learned chief justice, for whose abilities and well earned reputation we have great respect, then proceeds thus : “ The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine, that a prisoner whose guilt is established by a regular verdict is to escape punishment altogether because the court committed an error in passing the sentence. If this court sanctioned such a

Vol. IV.]

McDonald v. THE STATE.

(No. 11.

rule, it would fail to perform the chief duty for which it was established. Our duty is to correct errors, and to minister justice. But such a course would perpetuate error and produce the most intolerable injustice.” But to these propositions we cannot yield assent. No such doctrines have ever been announced by the tribunals that for centuries have made, interpreted, and administered the common law. On the contrary, the courts of England in administering justice in criminal cases have, save in rare and exceptional instances, been watchful of the liberties of the subjects, and have taken care they should not be oppressed by the crown. Their doctrine has been that men must be punished according to the law of the land, and that to punish them otherwise is tyranny. It would, we think, be a startling novelty to the great judges of the English courts to be told it is monstrous and intolerable that a party should escape punishment who has been duly convicted of crime, but upon whom a sentence has been imposed which the law does not authorize. From the many cases wherein they have made decisions that have led to that result, we infer they have regarded such escapes as less fraught with evil consequences, than for courts to attempt to usurp authority in order to inflict punishments

. The decision which we have thus examined at length is, in our judgment, exceptional, and in conflict with the whole current of authorities, both in England and in this country. We cannot adopt or follow it, and shall not exercise any such powers, unless they are conferred upon this court by the legislature.

Is there then any law which has given this court the power to pass a proper sentence in this case, or to remand it to the criminal court for that

? We know of none. The 14th and 16th sections of art. 5 of the Code have no application to such cases. They give the court no power to modify criminal sentences, or to direct them to be modified by the inferior courts. The same provisions were in force when Watkins v. The State was decided, and in that case this question was fully argued. The reversal of that judgment without a procedendo is conclusive of it.

Whether the plaintiff in error, by thus requesting and obtaining his discharge from this indictment, has waived the protection which the law provides against the second jeopardy, so that he can be re-indicted and retried on the same charge, as has been suggested by some jurists and text writers, is a question we are not now at liberty to decide. It has not been argued on either side by counsel, and we should be stepping far beyond the line of duty, if not committing a grave impropriety, in now expressing any opinion upon it. We can only say with c. J. Shaw, in Christian v. The Commonwealth, that " whatever other remedy the state may have, it is not competent for this court to pass new sentence upon this prisoner, nor to remit the case to the criminal court.” Our power is limited to a simple reversal of the judgment.

Judgment reversed. NOTE BY THE REPORTER. After the above decision was rendered, the prisoner, Patrick McDonald, was arrested, while in the jail, upon a bench-warrant issued out of the criminal court of Baltimore city, charging him with the murder of Daniel Brown. Whereupon he petitioned the Hon. Jas. L. Bartol, C. J., for a writ of Habeas Corpus, which was granted; and upon the hearing, it was admitted on the part of the state

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that the felony and murder charged in the warrant was the same as that for which the petitioner bad before been indicted and tried ; the chief judge, after full argument, discharged the petitioner, deciding :

1st. That the facts being admitted, it was competent for the judge under the Code, art. 43, to decide the question whether there was sufficient legal cause for the detention of the petitioner.

2d. That the petitioner having been arraigned and regularly tried upon a sufficient indictment, and a legal verdict having been rendered, had been in jeopardy, and that he could not lawfully be placed in jeopardy a second time for the same offence.

3d. That the former trial was, in no sense, a mistrial. If it had been, the court of appeals would have remanded the case, so that the party might be tried again.

4th. That the petitioner, by suing out his writ of error, and obtaining a reversal of the judgment, had not waived the protection which the law provides against a second jeopardy, and was not liable to be again indicted and tried for the same offence.

In the opinion rendered by the chief judge, he remarked : “If the prisoner, after having been duly convicted of manslaughter, escapes punishment, by reason of an error in the sentence, this results from the want of legislative provision in such cases to enable the court of last resort to 'correct the sentence, or to remand the case to the criminal court for that purpose. Such legislation was had in England in 1818 (11th and 12th Victoria, ch. 78), and has been enacted in several of the states."

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Where a person to whom a letter was addressed has been dead for several years,

leaving no personal representative of whom inquiry could be made concerning it, and the letter is not shown to have been of such importance as to require its preservation, it may well be presumed that the letter has been lost or destroyed, and secondary evi

dence of the address written on it may be admitted. In a trial involving the question, whether a particular person was the legitimate child

of his alleged parents, evidence of his personal resemblance to his alleged father is

not a missible. To render admissible the deposition of a deceased witness taken in an equity cause, it

is incumbent upon the party offering the deposition to prove the bill and answer in

the cause. The offer of the deposition should be accompanied with a proffer to show that it was

the deposition of a deceased witness taken un ler oath, in a judicial proceeding, involving substantially the same question or matter in dispute as that on trial, to which the plaintiff and defendant in the suit on trial were parties, and that the party against whom it is sought to be used had the right and opportunity to cross-examine the

witness. It is improper to offer all the original papers in the former cause without disclosing of

what the papers consisted.

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Not all the proceedings in an equity cause can be offered in order to let in the deposi

tion of a deceased witness, but only such parts of the proof as show the nature of the cause, and the parties to the controversy ; and they are not to be received as evidence for the jury, but for the court only, to enable it to determine whether the deposition

is evidence proper to be allowed to go to the jury. In order to prove the existence of a record which does not belong to the same court,

the proof must be by transcript under seal, and not by the original papers. The entire case, or the consideration of any particular question involved in it, should

not be taken from the jury upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, if there be any evidence from which a rational con

clusion may be drawn as opposed to the theory of such prayer. Before such a prayer can be granted, the court must assume the truth of all the evi

dence before the jury tending to sustain the claim or defence, as the case may be, and of all inferences of fact fairly deducible from it, as on demurrer to evidence; and this though such evidence be contradicted in every particular by the opposing evidence

in the cause. But where the evidence is of such an inconclusive nature that no rational conclusion can

be fairly drawn from it in support of the claim or defence sought to be maintained by it, it is the imperative duty of the court to instruct the jury that such evidence is

not sufficient to be considered by them. Questions as to whether verdicts have been rendered against the decided weight of

evidence, or in disregard of the rules of evidence, or from passion or prejudice, can only be dealt with by the court in which the trial takes place, upon motion for a new

trial. In a case involving the question of marriage, where there is no impediment to mar.

riage, and the connection between the parties was illicit in its commencement, it will be presumed to continue to be of the same character; and in order to overcome that presumption it will be necessary to adduce other evidence than that of the cohabitation of the parties to establish their marriage. If, after the birth of a person claiming to be the legitimate child of his parents, though born as a bastard, there be no cohabitation of his father and mother, the latter assuining the name of the former, and the parties treat each other as man and wife, and treat the claimant as their child, and they are treated as, and reputed to be, man and wife by their friends and acquaintances, these are facts proper to be submitted to the jury, from which marriage may be inferred, notwithstanding the original illicit connection

between the parties. The presumption of marriage will not arise from the cohabitation of a man with a

woman, if during her life and without any proof of a divorce, he marries another Under the law of this state the marriage of a slave without the consent of the master

was not actually void. The Act of 1777, ch. 12, prohibited ministers of the gospel from publishing the

banns, or celebrating matrimony between servants, or a servant and a free person, without the consent of the master. Held: that this act did not render the prohib

ited marriage void. On questions of marriage, births, deaths, &c., entries in a family Bible or Testament

are admissible, even without proof that they have been made by a relative, provided the book is produced from the proper custody. Proof of the handwriting or authorship of the entries is not required, when the book is shown to have been the family Bible or Testament. APPEAL from the superior court of Baltimore city.

This case arises from the following issues sent from the orphans' court of Baltimore city to the superior court for trial:

First, Is Henry Jones, one of the respondents to the petition in this cause, a lawful child of Andrew D. Jones, the intestate, whose estate is for distribution in the cause ?

Second, Did the said intestate leave a widow? If yea, who?

By the order sending these issues for trial, Henry Jones was to be the plaintiff in said trial, and David Jones and others the defendants. All the


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