Imágenes de páginas
PDF
EPUB

Opinion of the Court.

611; Ex parte Wilson, 114 U. S. 417, 422; 1 Kent Com. 336. As aids, therefore, in its interpretation, we naturally turn to the decisions in England and in the several States of the Union, whose laws have the same source.

The law of England on this matter is not wholly free from doubt. But the theory that at common law the King could have a writ of error in a criminal case after judgment for the defendant has little support beyond sayings of Lord Coke and Lord Hale, seeming to imply, but by no means affirming it; two attempts in the House of Lords, near the end of the seventeenth century, to reverse a reversal of an attainder; and an Irish case and two or three English cases, decided more than sixty years after the Declaration of Independence; in none of which does the question of the right of the Crown in this respect appear to have been suggested by counsel or considered by the court. 3 Inst. 214; 2 Hale P. C. 247, 248, 394, 395; Rex v. Walcott, Show. P. C. 127; Rex v. Tucker, Show. P. C. 186; S. C. 1 Ld. Raym. 1; Regina v. Houston (1841) 2 Crawford & Dix, 191; The Queen v. Millis (1844) 10 Cl. & Fin. 534; The Queen v. Wilson (1844) 6 Q. B. 620; The Queen v. Chadwick (1847) 11 Q. B. 173, 205. And from the time of Lord Hale to that of Chadwick's Case, just cited, the textbooks, with hardly an exception, either assume or assert that the defendant (or his representative) is the only party who can have either a new trial or a writ of error in a criminal case; and that a judgment in his favor is final and conclusive. See 2 Hawk. c. 47, § 12; c. 50, §§ 10 et seq.; Bac. Ab. Trial, L. 9; Error, B; 1 Chit. Crim. Law, 657, 747; Stark. Crim. Pl. (2d ed.) 357, 367, 371; Archb. Crim. Pl. (12th Eng. and 6th Am. ed.) 177, 199.

But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority, that the State has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.

Opinion of the Court.

In a few States, decisions denying a writ of error to the State after judgment for the defendant on a verdict of acquittal have proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of a constitutional provision. See State v. Anderson (1844) 3 Sm. & Marsh. 751; State v. Hand (1845) 6 Arkansas, 169; State v. Burris (1848) 3 Texas, 118; People v. Webb (1869) 38 California, 467; People v. Swift (1886) 59 Michigan, 529, 541.

But the courts of many States, including some of great authority, have denied, upon broader grounds, the right of the State to bring a writ of error in any criminal case whatever, even when the discharge of the defendant was upon the decision of an issue of law by the court, as on demurrer to the indictment, motion to quash, special verdict, or motion in arrest of judgment.

The Supreme Court of Tennessee, in 1817, in dismissing an appeal by the State after an acquittal of perjury, said: "A writ of error, or appeal in the nature of a writ of error, will not lie for the State in such a case. It is a rule of the common law that no one shall be brought twice into jeopardy for one and the same offence. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down, by repeated attempts to carry on a prosecution against him. Because of this rule it is that a new trial cannot be granted in a criminal case, where the defendant is acquitted. A writ of error will lie for the defendant, but not against him. This is a rule of such vital importance to the security of the citizen, that it cannot be impaired but by express words, and none such are used in" the statutes of the State. "Neither does the constitution, art. 11, sec. 10, apply, for here the punishment does not extend to life or limb. The whole of this case rests upon the common law rule." State v. Reynolds, 4 Haywood, 110. In a similar case in 1829, the same court said: "The court are unanimously of opinion that no appeal lies for the State from a verdict and judgment of acquittal on a State prosecution. The State, having established her jurisdiction and tried her experiment, should be content. To permit appeals might be the means of unnecessary vexation." State v.

Opinion of the Court.

Hitchcock, cited in 6 Yerger, 360. In 1834, the same rule was applied, where, after a verdict of guilty, a motion in arrest of judgment had been made by the defendant and sustained by the court. State v. Solomons, 6 Yerger, 360.

In 1820, a writ of error obtained by the attorney for the Commonwealth to reverse a judgment for the defendant on demurrer to an information for unlawful gaming was dismissed by the General Court of Virginia, saying only: "The court is unanimously of opinion, that the writ of error improvidently issued on the part of the Commonwealth, because no writ of error lies in a criminal case for the Commonwealth." Commonwealth v. Harrison, 2 Virg. Cas: 202.

The Supreme Court of Illinois, in two early cases, as summarily dismissed writs of error sued out by the State, in the one case to reverse a judgment of acquittal upon exceptions taken at a trial by jury, and in the other to reverse a judg ment reversing for want of jurisdiction a conviction before a justice of the peace. People v. Dill (1836) 1 Scammon, 257; People v. Royal (1839) 1 Scammon, 557.

In 1848, a writ of error by the State to reverse a judgment for the defendant on a demurrer to the indictment was dismissed by the Court of Appeals of New York, upon a careful review by Judge Bronson of the English and American authorities, including several earlier cases in New York in which such writs of error had been brought, of which the court said: "But in none of the cases was the question either made by counsel, or considered by the court, whether the people could properly bring error. Such precedents are not of much importance." People v. Corning, 2 N. Y. 9, 15. That decision has been since recognized and acted on by that court, except so far as affected by express statutes. People v. Carnal, 6 N. Y. 463; People v. Clark, 7 N. Y. 385; People v. Merrill, 14 N. Y. 74, 76, 78; People v. Bork, 78 N. Y. 346.

In 1849, the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw, held that a writ of error did not lie in a criminal case in behalf of the Commonwealth; and therefore dismissed writs of error sued out to reverse judg ments upon indictments in two cases, in one of which the defend

Opinion of the Court.

ant, after pleading nolo contendere, had moved in arrest of judgment for formal defects in the indictment, and thereupon judgment had been arrested and the defendant discharged, and in the other the indictment had been quashed on the defendant's motion. Commonwealth v. Cummings, and Same v. McGinnis, 3 Cush. 212.

In the same year, the Supreme Court of Georgia made a similar decision, dismissing a writ of error sued out by the State upon a judgment quashing an indictment against the defendant; and, in an able and well considered opinion delivered by Judge Nisbet, said: "The rule seems to be well settled in England, that in criminal cases a new trial is not grantable to the Crown after verdict of acquittal, even though the acquittal be founded on the misdirection of the judge. This is the general rule, and obtains in the States of our Union. It excludes a rehearing after acquittal upon errors of law, and therefore, it would seem, denies also a rehearing upon judgments of the court upon questions of law, even when the jury have not passed upon the guilt or innocence of the prisoner. If the effect of the judgment is a discharge, there can be no rehearing, either by new trial or writ of error. Indeed it may be stated, as a general rule, that in criminal cases, upon general principles, errors are not subject to revision at the instance of the State." "These principles are founded upon that great fundamental rule of the common law, Nemo debet bis vexari pro una et eadem causa; which rule, for greater caution and in stricter vigilance over the rights of the citizen against the State, has been in substance embodied in the Constitution of the United States, thus: Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb."" After observing that this provision of the Constitution could have no direct bearing upon that case, which was of a misdemeanor only, and in which there had been no trial by jury, the court added: "The common law maxim, and the Constitution are founded in the humanity of the law, and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State. It is, doubtless, in the spirit of this benign rule of the com

Opinion of the Court.

mon law, embodied in the Federal Constitution - a spirit of liberty and justice, tempered with mercy that, in several of the States of this Union, in criminal causes a writ of error has been denied to the State." State v. Jones, 7 Georgia, 422, 424,

425.

The Supreme Court of Iowa, in 1856, ordered a writ of error sued out by the State, after the defendant had been acquitted by a jury, to be dismissed, not because to order a new trial would be against art. 1, sec. 12, of the constitution of the State, declaring that "no person shall after acquittal be tried for the same offence," (for the court expressly waived a decision of that question,) but only because of "there being no law to authorize a writ of error on the part of the State in a criminal case." State v. Johnson, 2 Iowa, 549.

The Supreme Court of Wisconsin, in 1864, held that a writ of error did not lie in behalf of the State to reverse a judgment in favor of the defendant upon a demurrer to his plea to an indictment. State v. Kemp, 17 Wisconsin, 669. The Supreme Court of Missouri, in 1877, made a similar decision, overruling earlier cases in the same court. State v. Copeland, 65 Missouri, 497. And the Supreme Court of Florida, in 1881, held that the State was not entitled to a writ of error to reverse a judgment quashing an indictment, and discharging the accused. State v. Burns, 18 Florida, 185.

In those States in which the government, in the absence of any statute expressly giving it the right, has been allowed to bring error, or appeal in the nature of error, after judgment for the defendant on demurrer to the indictment, motion to quash, special verdict, or motion in arrest of judgment, the question appears to have become settled by early practice before it was contested.

In North Carolina, the right of the State has been strictly limited to the cases just enumerated, and has been denied even when the defendant was discharged upon a judgment sustaining a plea of former acquittal as sufficient, in law, or upon a ruling that there was no legal prosecutor; and the Supreme Court has repeatedly declared that the State's right of appeal in a criminal case was not derived from the common law, or

« AnteriorContinuar »