Holliday v. People ( 1847 )

The Opinion of the Court was delivered by

Treat, J.

At the September term 1844, of the Perry Circuit Court, an indictment, containing five counts, was presented against James Holliday for administering poison to procure abortion. He appeared at the next term and made a motion to quash the indictment, which was sustained as to the first count, and overruled as to the other counts. He then pleaded not guilty and obtained a continuance. At the succeeding term, on his application, the venue was changed to the county of St. Clair. In the Circuit Court of the latter county, at the May term 1846, he appeared and was put on his trial. When the jury returned into Court, he was called but failed to answer, and the verdict was received in his absence. It found him guilty, and fixed the period of his imprisonment in the penitentiary" at one month. During the same term, he appeared and entered a motion to set aside the verdict, because it was contrary to the evidence, and because it was received in his absence. The Court overruled this motion, and a motion in arrest of judgment, and pronounced sentence on the prisoner pursuant to the verdict. He prosecutes a writ of error.

The application for a new trial, on the ground that the verdict was contrary to the evidence, was addressed to the sound discretion of the Circuit Court, and its decision thereon cannot be reviewed by this Court. Baxter v. The People 3 Gilm. 368; Pate v. The People, ib. 644.

The motion in arrest of judgment was properly refused. It is conceded that the indictment contains one good count, and that, on the authority of the case of Towsend v. The People, 3 Scam. 326, is sufficient to uphold the verdict.

The transcript sent from the Perry Circuit Court showed the finding of the indictment, and contained a copy thereof, and of all the proceedings had in the cause. The record from the St. Clair Circuit Court states, that the original indictment was received with the transcript. The mere omission of the clerk of the former Court to append a certificate to the transcript, that the paper transmitted therewith was the original indictment, ought not to vitiate the proceedings, especially as this objection was not made in the Circuit Court. Granger v. Warrington, 3 Gilm. 299.

Was the verdict properly received in the absence of the prisoner? According to the principles of the Common Law, -in all capital cases, the verdict .must be received in open Court, and in the presence of the prisoner. 2 Hawkins’ P. C., Ch. 47, § 2; 3 Thomas’ Coke, 392; The People v. Perkins, 1 Wend. 91. Mr. Chitty says: “The verdict, whatever may be its effect, must, in all cases of felony and treason be delivered in the presence of the defendant, in open Court, and cannot be either privily given; or promulgated while he is absent. And in all cases where the jury are commanded ‘to look on him,’ as in larceny, and all accusations subjecting him to any species of mutilation, or loss of limb, the same rule applies, without exception. In all trials for inferior misdemeanors, however, a privy verdict may be given, and there is no occasion for the presence of the defendant.” 1 Chitty’s Crim. Law, 636. We recognize the validity and propriety of the rule in capital cases, without determining whether it extends to cases of felony. It is manifest that the present case does not come within the rule, as laid down by Chitty, but is clearly within the exception stated by him. The offence charged in the indictment is a misdemeanor only. It was but a misdemeanor at the Common Law. A recent British statute has declared it to be a felony. Arch-bold’s Crim. Pl. 413.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.