Commonwealth v. O'Neil ( 1856 )

Metcalf, J.

1. Assuming that the sentence passed by the justice was void, and might have been treated by the defendant as void, (about which no opinion is required,) yet it does not follow that an appeal therefrom could not legally be taken. The Rev. Sts. c. 85, § 28, and c. 138, § 1, provide that every person, convicted before a justice of the peace, of any offence whatever, in any county except Suffolk, may appeal from the sentence to the court of common pleas. If the sentence be void, the defendant may undoubtedly omit to claim an appeal, and, if committed to prison, be discharged on a writ of habeas corpus, or may successfully defend against a suit on his recognizance, if he has entered into one, for not abiding the sentence. Still he may appeal to the court of common pleas, where he will be released, or a legal sentence be imposed; and is not obliged to incur the risk of acting on a mistaken opinion as to the nullity of his sentence. An appeal opens to him the whole case, as to the law, the facts and the judgment.

In civil cases, where an appeal is given from a justice’s judgment, such appeal is well taken from a judgment in a case in which the justice had no jurisdiction, and in which, of course, ais judgment is a nullity. Moore v. Wait, 1 Binn. 219. See also Brewer v. Murray, 7 Blackf. 567, and Wallace v. Brown, 5 Foster, 220.

2. We are of opinion that sufficient does not appear, on these exceptions, to warrant us in deciding that the three jurors, who were objected to, were legally incompetent to sit on the trial of the defendant. It does not appear that either of them was under any obligation, legal or honorary, to contribute any thing for the prosecution of this case. For aught that is shown, each of them may have paid, before this prosecution was commenced, the full sum which he had subscribed as a member of the Carson League. It therefore does not appear that either of them had any, even the smallest, pecuniary interest in the event of the prosecution; and the court cannot presume, without evidence, that they had. They might have been interrogated, on oath, whether they had expressed or formed any opinion in the case, or were sensible of any bias or prejudice; and their answers might possibly have been such as to exclude them from the panel. As these exceptions are framed, we cannot find in them enough to show that the judge, at the trial, was legally bound to set these jurors aside. It might have been well, if in his discretion he had done so. Exceptions overruled.