I am compelled to dissent. If there were no bill of exceptions before the Supreme Court, that court committed no legal error in looking at a paper they called a bill, as they found no error in it. It was a perfectly harmless thing; just as harmless as if they had looked for error on the lawn adjoining the court-house, and found none. It was no part of the duty of that court to make or settle a bill of exceptions. It was the exclusive duty of the prisoner's counsel to prepare the bill, if he had any faith in the case, and of the Court of Oyer and Terminer (not of the Supreme Court) to settle it, when presented for that purpose. The case does not show that such a bill was ever prepared or presented. *Page 9
It was the clear right of the Supreme Court, at the instance of either party, to order to argument any cause pending there for that purpose.
If they gave the prisoner the benefit of a literal, verbatim report of the trial, contained in a copy of the reporter's notes, called it a bill of exceptions, and examined it, as if it were a legal bill, to see if the prisoner had sustained any legal prejudice, surely the prisoner cannot complain. He had made no bill of exceptions, as it was his duty to do, if he desired it, before the case was brought into the Supreme Court. If the reporter's notes had been struck out, he was left there with the simple record of conviction.
Nor can the prisoner come here and insist that this court shall look at this claimed bill of exceptions, with more liberality, because his counsel omitted to prepare it or have it settled.
If there be no bill of exceptions here, it is clear that this court has no legal authority, no jurisdiction, to reverse this judgment upon a pretence that there is a bill here. We cannot make one. We have as little right (if we call it a bill at all) to interpret it otherwise than we do any other bill of exceptions. We cannot legally usurp executive functions, and set aside the judgment upon statements not in the bill, either from sympathy or "liberality" of construction.
There was no error in allowing the witness to answer whether the cry he heard of "Oh, Joe!" for some little time, was a cry of joy or distress; whether it indicated joy or agony.
The witness answered, "he did not think she did it for pleasure."
The difference is easily perceived, but almost impossible to describe. To exclude such testimony would exclude evidence of a "groan," and compel a witness to describe the noise.
This was on Saturday night, as she was killed on Monday morning following.
But if there was error in allowing this question, this court would commit a greater error, if it reversed the judgment for that cause. *Page 10
It is well-settled law, that "a verdict will not be set aside on bill of exceptions, though there was error on the trial, if the error was such that it could do no legal injury." (Shorter v. The People, 2 Comst., 193; The People v. Gonzales,35 N Y, 49.) The above were both capital cases.
The first related to an error in the charge of the judge; the second to the admission of improper evidence; and it was held that, when the fact which that evidence tended to prove was independently established by undisputed and competent evidence, and thus no injury could have resulted to the prisoner, this court had no authority to reverse the judgment on that ground.
The tendency of this evidence, as claimed by the prisoner's counsel, was to prove that the prisoner was maltreating or beating his wife on that Saturday night.
Yet it is independently proved, by two witnesses, that, on Sunday, the next day, she charged him with beating her on Saturday night, and breaking a stool over her head. He admitted the beating, but insisted that the stool did not break, but that the legs came out; but he said, "I broke her comb." Other maltreatment at the same time was proved in the same manner.
There is no other objection in the bill of exceptions of sufficient moment to allude to.
Mention was made of a witness describing a bunch on the head of deceased, as if to allow the inference that the prisoner had made it. This was not left to inference. The witness testified that she said he did it, in his presence, and the prisoner did not deny it.
It is urged that the record is fatally defective, in omitting to state that the prisoner was asked, if he had anything to say why sentence should not be pronounced upon him.
This ceremony was required in England at a time when prisoners were not allowed counsel. Hence this inquiry; so that, if the prisoner had received a pardon, he might plead it, or he might move in arrest of judgment. These are the reasons assigned for the rule. No case has been found in England *Page 11 where the omission to make the inquiry had been held ground for reversing the judgment, except in cases of treason. The rule is now generally laid down in elementary writers, that, in treason (not in other felonies), the conviction will be reversed for its omission. The reversal is confined to cases of treason.
In this State, there was never the slightest reason for the rule. Prisoners have always had counsel here; and this inquiry was never necessary to enable them to plead a pardon or move in arrest. Here the prisoner is allowed a bill of exceptions to review decisions at the trial, as in civil cases. His rights are abundantly and carefully secured. No bill of exceptions is allowed in England; no new trial is authorized there.
We all know that this inquiry, so far as any legal effect is concerned, is here utterly idle. Not a case in our books shows that the rule was ever adopted here. The prisoner here, I may say, never makes the motion in arrest — never pleads a pardon. It is done by his counsel, and he does not wait to be inquired of, before moving. He moves, or pleads, in season or out of season. If the prisoner have capacity to defend himself, and prefer to do so, he takes the like course.
If this judgment be set aside, therefore, upon this ground, it is for the purpose of allowing this prisoner, in person, not by counsel, to make a motion, or put in a plea, which, every lawyer knows, he never will do. If he had any cause for either, his counsel would have done it. Yet, for the omission of this idle ceremony, this judgment is to be set aside, and the whole merits again tried. For this idle ceremony, the rule of England is to be extended further than any case has carried it there; further than any elementary writers extend it. Besides, if he had any ground whatever for motion in arrest, it would appear in this record, on this writ of error, and he could reverse the judgment on that ground now; as, whatever is ground for arrest is now ground for error. (1 Chitty's Cr. Law, 5th Am. ed., pp. 751, 752.) But it affirmatively appears, on inspecting the record, that he has no such *Page 12 ground; in fact, none is pretended. Again, if he had a pardon in this State, he could avail himself of it, even up to the gallows.
But, assume this inquiry to be necessary, then the statute of 1863 makes a new trial unnecessary. It provides that, where "the conviction has been legal and regular, the appellate court shall have power to remit the record to the court in which such conviction was had, to pass such sentence thereon as the appellate court shall direct." (Laws of 1863, p. 406.) "Conviction," in this statute, means "when the jury find him guilty. He is then said to be convicted of the crime whereof he stands indicted." (4 Bl. Com., 362; 1 Bouv. Law Dict., 282.) But this is not denied. In fact, "conviction" is so used generally in statutes, as to punishments.
When the "conviction," then, has been "legal and regular," and some illegality or irregularity afterward intervened, it may be corrected by a regular and proper sentence, without the absurdity of a long trial on the merits again, in order to pronounce the sentence properly.
It is said that, if a wrong sentence had been passed, we might direct a right one. But, if the right sentence had been irregularly passed, the statute gives us no authority. That qualification may be found in the court. It is not in the statute. Its only qualification is, if the "conviction has been legal and regular," then we may remit, and direct the court to do — what? to "pass such sentence as the appellate court shall direct." The act provides a remedy for an irregular sentence, as plainly and in terms, as it does for an erroneous sentence, and with precisely the same reason. The object of the statute seems very plain. It is to correct any irregularity or illegality occurring after the conviction, when the merits have been fully tried. It is to correct the point where there had been illegality, without touching the merits, when there had been none, as to their trial. When people were hung for petit larceny, courts might well speak in favorem vitæ. But now, when punishments are proportioned to offences, I see no *Page 13 reason for seeking to shield the highest criminals, while the petty offenders are punished with rigor.
Where human life is in issue, greater care and caution should be exercised, to get at the truth, to arrive at a right result. When that is found, no more favor should be shown to the willful murderer than to the petty thief. But the penalty due to each should be declared with the same impartial justice.
I have been able to find no error in the trial of this prisoner, or in the record thereof. The judgment should be affirmed.
Judgment reversed, and new trial ordered.