Commonwealth v. Brigham

Shaw, C. J.

delivered tin opinion of the Cou-t. The only question in the present case is whether the defendant had a right of appeal to this Court, without entering into recognizance to prosecute his appeal, with sufficient sureties. This depends upon the construction of the statute giving the^ right of appeal, St. 1832, c. 130, § 3. It provides, that a person convicted before the Court of Common Pleas, in the cases named, may appeal to the Supreme Judicial Court, provided the appeal be claimed within a convenient time before the rising of the court, and the party appealing shall within such convenient time recognize to the Commonwealth. And it further provides, that the party so appealing shall be in custody until he shall so recognize, or be sentenced for want of such recognizance.

There hardly appears any room for construction upon these provisions. The right of appeal is strictly conditional, and that upon a condition precedent. The condition is, to give such recognizance at such convenient time within the term. The appeal is from the conviction, not from the sentence. And the provision, that the party shall be in custody until he recognize, or be sentenced, carries a manifest implication, that he is to be sentenced in default of a recognizance.

It is argued, that the object of the recognizance is to secure the person of the appellant, to be forthcoming on the trial of the appeal, and that his remaining in custody is an equivalent security. But this, we think, is arguing on the mere probable intent of the legislature, against the plain provisions of the statute. It was competent for the legislature to allow a right of appeal, in such cases and upon such terms as they might prescribe, and, in this respect, it was in their power to take into their view, any considerations of justice and policy. We think they have put the matter beyond doubt, by giving the right of appeal only on the terms of providing sufficient sureties, and that the courts of justice are bound by the terms of the statute. This is, we believe, not a new provision in the recent act; it is the revisal and reenactment of an old law, which has long had the same construction.*

Exceptions overruled.

* A different provision is made by the Revised Statutes, under which the convict shall have his appeal, if claimed in due season; and the appellant shall stand committed to abide the sentence of the appellate court, until he shal. recognize, &c. Revised Stat. c. 138. § 5