On Petition eoR a REHEABiNe.
It is due to -the counsel who represented the accused, both in the lower and Supreme Court, to say that they have done so with a learning and zeal which are the more creditable, as the defendant is a pauper, incapable of offering any remuneration for the valuable services rendered him. No blame whatever can be attached to them for not presenting the matters incident to the motion for a new trial in the shape of a bill of exception, as the bench and bar have been, for a long series of years, in doubt as to whether the facts submitted to the judge in such a proceeding could at all be reviewed by the appellate court. District Judges have gone so far as to refuse permitting the testimony from being taken at all in writing, and in this they were sustained.
It is fortunate, however, that the testimony was so reduced in the present instance.
We readily admit the uselessness of a bill where the evidence and' the ruling are of record ; but think that we have gone far enough in favorem libertatis civis, without upturning a sort of irregular practice, *848which, was a step in the right direction, and which may be viewed as a protest against the refusal of the judge to grant the relief sought. The rulings in the cases of Swayze and Gunter, 30 A. 1323, 537, do not lay down that this Court can review the facts on a motion for a new trial, in the absence of a bill of exception. They refer to the 11 A. p. 478, which requires the taking of such a bill. The opinion which we have rendered in this case itself shows how inconsistent and superfluous we consider such a practice: but we are not prepared to alter our views presently on the subject.
Eor the quiet of the consciences of the counsel who have conducted the defense, we will take the liberty of saying that even had a bill of exception been taken in this case embodying the affidavit and the testimony produced on the motion for a new trial, and had we to express an opinion on that evidence, we would have considered it as insufficient to support the alleged grounds of misconduct on the part of the sheriff and jury.
The acts complained of were tolerated under what was considered to be admitted rules in such instances. Those which we have laid down are intended to operate prospectively, and cannot, in justice, be applied to cases originating previous to their announcement.
Rehearing refused.