Wood v. People

By the Court,

The bill of exceptions presented to us is not such as. the law requires. By the 2d Revised Statutes, 736, section 21, it is provided, that exceptions may be taken upon the trial of an indictment, by the defendant, to the decisions of the court, as in civil cases; but, by sections 23 and 24, such bill of exceptions shall not delay the execution of the judgment, unless a stay is indorsed upon such bill of exceptions after the same is settled and filed. In this case, no exceptions were settled, as required by law, by the court which tried the plaintiff in error, nor until a year after the trial. Three persons, who took no part in the trial, and were not members of the court where the trial was had, assumed to sign and settle the bill of exceptions. Such practice is wholly unwarrantable. The same court which tries a criminal must settle the bill of exceptions, and such settlement must take place before the final adjournment of the court, at which the trial is had.^[11] The fact that provision is made for such settlement, when the judge who tried the case is dead or gone out of office,^[12] indicates quite clearly that the judges who preside at the trial must settle the bill of exceptions, and that no other judges or officers can do so. It is self-evident, that such a rule is the only safe and prudent one.

If this conclusion be correct, there is no bill of exceptions in this case before this court, and its contents cannot be. examined, as a basis of action upon this writ. All that the writ has brought up, is the judgment record. Such questions, only, as arise upon the face of the record, can be reviewed. Nearly all the objections, upon which the plaintiff in error relies, are such that, if real, they will appear upon the record, and may, therefore, be reviewed. After pleading not guilty to the indictment, the plaintiff in error moved

Let us examine the various questions presented, and see whether the indictment is sufficient to sustain the conviction. Because the court is alleged to have been held in the town of Kingsbury, and the perjury to have been committed in the village of Sandy Hill, it is claimed that the conviction cannot be maintained. It is sufficient, that each count in the indictment charges that the court was held, and the perjury committed, in the county of Washington. That is all that was essential to jurisdiction in this case. The precise locality in the county is not matter of description, and need not be proved as laid. The charge is transitory.^[10]

But courts take judicial cognizance of the statutes of the State, whereby counties, towns, cities and villages are created, and thus know that the village of Sandy Hill is in the town of Kingsbury.^[6]

Another objection is, that the oath was administered March ysecond and the perjury committed March third, and that the indictment is therein repugnant. The time stated in an indictment when the oath was administered, is not material, so it be before the finding of the indictment, and within the statute of limitations.. There are certain exceptions, where time is of the essence of the offense, but this is not one of them.^[7] The time so stated is immaterial and may be rejected.

Another objection is, that perjury is imperfectly assigned. A careful reading of this indictment, satisfies me that the assignment

Whatever may be thought of the assignment of perjury in some of the counts, it is beyond doubt that the first count is good, under the above authorities; conceding that, a motion in arrest could not prevail, nor can a conviction be reversed. After a general verdict of guilty, as in this case, the conviction will be sustained, if there be one good count, though many others are defective.^[10]

It appears that, in 1869, Wood brought an action of slander against one Conant, alleging that Conant had charged him with killing a diseased cow, and selling diseased and unwholesome meat from said cow. Conant answered by general denial, and also justification. Upon the trial, Wood testified that the cow was never sick, to his knowledge, nor lame, nor had she any swelling, to his knowledge; that he had never told one George Chapin she had a swelling; that no part of the meat was cut off and thrown away; that the meat was not diseased; and that he ate a portion of said meat, etc., etc. All of this, and other evidence not here set forth, was, and is alleged to be, false, and for such alleged false swearing, this indictment was obtained. Upon a trial before a jury, Wood has been convicted. Notwithstanding it is believed the proceedings and evidence upon the trial are not properly before us for review, we will briefly allude to the objection raised in that respect. It is difficult to understand why all the testimony alleged to be false, was not material upon the issue above stated. Certainly, it all bore upon the possession, by Wood, of a diseased cow, his slaughtering her, his knowledge of her condition and the quality

Another objection is the refusal of the court to instruct the jury, as to the punishment of Wood, if convicted. The refusal was correct. The jury had nothing to do with the punishment, nor had the degree of punishment any possible right to influence their verdict. Such information would have been simply mischievous in its effect upon jurors, by creating sympathy or prejudice, in no respect aiding them in rendering a true verdict upon the evidence.^[11]

In the view taken of Wood’s evidence, no error was committed in allowing Woodcock to testify to the killing of the cow, and to finding a sore upon her which he cut off and threw away. It was essential to Oonant to prove the cow, in Wood’s possession, diseased, slaughtered in that condition, and diseased portions of the flesh thrown away. ' All these were circumstances, essential to be proved in justification. It may well be that other and more important facts must be established, but these were links in the chain, and were competent.

The decision of the court, in the admission of Brigham’s evidence, as to the quality of the beef, was correct. The reason he gave for such decision is not excepted to, and is' not covered by an exception to the admission of the testimony. The remark of the judge was not, apparently, addressed to the jury, and was not the object of an exception.

The writ of error brings before this court only the record and exceptions taken on the trial. It is not competent for the court to weigh the evidence, or pass upon the correctness of the verdict of the jury; questions of fact cannot be reviewed by writ of error. It is not analogous to appeals in civil cases. The evidence is only of use, in determining- the value of the exceptions taken.^[12]