Weed v. . the People

No point was made or suggested before the Supreme Court except one arising upon the form of the sentence; and that was that the sentence omitted to designate the State prison in which the plaintiff in error should be imprisoned. The court, without looking further into the return, held that this omission was not error, as neither the sheriff nor the prisoner had been misled by it, and there was no reason to doubt the latter had enjoyed his term of service in a proper prison. The statute does not require that the sentence shall specify the prison. (3 R.S. 5th ed., 1089, § 99.) It directs in what prison persons sentenced to imprisonment in the State prison in the several judicial districts, shall be confined; and the same section provides for the removal of convicts from one prison to another as circumstances may require, which would be inconsistent with a requirement that the sentence shall be absolute for some designated prison. In declaring the punishment for perjury, the statute provides that the person convicted "shall be punished by imprisonment in a State prison." (3 R.S., 961.) The better practice undoubtedly is to designate the prison in the sentence, but an omission to do so would not invalidate the judgment. More than sixteen years had elapsed after the conviction and sentence of the plaintiff in error, before any record was filed, or writ of error brought. A conviction for perjury attaches some consequences to the convict, which are supposed to be beyond the reach of executive clemency. The statute declares that he "shall not thereafter be received as a witness, to be sworn in any matter or cause whatever, until the judgment against him bereversed." (3 R.S., 5th ed., 960, § 1.) To such a convict it may in some cases be of considerable importance to regain the right to testify in the courts of justice; and here perhaps may be found a key to unlock the mystery of the making up of the remarkable record before us. The gross carelessness with which it is framed, is quite suggestive of the end in view. The trial took place before Hon. N. DAYTON, Esq., late *Page 468 circuit judge of the Eighth Circuit, and Dexter Ewell and John Brooks, two judges of the Court of Common Pleas. The record is in proper form down to the joining of issue. It then recites: "And afterwards, to wit, at a Court of Oyer and Terminer, and general jail delivery, held in and for the county of Erie, at the court house in the city of Buffalo, on the 23d day of June, one thousand eight hundred and forty-six, before his honor, NATHAN DAYTON, circuit judge of the Eighth District Court of the State of New York, and Dexter Ewell and John Brooks,justices of said court, comes the said Thomas A. Weed, and George P. Barker, district attorney, likewise comes. Therefore let a jury thereupon immediately come before the said justicelast above mentioned of free and lawful men of said county, by whom," c. The record then recites the summoning and empanneling of the jurors, who were duly tried, sworn, c., and proceeds thus: "Who, upon their oaths aforesaid, say that the said Thomas A. Weed is guilty of the felony above charged, in the form aforesaid, as, by the indictment aforesaid, is above alleged against him, and upon this it is demanded by the said Thomas A. Weed whether he hath or knoweth anything to say wherefore the said justice here ought not, upon the premises and verdict aforesaid, to proceed to the judgment against him who nothing further saith, unless as before he has said." "Whereupon all and singular the premises being seen, and by the same justice now here fully understood, it is considered by the said justice that the said Thomas A. Weed, for the felony aforesaid, be sentenced, and the said justice thereupon sentenced the said Thomas A. Weed to imprisonment," c. From these recitals it appears that Weed was tried, convicted and sentenced by and before one John Brooks, justice of the said Court of Oyer and Terminer, for he is the "justice last abovementioned" before whom the jury were directed to appear, and who, as "the same justice," appears to have arraigned the prisoner for sentence and pronounced judgment upon him. Of course Brooks could hold no court for the trial of the plaintiff in error, and could have no jurisdiction to pronounce judgment upon him; and if we are to *Page 469 act on the document called a record, brought up by the writ of error, it is manifest we must reverse the conviction and sentence. Although we have no question that the recitals of this record are not true, and that in fact Weed was tried and convicted in due form of law by and before a properly constituted Court of Oyer and Terminer; yet the record, if it be one, imports absolute verity, and must control our disposition of the case. But I think the paper brought up by the writ is not a judgment record. It is signed by a person subscribing himself as district attorney — not the officer who tried the indictment, but one long subsequently chosen. At most, it is his much mistaken memorandum of events, of which he had no personal knowledge. To constitute a record it should have been signed by a judge of the court. The law on this subject, in criminal proceedings, has not been changed. The statute, which authorizes a defendant who shall have been convicted or acquitted to require the district attorney to make up a record of judgment, and on his neglect to do so for ten days, provides that "such defendant may himself cause the same to be made up, signed and filed" (2 R.S., 738, § 4), has not changed, but recognizes the then existing law. I know no statute which authorizes the district attorney to "sign" the record. It is essential to constitute a judgment record that a judge of the court should sign it, and without such signature it is no record. There is nothing, therefore, before us calling for our interference with the judgment which the Oyer and Terminer rendered against the plaintiff in error. The court below should have dismissed the writ of error, instead of giving judgment upon it; and it seems to me the disposition this court should make of the case should be to reverse the judgment of the Supreme Court, and order that court to dismiss the writ of error, for the want of any judgment record upon which it could properly act. *Page 470