Boice v. State

Berkshire, President. The questions arising in each of these cases being the same, they were, by consent, argued and heard together. Looking to the records alone, it appears that the plaintiffs in error were tried and convicted of murder in the first degree in the circuit court of "Wood county, and that sentence of judgment was pronounced against them respectively, on the 2nd day of November, 1864. That after verdict, and when sentence was about to be pronounced, they respectively moved the court in arrest of judgment, upon the ground that it was not competent for the court then to proceed to enter judgment against them, for the reason that the time for the commencement of the circuit court of Jackson county, in the same judicial circuit, as fixed by law, (a fact of which this court will take judicial notice) was on the first day of November, 1864, and that the circuit court of Jackson county having, therefore, in point of law commenced on that day, the circuit court.of 'Wood county, of consequence, legally ended at the same time. And it is [334] insisted by tbe attorney for tbe plaintiffs in error bere, that tbe judgments pronounced against them, for tbis reason, were in fact coram non -judice. Annexed to and accompanying these records, however, are certain affidavits and certificates of tbe clerk and deputy clerk of tbe circuit court of Wood county, declaring certain extraneous facts as to tbe mode and manner in which tbe records were in fact, made up, which do not appear on tbe face of tbe records proper, as certified by tbe clerk; and it is contended by tbe attorney for tbe plaintiffs in error, that tbe facts set forth in these affidavits and certificates show error in tbe proceedings, on tbe part of tbe judge, of which they ought- to be allowed to avail themselves in tbis court. As to tbe latter question it is sufficient to remark, that in reviewing tbe proceedings of tbe court below it is not competent for tbis court to look beyond tbe records to facts de hors tbe same; and if it were otherwise, still it appears from tbe affidavits and certificates, that tbe assignments of error in arrest of judgment, and tbe additions made to tbe same by tbe judge, which are complained of bere, were in fact all prepared, made up and consummated on tbe 3rd day of November, 1864, after tbe court bad in fact adjourned on the day previous, and were, therefore, in tbe opinion of tbis ■court utterly null and void and cannot be considered bere. Looking then to tbe records alone, tbe court is further of opinion, that tbe circuit’court of Jackson county did not necessarily commence, in law, on the first day of November, 1864, as contended for by tbe attorney for tbe plaintiffs in error, and that it wTas competent for tbe circuit court of Wood county to continue and pronounce judgment against tbe prisoners at tbe time it did on the 2nd day of November, 1864. And that in tbe absence of proof to tbe contrary, it must be presumed and intended that there was sufficient time after tbe judgments were entered against tbe prisoners, for tbe judge to have reached tbe court-house of Jackson county by tbe ordinary course of travel, before four o’clock of tbe third day of tbe term of that court; and if tbe prisoners wished to avail themselves of such objections. [335] they should have made it appear by bill of exceptions or otherwise, according to the authority of Mendum’s case, 6 Randolph, 717, and of Hill’s case, 2 Grattan, 611. .And the court is further of opinion, that some of the counts in the indictment being good, the circuit court committed no error in overruling the motions to quash the same. The judgments therefore must be affirmed. Judgments affirmed.