Anderson v. State

5 H. & J. 174

Opinion

Dorsey, J.

delivered the court’s opinion. The plaintiff in error was convicted m Dorchester county court ot misdemeanors under the act of 1809, eh. 138, s. 4, art. 10, and sentenced to undergo a confinement in the Penitentiary for the term of five years. Upon this judgment he sued out a writ of error, by which the transcript of the. record was removed to this court. The court do not hesitate to say, that a defendant, against whom a judgment has been rendered for a misdemeanor, is ex debito justitiee, entitled to. prosecute a writ of error, and that this court are bound to, correct any errors which may appear in the record. We wish not to be understood as meaning to convey an opinion that a writ of error, during its pendency, works a suspen. sion of execution on the judgment

Footnotes

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(a). Upon an examination of the record it appears, that the counsel for the traverser after his conviction, applied to the court below for a, Aew trial, on the ground that they had misdirected the jury In matters of law, and. the motion, which was reduced to ' writing, not only suggests the facts, but the opinion of the court as declared to the jury. Whether the traverser could, in the progress of the trial, have excepted to the opinion of the court; which was afterwards inade the foundation of the motion for a new trial, is not the question now before the court; and we certainly do not mean to decide, whether a. bill of exceptions can he taken in a criminal prosecution for a misdemeanor. But we are decidedly of opinion, that the refusal of an inferior court to grant a new trial cannot be assigned for error. The Marine Insurance Company vs. Hodgson, 6 Cranch, 218. The law has been considered as settled in this country beyond all controversy; and no case can be found in England where a superior tribunal, acting on the. transcript of the record, or the record itself, brought before them by a writ of error, has entertained such a question. If the plaintiff in error had a right to except to the opinion which the court below declared to the jury, he ought to have done so at the trial. If the law has denied to him this privilege, the decision of the county court must be considered as final.

JUDGMENT AFFIRMED.

Huguenin vs. Baseley, ,15 Ves. 180.