United States v. Fullerton

U.S. Circuit Court for the District of Southern New York

United States v. Fullerton

25 F. Cas. 1224, 6 Blatchf. 275, 9 Int. Rev. Rec. 3, 1868 U.S. App. LEXIS 1434

CourtU.S. Circuit Court for the District of Southern New York

DecidedDecember 19, 1868

StatusPublished

This text of 25 F. Cas. 1224 (United States v. Fullerton) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Fullerton, 25 F. Cas. 1224, 6 Blatchf. 275, 9 Int. Rev. Rec. 3, 1868 U.S. App. LEXIS 1434 (circtsdny 1868).

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Opinion

NELSON, Circuit Justice.

The practice in question has heretofore been confined, with few exceptions, to the trial of capital cases; and, even in those, I do not now recollect an instance where any division of opinion occurred on the trial, resulting in a certificate of a question to the supreme court. Generally speaking, motions in arrest of judgment, or for a n* w trial, which are liberally indulged, afford sufficient security against errors or mistakes at the trial. A division of opinion may be certified on a motion in arrest of judgment (U. S. v. Kelly, 11 Wheat. [24 U. S.] 417), though it cannot on a motion for a new trial. But, where there is a difference of opinion on a motion for a new trial, such g direction will be given to the ease as will enable the defendant to obtain a certificate of a division under the statute. A new trial will be granted, and the cause will be again submitted’to a jury in the presence of the two judges, and the question or questions will be regularly certified. This has occurred in a very few instances in the Northern district of New York, and also in the Southern district of New York, and, indeed, as far as I can remember, in every case where a serious and well-grounded difference existed.-

I think that, under these guards and securities against error, on the trial of the current and ordináry offences against the laws, the contingency or possibility of a difference of opinion between the two judges on the trial does not present a case which would justify an interference with the trial of the cause in the usual way. in conformity to the practice in criminal cases.

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NELSON, Circuit Justice.

The practice in question has heretofore been confined, with few exceptions, to the trial of capital cases; and, even in those, I do not now recollect an instance where any division of opinion occurred on the trial, resulting in a certificate of a question to the supreme court. Generally speaking, motions in arrest of judgment, or for a n* w trial, which are liberally indulged, afford sufficient security against errors or mistakes at the trial. A division of opinion may be certified on a motion in arrest of judgment (U. S. v. Kelly, 11 Wheat. [24 U. S.] 417), though it cannot on a motion for a new trial. But, where there is a difference of opinion on a motion for a new trial, such g direction will be given to the ease as will enable the defendant to obtain a certificate of a division under the statute. A new trial will be granted, and the cause will be again submitted’to a jury in the presence of the two judges, and the question or questions will be regularly certified. This has occurred in a very few instances in the Northern district of New York, and also in the Southern district of New York, and, indeed, as far as I can remember, in every case where a serious and well-grounded difference existed.-

I think that, under these guards and securities against error, on the trial of the current and ordináry offences against the laws, the contingency or possibility of a difference of opinion between the two judges on the trial does not present a case which would justify an interference with the trial of the cause in the usual way. in conformity to the practice in criminal cases.

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Bluebook (online)

25 F. Cas. 1224, 6 Blatchf. 275, 9 Int. Rev. Rec. 3, 1868 U.S. App. LEXIS 1434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fullerton-circtsdny-1868.