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THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

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the judicial power of punishing for contempt, or to afford occasion for such an unseemly conflict between two independent branches of the government as is now presented. Can it be contended that a commitment of a witness for contempt on a trial for impertinence to the court is a "conviction," and that the power is vested in the governor to pardon him for such an offense? As the courts have no power to compel the governor's action by mandamus or his attendance by subpoena, so he has no power to nullify their punishment for contempt. These disabilities grow out of the independent nature and functions of the two offices and the necessity for allowing to each the capacity of judging for itself. Judge Noah Davis points out, in the Tribune, that section 13, Code of Civil Procedure, provides that punishment for contempt shall not bar an indictment for the same offense, but in sentencing, the court must take into consideration the former pun

It is a very serious question whether Governor Hill had any power to pardon the Onondaga super-ishment, and argues that if the former punishment visor, Welch, for contempt in disobeying the order of the Supreme Court in respect to election returns. Our first impression was that the pardoning power does not extend to such cases, and this is strengthened by ex-Governor Cornell's argument. He says: "The Supreme Court existed long before the State or the Constitution, and was possessed of all requisite powers, rights and prerogatives to maintain its authority and enforce its mandates. ** * The Supreme Court has never been divested of its legal authority and jurisdiction, but has been preserved as an independent branch of the State government. Ability to enforce its lawful mandates is an essential element of its powers and duties. The right to punish for neglect or contempt of its processes is the only effective weapon by which the force and authority of the court can be appropriately mauifested and maintained. * * ** It is of vital importance to the independence of the judiciary and the freedom and liberties of the people that he should not be authorized to exercise clemency or in any manner interfere with the custody of persons under punishment for indifference or refusal to observe the mandates of the Supreme Court.” Every thing depends on the sense in which the words "after conviction" are used in the Constitution. Their ordinary and popular meaning undoubtedly implies a preliminary trial, by a court and jury, and a verdict, which is the "conviction." It could not have been the intention to enable the executive to interfere with and arbitrarily thwart VOL. 45-No. 1.

were upon a "conviction," the proceeding by indictment would be constitutionally unlawful as putting the accused twice in jeopardy. No man can be twice "convicted" of the same offense. This reasoning seems conclusive. The case must be judged by our peculiar constitutional and legislative provisions above mentioned, and so construed, it seems that the governor has exceeded his powers. But it will be impossible for any adherent of Judge Kennedy to support him when he admits that Welch was "tried and convicted." This admission would clearly give away his case. It is always dangerous to chatter to reporters.

When we look at the books the meaning of the word "conviction " is not made entirely clear. Bishop says it "ordinarily signifies the finding of the jury, by verdict, that the prisoner is guilty." Such is the meaning given by Bouvier and by Anderson. "In ordinary phrase, the meaning of the word conviction is the finding by the verdict of a jury that the accused is guilty." Blaufus v. People, 69 N. Y. 107. in Quintard v. Knoedler, 53 Conn. 485; S. C., 55 Am. Rep. 149. The Massachusetts Constitution forbids pardon "before conviction," and Gray, J., in Com. v. Lockwood, 109 Mass. 323; S. C., 12 Am.

By Folger, J., in
The same is said

Rep. 609, in a very learned opinion, citing a great number of authorities, ancient and modern, reaches a like conclusion. Blackstone speaks of conviction as accruing in "two ways: either by his confessing the offense and pleading guilty, or by his being found so by the verdict of his country."

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"In common parlance no doubt it is taken to mean the verdict at the time of trial; but in strict legal sense it is used to denote the judgment of the court.” By Tindall, C. J., in Burgess v. Bactefeur, 7 M. & G. 481. (This is contrary to Folger, J.'s, view, which is that it is the verdict, and not the judgment.) In U. S. v. Watkins, 6 Fed. Rep. 152, it is held that under the Oregon Constitution, providing that “the privileges of an elector shall be forfeited by a conviction of any crime which is punishable by imprisonment in the penitentiary," the word "conviction " does not include "sentence," and is used in its ordinary sense of verdict or plea of guilty. To the same effect is Blair's Case, 25 Gratt. 850. In Keithler v. State, 10 Sm. & Marsh. 192, it was held that "conviction" includes judgment. But it must be borne in mind that these utterances concern the meaning of the word as distinguished from judgment. In Re Mullee, 7 Blatch. 23, the court held that it would not relieve the prisoner from imprisonment for contempt in disobeying an injunction, until the president should disclaim the power to pardon him, and that such pardon was within the president's "power to grant reprieves and pardons for offenses against the United States," citing Ex parte Kearney, 7 Whart. 38, in which the Supreme Court say: When a court commits a party for a contempt, their adjudication is a conviction, and their commitment in consequence is execution." But in the latter case the question was not of pardon, but only of habeas corpus, which it was held would not lie in such a case. Bishop, citing this case, says: "Contempts of court are public offenses, pardonable like any other." Wharton says: "In our American practice the right of executive pardon has been asserted," citing the case of Mullee, but he also says that there is "a strong reason" to the contrary "in the fact that if the executive could discharge from imprisonment witnesses imprisoned for contempt, no trial, legislative or judicial, could proceed without executive consent." Webster defines conviction as "the act of proving, finding or determining to be guilty of an offense charged against a person before a legal tribunal; as by confession, by the verdict of a jury, or by the sentence of other tribunal, as in the summary convictions before commissioners of the revenue." The Century Dictionary defines it as "the act of proving or finding guilty of an offense charged; especially the finding by a jury or other legal tribunal, that the person on trial is guilty of the offense charged; sometimes used as implying judgment or sentence;" and defines summary conviction as "a conviction had without trial by jury, as in cases of contempt of court, of attempt to corrupt or withhold evidence," etc. We have thus given, impartially, we believe, the various meanings and expres

sions on this subject. The precise case under con sideration never before arose, but it seems to us that the peculiar language of our Constitution means "after verdict." This is strengthened by the associated words, "reprieves" and "commutations." Judged by the rule, a sociis, the word "conviction "is used only in respect to offenses to which the words "reprieves" and "commutations" are applicable. It seems that only one class of offenses is contemplated - the ordinary class indictable and triable by a jury, in respect to which the governor may reprieve or commute after sentence or pardon after verdict.

It is very difficult to write so as not to be misunderstood. We have rather prided ourselves on having at least the virtue of writing clearly, but our pride has received a shock from the American Law Review's inability to understand one of our preachments. In its current number, the Review, speaking of our recent comments on the Georgia decision that a negro's house is his castle, says: "Our contemporary seems to think it remarkable that such a decision should emanate from a southern court." Not at all. We neither said, nor implied, nor thought any thing of the sort. On the contrary we should have thought it remarkable if such a decision had not so "emanated." We simply advised the southern people to respect it. The only southern court in which there is any lack of justice to the negro is the court of Judge Lynch, and his court is not confined to the south, but sits in the west, and occasionally in the north. We heartily concur with the Review when it says: "We cannot recall a case where we have discovered the faintest disposition on the part of a southern appellate court to discriminate against a defendant" (party?) "because of his color." So, good Mr. Reviewer, when you do us the compliment to read us please read us more carefully, and make us not the text for a page of implied fault-finding.

The Review says it has not learned the result in the case of the Democratic State committeeman in this State, who being nominated for Supreme Court judge would not "quit the ticket nor quit the machine." We can tell him. He was elected, but has not yet "quit." It is hoped and believed now that on New Year's day, the usual time for forming good resolutions, he will let go his hold on the machine. Nobody wants him to give up his office, for he is eminently fit. The Reviewer tells one startling piece of news, "The American Law Review, for instance, is a corporation; but nearly all its stock is held by a talented Harvard law student, who, being at once ambitious and wealthy, devotes himself to his law studies and the care of his investments. He will no doubt be heard from in the editorial department of this publication in the fullness of time." But don't let him conduct the Review on the Harvard law school "method!" The Review has a capital portrait of Judge Dillon, with a good memoir of the accomplished lawyer, judge and author. Its lead

ing articles are of interest, especially "Liberty of Contract under the Police Power," by Frederick N. Judson, the "History of the First Georgia Code," by Richard H. Clark, and "A Lawyer's Commentary upon the famous case of Shylock v. Antonio," by the late Judge Love, of Iowa. The last is the best of the kind that we have ever seen. The following in regard to "relative dramatic probability," affords us especial delight:

"Thus if the scene were laid in Wall street, it would be absurd to exhibit the ghost of a dead stock-jobber prowling upon the street. For in the first place, every spectator would be apt to say in his own heart that there never was a stock-jobber with soul enough left in him to make a respectable ghost; and in the second place, such an exhibition would not inspire awe, since very likely the impression would prevail that it was an evil spirit sent by the devil to bull or bear the stock market. A money panic might be the consequence, but certainly not the tragic emotions of pity and terror."

The writer also gives a vigorous vindication of the Jewish race. We do not see that Mr. Judson comments on the adjudications holding that a master may not contract beforehand with his servant for exemption from liability for injury by his own or his employee's neglect, which seems to us the very acme of injustice and absurdity. There is a very readable and admirable London letter on the

present English bench and bar, the best thing of the kind that we have seen in many years. From this we learn that Lord Chancellor Halsbury is an expert Hebrew scholar, that Lord Hannen is a vegetarian, and that Mr. Justice Hawkins loves horseracing. Judge Dillon, in a touching memoir of Judge Love, "weighing his words" pronounces him "the best nisi prius judge I have ever seen." The Review declares the Federal Supreme Court to be the greatest judicial tribunal in the world." Careful, careful! For saying exactly that It of Manitoba took us severely to task.

NOTES OF CASES.

IN Atchison, T. & S. F. R. Co. v. Wilson, Circuit Court of Appeals, Eighth Circuit, October, 1891, it was held that in an action against a railroad company, brought under the Revised Statutes of Missouri, § 4425, et seq., by a widow for the death of her husband while in its employ, the loss of companionship or society of the husband is not an element of damages and it is error to instruct that the jury may consider such loss in estimating the damages. The court said: "Error is also assigned on the charge of the court that the jury might consider the loss which defendant in error sustained in consequence of being deprived of her husband's society. In two cases reported from the Supreme Court of Missouri before this action was tried, it was held that such damages were properly allowed in an action by a husband for an injury to his wife. Blair v. Railroad Co., 89 Mo. 335; Furnish v. Railway Co., 102 id. 669. In the absence of other expression from that court, it might well be assumed that the same rule

would obtain in an action on the statute by husband or wife. Since this case was tried however an opinion of that court has been published which distinctly declares that, in an action on the statute by a wife for the death of her husband, nothing shall be allowed for loss of society. Schaub v. Railway Co. (Mo. Sup.), 16 S. W. Rep. 924. As already pointed out, the earlier cases were common-law actions for injuries to the wife, and it is not to be assumed that the last case is in conflict with the others. On the authority of the Schaub Case, and because it seems to be in accord with the current of authority elsewhere, we feel bound to declare that the law of Missouri is and has been that in an action on the statute of that State by a wife for the death of her husband, the loss of companionship or society of the husband is not an element of damages, and therefore there was error in the instruction mentioned."

In People v. Cahoon, Michigan Supreme Court, November 20, 1891, the court said: "Zeal in a prosecuting attorney is entitled to the highest commendation, but that zeal must be exercised within proper limits. In civil cases counsel often take too much latitude in the cross-examination of witnesses. Witnesses are entitled to respectful consideration, and it is the duty of courts to see that they are protected from the insinuations and attacks of counsel whether the insinuation or attack is direct or is in the form of a suggestive question. In criminal cases the prosecuting attorney is a public officer, acting in a quasi judicial capacity. Juries very properly regard him as unprejudiced, impartial and non-partisan; and insinuations thrown out by him regarding the credibility of witnesses for the defense are calculated to prejudice the defendant. Here the prosecution depended upon one witness. The defendant and his wife were the only persons at the affray. The questions put to Mrs. Cahoon, viz.: 'Is it not a fact that you were not there at all? Has this been written out? Is it not a fact that you and your husband have concocted this whole story?

You have been a witness for your husband in every lawsuit he has had, have you not?'- reflected upon the character of the witness, and bring the case within the rule laid down in Sullivan v. Deiter (Mich.), 49 N. W. Rep. 261. See also Leahy v. State (Neb.), 48 id. 390; People v. Montague, 71 Mich. 447; People v. Quick, 58 id. 321; People v. Dane, 59 id. 550. The witness does not appear to have attempted to evade any questions. When asked if she and her husband had not talked the matter over, she replied promptly that they had. The prosecuting attorney had an undoubted right to follow up this answer, and bring out that talk; but clearly he had no right to discredit the witness by innuendo. He could not have expected the witness to have answered that what she had sworn to was written out for her, or that she and her husband had concocted the story. The questions as to her husband's lawsuits, and as to whether she had not been a witness in all of them, were manifestly improper.

What occurred after the defense had rested is
equally indefensible.
However innocent the pur-
pose of the prosecuting attorney may have been, his
remarks were calculated to impress the jury with the
belief that the people were prepared to impeach the
defendant by his own neighbors, and that the pro-
curement of witnesses for that purpose was usually
difficult, but in the present case was an easy matter.
When the court declined to admit the testimony,
the prosecuting attorney recalled the defendant, and
proceeded to question him as to whether he had
not been impeached in other cases, and if, in a num-
ber of other instances, his neighbors had not been
brought into court for the purpose of impeaching
him. This was clearly an attempt to break down
this witness by methods innuendo, rather than by
competent testimony, and could not have been less
than prejudicial." It is our impression that none of
this would have been held objectionable or even ob-
jected to in this State.

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495, Vice-Chancellor Shadwell says, that 'in Johnson's Dictionary, in Richardson's Dictionary and in Bailey's edition of Facciolati, the word 'relations' is treated as extending to affinity; and the expressions 'a relation by marriage,' and a 'relation in the law, as denoting connections by affinity, are popularly, whether correct or incorrect, of occasional, if not of frequent, use.' In our more modern dictionaries we find that a 'relation' or 'relative' is defined as a person connected by blood or affinity. When used in a contract, as in this case, I do not find that it has such a fixed and definite meaning that we must thwart the purpose of this decedent, who supposed that by the terms of the article giving him control of his benefit in the relief fund, he could bestow it on any one of those popularly called 'relatives' whom he might select. It seems also that a liberal, rather than a restricted, meaning given to the word 'relative,' used in this article of the association, would better comport with its benevolent purpose. The construction In Bennett v. Van Riper, Court of Errors and contested for against this certificate would exclude Appeals of New Jersey, November, 1890, the by- a member's wife, unless she came within the other laws of a charitable association, organized to estab- part of the phrase by being dependent on him for lish a relief fund for the benefit of its members, pro- her support. The ties of affinity are often stronger vided that on satisfactory proof of a member's death than those between collateral, or even lineal, kinsthe person or persons designated by such member men by blood; and there is nothing unreasonable "related to or dependent upon him should be enin saying that this certificate was made payable to titled to the sum named in his certificate of mem- one whom the holder supposed was properly classed bership. Held, that the phrase "related to" prop- among his relatives, and that the council so inerly includes the wife of a member's grand-nephew, tended. Where there is no fixed legal or technical though she was neither related to the member by meaning which the court must follow in the conblood, nor dependent upon him. The court said: struction of a contract, then the best construction,' "I think there was error in confining the meaning says Chief Justice Gibson, 'is that which is made of this term 'related to' within the narrow limit by viewing the subject of the contract as the mass which has been adopted in the construction of wills of mankind would view it; for it may be safely asand in some statutes. From the indefinite extent sumed that such was the aspect in which the parof the word 'relations' it has been found necessary ties themselves viewed it. A result thus obtained to limit it in these cases by confining it to the next is exactly what is obtained from the cardinal rule of of kin under the statute of distributions. Smith v. intention.' Navigation Co. v. Moore, 2 Whart. 491. Campbell, 19 Ves. 400; Bennett v. Honeywood, Amb. It seems that the objects of this association will be 708. This includes relations by blood and not by best attained by the adoption of a common, though affinity, and is applied unless the testator has sub- it may be an inexact, interpretation of the words joined to the gift expressions declaratory of an in-related to' as used in the article above referred to, tention to include them. 2 Jarm. Wills, 666; Esty v. Clark, 101 Mass. 36. In Bacon on Beneficial Societies, section 260, it is said: 'It has long been settled that the word 'relatives,' when used in a will or statute, includes those persons who are next of kin under the statute of distributions; unless from the nature of the bequest, or from the testator having authorized a power of selection, a different construction is allowed.' Mahon v. Savage, 1 Schoales & L. 111; cases in notes to Harding v. Glyn, 1 Atk. 469; 3 White & T. Lead. Cas. 810; Drew v. Wakefield, 54 Mo. 291. In this certificate there is a power of selection given, not by will, but by the contract between the parties. There are therefore qualifications to this rule of construction, even in cases of wills, when a contrary intention is manifested. There can be no question about the intention of the holder in this case upon the face of the certificate. In Craik v. Lamb, 1 Colly. 489,

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rather than by a restricted meaning that may not have been known, and is certain to defeat the purpose of this deceased member; and that no rule of legal construction will be violated by giving it such meaning."

CONSTITUTIONAL LAW.

REGULATION OF

COMMERCE - PENALTY FOR DETENTION
OF RAILROAD FREIGHT.

NORTH CAROLINA SUPREME COURT, SEPT., 1891.

BAGG V. RAILROAD Co.

A statute of North Carolina imposing a penalty on railroad companies for detention of freight is not unconstitutional as to freight consigned to points beyond that State, as an infringement of the power of Congress to regulate com

merce.

THIS

HIS was a civil action brought to recover a penalty imposed by section 1967 of the Code for detention of freight more than five days after delivery for ship

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