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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
John Phleming was tried in the Circuit Court of Blount county, and found guilty of murder. He moved for a new trial, on the ground that the verdict was contrary spread on the record, judgment of death rendered against him, and the points arising on the motion referred to this court as novel and difficult.
Taylor, Kelly, and Hutchinson, for appellant; Hitchcock,, Attorney General, for the State.
LIPSCOMB, J.In the consideration of this case, two preliminary questions present themselves: 1st. Can this court take cognizance of a point reserved in the progress of the trial below? 2d. It is necessary that the prisoner, who is appellant, should be present at the trial of his case here?
The Constitution of the State restricts this court to appellate jurisdiction only, unless in the cases expected, under such regulations as may from time to time be prescribed by law. The Act of 1820 authorizes the Circuit Court to refer to the Supreme Court questions of law novel and difficult, and arising in a criminal cause. We believe that this act does not enlarge the jurisdiction, but that the only construction that can be given to it provides an additional mode of bringing a cause of this nature into this court, after final judgment shall have been rendered in the inferior court.
The Constitution guarantees to the accused the right of being heard by himself and counsel. It is said that he cannot be hard unless present. We are of the opinion that this guaranty applies only to the courts in which the facts are to be enquired into, and the accused to be confronted by the witnesses against him.
We believe that the mode of bringing the case here could not enlarge or restrict the jurisdiction of this court, and we proceed to examine it in the same way as any other.
The only matter assigned as error, is the denial of a new trial, which was moved for, on the ground that the verdict was contrary to the evidence. On general principles, a court of appeals cannot revise dicisions [sic] which were exclusively to the discretion of the inferior tribunal. Motions for new trial, for continuance, and a variety of others, are of this description. Among the authorities referred to, the first case in which it was decided of such a motion in the court below, is from Washington’s Report. All the subsequent decisions in Virginia, as cited, appear to have been bottomed on this. The case cited from Haywood’s Reports was an appeal from a judgment on a motion to quash an execution. Whether an execution could be quashed is clearly a question of evidence or not, says Judge Livingston, is matter of fact and not of law, and it is not competent for the Supreme Court of decide on facts. Several decisions of the Supreme of the United States recognize the same doctrine; one of them as late as the year 1810, after solemn argument, and long subsequent to the Virginia case. We do not consider that we derogate anything from the character of the judiciary of Virginia in acknowledging the higher respect which we entertain for the Supreme Judicature of the United States. As long as its character shall be sustained by the talents and learning of such Judges as Marshal, Story, and other distinguished men who are or have been members of that body, it will not detract from the State courts to acknowledge its decisions as the law.
We are of opinion that there is no error in the judgment of the Circuit Court.
The Chief Justice, having presided on the trial in the Circuit Court, gave no opinion.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 42-43.
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