# State v. Brown

> Delaware Court of Oyer and Terminer · February 15, 1896 · 16 Del. 380

URL: https://www.frixlaw.com/law-library/cases/8487249

## Case

- **Full name:** State v. Daniel Brown, John J. Swan and Michael Lynch
- **Court:** Delaware Court of Oyer and Terminer
- **Decided:** February 15, 1896
- **Citations:** 16 Del. 380
- **Precedential status:** Published
- **Opinion:** Dissent by Cullen
- **Judges:** Cullen, Grubb, Lore
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8487249

## Opinion text

Cullen, J.
I regret very much that there should be a diversity of sentiment among the members of this Court upon the question that is presented for our consideration. But to my mind the facts are beyond all cavil and all doubt.
The Court of Oyer and Terminer is a Court that is organized *416 under the provisions of the Constitution for an express purpose that is, the trial of capital offenses. Its functions are entirely confined to that, and it is regulated entirely by statute. It is not a Court having terms like the other Courts. It is subject, under the' provisions of the statute, to be called by what is termed a “ precept,” which has always been the practice.
Much has been said here with regard to what has been the practice in this matter. In fact, there never has been but one practice, and that practice always will be just as it has been. Until a few years ago, all these forms were written out; they were not printed. I have never known of an indictment in a capital case that was not found in the Court of General Sessions, excepting one at the last term here, or the term preceding the last. Heretofore, the form of these precepts was drawn up by the Judges of the Court of Oyer and Terminer, who would put in some provisions with regard to the summoning of jurors. The Court of Oyer and Terminer, acting as such Court in the trial of cases, may, of course,, act as a distinct Court and have its own grand jury. It may act in particular cases on indictments which are found without its having such grand jury. That is left entirely in the discretion of the Court, according to the necessities of the case. That is to say, if the indictment is to be found in the Court of Oyer and Terminer, there must be a grand jury summoned fór that Court. If there is not such a grand jury, then it is a nullity; and you are trying a man just the same as if three justices of the peace should summon a grand jury and send in an indictment here; for you must have something to rest upon. It is not a matter of form; it is a matter of substance.
A man has a right, not only to have a fair and impartial trial, but he has a right to a trial according to the law of the land. What is the law of the land ? That a Court of Oyer and Terminer shall be called; that it shall try all cases that are found within the Court of Oyer and Terminer, summoned as provided by statute. This is all a question of statute law; without the statute it is utterly *417 null and void, and a man tried under those circumstances is tried without law, gospel or anything else.
With regard to the issuing of this precept; the precept went out, and it stands there as nothing else in the world but a general order to call the Court of Oyer and Terminer. That is all. This indictment was not found by a grand jury summoned to the Court of Oyer and Terminer. That cannot be disputed. There is no doubt about it. This indictment was found by the grand jury of the Court of General Sessions of the Peace and Jail Delivery. Those are facts that are proven here for our consideration.
That indictment has never been certioraried or sent up to this Court. It is contended here that the defendants did not plead in abatement, and thereby waived their right. Plead in abatement to what? To a nullity? Is a defendant bound to enter a plea in abatement in a proceeding which is null and void ? All those cases that have been' cited refer to cases where there is irregularity. In substance, they are to the effect that if a person waives his right, where there is an irregularity or an informality, he cannot after-wards, having pleaded, take advantage of it. But where the proceedings are null in their incipient stage, at the very bottom and foundation, then the party can take advantage of it either by plea in abatement or by motion in arrest of judgment. It is never too late.
I know the general idea is that these parties have had a fair and impartial trial. Still, we must be governed by law. Once depart from the right path, and where are we?
Here are parties that have been tried—admittedly tried without any law or authority, because you have no Court of Oyer and Terminer unless that Court is legally called and legally exists. If it is legally called and legally exists, and cases are found by such Court, well and good; but if they are found by another Court, then you must follow the provisions of the statute, and the case must be regularly carried up by certiorari. That has not been done in this case.
As to the legality of this precept, the endorsement thereon is *418 a nullity. Nothing is in a paper except it is the body thereof. The paper, therefore, which is the record itself (and that is what we are trying) discloses that here is an indictment found in the Court of General Sessions and tried in the Court of Oyer and Terminer without being removed thereto by certiorari: which this Court has no more authority to try than we would have to try these men under an indictment for larceny and convict them of manslaughter.
I think, therefore,—although I am very sorry to disagree with my brother judges,—that the motion in arrest of judgment ought to be granted.
The court being equally divided the motion in arrest of judgment did not prevail.
Ward and A. G. Gray, for the prisoners Brown and Swan, thereupon raised the point that the jury having returned a verdict against the above named defendants, it was necessary for the Attorney General to make a motion that sentence be passed.
The Court unanimously overruled this point.
It was furthermore contended that the Court having been equally divided upon the question of jurisdiction, which had been raised in the motion in arrest of judgment, no judgment could be pronounced by the Court.
Lore, C. J.
When a verdict is found, judgment passes as a matter of course unless arrest of judgment is ordered. The judgment will not be arrested without the interference of a majority of the court. As the motion has not prevailed, Judge Grubb will pronounce the sentence of the law upon the convicted prisoners.
Grubb, J.
Daniel Brown and John J. Swan, stand up.—• Have either of you anything to say why the sentence of the law should not now be pronounced upon you ? You say nothing.
*419 It has become a general usage for the judge imposing the sentence to make suitable preliminary remarks to the convicted prisoner in even ordinary criminal cases in this State. To pursue this course is peculiarly appropriate and important in the present instance, in view of the public and wide-spread interest felt in this very notable case, in consideration of the novel questions and uncommon incidents attending this hardly-contested and protracted trial, and in the hope that your conviction and punishment will have a beneficial influence upon those charged with the custody of those hapless and helpless inmates of insane hospitals here and elsewhere, who deserve kindly sympathy and gentle care instead of callous indifference and brutal cruelty.
The grand jury of this county, in attendance on this Court, having found an indictment charging you jointly with murder of the second degree, for the felonious killing of Leon Pisa, on October 5, 1895, in the Delaware State Hospital at Farnhurst, in this county, you were both tried and zealously defended by able and faithful counsel before an impartial jury at the bar of this Court, and found guilty of manslaughter.
On the morning of that day Leon Pisa was an inmate of said hospital. According to the evidence he was a well man sitting quietly on a seat beside one of the witnesses in this case, when you, Daniel Brown, directed him to go with you and receive the bath required by the hospital regulations. It is not shown that he was then actually demented, or a lunatic of violent or dangerous habits or disposition. He resisted by holding on by the seat until he was pulled from it and conducted along the corridor by you, Brown, and the witness, Oakes, to a point about five feet from the bathroom door, where you, John J. Swan, were then standing within sight of and immediate reach of him.
There Leon Pisa, an unarmed man, not shown to be a violent or dangerous patient, was surrounded by you, Brown, and Oakes, and within reach of you, Swan—all three of you vigorous, trained hospital attendants. It was not shown that he was greatly superior to any of you in either size or strength; nor that the three of you *420 could not reasonably and without force or violence fatal to his life have controlled him and defended your own lives and persons against any serious harm from him- Nor is it shown that, in the struggle which you both testified to, either of you received the slightest wound or injury to your persons. Yet, within a very few minutes after that struggle, Pisa was a dead man in your hands, with a completely fractured skull and two broken ribs.
Moreover, although it should have been manifest to Dr. Hammond, if he was a competent physician, that Pisa had not died from natural causes, he was nevertheless hastily buried without notice to the coroner and in violation of law.
In view of these undisputed facts, in connection with all the evidence in the case, the jury disbelieved your, defence and found that you had feloniously caused the death of Pisa and were each guilty of manslaughter.
Thereupon, through your counsel, you moved for a new trial on several grounds, among them that the verdict was unwarranted by the law and the evidence, and also that the Court, being equally divided as to the competency of David M. Waples as a witness, erred in admitting him to testify before the jury, although he was admitted subject to the right of the jury to judge of the credibility and weight of his testimony viewed in connection with all the other evidence.
To obtain a new trial, the burden was upon you to satisfy a majority of this Court—in this instance three—of the sufficiency of the grounds urged in that behalf. This you failed to do; for the Court was equally divided on the subject—one-half of us believing that the verdict was in all respects just and legal. Accordingly, a new trial was refused.
The prevailing members of the bench, who denied your mbtion, were not only satisfied that Waples was not shown to be incompetent to testify, but were also convinced that, under the precedents and settled practice in this and other Courts of this State he was legally admitted by the division of the Court as to his admissibility. This principle was established in this very Court in the *421 case of State vs. Brown, 1 Houst. Cr. Cas. 545, by Chief Justice Comegys and Judges Wootten, Houston and Wales, sitting in that case, as necessary to the progress of a trial under our judicial system. That their decision is binding upon us as a precedent and course of practice applicable to this case, until reversed at least by a majority of this Court, which has not yet been done, is firmly believed by our side of this Court, consisting of Judge Marvel and myself. ■
Tour application for a new trial having failed, thereupon your counsel moved an arrest of judgment. After argument and mature consideration that motion failed to secure the support of the requisite majority of this Court, and the motion, owing again to a divided Court, has been overruled; and, judgment not being arrested, sentence, as a matter of course, must now be passed upon you.
That a divided Court should produce this result is not new or surprising in this State or elsewhere. Very recently the Supreme Court of the United States, the highest judicial tribunal in the land, was equally divided on the question of the constitutionality of the United States income tax law. The result was that the statute stood until subsequently a majority was obtained to secure its total annulment.
Again, in 1819, in this State, in the case of Clark vs. Kean, 1 Del, Ch. 114, the High Court of Errors and Appeals, by an equally divided Court, affirmed a decree of the Chancellor before it on appeal; and thereupon all the Judges unanimously concurred in framing and rendering the required form of judgment of affirmance. They did this as absolutely necessary under our judicial system to prevent a deadlock and consequent miscarriage of justice in any case before the Court. During the three-quarters of a century which have since elapsed, this rule has continued to be uniformly observed in this State by our Court of Errors and Appeals, as well as in this Court as shown by State vs. Brown, which I have just cited.
As late as 1888 it was expressly considered and unanimously recognized in the Court of Errors and Appeals in the case of *422 Walker vs. Farmers Bank, 8 Houston, 258 , in which I myself sat with Chief Justice Comegys and Judges Houston and Paynter. So that it is impossible now to question its justice, or disregard its binding authority in this instance without utterly repudiating the wise and necessary doctrine of adhering to the precedents established in our highest and most authoritative judicial tribunal.
The verdict of the jury in this case, like the decree of the Chancellor in the cases I have just mentioned is presumed to be valid and legal in all respects until the contrary is found by a majority of the court in which it is called in question. Before verdict, the accused person is presumed to be innocent until the jury is satisfied beyond a reasonable doubt of his guilt. After verdict he is presumed to be guilty until the legal validity of the verdict is impeached to the satisfaction of a majority of the Court in one of the modes allowed and recognized by the law.
Here there are but two modes allowable for this purpose, namely, the respective motions for a new trial and in arrest of judgment. These having been resorted to by you in vain, and your right to move to challenge the grand or petit jury panels, to^ quash the indictment, and to plead in abatement before verdict, not having been exercised, you have either exhausted or waived the liberal provisions reasonably allowed by law for the protection of the accused. As the public have rights as well as the accused, the law can justly accord no further delays consistently with the public interest and welfare.
Nothing further can now be urged against the legal validity of the proceedings relating to your trial, or of the verdict against you. You are therefore, in legal contemplation, conclusively presumed to be guilty of manslaughter, and the law will not permit the contrary to be shown. This being so, it is the imperative mandate of the law and the absolute duty of the Court to pronounce the sentence of the law for the punishment of the offense found by the verdict. It is not the sentence of the court but of the law, for the court is but the appointed agent of the law to execute its mandate.
Our statute declares that every person who shall commit the *423 crime of manslaughter shall be deemed guilty of felony and shall be fined not less than $400.00 nor more than $4000.00, and shall be imprisoned for a term of not less than one nor more than five years. Hence it peremptorily forbids the court to impose upon the person lawfully convicted of manslaughter less than a $400.00 fine and one year’s imprisonment or more than a $4000.00 fine and five years’ imprisonment. Between this prescribed minimum and maximum the court is allowed a discretion but as to whether or not it will impose this minimum it has no discretion. This much must be imposed whether the court, as a whole or a divided' bench, approve of it or not. Ita lex scripta est. A unanimous—much less a divided—court is powerless to repeal a statute; nor can it lawfully evade its mandate. To attempt this would be to violate the law which the court was created to enforce, and to disregard the duty which it has solemnly sworn faithfully to perform. If persisted jn, the consequences of such a course would surely paralyze the administration of justice, subvert social order, and imperil the public safety and general welfare.
Wherefore, it is that the grave and imperative duty is now devolved upon this Court of imposing upon each of you the sentence of the law which you have been legally found guilty of violating.
The sentence of the law, as considered by the Court, is that you forfeit and pay to the State of Delaware a fine of $400.00 ; that you be imprisoned in the public jail of this county for the term of one year, commencing this day and ending the 17th day of March, A. D., 1897, and that you pay the costs of your prosecution ; and you are now committed to the custody of the Sheriff until this sentence is fully executed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8487249. Public record. Not legal advice.