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TRIAL OF JOHN W. WEBSTER. 327
3. If the Court should be of opinion that the record does show an
adjudication that the indictment should be entered in the Supreme
Judicial Court on a particular and fixed day, yet the record of this
Court shows that the indictment was not so entered on such day.
4. It does not appear from anything before the Court, that the
defendant was ever served with legal process, notifying him that the
indictment would be entered in the Supreme Judicial Court, and of the
day of such entry.
The first class of errors go to the jurisdiction of the Court.
The Supreme Judicial Court have no longer original jurisdiction
over indictments for capital offences. Since the statute of 1844, chap.
44, § 4, all such indictments in the County of Suffolk are made return-
able, in the first instance, to the Municipal Court; and whatever juris-
diction attaches to the Supreme Judicial Court, only vests at a subse-
quent period, and upon compliance with certain preliminary formalities.
By the statute just cited, § 4:-
"If the grand jury, attending at any term of the Municipal Court,
shall find and return to the Court any indictment for any crime punish-
able with death, if the person accused be not in custody, process shall
be forthwith issued for the arrest of the party charged with such offence,
and the party so charged shall, as soon as may be, be served with a, copy
of the indictment by the sheriff, or his deputy, with an order of court
giving notice to the accused that the indictment will be entered at the
Supreme Judicial Court, next to be holden in and for said County of
Suffolk, or at any intermediate time before the next term, when said
Supreme Judicial Court shall be in session in said county, and notice of
such indictment shall also be forthwith given to the chief or first
justice of that Court, by the clerk of said Municipal Court; and the said
clerk shall transmit and certify the original indictment to the Supreme
Judicial Court, at the next term thereof, or at any intermediate time
when said Supreme Judicial Court shall be in session in said county,
where it shall be entered, and the said Supreme Judicial Court shall
then and there have full cognizance and jurisdiction thereof, and the
same proceedings shall be had, as if the said indictment had been found
and returned in said Supreme Judicial Court."
Now, by this statute, certain preliminary proceedings are first to be
had in the Municipal Court, in relation to a transfer,-first of the indict-
ment; and secondly, of the custody of the person of the accused: and it
is only upon a compliance with these, that this Court shall have as "full
cognizance and jurisdiction thereof," as if the indictment "had been
found and returned in said Supreme Judicial Court."
We shall submit, that thus much at least should appear to have been
done by the Municipal Court:-an adjudication that the indictment shall
be entered in this Court; and an adjudication that it shall be so entered
on a certain fixed day before the next term thereof, (if, as was the case
in the present instance, this Court should be in session at the time of
finding the indictment.) Furthermore, this Court can only know of
these preliminary proceedings by a record; and the record of the Munici-
pal Court should also show that the defendant had been legally notified,
by proper process, of the time and fact of such entry.
All that was before this Court, at the arraignment and at the trial,
was the original indictment, with the certificate thereon of the clerk of
the Municipal Court which has been read, as it appears on the record
of this Court. The whole of this certificate, excepting so much thereof
as certifies the identity of the indictment, is a mere nullity. The clerk
is not a certifying officer, except so, far as the law gives him express
authority to certify. The record itself, or an exemplification of it, is
the only source from which this Court can judicially know that the
Municipal Court has taken the proper course to confer jurisdiction upon
it under the statute. A clerk's certificate is worthless for this pur-
pose.
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