|
328 TRIAL OF JOHN W. WEBSTER.
The record of the Municipal Court which has been produced here,
only states that said Court passed an order that the sheriff should
notify this defendant, "that the indictment will be transmitted to and
entered in the Supreme Judicial Court now in session in the County of
Suffolk;" but there is no decree that the indictment shall be so entered.
If the above order be tantamount to an adjudication or decree, then
the adjudication virtually is, that the indictment be entered on that
very day on which the decree was passed; which the record shows was
not complied with; and this non-compliance furnishes our third ground
of error, to the jurisdiction. We say on that very day, because this
Court was in session on that day; and it could not be judicially known
to the Municipal Court that the Supreme Judicial Court would be in
session after that day. But the indictment was not entered in this
Court for a long time after that day; namely, not until the 30th of
January.
As to the fourth error insisted upon under the first head,-that the
defendant was never served with legal process, notifying him when the
indictment would be entered in this Court,-the copy actually served
upon him is now before the Court. It will be seen that it is only signed
by the clerk, but is not under the seal of the Municipal Court.
If this order is in the nature of a writ, it is null, because it does not
bear the seal of the Court from which it issued, as is required by the
Constitution of the Commonwealth, 'chap. 6, art. 5. By that, "all writs,
issuing out of the clerk's office in any of the courts of law, shall be in
-the name of the Commonwealth of Massachusetts; they shall be under
the seal of the court from whence they issue; they shall bear teste of the
first justice of the court to which they shall be returnable, who is not
a party, and be signed by the clerk of such court."
If the order is but a process issuing from the Municipal Court,-and
this much we think must be conceded,-then it is void for want of a
seal; as the statute of 1843, chap. 7, § 7, directs, that all "precepts,
war-
rants processes," &c., issuing from said Court shall be under its seal.
The particular errors insisted upon under the second general head
are these:-
First, That neither the judgment nor sentence express where the
execution of the sentence shall take place.
Second, That the judgment restricts the execution of the prisoner
from being consummated in one of the places authorised and assigned
by law.
By the record of this Court, which I have just read, it appears that
the sentence says, "It is considered by the Court that the said John W.
Webster be taken to the jail whence he came, and thence to the place
of execution, and there be hanged by the neck until he be dead."
Now by the Revised Statutes, chap. 139, § § 11 and 13, it is provided,
upon this point, as follows:
"Sect. 11. When any person shall be convicted of any crime for
which sentence of death shall be awarded against him, the clerk of the
court, as soon as may be, shall deliver to the sheriff of the county a cer-
tified copy of the whole record of the conviction and sentence; and the
sheriff shall forthwith transmit the same to the governor; and the sen-
tence of death shall not be executed upon such convict until a warrant
shall be issued by the governor, with advice of the council, under the
great seal, with a copy of the record thereto annexed, commanding the
sheriff to cause execution to be done; and the sheriff shall thereupon
cause to be executed, on such convict, the judgment and sentence of the
law."
"Sect. 13. The punishment of death shall, in every case be inflicted
.by hanging the convict by the neck until he is, dead; and the sentence
shall, at the time directed by the warrant, be executed within the walls
of a prison of the county in which the conviction was had, or
within the enclosed yard of such prison."
|
