district court; and the judgment of any court inferior to the supreme court, may be reviewed in the supreme court.

The plaintiff in error files his petition in error with a transcript of the record in the appellate court. Petition in error can not be filed in the supreme court, without an allowance by the supreme court or a judge thereof; in capital cases, the allowance must be by the court or by two judges thereof. Upon hearing, the court may affirm the judgment or reverse it, in whole or in part, and order the accused to be discharged, or grant a new trial.(1)

In Kentucky, the court of appeals has appellate jurisdiction in all cases of felony, and also in penal actions and prosecutions for misdemeanors, where the judgment is for a fine exceeding fifty dollars or imprisonment exceeding thirty days. The circuit court has appellate jurisdiction from the judgments of inferior tribunals, where the sentence is a fine of twenty dollars or more, or is imprisonment. Where an appeal is taken to the circuit court, the defendant files in the circuit court a copy of the summons or warrant, and of the judgment, together with a statement of the costs, and the case is tried in the circuit court as if no judgment had been rendered.

Where, after judgment in the circuit court, the defendant, at the same term, prays an appeal, the appeal is granted as a matter of right. The appeal is perfected by lodging in the clerk's office of the court of appeals, within sixty days after the judgment, a certified transcript of the record. The clerk issues a certificate that the appeal has been taken, but no summons or notice is necessary. A judgment of conviction must be reversed for any error of law, to the defendant's prejudice, appearing on the record. But it shall not be reversed for error in instructing or refusing to instruct the jury, unless the bill of exceptions contains all the instructions given to the jury.(2)

It is provided in the chapter on bills of exceptions, that decisions of a court upon challenges to the panel, and for (1) 74 Ohio L. 359–361.

(2) Crim. Code, title 9.

cause, upon motions to set aside an indictment, and upon motions for new trial, shall not be subject to exception. (1)

In Indiana, an appeal to the supreme court can be taken as a matter of right, by the defendant, from any judgment against him. It must be taken within one year after the rendering of the judgment. It is taken by serving on the clerk of the trial court notice that the defendant appears, and a similar notice upon the prosecuting attorney. The appellate court must give judgment without regard to technical errors or to exceptions which do not affect the substantial rights of the parties, and may reverse, affirm, or modify the judgment appealed from, and may, if necessary, order a new trial.(2)

In Illinois, in capital cases, the party aggrieved by manifest and material error appearing on the record may be relieved by writ of error, if the writ be allowed to issue by the supreme court in session, or by a judge thereof in vacation. In all other cases, a writ of error is a writ of right, and is issued of course.(3) The jury, in criminal cases, is judge of law and fact.(4) But the defendant may except to any ruling or decision of the judge, as in civil cases,(5) and, hence, may except to the court's overruling a motion for new trial.(6)

The provisions for appeal in Iowa are substantially the same as in Indiana.(7) In Iowa, if the judge to whom a bill of exceptions is tendered does not sign it within a day, it may be signed and sworn to by two or more attorneys or officers of the court, or disinterested bystanders, and filed with the clerk, and thereupon becomes part of the record.(8)

In Michigan, no writ of error, upon a judgment of conviction for treason or for murder in the first degree, issues, unless allowed by one of the justices of the supreme court, after notice to the attorney-general. In all other cases, the

writ issues as a matter of course. All proceedings upon writs of error are to be according to the course of the common law, as modified by practice and usage in the state, and by such general rules as may be made by the supreme court.(1)

In Ohio, Kentucky, Indiana, and Iowa, the state, as well is the defendant, can take a case by petition in error or by appeal to the appellate court. In Indiana, the state can appeal only upon a judgment for the defendant, on quashing or setting aside an information or indictment; upon an order of court arresting the judgment; or upon a question reserved by the state. Upon such appeal in Indiana, the supreme court can reverse a judgment quashing or setting aside an indictment or information, or an order arresting judgment; but in all other cases of appeal by the state the decision of the supreme court only settles the question of law reserved, but does not affect the judgment rendered in the case. (2) In Kentucky, a judgment in favor of the defendant which operates as a bar to a future prosecution for the offense can not be reversed by the court of appeals.(3) In such cases in Kentucky, and in all cases in Ohio and Iowa, the judgment of the appellate court has no effect upon the judgment rendered below, but only settles for future cases the law upon the questions considered.

Judgments in criminal cases in the federal courts are final, and are not subject to review by proceeding in error or an appeal. The district court must remit every indictment found therein for a capital offense, and may remit any indictment involving difficult and important questions of law to the circuit court; whereupon the circuit court proceeds as if the indictment had originally been found therein.(4) When the judges of a circuit court are divided in opinion upon any question in a criminal proceeding, the point shall, on request of either party, be certified to the supreme court. But this shall not prevent the cause from

(1) Rev. Stat. (1871), pp. 1969, 1970.

(2) Rev. Stat. (1876), vol. 2, p. 411. (3) Crim. Code, § 339. p. 192.

(4) Rev. Stat.,

proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits. (1) If the circuit or district court render judgment without having jurisdiction, the defendant can be discharged by the supreme court on habeas corpus.(2)]

(1) Rev. Stat., p. 117. 27

(2) Ex parte Lange, 18 Wall. 163.

CHAPTER XXIII.

REPRIEVE AND PARDON.

A REPRIEVE (reprendre) is the withdrawing of a sentence for an interval of time, whereby the execution of a criminal is suspended.(m)

Reprieves may be granted either:

i. By the crown (ex mandato regis) at its discretion; its pleasure being signified to the court by which execution is to be awarded.

ii. By the court empowered to award execution, either before or after verdict (ex arbitrio judicis). Generally, it must be guided by its own discretion, as to whether substantial justice requires it, as, for example, when it is not satisfied with the verdict. But in two cases the court is

bound to grant a reprieve. (a.) When a woman sentenced to death is ascertained to be pregnant. To discover whether she is quick with child a jury of twelve matrons is impaneled. If so found, she is reprieved until either she is delivered or proved by the course of nature not to have been with child at all. But after she has been once delivered, she can not be reprieved on this ground a second time. (b.) When the prisoner becomes insane after judgment. We have already seen that the occurrence of insanity in the prisoner is a stay to proceedings at any stage.

Pardon. The exercise of the prerogative of pardoning is at the absolute discretion of the sovereign. If, either from the opinion of judges represented to him, or for any other reason, the home secretary thinks the case a fit one for the interposition of royal mercy, he recommends the same to the queen, and she usually acts on the recommendation.

The sovereign can not pardon where private interests

(m) 4 Bl. 394.