A division of the judges of the circuit court, on a motion for a
new trial in a civil or a criminal case is not such a division of
opinion as is to be certified to this Court for its decision under
the sixth section of the Judiciary Act of 1802, ch. 291.
This was an indictment in the Circuit Court of South Carolina
against Lewis Daniel charging him with having knowledge of the
actual commission of the crime of willful murder, committed on the
high sea by John Furlong and with unlawfully, wickedly, and
maliciously, concealing the same, &c.
The indictment set forth at large the indictment and conviction
of John Furlong for willful murder on the high seas, and then
charged Lewis Daniel with the knowledge and concealment of that
murder and with not having disclosed the same in the words of the
act of Congress. The prisoner was tried on the plea of not guilty.
It was proved that some of the persons present on board when the
principal felony was committed had in conversation stated the fact
of the murder to the defendant, who advised them to escape,
promised secrecy, offered them the means of escape, and actually
assisted one of them in escaping, but there was no evidence that
the defendant knew of any fact which would have constituted legal
evidence on the trial of the principal felon. The judge charged the
jury that the concealment, under the circumstances, was sufficient
to convict the defendant, and the jury found a verdict
Page 19 U. S. 543
of guilty. The defendant then moved in arrest of judgment and
for a new trial on the following grounds. That a person is not
liable to be indicted and convicted under the 5th section of the
Act of April, 1790, c. 36, for the punishment of certain crimes
against the United States unless he has such knowledge of the
felony as will enable him to testify in court at the trial of the
principal felon, and particularly that in this case the evidence
did not prove the defendant guilty of misprision of murder
according to the terms of the said act. The motion was also
supported by an alleged misdirection of the court to the jury. The
judges being divided in opinion on this motion, it was ordered to
be certified to this Court.
Page 19 U. S. 546
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
Page 19 U. S. 547
The indictment in this case is certainly sufficient to sustain a
judgment according to the verdict, and all the other proceedings
are regular. There is therefore no cause for arresting the
judgment.
The motion for a new trial has never before been brought to this
Court on a division of opinion in the circuit court. It had been
decided that a writ of error could not be sustained to any opinion
on such motion, and the reasons for that decision seemed entitled
to great weight when urged against determining such a motion in
this Court in a case where the judges at the circuits were divided
on it. When we considered the motives which must have operated with
the legislature for introducing this clause into the Judiciary Act
of 1802, we were satisfied that it could not be intended to apply
to motions for a new trial.
Previous to the passage of that act, the circuit courts were
composed of three judges, and the judges of the Supreme Court
changed their circuits. If all the judges were present, no division
of opinion could take place. If only one judge of the Supreme Court
should attend and a division should take place, the cause was
continued till the next term, when a different judge would attend.
Should the same division continue, there would then be the opinion
of two judges against one, and the law provided that in such case
that opinion should be the judgment of the court. But the act of
1802 made the judges of the Supreme Court stationary, so that the
same judge constantly attends the same circuit. This great
improvement of the preexisting system
Page 19 U. S. 548
was attended with this difficulty. The court being always
composed of the same two judges, any division of opinion would
remain and the question would continue unsettled. To remedy this
inconvenience, the clause under consideration was introduced. Its
application to motions for a new trial seems unnecessary. Such a
motion is not a part of the proceedings in the cause. It is an
application to the discretion of the court, founded on evidence
which the court has heard, and which may make an impression not
always to be communicated by a statement of that evidence. A
division of opinion is a rejection of the motion, and the verdict
stands. There is nothing then in the reason of the provision which
would apply it to this case.
Although the words of the act direct generally
"That whenever any question shall occur before a circuit court
upon which the opinion of the judges shall be opposed, the point
upon which the disagreement shall happen shall"
be certified, &c., yet it is apparent that the question must
be one which arises in a cause depending before the court relative
to a proceeding belonging to the cause. The first proviso is
"That nothing herein contained shall prevent the cause from
proceeding if, in the opinion of the court, further proceedings can
be had without prejudice to the merits."
It was also contended that under the second proviso, Lewis
Daniel ought to be discharged. That proviso is in these words:
"And provided also that imprisonment shall not be allowed nor
punishment in any case be inflicted where the judges of the
said
Page 19 U. S. 549
court are divided in opinion upon the question touching the said
imprisonment or punishment."
A motion for a new trial is not "the question touching the said
imprisonment or punishment." That question must arise on the law as
applicable to the case, and is not, it would seem, to be referred
to this Court. The proviso, if applicable to such a case as this,
would direct the circuit court not to certify their division of
opinion to this Court, but, in consequence of that division, to
enter a judgment for the defendant. This Court can only decide the
question referred to it and certify its opinion upon that question
to the circuit court, which will then determine what judgment it is
proper to render.
CERTIFICATE. This cause came on to be heard on the transcript of
the record, and on the points on which the judges in the circuit
court were divided in opinion, and was argued by counsel, on
consideration whereof this Court is of opinion that there is no
error in the record and proceedings of the circuit court for which
judgment ought to be arrested. And this Court is further of opinion
that a division of the judges of the circuit court on a motion for
a new trial, is not one of those divisions of opinion which is to
be certified to this Court for its decision, under the act
entitled, "an act to amend the judicial system of the United
States."
All which is ORDERED to be certified to the United States court
for the sixth circuit and district of South Carolina.
