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lute right. Lord Hale states (2 Hale's P. C. 299), that when the
jury say they have agreed, " the court may examine by poll," which
implies that it was within the discretion of the court.

In the United States the decisions in different States are con-
flicting. ♦

In Ropps V. Barker, 4 Pick. 239, it was held to be not the right
of the party to have the jury polled; that when the jury have
o|)enly, deliberately and unanimously assented to the verdict when
called on for that purpose, it afforded all the evidence of unanimity
which could reasonably be required. This decision has since been
followed and applied to capital trials in Commonwealth v. Rohy^ 12
Pick. 49G, and Commonwealth v. CostleT/, 118 Mass. 1. A similar
decision in a capital cause was also made in State v. Wise, 7 Rich.

We conclude this discussion by adopting the language of Mel-
lex, C. J., in giving his opinion in Fellow^s case (5 Greenl. 333):
"As to the exception" (that the jury wore not polled), "it cer-
tainly cannot be sustained for a moment. The coui'se of proceed-
ing on the part of the court was according to uniform immemorial
usage." * * "It is of no consequence whether the question pro-
posed by the clerk to the jury as to their affirmation of their ver-
dict be directed to them jointly or separately ; in either case all are
called on by way of inquiry, whether in open court they consent to
the verdict, signed or announced ore temis by the foreman. If no
one objects, all are considered by their silence as expressing their

We come now to consider certain rights and privileges claimed
by counsel for the accused during the trial, and which were claimed
to have been violated by the rulings of the court in limiting the
time they desired for taking notes of testimony and for argument

The court, under a recent statute and at large expense to the

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MARCH TERM, 1880. 91

State V. Hojt.

State, employed stenographers to take the testimony in full, and
directed that fall copies of the testimony taken each day be deliv-
ered to the counsel for the accused on the morning of the day suc-
ceeding, which was complied with. Under this arrangement it is
found that in two or three instances the court declined to stop a
witness at the request of the counsel for the accused, to enable them
to take full notes in their own way and time.

This was a matter fully within the discretion of the court, and
is notsubject to review here; bub the question in a sense being here,
wewillavail ourselves of the opportunity to say that the ruling meets
our most emphatic approval. And we will add that the exercise of a
similar wise discretion in trials generally^ whether oivil or criminal,
and whether with or without stenographers, would greatly expe-
dite the transaction of judicial business, without any detriment
to the administration of justice.

Another complaint is, that the court restricted the counsel to
four hours for the argument

The Statute (General Statutes, p. 61, § 9) providing that '*in no
trial before the Superior Court * * * shall counsel occupy
more than one hour in argument, Unless the court shall, on motion
for special cause before the commencement of such argument,
allow a longer time," is broad enough in its language to include
cnminal as well as civil proceedings. And if it is to be so con-
stnied, it implies that the legislature considered that the consti-
tutional right to be heard by counsel was subject to regulation and
limitation. The present question, however, is not controlled by
the construction of the statute, but rather by the meaning of the
constitutional provision.

The court did not restrict the argument to the hour mentioned
in the statute, but extended it to four hours. There is no claim or
snggcstion that the time so allowed was insufficient for the pur-
poses of a full, fair and complete defense. On the contrary tho
fact that the counsel did not occupy the time they had, but fell
short twenty-five minutes, is satisfactory evidence that the accused
vas not aggrieved by the limitation.

The sole question therefore is, whether the court had the right
to limit the time at all. The counsel for the accused contend that
the Constitution, art. 1, § 9, guarantees the right of an unlimited
t'nie for argument The language is, that *Mn all criminaJ prose-

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State ▼. Hoyt.

cations the accused shall have a right to be heard by himself and
by counseL"

The right so guaranteed is of inestimable value, not alone to the
accused, to prevent any perversion of law or fact affecting his life,
liberty or property, but to the court and the cause of incorruptible
justice as well. We would not therefore abridge by one jot or tit-
tle so precious a privilege. But what is the fair meaning of the
guaranty? Is the right to be heard by counsel to be understood
as having no limitations whatever ? Surely not as to the numbei
of counsel who may speak ; why then as to the time they may oc-
cupy ? The very purposes for which courts of justice were
instituted would be or might be defeated if such privileges were
subject to no restriction. The limitations of course must be
reasonable, such as do not essentially impair the right or deny a
full and complete defense.

As the accused in the present case had the opportunity of being
reasonably and fully heard by counsel, we conclude that the con-
stitutional guarantee referred to was in no wise infringed. And
this view is fully confirmed by the decisions generally of the courts
of the other States under similar constitutional provisions.

In Weaver v. State^ 24 Ohio St. 584, the action of the court below
in limiting the time for argument on the trial of a person indicted
for an assault with intent to kill was sustained. White, J. in
giving the opinion of the court, said : ** The Constitution of Ohio
guarantees to the accused the right to 'appear and defend in person
and with counsel.' But this guaranty is not inconsistent with the
existence of power in the court to regulate the exercise of the right
by reasonable rules and limitations. Courts are established for the
purpose of administering justice. To insure the accomplishment
of this object and prevent abuse, it is essential that courts should
exercise a superintending control over the argument of causes be-
fore them. The power it is true may be abused, and if it should
be it would constitute ground for a new trial. The exercise of the
power against a party charged with a grave criminal offense is cer-
tainly a matter of delicacy and should be governed by prudence and
caution. Full time should be allowed for the fair discussion and
presentation of the case."

In Lee v. State, 61 Miss. 566, being a prosecution for theft, the
time limited was thirty minutes, which was held no ground for a
new trial. The court said : " The rule was not applied arbitrarily.

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MARCH TERM, 1880. 02

State ▼. Hoyt.

tyrannicallyy without just reason, in a spirit of partiality and preju-
dice. It cannot be said that the accused was not heard by himself
and counsel^ or both. A case might arise calling for the action of
the court. There is nothing in the record upon which this court
can assame that the plaintiff in error was injured or prejudiced by
the restriction imposed upon his counsel.'*

The ease of Stale v. Linney^ 52 Mo. 40, was an indictment for
murder. Wagner, J., in giving the opinion said: **The court
lunited the time of the accused in addressing the jury and it is
argued tliat there was no right to place any restriction upon him.
The question was formerly raised and decided by this court in favor
of the ruling complained of, and we are not disposed to review the
subject. Moreover it does not appear that the counsel in this case
did not have suflScient time. The power to limit and restrict the
time might be abused, and a case might be presented in which the
court would feel itself called upon to interfere."

In SUUe V. ColliaSy 70 N. C, 307; s, c, 16 Am. Rep. 771, the
right to limit the time was held to be in the sound discretion of
thecourL Subsequently to this decision however a statute was
passed, which in express terms gave the counsel the right to ad-
dress the court or jury " for such a space of time as in his opinion
might be necessary for the proper development and presentation of
his case.'*

There are many instances also in which the courts havo not ap-
proved of the restriction because under the particular circumstan-
ces it was unreasonable. In People Y. Keenan, 13 Oal. 581, the de-
fendant's counsel in a trial for murder, where the testimony was all
circumstantial and very voluminous, was restricted to one hour and
a half, and a new trial was granted on the ground that the time was
not sufficient for a full and fair discussion. The court said: " We
do not question the right of a district judge to limit counsel to a
reasonable time in their arguments to the jury, though from the
danger to which this power is exposed it is perhaps better, if ever
done at all in capital cases, that it should be done in very extraor*
dinary and peculiar instances." The same principle is recognized
in the cases of Hunt v. StatCy 49 Oa. 255; s. c, 15 Am. Sep. 677;
Word V. Commonwealth, 3 Leigh, 743; Lynch t. St^xte, 9 Ind. 641,
•nd People y. Toch Chow, 6 Oal. 686.

[Omitting other matters.]

The last general topic for our discussion relates to fbe TaHdily oC

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State V. Hoyt

the sentence. The precise qnestion for review is, whether the omis-
sion of the court to make formal inquiry of the accused if he had
any thing to say why sentence of death should not be pronounced
against him, furnishes sufficient ground for a new trial, or is a fatal
defect in the judgment ?

Upon principle it can be no ground for a new trial. There was
no mistrial. The error (if any) did not enter into or in any manner
affect the verdict. It did not issue out of it, but was entirely in-
dependent, and occurred after the rendition and recording of the
verdict. So that the verdict must stand ; and if the judgment
should bo arrested or set aside, the case should go back to the Su-
perior Court to be proceeded with from the point where the error
intervened, that is, the court would be called npon to make the
inquiry referred to, and then pronounce sentence again. This
course is not only dictated by principle, but is in accordance
with the preponderance of authority. 1 Bishop Crim. Proc.,
§ 1293 ; State v. Johnson, 07 N. C. 59 ; State v. Jacocks, 5 Jones
L. 259; Keech v. State, 15 Fla. 591 ; Einsler v. Wyoming, 1 Wy.

But was the omission referred to fatal to the validity of the

It is conceded that it would have been so under the common law
and practice in England. The rule there is stated in Chitty's Cr.
Law, 700, as follows : " It is now indispensably necessary, even in
clergyable felonies, that the defendant should be asked by the clerk
if he has any thing to say why judgment of death should not be
pronounced on him ; and it is material that this appear upon the
record to have been done. * * * " On this occasion he may
allege any ground in arrest of judgment, or plead a pardon, if he
has obtained one, for it will still have the same consequences which
it would have produced before conviction, the stopping of the at-
tainder. If he has nothing to urge in bar, he frequently addresses
the court in mitigation of his conduct, and desires their intercession
with the king, or casts himself upon their mercy."

In this connection it is also to be considered that anciently in
England a person on trial for a felony was not allowed counsel.
The presiding judge in theory was his counsel, but did not represent
the accused in the sense that counsel do with us. If therefore the
judge omitted any thing which was the right or privilege of the
accused, it was considered the act of the court, which could in no

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MARCH TERM, 1880. 95

State V. Hoyt

wise prejadice the prisoner, and the rights of the latter could not
be waived as may now be done.

If we compare the rules and practice that obtained in England
with oar own it will readily be suggested that the reasons that made
the inquiry of the prisoner so essential do not apply at all in this
State. Here the accused has always had counsel to represent him.
vigilant to guard every right and claim every privilege deemed
essential to his deliverance. The counsel well know that the verdict
does not conclude the prisoner — they know all the remedies for
ulterior relief and when and how they must be instituted. They
are present when the prisoner, on motion of the attorney for the
State, is set at the bar to receive his sentence. They know that the
court is open to hear any request, motion or objection, and that if
the accused desires to say any thing the court will grant him the
privilege if he or they should so indicate.

Under our practice what possible harm can be occasioned to the
prisoner by sucli an omission on the part of the court ? Ho can
have no pardon to plead, for that can only come from the legislature
after sentence, no attainder to save, no benefit of clergy to pray for.

If he should say any thing suggesting ground for some relief, his
saying it would not be the remedy ; it would have to take on some
other legal form and be filed within the time prescribed. If he
should in a capital case urge mitigating circumstances and put
himself on the mercy of the court, it would avail nothing, because
the court would have no discretion to exercise in regard to the
punishment. If, as suggested in the argument, a possible utility
of such inquiry might be to discover the prisoner's condition of
mind as to sanity, we reply, not only that it would have no
adaptation to such a purpose, but if it had there is no need of any
such expedient under our law, which humanely allows a full year to
intervene between the date of the judgment and its execution — af-
fording most ample opportunity for such discovery or for any re-
lief from the consequences of the conviction to which he may be

In this State as to all crimes below that of murder the common-
law rule has never been observed in practice. In capital cases it
has been observed as a formality befitting the gravity and solemnity
of the occasion, but not so essential to the validity of the proceed-
ings as to be made a necessary part of the record as is required in
other jurisdictions. Judge Swipt, in the second volume of his

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State ▼. Hojt.

Digest, p. 417, says expressly of the inquiry referred to : ** This
is rather matter of form, as all legal means of defense have been
previously exhausted." And as matter of form it may easily be
waived, and was waived in the present case.

If counsel were present and no request was made of the court to
be heard, and no objection was made to being sentenced without
being heard, we think it would amount to a waiver of this formality.
But in this instance there was a waiver of the most decisive char-
acter, even if we should regard the inquiry as one of the prisoner's

The only purpose of making the inquiry is, that the prisoner
may know that the verdict doe» not conclude him; that he may do
something or say something to arrest the judgment If he actually
did move in arrest of judgment it is surely enough. The record
in this case shows that the accused made a formal motion in arrest
of judgment based on allegations of fact, and that the court made
full inquiry into the truth of the allegations and finding them un-
true overruled the motion. He might also have moved in arrest at
the same time because the inquiry referred to was omitted ; but he
did not, because the other matter was all he had to say why sentence
should not be pronounced. But he did say a good deal more in re-
gard to the trial. Ho filed an elaborate motion for a new trial, em-
bracing the sixteen distinct points we have considered; also a bill
of exceptions containing the same specifications (which we ought
to say in passing was, as to all matters for which a new trial would
lie, in defiance of a rule of this court; Rules of Practice, ch. 4,
§ 1); also a motion in error based on the bill of exceptions.

After all this it would seem a most absurd, frivolous and idle
ceremony for this court to set aside the judgment and remand the
case to the Superior Court, to the end that the accused may be
asked " whether he has any thing further to say."

Wo ai*e happy to observe that some of the courts in the United
States are beginning to look upon this ancient requirement as a
formality, the omission of which will not always invalidate the judg-
ment. State V. Johnson, 67 N. C. 69; Grady v. State, 11 Ga. 263;
State V. Ball, 27 Mo. 324; Jeffries v. Commonwealth, 12 Allen, 145;
1 Bish. Crim. Proc, § 1358.

There was no error in the judgment complained o^ and a neir
trial is not advised.

In this opinion the other judges concurred.

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MARCH TERM, 1880. 97

State V. Hoyt.

Note bt the Rbportbr.—Oii the subject of allocution^ see contra the prindpal
cue, MuOen v. State, 45 Ala, 43; s. c, 6 Am. Rep. 091; MeCue v. Corn, 78 Penn.
St. 185: s. c, 31 Am. Rep. 7, and note 8. The same was held in Memner v. People^
45 X. Y. 1. Oroveb, J., pronouncing the prevailing opinion, said: **The record fails
to show that the prisoner was asked by the court, after the verdict was rendered
and before Judgment was pronounced theroon, what he had to say why judgment
should not be pronounced against him, or that any opportunity was given to him
hy the court, at this stage of the proceedings, for that purpose. This omission was
error. It deprived the defendant of a substantial legal right. It was his right at this
stage, to move in arrest of Judgment for any legal defect in the indictment or other pro-
ceedings, to show that the verdict was vitiated and should be set aside for the misconduct
of the Jury or for any other legal reason, or to plead a pardon. This has been the settled
kgal rule from the earliest history of the common law. This appears from the case of
King v. Otary^ 2 Sal k. 630. Geary was attainted of high treason on an indictment, to
vhich he pleaded guilty. Upon error brought to reverse this attainder, the exception ta-
ken was that it did not appear that he was asked what he had to say why judgment should
not be given against him, and the report of the case shows that the precedents were
searched and all found to show this fact, and the court held the exception good, for he
might have matter to move in arrest of judgment, etc., and the attainder was reversed.
This case arose in the reign of William and Mary, and the report shows that the Uw had
for a long period been that it was a substantial legal right of the prisoner to show cause,
if any he bad, why Judgment should not be given against him* upon a verdict or confes-
sion of an indictment, and that the record must show affirmatively that the court had
giren him an opportunity to exercise it. The like Judgment for the same reason was given
by the King's Bench in The King v. Speke, 3 Salk. 356. The same judgment for the like
reason was given in a case reported Anonymous, 3d Modem, d65. In 1 ChittyCrim.
Law, TOO, it is said that ' it is now indispensably necessary, even in clergyable felonies,
that the defendant should be asked by the clerk if he has any thing to say why Judgment
of death should not be pronounced on him, and it is material that this should appear upon
the record to have been done, and its omission after judgment in high treason wiU be a
MifBcient ground for the reversal of the attainder.' The necessity of the record show-
ing that this right was given to the prisoner by the court is laid down as applicable to all
cases, and no reason whatever can be given why its omission in the record should be any
more fatal in cases of high treason than in other capital cases The only reason why the
omisEioa is said to be fatal in the former, while silent as to the consequence in the latter, is
that the question had repeatedly been raised and determined in the former ; but it does
not appear to have arisen in the latter. It is obvious that the same reasons for the rule
Apply alike to all capital cases, and when these are the same, the rule must be the same.
The same doctrine will be found in Comyn's Digest, vol. 4, Indictment N; 4 BL Com. 879;
Barb. Crim. Law, 880; Arch. Crim. Prac. and Plead. 180, 181. The question has rarely
arisen fai this country, for the reason, probably, that the law was so fully settled and thor-
oughly cmderBtood that it has been almost universally observed in practice . See Safford
V. PeopU, 1 Park. Cr. Cas. 474, where the question arose and was somewhat elaborately dis-
cmed by Hand, J. These and other authorities that might be cited conclusively show,
that it is indiqiensable that the record should show in capital cases that the prisoner was
rnpiired to show cause, if any, why judgment should not be awarded against him; that it
is the du^ of the court to hear and determine the sufficiency of such cause as much as to
pass upon any other question during the trial. Indeed this may be regarded as a part of
the trial, as it is an essential prerequisite to an sdjudication of the guilt of the prisoner>
The court has no more power to dispense with this rule or disregard it than it has any other
l^gal role, which the wisdom and experience of ages has found necessary for* the protec-
tion of the innocent. It may be that the prisoner has sustained no injury from the non-
observance of the law in the present case. But that is not the question for this court.
"Hiat question is whether the record shows that the prisoner has been convicted of mur-
der in the first degree in the mode prescribed by law. If it does, the judgment shoifld be
affirmed and execution done as the law requires. But if the record fails to show that he
has been so convicted or that all the opportimities of showing his innocence given him by

YoL. XXXVI - 13

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State V. Thomas.

tewibave been gtTen to him by the court, the judgment must be reveraed and a new trial

Chubch, Ch. J., FozxsKR, Rappaux) and Andrews, JJ., concurred.

Aii<BN, J., read an opinion for reversal of Judgment on the ground of failure to ask (he
prisoner if he had any thing to say why sentence should not be pronounced, and remitting
proceedings to Court of Oyer and Terminer to give judgment on the conviction.

Peckham, J., dissenting, said: " This ceremony was required in England at a time when
prisoners were not allowed counsel. Hence this inquiry; so that if the prisoner had
received a pardon, he might plead it, or he might move in arrest of judgment. These are
the reasons assigned for the rule. No case has been found in England where the omission
to make the inquiry had been held ground for reversing the judgment, except in cases of
treason. The rule is now generally laid down in elementary writers, that in treason (not
in other felonies), the conviction will be reversed for its omission. The reversal is confined
to cases of treason.

" ' In this State, there was never the slightest reason for the rule. Prisoners have always
had counsel here; and this inquiry was never necessary to enable them to plead a pardon
or move In arrest. Here the prisoner is allowed a bill of exceptions to review decisions at
the trial, as in civil cases. His rights are abundantly and caref uhy secured. No bill of ex-
ceptions is allowed in England ; no new trial is authorized there.

* • We all know that this inquirj', so far as any legal effect is concerned, is here utterly
idle. Not a case in our books shows that the rule was ever adopted here. The i risoner
here, I may say, never makes the motion in arrest — never pleads a pardon. It is done by
his counsel, and he does not wait to be inquired of, before moving. He moves, or pleads,
in season or out of season. If the prisoner have capacity to defend himself, and prefer to
do so, he takes the like course.

•' If this judgment be set aside, tlierefore, upon this ground, it is for the purpose of al-
lowing this prisoner, in person, not by counsel, to make a motion, or put In a plea, whlclv
every lawyer knows, he never will do. If he had any cause for either, his counsel would
have done it. Yet for the omission of this idle ceremony, this judgment Is to be set aside,
and the whole merits again tried. For this idle ceremony, the rule of England is to be

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 14 of 123)