People ex rel. Galvin v. Judge of Tenth Judicial District

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. Application for mandamus. The relator was convicted of murder in the first degree, and sentenced to be executed. From the judgment of the Court below, he appealed to this Court. He presented to the Judge of the District Court what he alleges was a true bill of exceptions, which the Judge refused to sign. The Judge, in his answer, states that he did sign a bill of exceptions which was, according to his best recollection and belief, correct; and he still believes the same to be correct and true in every particular; and that he could not conscientiously alter or change the same. The relator, under this state of the case, claims the right to have this issue of fact tried by a jury, under the provisions of the four hundred and seventy-second section of the Practice Act.

Under the Constitution of this State, this Court has appellate jurisdiction “in all criminal cases amounting to felony, on questions of law alone.”

The proposed question is simply a question of fact and not of law. The Judge alleges he did sign a true bill of exceptions, and the relator traverses this allegation. How, then, can this Court, having only appellate jurisdiction on questions of law, proceed to try a disputed question of fact ?

In answer to this view, it is substantially maintained by the counsel of the relator, that this Court is not asked to try the issue of fact, or to exercise any original jurisdiction, but simply to employ its superintending power to compel a true history of the proceedings of the Court below to be sent up to this Court. And as this Court could not say to the District Judge, “you must sign the particular bill of exceptions,” the only remedy given the defendant, is that found in section four hundred and seventy-two, allowing a jury to try the issue of fact.

The real question presented is, whether the record of the District Court can be corrected by the verdict of a jury. The object of a bill of exceptions, as well stated by the counsel of the relator, “ is to make that record which before was not record.” The Judge having signed a bill of exceptions, it became a part of the record in the case, and the only effect of the verdict of the jury, if different, would be to correct the record.

The power to determine every issue between parties, must be placed somewhere. There must be an end of controversies, or the system must fail to accomplish the very object intended. The District Courts are Courts of original jurisdiction, of the highest order known to our Constitution. They are Courts of grave dignity, and are required to keep a record of all their proceedings ; and after they have assumed to do so, can their rec