Opinion
(December Term, 1847.)
Where in a criminal case in which, after conviction, the defendant has been sentenced to imprisonment, and he appeals merely for delay, without filing any exceptions or making any defense in point of law, the Supreme Court thinks this an abuse of the right of appeal, and that the Superior Court should not admit the convict to bail during the pendency of the appeal.
APPEAL from the Superior Court of Law of PERSON, at Fall Term, 1847, Bailey, J., presiding.
Attorney-General for the State.
No counsel for defendant.
This was an indictment against the defendant for an assault and battery, and, upon not guilty pleaded, he was convicted, and the court sentenced him to pay a fine of $100 and be imprisoned ten days, and enter into bond for his good behavior, etc. From this judgment the defendant prayed an appeal to the Supreme Court, which was granted upon his giving the usual appeal bond, conditioned that "he would abide by the sentence, judgment or decree of the Supreme Court in the said suit." No exception was made to the judge's charge, nor any motion in arrest of judgment made.
The defendant was indicted for a battery on one Hopkins, and was convicted on not guilty pleaded, and sentenced to pay a fine of $100 and be imprisoned ten days, and he appealed to this Court.
(22) Of course, the conviction is to be presumed right, in point of law as well as in point of fact, since the defendant tendered no bill of exceptions. Therefore, there cannot be a venire de novo. Nor does the Court find any error in the record for which the judgment should have been arrested. Indeed, none has been suggested on the part of the defendant; but he has given up the case. We conclude that the appeal was for delay merely; and we notice it merely for the purpose of expressing our disapprobation of such an abuse of the right of appeal, and intimating the propriety in such cases of preventing it by the Superior Court refusing to let a convict to bail, since thereby the purposes of the law in requiring offenders to be punished are in a considerable degree defeated and the law evaded and brought into contempt.
The usual certificate, that there is no error in the judgment, must be sent to the Superior Court, to the end that further proceedings may be had there according to law.
PER CURIAM Ordered accordingly.
(23)