
    (Practice.)
    The United States v. Daniel.
    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 6 th section of the judiciary act of 1802, c. 291. [xxi.j
    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 wilful murder, committed on the high séá, by John Furlong; and with unlawfully, wickedly, and maliciously, concealing the same, &c.
    The indictment set forth, at large, the indictment and conviction óf John Furlong, for wilful 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 feet 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 ver-diet, of guilty... Thé defendant then moved in arrest of judgment,, and for a- new trial, on the following grounds. Thát 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, unléss be has such knowledge of the felony as will enable him to testify in.Court, at the trial of the principal felón, and particularly that jn this cáse the evidence did not prove the defendant guilty of misprision of murder, according tp 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.
    
      March 6th.
    
    Mr. Hunt, for the prisoner,
    (1.) argued, that to constitute the offence of misprision of felony, under, the 5th section of the Crimes Act of 1790, c. 36. the accused must be proved to have had such a direct and positive knowledge of the actual commission of the felony, as would be legal evidence on the trial of the principal felon. Here the offence is, what in law is termed, negative misprision. All the definitions of misprision imply such a personal knowledge of the fact as would be legal evidence. But here there was no such knowledge ; and if the Court, upon a review of the whole case, is satisfied that the defendant has not been found guilty of any legal of-fence, the judgment will be arrested. In order to bring a case within the intention of a statute, its language must include the case; it is not sufficient that it is within the reason or mischief, or that the crime is of equal atrocity, and of an analogous character. The prisoner could not have been a witness against the principal felon. The law never credits the bare assertion of any one, however high his rank or pure his morals, but always requires the sanction of an oath: and it also requires his personal attendance in Court, that he may. be examined and cross-examined by the different parties. The few instances in which this rule has been departed from, and in which hearsay evidence has been admitted, will be found on examination to be such as from their very nature are incapable of positive and direct proof. (2.) This Court has decided, that, the refusal of the Circuit Court to grant a new trial, is not matter for which a writ of error lies. But in those ca^es the judges of the Court below were unanimous in refusing the new trial: here á division of opinions is certified, and this Court is bound to decide by the express words of the judiciary act of 1802, c. 291.
    The Attorney-General, contra,
    (1.) insisted that there was no grouud for arresting the judgment, or granting a new trial. The evidence brought the case completely within the Crimes Act of 1790, c. 36. The object of the act was the prompt detection • and punishment of the crimes enumerated. The degree of knowledge required-to bring a party within the misprision described, is such as is sufficient to justify an arrest; and well-founded suspicion is sufficient for that purpose. (2.) The motion in the Court below, in arrest of judgment, combined with a motion for a new trial, is novel and unprecedented. But this combination cannot vary the legal character of these two motions, which is entirely distinct. A motion in arrest of judgment must be confined to objections which arise upon the face of the record itself, and which make the proceedings apparently erroneous: therefore, no defect in evidence, or improper proceedings at the trial, can be urged as a ground for arresting the judgment. The exceptions in arrest of judgment are to the indictment. On the other hand, a motion for a new trial is for causes other than defects in the pleadings ; and the circumstance that the verdict was obtained because the pleadings were defective, will not be permitted to operate on this motion. On inspection of the record in this case, it will be found that the only grounds assigned in support of the joint motion- are such as are entirely inapplicable to the motion for a new trial. . These grounds are. the misdirection of the judge, and that the verdict was obtained on insufficient evidence. The Court will* therefore, . . , , . throw out of view the motion to arrest the judgment, an(j consider this as a motion for a new trial, on which the judges of the Court below were .divided in opinion. And if so, there is no question before this.Court: since it has repeatedly decided, that,the granting or refusal of a new trial, is mere matter of discretion in the Court below ; and hence, the refusal of a new trial, even though the . grounds on which the motion was founded aré spread on the record, is no sufficient cause for a writ of error from this Court. In a civil case, if the Court below be divided oh such a motion, the motion, falls. Nor. is it otherwise ir a criminal case.. This Court has no appellate crin inal jurisdiction. It is only by virtue of the 6th section of the judiciary act of 1802, that a criminal case can ever be brought to this Court. That section was not, however, made exclusively for criminal cases.. The provision is general: and it is only by reason of its generality that á question in a criminal case, can ever reach this Court. But being general, it must have, the same construction in all cases. If, then, in a civil case, a division of the judges on the mere discretionary question of a new trial, would, bring no question here ; neither will it in a criminal case.
    
      March 15th.
    
    
      
      
         4 Bl. Com. c. 9. 3 Inst. 140.
    
    
      
      
         4 Jac. Law Dict. 295. Staundf. P. C. L. 1. c. 19. Hawk. P. C. c. 20. s. 4. 1 Hale's P. C. 375. Terms de la Ley, 291. 3 Inst. 36. 1 Chitty's Crim. Law, 2.
    
    
      
       1 East’s P. C. 146. 1 Chitty’s Crim. Law, 663. 1 Hargr. St. Tri. 290.
    
    
      
      
         Chitty’s Crim. Law, 10. 27. 4 Bl. Comm. 290.
    
    
      
      
         1 Chitty’s Crim. Law, 539.
    
    
      
      
         4 Bl. Comm. 375.
    
    
      
      
         1 Chitty, 535.
    
    
      
      
         Wheat. Dig. Dec. tit. Practice XV. (A.)
    
   Mr. Chief Justice Marshall

delivered the opinion of the Court.

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 bn a division of opinion in the Circuit Court. It had been decided, that a writ of error could not bé 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 pláce.. If only, one judge of the Supreme Court should attend, add 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 béthe opi-. nion of two j udges 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 pre-existing system, vfas. attended with this difficulty* The Court being always-composed of. the same two judges, any division of opinion would rerpain, and the question Would continue: unsettled. • To remedy this inconve? nience,;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 wbu Id apply it to this case.

Although the words of the act direct generally,' <{ that whenever any question shall occur,., befere 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, tó a proceeding belonging tb the cause. The first proviso is, “ That nothing, herein contained shall present the cause from proceeding, if, in the opinion of the Court, fárther proceedings can be had without prejudice to the iherits.”

It was also contended, that.under thesecond proviso, Lewis Daniel ought to. be discharged. • That proviso is in these words: “ And provided also that imprisonment-shall not bé allowed, nor punishment in any case be inflicted, where the judges of the said Court arc divided in opinion upon the question touching the said imprisonment. or punishment.”

A motion for a. new. trial is not “the question touching tjhe 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 íbeir'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, who' 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 arid proceedings of the Circuit Court, for which judgment ought to be arrested. And this Court is farther 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, <c 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. 
      
      
         Wiltberger v. United States, 5 Wheat. Rep. 96.
     