
    *Bedinger v. Commonwealth.
    [Saturday, November 29, 1803.]
    Court of Appeals — Criminal Jurisdiction. — The Court has no criminal jurisdiction; and, therefore, no appeal lies to it, from a judgment of a District Court, for a misdemeanor.
    The Attorney for the State, filed an information against Bedinger, stating, 1. A promise to give one of the Magistrates, if he would vote for him as Clerk of the County Court, one 18th of the profits of the office. 2. A certain sum of money, for the same vote. — Plea, not guilty, and issue. Upon the trial of the cause, the jury found the following verdict: “We, the jury, find the defendant guilty, if in the opinion of the Court an offer and declaration made by the defendant to Daniel Collett, in the information mentioned, a Justice of the Peace of the county of Berkley, authorised to vote for the appointment of Clerk .of the Court of. said county, being- a Court of Record, and the said office of Clerk being vacant, that the defendant would give to him, the said Daniel Collett, one 18th part of the profits of the .said Clerkship of-said Court, and that he, the said defendant, would insure him, the said Daniel Collett, that he, -the said Daniel Collett, should receive one hundred dollars the first year, something more the second year, and after-wards, from one hundred and twenty to one hundred and fifty poundá a year, if he, the said Daniel Collett, would vote for him, the defendant, to be Clerk of said Court at an election of Clerk of said Cburt thereafter to be duly holden, which offer and declaration was not accepted by the said Daniel Collett, who,, at an election duly, held for Clerk of said county, voted against the. said defendant, be a making a promise to pay money for the vote of the said Daniel Col-lett, for him, the said defendant, to be Clerk of said Court, within, the operation of the act of Assembly entitled, ‘An -act against buying and selling of offices:’ Otherwise, ,we find him not guilty under the said *act of Assembly, but guilty at common law, and in the latter case amerce the defendant-in the sum of one hundred dollars.”
    The District Court was of opinion, that the offer and declaration, as set- forth in the verdict, was a promise made by the defendant, contrary to the - act of Assembly ; and, therefore, gave judgment that the defendant was utterly incapable of serving in the office of Clerk of the Court of the county of Berkley, and that he should pay the costs of the-prosecution. . From which judgment, Bedinger appealed to -this Court.
    Wirt and Wickham, for the appellant.
    The question is, whether the verdict finds a promise, within the meaning of - the act of Assembly? A mere offer by one, not accepted by the other, is not a promise; for, it creates no obligation. The act of Assembly is copied from the stat. Ewd. [6, c. 16,] and there is no instance of a prosecution under that statute, merely for an attempt to bribe. The King v. Vaughn, 4 Burr. 2494; and, The King v. Ply'mpton, 2 Ed. Raym. [1377,] were both at common law, and not upon the statute. The stat. 2 Geo. 2, c. 24, against bribery at elections for members of Parliament, is a statute of the same kind; but, no public prosecutions, for an attempt to bribe, founded on that statute, appear in the English reports: For, Sulton v. Norton, 1 Wm. Black. Rep. [317,] and Bush v. Rawlins, referred to in it, were both actions of debt: Which looks as if it had always been considered, there, that an attempt, or offer, was not within the meaning of such statutes. This is a penal law; and, therefore, to be construed strictly. Of course, as neither offer or attempt, is to be found in it, the Court will not include them by an equitable construction. The word promise, used in the act, is tautolagous; and means the same with the next word, agreement, which certainly requires acceptance of the offer, in order to bring it within the act. Promise always implies acceptance; *all-writers define it so. Pale3T’s Philos. 99; 3 Black. Com. 1S7. An attempt to commit an .' offence is, in no instance, considered the same as the offence itself. Thus, an attempt to suborn one .to commit perjury, is not a subornation of perjury, unless the witness agrees and ' commits -the perjury. [Regina v. ■ Rhodes et al..] Ed. Raym. 889. So, an attempt to commit murder, is not murder. Bedinger might only.be sounding to see what, lengths the other would go; and might not really have intended to bribe. There is no necessity for extending the construction of the law; because, an attempt is an offence at common law, and is punishable as other misdemeanors are. The jury have not found the offence with sufficient certainty: for, the verdict does not state what he is guilty of; nor the time when the act was committed; and, perhaps it was before the act of Assembly; or, if since, it might have been barred by the act of limitations, when the prosecution, was commenced. If the Eegislature had intended, that the bare offer should be a sufficient offence, they would have inserted it.
    Nicholas, Atto. Gen. and Call,' contra.
    The finding is certain enough, [M’Murray-v. Oneal,] 1 Call, 246, ana amounts to such a promise as is within the meaning of the act; which is to be construed liberally, because it- was made to remedy a mischief. It is not to be considered as a penal statute; for, the difference is, when it operates on the person, and when -it operates on the thing only, and not upon the person. 1 Black. Com. - 88; 19 Viner’s Abr. 521, pi. 95. An- attempt to bribe is criminal, at common law. 3 Inst. 349; Hawk.- 168-9: And it is as dangerous as the offence itself. Of course, such a construction should be made of the- act as may -prevent it. Unless such a promise as this be within the statute, it -will be impossible ever to prove the offence; because, there will never be awitness to an actual agreement. There is a difference between a promise and a contract; for, no assent is requisite to the first, but it is to the last. Jacob Eaw Diet. •; 1 Pow. Contr. 6, 176, 260, 334: *Which is the language of reason, and formed part of the Roman law, not by any positive act of Eegislation, but as a principle of universal jurisprudence. It is no objection, that an action would not have lain upon the promise; for, that does not make it less a promise. An attempt to bribe, although the offer was not accepted, has been decided to be an offence. The King v. Plympton, 2 Ld. Raym. 1377. Which- case proves the general principle contended for by us; for, whatever is necessary to give a title, or constitute offence, must be averred; and, therefore, if the assent is necessary, the indictment, there, ought to have stated it. The act of Assembly should be so construed as *-o give effect to each word; and, therefore, the word promise, which is susceptible of a distinct meaning, is to be understood according to the common acceptation of it: Especially, as the Eegislature appear to have contemplated a distinction, and not to have used it as sj’nonymous with agreement. -This, is the stronger, from this-consideration; that there is a penalty imposed upon the person who accepts; which shews that the Legislature considered them as distinct acts; that is to say, that promise was the act of the person promising, and acceptance, the act of the person to whom it is made.
    Randolph, in reply.
    Promise, in the act, is to be understood in the sense at common law; and not according to the opinions of civilians, and the compilers of dictionaries. The definition of it, in 3 Black. Com. S17, expressly requires the assent of the other party. The whole complexion- of the case of The King v. Plympton, shews it was an indictment at common law, not upon the statute. Bribery, necessarily, requires the assent of both. The law is penal, and not to be liberally construed against the offender. Although the acceptance might have been void, still it was necessary: Because, the common law does not admit that there can be a promise without it. The offence, charged in the information, is, that of making a promise *for Collett’s vote; but, the offence, under the act, is making a promise for the appointment; and, by 2 Hawk. 249, it appears, that the material words of the statute ought to be laid.
    Cur. adv. vult.
    The counsel for the appellee, having taken an exception to the jurisdiction of the Court, that point was spoken to this term.
    Wickham, for the appellant.
    The act of Assembly, relative to the jurisdiction of this Court, ought to be considered upon common law principles; and, upon them, the jurisdiction would, clearly, be sustained in England. R. C. 60, 62, ed. 1803, defines the jurisdiction, but obliges us to refer to page 82, for a fuller explanation. These passages are general, and make no difference between civil and criminal cases. No reason exists why this Court should not have the same jurisdiction in the one, as in the other. In England, a writ of error lies in both; and it is not presumable that the Legislature meant a distinction. In R. C. 202, ed. 1803, an information is given for the penalty, in cases of small pox. Now, if an action of debt is brought, the right of appeal would be clear; but, change it into an information, and then according to the doctrine contended for on the other side, no appeal can be allowed: Which would be absurd. Wherever the object of the suit is property, or a freehold, or franchise, the Court has jurisdiction; and as the present case involves property, or at least, a freehold, R. C. 64; 5 Bac. Abr. 199, that will be sufficient to support the right of appeal. The word franchise alone would be enough; for, that is a privilege or exemption, derived from the Commonwealth. And the present case relates to it. The constitution says, the Clerks of County Courts shall hold their offices during good behaviour; and the act of Assembly, against subjecting the Clerk to the loss of his office, necessarily relates to a freehold.
    *Nicholas Atto. Gen., and Hay, contra.
    The defendant, in a criminal case, Cannot appeal, or have a writ of supersedeas: No law has specified such a right, and it would not have been left to construction, if it had been intended by the Legislature. A Court newly created, possesses no jurisdiction but what is expressly given, or is necessarily implied. 4 Inst. 200. The R. C. 67, includes five classes, 1. those -which are constitutional; 2. those originating here; 3. those adjourned here; 4. those depending here in 1792; 5. writs of error, su-persedeas, &c. Which last requires 100 dollars, a franchise, or freehold. The present case, involves neither. The information charges a specific crime, which was the fact in controversy ; and, therefore, it did not relate to a freehold, or franchise; because offence, or not, was the matter in dispute. The loss of the office is merely the punishment of the offence; and, therefore, is not the subject in controversy, any more than a forfeiture of the estate, upon the conviction in a criminal case, is the matter in dispute there. If the appellant had not siicceeded in the election, could he have appealed upon the ground of a freehold, or franchise? Surely not; and if so, how can he appeal, as the case is? Eor it does not appear, from the proceedings in the cause, that he was elected, and in office. But the office of Clerk is not a freehold, (which concerns the realty, 2 Black. Com. 104;) nor franchise: Eor Jacob. Law Die. and 1 Black. Com. 37, defines it to be privilege or part of the regal prerogative held by a subject. Which cannot apply to this country. 4 Article Bill of Rights. The language of the R. C. 67, and 88, relates to civil cases. Thus a bond is to be given upon taking the appeal. But, for what is a bond to be given, in such a case as this?' The condition to the bond, which has been actually taken, is, that he will comply with the judgment of the Court: Which is nonsense; because the judgment is, that he shall be incapacitated to hold any office of trust or profit. If the appeal lies in the present case, why not in all criminal cases?' Where the defendant is charged with an offence, there the *Court has no jurisdiction; but where it is for a-penalty, there the Court has jurisdiction, although the proceeding is by information, as in the case of the small pox, cited by the counsel on the other side. Several reasons, occur why the Court should not exercise jurisdiction in criminal cases. If capital it would be useless, as the judgment wduld be executed before the decision here. If it was not capital, but imprisonment, the defendant would have suffered the whole or part of the punishment, before the judgment here.
    Randolph, in reply.
    The appellant was Clerk de facto at least: and the Clerks of County [Courts] are only removable for misbehavior, and that, by judgment of the General Court. This Court has a general superintending control over subordinate jurisdictions: And the act gives it expressly in cases of freehold; which is not confined to lands. Eor, the public officers, as Judges, &c. who hold for life, have freeholds. Controversy, in the act, means, all disputes not prohibited. The case of a forfeiture, put on the other side, does not apply; because no judgment is rendered for the forfeiture in the first instance. So, that the property is no part of the sentence in that case. If the candidate does not succeed in the election, he is not punishable on the statute, but only at common law. The appeal bond operates for payment of the costs, and may be necessary to oblige the party to appear, and hear judgment, as was formerly practised in the cases of adjournment. There is a good reason for a distinction between capital cases and the minor offences; because, in the first, no provision is made for removing the defendant to this Court, in order to hear judgment, but there is no necessity for it in the other. The information is against the defendant as holding the office, and taking the profits of it; and, therefore, the prosecution essentially concerned hi's interests. There is no danger of injurj' from extending the jurisdiction according to our idea; for, we only confine it to cases of property, or value. The words recover and claim, in the 14th section, are answered by office; which is the subject of •• controversy. *There is no danger of double punishment, because, in the first place, the defendant would solicit it himself, and therefore, cannot complain.
    Cur. adv. vult.
    
      
       Court of Appeals -Jurisdiction. — On this question, the principal case is cited in Cooper v. Saunders, 1 Hen. & M. 421, 422; Mackey v. Bell, 3 Hen. & M 212; Clarke v. Conn, 1 Munf. 161; Dilliard v. Tomlinson, Munf. 199; Hutchinson v. Kellam, 3 Munf. 210; Attorney General v. Broaddus, 6 Munf. 117; Com. v. Scott, 4 Rand. 147; White v. King, 5 Leigh 736; Hilb v. Peyton, 22 Gratt. 560; Railway Co. v. Bd. Pub. Works, 28 W. Va. 272. See monographic note on ‘'Appeals."
    
   ROANE, Judge.

The important question now to be decided is, Whether this Court has jurisdiction of the case now before us? It is an appeal from a judgment of the District Court of Winchester, rendered upon an information against the appellant for bribery in the election of a Clerk in the county of Berkeley. The judgment is, that the appellant is utterly incapable of serving in the office of Clerk for the said county; and that he pays the costs of the prosecution.

The ground I shall take, in delivering this opinion, will equally apply to, and decide certain other cases now pending before us.

' Before I come to a particular examination of the several acts and clauses, relating immediately to this subject, I will make some general observations.

The sense of the Convention, who formed the Constitution, was not, that the Court of Appeals should have jurisdiction in all cases. The Constitution has deposited with the General Court the final jurisdiction on impeachments.

The judgment in such cases to be given against the highest officers of the government, may not only be of perpetual disability to hold any office, but to suffer such pains or penalties as the law shall direct.

This, then, is a high authority, excluding the jurisdiction of the Court of Appeals, in a very penal and important case.

A nearly cotemporaneous Legislature, (in 1777,) pursuing this same principle, deposited with the same Court the final jurisdiction (as it is on all bands confessed,) *in treasons and felonies. It is remarkable also, that the original act constituting the General Court, (as well as the subsequent ones,) after declaring its jurisdiction to be “general over all persons and in all cases, matters and things, at common law,” deemed it necessary to confer a jurisdiction by express words in all “trea-sons, murders, felonies, and other crimes and misdemeanors;” thereby clearly implying, that the jurisdiction over the latter subjects was not conveyed under the former general and extensive expressions.

It is further to be observed, that the Legislature in 1779 excepted even a civil case from the jurisdiction of the Court of Appeals, and made the determination of the General Court upon it final. I mean, in the case of caveats.

The high confidence thus manifested in the tribunal of the General Court, by the founders of our government, and the primeval Legislatures, was not misplaced: That Court was then constituted of five members elected pursuant' to the constitution, not yielding in grade to any other Judges, being co-ordinate with the Judges in Chancery, and forming with them, and the Judges in admiralty, the Court of Appeals; which Court had then no separate and exclusive members.

To a Court thus constituted and confided in, with whom in the last resort, these important and extreme cases of jurisdiction are confessedly deposited, it would seem a natural part of the same system to confide the residuary and inferior classes of criminal jurisprudence.

The tenderness and leaning of our Code in favor of the criminal, the uncontrolable power of the jury to acquit in a criminal case, the pardoning power of the Executive, and the objection to great delays in the execution of the criminal law, fully justify this policy in the Legislature.

*If it be said, that the criminal or party prosecuted, has lost by the reform of ¡the General Court, and establishment of District Courts, in relation to the number of the Judges, it may be answered, that he has gained by certain provisions introduced into the latter system, in respect of a division of a Court, &c. and by the better chance he now has of being tried by a jury of his neighbors.

But, it will hardly be contended for, (under the provisions of the Legislature itself,) that any difference exists between the systems, relative to a right of appeal to this Court; and I presume that the ground now taken would equally have been set up, had the original system never been altered.

The particular expressions in the acts in question, as applying to controversies of a civil nature, are appropriate and clear, as going into the field of criminal jurisdiction they are inapplicable; and gentlemen differ among themselves as to the partition line of jurisdiction.

The terms in the act constituting the Court of Appeals, “If the matter in controversy be equal in value, &c.” are clearly relative to the subject of a civil proceeding; and the provision relative to 1 ‘franchise or freehold,” is only meant to dispense with any standard of valuation as to them, on account of their dignity or nature, and not to make any departure from the system of the act, so as in respect of them, to tolerate a criminal proceeding in which they may be involved.

By the same act we are referred to the District Court act on the subject in question: The terms whereof are “any person, &c. shall think himself aggrieved, &c. in any action, suit or contest whatever, &c. he shall be permitted to appeal, &c.”

These words, (if standing alone,) are not more strong than the general words conferring a jurisdiction *in the General Court law of 1777, before noticed, (and which are kept up in the District Court law;) and we have a Legislative exposition, that they are not adequate to confer a criminal jurisdiction, arising from the insertion of the other words thereafter added.

But, these words do not stand single. The subjoined terms “debt or damages,” “recovered or claimed, shall be of the value, &c. ” all strictly apply to cases of a civil nature, and are inconsistent with those of a criminal nature.

I might go on and pursue other passages of the laws corroborating this idea; especially those relating to the bonds to be given on appeal, &c. But, this having been satisfactorily done by the appellee’s counsel, I will merely declare my concurrence in their criticism.

This, then, is the true criterion, that wherever the direct object of the proceedings is the discussion and decision upon a civil right, (whatever may be the form of the proceeding) an appeal may be taken. Por example, some informations may be included under this distinction, such as in-formations in the nature of qui tarn actions for penalties, which (in common with actions of debt,) lie for penalties, &c. ; and all other kinds of proceeding, whatever may be their form, the direct object of which is to assert a right of a civil nature, and which are deemed proceedings of a civil nature.

But, the prosecution now before us is instituted against the defendant upon the ground of crime; and the incapacity' to hold the office now in question, is the punishment prescribed therefor.

In 4 Black. Com. 390, forfeiture is considered as merely an incident of punishment ; nor can the spirit of the general principle be evaded, by pointing the judgment, as in this case, against the future tenure of the very office, in acquiring which the crime was committed.

*One of the appellant’s counsel took in terms the true criterion of jurisdiction ; but his application of it to this case was erroneous. He supposed, that that which was merely an incident to the judgment may be considered as the direct object of the proceeding.

Another of those gentlemen took another ground, another criterion of jurisdiction, which certainly cannot be subscribed to. He supposed the true rule to be furnished by the act concerning bail. That in those cases which are bailable, as not affecting life or limb, we have a jurisdiction; but, in the higher offences, otherwise. I presume he spoke, and I now speak, without a reference to the new criminal system. His criterion would have this consequence, it would let in the lesser felonies, such as petit larceny, &c. whilst it excluded the greater. The punishment against petit larceny, for instance, does not go to life or limb; it is, therefore, bailable under that act; and it is a felony as it incurred a total forfeiture of lands and goods. Yet, the nature of the crime is precisely the same with grand larceny, and it is equally a felony: There is no distinction, but in the punishment.

Without adverting to the improbability of a system, which would enter upon a large field of jurisdiction, and shew a greater regard to the liberty, than the life of the offender, we can find no reason justifying such a discrimination as that between the two species of larceny, and letting in some crimes of precisely the same nature in exclusion of others. I believe no Legislature ever proceeded upon such a principle.

Such is my opinion upon this question after a full consideration. In two of the reported cases, (and perhaps in others.) a jurisdiction was entertained in opposition to the principles now declared; but the objection was not taken. Those cases passed as to this point, sub silentio; and the ^general principle implying a jurisdiction in the Supreme Court of the Commonwealth obscured, in the distant view of the Court, that result which now clearly emerges from a particular examination of our statutory system.

I am, therefore, of opinion, that the appeal should be dismissed.

RL13MING, Judge.

The act of Assembly is the foundation of the jurisdiction of this Court; and that confines it to cases of a civil nature altogether. The words, “if the matter in controversy be equal to one hundred dollars,” clearly shew that civil cases only were intended to be referred to the determination of this Court; for, if it was meant to include those of crime, it is very difficult to conceive why it should have been left to mere construction, without any positive declaration to that effect. There can be no ground for the distinction between higher and lower offences: Both must be the subject of appeal, or neither; and, therefore, when the appellant’s counsel admit, that the Court has not jurisdiction over the higher, they, in effect, admit, that it has not over the other. I am, consequently, of opinion, that the appeal was improperly granted, and that it ought to be dismissed.

CARRINGTON, Judge.

The jurisdiction of this Court is derived from the act of Assembly; and it can exercise no authority, but what that gives. By the second section of the act constituting the Court of Appeals, the jurisdiction is declared to extend to cases provided for by the Constitution; to suits originating there, or adjourned thither for trial by any statute; to cases depending therein at the time of passing the act; and to appeals, writs of error, or supersedeas, to reverse decrees of the High Court of Chancery, judgments of the General Court, or District Courts, if the matters in controversy be equal in value, exclusive of costs, to one hundred dollars in the District ^Courts, or one hundred and fifty in the General Court, or High Court of Chancery, or be a freehold, or franchise. None of which descriptions is applicable to the present case: for, it is not a case arising under the Constitution; nor did it originate here, nor has it been adjourned hither by any statute; nor was it depending here when the act passed; nor is it of one hundred dollars value; nor such a dispute about a freehold, or franchise, as was contemplated by the act; which, from the whole complexion of it, meant to exclude every kind of criminal jurisdiction, created by the Legislature, and to confine the Court to the examination of controversies of a civil nature altogether. And the only reason for inserting the words freehold and franchise, was, the apprehension, that unless mentioned, thej' 'might not be thought included within the powers given the Court: Of course, as the act is the sole basis of our authority, and that, so far from giving a criminal jurisdiction, has cautiously avoided it, I am of opinion that the appeal should not have been allowed, and that it ought now to be dismissed.

LYONS, Judge.

I am of opinion, that this Court has no criminal jurisdiction, except in special cases provided by law. I was of that opinion upon a former occasion, and I continue of that opinion still: For, the act of Assembly mentions subjects of a civil nature only, and does not, even by inference, extend to those of crime. The words, “if the matter in controversy be equal in value, exclusive of costs, to one hundred dollars in the District Courts, or one hundred and fifty in the General Court, or'High Court of Chancery,” are decisive, as they, necessarily, relate to civil causes only: For, the expression, “equal in value,” can apply to nothing else. Nor do the words, freehold or franchise, embrace the present appeál; because, they still relate to controversies of a civil nature concerning them: that is to say, where a civil action, and not a criminal prosecution, *is brought. But here, not only is the process of the criminal kind, but the very point charged and put in issue is, Whether a crime has been committed or not? So that the judgment is, that the defendant has done a criminal thing, and the loss of office is but the consequence of it. Then, as the act of Assembly has confined the jurisdiction of the Court to civil cases, unless in those specially provided for under the Constitution, or particular statutes, it follows, necessarily, that the Court cannot assume it in the present casé; and, therefore, that the appeal ought to be dismissed.  