CIRCUIT COURT OF THE UNITED STATES.

MASSACHUSETTS DISTRICT.

OCTOBER TERM, 1859.

IN CHAMBERS AT PORTLAND, JULY 2, 1859, BEFORE CLIFFORD, J. THE UNITED STATES v. CYRUS W. PLUMER.*

A writ of error does not lie from the Supreme Court to the Circuit Court in a criminal case.

THIS was a petition for the allowance of a writ of error in a capital case, and for stay of execution until a hearing could be had in the Supreme Court, on the alleged errors. Plumer, with three others, had been indicted, tried, and convicted in the Circuit Court, Massachusetts District, and sentenced to be executed. A full statement of facts will be found in the opinion of the court.

Benjamin F. Butler, Geo. W. Searle, and F. F. Heard appeared as counsel for the petitioner.

C. L. Woodbury, District Attorney, and Milton Andros, Assistant District Attorney, for the United States.

The material facts of the record were as follows:

UNITED STATES OF AMERICA.

Circuit Court of the United States of America, for the District of Massachusetts.

At a Circuit Court of the United States of America, for the District of Massachusetts, begun and holden at Boston, within and for said district, on the 15th of October, A. D. 1858.

* This case was necessarily omitted from the first volume of the series.

United States v. Plumer.

Before the Honorable Nathan Clifford, Associate Justice, and the Honorable Peleg Sprague, District Judge.

[Here follows the indictment.]

The record then proceeds as follows, namely:

At this present October term of this court, A. D. 1858, said Cyrus Plumer, otherwise called Cyrus W. Plumer, William H. Carther, otherwise called Richard Carther, William Herbert, and Charles H. Stanley, otherwise called John W. Ballard, were severally set to the bar, and had this indictment read to them; and thereupon they severally said that thereof they were not guilty; and thereof for trial put themselves upon God and their country; and Benjamin F. Butler and Charles P. Chandler were assigned by the court as counsel for said Plumer; F. F. Heard and F. W. Pelton were assigned as counsel for said Carther; Thornton K. Lothrop and J. Q. Adams were assigned as counsel for said Herbert; and J. Hardy Prince and Samuel M. Quincy were assigned as counsel for said Charles H. Stanley, otherwise called John W. Ballard; and said Cyrus Plumer, otherwise called Cyrus W. Plumer, William H. Carther, otherwise called Richard Carther, William Herbert, and Charles H. Stanley, otherwise called John W. Ballard, severally acknowledged that they had severally received a copy of the indictment, and a list of the jurors, agreeably to law, and more than two days before the date of their trial.

A jury was thereupon impanelled and sworn to try the issue, namely, John B. Chisholm, foreman, and fellows, namely, Willard Bacon, Daniel C. Bates, Lemuel Grant, Charles Humphrey, Asher Joslin, Charles B. W. Lane, Benjamin Norris, Hiel J. Nelson, William Parker, William Tinker, and Amasa Whiting, all of said district.

And the said jury afterwards returned their verdict that said Cyrus Plumer, otherwise called Cyrus W. Plumer, is guilty of murder as alleged in said indictment; and William H. Carther, otherwise called Richard Carther, William Herbert, and Charles H. Stanley, otherwise called John W. Ballard, are severally guilty of manslaughter; and thereupon said Cyrus Plumer, otherwise called Cyrus W. Plumer, by his counsel, moves the court for a new trial, as follows:

United States v. Plumer.

[Here follows the motion for a new trial; also the motion in arrest of judgment.]

The record then proceeds as follows, namely:

Time was allowed by the court for preparation of counsel therein, and the said motions were set down for hearing. And afterwards, at the same term, the counsel of said Plumer moved. the court for leave to withdraw the said motions for new trial and in arrest of judgment. And said Cyrus Plumer, otherwise called Cyrus W. Plumer, having been brought into court, and being inquired of personally, asks that such leave may be granted and that the said motions may be withdrawn. Whereupon the court did grant him leave to withdraw the said motions, and the same were accordingly waived and withdrawn by said Plumer; said Plumer was then asked if he had anything to say why judgment of death should not then be pronounced against him. And having replied thereto fully, and no good cause appearing to the contrary, and all matters in the case having been fully heard and understood by the court, it is considered by the court that the said Cyrus Plumer, otherwise called Cyrus W. Plumer, be deemed guilty of felony, and that he, the said Cyrus Plumer, otherwise called Cyrus W. Plumer, be taken back to the place from whence he came, and there remain in close confinement until Friday, the 24th of June next; and on that day, between the hours of eleven o'clock in the forenoon and one o'clock in the afternoon, he, the said Cyrus Plumer, otherwise called Cyrus W. Plumer, be taken thence to the place of execution, and that he be there hanged by the neck until he be dead.

THE PETITION.

UNITED STATES OF AMERICA.

Circuit Court of the United States of America, for the District of Massachusetts.

To the Honorable Nathan Clifford, one of the justices of the Supreme Court of the United States, sitting within and for the District of Massachusetts.

United States v. Plumer.

Cyrus W. Plumer now imprisoned in the district aforesaid, under sentence of death on a judgment, warrant, process, and proceeding of the said Circuit Court of the United States of America, for the District of Massachusetts, says that there is manifest error in the process, proceedings, premises, and judgment, and feeling aggrieved thereby, assigns as errors in said record, process, and proceeding the errors named and set forth in the paper hereunto annexed, marked " Assignment of Errors."

The said Cyrus W. Plumer, plaintiff in error, begs the court to certify the errors in said assignment named and set forth, and that he may have leave to enter the same in the Supreme Court of the United States at the next December term of said Supreme Court, and that execution and all proceedings in said case, and in the premises, may be stayed until a hearing is had in said court on said assignment of errors.

BOSTON, June 30, 1859.

CYRUS W. PLUMER.

ASSIGNMENT OF ERRORS.

UNITED STATES OF AMERICA.

Circuit Court of the United States of America, for the District of Massachusetts.

Cyrus Plumer, otherwise called Cyrus W. Plumer, plaintiff in error, v. The United States of America, defendant in error.

And now, to wit, on the 30th of June, A. D. 1859, cometh the said Cyrus Plumer, otherwise called Cyrus W. Plumer, in his proper person, who is now imprisoned in the District of Massachusetts, under sentence of death, on a judgment, warrant, process, and proceeding of the said Circuit Court of the United States of America, for the District of Massachusetts, and immediately saith that in the record and process aforesaid, and also in the giving of the judgment aforesaid, against him the said Cyrus Plumer, otherwise called Cyrus W. Plumer, there is manifest error in these, to wit:

1. That in and by said indictment and record, there is no

United States v. Plumer.

sufficient averment that the Circuit Court in which said indictment was returned and heard, had jurisdiction of the offence therein supposed to be charged.

2. That in and by said indictment and record, there is no sufficient averment that the person therein supposed to be injured was within, or under the protection of or jurisdiction of, the United States, or in the peace thereof.

3. That in and by said record it nowhere appears, or is set forth, that said Cyrus Plumer, otherwise called Cyrus W. Plumer, was informed of, or permitted to exercise, or did exercise, his constitutional right of challenge of the jurors returned for his trial.

4. That in and by said record it nowhere appears or is set forth that said Plumer was present, either at the impanelling of the jury that tried him, or at the time said trial was had, or said verdict was rendered against him.

5. That in and by said record it nowhere appears that said Plumer was permitted to be heard by said jury so impanelled, either by himself or his counsel; and that in truth and in fact said Plumer was not permitted to address the jury in his own proper person.

6. That said verdict of guilty was rendered upon all the counts of said indictment, while one or more of said counts are defective and insufficient in law to support any judgment.

7. That it nowhere appears in and by said record of what (if any) felony said Plumer was adjudged guilty.

8. That it nowhere appears by said record of what “ felony " the court "deemed " or adjudged the said Plumer to be "guilty."

9. That it nowhere appears by said record for what " felony " said Plumer was sentenced to suffer death.

10. That it nowhere appears in and by said record that Plumer received sentence of death for the particular murder of which the jury had found him guilty; but only for "felony " indefinitely, the particular felony not being described or in any manner designated.

11. That the verdict is repugnant to the general averment and clause in the indictment giving the court jurisdiction.