O'Hara v. People

Graves, J.

O’Hara was informed against for adultery ¡ and pleaded against tbe prosecution that it was not founded on any preliminary examination before a quali- ■ fied officer. He averred that tbe only color of sucb an1 examination was before a night policeman, who was! neither in law nor fact a justice of tbe peace. Tbe plead- i ing need not be repeated. Tbe defense was overruled by tbe court and tbe. defendant placed on trial. The’ jury returned a verdict of guilty and recommended the' defendant to tbe mercy of tbe court.

Some very extraordinary proceedings followed. Tbe defendant was given by tbe judge to understand that be must submit to a severe sentence or else withdraw bis plea of not guilty, enter a plea of guilty and immediately pay $400 and estop himself from bringing error. He accepted tbe last alternative and went through tbe form *624 of withdrawing the plea on which he had been tried and convicted, and of pleading guilty, and paid in the $400.

The Attorney General very naturally declines to offer anything in defense of these proceedings.

We are not informed upon what ground the judge sustained the jurisdiction against the objection made to it. The truth of the matters pleaded seems to have been admitted, and that being so it would appear to follow that it stood admitted that there was no foundation for the information. Unless the defendant had been examined or had been given a chance to be examined before a lawful officer he was not amenable to the prosecution.

The great impropriety of the later proceedings referred to is too manifest to justify extended comment.

When a convicted person is brought up for sentence he has rights still, and it is specially incumbent on the judge to take care that they are fully observed and protected. No sort of pressure can be permitted to bring the party to forego any right or advantage however slight. The law will not suffer the least weight to be put in the scale against him, and any attempt cannot fail to be reprobated. Standing at the bar to receive judgment the law surrounds him with its protecting principles and intends that his sentence shall be the reflection of its justice and as far as possible free from all taint of human frailty.

! Very recently the State has given the principle expression in positive legislation (Act 99 of 1875, Pub. Laws ' 1875, p. 140), and surely the bench ought to guard against ] examples to the contrary.

The judgment must be reversed.

The other Justices concurred.