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SECTION 697. CERTIFICATE OF DIVISION IN CRIMINAL

CASES. — DECISIONS 1-9.

1. (Feb., 1821.) 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 sixth section of the Judiciary Act of 1802, c. 291 (XXI.]. United States v. Daniel, 6 Wheat. 542.

2. (Jan., 1835.) The certificate of the judges leaves no doubt that the whole cause was submitted to the Circuit Court by the motion of the counsel of the prisoner. It has been repeatedly decided that the whole cause cannot be adjourned on a division of the judges, and this is a case of that description. United States v. Bailey, 9 Pet. 267.

3. (Jan., 1810.) In some cases where the point arising is one of importance, the judges of the Circuit Court have sometimes, by consent, certified the point to the Supreme Court, as upon á division of opinion, when in truth they both rather seriously doubted than differed about it. They must be cases sanctioned by the judgment of one of the judges of the Supreme Court in his circuit. United States v. Stone, 14 let. 524.

4. (Jan., 1847.) When a case is brought up to this court on a certificate of division in opinion, the point upon which the difference occurs must be distinctly stated. United States v. Briggs, 5 How. 208.

5. Where there was a demurrer upon three grounds to an indictment, it is not enough to certify, that the court was divided in opinion, whether or not the demurrer should be sustained. 16.

6. (Dec., 1861.) The only mode of bringing a criminal case into this court is upon a certificate of the judges of the Circuit Court that their opinions are opposed upon a question raised at the trial. Er parte Gordon, 1 Black, 503. 7. No party has a right to ask for such a certificate, nor

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is conclusive as to all the facts which it contains. This is unanimously the opinion of the court.

If such causes are removed with a statement of the facts, and also with the evidence, still the statement is conclusive as to all the facts contained in it. This is the opinion of the court, but not unanimously. Wiscart v. Dauchy, 3 Dall. 324.

2. (Feb., 1797.) If a record is transmitted with the evidence, but without a statement of facts by the court, the evidence cannot be considered as a statement in compliance with the judicial act; and, of course, there can be no error. Jennings v. Brig Perseverance, 3 Dall. 337.

3. (Feb., 1803.) Under the Judiciary Act of 1789, in chancery cases, a statement of facts must accompany the transcript. This provision was revived by the repeal of the act of February, 1801. United States v. Hooe, 1 Cranch, 317.

4. (Feb., 1815.) If the execution of an important exhibit of the complainant's be not admitted by the defendant in his answer, who calls upon the complainant to make full proof thereof in the court below, this court will not presume that any other proof was made than appears in the transcript of the record. Drummond v. Magruder, 9 Cranch, 122.

5. (Feb., 1820.) In appeals to this court from the Circuit Courts in chancery cases, the parol testimony which is heard at the trial in the court below ought to appear in the record. Conn v. Penn, 5 Wheat. 421.

6. (Jan., 1828.) Where the record from the court below contained the whole proceedings in the case, and exhibited all the matters either party required for a final disposition of the case, and the counsel for both the appellant and the appellees were willing to submit, upon argument, the whole case to the final decision of the court, but it appeared that the C'ircuit Court of Ohio had not decided any question but that which had been raised upon the jurisdiction of the court, the counsel were directed by this court to argue the point of jurisdiction only. M'Donald v. Smalley, 1 Pet. 620.

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here by him is a full, complete, true, and perfect transcript of the record and proceedings in a court below. The Rio Grande, 19 Wall. 178.

11. (Oct., 1874.) Where, on a feigned issue directed to a jury, both of the necessary facts above mentioned have been found against the assignee, and this court has not the evidence before it, it must assume that the verdict of the jury is right. Mays v. Fritton, 20 Wall. 414.

12. (Oct., 1875.) Depositions taken under a commission from a Circuit Court in an admiralty case, after an appeal to this court, will not be made a part of the record, unless a sufficient excuse be shown for not taking the evidence in the usual way before the courts below. The Juniatu, 1 Otto, 366.

13. (Oct., 1875.) If such practice (of examining witnesses orally in open court, upon the hearing of cases in equity) is adopted in any case, the testimony presented in that form must be taken down, or its substance stated in writing and made part of the record, or it will be entirely disregarded here on an appeal. Blease v. Garlington, 2 Otto, 1.

14. If testimony is objected to and ruled out, it must still be sent here with the record, subject to objection, or the ruling will not be considered. A case will not be sent back to have the rejected testimony taken, even though this court might, on examination, be of opinion that the oljection ought not to have been sustained. 16.

15. (Oct., 1875.) This case involves only disputed questions of fact. It was heard here upon the pleadings, proofs, and the findings of the jury, in response to the issues sent down to be tried at law. Held, that issues of the kind are properly directed, where such questions are involved in great doubt by conflicting or insufficient evidence. Held, further, that such findings are regarded as influential in an appellate court, but they are not conclusive. Garsed v. Beall, 2 Otto,

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