Hugo Black

“ I conclude that evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied. I do so because the legislative history surrounding the passage of the Criminal Appeals Act abundantly shows Congress contemplated review by this Court in such a case. ”

“ The Court also inveighs against a 'broad' construction of the Act, noting that this Court has denominated an appeal by the Government in a criminal case as an 'exceptional right,' and as 'something unusual, exceptional, not favored.' Ante, at 291. This is an odd characterization; the right is precisely as 'exceptional' or 'unusual' as Congress makes it. This Court has no power to define the scope of its own appellate review in this context and a subjective distaste for review at the instance of government has no proper place in adjudication. ”

“ However, this statement apparently referred to the right of the Government to appeal, for it was immediately followed by the observation: 'In England the Crown always had the right to an appeal in a criminal case. In my own State since its foundation the right has been conceded.' Ibid. The manifest, overriding concern of the Senate was with enacting legislation that would permit appeals as to important legal questions always subject to the bar against double jeopardy, [7] and this concern carried over to the arrest of judgment provision. ”