The proceedings of a court of sessions will not be reviewed on writ of error until a record of judgment shall have been made up and filed, and when a return to a writ of error was defective in this respect, on motion of the district attorney the writ of error was quashed.1 § 10. DUTY OF THE DISTRICT ATTORNEY. The district attorney of the county shall bring on for argument as soon as practicable the return to such writ of error, and it shall also be competent for the defendant, in any indictment removed by writ of error, to notice and bring on for argument the return to any such writ.2 A motion to set aside a stay of proceedings and quash a writ of error, may be made by the district attorney, and the prisoner's counsel cannot avail himself of the objection that such motion should have been made by the Attorney General.3 § 11. NOTICE OF ARGUMENT AND SERVICE THEREOF. If an attorney shall have appeared for the defendant in any indictment so removed by writ of error, by giving notice to the district attorney, within ten days after the filing of such writ of error, notice of argument thereof may be served on such attorney by the district attorney, as in other cases. If no attorney shall have so appeared, such notice shall be served personally on the defendant, if he be in custody, and if he be not in custody, it may be served by affixing the same in the office of a clerk of the Supreme Court.4 By the designation, "office of a clerk of the Supreme Court," is undoubtedly meant the office of the clerk of the county where the trial and conviction was had. § 12. COURT, HOW TO PROCEED. It is provided by statute that no assignment of errors or joinder in error shall be necessary upon any writ of error issued pursuant to the provisions of the statute above cited, but the court shall proceed on the return thereto, and render judgment upon the record before them.5 1 Dawson v. Peo., 5 Park., 118. ⚫ Carnell v. The People, 1 Park. Cr., 262. 4 2 R. S., 741, § 24. 2 R. S., 741, § 23. 2 R. S., 741, § 25. The Revised Statutes have obviated an assignment of error and allegations of diminution on writs of error and certiorari in criminal cases. In deciding a criminal case, therefore, brought up on a writ of error, the Supreme Court cannot look beyond the record of judgment. To enable a party to avail himself of any irregularities in the court below, it should be presented, in the first instance, in that court, either by plea in abatement or bill of exceptions, so as to introduce it upon the record, and thus subject it to review upon a writ of error after judgment.1 The finding of the jury at the oyer and terminer, upon a mere question of fact, cannot be reviewed by the appellate court on a writ of error, although it appear affirmatively that the bill of exceptions contains all the testimony given on the trial.2 But this is otherwise where the conviction was for a capital offense, or one punishable as a minimum imprisonment in State prison for life, and was had in the court of sessions of the city and county of New York.3 The practice in the Supreme Court in relation to notes of issue, printing and furnishing copies of the appellate papers and points, is the same as upon writs of certiorari and appeals in civil actions, which are heard at the general term of the Supreme Court. § 13. JUDGMENT. The provisions of the Revised Statutes were as follows: If the Supreme Court shall affirm such judgment, it shall direct the sentence pronounced to be executed accordingly. If the Supreme Court shall reverse the judgment rendered, it shall either direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case.1 But by amendment of 1859,5 it is now provided that whenever, after conviction upon any indictment, the record thereof shall be removed from any other court into the Supreme Court for the purposes of review, the Supreme Court shall, upon affirming or reversing the judgment or other proceedings, remit the record 'Laws 1859, ch. 462, § 2, p. 1074; Vide Laws 1862, ch. 462. to the court from which the same was removed, and the court to which the same shall be so remitted shall have power to proceed thereon, according to the decision and direction of the Supreme Court. And, by a further amendment,1 it is provided that the appellate court shall have power, upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass such sentence thereon as the said appellate court shall direct. Where a court of review reverses a judgment for error in the record, it must generally render such a judgment as the court below ought to have rendered.2 But if a wrong judgment be given against a defendant, which is reversed on error, the court of review can neither give a new judgment, nor send the proceedings back to the court below for a proper judgment, unless the case be presented by bill of exceptions when a venire de novo may be awarded.3 Where the defendant demurred for a misdemeanor in the court below, and judgment was there given against the people, which was reversed on error, held that the court above must render a final judgment for the people on the demurrer, and pass sentence on the defendant, and that he could not be permitted to withdraw the demurrer, and plead. A judgment against the defendant in a criminal case, will not be reversed by default.5 It was not the intention of the Legislature, in authorizing bills of exceptions to be filed in criminal cases, that convictions should be reversed for any and every error committed on the trial. The important and controlling question in such cases is, whether any error has been committed which could affect the rights of the accused. If there has been any such error, however slight it may have been, the conviction should be set aside. But all exceptions not having a direct reference to the merits of the case, should be disregarded." The district attorney can move to quash a writ of error and stay of proceedings in a capital case." 'Laws 1862, ch. 462, p. 406. Peo. v. Lohman, 2 Barb., 216. Barron v. The Peo., 1 Barb., 136. It was held that on error, a new trial cannot be granted on the ground of newly discovered evidence. Thus in the People v. McMahon (2 Park., 672), the court said "relief is also asked on the ground of newly discovered evidence, and affidavits are laid before us with a view of showing that important evidence has been discovered since the trial. No such ground is available on a writ of error. We can only review the legal questions growing out of the trial, and reverse for any error that may be found to have been there committed. For any mistake of fact, or for any relief upon the ground of new evidence, the party can only look to the tribunal in which the issue was tried. The power of the oyer and terminer to grant a new trial on the merits, has been ably, and, I think conclusively vindicated by one of my associates, in the People v. Morrison (1 Park. Cr. R., 625): at all events, no such power is vested in the appellate tribunal;" but it has since been held that a court of oyer and terminer has no power to grant a new trial upon the merits, and that a motion for a new trial upon the grounds of irregularity, may be made upon affidavits, on the hearing of the return to a writ of error.1 In Barron v. The People, (1 Barb., 136), the court said they would not reverse a judgment by default in a criminal case; that a convicted criminal could not be got out of the State prison by default, but that they must be satisfied there was error in the record or proceedings in the court below. In the cases mentioned in the act of 1855,2 the court may order a new trial, if it be satisfied that the verdict against the prisoner was against the weight of evidence, or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. Under the act of 1855, above cited, the court is not required to reverse for every error which would be the subject of exception, but only when the court is satisfied that the verdict is against the weight of evidence, or against law, or where justice requires a reversal.3 The rule that a verdict will not be set aside on a bill of exceptions, although there was error on the trial, if the error was such 1 6 Smith, 531; 5 Park., 621. See page 462, post. • Vide ante. Peo. v. McCann, 15 How., 805. that it could work no injury, is the same in criminal as in civil cases.1 Generally, the question in a court of review is, whether the judgment of the subordinate tribunal was erroneous when pronounced upon the law as it then stood; but on a writ of error, the court of appeals will reverse the judgment, although the court below did not err in pronouncing it, if from a subsequent change in the law it is evident that the judgment ought not to stand or be executed.2 The default of the defendant does not entitle the district attorney to a reversal of the proceedings in the court of sessions as a matter of course. It is the duty of the court to determine the case upon the writ and return, in the same manner as if the defendant had appeared and argued the case.3 Erroneous instructions by the judge will not authorize the reversal of the judgment where it appears from the form of the finding, as matter of legal necessity, that the error did not affect the result, and wrought no actual prejudice to the party.* § 14. NEW TRIAL. If a new trial be ordered by the Supreme Court, as provided by the section of the statute above cited, the same shall be in the court in which the indictment was first tried.5 On error in a criminal case, whether there is a bill of exceptions or not, where the judgment, if reversed, must be reversed upon the record alone, and upon the ground that a wrong judg ment was given upon a lawful and regular verdict; the court should not order a new trial if the prisoner could plead his former regular trial and conviction in bar of another trial." But the Supreme Court may, since the act of 1863, remit a cause brought up on writ of error from the oyer and terminer, in which that court has passed a sentence not warranted by law, with directions to pronounce the proper sentence." Shorter v. Peo. 2 N. Y., 193. 'Hartung v. Peo., 22 N. Y., 95. Peo. v. Tarbox, 30 How., 318. Peo. v. Bransby, 32 N. Y., 525. Vide 28 How., 205. 2 R. S., 741, § 28. Sheppard v. Peo., 24 How., 388. 6 ་ ' Peo. v. Ratzky, 29 N. Y., 124. |