BOOK VI. Writs of Error and Certioraris. I. WRITS of error. II. Certioraris. 1. Generally. 2. To remove proceedings on indictments before trial. 4. Certioraris to courts of special sessions. CHAPTER I. Writs of Error. A writ of error is used to remove the indictment and others proceedings from the oyer and terminer or general sessions into the supreme court, after judgment given in the court below, for the purpose of reversing such judgment. When once judgment is given, this is the only remedy for any defect in the proceedings. But it can never be obtained before judgment. (a) In what cases authorized.] In all cases except on trials for capital of fences, writs of error upon any final judgment rendered upon any indict (a) 1 Chit. Cr. L. 747. ment are writs of right and issue of course, in vacation as well as in term, out of the court in which by law they may be made returnable. (b) But where the offence is capital, such writs shall not issue unless allowed by the chancellor, or one of the justices of the supreme court, or a circuit judge, upon notice given to the attorney general or to the district attorney of the county where the conviction shall have been had; and no other officer is authorized to allow such writs.(c) Writs of error shall issue out of and under the seal of the court in which they shall be returnable, and shall be tested in the same manner as other writs issued out of such court.(d) When to stay proceedings.] No writ of error shall stay or delay the execution of the judgment, or of sentence thereon unless the same shall be allowed by a justice of the supreme court, or by a circuit judge, with an express direction therein that the same is to operate as a stay of proceedings on the judgment upon which such writ of error is brought. Filing writ, &c.] Such writ when so allowed shall be filed with the clerk of the court in which the judgment was rendered, who shall furnish to the party filing the same, a certificate of the filing thereof, together with a copy of the allowance. Custody of defendant.] If the defendant be in the custody of the sheriff and such allowance direct a stay of proceedings on the judgment, it shall be the duty of such sheriff, upon being served with the clerk's certificate of such writ being filed, and a copy of the allowance of such writ, to keep such defendant in his custody, without executing the sentence passed upon such indictment, and to detain the defendant, to abide such judgment as may be rendered upon such writ of error. Letting defendant to bail.] If the offence charged in the indictment is punishable by imprisonment in a state prison or in a county jail, any officer authorized to allow such writ of error, may allow a writ of habeas corpus to bring the defendant before him; and may thereupon let him to bail, upon a recognizance with sufficient sureties, conditioned that such defendant shall appear in the supreme court to receive judgment on such writ of error, or in the court where the trial was had, at such time and place as the supreme court shall direct, and that he will obey every order and judgment which the supreme court shall make in the premises. Return to writ.] Upon any writ of error being filed which shall operate as a stay of proceedings, it shall be the duty of the clerk of the court to make a return thereto without delay, containing a transcript of (b) 2 R. S. 740, § 15. (c) Id. ib. § 14. (d) Id. 277, § 8. the indictment bill of exceptions, and judgment of the court, certified by the clerk thereof. Duty of district attorney thereon.] 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 such writ. Notice of argument.] If an attorney shall have appeared for the defendant in any indictment so removed by writ of error, or by certiorari, by giving notice of his appearance to the district attorney, within ten days after the filing such writ of error, or within ten days after filing the certificate staying proceedings, notice of argument thereon 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. Assignment of errors, &c.] No assignment of errors or joinder in error shall be necessary upon any writ of error issued pursuant to the foregoing provisions; but the court shall proceed on the return thereto, and render judgment upon the record before them. Judgment.] If the supreme court shall affirm such judgment, it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly. If the supreme conrt 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. New trial.] If a new trial be ordered by the supreme court, as above provided, the same shall be had in the court in which the indictment was first tried. Defendant not appearing.] If a defendant in any indictment shall have been let to bail after the bringing of any writ of error, and shall neglect to appear at any new trial that may have been ordered, or to appear and receive judgment, the court authorized to render such judgment, or in which such new trial shall have been directed, may cause such defendant to be arrested, in the same manner as upon the finding of an indictment, and may forfeit his recognizance and direct the same to be prosecuted. Remanding indictment, &c.] Whenever any indictment shall be removed into the supreme court, or any person indicted shall be brought into that court by habeas corpus, the justices thereof may remand such person and such indictment to the proper county, where such indictment may be tried; and the court of oyer and terminer, or the court of gene ral sessions to which any indictment shall be so remanded, shall proceed therein in the same manner as if such indictment had not been removed into the supreme court.(e) It is a general rule that if a record come into the supreme court it cannot be remanded to the court below. Had it not been for this last section of the statute above referred to, (which corresponds with 1 R. L. 1813, p. 496, § 7, and 6 Hen. 8, ch. 6,) indictments for felonies removed into the supreme court must always have remained there. It is in virtue of that statute that they go down to the oyer and terminer or general sessions of the proper county.(f) (e) 2 R. S. art. 2, title 6, ch. 2, part 4. (f) 7 Cowen, 133. CHAPTER II. Certioraris. 1. Generally. 2. To remove proceedings on indictments, before trial. 3. To remove proceedings on indictments, after trial and before judg ment. 4. Certioraris to courts of special sessions. 1st. Certioraris generally.] The writ of certiorari is an original writ issuing out of the supreme court, directed to the judges or officers of inferior courts, commanding them to return the records of a cause depending before them, in order that the party may have more sure and speedy justice done him. (a) The supreme court has power, at common law, to review the proceedings of all inferior tribunals; to pass upon the jurisdiction of such tribunals, and to review all legal decisions made by them, but not their determinations upon matters of fact; which are conclusive, unless a power of review is given by statute. (b) Where a new jurisdiction is created, to proceed according to the course of the common law, it is always implied that a certiorari will lie, to remove its proceedings. But where a new special jurisdiction is to decide according to other rules, the implication will not include it.(c) A writ of certiorari lies to remove all judicial proceedings, except where otherwise directed by the express provision of some particular statute.(d) But it does not lie to remove other than judicial acts; therefore it does not lie to remove a mere order of court or warrant of a magistrate.(e) A certiorari must issue out of and under the seal of the court in which it is returnable, and be tested in the same manner as other writs issued out of such court. (f) A district attorney may remove a criminal case to the supreme court by certiorari, as a matter of course and of right.(g) (a) See 1 Chit. Cr. L. 371. (e) Id. ib. Cald. 309. Say. 6. See (b) 6 Wend. 564. See 4 Mass. R. 171. 2 Caines' R. 179. 6 Wend. 564. (c) 1 Chit. Cr. L. 374. (d) Id. 376. (f) 2 R. S. 277, § 8. (g) 7 Cowen. 108. See 12 Pick. 498. |