DECISIONS

IN

CRIMINAL CASES

IN THE

STATE OF NEW YORK.

SUPREME COURT. Broome General Term, May, 1860. Mason, Balcom, Campbell and Parker, Justices.

ALFRED BIRGE, plaintiff in error, v. THE PEOPLE, defendants in error.

The judges of a Court of Oyer and Terminer have no power to settle and sign a bill of exceptions after a final adjournment of such court.

Where, after the adjournment of a Court of Oyer and Terminer, a bill of exceptions in a criminal case which had been tried at such court, was settled by the justice of the Supreme Court, who had presided on the trial, and was afterward signed by such justice, and also by the two justices of the Sessions, who sat with him on the trial, and was filed more than ten days after such adjournment, and was afterward returned as part of the record on a writ of error, this court, on motion by the District Attorney, ordered the bill of exceptions to be struck from the record.

MOTION by the District Attorney of Otsego county, to dismiss writ of error, and strike the bill of exceptions from the return or record in this cause. The prisoner was convicted of forgery in the second degree, and sentenced to the state prison at Auburn, for the term of six years, at a Court of Oyer and Terminer, held in Otsego county, on the first day of July, 1859. Exceptions were taken on the trial PAR.-VOL. V.

2

Birge v. The People.

by the prisoner's counsel, but were not settled or signed during the sitting of the court. After the court was adjourned sine die, the prisoner's counsel made a bill of exceptions, and served a copy on the District Attorney, who proposed amendments thereto, but under a protest that the right to make a bill of exceptions, or have the same settled, was gone when the court adjourned. The exceptions were afterward settled by the justice of the Supreme Court, who presided on the trial; and the bill was signed by him, and the two justices of the Sessions, who formed part of the court on the trial; but the county judge, who was a member of the Oyer and Terminer, and on the bench during the trial, refused to sign the bill. The District Attorney objected to the bill being settled or signed out of court, and the same was settled and signed under his protest. The bill was filed, and a writ of error was issued out of this court to the Oyer and Terminer; and the writ and a copy of the record, including the bill of exceptions, was returned to this court, and then the above mentioned motion was made. A. Becker, for plaintiff in error.

E. Countryman (District Attorney), for defendants in error.

BALCOM, J. I did not understand when I settled the bill of exceptions in this case, that any objection was made on the ground that I should go to Cooperstown and have the other members of the Oyer and Terminer present on the settlement of the bill. I supposed the only ground of objection was, that the prisoner's counsel had no right to make a bill of exceptions, and have the same settled, after the adjournment of the Oyer and Terminer without day; and I shall examine the questions now raised, on the supposition that this was the only objection taken to the settlement or signing of the bill.

If there was no statute or rule authorizing the settlement of cases and exceptions in civil actions, subsequent to the adjournment of the Circuit Court, the same could not be settled after the final adjournment of that court, unless otherwise ordered. The law is the same in regard to criminal actions;