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Again. The evidence tended very strongly to establish that all that was done by defendant was with the assent of the girl. There is no pretense that there was any rape, attempt at rape or illicit intercourse.
The improprieties alleged and shown by the evidence came short of making out any such case. Considering the evidence of Gertie and the declarations of defendant, and the conversations of his proved by the people's witnesses and by defendant's witnesses, as well as his testimony, it is more than probable that the girl assented to all that occurred. The cases cited by PORTER, J., in his opinion in People v. Bransby, 32 N. Y. 534, and what was said by the court in that case, as well as the opinion of the court in People v. Special Sessions, 18 Hun, 330, indicate that the assent of the child, though of such tender years, may be established as a defense to a charge of indecent assault. In the errors pointed out, there should be a reversal.
Conviction and judgment reversed, and a new trial granted.
Smith, P. J., and BARKER, J., concur.
Supreme Court -General Term — Third Department.
PEOPLE v. DEMPSEY.
APPEAL.-Right OF PEOPLE TO REVIEW IN GENERAL TERM.
AUTHORITY OF GENERAL TERM.
The General Term of the Supreme Court has no inherent power to correct
errors and mistakes, however gross, committed upon a trial for a criminal offense, and such authority is to be found only in the Code
of Criminal Procedure. Under said Code ($ 515), the only mode of reviewing a judgment or
order in a criminal action, is by appeal, and under section 518 there. of, the people may appeal to the Supreme Court in two cases only: from a judgment for defendant on demurrer to indictment; and from an order arresting judgment.
Accordingly, held, that the people cannot appeal from an order setting
aside and discharging a grand jury, and quasbing an indictment found by it, on the ground that said grand jury was drawn under an unconstitutional act.
Motion to dismiss an appeal taken by the district attorney of Albany county, on behalf of the people, from an order of the court of Oyer and Terminer of said county, setting aside a panel of grand jurors of said term and quashing an indictment.
The defendants were recognized to await the action of the grand jury to convene at the May term of the Albany Oyer and Terminer, 1882. At the first opportunity the defendants had, and before the grand jurors were sworn, they filed a paper signed by them protesting against the swearing in or recognition by the court as grand jurors, of the persons who had answered to their names, and who were assumed to be summoned to appear and act as grand jurors at that term, on the ground that they had not been drawn from a list prepared by the supervisors of the county of Albany, pursuant to the provisions of the Revised Statutes, but had been drawn from the names in the petit jury box of said county, under Laws 1881, ch. 532, which defendants insisted was unconstitutional.
The court reserved its decision. On the coming in of the grand jury, and before arraignment, the defendants renewed their objections.
Various offers of proof were made by defendants to sustain the allegations contained in their paper filed, and requests to rule, and a motion made to set aside and to quash the indictment presented, for the reasons stated in the paper filed.
After argument and on August 6, 1883, the Oyer and Terminer, WESTBROOK, J., presiding, decided in favor of the defendants, and an order was entered *that as to these defendants “ the grand jury empanneled at the opening of this conrt be and the same hereby is set aside, and the persons summoned to serve as grand jurors be and they hereby are discharged from service as such grand jurors, and the indictinent against
* The reasons of the court for making said order are to be found in the elaborate opinion in the case of People v. Duff, 1 N.Y. Crim. R. 307.
said John M. Dempsey, Thomas Ansbro and George F. Backman, found by such persons acting as such grand jurors, be and the same is hereby quashed. This order to take effect and to be deemed as made on the 1st day of May, 1882, at the opening of the court on that day, so far as the discharge of the persons summoned to act as grand jurors is concerned.” . From that order, this appeal was taken and defendants now move to dismiss said appeal.
Edward J. Meegan, for defendants, for the motion.-I. Antecedent to the Revised Statutes, even the prisoner had no absolnte right to have his conviction reviewed in a higher court. Carnal v. People, 1 Park. Crim. R. 268; Ex parte Vermilyea, 6 Cow. 555. The legislatnre, in the Revised Statutes, altered this practice, and secured to the prisoner the right to a review of his case by writ of error. 3 R. S. (6th ed.), 1030, $ 26; 3 R. S. (6th ed.), 1037, Article Second; Carnal v. Pevple, 1 Park. Cr. 268.
II. The Revised Statutes did not authorize a writ of error in a criminal case on behalf of the people. A decision favorable to the prisoner was conclusive. People v. Corning, 2 N. Y. 9; People v. Comstock, 8 Wend. 549. To avoid the effect of People v. Corning (supra), Laws 1852, ch. 82, was enacted, which authorized a writ of error on behalf of the people to review any judgment rendered in favor of any defendant, except that of an acquittal by a jury. But this law was held not to apply to a judgment rendered prior to its passage. People v. Carnal, 6 N. Y. 463. A writ of error would not lie on behalf of the people at common law. People v. Bork, 78 N.Y. 348. Nor where the indictment was qnashed. People v. Stone, 9 Wend. 191. And no writ of error was allowed, unless within the
express ternis of the act of 1852; thus, a writ of error was held not to lie to review a judgment on some of the counts in an indictment, while other counts are undisposed of. People v. Merrill, 14 N. Y. 74. Again, a writ of error was held not to lie to review an order of the Supreme Court, granting a new trial in a criminal case where there had been a conviction and certiorari, with stay of judgment in the court below. People v. Nestle, 19 N. Y. 583. Laws 1879, ch. 176, and Laws 1880, ch.538, further extended to the people the right of review, and authorized a writ of error to review a decision or order quashing an indictment.
The decisions above quoted, announce the rule that there existed no right of review on behalf of the people in a criminal case, but subsequent legislation'authorized a proceeding by writ of error in certain cases to review decisions favorable to the prisoner. The abolition of writs of error, therefore, wonld take away the right of review on behalf of the people, and the people would occupy the same position that they were in, prior to said subsequent legislation.
III. The appeal taken herein is to be governed by the Code of Criminal Procedure, and under its provisions the order entered in the Oyer and Terminer is not one from which an appeal can be taken to this court. Section 515 abolishes writs of error and certiorari as they theretofore existed, and provides that “hereafter the only mode of reviewing a judgment or order in a criminal action is by appeal.” Section 518 contains the only authority for an appeal by the people in the Supreme Court, in these words: “$ 518. An appeal to the Supreme Court
may be taken by the people in the following cases and no other : 1. Upon a judgment for the defendant on a demarrer to the indictment. 2. Upon an order of the court arresting the judgment.” This appeal is neither from a judgment sustaining or allowing a demurrer nor an order of the court arresting the judgment.
IV. The jurisdiction of the General Term of the Supreme Court, in the review of criminal cases, is purely statutory. It possesses no other right or power of supervision or control over the decisions of the court of Oyer and Terminer to correct alleged errors committed by it.
D. Cady Herrick, district attorney for the people, opposed.
BOARDMAN, J.—The facts and orders in this case are the same as in The People v. Fitzpatrick, decided at the last September general term.* In the latter case we considered the merits and decided, that the order setting aside and discharging the grand jury as to that defendant, and as to bim quashing the indictment found, was erroneous. Such order was therefore reversed.
* See 1 N. Y. Crim. R. 145.
l'pon that occasion, counsel on either side desired the court to pass upon the merits, and no question was raised as to the validity of the appeal taken by the people from such error. That question was not therefore passed upon.
This appeal by the people arises upon the same state of facts, but the defendants now move to dismiss it upon the ground that the people have no right of appeal in the present instance, and hence the court can acquire no jurisdiction.
Formerly the people had no power to review an adverse decision. People v. Corning, 2 N. Y. 9; People v. Comstock, 8 Ilend. 549. Afterwards in 1852 (Laws of 1852, ch. 82), an act was passed giving the people the right to review judgment, in favor of any defendant, except in case of acqnittal by a jury. In 1879 and 1880 such right of review was further extended in favor of the people. But a writ of error at common law wonld not lie on behalf of the people after a judgment of acquittal. People v. Corning, supra ; People v. Bork, 78 N. Y. 346. Nor from an order quashing an indictment. People v. Stone, 9 Wend. 191.
But all these provisions have been abolished by the Code of Criminal Procedure (S 15), and now the only mode of reviewing a judgment or order in a criminal action is by appeal. No such mode of review ever existed before, and so we must look to the Criminal Code for all authority or limitation of authority. Unless the Code gives to the people this right of appeal, the appeal must be dismissed. By section 518 the people may appeal to the Supreme Court in two cases: 1st. From a judgment for defendant on demurrer to indictment; 2d. From an order arresting judgment; neither of which cover the present case. In no other case has the right of the people to appeal to the Supreme Court been given. The district attorney concedes that the right is not given by the Code of Criminal Procedure. The concession is fatal. This court may correct errors and mistakes only when they can be brought before us pursuant to law. The court below, through ignorance or corruption, may rule