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could not bring error after judgment for the defendant in a criminal case. This decision led in 1852, to the passage of an enabling act. This act authorized the district attorney of the county where the judgment was rendered, upon the same being allowed by a justice of the Supreme Court, to bring a writ of error in behalf of the people of the State, to review any judg ment rendered in favor of any defendant, upon any indictment for any criminal offence, except where such defendant shall be acquitted by a jury. The judgment mentioned, and which this statute authorizes a writ of error on behalf of the people to review, is clearly a final judgment upon the whole record. It is a judgment rendered upon an indictment, and not upon particular counts thereof, leaving others undisposed of.1

So, also, the people are not entitled to a writ of error to review the 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. The writ only lies where there has been judgment for the prisoner upon the indictment.2

The act applies to judgments as well upon verdict, as to those on demurrers, and it is no objection that the record was drawn up without any request from the prisoner.1

§ 4. BILL OF EXCEPTIONS.

As has been before noticed, on the trial of any indictment, exceptions to any decision of the court may be made by the defendant, in the same cases and manner provided by law in civil cases, and a bill of exceptions shall be settled, signed and sealed, and shall be filed with the clerk of the court, and returned upon a writ of error, as now authorized in personal actions, or upon a certiorari, as provided by statute; and the same proccedings may be had to compel the signing and sealing of such bill and the return thereof.5

In seeking to review a trial had in a criminal case, it is of vital importance that the proper exceptions should be duly taken as

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in civil cases, and the principal questions of law sought to be reviewed, are raised by bill of exceptions, as upon exceptions in a civil action.1

A verdict will not be set aside upon a bill of exceptions, although there was error upon the trial, if the error was such that it could work no injury to the exceptant. This rule was applied to a case of conviction for murder, where there was an error in the charge respecting the law of homicide; but the facts of the case did not call for a charge upon the point.2

The act of 1855, previously referred to, makes a distinction as to the contents of the bill of exceptions, where the conviction was for a capital offence, or one punishable as a minimum punishment by imprisonment in a State prison for life, in cases of convictions in the court of general sessions.3

§ 5. STAY OF PROCEEDINGS.

But no such writ of error shall stay or delay the execution of such judgment or of sentence thereon, unless the same shall be allowed by a justice of the Supreme Court, with an express direction therein that the same is to operate as a stay of proceedings on the judgment, upon which such writ shall be brought.4

A stay of proceedings on a conviction in a criminal case, till a decision on writ of error, is a matter of discretion.5

There is an exception to the above provision of the statute, which declares that where the conviction is for a capital offence, or for one punishable as a minimum punishment by imprisonment in a State prison for life, the same may be brought before the Supreme Court and court of appeals, from the court of general sessions, in and for the city of New York, by a writ of error, with a stay of proceedings as a matter of right.

A judge of the Supreme Court has power to allow a writ of error, with a direction therein staying execution." The provision that no judge, court or officer other than the Governor, shall have authority to reprive or suspend the execution of.any convict sen

Ante.

• Shorter v. The Peo., 2 Com., 193, affirming 4 Barb., 460.

• Laws 1855, ch. 337, § 3, p. 613. Vide ante; Laws 1858, ch. 330.

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Peo. v. Holmes, 3 Park. Cr., 567; 5 Abb., 420.

• Laws 1855, ch. 337, § 3. See also Laws 1858, ch. 330.

72 R. S., 740, § 14, 16.

tenced to the punishment of death,1 does not relate to a stay of execution for the purpose of a judicial review.2

§ 6. WRIT TO BE FILED.

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, with a copy of the allowance.3

§ 7. CUSTODY OF DEFENDANT.

If the defendant, in the indictment for the removal of which such writ of error shall be allowed, be in the custody of the sheriff of the county, 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, to keep such defendant in his custody without executing the sentence which may have been passed upon such indictment, and to detain such defendant to abide such judgment as may be rendered upon such writ of error.4

§ 8. OF LETTING THE DEFENDANT TO BAIL.

If the offence charged in the indictment for the removal of which such writ of error shall be allowed, be punishable in a State prison or in a county jail, any officer authorized by the statute above cited, to allow such writ of error, may allow a writ of habeas corpus, to bring before him the defendant in such indictment, and may, thereupon, let him to bail upon a recognizance with sufficient sureties, conditioned that the defendant shall appear in the Supreme Court to receive judgment on such writ of error, or in the court in which the trial on such indictment shall have been had, at such time and place as the Supreme Court shall direct, and that he will obey every order and judg ment which the Supreme Court shall make in the premises.5

In all cases, where a writ of error has been properly allowed under the provisions of the statute above cited in criminal cases,

1 2 R. S., 658, § 15.

• Carnal v. The Peo., 1 Park., 262.

2 R. S., 740, § 19.

• Id., § 20.

• Id., § 21.

an application by the prisoner to be admitted to bail may be made under the section last quoted, although the writ of error is returnable in the Court of Appeals. Upon an application by a prisoner to be let to bail, under this section of the statute, the officer is to use a discretion; he is to act judicially and not ministerially, and, in the exercise of the power conferred upon him, he is to be governed by such legal considerations as have hitherto properly controlled courts and officers in the discharge of their duties in similar cases. Bail in criminal cases is not based on the grace or the favor of the court, but solely on the doubt which may exist as to the prisoner's guilt. If his guilt is past dispute he ought not to be bailed. At each step of the proceedings the grounds, upon which a prisoner can be let to bail, diminish as the evidences of his guilt increase. After conviction and sentence his claims to be let to bail are further diminished; yet even at that point, if it appears that his conviction was unjust, or there is serious doubt of his guilt, his application may be granted.

It seems that the statute gives to a prisoner under conviction and sentence the right to apply to be let to bail, even after his conviction has been adjudged, to be legal by the Supreme Court. But at that stage of the proceedings the legal doubts concerning the guilt of the prisoner, ought to be considered so well settled against him that the application for bail, if made to a judge at chambers, should be very cautiously entertained, and only granted in cases of great question and difficulty.1

§ 9. RETURN TO THE 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 the indictment, bill of exceptions and judgment of the court, certified by the clerk thereof.2

Where the return to a writ of error contained no judgment record, but only the indictment and the clerk's minutes of the trial, it was held that there was nothing before the court on which the error could be assigned.3

The Peo. v. Restell, 2 Barb., 450. 2 R. S., 740, § 22.

'Thompson v. Peo., 3 Park., 208.

The provisions of the statute prescribing the contents of the return to be made by the clerk, to writs of error in criminal cases, and declaring that the court shall proceed on that return and render judgment upon the record before them, do not limit the general powers of the court to redress all errors, and for that purpose to bring before it such proceedings in the cause not fully presented in the record made up in the court below as may be important to enable it do so.1

The regularity of all the proceedings should appear by the record itself, and upon writ of error, if any material defect appear on inspection of the record, the judgment should be reversed.2

The return to a writ of error brings before the court the indictment, all pleas thereto, whether general or special, the proceedings thereon, and the bill of exceptions, and all those matters are open to review.3

The proceedings of a court of sessions, in the trial of an indictment, will not be reviewed on writ of error by the Supreme Court until a record of judgment shall have been made up and filed, and where the return to a writ of error was defective in this respect, on motion of the district attorney, the writ of error was quashed.1

Since the adoption of the Revised Statutes a party, who has brought a writ of error to reverse a judgment in a criminal case, cannot allege diminution and sue out a writ of certiorari, but the cause must be decided upon the return to the writ of error; which return properly includes the pleadings, the bill of exceptions, if any, and the judgment. Any irregularity, which cannot be made to appear in the return to the writ of error, can be made available, on motion in the court below, either to quash the indictment, or for new trial, or for other appropriate relief, according to the circumstances of the case; thus, if an irregu larity has been allowed in summoning or empanneling the petit jury, unless the defendant can present the objection in the form of an exception to some decision upon the trial, he cannot make it the ground of reversing the judgment upon a writ of error.5

' Peo. v. Cancemi, 16 N. Y. (2 Smith) 501; 7 Abb., 271; see O'Leary v. Peo., 17 How., 316.

* McGuire v. Peo., 2 Park., 148; vide Thompson v. Peo., 3 Park., 208. Grant v. Peo., 4 Park, 527.

Dawson v. Peo., 5 Park., 118; see Weed v. Peo., 31 N. Y., 465. 'McCann v. Peo., 3 Park., 272.

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