14 N.Y. 74, People v. Merrill

Citation:14 N.Y. 74
Party Name:THE PEOPLE v. MERRILL and another.
Case Date:June 01, 1856
Court:New York Court of Appeals

Page 74

14 N.Y. 74



MERRILL and another.

New York Court of Appeal

June 1, 1856

Page 75


W. T. Odell (District Attorney), for the plaintiffs in error.

J. H. Reynolds, for the defendants in error.


There were four counts in the indictment. To the first, the defendants pleaded not guilty; and demurred to the second, third and fourth. The first count was under the section of the Revised Statutes declaring it a felony to inveigle or kidnap a person, with the intent to cause such person to be sold as a slave. (2 R. S., 664, § 28.) The others were under the section making it felony to sell the services or labor of a person of color, who shall have been forcibly taken, inveigled or kidnapped from this state to any other state, place or country. (2 R. S., 665, § 32.) The counts demurred to, charged the defendant with selling, in the city of Washington in the District of Columbia, the services and labor of one Solomon Northrup, a free negro, who had been inveigled from the state. The demurrers were sustained by the court of oyer and terminer; but instead of proceeding to trial on the first count, a record of judgment was made up on the demurrers, disregarding the issue of fact joined on the indictment, and the people brought error. The supreme court affirmed the judgment, and the people now bring error to this court. The record shows that there has been no judgment rendered, final or otherwise, upon the whole indictment, in the oyer and terminer, and that an issue of fact is now pending. There is, therefore, a preliminary question, whether the writ should not be dismissed.

Writs of error (except in capital cases), were and are, in behalf of a defendant, writs of right; and in capital cases

Page 76

are allowable by one of the justices of the supreme court, (2 R. S., 740, §§ 16, 17.) A writ of error, however, can only be brought by a defendant to review a final judgment rendered upon an indictment. If the supreme court affirm the judgment, it is to direct the sentence pronounced to be executed; if it reverse the judgment, it is either to direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case. (2 R. S., 741, § 26.) In The People v. Corning (2 Comst., 9), it was held that the people 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. The 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 judgment rendered in favor of any defendant upon any indictment for any criminal offence, except when such defendant...

To continue reading