18 N.Y. 128, Cancemi v. People

Citation:18 N.Y. 128
Party Name:CANCEMI, plaintiff in error, v. THE PEOPLE, defendants in error.
Case Date:September 01, 1858
Court:New York Court of Appeals

Page 128

18 N.Y. 128

CANCEMI, plaintiff in error,


THE PEOPLE, defendants in error.

New York Court of Appeal

September 1, 1858

Page 129


J. W. Ashmead and Edmon Blankman, for the plaintiff in error.

Lyman Tremain (Attorney-General) and John McKeon, for The People.


The return to the writ of error in this case contains a formal record of judgment, setting forth an indictment against the plaintiff in error, in the Court of General Sessions of the Peace, in the city and county of New York, for the crime of murder: the plea of the plaintiff in error traversing the indictment: the removal of the indictment into the Court of Oyer and Terminer of said city and

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county, and subsequently into the Supreme Court: the postea or certificate of the justice who held the Circuit Court at which the trial of the indictment was, by a general term of the Supreme Court in the first judicial district, ordered to take place, and was had: the proceedings at the trial, showing that a verdict of guilty was rendered, and the judgment of the Supreme Court, at a general term in said district, sentencing the plaintiff in error to the punishment of death. This record is signed by the four justices of the Supreme Court, before whom, it is stated in the record, the general term was held at which the judgment was given. A bill of exceptions, setting forth portions of the testimony, and several exceptions to rulings at the trial upon questions of evidence, is also embraced in the return, which, it is conceded on the part of the people, is to be regarded as a part of the record, and as such to be properly before the court. The postea, embraced in the formal record of judgment as above stated, shows that twelve jurors, whose names are given, were duly chosen, sworn, and empanneled to try the indictment; and afterwards, on a specified day, the trial having been begun and duly continued to that day, rendered their verdict. The bill of exceptions states that the trial was before the justice holding the Circuit Court, and a jury thereof, called, empanneled and sworn, and that the jury found the prisoner guilty of the murder charged in the indictment.

In addition to the matters above mentioned, the return to the writ of error includes a certificate of the justice before whom the Circuit Court, at which the indictment was tried, was held, stating to the Supreme Court that after the jury had been empanneled and sworn, and the trial of the prisoner commenced, a stipulation, consent and agreement, of the prisoner, his counsel, and the counsel on behalf of the people, annexed to the certificate, was presented to the court, and the juror, Frederick Muller, was withdrawn by the express request and consent of the prisoner, and under

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and in pursuance of such stipulation. The stipulation is next set forth at length, with a statement that it was handed to the court and ordered on file, and that the said Frederick Muller was permitted to withdraw from the jury box. Following the certificate and stipulation are several reasons stated to have been filed in arrest of judgment, among which is, that it appears by the said certificate, and the papers annexed thereto, that said juror was permitted to withdraw from the jury, and that the verdict was rendered by eleven jurors only, which reasons, it is stated, were after argument overruled by the court. It is then added that several reasons for a new trial were filed, which are given in full, being the exclusion of evidence at the trial, and presenting the same questions which arise upon the bill of exceptions, and which reasons, it is stated, were subsequently argued and overruled.

The proceedings on the arraignment of the plaintiff in error are also stated, from which it appears that he urged, as a reason why judgment should not be pronounced against him, that he was tried by a tribunal unknown to the common law and the constitution, viz., by eleven jurors and not twelve; and that the court overruled the same, on the ground that it appeared by the aforesaid certificate that one of the jurors was withdrawn at the request and for the benefit of the plaintiff in error, and that it was at his request the trial proceeded with the remaining jurors.

An order of the Supreme Court, at a special term in the first judicial district, duly certified by the clerk, is next given, which recites the aforesaid certificate in reference to the withdrawal of a juror, and states that the general term ordered that the fact so certified should appear as a fifth reason for a motion in arrest of judgment made by the prisoner; that this ground or reason for the motion in arrest of judgment should, therefore, be added in the form in which it appears. After which the order proceeds as follows "The motion to add to the record in this case the reasons

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in arrest of judgment (as thus amended), and also the reasons for a new trial, and also the proceedings on the arraignment of the prisoner for sentence, & c., granted, and the same must be annexed to the record in this case, and be certified by the clerk. It is further ordered, that a certified copy of this order be annexed with the said papers to the record. "

The principal ground of error relied on in the case, appears only by that portion of the return which is additional to the formal record of judgment, and the bill of exceptions; and it is made a point on the part of the people that this additional matter was not called for by the writ of error, and was improperly returned, and that it cannot be considered by the court. It is necessary, therefore, at the outset, to determine the question whether this matter is legally before the court, and can be regarded in connection with the residue of the return, in examining and deciding the case.

The Revised Statutes (vol. 2, 741, § 20), in an article relating to writs of error on judgments in criminal cases, provide that upon any writ of error being filed which shall operate as a stay of proceedings--and such is the effect of the writ in the present case--"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. "It is further provided, by § 23, that "no assignment of errors, or joinder in error, shall be necessary in such a case, but the court shall proceed on the return thereto, and render judgment upon the record before them. " It is insisted that, under these provisions, nothing could regularly be returned to the writ in this case but what is particularly specified in the section first above mentioned of the statutes, and that the court must give judgment upon the return only so far as it is in accordance with that section, disregarding everything...

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