2 N.Y. 9, People v. Corning

Citation:2 N.Y. 9
Party Name:THE PEOPLE, plaintiffs in error, v. RICHARD S. CORNING, defendant in error.
Case Date:December 01, 1848
Court:New York Court of Appeals

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2 N.Y. 9

THE PEOPLE, plaintiffs in error,


RICHARD S. CORNING, defendant in error.

New York Court of Appeal

December 1, 1848

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Geo. F. Comstock, for plaintiffs in error.

J. Ruger, for defendant in error.

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The defendant was indicted for perjury in the court of general sessions of the county of Onondaga; and on demurrer to the indictment, judgment was given in his favor. The district attorney of the county then brought a writ of

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error in the supreme court. The defendant objected to the proceeding, and moved to dismiss the writ of error, on the ground that the people could not bring error after judgment for the defendant in a criminal case. The court denied the motion; and

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after examining the case upon the merits, affirmed the judgment of the general sessions. The district attorney then brought the record into this court by writ of error, and seeks to reverse both the original judgment, and the judgment of affirmance. The

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defendant has renewed his objection before us, and moved to dismiss the writ of error; and the first question to be considered is, whether the people can bring error after a judgment for the defendant in a criminal case.

We are assured by the indefatigable counsel for the defendant, that upon the most diligent search he has been unable to find a single reported case, in England, where the king has brought error after a judgment of acquital: and Mr. Archbold, in his Practice of the Crown Office, published in 1844, (p. 201, ) in speaking of the cases where a writ of error will lie, says, judgment must have been given upon indictment; "and it must be a judgment against the defendant; for there is no instance of error being brought upon a judgment for a defendant after an acquittal. "But since that time there has been a case, the regular report of which has not yet reached us, where a party charged with crime had judgment in his favor on a special verdict, and the crown then brought error in the king's bench, where the judgment was affirmed. This was in November, 1847. ( Regina v. Chadwick, 10 Law Rep. 458.) If this is in truth the only instance in which such a writ of error has ever been brought in England, it is a remarkable fact that nothing appears to have been said, either by court or counsel, touching the right of the crown to have the review. When we get the case more at large, it may furnish some explanation on this point.

According to the report in Jones, the writ of error in the Marquis of Winchester's case, (Cro.Car. 504; W. Jones, 407, by the name of The King v. Lord St. John, ) was brought by the crown. But I think it evident that this is a mistake; and that the writ of error was brought by the defendant. He had not been acquitted; but had been convicted on an indictment for recusancy, and fined twenty pounds. He had a good


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