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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reason for wishing to get rid of the judgment. Croke says, "the king's attorney signified his majesty's pleasure, that if it was erroneous, it should be reversed. " This was the necessary license to the defendant to bring a writ of error, which at that period was not grantable ex debito justitie, but ex gratia regis. ( Rex. v. Wilkes, 4 Bur. 2550.) Viner and Bacon have both followed the report of the case by Croke. (Vin. Ab. Error F. pl. 10; Bac. Ab. Error, A. 2, 17th Lond. ed.)

There is a saying of Lord Coke, (3 Inst. 214, ) from which an inference may be drawn in favor of the right of the crown to bring error in a criminal case: and there are several passages in Hale's P. C. (vol. 2, p. 247, 248, 394, 395, ) affording ground for a like inference. But nothing is directly affirmed on the subject by either of these learned commentators. All the other writers on criminal law, which I have examined, speak of a writ of error as though it could only be brought by the defendant; though with the exception of Archbold, already cited, they do not directly affirm that doctrine.

There was an intimation of the judge in The People v. Onondaga General Sessions, (2 Wend. 631, ) that the people might bring error in a criminal case; but the question was neither discussed, nor decided. Since that time, and within the last sixteen years, writs of error on behalf of the people have been brought in a number of instances; and in some of the cases, the judgments of the court of original jurisdiction were reversed. (The People v. Stone, 9Wend. 182; The People v. Fisher, 14 id. 9; The People v. Coon, 15 id. 277; The People v. Brown, 16 id. 561; The People v. Adsit, 2 Hill, 619; The People v. Cady, 6 id. 490; The People v. Payne, and other cases, 3Denio, 88, 91, 99, 101; The People v. Adams, 3 Denio, 190; 1 Comst. 173.) But in none of the cases was the question either made by counsel, or considered by the court, whether the...

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