78 N.Y. 346, People v. Bork

Citation:78 N.Y. 346
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs in Error, v. JOSEPH BORK, Defendant in Error.
Case Date:October 07, 1879
Court:New York Court of Appeals

Page 346

78 N.Y. 346



JOSEPH BORK, Defendant in Error.

New York Court of Appeal

October 7, 1879

Argued Sept. 24, 1879.

Page 347


James M. Humphrey and Robert C. Titus, for plaintiff in error. The decision of the court on the motion in arrest of judgment is not a part of the record or subject to review in this court. (2 R. S., 736, § 26; People v. Allen, 43 N.Y. 31; People v. Thompson, 41 Id., 4; Keefe v. People, 40 Id., 348.)

Wm. H. Gurney, for defendant in error. Motion in arrest of judgment can be made any time before sentence, and any defect in the indictment not cured by the verdict can be examined on such motion. (1 Colby Cr. L., 386; 1 Arch. C. P. & P., 671 and notes; State v. Grove, 34 N. H., 510; Rice v. State, 3 Kansas, 141; Wharton C. L., § 3200; 2 Id., § 1941.) A writ of error in a criminal case only lies in cases where there is a final judgment unless a different rule has been created by statute. (Bouvier's Law Dictionary, 681; People v. Tarbox, 30 How., 318; People v. Merrill, 14 N.Y. 74; Bogert v. People, 6 Hun, 292; Peek v. McLeod, 21 Wend. 667; People v. Strain, 23 Id., 634;

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Metcalf's Case, 11 Coke, 38; People v. Nestle, 19 N.Y. 583; People v. Barry, 4 Parker C. R., 657; People v. Corning, 2 N.Y. 9.)The writ of error in this proceeding will not lie under this statute. (Pratt v. People, 67 N.Y. 606; People v. Nestle, 19 N.Y. 583.) Anolle proseque can be entered in this State at any stage of the proceeding with the consent of the court that then has jurisdiction of the case. (People v. McLeod, 1 Hill, 377; 1 Arch. C. P. & P. 835; Com. v. Stedman, 12 Met. 444; Con. v. Briggs, 7 Pick., 179; State v. Burk, 38 Maine, 574; Com. v. Tuck, 20 Pick., 456; State v. Roe, 42 Vt., 75; State v. Smith, 49 N. H., 155.)


At a Court of Sessions held in Erie county January, 1876, the defendant was indicted for embezzlement. He pleaded not guilty, and the indictment was sent to the Oyer and Terminer, where he was tried and convicted. A case with exceptions was settled, and motion thereon for a new trial denied. A motion was also made to quash the indictment; it was entertained by the court, but denied. Sentence was suspended, and there was no judgment in the Oyer and Terminer. On the 5th of December, 1877, a writ of certiorari was duly issued and allowed, and the proceedings removed into the Supreme Court. After hearing both parties the General Term made an order on the 24th of January, 1879, that "the conviction be reversed and the proceedings remitted to the Oyer and Terminer. " At a subsequent General Term held April 26, 1879, upon motion of the district attorney, the above order was modified by striking out the words "proceedings remitted to the Erie Oyer and Terminer," and inserting "the defendant discharged." The case is brought into this court by a writ of error sued out by the district attorney of Erie county.

At common law, a writ of error lies, only to review a final judgment. (Hartung v. The People, 26 N.Y. 154.) Nor then in behalf of the People. (People v. Corning, 2 N.Y. 9; People v. Merrill, 14 Id., 74.) Unless therefore it is

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given by statute the defendant's motion to dismiss the writ in this case must prevail. The act of 1852 (chapter 82, Session Laws of 1852) allows such writ from the Supreme Court, in behalf of the People after judgment has been rendered in favor of the defendant upon any...

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