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;

Page 348

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...

To continue reading