People v. Brush

• Decision Date: 20 October 1891
• Citation: 28 N.E. 533,128 N.Y. 529
• Parties: PEOPLE v. TREZZA. PEOPLE ex rel. TREZZA v. BRUSH et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 529

28 N.E. 533

PEOPLE

v.TREZZA.

PEOPLE ex rel. TREZZA

v.BRUSH et al.

Court of Appeals of New York.

Oct. 20, 1891.

Appeal from supreme court, general term, second department.

Nichola Trezza was indicted for homicide. He was convicted of murder in the first degree, and appeals from an order denying an application for a stay of proceedings, pending an appeal from an order of the trial court, denying a motion for a new trial. He appeals also from an order dismissing a writ of habeas corpus granted for his discharge from the state-prison. The orders in both cases are affirmed.

A. H. Dailey, for appellant.

John F. Clarke, Asst. Dist. Atty., for respondents.

ANDREWS, J.

The appeal in the case first entitled is from an order of the general term of the second department, affirming an order made by Justice CALVIN E. PRATT, denying an application of Trezza for a stay of proceedings pending an appeal by him to the general term of the supreme court from an order of the court of sessions of Kings county, denying his motion for a new trial on the ground of newly-discoveredevidence. Trezza was tried, convicted, and sentenced at the court of sessions of Kings county for the crime of murder in the first degree. He appealed from the judgment to the court of appeals, under the statute, (chapter 493, Laws 1887,) where the judgment was affirmed. 26 N. E. Rep. 933. The motion for a new trial was made after judgment of affirmance had been rendered. The motion to stay proceedings was denied on the ground that there is no statute authorizing an appeal from an order denying a motion for a new trial, under the circumstances of this case. The refusal of the stay was plainly correct if no right to appeal from the order refusing a new trial in such case existed. The right of appeal in criminal cases is statutory only, and in the absence of a statute authorizing an appeal in a given case, no appeal can be taken. The court in which the trial of an indictment is had has power to entertain a motion for a new trial on the ground of newly-discovered evidence, (Code Crim. Proc. §§ 483, 465,) and may grant or refuse it. The Code of Criminal Procedure, (title 11) defines and regulates the right of appeal in criminal cases. Section 517, as originally enacted, was as follows. ‘Sec. 517. An appeal to the supreme court may be taken by the defendant from the judgment on a conviction after indictment, and upon any appeal any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed in section 485, may be reviewed.’ By section 485 a copy of the minutes of any proceedings upon a motion for a new trial is required to be annexed to and forms a part of the judgment roll. Section 517 was amended by chapter 493 of the Laws of 1887, by providing that when the judgment is of death, the appeal must be taken direct to the court of appeals; and that court was authorized to review any intermediate order or proceeding forming part of the judgment roll, as the supreme court was authorized to do by the original section.

It will be observed that the section only authorizes a review of intermediate orders and proceedings in connection with an appeal from the judgment, and when they are embodied in the judgment roll. There is no statute provision authorizing an appeal from an order denying a new trial, except as incident to an appeal from the judgment. It is said that the legislature could not have intended to permit an appeal from such an order in that case, and to deny it where the application for a new trial is made after final judgment of affirmance and denied, when it would be too late to make the proceedings a part of the judgment roll. The legislature seemed to assume that such proceedings would in all cases be taken before an appeal from the judgment. It may be that the failure to provide for an appeal in such a case as this was casus omissus. But the courts must be guided by the law as it is, and cannot give an appeal where none is given by the statute, and there is no statute authorizing an appeal from an order denying a new trial, made after the roll is made up, and the final affirmance of the judgment. The contention that the legislature, in abolishing writs of error and certiorari as was done by section 517, did not intend to take away, any remedies formerly obtainable in those proceedings, has no force, for the reason that neither a writ of error nor certiorari would bring up for review an order denying a motion for a new trial, made on the ground that the verdict was against the weight of evidence, or on the ground of newly-discovered evidence. Shorter v. People, 2 N. Y. 193;Manke v. People, 74 N. Y. 415;People v. Casey, 72 N. Y. 393;Hunt v. People, 76 N. Y. 89;People v. Board, 69 N. Y. 408;People v. Betts, 55 N. Y. 600. There was no error in the order of the general term affirming the order of Justice PRATT, refusing a stay of proceedings, and it should therefore be affirmed.

The appeal in the second case above entitled is from an order of the general term affirming an order of Mr. Justice CULLEN, dismissing a writ of habeas corpus, granted upon the application of Trezza for his discharge from imprisonment in the stateprison at Sing Sing, and remanding him to the custody of the agent and warden. When the writ was granted, Trezza was held by the agent and warden under a warrant issued by the court of sessions of Kings county, dated March 6, 1891, reciting his conviction on an indictment charging him with the crime of murder of one Alexander Salvano, in that county, on the 6th day of April, 1890, his trial, conviction, and sentence to the punishment of death; and that he be delivered by the sheriff, within 10 days from the date of his sentence, to the said agent and warden of the state prison at Sing Sing; and that said agent and warden, within the week beginning Monday, the 21st of July, 1890, execute him, the said Trezza, ‘by putting him to death in the mode, manner, and way, and at the place by law prescribed and provided.’ That Trezza, on the 5th of June, 1890, appealed from the judgment to the court of appeals, which court affirmed the judgment February 24, 1891. That Trezza was resentenced by the court of sessions of Kings county to be executed during the week beginning Monday, the 20th day of April, 1891. The warrant then proceeded to command the agent and warden to whom it was addressed to cause the said judgment and sentence to be executed within the week last mentioned, ‘by putting him, the said Nichola Trezza, to death in the mode, manner, and way, and at the place by law prescribed and provided.’ It appears that after the appeal taken by...