People v. Palmer

Citation109 N.Y. 413,17 N.E. 213
Decision Date05 June 1888
CourtNew York Court of Appeals


Appeal from general term, supreme court, Third department.

The defendant was indicted, in December, 1885, for an assault in the first degree, at the Greene county oyer and terminer, and was tried before the court of sessions. He was convicted of an assault in the third degree, and appealed to the supreme court, at general term, from the judgment of conviction. That court reversed the judgment, on questions of law only, and ordered a new trial, remanding the action to the court of sessions for further proceedings. From the general-term judgment the defendant appealed, so far as it ordered a new trial, and remitted the action to the court of sessions. He appealed, also, from an order of the general term which denied his motion to amend its order of reversal, etc., so as that it should state that defendant's application to be discharged on the reversal of the judgment was denied; that the defendant did not, upon his appeal, ask for a new trial; and that the new trial is granted only as to an assault in the third degree.

Sidney Crowell, for appellant.

Frank H. Osborn, for respondent.

GRAY, J., ( after stating the facts as above.)

The appellant contends that, as he was convicted of assault in the third degree, he was thereby acquitted of assault in the higher degrees, and cannot be again tried under the indictment, and that, upon the reversal of the judgment of conviction, there was nothing left but a charge of assault in the third degree, of which charge the oyer and terminer had not jurisdiction. While that court had jurisdiction of the offense charged in the indictment, a charge of assault in the third degree seems exclusively cognizable, in the first instance, by the court of special sessions, except a certificate that it should be prosecuted by indictment be allowed by the county judge or a supreme court justice. See Code Crim. Proc. §§ 21, 22, 56, 57. The question brought before us by this appeal is whether, when the defendant, having been found guilty and sentenced for a lower degree of the crime charged in the indictment, has appealed to the supreme court, upon exception, and has succeeded in reversing the judgment, and a new trial is ordered, and the cause remanded to the trial court for further proceedings, he can be tried again under the indictment, without regard to the former trial and conviction. Can he plead, then, in bar of another trial, for the offense charged in the indictment? The question is of the gravest importance to the administration of justice under the laws of this state, which provides for the punishment and trial of offenders. It involves the construction and validity of certain sections of the Penal Code and of the Code of Criminal Procedure, which were enacted by the legislature in respect of appeals and new trials. If the reasoning of the prisoner's counsel is correct, then the defendant's appeal, based on errors excepted to upon his trial, must result, where not in affirmance, in his discharge. And in all other cases the prisoner would take his appeal from a judgment of conviction of a lesser degree of the crime charged, with the assurance that if he could secure a reversal of the judgment, and a new trial, he could not fare worse than before, in any event. He would risk nothing, and he might wholly escape punishment for the offense of which he stood charged. Whatever conflict of opinion existed in the courts, prior to the adoption of the Code of Criminal Procedure, as to a prisoner's position upon a new trial being ordered, we hold has been settled and removed by the passage of the act of the legislature. Much of the doubt and confusion surrounding the question as to the effect of a new trial seems due to a mistaken view of the operation of the constitutional inhibition against subjecting a person to be twice put in jeopardy for the same offense. Const. N. Y. art. 1, § 6. That provision has been the subject of much discussion in the reports and in text-books. To enter into it I do not believe to be necessary, to the end we have in view, in deciding this case upon principle, and in construing the statute. Its incorporation into the federal constitution and into the constitutions of states, was but the recognition and the application, in a stronger form of expression, of the common-law doctrine. In my opinion, nothing has been done in the legislative enactment of the sections of the Code under consideration to subvert the constitutional provision. That provision in nowise has the effect of restricting the power of the legislature to enact rules of procedure in criminal cases, so long as the enactment does not violate the protection guarantied by it to a party. In Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443, it was held that any law passed after the commission of an offense which, in relation to that offense or its consequences, alters the situation of a party to his disadvantage, was an ex post facto law. It was said by Mr. Justice MILLER that the law of Missouri was that when a conviction was had of murder in the second degree, on an indictment charging murder in the first degree, if the conviction were set aside, the defendant could not again be tried for murder in the first degree. He added, at page 225, as follows: ‘There is no question of the right of the state of Missouri, either by the fundamental law or by an ordinary act of legislature, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that, as to that offense, it is ex post facto? In that case the constitution of Missouri was amended after the homicide. It abrogated the old rule, and provided that when a conviction for a lower degree of the crime, upon an indictment for a higher, was lawfully set aside, the conviction for the lower degree did not operate as an acquittal of the higher. After the amendment went into effect, the defendant's plea of murder in the second degree was made. He was sentenced to 25 years' imprisonment. That sentence was set aside, and he was tried again, and, against his protest and refusal to plead over, was convicted of murder in the first...

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