People v. Redmond

Citation225 N.Y. 206,121 N.E. 785
Decision Date07 January 1919
CourtNew York Court of Appeals


Appeal from Supreme Court, Appellate Division, Second Department.

Edward B. Redmond was convicted of perjury. From an order of the Appellate Division (179 App. Div. 127,165 N. Y. Supp. 821) reversing judgment of conviction, the People appeal. Appeal dismissed.

See, also, 179 App. Div. 905,165 N. Y. Supp. 1104.

Harry E. Lewis, Dist. Atty., of Brooklyn (Hersey Egginton, of Brooklyn, of counsel), for the People.

Andrew F. Van Thun, Jr., of Brooklyn, for respondent.


The order of the Appellate Division, reversing the judgment of conviction and ordering a new trial, contained the statement, ‘the reversal of said judgment being had for errors of law only.’

[1][2][3] It is too thoroughly established to admit of discussion that this court has not jurisdiction to review the order or judgment of reversal and for a new trial in a criminal case unless it appears affirmatively in the body of the order that the court below has exercised its power to review the facts, and that, being satisfied with the judgment in that respect, the reversal was ordered for error of law only. The rule in criminal cases, and in civil cases involving a motion and an order for a new trial, was, prior to the amendment, in 1912, of section 1338, and the amendment, in 1914, of section 1346 of the Code of Civil Procedure, the same (People v. Boas, 92 N. Y. 560), and as we have stated (People v. O'Brien, 164 N. Y. 57, 58 N. E. 117;People v. Weiner, 211 N. Y. 469, 475,105 N. E. 658, Ann. Cas. 1915D, 733;People v. Conroy, 97 N. Y. 62, 72;People v. Stevens, 104 N. Y. 667, 10 N. E. 527;Harris v. Burdett, 73 N. Y. 136;Mickee v. Walter A. Wood Mowing & R. M. Co., 144 N. Y. 613, 39 N. E. 650;Wright v. Smith, 209 N. Y. 249, 103 N. E. 154;Caldwell v. City of New York, 210 N. Y. 576, 104 N. E. 126). The amendments to the sections of the Code of Civil Procedure have no relation to and no effect as to the operation of the rule in criminal cases. Code Civ. Proc. § 3343, subd. 20. We have uniformly held that all proceedings in a criminal case are, generally speaking, governed by the Code of Criminal Procedure. People v. Hovey, 92 N. Y. 554;People v. Bissert, 71 App. Div. 118,75 N. Y. Supp. 630, affirmed 172 N. Y. 643,65 N. E. 1120;People ex rel. Jerome v. Court of General Sessions, 112 App. Div. 424,98 N. Y. Supp. 557, affirmed 185 N. Y. 504, 78 N. E. 149. In a case in which the Appellate Division not only reverses the judgmentbut, in addition, dismisses the indictment and thus finally disposes of the prosecution, the rule does not govern. People v. Weiner, 211 N. Y. 469, 105 N. E. 658, Ann. Cas. 1915D, 733.

[4] The rule still obtains in criminal cases in which a new trial is ordered upon a reversal. The reasons sustaining it are imperative and, in order that justice to the people and the convicted may be secured, should be given heed by the Appellate Division. The convicted defendant has the right to have the Appellate Division review and render its decision upon the facts. The statement in the order that the reversal is for errors of law only does not establish that the Appellate Division has awarded him that right. In case we reversed the order of the Appellate Division, the judgment of conviction would stand and the defendant be deprived of the review of the facts by the Appellate Division, which is his right. It may be that the evidence would have justified or compelled a reversal. In case we affirmed the order, the new trial, thus necessitated, might be controlled by the decisions of the Appellate Division, and this court and the people might thus be deprived of the right to have reviewed by this court the determination of the ...

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16 cases
  • People v. Mackell
    • United States
    • New York Court of Appeals Court of Appeals
    • 10 Junio 1976
    ...the appeal would be dismissed because of the remaining possibility that the determination was based upon the facts. (People v. Redmond, 225 N.Y.2d 206, 209, 121 N.E. 785; People v. Bergman, 252 N.Y. 346, 169 N.E. 408; People v. O'Brien, 164 N.Y. 57, 58, 58 N.E. 117.) If the order recited th......
  • People ex rel. Curtis v. Kidney
    • United States
    • New York Court of Appeals Court of Appeals
    • 14 Enero 1919
    ...all proceedings in a criminal action or proceeding are, generally speaking, governed by the Code of Criminal Procedure. People v. Redmond, 225 N. Y. 206, 121 N. E. 785. The Code of Criminal Procedure does not contain an enactment like unto section 190 of the Code of Civil Procedure. The app......
  • People v. Bellows
    • United States
    • New York Court of Appeals Court of Appeals
    • 11 Julio 1939
    ...Under these circumstances, the dismissal of the indictment seems to have been warranted.’ The Weiner case was cited in People v. Redmond, 225 N.Y. 206, 121 N.E. 785, which only indirectly bears upon the matter. People v. Kuland, 266 N.Y. 1, 193 N.E. 439, 97 A.L.R. 1311, is not in point. Any......
  • People v. Brown
    • United States
    • New York City Court
    • 17 Julio 1963
    ...order, it does not exist' (People ex rel. Hirschberg v. Orange County Court, 271 N.Y. 151, 155, 2 N.E.2d 521, 523; People v. Redmond, 225 N.Y. 206, 208, 121 N.E. 785; People v. Grout (Appeal No. 1), 166 App.Div. 220, 221, 151 N.Y.S. 322, For the Code 'provides a system of practice and proce......
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