6 N.Y. 463 | NY | 1853
By the court,
This is a writ of error to the supreme court, and is brought to review a judgment of that court affirming a judgment of the court of oyer and terminer for the county of Orleans.
The error book contains what purports to be the record of the judgment of the supreme court. It contains a copy of the indictment and the defendant’s plea of not guilty, and the bill of exceptions taken on the trial to sundry rulings of the oyer and terminer. From the bill of exceptions it appears that the jury found the prisoner guilty. It does not appear that the court of oyer and terminer ever gave judgment upon that verdict. And yet the supreme court affirmed the judgment of the oyer and terminer.
This judgment was erroneous and must be reversed. The
There is no assignment and joinder in error in this court, as there should have been. We take jurisdiction of this case under the judiciary act of 1847, which adopts, as far as applicable, the practice of the former court of errors on writs of error to the late supreme court. (Laws of 1847, 321, § 8 5 2 R. S., 740, §§ 15, 16.)
Neither of the counsel has adverted to the ground now taken; and it is not improbable that there has been a mistake in making up the record or in certifying the return.
We can decline giving judgment and strike the cause from the calendar as being prematurely submitted, there being no issue in error on the record. That will leave the writ of error pending and either party can allege discrimination, pray a certiorari and procure a return whether there is a judgment in the oyer and terminer or not.
All the judges concurring,
Cause stricken from the calendar.