| NY | Oct 4, 1887
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *4
The defendant was indicted at the Oyer and Terminer, in the county of Livingston, for grand larceny, in obtaining from one Barbara Leiter the sum of $1,500 by means of a check for that amount, which he induced her to sign under the false pretense that it was a check for the sum of $100. (Penal Code, 528.) The indictment was found May 4, 1885, and the trial thereon was had in the Court of Sessions of Livingston county, commencing April 28, 1886, and resulted in the conviction of the defendant, who was thereupon sentenced by the court to imprisonment in the State prison for the term of five years. The principal questions presented on this appeal do not arise upon any ruling made on the trial, or in any proceeding subsequent to the trial. They are questions raised on the record alone, and which were not, in any way, called to the attention of the trial court. If the record discloses upon its face that the court had no jurisdiction, or that the constitutional method of trial by jury was disregarded (Cancemi's Case,
It is insisted that the Court of Sessions had no jurisdiction to try the indictment, for the reason that there was no order of the Oyer and Terminer remitting the indictment to that court for trial. There can be no doubt that such an order was essential to confer jurisdiction upon the Court of Sessions to try the indictment. The power of the Oyer and Terminer to remit indictments pending therein to the Court of Sessions for trial, and conversely, of the Court of Sessions to remit indictments from that court to the Oyer and Terminer, existed under the Revised Statutes and is continued under the present procedure. (Code Crim. Pro. §§ 39, 41.) The only exception is of indictments for crimes punishable with death, which may be found in either court, but are triable only in the Oyer and Terminer. The record in this case is silent as to the existence or non-existence of an order remitting the indictment in question to the Sessions. It does not state whether such an order was made or not. But there is nothing in the record which justifies an inference, as matter of fact, that the indictment was not regularly sent by the Oyer and Terminer to the Sessions. The bare fact that no order appears in the record does not show that an order was not made. The omission may have resulted from inadvertence in making up the record. The question is, therefore, presented, whether, in order to the validity of the judgment rendered, the record must affirmatively show that the Sessions acquired jurisdiction by virtue of an order of the Oyer and Terminer remitting the indictment.
In the argument in Peacock v. Bell (1 Saund. 73), the rule of jurisdiction is said to be "that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged;" and this statement of *6
the rule has been frequently approved. "Superior courts," says the learned annotator of Smith's Leading Cases (1 S.L.C. 991) "are presumed to act by right, and not by wrong, and their acts and judgments are consequently conclusive in themselves, unless plainly beyond the jurisdiction of the courts from which they emanate;" and many cases are cited in support of this statement. Indeed, the general doctrine thus stated is nowhere controverted, but, in applying the rule, it must first be determined whether the court whose judgment is in question is to be regarded as a superior or inferior court, and, therefore, entitled or not, as the case may be, to the benefit of the presumption of jurisdiction. There is a qualification of the general rule stated in Saunders, to be found in some of the cases, depending upon the fact whether the question of jurisdiction arises collaterally, or in a direct proceeding in error, to review the judgment. There is also another inquiry which has given rise to much debate, and that is, whether jurisdictional facts shown by the record of a judgment of a court of general jurisdiction to exist, can be controverted. That question received great consideration in this court in the case of Ferguson v. Crawford (
The learned counsel for the defendant raises the further objection that the defendant was not arraigned and did not plead to the indictment. The authorities are quite numerous to the effect that in a criminal case an arraignment and plea are essential and necessary preliminaries to a legal trial upon an indictment. (4 Black. Com. 322; Bishop's Crim. Pro. § 684; 3 Wharton's Crim. Law, § 3154.) Section 296 of the Code of Criminal Procedure declares that when the indictment is filed the defendant must be arraigned thereon. The defendant on arraignment may either demur or plead to the indictment (§ 321) and the plea makes the issue of law or fact to be tried. The object of the arraignment is to inform the defendant of the charge against him and have him answer the indictment. (4 Black. Com. 322.) A formal plea of not guilty is not necessary to put the defendant on trial. Under the Revised Statutes (2 R.S. 730, § 70) a demand of trial by a defendant was declared to be equivalent to a plea of not guilty. It is sufficient, we think, to constitute an issue that the defendant on his arraignment informs the court that he denies the charge or that he demands a trial. We are of opinion that the record in this case does sufficiently show an arraignment and plea. The record states that on May 13, 1885, the "defendant on arraignment pleaded not guilty." The record then proceeds "subsequently and after arraignment as aforesaid, the defendant by leave of the court *10 withdrew his plea and moved the court to dismiss the indictment under subdivision 2, section 313, Code of Criminal Procedure." Then follows the affidavits on which the motion to dismiss was made, and the decision of the court denying the motion; also a statement of the proceedings and evidence on the trial, and the finding by the jury of a verdict of guilty. It does not appear that there was a formal renewal of the plea of not guilty. But the parties proceeded as upon the trial of that issue. The defendant was present with his counsel and cross-examined the witnesses for the plaintiff, and introduced witnesses in his defense. It is a just inference that all parties regarded the plea as having been withdrawn for the purpose of the motion only, and proceeded to the trial on the understanding that it was reinstated when the motion was denied. The Code declares that "no indictment is insufficient, nor can the trial judgment or other proceedings thereon be affected by reason of any imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendants upon the merits." (Code of Crim. Pro. § 285.) It would be sacrificing substance to form not to give effect to the transaction according to the plain understanding of the court and the parties.
Exceptions were taken by the defendant on the trial to the admission and rejection of evidence. They were fully considered by the General Term and none of them presents any doubtful or difficult question.
The defendant, after judgment, applied to the trial court to vacate the judgment to enable him to move for a new trial on the ground of newly discovered evidence. The court denied the motion on the ground that it had no power to grant the same. The power of a trial court to grant a new trial, given by section 463 of the Code of Criminal Procedure, is qualified by section 466, which declares that "the application for a new trial must be made before judgment." The affidavits upon which the motion was made, did not make a case upon which, within the established rule, a new trial could be granted. We think the application was improperly denied. *11
The final question in the case relates to the form of the judgment entered by the clerk in the minutes. The record contains (1) a copy of the indictment; (2) an arraignment and plea; (3) the proceedings on the motion to dismiss; (4) the minutes of the trial, including a statement of the finding by the jury of the verdict of guilty, and entries of various adjournments for the purpose of permitting the defendant to move for a new trial; (5) the affidavits read on the motion; (6) an entry entitled "ThePeople v. Amariah H. Bradner," which is the minute of the judgment. This last entry recites the hearing of the motion for a new trial, its denial by the court, and then proceeds, "the said defendant being asked if he had any legal cause to show why judgment should not be pronounced against him, to which he answered, `No', it is ordered on this 8th day of June, 1886, that the defendant be imprisoned in the State prison at Auburn, N.Y., for the term of five years." Section 485 of the Code of Criminal Procedure provides that "when judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must, upon the service upon him of notice of appeal, immediately annex together and file the following papers, which constitute the judgment-roll," etc. The judgment in a criminal case upon conviction is the sentence of the court. But it is essential for certainty and for the protection of all parties that it should be evidenced by a record. There must be a memorial of the judgment entered in the record of the court before the judgment can be executed. Section 485 does not contemplate the making up of a formal judgment record. The entry in the minutes stands as the record of the judgment, and, on appeal, this entry forms a part of the judgment-roll. The entry in this case does not fully conform to section 485, as it contains no statement of the offense of which the defendant was convicted. Looking at the whole record, which includes the indictment and the minutes of the trial, the fact appears. The question is whether this omission in the entry by the clerk makes the sentence void, so that the case stands *12 as if no judgment had been pronounced, or may the other parts of the record be referred to, and, if found to furnish evidence of the fact omitted in the entry, may this court conform the entry to the fact. Section 486 of the Code requires that where a judgment, except of death, has been pronounced, a certified copy of the entry thereof upon the minutes shall be furnished to the officer whose duty it is to execute the judgment, and declares that no other warrant or authority is necessary to justify or require its execution. We are not called upon to decide whether it is necessary, in order to justify a detention of a defendant under this section, that the entry in the minutes, with a copy of which he is to be furnished, should conform to the requirements of section 485, and show the offense of which the defendant was convicted. But we are of opinion that the defect in the entry is amendable on this appeal. By section 542 (Code Crim. Pro.) the court on appeal is required to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. Section 543 declares that, "upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered on a lawful verdict, correct the judgment to conform to the verdict; in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal may, if necessary or proper, order a new trial." In this case the verdict and sentence were lawful, but a defective record of the judgment has been made. It may, we think, be regarded as an erroneous judgment within this section. The verdict authorized an entry of the judgment in accordance with section 483, but by negligence or inadvertence the statement of the offense was omitted, and if the entry is amended according to the truth as shown by other parts of the record, the judgment, as recorded, will conform to the verdict. It may be admitted that the primary object of section 543, was to provide for cases where an illegal sentence followed a lawful conviction, but still, we think the language and intent of the section fairly includes the present case. *13
The judgment should, therefore, be amended, by inserting a statement of the offense for which the conviction was had, and, as so amended, affirmed.
All concur.
Judgment accordingly.