163 N.Y. 99 | NY | 1900
On the 2d of May, 1899, the defendant appealed to this court from a judgment of death pronounced against him three days before. In June following he moved for a new trial on newly-discovered evidence, but the motion was denied by an order entered on the 20th of October. Subsequently his attorneys served a proposed case which, among other things, contained the affidavits and proceedings on said motion, but they were struck out on the settlement by the allowance of an amendment prepared by the district attorney. Thereupon the defendant moved, at a Special Term held by the justice who presided at the trial, for a resettlement of the case by disallowing such amendment and restoring said proceedings to the record. From an order denying said motion this appeal was taken, and the respondent now moves to dismiss the same.
We think the motion should be denied. The statute gives a person upon whom judgment of death has been pronounced the absolute right of appeal to the Court of Appeals in the first instance. (Code Crim. Proc. § 517.) It is the only method of review allowed by law in this important class of cases, except as the trial court may to some extent review its own action, as well as that of the jury, on a motion for a new trial founded upon errors committed before judgment is pronounced. (Code Crim. Proc. § 465.) The power to hear and decide an appeal in the first instance necessarily involves the right to settle the preliminary practice so far as it is not fixed by statute. (People v.Conroy,
It is, therefore, necessary to decide the appeal, which presents an important question never decided by this court, although once considered by it before the statute was in its present form. (People v. Hovey,
This was the law until 1887, when the legislature made an important change in our jurisdiction by providing that an appeal from a judgment of death must be taken directly to *104 the Court of Appeals, without any intermediate review. (L. 1887, chap. 493.) This change was accomplished by amending sections 485 and 517. The amendment of the latter was by inserting after the provision for an appeal to the Supreme Court these words: "Except that when the judgment is of death the appeal must be taken direct to the Court of Appeals." The former section was amended by adding paragraph 8, which required the clerk, "when the judgment is of death * * * to cause to be prepared and printed the number of copies of the stenographer's minutes and judgmentroll which are required by the rules of the Court of Appeals, which shall form the case and exceptions upon which the appeal shall be heard."
The practice thus established was criticised by us in People
v. Shea (
These changes in the statute show that the legislature, by striking out the provision relating to the printing of *105 the stenographer's minutes, and directing the clerk to print the judgment roll only, intended that the judgment roll should contain the case, if any, as otherwise the clerk would simply print the judgment roll without the case containing the evidence, charge and the rulings upon the trial. This would present no record of the proceedings at the trial, except the rough minutes of the clerk. There would be nothing to enable the court to pass upon challenges interposed either to grand or trial jurors. The exceptions taken to the rulings of the court relating to evidence and to the charge would not appear, and there would be nothing in the record that the court could review. It would still be necessary to have the case printed and furnished. The same section provides that the expense of printing the judgment roll shall be a county charge, yet, unless the judgment roll contains the case, the greater expense of printing the latter would be thrown upon the defendant. The legislature did not intend to have two separate records presented for the purpose of the appeal, one, the judgment roll printed by the clerk, and, the other, the case printed by the defendant. We think that, whenever the case is filed, even if it is after the judgment roll has been made up in the first instance, it becomes by operation of law a part thereof, and should be attached thereto in accordance with the general practice.
Under the statute we have jurisdiction to review judgments rendered on conviction after indictment, "and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll * * * may be reviewed." (§ 517.) Any intermediate order or proceeding, therefore, which is required by law to be a part of the judgment roll is brought before us for review by virtue of the notice of appeal from a judgment of death. Two tests are thus provided, first, the order or proceeding must be a part of the judgment roll, and, second, it must be an intermediate order. (§ 517.) According to section 485 a copy of the minutes of any proceedings upon a motion for a new trial is required to be a part of the judgment roll. What *106 is the object of this requirement unless it is, in connection with section 517, to give the court jurisdiction to review the proceedings upon a motion for a new trial? All the other papers in the judgment roll are the subject of review by us, although the minutes of the clerk relating to challenges to jurors and his minutes of the trial need to be expanded by a case before any intelligent review is possible. The material evidence given upon a challenge to a juror is put into the case so that the exceptions to the decision relating to the challenge may be reviewed. It is an appropriate and necessary part of the case if any question relating to the jurors, either grand or trial, is to be presented. In the same way the case, which, as we have seen, is a part of the judgment roll, may be expanded by including the evidence and proceedings upon a motion for a new trial, so that the order denying it may be reviewed. The statute does not confine the judgment roll to a copy of the minutes of proceedings upon a motion for a new trial founded upon the minutes of the presiding justice, but is general in form and necessarily includes a motion for a new trial founded upon newly-discovered evidence made under section 465.
An intermediate order, within the meaning of section 517, is not confined to orders made between the finding of the indictment and the preparation of the judgment roll in the first instance. The word "intermediate" as thus used means between the finding of the indictment and the completion of the judgment roll by the attachment of the case thereto whenever it is filed. As a judgment roll need not be made up at all unless a notice of appeal is served, it is apparent that the object of preparing the roll is to make a record to present to the appellate court. (§ 485.) The judgment is entered upon the record kept by the clerk, and this is sufficient for its enforcement and for all purposes, unless an appeal is taken. Hence, if all the papers which the statute says shall be a part of the judgment roll are not on file when it is first made up, they become a part of it when filed, and the word "intermediate" is limited only in this way. *107
A motion for a new trial upon newly-discovered evidence may now be made in a capital case at any time before execution, although formerly it was restricted to any time before judgment. (L. 1887, ch. 534, § 466.) Unless it is made and decided in time to include the proceedings in the case, the order denying the motion cannot be reviewed. The right is lost, the same as many other rights in legal proceedings are lost, by delay. When, however, it is made in time to have the affidavits become a part of the case, we think the legislature intended that the order might be reviewed at the instance of the defendant, for it is only his right of appeal that we have considered. The right of appeal by the People is much more restricted. (§ 518.) Such a motion may be of the utmost importance, and while it should be granted with caution, if an overwhelming case is made by the defendant and the motion is denied, there should be a right of review, yet no method is provided, unless as thus stated.
The legislature provided that a copy of the minutes of the proceedings upon a motion for a new trial should be a part of the judgment roll; that the case should also be a part of the judgment roll; that the judgment roll should be printed and furnished us as the record upon which the appeal should be heard and that we should review, as an incident to the appeal from the judgment of death, any decision of the trial court in an order or proceeding forming a part of the judgment roll. This makes it our duty to hear the appeal, as was plainly intimated by Judge ANDREWS under a statute less favorable to the defendant when he said in People v. Trezza (
The same result was reached in People v. Mayhew *108
(
The motion to dismiss the appeal should be denied, the order appealed from reversed, and the papers relating to the motion for a new trial upon the ground of newly-discovered evidence inserted in the case.
O'BRIEN, BARTLETT and LANDON, JJ., concur; MARTIN, J., concurs in result; PARKER, Ch. J., and HAIGHT, J., not voting.
Motion denied, etc.