69 N.Y.S. 620 | N.Y. Sup. Ct. | 1901
This is an application for a certificate of reasonable doubt and a stay of proceedings pending an appeal to the Appellate Division of the Supreme Court from a judgment of the Court of General Sessions granting a new trial to defendant. It appears that on November 28, 1900, the defendant was tried and convicted of larceny in the second degree. After the verdict of the jury was rendered finding defendant guilty, the defendant moved for a new trial and in arrest of judgment. Both of these motions were at that time denied by the trial judge and the prisoner remanded for sentence. On December 12, 1900, when the prisoner finally was called to the bar for sentence, the court announced that, having examined the stenographer’s minutes, it had decided to order a new trial. The attorney for defendant then stated that, inasmuch as his previous motions had been denied, the defendant should be discharged, as the facts proven on the trial could not result in conviction. This the court refused
provisions of the statute, entitled to have the jury directed by the court to acquit. The request was made in substance, and the refusal of the court to grant it was error. The judgment of -conviction should be reversed and a new trial granted.” It will be observed that even in that case the court, while holding that the defendants were entitled .to a direction of acquittal, yet ordered a new trial upon reversing the judgment of conviction. Entertaining these views, I must refuse the certificate of reasonable doubt, especially where, as here, any rights which defendant may have can be taken advantage of by him by a plea of former jeopardy (Code Crim. Pro., § 322) when called upon to stand trial again should the district attorney deem it advisable to again place defendant on trial.
Application denied.