Quimbo Appo v. . the People

CASES AND DETERMINED ARGUED

IN THE COURT OF APPEALS

OF THE STATE OF NEW YORK, Term,

March 1860. v. error, defendants plaintiff Appo, People, Quimbo

in error. unau- prevent Court lies to the exercise of Supreme from Prohibition proceeding of which the subordinate tribu- in cause thorized entire no less than cause without jurisdiction, nal has jurisdiction. a permanent the several counties is and contin- are terms of the same, successive sessions and not uous court. Its tribunals. distinct and Terminer has no to order new trial the merits, felony. a conviction Quimbo Court. of error Appo Writ to be and sentenced executed murder, tried and convicted held in and for the Terminer a Court therefor, The court 1859. York, April, New county city of June following. sine die on the 16th adjourned the same a Court October, year, the first Monday On. held in and for the same city Terminer was of- and on the 17th Mr. Justice before Roosevelt, county, IN" THE CASES COURT OF APPEALS. v. October made an to the last mentioned court Appo application him, 'to set aside his and sentence, conviction a grant new trial. founded on The the minutes of Mr. application the Justice before took whom conviction place, Davies, on done him his on affidavits alleging injustice trial, newly &c. evidence, discovered

The district denied of the court to enter- power attorney tain or such a to it motion declined answer on grant merits. The court affirmed its and announced its inten- power tion to motion. district grant attorney thereupon sued out an addressed to alternative writ prohibition, Appo exercise of court, and the forbidding jurisdiction. term returnable writ general Court Supreme of December, on the first 1859. On the return Monday day on rendered argument, a judgment, awarding prohi- from bition absolute, error judgment Appo brought this court.

David for the error. Dudley Field, plaintiff I. writ prohibition remedy, obsolete,never nearly as a demandable matter of confined right, granted to those cases is no other which there If, therefore, remedy. Terminer had clear were had the trial, new Supreme Appo should human interfere, against nevertheless revive life this almost and of writ: favor forgotten mercy his should the district writ of life, leave attorney remedy by in his favor, error. If should hereafter have Appo judgment other than cause an acquittal any by jury, under {ch. error the act of review the 1852 bring order for a and if such order be a trial; nullity, appel render late court will judgment against prisoner (Ex 2 Hill, Braudlacht, conviction. original parte 367.) to interfere not the Court has II. The Supreme in a criminal trial, of a granting prohibition juris- had general and Terminer which the over action, 583 ALBANY, MARCH, 1860. v. for it is a that where a court diction, general principle has an its orders made in action, over jurisdiction action, so cannot be erroneous, never reexamined on a though writ Gr. 3 Com. (1 Tyr. 227; a. prohibition. Steph. r.; ex 2 Gordon, Hill, 363; Seward, parte Wend.,518; Queens, People Supervisors Hill, 101.) of Court has not the III. The jurisdiction issue more than prohibition Queen’s Bench issue England jurisdiction pro- or the hibition to the CommonPleas The Court of Exchequer. and Terminer is the court of criminal highest jurisdiction Oyer It issue its in the into S, State. B. may process county local of and criminal “Inferior courts 247, juris- civil §43). the in cities.” diction be established (Const., legislature may courts are the Court of Buffalo ait. Such 6, p. Superior 14.) and the Court of and also in such civil matters City Brooklyn, and are the Court Common Pleas The city. Superior than these. are higher the it Conceded that IY. were If, however, to and a the and Terminer, could issue prohibition an could order for a making new prevent prohibition it had full still it could jurisdiction, a case over which in this because the and case, not issue its prohibition trial as it had the the has done. Terminer new grant power is one of its power. propriety only for cause If, cannot here be whatever, examined. exercise at a and and subse- judgment, a Court Oyer con- trial, can new the term, present grant attempt quent be tested then must fail The by supposing power trol an indictment us for Let suppose an case: extreme returned and that has verdict just guilty, murder the jury at the and the counsel the bar, is in the box, yet jury while to murdered dock, supposed in the person prisoner confessthat and witnesses should enter should of a fruits trial and conviction were conspi- accusation, the court be the forms would law, under life to take racy and nevertheless, the land proceed, the law bound by IN THE CASES COURT OF APPEALS. the sentence death? If would then it not, pronounce trial at the same and before term, sentence. might grant But that the court had sentence suppose pronounced all hour, within the adj ourned, might happened and that before the counsel, judge, prisoner, had left the room the lost man had spectators re-appeared been is there confessed, confided power conspiracy from the scaffold the innocent judiciary saving victim Must he life his depend conspiracy? him as extended to Executive clemency suppliant suing is ? It in this form the question pardon power may submitted our confidently judi- presented. fairly cial are not thus faulty, institutions exist in the an does somewhere tribunals. innocent man relieve trials is an incident V. The every The first case is court of jurisdiction. reported superior established. time 466—since which Style, fully (S and the canes in 1 Burr., 394; Lord Mansfield ee on New Intro Trials, in Graham Waterman comments and vols.2 2, duction, 3.) Terminer

VI. Court of superior crime. Because it jurisdiction. It has over every jurisdiction it a of not make limited in territorial extent does is limits of the than the territorial more inferior jurisdiction, any them States make the United and district courts of circuit of the State The Constitution of inferior jurisdiction. courts infe and Terminer among of not the Court does class C. Park., 2 Com. R. Crump., v. Cas., 172; rior courts. (1 Va. Wheat., 10 Sullivan, 192.) McCormick v. id., 518; 3 653; of jurisdiction courts general of criminal The VII. power so has been decided cases of trials in felony new grant not a debatable that it is now question. in this often country Law, Crim. Dig. U. S. 981-1019; 561-592.) C. L., (Whart. Terminer to our and The power VIII. is also settled by authority. in cases trials felony new of The Peo- till case on the subject existed Mo doubt ever that case and to this Wend., day (8 549), Comstock ple v. MARCH, 18G0. ALBANY, 585 ». The People. authorities are the against only in Barbour, case 2d in and since, before authorities are several there while 1 Morrison, v. 5 Stone, Wend., 39; People v. its favor. (People 2 Park. McMahon, in The v. People R., 625, Approved Park. C. Hartung, 3 518 v. Goodrich, id., ; People v. C. R., 673; People 1 The Court Sessions Wayne, v. The People How., 86; The R., 1 Park. C. Finkle, v. 374.) Miller 370; Park. C. R., was where Wend., Comstock(8 v. 549), of The People after the made acquittal People application Terminer, Dutchess Oyer Judges defendant. v. (People is decision ground where the put upon Barb., 282, that such objection an power Terminer is court.) inferior to be is an accused twice person put jeopardy would expose not If it were so could never fallacious. judgment utterly trial criminal new cause, ordered, reversed trials ordered John., v. People M'Kay (18 case. Cancemi N. (16 Y., 503), 212), been unconstitutional. N. would have Y., (19 Shepard trials in crimi IX. The-objection granting trials lead frequent nothing. nal would applications proves of abuse evidence possibility nor reason does not not exist. exist, ought why moment no at this civilized on the There probably country of trials and which does allow review globe, judgments cases. In the old rule has con England long criminal and is now abandoned. judges, demned her wisest lawyers Queen v. 6 Brit. Crown Cases, 286; Scaife, Denison's Crown English 8th Report Comrs., 18-33, See 286; Cases, N. Y. Code Comrs., 256; 159, 264, 221; Report Livingston's Act Criminal ch. Pro., 12; erecting Superior ch. 96, Buffalo, 1854, 35.) §

X. has the It, grant new the same before it has term,' also the judgment; it at a to term. The court a con- grant subsequent power “ are terms. All such one; several tinuing sittings, process, said of if issued Court Terminer Jail Oyer on in 1 is not in the ast session, tested maj Delivery any day 536 CASES IN THE COURT OF APPEALS. v. of term court.” said

preceding (Laws 1828, 212, 9.)§ of “ at the time for the Whosoever commencement of appointed term the of Court of or of term Oyer any any of of the Court ator time Sessions, term, etc.’’ during any “ as (Laws 1848, 280, 40, ch. ch. amended., 470, When So.) § § of the office of district shall be vacant at attorney any county term of and Terminer or Court of any Ses Cpurt sions of or the district any shall from county, attorney cause be unable to attend the term of such court, members of the except justice some suitable Court, to act as may designate district person 470) at such term of the court.” ch. attorney (Laws “ shall be at least There two terms the Circuit Court 33.) § and Court Terminer held each of the annually counties of this State, and as more terms thereof, many terms as each district many special shall judges judicial at one term therein; least shall be held appoint annually each said counties.” Y. See the (N. Code, same 20.) § ” “ use of the term in word the Courts Sessions. respect (3 R. 5th is made for 304, 307, The seal the Court of S., ed.) Terminer S., 507, R. (2 Oyter county. 40.) § clerk the clerk of the and Terminer see also (1 S., Stone, R. v. 9 97; People Wend., 182; city. Courts of the same Cow., Sessions footing 735.) the Courts of their continuance respect from term to term. In these courts S., 304, 307, R. 5th ed.) it is a term sentence subsequent frequent practice conviction. trial after

XI. It has also the This exercised in civil sentence. has been long actions, there seems to be no reason same should why in criminal exist actions. trials in criminal cases New the same been established depend principles 5 T. Law, R., 436; King cases. Crim. (Whart. ; civil Gough, see remarks v. 446; King Holt, Justice, Grose, 3 Halsted, open State v. 798; Price, Doug., 358.) cases. (Soulden been exercised civil long judgments 537 ALBANY, MARCH, I860. v. Quimbo The 4 Cook, Wend., 217 Com. ; Peck, v. 1 Met., 428; Can People v. N. Y., This

cemi, 16 examined note, 503.) asserted power Finkle Park. C. R., Miller v. (1 374). This is no bar to sentence new trial. shows John Doyle, T. defendants error. People, I. The is the writ 1. It lies prohibition proper remedy. an inferior tribunal court, whenever or officer exceeds its where the inferior even tribunal has jurisdiction; jurisdic and is subject matter, tion in the exercise proceeding determine jurisdiction, over incidentally question (F. no it has N. B., &c.; which 39 40 Jac. authority. H., K., Prohibition; verb v. Windus 5 B. and Dict, Byerley et al., Law 1 T. 2. The R., v. October Court C., 1; Cosens, Darby 552.) before this motion was Oyer made, not There had no lis jurisdiction subject'matter. it—a before previous pendens rendered

tried the traverse, judgment, passed sentence. res The whole case was Ho court one judicata. appellate disturb the could R. judgment. 205, jurisdiction (2 S., 29.) § no other There is adequate 3. remedy. of the Court of

II. As Terminer in power A Court case. 1. Terminer has present case to set aside a a new verdict and trial. be had on should If conviction testimony unsatisfactory ifor should cast a evidence discovered rea newly on the guilt, sonable doubt Executive alone can prisoner’s interfere. such purpose correcting errors was confided the Governor. It is pardon to discuss this its determi proposed length, nation is not case. arguments necessary present and con found cases of pro will conflicting People v. Morrison Park. C. v. Dutchess R., People Judges (1 and Terminer Barb. R., S. C. (2 (5 v. Stone 282); Comstock R. Wend., S., 2 Wend., 39); 549); 2. But Rev’rs Notes. et seq., supposing YI. Smith.—Yol. GASES IN OF THE COURT APPEALS. Appo People. and are whilst judgment, proceedings

exist before yet it does not exist after When sentence is once fieri, judgment. and so recorded, record can be judgment pronounced made the court is as S., 738, up 4),§ R. functus officio and all further it. loses case, jurisdiction over particular of of and Courts and Terminer Oyer organization history to their under this State be traced back commencement the Colonial reference statutes: Government by following 1847, 201, 2 R. S. 331, 332, 38, 43, Laws et &c.; § § seq., of 1 R. 4, L., 1813, 335, 8, 10, 12, 15, et et seq., &c.; seq.; § §§ 8, 10, &c.; 174, 6, 1683; Laws R., 1 K. and Orders §§ of of and 1704, 1699 Col. ed. Laws, 1710. appendix Bradford's of is not a continuous t, The Court of and Terminer com Oyer 3. ceases to exist on its circuit, like but, adjournment, sine die. has the and Terminer Hence no subsequent Oyer of These courts interfere with judgments predecessors. exercise the confided this State take powers place and Terminer and Gaol commissions of Oyer England difference that here certain periods The only Delivery. there them, for the whilst holding appointed persons for each assizes. are issued commissions (See authorities special 110; also Fitzherbert's Ja Brev., Nat. subdivision, under last “ Qaol and Tit. Terminer," Delivery L. Tit. Dic., “Oyer cob’s f 4 Bl. 9 ; 269 Miller's titles; Com., Case, same L. Die., Tomlin's 201, 15; 4; 2 et two S., 658, Id. § ib., seq., § Cow., 730; R. 6; courts, 5 one circuit ; Sc., the several courts, § courts, § 22; Terminer, 14; to hold a Court § Oyer Sc., § to ; such to next court, bound § court, parties form failure 29; each Court 28; Terminer, Court § Oyer § each and Terminer Oyer Terminer Court (not Oyer 32, 33; commissions special county), §§ ferro 35; special special and Terminer (not § “ next 28, 29, contrast id. ib., 737, phraseology §§ the Court), If the id. ib., §23.) '(cid:127)next court;" term" and on the cast duty continuous, were why and Terminer for could only of cases The class provided Court ? Statutes time Revised and Terminer in the Oyer arise MARCH, 1860. ALBANY, That Courts of 4. and Graol enacted. were to exist on their courts, were originally special ceasing Delivery is an undoubted fact in the final judicial adjournment, history from the colonial If of the States ever underwent period. in structure as to become continuous courts, so radical change some enactment out and it must easily pointed None in its been shown. interpretation. plain on the argument III. Conclusive law written from the reason of the argumen- that drawn law—the appears, forcible. 1. is not to be turn ab inconvenienti—is equally intended to enact a that the Legislature system supposed of criminal which courts, for necessity laws organization of crime. The inadequate punishment would utterly if it here, exists, contended would destructive power There is no cannot convict make out all who government. and their trial, case for incarceration would plausible amount laches the excuse any application. folly no is with means such resisting provided applications. public on whose convictions been have testimony had, witnesses of the the to the four globe; means quarters scattered are or of their authentic preserving any testimony, perpetuating on the former has not trials, evidence given memorial and does not exist fact. If the Courts law, by provided for the convened purpose of Oyer trying under accusation have crimes, power go now prisoners action of their the result is back and review predecessors, that there is no or 2. The fact law rule of divined. easily of the minute to be on evidence court which kept requiring no for the or convicted; provision making prisoner none as to the evidence; of a case time embodying settling no a motion shall be on made; such within after a to detain or verdict, witnesses prosecution part to such no motion; affidavits opposition provi- compel or of court, either statute rule reference sion, having and no sucha such precedent whatever proceeding; should of State, motion hr the whole judicial history the existence of the be conclusive themselves against CASES IN THE OF COURT APPEALS. S. The from the claimed. drawn analogies civil practice In cases civil cases there application. parties each interests in the having equal result; opposed, litigants human counsel, urged strongest motives passions, elicit all the will evidence on assuredly perpetuate bearing case to enable the court to render a safe and accurate judg- Rules of exist in ment. statutes furtherance of this A motion for a trial made on object. minutes of the court must be made term and law same before the -The reason same judge. (Obcfe, obvious. No other 264.) § from could the case nor notes, understand even judge made while fresh. them, who Provision is except memory for the cases of a made other making settling If are to be either both affidavits used, hearing parties. party an to make one, witness rules of unwilling can compel which such motion within must be periods prescribe it be In to make lost. criminal cases none made, right exist. 4. The scheme our of these conditions government under and the distribution are at Constitution, powers here. The claimed right pardoning war with for the on the very conferred Governor purpose correcting fact the of errors of which intervene conviction might a trust, is granted public a purposes culprit. us a does not Hence with pardon guilt, imply only. is of an offended but a of sovereign, recognition

forgiveness of or least accused, innocence of the his unjust convic- tion. of the court was delivered opinion first be considered is, whether J.

Selden, a of was proper assuming the writ that remedy, prohibition had no of a authority the Court Oyer after conviction for the the merits sentence murder. of crime courts and of this to restrain subordinate is, office writ from their kind exceeding tribunals of every

inferior judicial one the writ, It is an ancient valuable jurisdiction. ALBANY, MARCH, 1860. cases should be in all encour-

use which proper upheld to the due and it is administration regular aged, important that each tribunal should confine itself to the exer- justice under of those with which, Constitution and cise powers it has been intrusted. laws State, it But when the inferior said, court or tribunal has or of the action, matter jurisdiction before subject it, in the exercise of that error jurisdiction can neither nor writ corrected prevented by prohibition. the most

It is true that occasions for the use of frequent subordinate tribunal assumes writ to entertain some or it over which has no cause control. But proceeding for the writ is the same in a where, matter of necessity tribunal has it jurisdiction, goes beyond legitimate and the authorities show that writ powers; equally to such case. Mr. Jacob, applicable treating writ, issue inferior courts of saying des every ecclesiastical, whether temporal, cription, military maritime, to take attempt cognizance whenever causes they over which no “or adds: jurisdiction, if, of mat they handling their cognizance, ters within clearly they transgress bounds to them laws England, as where prescribed two witnesses prove require payment legacy.” (Jac. Law title Dic., Prohibition.)

In the case of v. Cosens Term Darby R., defend who was vicar had ant, Burton, sued parish Long in an Ecclesiastical Court for an action tithes, being Darby of that jurisdiction defendant court; appropriate modus set an issue having up defence, c way. pi the Ecclesiastical sented which authority try— assumed still, proceed case, upon application to the Court of Bench a King’s writ prohibition issued. made here objection was taken in the case precise Term R certain B.,

Leman v. church Goulty wardens in the Court to exhibit on an cited oath were account Bishops’ n of moneys the them. received paid Objections being ' IN CASES COUBT OF APPEALS. THE v. The People. the

made one or items account, two Bishop required their them a certain amount, refusing was. pay a rule further the case was obtained still with when proceeding in the cause a Bench show writ King’s why Court not and the counsel cause issue; should showing prohibition Court had that as the original jurisdiction insisted Bishops’ the error corrected should be cause, upon appeal, not a for a the court writ of allowed ground prohibition; and Lord a mere for writ, admitting Kenyon, had error in the court to ren- which judgment giving “ in this Now, not said: der, lie, case, writ would church compelling production respect accounts, warden’s exclusive Spiritual jurisdic- their ceases, tion but there which ; everything authority an excess of did which jurisdiction afterwards was they to be ought granted.” prohibition that the writ lies exercise prevent

These cases prove in a cause proceeding unauthorized no less than tribunal jurisdiction, the subordinate broad remedial is jurisdiction. the entire cause without the brief statement of a case- this is nature of shown by writ cases In the various which the Fitzherbert. writ stating “And if a man be sued he lie, Spiritual will says: unto there will the defendant Court, judges then he shall libel, have directed prohibition, copy until delivered the &c., unto for a have surcease,” them copy Anno to the statute made (F. 5.H., the libel, according title B.,N. Prohibition.) was never narrow governed

This shows writ to as a mode of but was resorted convenient rules, technical over inferior tribunals. The control a wholesome exercising to be I as it think, not, abridged, of this ought remedy scope an unauthorized the exercise of far better prevent the error after correcting to the necessity to be driven than therefore, no hesitation, holding committed. use writ, proper MARCH, ALBANY, 1860. Appo People.

Quimbo v. The in the conclusion which arrived right term. general Had, the Court Terminer then, Oyer authority Quimbo make the order defendant, granting Appo, taken for ? One the counsel position this it to is, conceding exist, cannot be exercised before has been judgment, judgment I have not, sentenced. pronounced however, prisoner for been able to solid basis this discover There distinction. no is which it can rest—nor am I general principle If the ends of it. aware analogies support justice that this should be Courts of vested require Oyer is as demand just imperious where judg- before the ment pronounced grounds happens are made known as other interposition stands in cases. If the judgment way, may vacated. become, The court does not claimed the counsel, functus as to the is whenever sentence particular pronounced. oficio the court instance, Suppose, inadvertence should through sentence the without himof whether he prisoner inquiring had sentence not be why anything say pronounced. shouhj this sound, If the error, dis- position although immediately could not be corrected the court which covered, committed not it. would be only unsupported by authority, hold, we must sustain the we unsafe, think, doctrine Court of that a Terminer loses for, contended all before it as as the control over the cases soon judgment recorded. if it the counsel

Another admitted is, position the court tried could before which prisoner Court of another and Terminer subse- new trial, yet a distinct organized, being jurisdiction quently could exercise that case, power. an This into nature Courts of involves inquiry State, Terminer far resemble how that name. In courts of English England, although Terminer held in annually every county OF CASES IN THE COURT APPEALS. v. in at least and most of the counties once, twice, kingdom of a author- commission, each court is held virtue special yet by addressed to of whom it is hold two izing persons any embraces of the court. commission two usually judges one of or a at Westminster, whom, serjeant the Courts in such a one is named of a place law, must judge, cannot or the court be held. The always present operative “to are, words commission hear and deter- inquire, and the commissioners no have such mine,” as is power except these conferred words. by and must before can hear deter-

Hence, they inquire they no indictments as are found can at mine, try except is court. This a however, the same overcome difficulty, by as it is called, of Gaol commission Delivery, second all them to found gaol deliver prisoners authorizes is at the the court their place held, therein arrival all indictments, of this and whatever they try virtue found. or the offence wherever to different

This commission conve- persons, may is same who Court persons nience usually compose these Besides more and Terminer. commis- general of Oyer be issued commissions at sions, King special any offences, time to either individuals named. specific try final of these courts course, adjournment Of any are ended. its It no longer county powers any any far that there is concerned, so no county existence and Terminer or of Gaol Delivery, longer any for such until a com- in and be, county, as the case may mission issues. Court of Ter subsequent

Hence plain interfere com could as such, way miner, because must first then a inquire, menced previous far as Court Gaol How powers determine. hear but no I am extend, prepared say; might Delivery assumed to under ever think, cognizance take has, in England a new trial, motion for even irregularity, this power It has court. been held there aat tried previous a case MARCH, ALBANY, 1860. v. Terminer and

judges Gaol Delivery after the adjournment courts, after their may, com a case of missions reprieve expired, prisoner sentenced, order to afford convicted time to previously for a But to the crown Blackstone pardon. says apply “ rather common than this is of strict usage even right.” Com., Blackstone 394.) no substantial therefore, difference were found If, to exist our Courts Terminer and Gaol between Delivery I should think it those sufficient England, objec- order to the in the tion granting present case, not made the same in that it was the case was tried. of and our Courts

But Oyer although and a similar name jurisdiction the same with those of Eng- in some are nevertheless respects land, differently organized. “ think it do not whether the I act necessary inquire to set- Justice,” of tle Courts published volume appendix 2 of 1813, of the Revised Laws date in bearing was in this or not. ever in force State will exhibit sufficiently structure of the court refer to a few of the more present on the modern enactments subject. of the 13 of article 4 Constitution Section of 1821, provides “ of the Court The Clerk of follows: and Terminer Oyer of the in and Peace,

and General Sessions for the city of shall be York, New the Court appointed by of county in said of the Peace General Sessions hold his city, office of the said court.” This pleasure neces- during language that the Court and Terminer implies Oyer sarily was as a court. continuing Under regarded permanent no Court of system there was Oyer Terminer in English set of while existence, commissioners except particular were There could be no clerk of such in session. a court during of one between commissionand expiration interval nor could the definite article the another, issuing appro- used in such connection in the clause priately quoted, to some in reference session of particular except court. YI. 69

Smith.—Yol. CASES IN THE OF COURT APPEALS. 546 v. The People^ court seems to have applied phraseology English been continued until State after the Constitution 1821 section of the article Circuit Thus, 8 concerning adopted. (1 Courts and Courts Terminer, passed Oyer of the commis R. uses this “A 337), L., language: quorum and Terminer. the Court Oyer sioners,” speaking issued at no fact that commission was however, presume, act and in the ever, concerning in this State, day, and Terminer, and Circuit Courts and Courts Supreme 1823,211, passed expressly provided 9), {Laws § one Courts, judges together County “ circuit Court, a justice might, by judges ” “ of their and that and without virtue offices act, respective other hold the Circuit Courts commission,” counties. From Terminer, &c., respective these time courts special organizing English system in form or lan to, adhered either commission was longer guage.

By the title of the Revised Statutes concerning section 40 of R. S., and Terminer and Courts Circuit Courts declared that the seals adopted by several previously Delivery and Gaol “shall con Courts of tinue to be the of section seals these courts respectivelyand 42 of the that out of a Court same act issued provides process “ of and Terminer court is not in when such session Oyer may in last be tested on the term said any day preceding as court.” the court in existence, although This section treats not in as of terms. succession session, having “ must be there two Code section enacts, the Again, Terminer <.terms the Circuit Court and Court of of Oyer and as State, in of this held each counties many annually the as of terms, more terms and as judges thereof, special many therein.” district shall (cid:127)each judicial appoint Court of no doubt English These leave provisions our far modified under judicial Terminer been so in court each continuous as become permanent system the of so that each session counties of State, the of ALBANY, MARCH, 1860. People, of distinct in instead being independ-

court county, the first and the existence of commenceswith ent which the a mere term the last terminates session, with day the Hence and Terminer the Court of county. cannot case be sustained upon this writ prohibition has assumed to take cognizance the court which ground for a trial is not the the motion same which was convicted. prisoner therefore, question becomes necessary, pass upon in this whether Courts State have after merits, conviction upon authority case., in a This has been somewhat capital agitated question in our and there are decisions conflicting it, courts, result the outset to be- ascertain; will be well have been cause, might question however originally, should has been settled courts we not feel State, it. disturb liberty I the more In cases recent. begin will referring two decisions of our then, There are, present in the One made at term second general the subject: The Dutchess district in the C. the other at the term R., Barb. S. general Terminer (2 the case of The district v. Morrison the third In first of these cases C. R., Park. 625). and in the examination, denied; last,

an elaborate after an it was affirmed. As elaborate, these were examination equally courts jurisdiction grade, coordinate equal as each other. be considered balancing speak properly decisions merely, irrespective reasoning their weight that one than The fact was a few later in the years two cases. nature of the considering the other, posi does affecttheir relative force. courts, tion materially considered therefore, may fairly standing, question, left far as where concerned, so authority substantially cases. previous next of the former two decisions We have in the of The Stone People v. situated: case First, similarly OF CASES IN THE COURT APPEALS. QuimboAppo v. that in where was asserted:

(5 Wend., next, 39), Comstock denied. Wend., v. which was (8 People 549), It in The Morrison that the remarks of suggested v. People in the last of these made cases, were J., Sutherland, through mere inadvertence, same court had, without reflecting two decided the other I find it before, years way. difficult adopt Judge Sutherland explanation. supposes Savage had both the case of The Judge forgotten entirely v. and not but that Mr. People Stone, Wendell so, also, only who had but the former to call just decision, reported neglected the attention of the obvious judges discrepancy; was one calculatéd to point awaken attention, especially as it in his discussed, elaborately J., was by Marcy, opinion; and the case of The Comstockcould I v. People think, hardly, found have into the if the books way pointed emphatic remarks of in that had been J., inadvert Sutherland, made. From I think the tone of those remarks it much ently more not the latter satis likely justice, although entirely fied in The v. J., Stone, Marcy, opinion People not chosen to and that he himself dissent, of the case availed of The v. People J., the mean having Comstock—Marcy, time left the bench and taken his J., having Nelson, place— his own views the latter express question, justice with him. probably concurring

The case of The Comstock therefore v. People fairly considered as a to that of The Stone, counterpoise' in the last because, involved although precise point been Imust, think, then said cases, what was yet two. in the said full consideration of reasoning previous cáse. therefore, construing cases two Taking together, them áuch show have, opinions we light and of Suther- Ch. J., J., of, favor Savage, Marcy, land and Nelson, Js., against power. of an there are two the cases referred to,

Besides already is the case The first date older will advert. briefly Townsend John. Ca., pris of The at the Terminer oner convicted having ALBANY, MARCH, 1860. before he tried whom was to judge

perjury, reported Court verdict was against Supreme evidence, court directed trial. latter new Judge Radoliffe, who on at that to time, the bench said have in the case reported Hall that Noah City Recorder, Supreme decided the case Townsend Courts of virtually and Terminer had to But new trials. grant so there or even in the counsel argument case, the whole seems to have done. From very hastily informally the face of the what the case cannot be appears upon report, as of considered considerable weight. other case to is that of referred The Jus- People v. tices John. Chenango (1 Ca., Court in 179). Supreme denied case" a Court of right General Sessions tó trials merits, issued a

grant mandamus to them to to in a case proceed judgment compel exercised for a This case conviction felony. been considered as ever as to the settling General of Courts of Sessions in this State and much of its as trials; well reasoning applies Courts as Courts General if the Sessions, to be former are inferior courts. regarded ‘inferior,’ The term has no courts, definite applied very It is used different senses. In the sense of meaning. being and restricted courts narrow Courts of jurisdiction, very and Terminer are not inferior; sense of being subordinate to the Court, common subject all other minor to its tribunals supervisory control, they are. Courts which are to be in motion subject put certainly mandamus or and to their restrained by prohibition, causes certiorari, taken before are subordi- away judgment by nate and this is all that is courts; necessary give of The The Justices the case reasoning People v. its full force Courts Chenango, applied Terminer. The court in that case, speaking “ General mandamus, Sessions, error, certiorari, Writs say: to it Those con» attachment issue from court. wits CASES IN COURT OF APPEALS. THE v. Quimbo The Appo People. it to be show clusively subordinate, prove authority * * * *

which been exercised it. over always These are courts and if each other, wholly independent their not to be here proceedings subject reviewed, were we find in differeht rules of and of almost might law justice every This would disorder and be confusion, introduce county. inconsistent and uniform administration of jus- with regular tice. The trials can be new in granting only applied a manner its exercise being which possibility precludes * * * * reviewed or other court. If in this any in this did an inferior therefore, court, would exist, or control.” sub- exist without Substitute word regulation “ in the last inferior,” sentence, ordinate for that of every force in extract same" idea contained this applies as to of General and Terminer Courts Sessions. Courts Oyer counties same The courts several have independence in trials their new would of each other; proceedings granting be without review, regula- not be would subject wholly cannot but be This considered therefore, tion or control. case, can weight over by possi- greatly preponderating to the case of v. Townsend. be People bility given in this is difficult State, From of the cases this brief review the authorities are in direction, what fairly say assume that are scales would incline. weighed, is just, but whether balanced; assumption evenly favor, be considered as should whether preponderance least affect not view my present does there exists that clear for it cannot be contended case; further should preclude any course decision which settled of the subject. examination as an original at, then,

It is to be looked substantially It is first time. for the it had arisen now question, are called and hence we what statute, controlled the common law, to decide whether,, by upon trials Terminer case. in a after conviction merits, capital ALBANY, MAECH, 1860. v. England, is settled dispute, beyond the merits case, even be granted upon

can in The This is conceded v. People courts. Stone highest on the authorities subject v. Morrison. The People Comstockand The cases of referred and it is The Dutchess (supra), them are to If, then, here. new trials unnecessary repeat our must .courts, in such cases new rule be granted and the what introduced, ground principle rules this can be done. New when new cases adopted merits of It is considered one the chief the common arise. that it is and accommodates flexible, itself law, plastic readily are the affairs of the world which phases constantly is noth consideration there But in the case under assuming. not to a rule the courts asked new, ing simply apply and fundamental which, general although harmony has been before but law, the common never adopted, principles in direct to what is to have been go acknowledged opposition the settled of the common for centuries. rule law if

This court and the Court have not Supreme- amend the common and no law, right, legislate be much that doubt their as wise as would proceeds legislation but the I think from more better sources; opinion is, legitimate should confine itself to that each of the government department and not encroach functions, the exercise of its upon appropriate in the case The those of It is shown People other. of the States of the Union the courts Morrison that in most this is here, assumed contended urged powers it is our But courts should governed. as which authority by or and not that the common of England, law Pennsylvania all Alabama, which we have adopted. Upon questions upon to the decisions there we doubt, pay high respect but the courts other law known States, cf disre- the fact that other States have conceded, confessedly from is entitled little it, very weight. garded departed in The of his Stone, devotes most People v. Judge Marcy, this Courts Terminer argument proving CASES IN THE OF COURT APPEALS. v. The courts, State are inferior But is in no this, established, manner common decisive law no question, or low, could trials high upon merits, conviction in a criminal court cases of felony. princi- reason he from he admits to be pal gives what departing the settled rule of the common is, law English notwith- standing a criminal once convicted, pardon who foul “the blot remains I think, his reputation." may, assumed that in most cases the criminal situated, so safely if allowed to choose, would rather take the prefer pardon than to avail himself second of a trial. privilege

But it matters be the rea- not, view, how strong my sons in the cases of given Stone People v.

v. Morrison for a in the law. The we are change called to consider is not rule of whether admitted common or law. to be was, is, wrong, and ought changed, whether that should be courts left change wrought by to the action of the Legislature. action in whole course of well as legislative judicial until the decision in The indicates State, Stone, think,

very clearly, understanding general in Terminer could not trials new cases. In the case of The it John., McKay (18 212), became to in on the move arrest ground judgment, necessary that no had been the cause was into issued, removed venire certiorari, the prisoner brought Supreme by up habeas in order that motion be made there. might by corpus in In the case of convicted of murder Coto., Douglass (4 26), set motion made to aside Steuben, where county was on of the verdict for certain the part irregularities jury, The course and in the case of v. Ran- same taken; was of murder in the som who found (7 Wend., guilty city in order that the of Hew York, judgment suspended ques- tion of be Court. might regularity presented in these cases will be bearing seen, proceedings that subordinate it is considered even and interior in to courts have set aside England common law ver I860, MARCH, ALBANY, v. before for Our Courts in tried them cases irregularity. diets hesitated seems, always this minor exercise even power. in of errors also, the correction Legislature providing means bills no law making .provi exception, as to trials for mistakes of fact,

sion matters new regard I trials indicated has, think, only opinion could not be cases but that granted kind, they better be the common left, law to the action left, they power. pardoning It is means certain that such would not be the better if course, we had determine even the question upon alone. grounds expediency would, I Certainly think, unless at same time some rules could be adopted by the exercise should be some degree regula- ted.

The Legislature, motions for permitting new trials be made minutes in civil judge cases, has impe- should be made at the same ratively required term at which the cause is tried. (Code, There is 264.) every § reason this rule be should to motions for a why applied the facts in cases of if such motions felony, are to unless some be made permitted, provision embodying in an authenticated form. facts such motions to be suffering made before another at a without

judge subsequent term, as to any provision he manner in which should become possessed facts of would, case, attended apprehend, serious very There is inconvenience. great danger, too, privilege, allowed subjected without some being restric- precautionary will used tions, embarrass the delay administration justice, criminal already sufficiently difficult. a The taken as subject, whole, can only dealt adequately it Legislature, which by appropriately belongs, to so I am obvious a stretch entirely opposed judicial power would involved our holding Courts without aid of Terminer, a statute, control possess over Smith.—Yol, VI, CASES IN THE COURT OF APPEALS. v. The for

convictions it is crime, which conceded was never possessed common courts in law highest England. Jay I should, be affirmed. judgment think, J. The which seems to have been debated Clerke, in this case whether a is, Court of held at a term to that in which subsequent has been person convicted can him a sentenced, new grant trial. does not appear been asserted in either here or in argument,' the Su- that for offences than a Court, preme greater misdemeanor, trial cannot be court on new the merits. Cer- granted by any this is the rule of the common It has however, law. tainly, maintained down tenaciously England always the defendant has been on an where convicted present day, be no there can trial, indictment new except irreg- felony, Has this other extrinsic cause. well-established some ularity, in this rule been State? and, think, changed salutary not in our on this numerous, The cases subject reports ' unanimous. The first which I find is and are far from being it held Townsend J. C., that of The v. (1 People 104), where that a Court, April, but 'the crime for award a new trial; and Terminer may at that time indicted was considered defendant was perjury, at common law—to be misdemeanor. this State—as merely IfL Statutes. made Revised It was felony only by Caines' Casesin Error, Sessions Chenango that the Court of Sessions to be sure, the court decided, only not trial; could new an inferior grant being Kent, “The Sessions J., court, says, delivering opinion It is a the merits. cannot grant in cases of verdict Court, exercised (the Supreme) shordd not be.” In and, expedient perhaps, felony; held that court, indeed, Stone (5 Wend., 39), trials authority the rule of in all cases, the merits entirely ignored on law. But this decision was overruled common expressly it is declared court in The Comstock, the same People v. ALBANY, MARCH, 1860. Appo v. The trial cannot new misdemeanor, than

that offences greater or be accused convicted the on the whether merits, be granted the who delivered and Mr. Justice acquitted; Sutherland, of Grarrow, arguendo, the of the court, quotes language opinion “If that: and others Term R., 625) in v. King Mawbey (6 treason, or against a defendant be though convicted felony for a a motion of' there is instance of the evidence, weight sentence trial in such a case; new judge passes made to the till be mercy execution, respites application Lord who delivered opinion Crown.” Kenyon, in that to the same effect. Judge case, speaks Suther also Law from Criminal the follow Olutty’s quotes (532) land “In seems be treason, cases or ing language: felony in that no be settled, new can completely granted; but if the must conviction be improper, respited prisoner until a for.” rule is The same pardon applied very ably Strong maintained in The v.. The by Judge People Judges of the Dutchess (2 The cases Barb., 282). v. Morrison Park. R.,C. People 625); People id. and The

Goodrich (3 How. Pr. Hartung (17 519), all in were decided the Court of R., Terminer; that trials in court held it had new in face in The of the decision Court very Supreme that v. Comstocic. It is not rule of pretended common law has been altered Our statutes statute. say of this on cases nothing except where exceptions been taken on on the trial behalf legal questions In defendant. such cases reverse that shall either direct the court judgment, they provide the defendant be accord trial, discharged, absolutely of the case. circumstances ing error,

It is stated, Eng- points plaintiff the old rule has her land been condemned wisest lawyers is a It is is now This mistake. judges, abandoned. three of Par- about session weeks only ago, during present Mr. a bill in the House liament, McMahon introduced trials to Commons all criminal allow granted CASES IN APPEALS. THE COURT OF People.

Quimbo Appo v. The tq It rise a interesting debate, which is gave cases. very con- I of 19th tained the London of last Times, think, in January. to the bill The members to opposed proved, satisfactorily my of rule that the the would most mind, repeal present seriously, not did the of criminal altogether, jeopardize administration in A voted the bill. justice England. large against majority The to a trial in cases of right would still felony new work in detriment The on greater this State. witnesses testi- whose are to defendants be more convicted, mony apt migratory than in the no means law has of England; provided per- of their me- authentic petuating testimony, preserving any In case there be re- morial their evidence. would every that in for a so the trial; new New peated applications city the from the multitude' unable, district is York, where attorney to to all to obstruction the admin- trial, a cases, bring fearful istration be justice consequence. would for erroneous only judicious practicable remedy No criminal cases, verdicts pardoning power. to a adheres defendant as has been stigma, necessarily supposed, of a re? who has found when he crime, been unjustly guilty on verdict was ceives pardon express ground to I there- of evidence. contrary weight place my opinion, and Ter- that a Court on fore, ground merely has trial, a verdict miner no has grant a been rendered át previous trial on the a cases grant felony, under circumstances.

merits, still resides to issue a prohibition clearly writ in the Revised recognized in the it is Court; expressly Supreme R. S., Statutes. 61.) § be affirmed. order should shall disagree J. Anticipating (Dissenting.)

Bacon, dissent- brethren, reluctantly my very with majority from the about pronounced, judgment ing grounds *1 desire few words express very only that dissent. MARCH, 1860.

ALBANY, v. I concur in the that the writ of prohibition entirely opinion mode to be the district was proper adopted by attorney the action that court stay Terminer, provided had not the relief asked for give prisoner, for a new trial. It ancient application very and has resorted to in our remedy, undoubtedly rarely recent is, however, practice. provided expressly Revised Statutes of under 1830, and it regulated practice and in is an of its various 1838 there instance respects; reported been issued to Court of Sessions the Su- General having (The Court. General preme Sessions, Tompkins 19 other have Wend., cases occurred Probably 154.) many it has issued a where as matter of course, without any question made as to the

being of the or the propriety practice, power the court. The case of The Queens People v. Supervisors of it is said to (1 Sill, did not 195), disapproved, doubt or proceed denial upon of the writ propriety ain case to it was which It was to be applicable. attempted used in that case to restrain the of a ministerial proceedings officerin the execution of in his but while refus- process hands, this the court ing conceded expressly propriety issuing to restrain a writ court in which some is judicial proceeding This writ is also those the pending. among practice respect is which saved continuance and Code; § thus operation being expressly recognized. in this then, a Court of only question, is, whether

and at a term at a Terminer, which subsequent prisonel has been tried and and rendered convicted, judgment upon conviction, trial. The grant question an and if it res were and for important one, integra, wholly the first time be discussed I should esteem and passed upon, it one it small At rate falls within that difficulty. where much category said, pertinently plausi- both into the bly said, too, sides. I do go constitution and Terminer of Courts original nor the and enlargements modifications England, various their time. On this statutes from time to enacted powers by IN CASES THE COURT OF APPEALS. v. afford laws also field for con- our own Constitution

point remark, discussion and into which I shall not enter. siderable this time without at conclusion, indicating grounds upon My that the Courts of rests, courts of State, within superior organized acting continuous in their criminal character jurisdiction, general and not a merely temporary organization, expiring operation, or of each session term thereof. This con- at the close being that motion founded established, ceded or follows necessarily at a trial or can judgment term, proceeding preceding term of decided the same any subsequent entertained same held others judges whether equal and coordinate jurisdiction. authority into the I consider the then, argument, Without, going t trials estab of Courts Oyer and that this weight authority, a most controlling lished by term at a that at which subsequent exercised bemay rendered. In the judgment has taken place conviction John. Ca., Townsend the defend The People case of but before convicted ant had been sentence was perjury, He he afterwards him absconded. surrendered pronounced to the reported and the Court self, justice presiding Supreme evidence. The was that the against verdict opinion asked, was answered that Court there should Supreme that and directed to be a trial, be new communicated opinion at next Terminer to be held in judges the trial took The in case, is an place. effect, where county Court, Supreme given by advice, adjudication way to grant a trial power that new and in against evidence, was that case the the verdict thereon and a decision would be made necessarily application of the session court. In the case of The Peo at subsequent the same arose. Wend., The (5 question v. defend 39) Stone ple in convicted Eensselaer and an had been county, ant applica to that court trial, new made whether at the tion was term does not from the statement subsequent appear aor same doubting son'- of the case. suspended MARCH, 1860. ALBANY, v. in order that an tence be made to the might application Court for its on this That was point. opinion given opinion by and after with fullness and J., discussing Marcy, “ he concludes authority ability by saying, principle new trials no doubt I have power grant the merits in the Terminer and resides Gaol of the"court. that was the judgment Deliveryand is true that the case of The v. Comstock(8 Weird., People an inadvertence, Judge was, 549), probably by Sutherland into the an a case betrayed opinion expression new could be whether defendant felony granted, was or He seems have lost of the sight convicted. acquitted case of he in the decision took Stone, v. People .which he and of fact that Comstock having acquitted, part, from the secured the constitutional immunity jeopardy of another trial. The case has been considered as an never denial of the grant new authority power trial in a case. proper

The case of The v. Stone been followed seve People ral cases. In Morrison subsequent Park. C. R., in a able and /elaborate 625), very vin opinion, Judge Harris dicates the of a and Terminer to trial, on it, places judgment, my impregnable both of He grounds, takes occasion principle authority. is in show, also, full exercise in at least eighteen States and that Union, rule English which denies but turns cases, trials in criminal over the subject has never been clemency, royal recog adopted nized the courts of this county. In the case of The The Court Sessions Wayne Park. C.

County (1 term the dis- R., seventh general trict, decided resides in opinion expressed Courts of its existence in Terminer, although of limited and Sessions, inferior was jurisdiction, which denied. and Terminer,” “Courts Mr. Justice says only full criminal “have and ire jurisdiction, Johnson, courts in the State having powers.” CASES IN THE COUET OF APPEALS. e. McMahon Park. C. Mr. (2 R.,

In The v. People 673), Justice in the conclusion concurs Judge fully Harris Parker he has demonstrated Morrison, says conclusively case and Terminer to new trials. grant of Courts v. 3 Park. C. Goodrich, R., In this (People Judge opinion Balcom v. and in People Hartung How., unites; also 518) entertained at an trial in a for a new capital motion as to circuit without question adjourned the counsel or alluded to in the opin court being suggested by In I doubt this truth, practice ion Judge Harris. understood acted State throughout has been well and I am not that it series of aware was ever long years, until Justice called Mr. opinion seriously of The in the case Strong People Judges was given This case (2 Barb., under Dutchess Oyer 282). in The decision took to overrule as the law which Stone, which accepted by had been tribunals of the State seventeen governed all the is to done it be either If should from such thing years. the elder decision and not well hasty conviction or the course of the old which doc considered, reasoning by and the installed in its trine subverted should place mind be so clear and convincing unhesitatingly yields The decision in the case of is not to it. Stone means by for the one, an unadvised the course opinion Marcy, it is extends which over some half- reasoning upheld Strong than dozen indeed, Judge pages—more, employs am to detect the force it—and I unable quite superior overcome it is encountered and to be the reasons sought needed to re-in state the autho If were overthrown. anything be found of The v. Stone will amply supplied rity the case of Judge full and exhaustive opinion Harris has been to that case and the assent which Morrison, yielded all succeeding authority. by. then, trials, think, beyond ques- and for reasons in the Courts Oyer exists

tion, for all the of a purposes make that authority plenary 561 ALBANY, MARCH, 1860. term. Nor is it motion at the same or succeeding any any has to its exercise that been greater objection judgment pro the same than in a case where can be civil nounced, urged mere fact that If has the fact exists. the court it of its cannot been rendered judgment formally deprive And it is decided in The jurisdiction. so, effect, Stone Wend., (9 where an a indictment at subse rendering judgment quashing term make leave a

quent gave public prosecutor up record as had been for the on rendered defendant judgment for the demurrer, him to out a sue purpose writ enabling error. So in Miller v. Finkle Park. a C. con R., 374), viction and sentence court at actually passed, same term vacated the sentence and sentence pronounced for a different term of It is not, fact imprisonment. then, that a has been that rendered makes the judgment court functus it of of ulterior action. Pos deprives any power offudo I it can sessing right, be exercised at suppose time before final execution. It is said the counsel of The People, opposition assertion and exercise of this in the Courts of Terminer, that the scheme of our and the government distribu- tion of under powers Constitution at war with the right claimed, thus It is insisted con- f pardoning power ferred the Executive for the very purpose correcting errors of fact that occur in the might and con- prosecution viction of and that does not supposed culprit, pardon imply I do not think coincide in this view. On the guilt. I contrary in the us, with administration of the criminal and in law deal- with offenders who been ing to its subjected action, nor- mal and association with the necessary word is the idea pardon office of the guilt. not to Governor reverse unjust decisions, remit illegal due to the punishment If innocence is claimed, or an guilty. conviction has improper then obtained, justice requires new trial. The mercy is thus invoked is but a for the poor palliative injury “ Marcy have been inflicted. agree it is Judge VI. Smith.—Vol. APPEALS, IN CASES THE OF COLEA People.

Lemmon to tell a man. has been condemned tha-I who mockery unjustly will that he feel, redress is a He and ever hat- feels, his pardon. an incurable from sword which com he, wound received into the hands of his citizens, mon fellow with put their magistracy protection.” in the court below one

The case made appealing very of that tribunal to the reason strongly court before no fault of the from was certainly A that the trial resulted defendant tried conviction. concurred number of unfortunate circumstances presenting defence, him without before substantially jet jury them, there thu-s unaided unshielded before war standing him of the crime hesitation jury convicting evident that on another reason of murder. There believe every if not will, excused, laid to his trial the crime charge greatly it is due to I think comparative eminently mitigated. “ as he has institutions—this waif,” to us our stranger “the central our from cast shores called, .appropriately ”—that he should one more opportunity kingdom iEowery cannot of his he suc- offence, the extenuations even to show himself crime. ceed wholly purging order of the the writ I think the term granting general should he the order of reversed, .prohibition trial affirmed. 'Terminer granting affirmed.

Judgment Lemmon eh. 20, part as amended (tit. 7, Revised Statutes cZi. into person formerly held a slave who is introduced every free render voluntary by the act or consent his master. this State brought fugitives from service but operation upon have this slaves not They another, of transit from one slave State in the course into this State any longer remaining the master of part intention on the without his journey. find the opportunity pursuing than is "necessary

Case Details

Case Name: Quimbo Appo v. . the People

Court Name: New York Court of Appeals

Date Published: Mar 5, 1860

Citation: 20 N.Y. 531

Court Abbreviation: NY