State v. Hendrick

91 N.J.L. 336 | N.J. | 1918

Pee Curiam.

The defendant was convicted in the Atlantic special sessions of fraudulent conversion of goods as consignee, under section 184 of the Crimes act (Comp. Stat., p. 1799), and the sentence of the court was that he be committed to the custody o£ the probation officer for three years, to whom he should report weekly and pay the sum of one dollar a week; and further, that he make restitution to the complaining witness of the sum of $15.50, the value of the goods converted, &c. From this judgment defendant appealed to the Supreme Court, where it was reversed on account of error in the sentence.

The Supreme Court found no trial errors, hut in its opinion said that the conviction must he set aside because the sentence imposed went beyond the power of the court, and observed that that- would not necessitate a retrial of the case, referring to section 144 of the Criminal Procedure act (Comp. Stat., p. 1867), which provides that whenever final judgment in any criminal court shall be reversed on account of error in the sentence, the court in which such reversal is had may render such judgment as should have been rendered or remand the case for that purpose to the court in which the conviction occurred.

In the judgment entered in the Supreme Court it was ordered that the conviction of the plaintiff in error be affirmed and that the judgment be reversed, because of error in the sentence. There was no remand of the case to the court before which the conviction was had for the purpose of rendering proper judgment therein. However, the judgment of the special sessions was reversed as required by existing practice recognized by section 144 of the Criminal Procedure act.

In this state of the record the defendant sued out a writ of error from this court directed to the Supreme Court, reciting that in the judgment of that court manifest error had intervened to the great damage of the plaintiff in error; and he brings up, by way of return to this writ, the judgment of the Supreme Court reversing that of the Atlantic special sessions for the purpose of correction of the sentence.

While, by section 134 of the Criminal Procedure act (Comp. Stat., p. 1862), it: is provided that writs of error in all criminal cases shall be writs of right and issue of course, yet this is not all there is of law upon that subject. The Supreme Court held in State v. Holmes, 36 N. J. L. 62, 66, that the act to regulate writs of error extends to all causes, civil or criminal, unless otherwise specified. By section 4 of the present Errors act (Comp. Stat.; p. 2208), it is provided that any person who may be damnified or aggrieved by any judgment rendered in the Supreme Court may sue forth a writ of error to that court to be brought before the Court of Errors and Appeals. The statute does not give an appeal to one who is not aggrieved by a given judgment.

The plaintiff in error having, in the Supreme Court, secured a reversal of the judgment of the special sessions, lie should have also secured the remand of the'case to the latter tribunal, when, upon proper sentence being imposed, he could carry the case again to the Supreme Court on error, where, doubtless, judgment affirming that of the special sessions would be entered against him, and if he still considered himself damnified or aggrieved he could then by writ of error bring the judgment of the Supreme Court to this court for review. In other words, a defendant in a criminal cause, who has carried his conviction from the trial court to the Supreme Court on error, may only appeal to this court by writ of error to review a judgment in the Supreme Court which would result in putting proceedings en- train to have the sentence of the trial court carried out, that is, from a judgment of affirmance; and it is equally obvious that a criminal defendant, whose judgment of conviction has been reversed in the Supreme Court, no matter for what cause or to what extent, cannot sue out a writ of error from this court to review such judgment, that is, a judgment of reversal.

These views lead to the conclusion that the writ of error presently before us, seeking to review the judgment of reversal in the Supreme Court, was improvidently issued, and must, therefore, be dismissed.

As to whether under section 144 of the Criminal Procedure act a court of review can affirm a conviction while reversing a judgment, we express no opinion.