78 N.Y. 346 | NY | 1879
At a Court of Sessions held in Erie county January, 1876, the defendant was indicted for embezzlement. He pleaded not guilty, and the indictment was sent to the Oyer and Terminer, where he was tried and convicted. A case with exceptions was settled, and motion thereon for a new trial denied. A motion was also made to quash the indictment; it was entertained by the court but denied. Sentence was suspended, and there was no judgment in the Oyer and Terminer. On the 5th of December, 1877, a writ of certiorari was duly issued and allowed, and the proceedings removed into the Supreme Court. After hearing both parties the General Term made an order on the 24th of January, 1879, that "the conviction be reversed and the proceedings remitted to the Oyer and Terminer." At a subsequent General Term held April 26, 1879, upon motion of the district attorney, the above order was modified by striking out the words "proceedings remitted to the Erie Oyer and Terminer," and inserting "the defendant discharged." The case is brought into this court by a writ of error sued out by the district attorney of Erie county.
At common law, a writ of error lies, only to review a final judgment. (Hartung v. The People,
These provisions of chapter 449, Laws of 1879 (supra,) do not enlarge the privilege conferred upon the People by chapter 176 of the Laws of that year. They relate solely to the defendant, and permit him to review in this court an order of the General Term, affirming a conviction, although sentence had not been pronounced. This he could not have done before the passage of the act referred to. No provision is made for a review by the People, of a decision of the Supreme Court reversing such conviction.
There was in the Oyer and Terminer a conviction, but sentence was suspended. There was therefore in that court no judgment, because the sentence is the judgment (Manke v. People,
In The People v. Bennett (
The writ of error should be dismissed.
All concur.