
    SUPREME COURT.
    The People of the State of New York, plaintiffs in error agt. Levi B. Tarbox, defendant in error
    Where a county court of sessions, after a trial and conviction of the defendant upon an indictment; make an order In arrest of judgment and discharge the defendant, the decision of the court and the proceedings therein, cannot be reviewed by writ of error, brought by the district attorney in behalf of the people.
    The act of 1852 only authorizes the district attorney to sue out writs of error in criminal cases to review judgments rendered in favor of defendants upon indictments.
    An order in arrest of judgment is nota judgment of the court, hut an order merely. -In analogy to civil cases,- it cannot be pleaded in bar to another . prosecution for the same matter, because there is no judgment susceptible of, review.
    
      Broome General Term. Argued November Term, 1865.
    
      Decided January Term, 1866.
    
      Before Parker, Mason and Balcom,' Justices.
    
    Tarbox was tried upon ah indictment' for an assault and battery oh one Yager, in the court of sessions of Otsego county, and was found guilty by the jury in August, 1865. He made a motion" in that court in arrest of judgment,, on the. following grounds: 1. That he had never been arraigned upon the indictment on which -he was convicted. 2. That he had not been required to plead to the indictment. -3.: That he had not plead' to the indictment.or"demánded a trial thereon. "4.nThat no issue had been joined upon the¡ indictment. 5. That he had been tried and convicted upon the indictment without any issue having been joined thereon.
    
      The indictment was found in the Otsego oyer and terminer, which court made an order sending it to the court of sessions of Otsego county for trial. Tarbox gave bail before a justice of the peace for his appearance at the term of the court of sessions at which he was tried, to answer to an indictment against him for assault and battery. And during that term of the court of sessions, before he was tried, he requested the district attorney two or three times to bring on his trial, and was ready for. trial. Tarbox was in the court of sessions with counsel when his trial was moved upon. the indictment, and expressed himself ready for trial, and a jury was empaneled for his trial without' any objection from him or his counsel. After the people rested he opened his defence in person to the jury-, and called witnesses in his own behalf, who were duly sworn and gave evidence. It was immediately after the jury’ found Tarbox guilty, that he made the above mentioned motion in ■ arrest of judgment. The district attorney admitted on the argument of the motion that Tarbox had' not been arraigned on the indictment, and had not plead thereto, unless the facts above stated amounted to an arraignment and plea.
    The court of sessions granted the motion in arrest of judgment, and discharged Tarbox; to which ruling and decision the district attorney excepted. The court of sessions settled a bill of exceptions, which was signed by the judges of that court, and filed with the clerk thereof; which bill contained the foregoing facts and the indictment, and showed when and where, and by what court the indictment was found, and all the proceedings thereon.
    The district attorney sued out a writ of error to the said court of sessions, which was allowed by a justice of this court, which writ and bill of exceptions were sent to this court under the hand and seal of the clerk of the said court of sessions. The. district attorney brought on the argument of the case at the general term of this court upon a notice to Tarbox, or Under the statute, but he'did not appear on the argument in person or .by counsel (£ee:2 R. £.741, § 22). . . • ,
    
      J,. A.. Lynes, District Attorney, for the people. ■
    
   By the court, BaLcom, J.

.This -being a criminal case,the default.of the defendant in this court does not entitle-the district'attorney to a reversal of the proceedings in the, court; of sessions ás matter of course. It is,-therefore,'■ thet.duty of the court to determine theocáse 'upon -the writ; of error and the return thereto, in the same . manner - it would if the defendant had appeared" and argued the casein person or -by counsel. The court of- appeals -decided in-1848, in The People, agt. Corning (2 Comst. 9),, that a writ-of error-would not lie-in behalf of the. people, after judg-ment for the defendant, in a criminal case.- .

The legislature altered the law.in such cases in 1852, and provided that “ writs of error .to review any judgment rendered in- favor of .any defendant upon an indictment for any .criminal offence, except where such defendant should-have been acquitted by a jury, may be brought in behalf; Of the people of .this state by the district attorney of the county Where such judgment shall be rendered, upon the same being allowed by a justice of the supreme court ; and the court of appeals shall have full power to review, by writ of error in behalf of the people, any , siich judgment rendered in the supreme court in favor of any defendant charged with a criminal offence (Laws of 1852, p. 76).

The court of appeals decided in The People agt. Merrill (4 Kern. 74), that' a writ of . error-is not authorized by'the statute of 1852,: to review- a -judgment on- some of the-counts in an indictment while.other counts" are undisposed; of, and that the judgment to be reviewed on a writ of error in behalf of the people, is a final judgment bn the whole-indictment. That cdurt also decided in The People agt. Nestle (19 N. Y. Rep. 583), that the people are not entitled to a writ of error to review the order of the supreme court granting a new trial-in'a criminal case, where there had been a conviction and certiorari, with stay of judg'ment in the court below; and that the writ only lies where there-has, been judgment for the prisoner upon the indictment.

In Hartung agt. The People (26 N. Y. Rep. 154), there-was- affinal judgment on demurrer to pleas in abatement in favor of the prisoner-, and the decision therein is not in conflict with The People agt. Merrill (supra). In The People agt. Barry (4 Parker’s Rep. 657; S. C. 10 Abb. 225), the ' prisoner was indicted on the 21st day of May, 1858, in the " New York court of sessions, for an assault upon one Wolfe, with intent to kill. On the same day another indictment was presented against him in the same court for robbery, by violence, in stealing over $100 from the -person of Wolfe. To the first indictment the prisoner pleaded guilty of an assault and battery, and was sentenced to four months imprisonment, on the 23d of October, 1858. On the 5th of November, 1858, a notice was given of a motion for a new trial, and on the 15th of November, 1858, an order was made in the sessions by the city judge, that the conviction, and sentence upon conviction, be quashed, and that"' the order of imprisonment be revoked, “ said indictment ‘ having been on the same day, by operation of the statute, superseded and quashed by the filing of another indictment for the same matter, although charged as a robbery,” The district attorney sued out a writ of error in behalf of the people, by which the proceedings in the-court of sessions* were removed into this: court in the first district, and this court in that district quashed- the writ of- error, and held that an order quashing a conviction and- sentence, is not reviewable on writ of error under the act of 1852 (supra), and that such act is only applicable to judgments.

In Dawson agt. The People (5 Parker’s Rep. 118), this court in the second district held that the proceedings of a county court of sessions on the trial of an indictment, will not be reviewed on writ of error. by the supreme court until a record of judgment shall, have been made up and filed; and as- the return to the writ- of-"error in that case was defective.in the respect mentioned, on motion of the district attorney, the writ .of error was quashed. (See 2 R. S. 738, § 4; 19 N. Y. Rep. 551.) The authorities:.all show-that the. act of .1852 (supra) only-authorizes the district attorney to,sue. o"ut.writs of error in criminal cases.toi review judgments rendered in, .fav.or. of defendants upon-•indictments, and they also show he cannot- review mere orders in such cases by writs of error.

Spencer, J.,

in delivering the opinion of the court in the case of The' People agt. Casborus (13 Johns. 351), said : “An arrest of judgment is a mere refusal oh the part of- the-court to give judgment.” He also said in that case “ the" effect of arresting a judgment is the Same as' quashing an indictment; the- latter happened before trial, the former-after ; and in this case it appears to me, that as no writ of, error c.ould. be brought upon the decision of . the court of sessions arresting the judgment, that .proceeding is not a bar to any other for, .the same matter.' In analogy to civil-cases, the arrest of judgment cannot be pleaded in bar to another prosecution for the same matter, because there is no judgment of the- court susceptible of review.” (See Wharton's Am. Cr. Law, 2d ed, 190 and 194 ; Id. 869, &c. ; Barb. Cr, Tr. 303 ; Lindsay agt. The Commonwealth, 2 Virg. Cases,. 345; Northam agt. The Commonwealth, 5 Rand. 669; Commonwealth agt. Wheeler, 2 Mass. Rep. 172.) That there is a difference between an order and a judgment in a criminal case, see, 2 R. S'.'738, section 4 ; Stephens agt. The People, 19. N. ,Y. Rep. 549, and authorities supra.

It is clear that no judgment has been rendered in this case by the- Otségó court of sessions. That court only ¡ decided that judgment be arrested, and that the defendant be discharged; and an order was thereupon entered-arrest- - ing judgment and discharging the defendant. It is unnecessary to express any opinion oñ the question whether the acts of the defendant in the court of sessions did not amount, to a demand of trial upon the indictment, and estop him from alleging he had not been arraigned upon it, or had'not pleaded not guilty thereto. But see The People agt. Frost (5 Parker's Cr. Rep. 52; Roscoe’s Cr. Ev. 224). And we will not say whether the defendant could not have been required at the end of his trial to plead to the indictment and have been retried thereon, or whether he could not be indicted again for the same offence, and be legally tried on a new indictment. (See 2 R. S. 701, §§ 24, 25 ; Barb. Cr. Tr. 301.) We only decide that no judgment has been rendered in the case by the Otsego court of sessions, and that the decision of that court, and the proceedings therein in the case, cannot be reviewed by writ of error brought by the district attorney in behalf of the people.

It follows that the writ of error in the case should be quashed as unauthorised. Decision accordingly.  