
    COURT OF APPEALS.
    Ignatz Ratzky agt. The People.
    Where the crime of murder was committed while the act of 1860 was in full operation, the subsequent sentence of the convict should be the one prescribed by that act: That is, that he should suffer the punishment of death, after imprisonment at hard labor in the state prison for ono year, <fcc., although that act does not in terms prescribe the punishment of death.
    The repeal of the act of 1860 by the act of 1862 (chap* 197, ¡p. 368), was wholly prospective, and did not affect the punishment of offences committed before such repeal.
    Where a prisoner on trial for murder is found guilty, and before sentence, the legislature pass an act which in effect declares that when an erroneous judgment is given in a court of original criminal jurisdiction, the supreme court may, on error, reverse the judgment alono; but if there be no error in the trial or verdict, the record is to be remitted, to the end that a proper judgment may be pronounced:
    
      Held) that this act having been passed after the conviction in this case, though before the sentence or judgment was passed upon the prisoner, it applied to the case, and required the appellate court, on determining that the original judgment was erroneous, to remit the case to the oyer and terminer, with directions to pronounce the proper judgment, instead of discharging the prisoner.
    
      June Term, 1864.
    Writ of error to the supreme court to bring up the record and judgment on the trial, conviction and sentence of the prisoner for the crime of murder
    S- D. Morris, for people.
    
    S. H. Stuart, for prisoner.
    
   Denio, C. J.

The conclusions to which I have come upon the examination of this case are the following:

1. As the offence was committed while the act of 1860 was in full operation, the judgment should have been the one prescribed by that act, namely, that the convict should suffer the punishment of death, and that he should he confined at hard labor in the state prison until such punishment should he inflicted, but that he should not be executed in pursuance of such sentence within one year from the day of passing such sentence, nor until the whole record of the proceedings shall be certified by the clerk of the court of oyer and terminer of Kings county, under the seal thereof, to the governor of this state, nor until a warrant shall be issued by the governor, under the great seal of the state, directed to the sheriff of the county in which the state prison shall be situated, commanding the said sentence of death to be executed. The point that the act does not in terms prescribe the punishment of death has been considered by this court, and held not to be tenable (Lowenberg agt. The People, September term, 1863, reported 26 How. 202).

The judgment of the oyer and terminer which was affirmed by the supreme court condemned the convict absolutely to the punishment of death by hanging, on a day about five months after the conviction, without requiring any warrant to be issued by the governor. This was a wide departure from the mandate of the statute, and was clearly erroneous. It is claimed to have been justified by the effect of the act of April 12, 1862 (chap. 197, p. 368). The first section repeals the act of 1860, and another act not material to the present purpose. But that repeal was wholly prospective, and did not affect the punishment of offences committed before such repeal. This is expressly declared by the second section, which is in these words: “No offence committed previous to the time when this statute shall take effect, shall be affected by this act, except that where any punishment shall be mitigated by the provisions of this act, such provision shall control any judgment to be pronounced after the said act shall take effect for any offences committed before that time.”

It is argued that the word offence as first used in the section, does not embrace the idea of punishment. But I am of opinion that such a construction would be altogether too narrow. The whole scope of the statute concerns the punishment of crimes; and when it is said that no offence committed before it should come into operation should be affected by it, the meaning is extremely clear, that the punishment which it prescribes should not be visited upon the persons committing the offences which on account of the time they were committed are excluded from its scope. If it were otherwise doubtful, the exception which declares that a mitigated punishment should, notwithstanding the general language, be applied to the case of such former offenders, makes the sense very plain.

2. The remaining question is, whether the judgment, should be reversed and the prisoner discharged according to the former rule, or the record be remitted to the oyer and terminer, to pass a legal sentence upon the conviction. This latter course is now authorized by statute (Laws of 1863, ch. 226, p. 406). The conviction was legal, and the sentence only was erroneous. The only question is, whether the act, having been passed after the conviction, though before the judgment was given in the supreme court, could be applied to the case. I am of opinion that it can be applied. The forms of judicial proceedings are under the control of the legislature. The case is not within the constitutional provision which forbids a person being twice put in jeopardy for the same offence. A person is said to be put in jeopardy only when he is a second time tried upon a criminal accusation, but the term has no relation to the reversal of an erroneous judgment, and pronouncing a legal one, pursuant to one legal conviction. It may be of some importance to inquire when the existing judgment was pronounced in the oyer and terminer, in reference to the time of the passage of the act of 1863. The narrative parts of the record would seem to show that it was on the 20th April, 1863, which is prior to the passage of the act. But the record also states that on the 25th of June following, a motion was made in the oyer and terminer for the arrest of judgment, and that it was denied on the 3d day of August ensuing. Such a motion can only be made on the verdict, and it must be before judgment. Taking the record together, we must intend that the sentence was pronounced on or after the 3d day of August. The case then is this : After the verdict had been given, and before sentence, the legislature declare in effect, that when an erroneous judgment is given in a court of original criminal jurisdiction, the supreme court may, on error, reverse the judgment alone: but if there be no error in the trial or verdict, the record is to be remitted, to the end that a proper judgment may be pronounced. If it could be maintained that the legislature could not rightfully interpose after the judgment had been pronounced, in such a manner as to deprive the prisoner of the full benefit of a writ of error under the existing laws, and of the right to have the judgment reversed, and to be discharged, the principle would not aid the plaintiff in error, for such was not the order of the events. I conclude, therefore, that the supreme court should have reversed the judgment which was actually given, and have remitted the record to the oyer and terminer, with direction to pronounce the judgment prescribed by the act of 1860, the form of which has been indicated.

If I am, sustained by my brethren in these views, such is the judgment which must be given on this writ of error.  