
    PEOPLE a. BARRY.
    
      Supreme Court, First District;
    
    
      General Term, February, 1860.
    Criminal Law.—Writ of Error.
    An order quashing a conviction and sentence is not a judgment upon an indictment which can he reviewed on a writ of error under the act of 1852. (Laws of 1852, 76, eh. 82.)
    Writ of error to the General Sessions.
    The prisoner was, on the 21st of May, 1858; indicted for assault, with intent to kill, upon one Philip Wolfe, and also for a robbery committed, as averred in a second indictment, on the same day, in stealing over $100, by violence, from the person of Philip Wolfe. To the first indictment the defendant pleaded guilty of an assault and battery, and was sentenced to four months’ imprisonment on October 23,1858. On Rovember 5, 1858, a notice was given of a motion for a new trial, and on Rovember 15, 1859, an order was made,in the General Sessions, by Russell, City Judge, that the conviction and the sentence upon conviction be quashed, and that the order of imprisonment be revoked, “ said indictment having been on the same day” (i. e., the day of its finding), “ by operation of the statute, superseded and quashed by the filing of another indictment for the same matter, although charged as robbery.”
    From this order of City Judge Russell the People appealed to the General Term of the Supreme Court by a writ of error.
    
      N. J. Waterbury, District-Attorney, for the appellants.
    I. The section of the statute referred to (3 Rev. Stat., 5th ed., 1018, marg. p. 726, § 42), reads: “If there be at the time pending against the same defendant two indictments for the same of-fence, or two indictments for the same matter, though charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.” The case involves only elementary principles.
    
      As a matter of practice, the motion to quash cannot be entertained after plea, impannelling of jury, giving of evidence, and conviction, and it is decided that under the last above statute, a motion must be made before such indictment will be quashed.
    II. The indictments presented different offences and different matters severally, unless a grand larceny is the felonious assault by one person upon another.
    Brown, Hall & Vanderpoel, for the respondent,
    moved to quash the writ.
   By the Court.—Sutherland, J.

The order of the City Judge on ¡November 15, 1858, quashing the previous conviction of the defendant Barry, and his sentence on such conviction, by the Recorder, on October 23,1858, and revoking and annulling the Recorder’s order of imprisonment, was not a judgment upon the indictment, but was, or purported to be, an order quashing and annulling the previous proceedings before and by the Recorder in this case.

The act of 1852 allowing writs of error to be brought in behalf of the People in certain cases, allows such writ, “ to review any judgment rendered in favor of any defendant upon any indictment,” &c.

The order or proceeding of the City Judge of ¡November 15, so far from being a judgment rendered upon the indictment, was an order or proceeding annulling and destroying, or undertaking to annul and destroy a previous judgment rendered upon the indictment.

Therefore it is clear, however unauthorized or erroneous the order of the City Judge on ¡November 15th may have been, that such order cannot be reviewed, or such error corrected by writ of error under the act of 1852, and that the motion made by defendant to quash the writ of error in this case must be granted.

Bonney, J.

—In the Court of Sessions, on the 21st May, 1858, the indictment was found against Richard Barry, for assault and battery with intent to kill. On the same day, at a later hour, an indictment for robbery in the first degree, was found against the same person, for the same act or matter for which the first indictment was found. On the 4th October, 1858, Barry was arraigned on the indictment first found, and then pleaded guilty of assault and battery; and upon that plea was, on 23d October, 1858, sentenced to imprisonment in the penitentiary for the term of four months. On the 5th November, 1858, a motion was made in Sessions, on the said indictments and other papers, for a new trial, on the ground of irregularity in the proceedings, and on the merits; and on 15th November, 1858, that court ordered that said conviction and sentence be quashed, and the order of imprisonment to the Sheriff thereon be revoked and annulled, “ for the irregularity of taking the same on the indictment found May 21, 1858, against the said Richard Barry, charging him with an assault and battery, with intent to kill one Philip Wolfe, 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 the offence of robbery.” This last order of Sessions is now brought before this court, by writ of error, for review.

The counsel for Barry move to quash the writ of error as unauthorized by law. In the case of The People a. Corning (2 Comst., 9), decided in December, 1848, the Court of Appeals dismissed the writ of error on the ground that writ of error to that court would not then lie in behalf of the People after judgment for the defendant in a criminal case; and, in the opinion in that case, Judge Bronson also expresses the opinion that the writ in behalf of the People would not be from the Sessions to Supreme Court. By the act of 22d March, 1852 (laws of 1852, 76, ch. 82), it is enacted that “writs of error to review any judgment rendered, in favor of any defendant, upon any indictment for a criminal offence (except after acquittal by a jury), may be brought in behalf of the People,” &c., on being allowed by a Justice of the Supreme Court. In this case, the judgment of the court below was rendered on 23d October, 1858, on conviction by confession, that Barry be imprisoned in the penitentiary four months. Afterwards it was, by the Court of Sessions, on motion, ordered that said conviction and sentence be quashed for irregularity, &c. In my opinion, this order or decision of the Court of Sessions, on motion, was not a judgment rendered upon the indictment, within the meaning and intent of the act of 1852. The motion to quash the writ of error should consequently be granted.

• The order of the Court of Sessions sought to be reviewed, was by that court founded on 2 Rev. Stat., 726, § 42, which is .in the following words: “ If there be, at any term, pending against the same defendant, two indictments for the same offence, or two indictments for the same matter, although charged as different of-fences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.”

In this case, two indictments for the same matter, but charged as different offences, were on the same day (21st May, 1858), v found against the defendant.

Afterwards, on the 4th October, 1858, on being arraigned in the first indictment, which was for the minor offence, by leave of the court and consent of the district-attorney, he pleaded guilty of an offence less than that charged, and, on that conviction by confession, sentence was pronounced on 23d October, 1858.

The statute is clear and positive, and there can be no question that, on the finding of the second indictment, the defendant was entitled to have the first indictment quashed. But the statute does not say that the first indictment shall, on the finding of the second, become void, so that no trial or conviction thereupon can afterwards be had by confession, or otherwise. Some action by the court, on motion, in behalf of the accused, or otherwise, to put that indictment out of the way, was evidently intended, and an order of the court was necessary to quash it.

From the case as it now appears, it is a legitimate conclusion that this defendant preferred a conviction by confession, on the indictment for the minor offence, in its mitigated form, to the hazard of a conviction by the jury, on trial of the indictment for the greater offence, and acted accordingly.

In my opinion, it was competent for him to waive the provision of the statute in 1ms favor, and I think he has clearly and advisedly done so; and that after his confession, he had no right to claim the benefit of the statute which he had so waived. The cases of the- People a. Monroe (Oyer and Terminer, 20 Wend., 108), is direct authority on this point. If, however, I am right in the conclusion first stated, we have no power to correct the error committed by the court below. 
      
       Present, Sgtherland, Bonney, and Allen, JJ.
     