
    The People, plaintiffs in error, vs. Richard S. Corning, defendant in error.
    A writ of error will not lie in behalf of the people, after judgment for the defend ant in a criminal case.
    
    
      This case is stated in the opinion of the court.
    
      Geo. F. Comstock, for plaintiffs in error.
    
      J. Ruger, for defendant in error.
    
      
       The question decided in this case, came before the late court for the corree-, tion of errors, in the suit of The People v. Henry HeBmo, who had been convicted at the Ontario general session, of passing counterfeit bank-notes, which conviction was reversed by the late supreme court, on a writ of error brought by the defendant. (I Denio 9.) As that decision was of great public importance, denying the constitutionality of the general banking law, the district-attorney of Ontario county brought a writ of error, in the court of errors, which was allowed by Ch. J. Bronson. In June, 1845, the counsel for DeBow moved to quash the writ of error, on the ground that such a writ would not be at the suit of the people, to reverse a judgment in favor of the defendant in a criminal case, and also on the ground that the defendant had been pardoned by the Governor, prior to the assignment of errors in, and- the decision bv the supreme court. The motion was argued by Mr. A. Worden, in behalf of DeBow, who did not cite any authorities upon the first question; and was o(‘posed by Mr. W. C. Noyes and Mr. G. Wood, on behalf of the people, who insisted that a writ of error to reverse the judgment in question would lie, and they argued that the exceptions in the record having been regularly taken in the sessions by tito defendant, in accordance with the statute, (2 R. S. 736, § 21,) that they were «object to revision at the instance of the people, as well as of the defendant, if upoj > -vrit of error, brought by him into the supreme court, they were decided in Ins favor. They cited the act of 1813, concerning the court of errors, (1 R. L. 133,) the 7th section of which enacted “ that all errors happening in the supreme court, shall be redressed and corrected in this court, and that it shall and may be law ful, as well for the attorney general in behalf of the people, as for any party, to sue out a writ of error,” &c. and then authorizes that court to affirm or reverse the judgment, as the law should require. They contended that this was an affirmance of the common law principle decided in Tates v. The. People, (6 John. 337,) and that the same provisions were, in substance, continued in the revised statutes. (2 R. S. 166, §§ 25, 26, 30; id. 592, §§ 1, 4; id. 740, § 15.)
      They also cited the following authorities to show that at common law a writ of error, at the suit of the king, was a proceeding well known, and that the right to issue it was never questioned in England. (Bac. Jib. title Error, A. 2 ; Maryuis of Winchester’s case, Cro. Car. 504; S. C. W. Jones’ Rep. 407; Colies’ P. C. 332; Show. P. C. 72, 127, 186; 5 Brown’s P. C. 2S7; 2 Bligh’s P. C. 147; S. C. 1 D.ow ¿f Clark, 178; 2 id. 21; 6 Clarke §f Fin. 41; 4 Chit. Cr. L. 408, marginal ref. 430; Arch. Cr. L. 92.)
      The subject was held under advisement, until the next term of the court, in September, 1845, when the motion to quash was denied, but leave was given to the lefendant to plead his pardon. Upon the decision of the motion, Senator Hard delivered the following opinion; being the only one delivered, so far as the Reporter is informed.
      “ This was a motion made by the plaintiffs' counsel, at the June term, to give this cause a preference over other causes to be heard at the August term succeeding. That motion was met by the defendant by a counter motion to quash the writ of error, and this last motion must be disposed of first.
      The counsel for the defendant assigns two reasons why this writ, in his opinion, should be quashed. 1st. That a writ of error does not lie to reverse a judgment in a criminal case rendered in favor of the accused: and 2d. If such writ may be entertained, still the court are bound to take judicial notice of the pardon granted the criminal since his conviction, and quash the writ for that cause. ' in support of the first position, it is contended that, at common'law, no such writ was maintainable ; and that no statutory authority is to be found to warrant it.
      It must be admitted that very little discussion appears in the English books, as to the right of the crown to bring error upon a judgment for the accused in purely criminal cases, but it was the corflmon practice, whose legality seems never to have been questioned, to bring error on judgments against the crown upon quo warranto and outlawry. {Reg. v. Ford, Colles’ P. C. p. 332 ; Rex v. Baden', Show. P. C. p. 72; Rex v. Ponsonby, 5 Bro. P. C. 287.) Writs of error in any form seem not to have given rise to much judicial discussion until the time of Lord Mansfield, and then the discussions turned more upon the question whether such writ was a writ of right on the part of the accused, than as to which of the parties to the suit could bring it. Prior to the time of Queen Anne, writs of error were held to issue ex gratia regis, as is shown by Lord Mansfield in the case of Rex v. Wilkes, (4 Burr. 2550.) This being the law, the right of the crown to bring a writ of error to reverse a judgment against itself, could hardly admit of a doubt, even were there no precedents or decisions to sustain it. And no sound reason can be given why the power should not be exercised by the crown in all cases where error clearly existed in the judgment of the court on questions of law, or in the forms of proceedings. In the case of the Queen v. Paty and others, (2 Salk. 503,) it was determined by 10 of the 12 judges, that writs of error on convictions for all offences under felony and treason, were writs of right; and subsequent to that time it has been frequently adjudged thus, thereby settling the the law as pronounced in the Patty case. It is true, that that and all the other cases alluded to by the distinguished English jurist, were cases arising on judgments rendered against the accused, but the liistory which he has given in that case of the practice is instructive, as it proves that prior to the reign of Queen Anne no writ of error in a criminal case could issue in behalf of the accused without the consent of the king, and it would be a strange interpretation of the powers of the crown, whose gracious assent must be invoked to authorize the criminal to bring error, while at the same time a judgment on an indictment could not be reviewed on a complaint interposed by the crown.
      While these writs were held mere writs of grace, issuable only by consent of the crown, the king’s attorney never appeared to defend them, and the judgment was reversed for the most trivial error in the law, or for informality in the proceedings. The consent of the king was deemed equivalent to a reversal of the judgment, but after they came to be adjudged writs of right, the accused, on prosecuting error, was held to more rigid practice. He was required to make out substantial error to entitle him to a reversal. During the discussion of the question of the right of the accused to bring a writ of error, which resulted in the change of the law and the practice, the riglu of the crown to bring error seems never to have been affirmed or denied. We are left to inference or precedent to establish that right. The plenary powers of tne crown in the administration of justice, as well criminal as civil, would seem to place the existence of that right beyond a controversy At all events, the right was exercised, as will appear in a number of reported cases, and never was questioned so far as any thing appears from the English books. Thus in the case of the Queen v. Ford, (Colins 332,) Leighten informed against Ford, Warden of the fleet, for misfeasance of office. A quo warranto was issued, and a verdict and judgment for the defendant. The queen brought error and the lords of parliament reversed the judgment. Other cases might be cited of a similar character, where the crown brought error from judgments rendered in favor of the accused, and where such writs were entertained and the judgments reversed, no question being made as to the right of the crown. (1 Shower’s P. C. p. 72 ; The King v. Lord Yarborough, Bligh’s New Par. Cases, p. 147.) This last is a late case and directly in point. It was a writ of error brought to the house of lords to reverse the judgment in the king's bench rendered against the crown, and in favor of Lord Yarborough, upon proceedings in seizing lands derelict by the sea, under a commission of the great seal. Most of these cases are in the nature of criminal proceedings.
      But if it be not so certain at common law, that the Icing could bring a writ ol error upon a judgment in a criminal case rendered against the crown, it is quite clear to. my mind that, by the provisions of the statutes, a writ of error .is fully authorized to reverse a judgment in such cases rendered against the people ol this state. The legislature has endeavored to incorporate into our statutes the principles and practice of the common law in relation to writs of error in criminal cases, and in regard to the party that may bring it, it is expressly provided that any party may bring such writ. By the act of 20th of February, 1801, (vol. 1, p. 184,) it was enacted that it should be lawful for any party against whom any judgment should be given in the supreme court, to sue forth out of the court of chancery a writ of error, to be directed to the judges of the supreme court and returnable in the court for the correction of errors. This provision was a part of an act concerning the powers and duties of the court for the trial of impeachments and the correction of errors. By the act of 20th of February, 1801, (vol. 1, p. 200,) concerning writs of error, it was provided “ that writs of error in all civil cases, and in criminal cases not capital, shall be considered writs of right, and issue of course subject to the regulations prescribed bylaw. By the revised statutes, volume two, page 160, the act conferring the power and prescribing the duties of this court, it is authorized to redress and correct all errors that may happen in the supreme court or the court of chancery, and the exercise of that power is not limited to any particular class of cases. It extends and is made to embrace “ all errors.” By the 14th and 15th sections of 2d revised statutes, page 740, under tne title of an act concerning writs of error, it is provided that writs of error upon judgments rendered on indictments for capital offences shall not issue unless allowed by the chancellor, &c. But i’t all other criminal cases writs of error upon any judgment rendered upon any indictment are writs of right, and may issue of course. _ Taking these several statutory provisions together, that which empowers this court to correct all errors, and that which allows a writ of error in all criminal cases, it seems to me that there is no room left to entertain a doubt that it was the intention of the legislature to authorize this court to correct all errors happening in the supreme court in rendering ■ judgments upon indictments in criminal cases, whether the judgment was for or against the accused, and that as a necessary incident to that power, this court may entertain a writ in the name of the people.
      But it is contended that if such a writ will lie, that in this case the court is bound to take notice of the pardon, and therefore should for that cause quash the writ. At common law it was held that the courts were not bound to take judicial notice of a pardon procured by the king’s letters patent, but that it was otherwise in the case of a pardon by act of parliament. In the first case the accused was bound to plead it at the earliest opportunity. In this case the party was convicted and judgment rendered; a pardon was granted, and after the pardon the accused brought a writ of error, and the judgment was reversed upon a question of law, and now the people bring error upon this last judgment, and it seems to me that it does not lie wi.h the defendant to arrest the proceedings upon the strength of that pardon, since he himself has so far disregarded it as to have subsequently revived litigation in the suit. The public may be interested in the principle of law which the last judgment undisturbed may settle, and since the defendant has chosen to continue litigation for the mere purpose of settling a question of law, he ought not to complain that the people, who are the most interested in settling such questions, should elect to submit it to their highest tribunal.
      At all events, it would seem that the pardon should be pleaded in order to be available at this stage of the proceedings. It is laid down by Chitty, that the king’s pardon by letters patent must be specially pleaded in order that the defendant may have the benefit of it on his trial, and it must be pleaded too at the proper stage of the proceedings, and the court have no discretionary power to notice it unless it be pleaded. (1 Chit. Crim. Law, 466; Steph. Crim. Law, 337.) But in case of a pardon by an act of parliament, the court are bound to take notice of it. (4 Black. Com. 402.) If the defendant be pardoned he m?.v plead it in bar, and he may plead it either upon arraignment or after verdict in arrest of judgment, or after judgment in bar of execution. (Steph. Crim. Law, 290 ; 4 Bl. Com. 337, 402.) I see no good reason why .the same rules in regard to pleading a pardon granted by the king will not apply with equal power to a pardon granted by the executive of this state. To applj them in this case, would work no oppreseicn to the accused, as a reasonable time would no doubt be allowed him to interpose his plea at a proper time, so as to have all the benefit of his pardon before final execution shall be awarded.
      The motion to quash ought to be denied, and from the importance to the public at large of the legal point involved in the main question, a day ought to be set apart io this present term for the argument of the writ of error.”
    
   Bronson, J.

The defendant was indicted for perjury in the court of general sessions of the county of Onondaga; and on demurrer to the indictment, judgment was given in his favor. The district attorney of the county then brought a writ of error in the supreme court. The defendant objected to the proceeding, and moved to dismiss the writ of error, on the ground that the people could not bring error after judgment for the defendant in a criminal case. The court denied the motion ; and after examining the case upon the merits, affirmed the judgment of the general sessions. The district attorney then brought the record into this court by .writ of error, and seeks to reverse both the original judgment, and the judgment of affirmance. The defendant has renewed his objection before us, and moved to dismiss the writ of error; and the first question to be considered is, whether the people can bring error after a judgment for the defendant in a criminal case.

We are assured by the indefatigable counsel for the defendant, that upon the most diligent search he has been unable to find a single reported case, in England, where the king has brought error after a judgment of acquittal: and Mr. Archbold, in his Practice of the Grown Office, published in 1844, (p. 201,) in speaking of the cases where a writ of error will lie, says, judgment must have been given upon indictment; “ and it must be a judgment against the defendant; for there is no instance of error being brought upon a judgment for a defendant after an acquittal.” But since that time there has been a case, the regular report of which has not yet reached us, where a party charged with crime had judgment in his favor on a special verdict, and the crown then brought error in the king’s bench, where the judgment was affirmed. This was in November, 1847. (Regina v. Chadwick, 10 Law Rep. 458.) If this is in truth the only instance in which such a writ of error has ever been brought in England, it is a remarkable fact that nothing appears to have been said, either by court or counsel, touching the right of the crown to have the review. When we get the case more at large, it may furnish some explanation on this point.

According to the report in Jones, the writ of error in the Marquis of Winchester s case (Cro. Car. 504: W. Jones, 407, by the name of The King v. Lord St. John), was brought by the crown. But I think it evident that this is a mistake; and that the writ of error was brought by the defendant. He had not been acquitted; but had been convicted on an indictment for recusancy, and fined twenty pounds. He had a good reason for wishing to get rid of the judgment. Croke says, “ the king’s attorney signified his majesty’s pleasure, that if it was "erroneous, it should be reversed.” This was the necessary license to the defendant to bring a writ of error, which at that period was not gran table ex debito justitice, but ex gratia regis. (Rex v. Wilkes, 4 Bur. 2550.) Viner and Bacon have both followed the report of the case by Croke. (Vin. Ab. Error F. pl. 10; Bac. Ab. Error, A. 2, 17th Lond. ed.)

There is a saying of Lord Coke, (3 Inst. 214,) from which an inference may be drawn in favor of the right of the crown to bring error in a criminal case: and there are several passages in Hale’s P. C. (vol. 2, p. 247, 248, 394, 395,) affording ground for a like inference. But nothing is directly affirmed on the subject by either of these learned commentators. All the other writers on criminal law, which 1 have examined, speak of a writ of error as though it could only be brought by the defendant; though with the exception of Archbold, already cited', they do not directly affirm that doctrine.

There was an intimation of the judge in The People v. Onondaga General Sessions, (2 Wend. 631,) that the people might bring error in a criminal case; but the question was neither discussed, nor decided. Since that time, and within the last sixteen years, writs of error on behalf of the people have been brought in a number of instances; and in some of the cases, the judgments of the court of original jurisdiction were reversed (The People v. Stone, 9 Wend. 182; The People v. Fisher, 14 id. 9; The People v. Coon, 15 id. 277; The People v. Brown, 16 id. 561; The People v. Adsit, 2 Hill, 619; The People v. Cady, 6 id. 490; The People v. Payne and other cases, 3 Denio, 88, 91, 99, 101; The People v. Adams, 3 Denio, 190; 1 Comst. 173.) But in none of the cases was the question either made by counsel, or considered by the court, whether the people could properly bring error. Such precedents are not of much importance.

This question was before the Maryland court of appeals in The State v. Buchanan, (5 Har. & John. 317,) and it was held that the state might bring error. Although there was evidently a great search for precedents by Mr. Wirt and the other eminent counsel who appeared for the state, it was said on the other side by Mr. Pinkney and his associates, that no authority for such a proceeding had been, or could be shown; and with the exception of some cases in that state, which seem not to have been reported, the judge who delivered the opinion of the court found no authority for the writ of error beyond an infer - ence from the dicta of Lord Hale, to which I have already referred. In Arkansas the prosecuting attorney may take exceptions on the trial, and bring error on a bill of exceptions: but this is by force of the statute law of that state. (The State v. Graham, 1 Pike’s Ark. Rep. 428.) I am not aware that such a proceeding has been authorized in any other state.

In Illinois, where the matter has not been regulated by statute, the supreme court dismissed a writ of error which had been brought by the state’s attorney, on the ground that a writ ot error would not lie in behalf of the people in a criminal case. (The People v. Dill, 1 Scammon’s Ill. R. 257.) In The Commonwealth v. Harrison, (2 Virg. Cas. 202,) the general court bf Virginia decided, that a writ of error which had been awarded by a judge in vacation, on the application of the attorney for the commonwealth, had improvidently issued, “because no writ of error lies in a criminal case for the commonwealth.” In The State v. Reynolds, (2 Haywood’s Tenn. R. 110,) the supreme court of errors and appeals of Tennessee held, that a writ of error, or appeal in the nature of a writ of error, would not lie for the state in a criminal case. They said, “it is a rule of the common law that no one shall be brought twice into jeopardy for one and the same offence. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule it is, that a new trial cannot be granted in a criminal case, where the defendant is acquitted. A writ of error will lie for the. defendant, but not against- him. This is a rule of such vital importance to the security of the citizen, that it cannot be impaired but by express wordsand having come to the conclusion that no such words were used in the statutes of that state, the court dismissed the appeal.

In the Maryland case, already cited, where it was held that a writ of error would lie, the court seem not to have been wholly without apprehension that the power might be used for improper purposes. They said, the right of the state to bring error should be seldom exercised, and never for the purpose of oppression, or without necessity; but they thought an abuse of the right would not be tolerated by public feeling. In my judgment, “ public feeling,” however correct it may be when the public is well informed, is not the only shield which the citizen ought to have against oppression. The authority which may be exercised over him by officers of the government should be defined and regulated by law. We have in this state some sixty prosecuting officers, and if they may pursue an individual charged with crime from court to court after he has been regularly acquitted, it is not too much to fear, that in times of high excitement, or through a defect of judgment in the prosecuting officer, an innocent man may sometimes be borne down by the weight of a government prosecution. If the legislature had supposed that such a power existed, I think they would either have abolished it, or made some provision for restricting and regulating its exercise.

The weight of authority seems to be against the right of the government to bring error in a criminal case. The absence of any precedent for it, either here or in England, until within a very recent period, fully counterbalances, if it does not outweigh the fact, that the right has lately been exercised in a few instances without objection. And in three of the four states where the question has been made, the courts have decided that the right, does not exist.

But this is not all. Many of the rules and maxims of our law are favorable, instead of oppressive, to persons charged with crime. We hold it better that the guilty should escape, than that the innocent should suffer. The accused cannot be twice put in jeopardy for the same cause. He may sometimes have a new trial; but the people cannot. (The People v. Comstock, 8 Wend. 549.) He may take exceptions on the trial, and have a review on bill of exceptions ; (2 R. S. 736, § 21;) but no such right is secured to the people. And what is quite material tc the present inquiry, the right to bring a writ of error is given to the accused, while it is evident that the provision does not extend to the people, or those who carry on the prosecution. (2 R. S. 737, art. 1.) The legislature has not only omitted to confer upon any public officer the power to bring error in a criminal case, but the omission is rendered the more significant by the fact, that the attorney general has been specially authorized to bring error in civil cases. (2 R. S. 592, § 4.) In addition to this, the powers and duties of the attorney general and district attorneys have been prescribed by the legislature; (1 R. S. 179, art. 5, and p. 383, art. 7;) and had it been intended that they should bring error in criminal cases, it is but reasonable to suppose that such a power would have been included among those which have been conferred. It is made the duty of the district attorneys to attend certain courts of original jurisdiction in criminal cases, and conduct all prosecutions for crimes and offences cognizable in such courts; (1 R. S. 383, § 89;) but they are not required to do any thing in the courts of appellate jurisdiction, except in cases where the defendant has taken a bill of exceptions, or brought a writ of error. (2 R. S. 736, § 27, and p. 741, § 21.) „ And finally, district attorneys in this state do not hold a common law office; and they have no powers but such as can be found written in the statute book. I think it quite clear that neither they, nor any other public officer has been vested with authority to bring a writ of error in a criminal case.

In speaking of the danger that such a power might be abused, it must not be understood that any improper motive is imputable to the district attorney who brought this writ of error. He followed recent precedents, and did it in a case where he undoubtedly thought the judgment erroneous.

If the supreme court had reversed the judgment of the general sessions, and error had then been brought by the defendant, the proper course for this court would have been to reverse the judgment of the supreme court, on the ground that it had acted without authority. But as the original judgment was affirmed, and the defendant does not complain of what was done in the supreme court, the proper course will be to grant his motion, and dismiss the writ of error.

Writ of error dismissed. 
      
       The law of this case was altered by the act of the 22d March 1852, eh. 82, which provides, that “ writs of error to review any judgment rendered in favor of any defendant upon any indictment for any criminal offence, except where such defendant shall 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 such judgment rendered in the Supreme Court in favor of any defendant charged with a criminal offence.” And by the act of 1879, eh. 179, it is provided, that this shall embrace any decision or order quashing an indictment. But these acts do not embrace a conviction in the oyer and terminer, upon which judgment has been suspended, which is reversed by the supreme,court, on certiorari, and the defendant discharged. People v. Bork, 78 N. Y. 346. Nor a case in which a judgment, on conviction in the court of sessions, has been affirmed by the supreme court. Eighmy v. People, Ibid. 330.
     