
    STATE, J. MADISON DRAKE, PROSECUTOR, v. BREVET MAJ. GEN. JOSEPH W. PLUME ET AL.
    1. A general court martial found an officer guilty of the specification, but not guilty of the charge. This was equivalent to an acquittal, and sentence could not be pronounced on such finding.
    2. There must be an order, judgment or determination affecting the rights of the prosecutor, as a foundation for the writ of certiorari.
    
    
      Certiorari to bring up proceedings of court martial.
    Argued at February Term, 1882, before Justices Depue, Yan Syckel and Parker.
    For the prosecutor, J. Augustus Fay, Jr.
    
    For the defendants, James N. Stratton.
    
   The opinion of the court was delivered by

Parker, J.

This certiorari brings before the court the proceedings of a general court martial, in relation to the trial of Brevet Brig. Gen. J. Madison Drake, captain of Gatling Gun Company A, N. G. N. J., and the decision had thereon.

The judge advocate appeared before this court at the argument, and produced the minutes of the court martial, recorded in a book, which was securely fastened.

The judge advocate stated that, having taken an oath not to divulge the proceedings and result, unless so directed by competent authority, the court directed him to unlock the book and read the findings in open court. This was done, when it appeared that the court martial had found the prosecutor guilty of the specification, but not guilty of the charge.

This was equivalent to an acquittal. It virtually decided that the facts alleged in the specification were proved, but the facts did not make out the offence charged.

On such finding no sentence could be pronounced by the reviewing officer.

The prosecutor is not aggrieved. There must be an order, determination or judgment, affecting the rights of the prosecutor, as a foundation for 'the use of the writ of certiorari. Watson v. Medical Society, 9 Vroom 377.

The writ will not lie before judgment in cases which cannot be continued and completed in this court. Elder v. Medical Society, 6 Vroom 200.

The writ, in this case, is dismissed, but without costs.  