
    SUPREME COURT.
    The People agt. John M. Dempsey and others.
    
      Practice in criminal cases—Appeal—In what cases an appeal may be'talce’n ■ by the people—What orders in criminal cases reviewahle by supreme-court— Code of Criminal Procedure, section 518.
    Formerly the people had no right or power to review a decision or judgment favorable to a prisoner. The right to do so depends upon statute. Under section 518 of the Code of Criminal Procedure an appeal to the supreme court can be taken by the people in two cases only: 1st. From a judgment for the prisoner on a demurrer to the indictment. 2d. Prom an order of the court arresting judgment.
    An order of the oyer and terminer setting aside a grand jury and quashing an indictment is not reviewable in the supreme court.
    The general term of the supreme court can correct errors and mistakes in criminal cases only when brought before it pursuant to statute.
    
      Third Department, General Term, January, 1884.
    Learned, P. J, Bo aroman <md Potter, JJ.
    
    The defendants were recognized to await the action of the grand jury to convene at the May term of the Albany oyer and terminer, 1882. At the first opportunity the defendants had, and before the grand jurors were sworn, they filed a paper signed by them protesting against the swearing in or recognition by the court as grand jurors, of the persons who had answered to their names, and who were assumed to be summoned to appear and act as grand jurors at that term, on the ground that they had not been drawn from a list of 300 persons prepared .by the supervisors ¡of the county of Albany, -pursuant to the provisions of the Bevised Statutes, but had '.been in fact drawn from the names in the petit jury box of ,said county, which box contained the names of upwards of 2,500 persons, under the provisions of chapter 532 of the Laws ..offtlSBl, which' defendants insisted was unconstitutional as it affected Albany county only, and was therefore in violation of . the constitutional provision which forbids the passage by the legislature of a private or local bill for selecting, drawing, summoning or impanneling grand jurors.
    The district attorney objected to the filing of the paper, but admitted that the drawing was made in pursuance of said ¿chapter 532 of the Laws of 1881. The court reserved its decision-. On the coming in.,of the grand jury, and before arraignment, the defendants - renewed, their objections in a ■paper signed and submitted by them. The- district attorney, objected to its filing. He admitted, as before, that the drawing was. made under said chapter 532,.of .- the Laws of 1881- A motion was made to set aside and to quash the indictment for the reasons above stated. The questions raised were reserved for the purpose of hearing argument upon all of the matters. After argument and on August 6,1883, the oyer and terminer decided in favor of the defendants, and an order was entered that as to these defendants “ the grand jury impanneled at the opening of this court be and the same hereby is set aside, and the persons summoned to serve as grand jurors be and they hereby are discharged from service as such grand jurors, and the indictment against said John M. Dempsey, Thomas Ansbro and George F. Packman, found by such persons acting as such grand jurors, be and the same is hereby quashed. This order to take effect and to be deemed as made on the 1st day of Hay, 1882, at the opening of the court on that day, so far as the discharge of the persons summoned to act as grand jurors is concerned.” The district attorney appealed to this court and the defendants moved to dismiss the appeal. The reasons assigned by the oyer and terminer for making said order are to be found in the case of The People agt. Duff (65 Row. Pr. P., 365).
    
      Edward J. Meegan, for defendants:
    I. Antecedent to the Devised Statutes even the prisoner had no absolute right to have his conviction reviewed in a higher court. Judge Edmonds, in Carnal agt. The People (1 Park. Crim. P., 268), states the rule at that time thus: “ Prior to the Devised Statutes there was no bill of exceptions in criminal cases and writ of error thereon for the review of convictions in the oyer and terminer. The review was attained in this manner: The court suspended passing sentence and certified the question, which was in doubt, to the supreme court, who considered and passed upon it and advised the court below either to grant a new trial or proceed to pass sentence; and sometimes when the convict was before them they passed the sentence themselves. Whether the trial should be reviewed was at the option of the court before which it was had, and the prisoner had not the right as in civil cases to take exceptions and carry up the record for review ” (See, also, Ex parte Vermilyea, 6 Cow., 555). The legislature, in the Revised Statutes, altered this practice and secured to the prisoner the right to a review of his case by writ of error (3 R. S. [6th ed.], 1030, sec. 26; Id., 1037, art. 2; Carnal agt. The People, 1 Park. Crim. R., 268).
    II. The Revised Statutes did not authorize a writ of error in a criminal case on behalf of the people. A decision favorable to the prisoner was conclusive (People agt. Corning, 2 N. Y., 9). The opinion of the court of appeals in the case cited was written by judge Bbonsoh, and he, in his usual luminous style, formulates the reasons of the ¡¡decision as follows : “ 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. Het may sometimes have a new trial, but the people cannot (The People agt. Comstock, 8 Wend., 549). He may take exceptions on the trial and have a review on bill of exceptions (2 R. S., 736, sec. 21). But no such right is secured to the people; and what is quite material to the present inquiry, the right to bring a writ of error is given to the accused, while it is evident that the provisions 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, sec. 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, 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 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 offenses cognizable in such courts (1 R. S., 383, sec. 89); but they are not required to do anything 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. 736, sec. 27; p. 741, sec. 21). And finally district attorneys in this state do not hold a common law office; and they have no power’s 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.” To avoid the effect of People agt. Carnal (supra), chapter 82 of the Laws of 1852 was enacted, which authorized a writ of error on behalf of the people to review any judgment rendered in favor of any defendant, except that of an acquittal by a jury. But this law was held not to apply to a judgment rendered prior to its passage (People agt. Carnal, 6 N. Y., 463). A writ of error would not lie on behalf of the people at common law (People agt. Bork, 78 N. Y, 348). Bor where the indictment was quashed (People agt. Stone, 9 Wend., 191). And no writ of error was allowed unless within the express terms of the act of 1852, thus: 1. A writ of error was held not to lie to review a judgment on some of the counts in an indictment, while other counts are undisposed of (People agt. Merrill, 14 N. Y., 74). 2. Again, a writ of error was held not to lie to review an order of the supreme court, granting a new trial in a criminal ease where there had been a conviction and certiorari, with stay of judgment in the court below (People agt. Nestle, 19 N. Y., 583). (e.) Chapter 176 of the Laws of 1879 and chapter 538 of the Laws of 1880 further extended to the people the right of review, and authorized a writ of error to review a decision or order quashing an indictment. (/.) The decision of the highest court of this state, above quoted, announce the rule on behalf of the people in a. criminal case, but subsequent legislation authorized a proceeding by a writ of error in certain cases to review decisions favorable to the prisoner. The abolition of writs of error, therefore, would take away the right of review on behalf of the people, and the people would occupy the same position that they were in prior to said subsequent legislation.
    III. The appeal taken herein is to be governed by the Code of- Criminar Procedure, and under its provisions the order entered in- the -oyer and terminer is not one from which an appeal can Be -taken do this court, (a.) Section 515 abolishes writs'of error -and' certiorari as they theretofore existed, and provides that “ hereafter the only mode of reviewing judgment or order-in ;a-.criminal action is by appeal.” {]) '.] Section 518 contains the -onlif'.authority for an appeal by the people to the'supreme court-pin--these words: “Sec. 518. An appeal to the- supreme court; may be taken by the people in the following cases and no other-:;!. Upon a judgment for the defendant on a demurrer to the -indictment. 2. Upon an order of the court arresting the judgment:., (c.) This appeal is neither from a judgment sustaining or allbwing a demurrer, nor an order of the court arresting • the- judgment. The Code authorizes a demurrer for certain déféets which appear upon the face of the indictment (Sec: 323):. There was no demurrer in this ease. The Code further provides that “ a motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, or on a verdict against the defendant upon the plea of a former conviction or acquital ” (Sec. 467). There was no plea of guilty in this case. There was no trial, and, therefore, a verdict of guilty was an impossibility, and the defendants never made any claim or plea of autrefois acquit or autrefois convict, (d.) The language of section 518 is prohibitory. It expressly forbids an appeal to the supreme court by the people, except in the two classes of cases enumerated. The supreme court is given no jurisdiction, and is-inhibited by the words “and no other ” from exercising any in a case like the present one. (e.) Sections 515 to 518 operate to repeal chapter 176 of the Laws o: 1879 and chapter 538 of the Laws of 1880, and they are no longer authority for an appeal from an order quashing an indictment, if.) The language of chief justice Johnson, in People agt. Nestle (19 N. N., 584), involving the construction of the act of 1852 aforesaid applies to this case. He says : “The case is plainly not provided for by the statute, the language of which is clear and precise. Technical words are employed which accurately exclude such cases as the present.”
    IY. The jurisdiction of the general term of the supreme court, in the review of criminal cases, is purely statutory. It possesses no right or power of supervision or control over the decisions of the court of oyer and terminer to correct alleged errors committed by it, except so far as the statute confers the power to do so. If any power exists in the general term of the supreme court to supervise the proceedings of the court of oyer and terminer, and it is respectfully submitted there is none, the district attorney, so far as this case is concerned, has selected his remedy. He has elected to attempt a review by appeal, and he must therefore stand or fall by the Code provisions regulating appeals. An order has been entered in the oyer and terminer, a court separate and distinct from the supreme court, and the Code has made no provision for reviewing it by appeal.
    
      D. Cady Herrick, district attorney, for people.
   Boardman, J.

The facts and orders in this case are the same as in the People agt. Fitzpatrick, decided at' the last September general term. In the latter case we considered the merits and decided that the order setting aside and discharging the grand jury as to tliat defendant, and as to him quashing the indictment found, was erroneous, such order was therefore reversed.

Upon that occasion counsel on either side desired the court to pass upon the merits and no question was raised as to the validity of the appeal taken by the people from such order. That question was not, therefore,, passed upon. This appeal by the people arises upon the same state of facts, but the defendants now move to dismiss it upon the ground that the people have no right to appeal in the present instance, and hence the court can acquire no jurisdiction.

Formerly people had no power to review an adverse decision (People agt. Corning, 2 N. Y., 9; People agt. Comstock, 8 Wend., 599). Afterwards, in 1852 (chap. 82 Laws of 1852), an act was passed giving the people the right to review judgments in favor of any defendant, except in case of acquittal by a jury.

In 1879 and 1880, such right of review was further extended in favor of the people. But a writ of error at common law would not lie on behalf of the people after a judgment of acquittal (People agt. Corning, ut supra; People agt. Pork, 78 N. Y., 346); nor from an order quashing an indictment (People agt. Stone, 9 Wend., 191).

But all these provisions have been abolished by the Code of Criminal Procedure (sec. 515), and now the only mode of reviewing a judgment or order in a criminal action is by appeal. ¡No such mode of review ever existed before and so we must look to the Criminal Code for all authority or limitation of authority. Unless the Code gives to the people this right of appeal the appeal must be dismissed. By soction 518 the people may appeal to the supreme court in two cases: First, from a judgment for defendant on demurrer to indictment; second, from an order arresting judgment; neither of which cover the present case. In no other case has the right of the people to appeal to the supreme court been given. The district attorney concedes that the right is not given by the .Code of Criminal Procedure. The concession is fatal.

This court may correct errors and mistakes only when they can be brought before us pursuant to law. The court below, through ignorance or corruption, may rule against the people on questions of evidence, throughout a trial for murder whereby a criminal is acquitted, but this court cannot correct such errors. So, too, of the drawing of a panel of jurors in a criminal case, however gross the error and however fatal to justice the consequences may be, the action cannot be reviewed on behalf of the people. . There is no precedent for an allowance of an appeal in criminal cases outside and independent of the statute. We are not prepared to make one in this case.

Happily we cannot believe any danger can arise from a. willful disregard of the criminal laws or a corrupt purpose to thwart their due execution by judicial officers. The order in the case under consideration was made at the same time with the one in Fitzpatricks case. Hence our decision in that case could not have been known to the learned judge, or aided in modifying his action in the present instance.

Hor can we believe that any judge, after the decision of the Fitzpatrick case, would, on the same facts, disregard that decision, even though that appeal was unauthorized by law. The question may be very easily determined by the court of last resort, as in the Petrea case (92 N. Y., 128), by deciding such motions in accordance with our former opinion and leaving the defendant to test the correctness of the same.

For the reason stated, we think this appeal must be dismissed.

Learned, P. J"., and Pottee, J., concur.

Note.— People agt. Fitzpatrick, refered to in the opinion of judge Boardman, is reported ante 14. In that case counsel for the defendant waived the jurisdictional question and argued the case upon the merits.

The court assumed jurisdiction and reversed the order appealed from, but in People agt. Dempsey, above reported, the same general term held that in a case like Fitzpatrick’s they have no power to review.

■ Consent may give a court jurisdiction of parties to an action, but not ■ of the subject matter (Brady agt. Richardson, 18 Ind., 1; Overstreet agt. Brown, 4 McCord [S. C], 79; Campbell agt. Cowden, Wright [Ohio], 484; Cleveland agt. Welsh, 4 Mass., 593; Harrison agt. Rowan, Pet. C. Ct., 489; Walker agt. Rogan, 1 Wis., 597; Hills agt. Miles, 13 Wis., 625; Clyde agt. Parker, 22 Barb., 323).

Consent of parties cannot confer jurisdiction in a matter which is excluded by law. (Bents agt. Graves, 3 McCord [S. C], 280; Foley agt. The People, 1 Ill. [Breese], 32; McHenry agt. Wallen, 2 Yerg. [Tenn.], 441; Simpson agt. McMillion, 1 Nott & M. [S. C], 192; Wells agt. Reynolds, 1 Tread. [S. C], Const., 478; Banks agt. Fowler, 3 Litt. [Ky.], 332; McCall agt. Peachy, 1 Call. [Va.], 55; Brown agt. McKee, 1 J. J. Marsh. [Ky.], 476; Ormsby agt. Lynch, 6 Litt. [Ky.], 303; Lindsey agt. McCleland, 1 Bibb. [Ky.], 263; Little agt. Fitch, 33 Ala., 343; Andrews agt. Wheaton, 23 Conn., 112; Randolph Co. agt. Ralls, 18 Ill., 29).

The proceedings of any tribunal, not having jurisdiction of the subject matter which it professes to decide are void. (Wicks agt. Cauld, 5 Har. & J. [Md.], 42; Griffith agt. Frazier, 8 Cranch, 9; Denn agt. Handen, 1 Paine, 55; Collamer agt. Page, 35 Vt., 387; Gormley agt. McIntosh, 22 Barb., 271; Elliot agt. Piersoll, 1 Pet., 340; 1 Bish. Crim. Pro., sec. 986.

Wells, on jurisdiction of courts, lays down this rule: “Where there is no jurisdiction it does not belong to the proper functions of a court to give an opinion upon a matter submitted to them for the guidance of parties or inferior tribunals, even where the parties consent to it. The whole business of a court is confined to giving decisions in cases properly before it” (P. 10, sec. 13).—[Ed.  