
    People of the State of New York, Appl’ts, v. Henry K. Stevens, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed February 1, 1887.)
    Criminal Law — Appeal — Supreme coubt must exebcise its discretion —Coubt op appeals.
    On an appeal from a verdict In a criminal case the prisoner is entitled to a review of the facts and an exercise of the discretionary power vested in the general term of the supreme court. Where the reversal is made hy said court solely on questions of law the court of appeals will not review it, hut remit it to the general term to consider the questions of fact and to exercise its discretion.
    Appeal by tbe People from an order of tbe supreme court, general term, fifth department, reversing “ upon grounds of error of law and not of fact or as matter of discretion ” a judgment of tbe Erie county court of sessions and granting a new trial on a conviction of a person under indictment for grand larceny.
    
      Geo. T. Quimby, Dist. Atty., for appl’t; John Laughlin, for resp’t.
    
      
       Reported below, 38 Hun, 62.
    
   Per Curiam.

Tbe order of reversal states merely that it was made on questions of law. It does not state that the court has considered tbe questions of fact or exercised the discretion which the statute confers upon it. We have decided that this court will not review an order of reversal in such' a case, unless it shows that the court has exercised its discretionary powers. See People v. Boas, 92 N. Y. 560-564; Same v. Conroy, 97 N. Y. 62-72; Harris v. Burdett, 73 N. Y. 136. Although the court in tbe present case puts its decision npon a question of law, we cannot say it would not have reached the same result had it exercised its discretion,.and entertained a different opinion on the question of law. The prisoner was entitled to a review of the facts, and the exercise of the discretionary power of the court, which he might lose if the case should be disposed of solely on a question of law.

The case should therefore be remitted to the general term to consider the questions of fact, and exercise its discretion.

All concur.  