
    The People of the State of New York, Resp’ts, v. Hugh O’Neil, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January 17, 1888.)
    
    1 Criminal law—Judgment of conviction—What will render a judgment ROLL DEFECTIVE.
    It is provided by Code Criminal Procedure, section 485, that when judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, slating briefly the offense for which the conviction was had, and must upon the service upon him of notice of appeal annex together certain papers, which constitute the judgment roll. Held, that a judgment was defective in not stating the offense of which the defendant had been convicted, except by reference to the indictment, in not being entitled, dated and signed by the clerk; in. not showing when the indictment was found and the crime charged in it; in not containing a copy of the plea as required by Code Criminal Procedure, section 485, subd. 2, and a copy of the minutes of the trial, as required by subdivision 4 of that section.
    
      % Same—When defects in judgment roll should be corrected before HEARING OF APPEAL.
    
      Held, that a judgment roll defective in these particulars should be corrected by the clerk before the hearing of an appeal therefrom.
    Appeal from a judgment of conviction of arson in the third degree, entered in the office of the clerk of the county ■of Cortland, on the 20th day of February, 1886. Judgment recorded by the court of oyer and terminer of that county.
    
      Horace L. Bronson, district attorney, fdr resp’t; McGuire & Champlin, for app’lt.
   Per Curiam.

June 20, 1885, an indictment was found in the Cortland oyer ai;d terminer charging defendant with arson in the third degree, under the second subdivision of section 488 of the Penal Code, in having burned, February 14, 1884, at Cortland Village, a wagon factory. February 20, 1886, at the Cortland oyer and terminer, the defendant was convicted of the crime charged and sentenced to imprisonment in a state prison for five years. On the same day the defendant appealed, was granted a stay and let to bail. A motion for a new trial was made, pursuant to sections 465 and 466 of the Code of Criminal Procedure.

Section 485 of the Code of Criminal Procedure provides: “ When judgment upon a conviction is rendered, the clerk must -enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and upon the service upon him of notice of appeal, immediately annex together and file the following papers, which constitute the judgment-roll:

“1. A copy of the minutes of a challenge interposed by the defendant to a grand juror, and the proceedings and decision thereon.

“2. The indictment and a copy of the minutes of the plea or demurrer.

“3. A copy of the minutes of a challenge which may have been interposed to the panel of the trial jury, or to a juror, who participated in the verdict and the proceedings and decision thereon.

“4. A copy of the minutes of the trial.

“5. A copy of the minutes of the judgment.

“6. A copy of the minutes of any proceedings upon a motion, either for a new trial or in arrest of judgment.

7. The bill of exceptions, if there be one.

tt g * * «■ *»

Sections 487 and 489 provide that the sheriff, upon receiving a certified copy of the judgment, must deliver it and the defendant' to the keeper of the prison in which he is to be imprisoned. The following is a copy of the so-called judgment contained in the appeal book:

The trial of the defendant on said indictment, came on to be heard at a court of oyer and terminer, held at the court house in the village of Cortland, commencing February 1st, 1886, and a jury were duly impaneled and sworn, and after hearing the evidence offered and the evidence of counsel, and the charge of the court, the jury retired on the 20th day of February, 1886, with an officer sworn to-attend them, and afterwards and on the same day the jury returned into court, and presented their verdict in the presence of the defendant, whereby they say they find the defendant guilty of the crime charged in the indictment. Court being about to adjourn and the defendant having stated to the court that he waived any delay in pronouncing judgment, sentence was duly moved by the district-attarney. The defendant was then asked by the clerk whether he had any legal cause to show why judgment should not be pronounced against him and replied: “ No, sir.”

The defendant being duly sworn says, my name is Hugh O’Neil, aged 35 years, bom in Ireland-, reside in Springville,. N. T., occupation a wagon manufacturer. And the said defendant was thereupon, by the court here, sentenced to be confined at hard labor for the period of five years. This judgment is defective in not stating the offense of which defendant was convicted, except by reference to the indictment, and ; certified copy of it will not disclose to the officers whose duty it is to execute it, or to any court or judge called upon to act upon it, the offense of which the defendant was convicted.

This so-called judgment, is not entitled, dated or signed by the clerk.

It does not show when the indictment was found or'the crime charged in it. The judgment-roll does not contain a copy of the plea, as required by sub-division 2, of section 485, the form of which is prescribed by section 334, and must be entered upon the minutes of the court (§333).

The judgment-roll does not contain a copy of the minutes of trial as required by sub-division 4, of section 485, which should contain a brief record of the proceedings had during the trial, from its commencement to its close, as in civil cases.

Such a record does not afford adequate security for the people, nor for the defendant, should he have occasion to plead this conviction in bar of another indictment. Though section 485 makes it the duty of the clerk to enter the proper judgment, and in case of appeal, to make up a judgment-roll, still the district-attorney should see to it that a formal and sufficient judgment is entered in every case and that a formal and sufficient roll is made up when an appeal is taken. Undoubtedly the records in the office of the clerk are sufficient to enable a record to be made up which will comply with the requirements of the Code of Criminal Procedure.

This appeal ought not to be heard upon this record, but it should be returned for correction, with a direction to the clerk to enter a judgment as required by law and to make up a judgment-roll in the form prescribed by law.  