
    The People of the State of New York, Respondent, v. Louis Brown and Morris Taub, Appellants.
    First Department,
    December 9, 1910.
    Appeal — reversal of judgment convicting defendant of crime on ground that evidence does not prove crime charged— recitals in order — review of questions of fact.
    Where the Appellate Division reverses a judgment of the Court of General-Sessions upon the ground that the proof fails to establish the crime charged, it cannot recite in the order that the court has reviewed and considered all the questions of .fact and found no error therein.
    Such recital can only be made where the facts would justify a conviction, but the judgment is reversed because of an exception presenting a question of law, or because the act under which the defendant was convicted was unconstitutional or void for some other reason.
    Application to amend an order on an appeal' by the defendants, Louis Brown and another, from a judgment of the Court of General Sessions of the Peace in and for the county of Mew York, entered in. the office of the clerk of said court on the-14th day of February, 1910.
    (See 140 App. Div. 591.)
   Per Curiam :

The district attorney wishes to have inserted in the order on this appeal a provision certifying that the reversal was solely upon errors of law and not upon matters of fact or matters of discretion, and that the court has reviewed all questions of fact and finds no errors.

The defendants were convicted of forgery in the third degree, under section.515 of* the Penal Code. The necessary element of that offense is an intent to defraud or to conceal a larceny or a misappropriation of money or property. We expressly held that the evidence failed to prove the crime charged under the statute relied upon, and reversed the judgment. Where the reversal is upon the ground that the proof fails to establish the . crime charged, we cannot recite in the order that the court lias reviewed and considered all the questions of fact in the case and finds no error, therein ; for the reversal was because the facts proved did not sustain the indictment and justify the conviction.- Such-an order can only be in a case where the facts would justify a conviction of the crime; but the judgment is reversed because of an exception which presents a question of' law, or an act under which the defendants were convicted, is unconstitutional, or for some other reason void. Under the Constitution (Art 6, § 9) a unanimous decision of the Appel- ■ late Division that the verdict is sustained by.the evidence cannot be reviewed by the Court of Appeals, and, therefore, if we inserted such a clause in the order, the Court of Appeals would, as I understand -their decisions, reverse the order, unless there ivas some exception which presented an error of' law. This has been before stated in denying motions to resettle orders; but, notwithstanding the position that this court has taken, the applications are renewed again and again. The court ban only affirm on the facts when the evidence sustains the verdict of the jury convicting of the crime charged. We cannot affirm on the facts when the evidence shows that no crime was committed.

The application is, therefore, denied.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke . and Scott, JJ. '

Motion denied.  