
    The People vs. Thomas Comstock.
    ALBANY,
    Jan. 1832.
    For offences greater than, misdemeanor, a new trial cannot be granted, whether the accused be acquitted or convicted.
    
    In misdemeanors, it seems, a new trial maybe granted, where the defendant has been improperly convicted, but not where he has been acquitted.
    
    The defendant was tried on an indictment for grand larceny, at the Herkimer circuit, in September, 1831, the indictment having been removed from the oyer and terminer, into this court by certiorari. The defendant was acquitted, and a new trial was moved for, on the ground of the alleged misdirection of the jury by the presiding judge.
    
      A. Hackley, (district attorney of Herkimer,) for the people.
    
      L. Ford, for the defendant.
   By the Court, Sutherland, J.

It appears to be perfectly settled, that in offences greater than misdemeanor, a new trial cannot be granted on the merits, even where the prisoner has been convicted. Thus, in The King v. Mawbey and others, 6 Term R. 625, Garrow, arguendo, speaking of misdemeanors, says, “ If the defendant were unquestionably guilty, and the jury acquitted him, yet the court cannot grant a new trial; on the other hand, if a defendant be convicted of felony or treason, though against the weight of evidence, there is no instance of a motion for a new trial in such a case, but the judge passes sentence, and respites execution, till application can be made to the mercy of the crown.” Lord Kenyon, in delivering his opinion in that case, page 638, says, “ In one class of offences, indeed, those greater than misdemeanors, no new trial can be granted at all; but in misdemeanors there is no authority to shew that we cannot grant a new trial, in order that the guilt or innocence of those who may have been convicted may again be examined into.” The whole scope of that case seems to warrant the opinion, that even in a misdemeanor, a new trial •cannot be granted, where the defendant has been acquitted; but in relation to felony and treason, it treats the proposition as unquestionable, that no new trial can be granted, even where the prisoner was convicted, a fortiori after an acquittal. Mr. Chitty, Chitty’s Grim. Law, 532, says, “ In cases of felony or treason, it seems to be completely settled, that no new trial can, in any case, be granted; but if the conviction is improper, the prisoner must be respited until a pardon be applied for. But in case pf misdemeanor after a conviction, a superior court may grant a new trial.” Vide also, 13 East, 416, note 6. Mr. Christian, in his notes to Black. Comm, lays down the law in the same terms. 3 Black. Comm. 388, note.

New trial denied.  