
    DEIDERICK HILDERBRAND, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    
      Larceny—clerk's entry of judgment—what should contain.
    
    A treasury note of the denomination of fifty dollars was handed to the plaintiff in error to take ten cents out of it, for the payment of a glass of soda-water; he appropriated the entire amount of the note to his own use ; held, that upon proof of these facts he could be convicted of larceny.
    The return stated that the prisoner appeared in his own proper person and was in due form of law tried and convicted ; held, that as it nowhere stated that he left the court after he so appeared, the presumption is that he remained and was present during the whole of the trial.
    The clerk’s entry of the judgment pronounced, is not required to state what succeeded the verdict and preceded the sentence, and it need not appear from it that the prisoner was asked, before sentence, whether he had anything to say why the sentence should not be pronounced upon him for the offense of which he had been convicted.
    To review the conviction and judgment in criminal cases, requires a formal judgment record to be made, signed and filed, and if that is not shown by the return to have been done, the court has nothing before it on which the case can be properly considered.
    When a record shall be made, signed and filed as the statute prescribes, and it shall not appear from it, that this inquiry was made of the defendant before he was sentenced, then it may be necessary, for that reason, to reverse the judgment pronounced, but not the conviction.
    Weit of error to the Oourt of General Sessions of the city of New York, to review the judgment of that court entered upon the conviction of the plaintiff in error of the crime of grand larceny. The facts appear in the opinion. The court charged the jury that if they were satisfied that the complainant handed to the prisoner a fifty-dollar bill, for him to change and take ten cents out of it, and return to him the balance of the fifty dollars; and if, when the bill was so delivered to the prisoner, he understood that the bill had been so handed to him for the sole and only purpose of having it changed, and taking out ten cents, and delivering the balance of the money to the complainant, and that, when the prisoner took the bill, he intended to convert the balance, over and above the ten cents, to his own use, they should convict the prisoner of grand larceny.
    
      Wm. F. Kintzvng, for the plaintiff in error.
    
      B. K. Phelps, District Attorney, for defendants in error.
   Daniels, J.:

The plaintiff in error was convicted of the crime of grand larceny, upon evidence showing that a treasury note of the denomination of fifty dollars, was handed to him to take ten cents out of it for the payment of a glass of soda water. Instead of doing that, he appropriated the entire note to his own use, and the court charged the jury that they could convict of larceny upon this proof.

An exception was taken to that portion of the chargé, which in effect was the only exception in the case; for those previously taken, simply presented the same point in a different form.

That the plaintiff in error could properly be convicted of larceny on proof of those facts, is a proposition which the authorities have settled against the prisoner. It is also urged, in the prisoner’s behalf, that it does not appear that he was present during the trial. The return states that he appeared in his own proper person, and was in due form of law tried and convicted. As it is nowhere stated that he left the court after he so appeared, the presumption is that he did remain and was present during the whole of the trial; certainly, no presumption to the contrary can be entertained, as long as nothing appears to support such an inference.

The remaining objection, taken in behalf of the prisoner, is made upon the omission of the return to show that he was inquired of, before sentence, whether he had anything to say why the sentence should not be pronounced upon him for the offense of which he had been convicted by the jury.

From the return made to the writ of error, it cannot be determined whether this requirement of the common law was observed in this case or not. No record of the proceedings is contained in the case, showing what did transpire between the conviction and sentence. All that has been brought before the court by the writ of error, after the verdict, is the clerk’s entry of the judgment pronounced. That entry is not required to state what succeeded the verdict and preceded the sentence, and if made as it is required to be, could not show whether this inquiry was made or not. What the entry is to contain, is prescribed by the statute of the State. It is required to contain a brief statement of the offense for which the conviction shall have been had, abridged to such an extent from the indictment as to be sufficient to maintain the averments relating to it, necessary to be made in an indictment against the same person for a second offense, with the judgment pronounced upon the conviction. Nothing but the conviction, with the description of the offense for which it may have been had, is required to precede the entry of the judgment pronounced, while the inquiry mentioned.must follow the conviction and precede the judgment.

And it is just what the statute has nowhere required to be entered by the clerk in his minutes; consequently, it is a circumstance which, in the ordinary course of the proceedings prescribed by the statute, could not properly appear by the entries required to be made by the clerk in his minutes.

If the judgments pronounced in criminal cases, are to be reversed for the reason that a return, like the present one, does not show whether this inquiry was made or not, very few criminal judgments can be maintained, even though, in all of them, the most scrupulous care may have been taken, to conform strictly to this requirement of the common law.

The purposes for which the clerk is required to make the entries in his minutes, are mentioned in the statute, and that of returning them as the record in this case, in answer to a writ of error, is not among them. These purposes are to enable the clerk to transmit a proper statement of criminal convictions and judgments to the secretary of state, to supply the sheriff with a proper transcript to convey the convict to prison, and to constitute evidence of the conviction and sentence where no record of the judgment has been signed and filed ; while. the judgment, the writ of error issues to review, is that which is rendered upon the indictment—the complete judgment in the case. This is evident from the circumstance that the prisoner is given the right to require the district attorney to make up a record of the judgment, and in case he fails for ten days afterward to do so, the defendant himself may cause the same to be made up, signed and filed. There would be neither necessity for, nor propriety in such a provision, if the judgment could be reviewed on the clerk’s entries. And no other object can have been designed to have been subserved by its enactment, than to place the proceedings in such a form as would enable the defendant to have them reviewed by writ of error. That the entries of the clerk are not designed to be such a record, is further evident from the section providing when the minutes may be used as evidence; for, by the express terms used, that can only be done in cases where no record of the judgment has been signed and filed.

The bill of exceptions provided for, also, is to be returned upon writ of error, as authorized at the time of the enactment of the statute, in personal actions. And that could only be done at that time, in those actions where a formal judgment record had been made, signed and filed.

The entire mode of proceedings, prescribed for reviewing the conviction and judgment in criminal cases, requires a formal judgment record to be made, signed and filed; and if that is not shown by the return to have been done, the court has nothing before it on which the case can be properly considered. To allow the practice, adopted in the present instance, to be substituted for that devised by statute, would be dangerous in the extreme. Certainly a large majority of the felons in the ‘State prisons of the State would be set at liberty under it, if the clerk omitted from his minutes, what the law does not require to be entered in them, a statement of the circumstance that the defendant was asked whether he had anything to say why sentence should not be pronounced upon him, and that, too, when in all the cases, the inquiry may, in fact, have been made.

In the absence of a record, the court has nothing before it, on which it can say whether the objection now under consideration, is well founded or not. When a record shall be made, signed and filed, as the statute prescribes, and it shall not appear from it that this inquiry was made of the defendant before he was sentenced, then it may be necessary, for that reason, to reverse the judgment pronounced, but not the conviction.

In that event, as the conviction was in all respects regular, the defendant would have to be brought again before the court, in order to have the inquiry made of him, before the sentence, whether he has anything to say why sentence should not be pronounced; for, where the conviction is regular, that is all the defendant can be entitled to for the purpose of redressing the error, under the terms of the statute relating to these cases.

But, as no record has been made by which the point can now be bi'ought before the court for its consideration, the judgment entered in the clerk’s minutes can be neither affirmed nor reversed, but the writ of error be dismissed.

Davis, P. J., and Donohue, J., concurred.

Writ of error dismissed. 
      
       People v. Call, 1 Denio, 120; People v. McDonald, 43 N. Y., 61; Reg. v. McKale, 11 Cox C. C., 32.
     
      
       Stephens v. People, 19 N. Y., 549.
     
      
      
         3 R. S., 5th ed., 1031, 1032, §§ 5 and 8.
     
      
       3 R. S., 5th ed., 1032, 1033, §§ 7, 12, 13, 14.
     
      
       3 R. S., 5th ed., 1031, § 4.
     
      
       3 R. S., 5th ed., 1032, § 12.
     
      
       Id., 1029, § 29.
     
      
       Laws of 1863, 406.
     
      
       Weed v. People, 31 N. Y., 465.
     