
    The People v. John Y. McKane.
    (Supreme Court—Herkimer Chambers,
    February, 1894.)
    Where an application for a stay on appeal in a criminal case has been carefully considered and denied by a justice of the district in which the conviction was had, a similar application should not be granted by a justice of another and distant district.
    Upon an ex parte application, counsel for the defendant have submitted affidavits verified February 27,1894, made by Hr. Roderick; the original order made by Justice Cullen February nineteenth, which ordered a hearing before him on the twenty-third of February, with a stay of the execution of the judgment until the hearing and decision of the application; a copy of the opinion rendered by him denying the application for a certificate; also, a copy of the indictment and the brief used by counsel on the argument of that motion.
    
      George W. Roderick and A. M. Mills, for defendant.
   Hardin, J.

Chapter 1 of title 11 of the Code ©f Criminal Procedure authorizes the defendant to appeal from the jndgment rendered against him as a matter of right.” See Code Crim. Proc. § 520. Section 527 provides that a stay of the execution of the judgment shall be had provided there is filed a certificate of the judge who presided at the trial, or of a justice of the Supreme Court, that in his opinion there is reasonable doubt whether the judgment should stand, but not otherwise.”

In People v. Wentworth, 3 N. Y. Crim. Rep. 111, I had occasion, to some extent, to state the rules which should be applied upon an application for a certificate.

The defendant was indicted with three inspectors of election forming the registry board of the .first election district in the town of Gravesend, for violation of the Election Law, found in chapter 693 of the Laws of 1892, as amended by chapter 692 of the Laws of 1893. He was charged with a felony and convicted. and judgment rendered against him on the 19th day of February, 1891, and sentenced to imprisonment in the states prison in Sing Sing for the term of six years. He is, therefore, not entitled to submit an application for a certificate mentioned in section 527 of the Code of Criminal Procedure “ until such notice as the judge may prescribe has been given to the district attorney of the county where the conviction was had of the application for the certificate.” His counsel ask that a notice shall be prescribed and thereupon given to the district attorney of this application, and that in the meantime a stay of the execution of the judgment should be awarded, and that a hearing should be allowed in pursuance of the notice at which the record of the trial may be presented and the rulings and charge and evidence be examined. From the papers presented on this application it appears that a similar application was presented to Judge Cullen, one of the justices of the judicial district where the trial took place, and that an extensive argument was had before him by the learned counsel for the defendant, as well as by the counsel for the People, and that he took the case into consideration and deliberately delivered a very careful and clear opinion covering the numerous questions presented to him in the application for a certificate, and in pursuance of the conclusion reached in that opinion he denied the application for a certificate. That decision made by him under those circumstances remains in full force and virtue. When the application for a stay of proceedings was presented to me in 1871 by the defendant’s counsel in People v. Tweed, 67 Barb. 196, in the course of the opinion I said: “ Indeed, in cases of a criminal character, which have been had before an Oyer held by me, such applications have uniformly been made, and no writ with a stay of proceedings has been granted by another officer after such conviction. Such course is conducive to harmony; and common courtesy among judicial officers is promoted by it. This consideration should have its force in this case, inasmuch as this application is made outside of the judicial district in which the trial took place.”

Although it is not in terms provided in section 527' of the Code of Criminal Procedure, or in section 529, that an application to one judge only shall be made for a certificate, it is to be observed that the sections do not in terms authorize applications to be made to several and successive judges.

Judge Ingraham, in Loring v. United States Company, 30 Barb. 646, said that some time since it was held in the first district that the decision of another court of co-ordinate jurisdiction should be respected and regarded as controlling until reversed.

In Harris v. Clark, 2 Barb. 101, Gbidley, J., observed : “We believe in a rigid adherence to the doctrine of stare decisis. We regard it as necessary to preserve the certainty, the stability and the symmetry of any system of jurisprudence.” Although according to the precedents the doctrine of sta/re decisis is not applied with all its vigor to non-enumerated motions, yet it is founded in principle that is wholesome to apply where efforts are made to obtain different results upon similar questions or the same case by presenting such questions in the case to different judges of co-ordinate powers and jurisdiction. It appears the defendant had the benefit of a very extended trial in which he was represented by able counsel, which was presided over by a learned justice of this court, apparently with care and ability, and he has had the benefit of a full and careful investigation of the rulings, decision and evidence taken upon the trial by another learned judge of the Supreme Court, and.the presumption that arises that the judgment is right, as well as the presumption that the certificate was properly refused, arising from the fact that the judge who heard it made a careful investigation of all the leading questions presented to him, as evidenced by the opinion submitted upon this application, to which may be added the circumstance that the application now pending is made'outside of the district where the trial took place and outside of an adjacent district, and to a judge whose services, are required in discharge of his duty as a member of the General Term of the fourth judicial department, and who, therefore, cannot well spare the time necessary to review the trial, which required the taking of some 4,000 pages of evidence, or review the decision made thereafter by the judge who heard a similar application, render it proper that the present application should be denied, and that the stay of execution asked for should be refused.

Application denied.

Stay refused.  