
    People of the State of New York, Resp’ts, v. Egbert Palmer, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 5, 1888.)
    
    1. Criminal law—Effect of appeal—Waiver of constitutional protection AGAINST SECOND TRIAL—NEW YORK CONSTITUTION, ART. 1, § 6.
    If a defendant takes an appeal from the judgment of conviction he must be deemed to ask for a correction of errors made upon his trial, and to waive his constitutional protection against being twice put in jeopardy for the same offense and of necessity he must be deemed to ask for a new trial. If a new trial is ordered, he must go back and stand his trial under the indictment as though he had never been tried.
    3. Same—Effect of reversal of judgment and granting a new trial.
    The defendant was indicted for an assault in the first degree. He was convicted of an assault in the third degree and appealed from the judgment of conviction. The appellate court reversed the judgment on questions of law only, and ordered a new trial. The defendant claimed that as he was convicted of assault in the third degree, he was thereby acquitted of assault in the higher degrees and could not be again tried under the indictment, and that upon the reversal of the judgment of conviction, there was nothing left but a charge of assault in the third degree, Held, that the effect of the defendant’s appeal was merely to combine the trial under the indictment in the appellate court, and that on reversal of the judgment of conviction, the judgment as well as the record of the former trial had been annulled and expurged by the judgment of the appellate court, and they were as though they never had been, while the indictment was left to stand as to the crime of which the prisoner had been charged and convicted, as though there had been no trial.
    3. Same—When former acquittal can be pleaded.
    Where the result of the former trial was in effect an acquittal of another crime charged in the indictment, he may plead that result in bar of further prosecution for that crime.
    The defendant was indicted in December, 1885, for an assault in the first degree, at the Greene county oyer and terminer, and was tried before the court of sessions. He was convicted of an assault in the third degree, and appealed to the supreme court, at general term, third department, from the judgment of conviction. That court reversed the j'udgment on questions of law only, and ordered a new- trial, remanding the action to the court of sessions for further proceedings. From the general term j'udgment the defendant appealed, so far as it ordered a new trial, and remitted the action to the court of sessions. He appealed, also, from an order of the general term, which denied his motion to amend its order of reversal, etc., so as that it should state that defendant’s application to be discharged on the reversal of the judgment was denied; that the defendant did not, upon his appeal, ask for a new trial, and that the new trial is granted only as to an assault in the third degree.
    
      Sidney Crowell, for app’lt; Frank H. Osborn, for resp’ts.
    
      
       Affirming 8 N. Y. State Rep., 499.
    
   Gray, J.

The appellant contends that, as he was convicted of assault in the third degree, he was thereby acquitted of assault in the higher degrees, and cannot be again tried under the indictment, and that, upon the reversal of the judgment of conviction, there was nothing left but a charge of assault in the third degree; of which charge the oyer and terminer had not jurisdiction. While that court had jurisdiction of the offense charged in the indictment, a charge of assault in the third' degree seems exclusively cognizable, in the first instance, by the court of special sessions; except a certificate that it should be prosecuted by indictment be allowed by the county judge or a supreme court justice. See Code Crim. Proc., §§ 21, 22, 56 and 57.

The question brought before us by this appeal is whether when the defendant, having been found guilty and sentenced for a lower degree of the crime charged in the indictment, has appealed to the supreme court, upon exception, and has succeeded in reversing the judgment, and a new trial is ordered and the cause remanded to the trial court for further proceedings, he can be tried again under the indictment, without regard to the former trial and conviction. Can he plead them in bar of another trial for the offense charged in the indictment ? The question is of the gravest importance to the administration of justice under the laws of this state, which provide for the punishment and trial of offenders. It involves the construction and validity of certain sections of the Penal Code and of the Code of Criminal Procedure, which were enacted by the legislature in respect of appeals and new trials. If the reasoning of the prisoner’s counsel is correct, then the defendant’s appeal based on errors, excepted to upon his trial, must result, where not in affirmance, in his discharge. And in all other cases the prisoner would take his appeal from a judgment of conviction of a lesser degree of the crime charged, with the assurance that if he could secure a reversal of the judgment and a new trial, he could not fare worse than before in any event. He would risk nothing, and he might wholly escape punishment for the offense of which he stood charged.

Whatever conflict of opinion existed in the courts, prior to the adoption of the Code of Criminal Procedure, as to a prisoner’s position, upon a new trial being ordered, we hold has been settled and removed by the passage of the act of the legislature. Much of the doubt and confusion surrounding the question as to the effect of a new trial seems due to a mistaken view of the operation of the constitutional inhibition against subjecting a person to be twice put in jeopardy for the same offense. (Const, of N. Y., Art. 1, sec. 6.) That provision has been the subject of much discussion in the reports and in text books. To enter into it I do not believe to be necessary to the end we have in view, in deciding this case upon principle and in construing the statute. Its incorporation into the Federal constitution and into the constitutions of states was hut the recognition and the application,' in a stronger form of expression, of the common law doctrine. In my opinion, nothing has been done in the legislative enactment of the sections of the code under consideration to subvert the constitutional provision.

That provision in no wise has the effect of restricting the power of the legislature to enact rules of procedure in criminal cases, so long as the enactment does not violate the protection guaranteed by it to a party. In King v. Missouri (107 U. S., 221), it was held that any law passed after the commission of an offense which, in relation to that offense, or its consequences, alters the situation of a party to his disadvantage, was an ex post facto law. It was said by Mr. Justice Miller that the law of Missouri was that when a conviction was had of murder in the second degree on an indictment charging murder in the first degree, if the conviction were set aside the defendant could not again be tried for murder in the first degree. He added, at page 225, as follows: “There is no question of the right of the state of Missouri, either by her fundamental law or by an ordinary act of legislature, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that as to that offense it is ex post facto.” In that case the constitution of Missouri was amended after the homicide. It abrogated the old rule and provided that when a conviction for a lower degree of the crime upon an indictment for a higher,- was lawfully set aside, the conviction for the lower degree did not operate as an acquittal of the higher. After the amendment went into effect the defendant’s plea of murder in the second degree was made. He was sentenced to twenty-five years imprisonment That sentence was set aside, and he was tried again, and against his protest and refusal to plead over, was convicted of murder in the first degree.

It was on those facts that the United States supreme court held the constitutional amendment ex post facto as to the defendant: but the right of the state was recognized to abolish a previously existing rule as to commission of crimes and the trial of the person charged with the com • mission, and to create a new rule of procedure.

The condition and rights of a person tried and convicted for the commission of a crime, have been frequently the subject of legislation. The right to review by writ of error or by appeal, did not belong to the prisoner at common law. Until the third of Queen Anne, a writ of error in any criminal case was held to be merely ex gratia. In the Aylesbury Case (1 Salk., 103), arising in that year, it was held that it must be granted ex debito justitice, except in cases of treason or felony. But Lord Mansfield said (4 Burr, 2550) in respect of that decision, that it meant the writ should be granted where there was a probable error, and that “ it cannot issue now without a fiat from the attorney-general, who always examines whether it be sought merely for delay or upon probable error.” In 1801, it was enacted by the legislature of this state, that writs of error, in criminal cases, not capital, shall be considered as writs of right and issue, of course, subject to the regulations provided by law. Laws 1801, chapter 25. The law continued thus as to writs of error, until the adoption of the Revised Statutes, when the remedy by bill of exceptions was extended to criminal cases, in the same cases, and in the like manner as in civil cases. It was there provided that in the trial of any indictment exceptions to any decision of the court may be made by the defendant, and a bill thereof shall be settled and filed, and returned upon a writ of error, or upon a certiorari. 2 R. S,, 736, § 21, (Edm. ed.). By the adoption of the Code of Criminal Procedure, writs of error and of certiorari in criminal actions, were abolished, and thereafter the only mode of reviewing a judgment or order in a criminal action was by appeal; which may be taken as a matter of right by the defendant from the judgment of conviction. Code Crim. Proc., §§ 515, 517, 520. Section 36 of the Penal Code, provided that “ where a prisoner is acquitted or convicted, upon an indictment for a crime, consisting of different degrees, he cannot thereafter be indicted or tried for the same crime, in any other degree, etc;” but that section has reference only to cases where the prior judgment of conviction has remained unreversed. This is made evident from a reading of the sections of the Code of Criminal Procedure. They serve to show plainly that the legislature contemplated no such result as is claimed by the appellant’s counsel in the event of a new trial being ordered, upon a judgment reversing the judgment of conviction. Section 455 of that Code preserved to the defendant his right, which previously existed, to take exceptions to a decision of the court upon a matter of law, by which his substantial rights are prejudiced.

Section 543 provides that ‘ ‘ upon hearing the appeal the appellate court * * * must either reverse, or affirm the judgment appealed from, and iij cases of reversal, may, jf necessary or proper, order a new trial.” Section 464 provides that “ the granting of a new trial places the parties in the same position as if no trial had been had ” and by section 544 it is provided that “when a new trial is ordered it shall.proceed in all respects as if no trial had been had.”

These provisions of the statute are clear and explicit, in no wise contravene the letter or the spirit of the fundamental law, and their meaning should not be perverted. It would be a grievous miscarriage of justice and the intent of the law would be thwarted if it should be held that a reversal, upon a previous appeal, for errors of law upon his trial, had the effect of putting it out of the power of the people to further try him under the indictment, when his guilt might be competently established. We do not think such is the result. The effect of the defendant’s appeal is merely to combine the trial under the indictment in the appellate court and if reversal of the judgment of conviction follows, that judgment as well as the record of the former trial have been annulled and expurged by the judgment of the appellate court and they are as though they never had been; while the indictment is left to stand as to the crime, of which the prisoner had been charged and convicted as though there had been no trial. Only where the result of the former trial was in effect an acquittal of another crime charged in the indictment, may he plead that result in bar of further prosecution for that crime.

If the defendant takes an appeal from the judgment of conviction, he must be deemed to ask for a correction of errors made upon his trial and to waive his constitutional protection. Of necessity he must be deemed to ask for a new trial. By taking the appeal to the supreme court, power is conferred upon that court to continue and review the prisoner’s trial, and upon a reversal, to pronounce such judgment as it deems just within the terms of the statute. It may affirm the proceedings below, or reverse and either order a new trial or discharge the prisoner. That no constitutional right of the party is invaded must be a self evident proposition; or it is a privilege which is granted, of which he may, but not must, avail himself. I think that the sounder doctrine, which recognizes a distinction between jeopardy incurred with the consent of the prisoner and jeopardy incurred without that consent.

We hold the jurisdiction of the oyer and terminer to try the defendant again under his indictment is not affected. The offense charged was within its jurisdiction, and the judgment of the trial court having been reversed for errors committed on the trial, the case stands as though there had been no trial. The verdict is expunged and there is no determination in regard to the matter but the judgment of the appellate court. The defendant must go back and stand his trial under the indictment as though he had never been tried; for he himself has renounced the bar which was effective to prevent his further trial for the offense charged.

The judgment appealed from should be affirmed.

All concur.  