
    The People of the State of New York, Respondent, v. William Trimble, Appellant.
    (Argued January 21, 1892;
    decided February 9, 1892.)
    A defendant, when first arraigned on an indictment for grand larceny, pleaded separately and solely, as authorized by the Code of Criminal Procedure (§ 332), a previous conviction for the same offense. That issue was tried before a jury, who rendered a verdict “ for the People.” Defendant thereafter being permitted to plead over, without demanding the entry of a formal judgment or objecting to its omission, interposed a plea of not guilty. At the close of the testimony on the trial, defendant's counsel moved for an acquittal upon the ground, among others, of the omission to enter such judgment. Held, that the motion was properly denied; that conceding it to have been irregular not to have entered a formal judgment, it furnished no ground upon which the court could be required to direct a verdict of acquittal on the second trial, and could not be raised in that manner or at that stage of the proceedings.
    Also held, that defendant having accepted the order granted and availed himself of the privilege to answer over given by it, could not complain.
    Also held, that the order made might be regarded as a substantial verdict. (Code Grim. Pro. § 437.)
    Reported below, 60 Hun, 364.
    Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made April 1,1891, which affirmed a judgment convicting the defendant of grand larceny in the first degree, entered upon a Verdict of the Court of Sessions of Niagara county.
    The defendant, William Trimble, and his wife, Catharine Trimble, were jointly indicted for grand larceny in the first degree by a grand jury of the Court of Oyer and Terminer of Niagara county, at the February, 1890, term of said court, and were both arraigned upon said indictment and pleaded not guilty. It was then sent to the Court of Sessions for trial. March 10, 1890, the defendant and his wife were tried upon said indictment. The jury found the defendant, William Trimble, guilty, and his wife, Catharine, not guilty. March 17,1890, William Trimble was brought up for judgment upon said verdict, and by his attorney moved an arrest of judgment on the ground that the indictment was defective for not averring that the money taken had any value. His motion was granted; judgment was arrested for the reason stated, and the defendant ordered committed or be released upon giving $2,000 bail, to await the action of the next grand jury, to answer any indictment it might find against him for the same offense. At a Court of Oyer and Terminer held in and for said county, the grand jury presented another indictment against said defendant, William Trimble, accusing him of the same offense — grand larceny in the first degree. The defendant being arraigned thereon pleaded a former conviction, and that alone. The case was then sent to the Court of Sessions for trial.
    Further facts are stated in the opinion.
    
      Richard Crowley for appellant.
    The proceedings upon the trial, under the plea of former conviction, were irregular and erroneous, and tended to prejudice the defendant. (Code Crim. Pro. §§ 351, 355, 136, 137.) No judgment was pronounced or entered upon the verdict for the people. (Code Crim. Pro. §§ 137, 112, 153,171,172,173,180,181,182, 526.) Two separate and distinct juries were impaneled in this case to try one indictment. Two pleas were allowed to be separately interposed, and not in connection with a plea of guilty. This was error. (Code Crim. Pro. § 332; People v. Burch, 1 N. Y. S. R. 751; Whart. Cr. Pl. §§ 477, 478,488.)
    
      P. F. King, District Attorney, for respondent.
    The appeal should be dismissed. The General Term exercised its discretion and refused a new trial. Es determination is not reviewable in this court. (People v. Hovey, 92 N. Y. 554; People v. Boas, Id. 560 ; People v. Poucher, 99 id. 610.) Upon the plea of former conviction, the burden of proof to establish his plea was on the defendant. (People v. McGowan, 17 Wend. 386; Cancemi v. People, 18 N. Y. 129 ; People v. Saunders, 4 Park. Cr. Rep. 198.) A trial and conviction upon an indictment which is set aside upon defendant’s motion for or by reason of a defect in the indictment, is not a har to a new indictment and conviction thereon for the same offense. (Code Crim. Pro. § 340 ; People v. Cosborns, 13 Johns. 351; People v. Cignarale, 110 N. Y. 23 ; People v. Palmer, 109 id. 413 ; People v. Dowling, 84 id. 478.) The issue raised upon the plea of former conviction was properly tried before requiring the defendant to be tried upon the merits. (1 Russ, on Cr. 838; 1 Arch. Or. Pldgs. 371; People v. Burch, 5 N. Y. Crim. Rep. 29; People v. Cramer, 5 Park. Cr. Rep. 171; Code Crim. Pro. § 471.) The court had power to change its sentence before adjournment. (Miller v. Finkle, 1 Park. Cr. Rep. 374.) Whatever of a criminal nature is done by the wife in the presence of the husband is presumed to he done by his coercion. (People v. Ryland, 97 N. Y. 130 ; Seiler v. People, 77 id. 413; Goldstein v. People, 82 id. 233.) The evidence is sufficient to sustain the verdict. (People v. Bennett, 49 N. Y. 144; Murphy v. People, 4 Hun, 164; Poole v. People, 80 N. Y. 646; People v. Mondon, 4 N. Y. Crim. Rep. 119 ; People v. O'Neil, 6 id. 274; People v. Wiggins, 1 id. 294; People v. Bodine, 1 Den. 316; Bullard v. Peonall, 53 N. Y. 230; People v. Mangano, 29 Hun, 261; People v. Ricker, 7 N. Y. Crim. Rep. 518; People v. Jones, 3 id. 19.)
   Finch, J.

There is but one exception in this case which touches any material question. At the close of the testimony the prisoner’s counsel asked the court to direct a verdict of acquittal upon three grounds: first, that the evidence was insufficient to warrant a conviction of the larceny charged in the indictment; second, that the proof was insufficient to show that the prisoner committed the crime; and third, that after the trial of the issue raised by defendant’s plea of a former conviction and the verdict rendered by the jury thereon, no judgment was or has been entered therein. The court refused to give the direction asked and the defendant’s counsel duly excepted.

The first two grounds of the motion concerned the facts, and were based upon section 410 of the Code of Criminal Procedure, which permits the court, when it deems the evidence insufficient to warrant a conviction, to so advise the jury, who are required to decide accordingly. While the evidence of the larceny and of the guilt of the prisoner was wholly circumstantial, quite enough was shown to justify a submission of the issue to the jury, and we are not at liberty to review their verdict on the facts. (People v. Hovey, 92 N. Y. 554.)

The third ground of the motion is the one principally argued at our bar, but cannot serve to reverse the judgment for several reasons.

1. It furnished no adequate grounds-for granting the request actually made. The alleged irregularity arose in this manner. When the defendant was first arraigned he pleaded in bar a previous conviction for the same offense. Under the Code he was at liberty to do that either with or without an added plea of not guilty. (Code, § 332.) He chose to avail himself of that privilege, and by his plea raised separately and solely the issue of a former conviction. That issue was tried before a jury and the verdict rendered was “'for the people.” An order was thereupon made permitting him to plead over, and he did so, interposing the plea of not guilty. That issue was afterward tried and the prisoner convicted. If now we concede that it was irregular not to have entered a formal judgment upon the verdict of the first jury, such irregularity furnished no ground upon which the court on the second trial could be required to direct a verdict of acquittal. Ho proof was given pertinent to that result, and the Code does not authorize it as a ground for controlling the action of the jury. The question could not be raised in that manner or at that stage of the proceedings.

2. The omission of a formal judgment upon the first verdict was not objected to on behalf of the accused, nor was any demand made by him for its entry. If entered it must necessarily have been either a general judgment of conviction, which seems to be the claim of the appellant, or a judgment of respondeat ouster, the plea not sustained and the defendant must answer over. Certainly he cannot be heard to object that a formal judgment of conviction was not entered, for the error, if it was one, inured to his benefit. He accepted the order granted and availed himself of the privilege it gave him to answer over. He cannot now be permitted to complain that he should have been convicted when the issue of his guilt or innocence had not yet been tried.

3. But I think that the order made at the close of the first trial may be regarded as a substantial judgment entered upon the verdict. It gave the accused everything to which he was •entitled. The Code does not dictate what judgment shall be entered. The section to which the appellant refers as requiring upon the issue of a previous conviction or acquittal a judgment of conviction or acquittal (§ 442), relates wholly to the case of a special verdict in which the jury merely find the facts. The only possible and proper judgment when the plea of a previous conviction or acquittal is interposed is a judgment upon that plea, and must be either of acquittal because of the previous trial, or that the plea has not been sustained and the defendant must answer over. The judgment must follow the verdict and the form of that is prescribed by the Code. (§ 437.) That declares: “A general verdict upon a plea of not guilty is either ‘ guilty ’ or ‘ not guilty,’ which imports a conviction or acquittal of the offense charged in the indictment. Hpon a plea of a former conviction or acquittal for the same offense it is either ‘for the people’ or ‘for the defendant.’ ” It is evident that upon the latter verdict no judgment appropriate only to the former can be entered, and while the Code omits, to prescribe what in terms it shall be, the prior practice shows that it must be respondeat ouster. The record here shows substantially that.judgment. While it was not formal and took the shape of an order, it really existed, it secured to the prisoner his right, and he availed himself of it without objection. There is, therefore, no substantial basis even for the claim of a material irregularity.

The judgment should be affirmed.

All concur.

Judgment affirmed.  