
    The People, Resp’ts, v. Nicola Trezza, App’lt. The People ex rel. Nicola Trezza, App’lt, v. A, A. Brush, Agent and Warden, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 20, 1891.)
    
    1. Appeal—Hew trial—Criminal law.
    There is no statute provision authorizing an appeal from an order denying a new trial except as incident to an appeal from the judgment, and hence an appeal will not lie in a criminal case from an order denying a new trial made after the roll is made up and the final affirmance of the judgment.
    3. Homicide—Sentence.
    As there is but one mode of execution in this state, a sentence that the defendant be put to death “in the mode, manner and way, and at the place by law prescribed and provided,” is sufficiently definite and specific.
    3. Same—Appeal—Stay.
    An appeal from a conviction in a capital case stays the judgment of death only, and not that part of the judgment providing for the custody of the defendant between his removal to the state prison and his execution.
    Appeal from orders of the supreme court, general term, second -department, affirming orders denying stay of proceedings and dismissing writ of habeas corpus.
    
    
      A. H. Dailey, for app’lt; John F. Clarke, asst. dist. atty, for resp’t.
    
      
       Affirming 39 N. Y. State Rep., 879.
    
    
      
       Affirming 39 N. Y. State Rep., 877.
    
   Andrews, J.

The appeal in the case first entitled is from an ■order of the general term of the second department, affirming an order made by Justice Calvin B. Pratt, denying an application of Trezza for a stay of proceedings pending an appeal by him to the general term of the supreme court from an order of the court of .sessions of Kings county, denying his motion for a new trial on the ground of newly discovered evidence. Trezza was tried, convicted and sentenced at the court of sessions of Kings county for the crime of murder in the first degree. He appealed from the judgment to the court of appeals, under the statute, chap. 493 of the Laws of 1887, where the judgment was affirmed. The motion :for a new trial was made after judgment of affirmance had been rendered. The motion to stay proceedings was denied on the ground that there is no statute authorizing an appeal from an order denying a motion for a new trial, under the circumstances of this case. The refusal of the stay was plainly correct if no right to appeal from the order refusing a new trial in such case existed.

The right of appeal in criminal bases is statutory only, and in the absence of a statute authorizing an appeal in a given case, no appeal can be taken. The court in which the trial of an indictment is had has power to entertain a motion for a new trial on the ground of newly discovered evidence, Code of Grim. -Pro., §§ 463, 465, and may grant or refuse it. The Code of Criminal Procedure, title XI, defines and regulates the right of appeal in criminal cases. Section 517, as originally enacted, was as follows : “Section 517. An appeal to the supreme court may be taken by the defendant from the judgment on a conviction after indictment, and upon any appeal any actual decision of the court in an intermediate order or proceeding forming a part of the judgment, roll, as prescribed in § 485, may be reviewed.” By § 485, a copy of the minutes of any proceedings upon a motion for a new trial is required to be annexed to and forms a part of the judgment, roll. Section 517 was amended by chap. 493 of the Laws of 1887, by providing that when the judgment is of death, the appeal must be taken direct to the court of appeals, and that court was authorized to review any intermediate order or proceeding forming part of the judgment roll, as the supreme court was authorized to do by the original section.

It will be observed that the section only authorizes a review of intermediate orders and proceedings in connection with an appeal fi’om the judgment, and when they are embodied in the judgment roll. There is no statute provision authorizing an appeal from an order denying a new trial, except as incident to an appeal from the judgment. It is said that the legislature could not have intended to permit an appeal from such an order in that case, and to deny it where the application for a new trial is made after final judgment of affirmance, and denied, when it would be too late t» make the proceedings a part of the judgment roll. The legislature seemed to assume that such proceedings would in all cases be taken before an appeal from the judgment. It may be that the failure to provide for an appeal in such a case as this was casus omissus. But the courts must be guided by the law as it is, and cannot give an appeal where none is given by the statute, and there is no statute authorizing an appeal from an order denying a new trial made after the roll is made up, and the final affirmance of the judgment. The contention that the legislature in abolishing writs of error and certiorari, as was done by § 517, did not intend to take away any remedies formerly obtainable in those proceedings, has no force, for the reason that neither a writ of error nor certiorari would bring up for review an order denying a motion for a new trial made on the ground that the verdict was against the weight of evidence, or on the ground of newly discovered evidence. Shorter v. People, 2 N. Y., 193 ; Manke v. People, 74 id., 415 ; People v. Casey, 72 id., 393; Hunt v. People,, 76 id., 89 ; People ex rel. Folk v. Board of Police, etc., 69 id., 408 ; People ex rel. S. & U. H. R. R. Co. v. Betts, 55 id., 600.

There was no error in the order of the general term, affirming the order of Justice Pratt refusing a stay of proceedings, and it should, therefore, be affirmed.

The appeal in the second case above entitled is from an order of the general term, affirming an order of Mr. Justice Cullen dismissing a writ of habeas corpus granted upon the application of Trezza for his discharge from imprisonment in the state prison at Sing Sing, and remanding him to the custody of the agent and warden.

When the writ was granted Trezza was held by the agent and warden under a warrant issued by the court of sessions of Kings -county, dated March 6, 1891, reciting his conviction on an indictment charging him with the crime of murder of one Alexander Salvano in that county on the 6th day of April, 1890; his trial, conviction and sentence to the punishment of death, and that he be delivered by the sheriff within ten days from the date of his sentence to the said agent and warden of the state prison at Sing Sing, and that said agent and warden within the week beginning Monday the 21st of July, 1890, execute him, the said Trezza, by putting him to death in the mode, manner and way, and at the place by law prescribed and provided; ” that Trezza on the ,11th of June, 1890, appealed from the judgment to the court of appeals, which court affirmed the judgment February 24, 1891; that Trezza was re-sentenced by the court of sessions of Kings -county to be executed during the week beginning Monday, the 20th day of April, 1891. The warrant then proceeds to command the agent and warden, to whom it was addressed, to cause .the said judgment and sentence to be executed within the week last mentioned, “ by putting him, the said Nicola Trezza, to death in the mode, manner and way, and at the place by law prescribed and provided.”

It appears that after the appeal taken by Trezza, he was taken to Sing Sing prison and there detained in close confinement, where he remained until he was taken to Kings county for re-sen-tence, and was then remanded again to the custody of the agent and warden of the state prison.

There are two grounds urged for the discharge of Trezza:

First. That the sentence did not specify the mode in which the death should be inflicted, viz.: that provided by the statute of 1888, “ by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict be dead.” We think there is no ground for this contention. The agent and warden was commanded to put the convict to death in the mode provided and prescribed by law. The recital in the warrant showed that the convict was convicted for murder, committed after the statute of 1888 was passed, and therefore was subject to that statute. The sentence was death. This was not left to inference, and the warrant commanded the punishment to be inflicted. The agent and warden was required to inflict it in the mode provided by law, ■and this law ha must be presumed to have known. The court presumably could not prescribe by any measurement the intensity -of the current of electricity required to produce death, or specify the exact time the current should be continued. These things must of necessity be left to the judgment of the agent or warden. We think the warrant was sufficiently definite and specific. It has undoubtedly been the practice when death by hanging was the-mode of punishment prescribed in cases of convictions for capital offenses to specify this in the sentence and judgment. This practice was derived from the common law which prescribed different modes of death in different cases and was adopted to distinguish this mode of execution from that in cases of conviction for high treason and other atrocious crimes, where the judgment directed. that the condemned person should be drawn to the place of execution, embowelled alive, and then be beheaded and quartered. 4Black. Com., 376; 2 Hale’s P. C., 412. But here, where but. one mode of execution exists, no greater particularity than that employed in the judgment in question seems tobe necessary. See. People v. Bork, 96 N. Y., 188 ; People ex rel. Van Houton v. Sadler, 97 id., 146; Weed v. People, 31 id., 465. The objection is, we think, untenable.

The second ground upon which the discharge of Trezza is' claimed is that he has been once punished. The argument is that, the appeal to the court of appeals after the first sentence stayed both the execution of the direction that Trezza should be kept in solitary confinement until the execution of the death penalty, as-well as the part of the sentence that he be put to death, but that, as his solitary confinement in the state prison was-continued pending the appeal, and that as was held in the case In re. Medley, 134 U. S., 160, the sentence to solitary confinement accompanying the death sentence is a part of the punishment, he has suffered that part once and coulcl not lawfully be resentenced to close confinement, to be followed by death.

If the counsel is right in respect 'to the operation of the appeal, as staying both a continuance of the close confinement and the execution of the death penalty, then it simply follows that Trezza ■was unlawfully imprisoned and the usual remedy for the illegal restraint was open to him. This restraint was in this view not the act of the law, but the illegal act of the agent or wr arden. The convict could not elect to submit to it and then treat it as a, satisfaction of the sentence. But we agree with the learned judge-before whom the proceeding "was taken, that by the true construction of § 528 of the Code of Criminal Procedure, as amended in 1887, an appeal to this court from a conviction in a capital case stays the judgment of death only, and not that- part of the judgment providing for the custody of the defendant between his removal to the state prison and his execution. This would seem to be all that a convicted criminal could of right demand, and an. opposite construction would occasion much inconvenience. Whether an appeal in a criminal case stays the execution of the sentence depends upon the statute. It not infrequently happens that the execution of a sentence to imprisonment continues, notwithstanding an appeal. The convict, if he obtains a reversal of the judgment, and is again convicted on a second trial, may be sentenced to a new term of imprisonment, and the court is not, •bound to regulate the second sentence in view of the fact that the convict has already suffered imprisonment under the first sentence. The resentence in the present case was rendered necessary by reason of the fact that Trezza, by his own act in his own interest, had by his appeal prevented the execution of the death penalty at the time fixed by the first sentence.

The construction of § 528 is not entirely clear, but the construction we have given is justified by the language and it probably accords with the intention of the legislature.

We think the order in this case should be affirmed.

All concur.  