
    The People, App’lt, v. Oscar F. Beckwith, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1886.)
    
    Uew trial—Order for, in criminal cases—Appeal from by people NOT ALLOWED—CODE GRIM. PRO., § 618.
    On an appeal by the people from an order granting a new trial in a criminal case, Held, that the granting of a motion for a new trial involves a decision of fact rather than law, and that when such a decision has been made favorable to the defendant, the people should have no right to appeal, unless such right is unquestionably given. That the right of the people to appeal is limited to the cases specified in Code Grim. Pro., § 518, and that an order for a new trial is not an order in arrest of judgment.
    
      A. B. Oardinier, for appl’t; L. F. Longley, for resp’t.
   Learned, P. J.

Section 462 of the Code of Criminal Procedure states what a new trial is; and the following sections, down to and including section 466, declare when it can be granted and for what causes. Chapter 65 of the Laws of 1882 amended section 466 so that in case of a sentence of death, the application may be made before execution and to any justice of the supreme comí or special term thereof of the judicial department where the conviction was had.

The subsequent section 518 declares in what cases the people may appeal. These are two, and no other: First, upon a judgment for the defendant on a demurrer to the indictment. Second, upon an order of the court arresting the judgment.

Both of these, it will be seen, are questions of law. The first is evidently so. And a reference to section 461, defining a motion in arrest of judgment, shows that such a motion raises only questions of law. For we have no doubt- that the second subdivision of section 518 refers solely to motions in arrest of judgment.

Now, inasmuch as the Code, after careful provisions as to applications for new trial above referred to, proceeded to specify by section 518 the cases where appeals might be taken by the people, and omitted to mention orders for a new trial, we are satisfied that no appeal in such cases is allowed. And this is consistent with general principles.

The granting of a motion for a new trial involves a decision of fact rather than of law; an exercise of sound judgment upon matters of fact. When such a decision has been made, favorable to the defendant, it is somewhat like the verdict of a jury in his favor. The people should have no right to appeal unless such right is unquestionably given.

The people, however, urge that on the affirmance of the judgment by the court, of appeals, the proceedings were remitted to the supreme court. And they further urge, that by sections 548 and 549 the record is hi this court, and all orders are to be made here which are necessary. They further urge that,, as the order for a new trial was made by a justice of this court, an appeal lies to the general term, substantially as an appeal would lie in a civil action.

But we do not agree with this view. This action is still a criminal action. Notwithstanding the new trial was granted after affirmance by the court of appeals and after the cause had been remitted here, still the motion was made under section 466 of the Code of Criminal Procedure as now amended. An appeal, if it lies at all, must be authorized by the provisions of that Code.

It is further urged by the people, that section 518 uses the words: “An appeal to the supreme court,” and hence it does not apply to an appeal in that court. But the answer is, that if the appeal is not authorized by this section it is not authorized by any.

Section 485 authorizes the clerk to include in the judgment roll a copy of the minutes upon a motion for a new trial. And section 517 gives an appeal to the defendant from the judgment, including the proceedings forming part of the roil. But such appeal is not given to the people. And it may be doubted whether even the defendant could bring up by appeal an order denying after judgment a motion for a new trial. A majority of the court were of the opinion that such an appeal would not lie, in the case of People v. Hovey (37 Sup. Ct., N. Y. [30 Hun], 354). At any rate, there is nothing authorizing an appeal by the people.

The people also urge that the order appealed from practicaHy arrests judgment. But the phrase, “a motion in arrest of judgment,” has long been familiar. And it is defined in accordance with its old meaning in section 467, to which we have already referred. It is evident that it is to such a motion only that section 518, subdivision 2, refers. -

The appeal is dismissed.

Bookes and Landon, JJ., concur.  