
    *Lavett against The People. Eggleston against The Same.
    NEW YORK,
    May, 1827.
    A writ of error, at the suit of a citizen, in criminal cases, though not capital, cannot issue without the flat of the attorney general.
    But should he refuse his fiat, in a proper case for error, the supreme court will order him to grant it. A writ of error will not, per se, stay execution in a criminal cause. Per Biker, recorder. See note (a.) But the court below will, on motion, stay execution till judgment be given on the writ of error. Id. note («).
    IN these causes, motions were made in behalf of the people, to cj~uash the writs of error, for irregularity.
    
    
      
      *H. Maxwell, for the motion.
    
      E. Bennett, contra.
    
      
       The following is the opinion of the court below, as delivered by Mr. Itecorder Rn~a, on receiving the writs of error:
      In these causes, writs of error have just been delivered to the court. It is at the moment that the sentence of the law, after conviction, is about to be carried into effect against the prisoners. The writ of error is presented to this court to stay its proceedings. It has neither the fiat of the district attorney, nor the allocatur of a judge of the court.
      It has been presented to the court without the fiat of the district attorney or the allocatur of a judge, on the ground, as is alleged by the counsel of the poisoner, that the writ of error is a writ of right in all cases not capital, and to issue of course. 4 Cowen, p. 84, is supposed to justify this practice.
      It is due to the respectable counsel who issued these writs of error, to say, that he apprised the court of his intention to do so, urging that he had a right to issue the writs of error without the fiat of the district attorney or the allocatur of the judge. He grounds his right to do so on the statute of the state, entitled “an act concerning writs of error, and to prevent delays of execution.” The first section declares “that writs of error in all civil cases, and in criminal cases not capital, shall be considered as writs of right, and issue of course, subject to the regulations prescribed bylaw; and in all capital cases, writs of error shall be considered as writs of grace, and shall not issue but by order of the chancellor, made upon motion or petition, notice whereof shall be given to the attorney general or prosecutor for tho people.”
      It is obvious to the most superficial observer, that if in all criminal cases, not capital, writs of error may issue of course, it becomes a most important question, what shall be the effect of the writ of error ? Does it stay the proceedings? Shall it stay the judgment, or shall it stay the execution, and all proceedings after the judgment ?
      If it stay the judgment, or if after the judgment it stay the execution of the judgment, the inconveniences are so serious that the question cannot he too carefuliy examined. For example, in all the counties of the state, the courts of sessions and of oyer and terminer, may be, and generally are, called upon to convict persons for crimes, which subject the offenders to imprisonment in the state prison. Those courts set once or twice a year. If a writ of error issues of course, the cause will be carried to the supreme court, and finally to the court of errors. These proceedings must be attended with great delay, and prejudice to public justice; and what in the mean time is to be done with the offender ?
      n cases of misdemeanor, the inconvenience must be very great, and in cases of felony, embarrassing in the extreme; it being a settled course of proceeding in felony, that the accused must be personally in court when any matter of law is discussed which concerns him. Thus, then, a writ of error in felony, directed to a court of sessions, or to a court of oyer and terminer, returnable in the supreme court, would, in its consequences, carry the person of the prisoner either to Utica, Albany, or New-York, depending upon the term at which it was returnable. After a decision by the supreme court, the cause might be carried to the court of errors, and the person of the prisoner must be removed to the place at which that court is to be held.
      The immense delay and hindrance of criminal justice, which writs of error must produce, if they issue at the mere pleasure of the accused, and especially if the legal effect be to stay the execution of the judgment, have led this court to consider the following questions:
      1. Can a writ of error issue in all criminal cases, not capital, at the mere pleasure of the accused ?
      2. If it can, what is its legal effect before judgment ?
      3. What is its legal effect after judgment ?
      I am inclined to the opinion, that the act of the legislature which declares, that writs of error in criminal cases, not capital, “ shall be considered as writs of right, and issue of course, subject to the regulation prescribed by law,” is in affirmance of the common law. If this be so, the question is a very plain one. The common law declares, that writs of error in all criminal cases, except treason and felony, are writs of right. (Paty and others, 2 Salk. 503; 2 Ld. Raym. 1105, S. C. Crosby, Mayor of London, 3 Wils. 188, 193. Yates v. The People, 6 John. 337, 380.)
      It is true, the practice before the case of Paty and others, 2 Sal. 503, had been to treat writs of error, in all criminal cases, as writs of grace. (Crawley v. Crawley, 1 Vern. 170; id. 175. The Rioter's case, 4 Burr. 2550.) Id. Holt and nine of the judges, as early as the 3d of Queen Ann, declared writs of error in criminal cases, except those of treason, and felony, to be grant-able-ea; débito justiiice.
      
      Yet, at common law, the writ of error, though a writ of right, must have the fiat of the public prosecutor. (4 Burr. 2550, 2551, the case of John Wilkes.) If the attorney general should refuse his fiat, the court might order it. (4 Burr. 2551, per Ld. Mansfield.) By the practice in our state, the writ of error, until lately, issued out of the court of chancery. (Vide the case of Yates v. The People, 6 John. 337.) Now, by the act passed 11 Eeb. 1815, 38 sess. oh. 38, original writs may issue out of the supreme court; and that court may devise new writs, where none are to be found. By the law of this state, the allowance by the judge is clearly contemplated as necessary. “ Allowing every writ of error,” is one of the duties appertaining to the office of chancellor and judge of the supreme court. (2 R. L. p. 14.) It is also confided to the recorders of the several cities in the state, and to certain commissioners.
      If the provision contained in the statute, that writs of error in cases not utai, shall be writs of right; if the provision, by which it is said they shall i of course, subject to the regulations prescribed by law; if the regulations, under which they are to issue, be such as the common law prescribes, and there are none touching criminal cases prescribed in the statute: If, I say, all these provisions are subject to the regulations prescribed by the common law, it is plain that a writ of error in a criminal case, not capital, is a writ of right, and must issue ex debito justifies, and of course, subject nevertheless to the rules prescribed by law. These rules are, that they shall not issue at the mere pleasure of a person convicted of a crime, but on some cause shown. (4 Bl. Com. 392.) Unquestionably, the slightest doubt as to the alleged error, would insure to the party his writ of error, ex debito justitm; tnd it would then issue of course; subject, (according to the provision of the statute,) to the rules prescribed by law.
      In the case of Scheffer v. Rempublicam, (3 Yeates, 39,) and Wm. Miles, (4 Yeates, 319,) also Wm. Kerr, (4 Yeates, 421,) the writs of error, not having the fiat of the attorney general, or the allocatw of the fudge, were disregarded. It is true, the act of the legislature of Pennsylvania is express: “Ho writ of certiorari, or writ of error shall issue, or be available in a criminal case, unless the same shall be specially allowed by the supreme court, or one of the justices thereof; upon sufficient cause to it shown, or shall have been sued out by the consent of the attorney general. Read’s Dig. p. 68.
      It may here be asked, why should the law allow a writ of error to issue of course, in mere matters of property, and yet, where the liberty of the citizen is at stake, it shall issue subject to the provisions prescribed by law ?
      To this it may be answered, that even in civil cases, the writ of error does not issue of course. In many cases, there must be a certificate of counsel. In many other cases, security must be given to abide the result. In many cases, also, double costs are imposed, if the party fails in his writ of error. Thus, many limitations are imposed by law in civil cases. It may be asked, also, if a writ of error ought in cases not capital, to issue at the pleasure of the party convicted, why not at the pleasure of the party convicted of a crime which takes his life ? "Writs of error are, in capital cases, and always have been, writs of grace.
      The answer is plain: If A. and B. have a dispute about property, though it is to be wished that all litigation should be settled without unnecessary delay; yet the public have no great interest in it, especially if security bo exacted, that justice be finally done. Adequate bail will ensure this. A compensation in property is all that can be exacted for civil injuries. Hot so with crimes. The person of the criminal must answer for his crime. Public justice, therefore, and the great interests of society, require that criminals should be properly punished.
      Hor is there any danger that innocence will suffer for want of a writ of error. Criminal proceedings have thrown around the innocent so many guards, that the writ of error is almost useless.
      
        
        First. A grand jury interposes, twelve of whom, at the least, must concur in finding an indictment.
      
        Second. If the indictment be manifestly bad in law, it may be quashed by the court
      
        Third. The party is entitled to a public trial, to produce his witnesses, and to be defended by counsel.
      
        Fowrth. The jury are judges of the law and the fact, and must be unanimous.
      
        Fifth. If they entertain a reasonable doubt of the guilt of the accused, they must acquit.
      
        Sixth. As the statute of jeofails does .not apply to criminal cases, the smallest departure from the established forms is fatal; and the court must arrest the judgment.
      Finally; If there be the least irregularity in the proceedings, the court must either grant a new trial, or recommend the party to a pardon. It may be said, with truth, that probably an instance cannot be found on record, of an innocent man suffering, for want of a writ of error in a criminal case.
      We will now suppose the writs of error in the present cases, to be regularly issued, though without the fiat of the district attorney, or the allocatur of the judge.
      What is the legal effect of a writ of error before judgment ?
      The authorities are distinct on this subject. Ho writ will lie but upon a judgment, or that which is equivalent to a judgment. Metcalf’s case, 11 Coke, 38; 6 East, 336; 4 Yeates, 319, 321. Yates v. The People, 6 John. 337, 522. In this last case, Mr. Clinton, senator, says, “ a judgment is a decision of a court upon the case before it; and the last or final determination of a tribunal, is the proper subject for a writ of error.” 6 John. 457. In many stages of a case, a certiorari may issue; but it must always be allowed by the judge.
      What is the legal effect of a writ of error, after judgment.
      The court is of opinion that it does not stay the execution of the judgment. In the celebrated case of The King v. Wilkes, (4 Burr. 2574,) the attorney general gave hisjia# to the writ of error. The cause was carried to the house of lords, and decided against Mr. Wilkes. He remained in prison, under the judgment, from the sentence. In the case of Yates v. The People, (6 John. 380, 381,) the supreme court bailed Tates, to abide their judgment upon the hob. corp. though he was committed by the chancellor for a contempt. The case of Tates only shows that the court may admit to bail until they decide upon a commitment for a contempt.
      As, however, the supreme court will sit, in the city of New York, within a month, the court is desirous to have the whole matter brought before that forum, to the end that matters so deeply connected with the administration qf the criminal jurisprudence of the state, may be advisably settled.
      
        The only difficulty that remains, is this; if the writs of error be no stay to the judgments which have been rendered, then they ought forthwith to bo carried into execution.
      The district attorney cannot stay the sentence of the law; much less can the keeper of the city prison, or the sheriff. Eggleston, by the judgment of the court, is sentenced to the state prison for 3 years. Yet if he be entitled to his writ of error of course, and at his pleasure, without its being subject to any regulations of law, and if such writ be a supersedeas to the judgment, then he ought not to be sent to the state prison, until the error he complains of be passed upon by the court above, and in due course of law. What, then, is to be done, especially in that case ? If the writ of error be no supersedeas, he ought forthwith to be sent to the state prison. If it be a supersedeas, he ought not to he sent to the state prison until his case be passed upon.
      The wisdom of the common law has provided for a case like the present. Causes may arise after judgment, where the court must stay the arm. of the law; such as the offender, after judgment and before execution, becoming insane; a female being pregnant; facts ascertained which show the innocence of the party condemned; a manifest iftegularity discovered by the court, after the sentence and before it be carried into execution. In all such cases, the law allows ex arbitrio judiéis, a stay of the judgment. " This temporary suspension of the punishment of the law seems, of necessity, to be reposed in the judges. (2 Hal. P. C. 412; 4 B1. Com. 394.) It is accordingly exercised in these cases, until the judgment of the supreme court upon the writs of error.
      Execution suspended accordingly.
    
   Curia, per Savage, Ch. J.

The plaintiff in the first cause, has been convicted of an assault and battery; and «the plaintiff in the second cause, of grand larceny. They se-vera]2yj su.ed out writs of error, without the fiat of the attorney general, or the allowance of a judge. In both cases¡ the defendants move to quash the writs of error.

*Till the 3d of Queen Ann, a writ of error, in any criminal case, was held to be merely ex gratia ; but in that year, on the discussion of the Aylesbury case, (2 Salk. 503,) a new question was started, and referred to the judges; whether the queen ought H to allow a writ of error in *any . . , case, ex debito justitice or ex mera gratia. Ten of the judges held that it must be granted ex débito justitice, in all cases except treason or felony. Lord Mansfield says, (4 Burr. 2550,) the ten did not mean that it was a writ of course; but that where there was a probable error, it ought not to be denied. He adds, It cannot issue now, without a fiat from the attorney general, who always examines whether it be sought merely for delay, or upon a probable error.”

Our statute, (1 R. L. 143,) enacts, that writs of error, in all civil cases, and in criminal cases not capital, shall be considered as writs of right; and issue of course; subject to the regulations prescribed by law: and in all capital cases, writs of error shall be considered as writs of grace; and shall not issue but by order of the chancellor, made upon motion or petition, notice whereof shall be given to the attorney general, or the prosecutor for the people.

In these cases, writs of error are writs of right, as distinguished from writs of grace. And they issue of course, *subjeet to the regulations prescribed by law; that is, sub jeot to the established practice. That practice is to obtain the fiat of the attorney general. (3 Chit. Cr. Law, 369.) Shouid the attorney general refuse hisfiat, in a proper case, this court would order him to grant it. (4 Burr. 2551.)

These writs of error have issued irregularly; and must he quashed.

Buie accordingly.  