Quimbo Appo v. . the People , 20 N.Y. 531 ( 1860 )

The question which seems to have been debated in this case is, whether a Court of Oyer and Terminer, held at a term subsequent to that in which a person has been convicted and sentenced, can grant him a new trial. It does not appear to have been asserted in the argument, either here or in the Supreme Court, that for offences greater than a misdemeanor, a new trial cannot be granted by any court on the merits. Certainly, however, this is the rule of the common law. It has been always tenaciously maintained in England down to the present day, that where the defendant has been convicted on an indictment for felony, there can be no new trial, except for irregularity, or some other extrinsic cause. Has this well-established and, I think, salutary rule been changed in this State?

The cases in our reports on this subject are not numerous, and are far from being unanimous. The first which I find is that ofThe People v. Townsend (1 J.C., 104), where it was held by the Supreme Court, in April, 1799, that a Court of Oyer and Terminer may award a new trial; but the crime for which the defendant was indicted was perjury, at that time considered in this State — as at common law — to be merely a misdemeanor. It was made felony only by the Revised Statutes. In The People v.The Sessions of Chenango (2 Caines' Cases in Error, 319), the court decided, to be sure, only that the Court of Sessions being an inferior court, could not grant a new trial; but KENT, J., in delivering the opinion of the court, says, "The Sessions cannot grant a new trial upon the merits. It is a power not exercised by this (the Supreme) Court, after verdict in cases of felony; and, perhaps, it is expedient it should not be." In The People v.Stone (5 Wend., 39), the court, indeed, held that Courts of Oyer and Terminer had authority to grant new trials on the merits in all cases, and entirely ignored the rule of the common law. But this decision was expressly overruled by the same court inThe People v. Comstock, where it is declared that for offences greater than misdemeanor, a new trial cannot be granted on the merits, whether the accused be convicted or acquitted; and Mr. Justice SUTHERLAND, who delivered the opinion of the court, quotes the language of Garrow, arguendo, in TheKing v. Mawbey and others (6 Term R., 625) that: "If a defendant be convicted of felony or treason, though against the weight of evidence, there is no instance of a motion for a new trial in such a case; but the judge passes sentence and respites execution, till application be made to the mercy of the Crown." Lord KENYON, who delivered the opinion of the court in that case, speaks to the same effect. Judge SUTHERLAND also quotes fromChitty's Criminal Law (532) the following language: "In cases of felony or treason, it seems to be completely settled, that no new trial can in any case be granted; but if the conviction is improper, the prisoner must be respited until a pardon be applied for." The same rule is very ably maintained by Judge STRONG inThe People v. The Judges of the Dutchess Oyer and Terminer (2Barb., 282). The cases of The People v. Morrison (1 Park.C.R., 625); The People v. Goodrich (3 id. 519), and ThePeople v. Hartung (17 How. Pr. R., 86), were all decided in the Court of Oyer and Terminer; in which that court held it had the power to grant new trials in the very face of the decision by the Supreme Court in The People v. Comstock. It is not pretended that the rule of the common law has been altered by statute. Our statutes say nothing of this power, except in cases where exceptions on legal questions have been taken on the trial on behalf of the defendant. In such cases where the Supreme Court reverse the judgment, they provide that the court shall either direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case.

It is stated, in the points of the plaintiff in error, that in England the old rule has been condemned by her wisest lawyers and judges, and is now abandoned. This is a mistake. It is only about three weeks ago, during the present session of Parliament, that Mr. McMahon introduced a bill in the House of Commons to allow new trials to be granted in all criminal cases. It gave rise to a very interesting debate, which is contained in the London Times, I think, of 19th of last January. The members opposed to the bill proved, satisfactorily to my mind, that the repeal of the present rule would most seriously, if it did not altogether, jeopardize the administration of criminal justice in England. A large majority voted against the bill.

The right to a new trial in cases of felony would work still greater detriment in this State. The witnesses on whose testimony defendants are convicted, are apt to be more migratory than in England; and the law has provided no means of perpetuating their testimony, or of preserving any authentic memorial of their evidence. In every case there would be repeated applications for a new trial; so that in the city of New York, where the district attorney is unable, from the multitude of cases, to bring all to trial, a fearful obstruction to the administration of justice would be the consequence. The only judicious and practicable remedy for erroneous verdicts in criminal cases, is that of the pardoning power. No stigma, as has been supposed, necessarily adheres to a defendant who has been unjustly found guilty of a crime, when he receives the pardon on the express ground that the verdict was contrary to the weight of evidence. I place my opinion, therefore, on the ground no merely that a Court of Oyer and Terminer has no power to grant a new trial, where the verdict has been rendered at a previous Oyer and Terminer, but that no court has power, in cases of felony, to grant a new trial on the merits, under any circumstances.

The power to issue a writ of prohibition clearly still resides in the Supreme Court; it is expressly recognized in the Revised Statutes. (2 R.S., 587, § 61.)

The order of the Supreme Court should be affirmed.