People agt. Tarbox,

a notice to Tarbox, or under the statute, but he did not appear on the argument in person or by counsel (See 2 R. S. 741, § 22).

J. A. LYNES, District Attorney, for the people.

By the court, BALCOM, J. This being a criminal case, the default of the defendant in this court does not entitle the district attorney to a reversal of the proceedings in the court of sessions as matter of course. It is, therefore, the duty of the court to determine thebaise upon the writ of error and the return thereto, in the same manner it would if the defendant had appeared and argued the case in person or by counsel. The court of appeals decided in 1848, in The People agt. Corning (2 Comst. 9), that a writ of error would not lie in behalf of the people after judg ment for the defendant, in a criminal case.

The legislature altered the law in such cases in 1852, and provided that "writs of error to review any judgment rendered in favor of any defendant upon an indictment for any criminal offence, except where such defendant should have been acquitted by a jury, may be brought in behalf of the people of this state by the district attorney of the county where such judgment shall be rendered, upon the same being allowed by a justice of the supreme court; and the court of appeals shall have full power to review, by writ of error in behalf of the people, any such judgment rendered in the supreme court in favor of any defendant charged with a criminal offence (Laws of 1852, p. 76)!- Voe

The court of appeals decided in The People agt. Merrill (4 Kern. 74), that a writ of error is not authorized by the statute of 1852, to review a judgment on some of the counts in an indictment while other counts are undisposed of, and that the judgment to be reviewed on a writ of error in behalf of the people, is a final judgment on the whole indictment. That court also decided in The People agt

People agt. Tarbox.

Nestle (19 N. Y. Rep. 583), that the people are not entitled' to a writ of error to review the order of the supreme court granting a new trial in a criminal case, where there' had been a conviction and certiorari, with stay of judgment in the court below; and that the writ only lies where there' has been judgment for the prisoner upon the indictment.

In Hartung agt. The People (26 N. Y. Rep. 154), there was a final judgment on demurrer to pleas in abatement in favor of the prisoner, and the decision therein is not in1 conflict with The People agt. Merrill (supra). In The People! agt. Barry (4 Parker's Rep. 657; S. C. 10 Abb. 225), the prisoner was indicted on the 21st day of May, 1858, in the New York court of sessions, for an assault upon one Wolfe, with intent to kill. On the same day another indictment was presented against him in the same court for robbery," by violence, in stealing over $100 from the person of" Wolfe. To the first indictment the prisoner pleaded guilty of an assault and battery, and was sentenced to four months imprisonment, on the 23d of October, 1858. On the 5th of November, 1858, a notice was given of a motion for a new trial, and on the 15th of November, 1858, an order was made in the sessions by the city judge, that the conviction, and sentence upon conviction, be quashed, and that' the order of imprisonment be revoked, "said indictment having been on the same day, by operation of the statute, superseded and quashed by the filing of another indictment for the same matter, although charged as a robbery.") The district attorney sued out a writ of error in behalf of the people, by which the proceedings in the court of sessions' were removed into this court in the first district, and this court in that district quashed the writ of error, and held that an order quashing a conviction and sentence, is not reviewable on writ of error under the act of 1852 (supra), and that such act is only applicable to judgments.

In Dawson agt. The People (5 Parker's Rep. 118), this court in the second district held that the proceedings of al VOL. XXX,

21

People agt. Tarbox.

county court of sessions on the trial of an indictment, will not be reviewed on writ of error by the supreme court until a record of judgment shall have been made up and filed; and as the return to the writ of error in that case was defective in the respect mentioned, on motion of the district attorney, the writ of error was quashed. (See 2 R. S. 738. § 4; 19 N. Y. Rep. 551.) The authorities all show that the act of 1852 (supra) only authorizes the district attorney to sue out writs of error in criminal cases to review judgments rendered in favor of defendants upon indictments, and they also show he cannot review mere orders in such cases by writs of error.

SPENCER, J., in delivering the opinion of the court in the case of The People agt. Casborus (13 Johns. 351), said: "An arrest of judgment is a mere refusal on the part of the court to give judgment." He also said in that case "the effect of arresting a judgment is the same as quashing an indictment; the latter happened before trial, the former. after; and in this case it appears to me, that as no writ of error could be brought upon the decision of the court of sessions arresting the judgment, that proceeding is not a bar to any other for the same matter. In analogy to civil cases, the arrest of judgment cannot be pleaded in bar to another prosecution for the same matter, because there is no judgment of the court susceptible of review." (See Wharton's Am. Cr. Law, 2d ed, 190 and 194; Id. 869, &c. ; Barb. Cr. Tr. 303; Lindsay agt. The Commonwealth, 2 Virg. Cases, 345; Northam agt. The Commonwealth, 5 Rand. 669; Commonwealth agt. Wheeler, 2 Mass. Rep. 172.) That there is a difference between an order and a judgment in a criminal case. see 2 R. S. 738, section 4; Stephens agt. The People, 19 N. Y. Rep. 549, and authorities supra.`,

It is clear that no judgment has been rendered in this case by the Otsego court of sessions. That court only: decided that judgment be arrested, and that the defendant he discharged; and an order was thereupon entered arrest-,

People agt. Loomis.

ing judgment and discharging the defendant. It is unnecessary to express any opinion on the question whether the acts of the defendant in the court of sessions did not amount, to a demand of trial upon the indictment, and estop him from alleging he had not been arraigned upon it, or had not pleaded not guilty thereto. But see The People agt. Frost (5 Parker's Cr. Rep. 52; Roscoe's Cr. Ev. 224). And we will not say whether the defendant could not have been required at the end of his trial to plead to the indictment and have been retried thereon, or whether he could not be indicted again for the same offence, and be legally tried on a new indictment. (See 2 R. S. 701, §§ 24, 25 ; Barb. Cr. Tr. 301.) We only decide that no judgment has been rendered in the case by the Otsego court of sessions, and that the decision of that court, and the proceedings therein in the case cannot be reviewed by writ of error brought by the district attorney in behalf of the people.

It follows that the writ of error in the case should be quashed as unauthorised. Decision accordingly.

SUPREME COURT.

THE PEOPLE OF the State of NEW YORK, plaintiffs in error agt. DENIO LOOMIS, defendant in error.

A decision of a county court of sessions quashing an indictment and discharging the defendant, cannot be reviewed by writ of error in behalf of the people. The act of 1852 only authorises the district attorney to bring writs of error to review judgments rendered in favor of defendants in criminal cases. (See to the same effect People agt. Tarbox, ante, p. 318.)

Broome General Term. Submitted November Term, 1865. Decided January Term, 1866.

Before PARKER, MASON and BALCOM, Justices.

WRIT OF ERROR to the Madison county court of sessions.

People agt. Loomis.

The defendant in error was indicted at the Madison oyer and terminer, in February, 1863, for feloniously receiving one gold watch, the property of Josiah W. Clarke, on the 10th day of June, 1862, at De Ruyter, in the county of Madison, knowing the same had been feloniously stolen from said Clarke. That indictment was feloniously destroyed by some person or persons unknown, while on file in the office of the clerk of Madison county, on the 10th day of May, 1865.

At a court of sessions held in Madison county on the 12th day of June, 1865, the defendant in error was again indicted for the offence that was charged upon him in and by the indictment which had been destroyed, as above stated, and the last indictment contained statements showing the finding of the first mentioned indictment, the arraign ment of the defendant in error thereon, and his plea of not guilty thereto, and the felonious destruction of that indict. ment by some person unknown, on the 10th day of May, 1865.

On the 16th day of June, 1865, the defendant in error appeared in person and by counsel in the said Madison county court of sessions, and was arraigned upon the indictment that was last found against him, but he did not plead thereto, and he moved that it be quashed, on the ground that it appeared on the face thereof that it was not found within three years after the alleged commission of the offence therein charged, which fact was admitted by the district attorney. The court granted the motion, and made an order quashing that indictment which was found on the 12th day of June, 1865, as aforesaid, and discharging the defendant in error from further imprisonment and custody thereon. The district attorney sued out a writ of error for the review of the decision of the court of sessions, by which the indictment found against the defendant in error on the 12th day of June, 1865, was quashed, and the defendant in error was discharged from imprisonment and