Anticipating that I shall disagree with a majority of my brethren, and very reluctantly dissenting from the judgment which is about to be pronounced, I only desire in a very few words to express the grounds of that dissent. *Page 557
I concur entirely in the opinion that the writ of prohibition was a proper mode to be adopted by the district attorney to stay the action of the Oyer and Terminer, provided that court had not power to give the relief asked for by the prisoner, and grant the application for a new trial. It may be a very ancient remedy, and has undoubtedly been rarely resorted to in our recent practice. It is, however, expressly provided for in the Revised Statutes of 1830, and the practice under it regulated in various respects; and in 1838 there is an instance reported of its having been issued to a Court of General Sessions by the Supreme Court. (ThePeople v. The Tompkins General Sessions, 19 Wend., 154.) Probably many other cases have occurred where it has issued as a matter of course, without any question being made as to the propriety of the practice, or the power of the court. The case ofThe People v. The Supervisors of Queens (1 Hill, 195), where it is said to have been disapproved, did not proceed upon any doubt or denial of the propriety of the writ in a case to which it was applicable. It was attempted to be used in that case to restrain the proceedings of a ministerial officer in the execution of process in his hands, but while refusing this the court expressly conceded the propriety of issuing the writ to restrain a court in which some judicial proceeding is pending. This writ is also among those the practice in respect to which is saved by § 471 of the Code; its continuance and operation being thus expressly recognized.
The only question, then, in this case is, whether a Court of Oyer and Terminer, at a term subsequent to that at which a prisoner has been tried and convicted, and judgment rendered upon the conviction, has power to grant a new trial. The question is an important one, and if it were wholly res integra, and for the first time to be discussed and passed upon, I should esteem it one of no small difficulty. At any rate it falls within that category where much may be said, and pertinently and plausibly said, too, upon both sides. I do not go into the question of the original constitution of Courts of Oyer and Terminer in England, nor the various modifications and enlargements of their powers by statutes enacted from time to time. On this *Page 558 point our own Constitution and laws afford also a field for considerable discussion and remark, into which I shall not enter. My conclusion, without at this time indicating the grounds upon which it rests, is that the Courts of Oyer and Terminer, as organized and acting within this State, are superior courts of general criminal jurisdiction, continuous in their character and operation, and not a merely temporary organization, expiring at the close of each session or term thereof. This being conceded or established, it necessarily follows that a motion founded upon a proceeding trial or judgment at a preceding term, can be entertained and decided at any subsequent term of the same court, whether held by the same judges or by others of equal authority and coordinate jurisdiction.
Without, then, going into the argument, I consider the power of Courts of Oyer and Terminer to grant new trials as established by a most controlling weight of authority, and that this power may be exercised at a term subsequent to that at which a conviction has taken place and judgment rendered. In the case of ThePeople v. Townsend (1 John. Ca., 104), the defendant had been convicted of perjury, but before sentence was pronounced he absconded. He afterwards surrendered himself, and the presiding justice reported to the Supreme Court that the verdict was against evidence. The opinion of the Supreme Court was asked, and they answered that there should be a new trial, and directed that opinion to be communicated to the judges at the next Oyer and Terminer to be held in the county where the trial took place. The case, in effect, is an adjudication of the Supreme Court, given by way of advice, that the Oyer and Terminer had power to grant a new trial where the verdict was against evidence, and in that case the application and a decision thereon would necessarily be made at a subsequent session of the court. In the case of ThePeople v. Stone (5 Wend., 39) the same question arose. The defendant had been convicted in Rensselaer county, and an application was made to that court for a new trial, whether at the same or a subsequent term does not appear from the statement of the case. The court, doubting its power, suspended sentence *Page 559 in order that an application might be made to the Supreme Court for its opinion on this point. That opinion was given by MARCY, J., and after discussing the question with fullness and ability he concludes by saying, "upon principle and authority I have no doubt but that the power to grant new trials upon the merits resides in the Courts of Oyer and Terminer and Gaol Delivery;" and that was the judgment of the court.
It is true that in the case of The People v. Comstock (8Wend., 549), Judge SUTHERLAND was, probably by an inadvertence, betrayed into the expression of an opinion that in a case of felony no new trial could be granted, whether the defendant was acquitted or convicted. He seems to have lost sight of the case of The People v. Stone, in the decision of which he took part, and of the fact that Comstock having been acquitted, he was secured by the constitutional immunity from the jeopardy of another trial. The case has never been considered as an authority in denial of the power of the court to grant a new trial in a proper case.
The case of The People v. Stone has been followed by several subsequent cases. In The People v. Morrison (1 Park.C.R., 625), in a very able and elaborate opinion Judge HARRIS vindicates the power of a Court of Oyer and Terminer to grant a new trial, and places it, in my judgment, on impregnable grounds, both of principle and authority. He takes occasion to show, also, that this power is in full exercise in at least eighteen of the States of the Union, and that the English rule which denies new trials in criminal cases, but turns over the subject to the royal clemency, has never been adopted or recognized by the courts of this county.
In the case of The People v. The Court of Sessions of WayneCounty (1 Park. C.R., 369), at general term in the seventh district, a decided opinion was expressed that the power resides in Courts of Oyer and Terminer, although its existence in Courts of Sessions, which are of limited and inferior jurisdiction, was denied. "Courts of Oyer and Terminer," says Mr. Justice JOHNSON, "have full criminal jurisdiction, and are the only courts in the State having such powers." *Page 560
In The People v. McMahon (2 Park. C.R., 673), Mr. Justice PARKER concurs fully in the conclusion of Judge HARRIS in the case of Morrison, and says he has conclusively demonstrated the power of Courts of Oyer and Terminer to grant new trials. In this opinion Judge BALCOM (People v. Goodrich, 3 Park. C.R., 518) also unites; and in The People v. Hartung (17 How., 86), the motion for a new trial in a capital case was entertained at an adjourned circuit without any question as to the power of the court being suggested by the counsel or alluded to in the opinion of Judge HARRIS. In truth, I have no doubt this practice has been well understood and acted upon throughout the State for a long series of years, and I am not aware that it was ever seriously called in question until the opinion of Mr. Justice STRONG was given in the case of The People v. The Judges ofDutchess Oyer and Terminer (2 Barb., 282). This case undertook to overrule the decision of the Supreme Court in The People v.Stone, which had been accepted as the law by which all the tribunals of the State had been governed for seventeen years. If such a thing is to be done it should be either from a conviction that the elder decision was hasty and not well considered, or the course of reasoning by which the old doctrine is to be subverted and the new installed in its place should be so clear and convincing that the mind unhesitatingly yields to it. The decision in the case of Stone is not by any means an unadvised one, for the opinion is by MARCY, and the course of reasoning by which it is upheld extends over some half dozen pages — more, indeed, than Judge STRONG employs to overcome it — and I am quite unable to detect the superior force of the reasons by which it is encountered and sought to be overthrown. If anything were needed to re-instate the authority of The People v. Stone it will be found amply supplied in the full and exhaustive opinion of Judge HARRIS in the case of Morrison, and the assent which has been yielded to that case by all succeeding authority.
The power, then, to grant new trials, I think, beyond question, exists in the Courts of Oyer and Terminer, and for reasons that make that authority plenary for all the purposes of a *Page 561 motion at the same or any succeeding term. Nor is it any greater objection to its exercise that judgment has been pronounced, than can be urged in a civil case where the same fact exists. If the court has the power, the mere fact that judgment has been formally rendered cannot deprive it of its jurisdiction. And so, in effect, it is decided in The People v. Stone (9 Wend., 182), where the Court of Oyer and Terminer, after rendering judgment quashing an indictment at a subsequent term gave leave to the public prosecutor to make up a record as if judgment had been rendered for the defendant on demurrer, for the purpose of enabling him to sue out a writ of error. So in Miller v.Finkle (1 Park. C.R., 374), where a conviction was had and a sentence actually passed, the court at the same term vacated the sentence and pronounced a new sentence for a different term of imprisonment. It is not, then, the fact that a judgment has been rendered that makes the court functus officio and deprives it of any power of ulterior action. Possessing the right, I suppose it can be exercised at any time before final execution.
It is said by the counsel of The People, in opposition to the assertion and exercise of this power in the Courts of Oyer and Terminer, that the scheme of our government and the distribution of powers under the Constitution are at war with the right thus claimed. It is insisted that the pardoning power was conferred upon the Executive for the very purpose of correcting any errors of fact that might occur in the prosecution and conviction of a supposed culprit, and that pardon does not imply guilt. I do not coincide in this view. On the contrary I think with us, in the administration of the criminal law and in dealing with offenders who have been subjected to its action, the normal and necessary association with the word pardon is the idea of guilt. The office of the Governor is not to reverse unjust or illegal decisions, but to remit the punishment due to the guilty. If innocence is claimed, or an improper conviction has been obtained, then justice requires a new trial. The mercy which is thus invoked is but a poor palliative for the injury that may have been inflicted. I agree with Judge MARCY that "it is *Page 562 mockery to tell a man who has been unjustly condemned that his redress is a pardon. He feels, and ever will feel, that he has received an incurable wound from that sword which he, in common with his fellow citizens, had put into the hands of the magistracy for their protection."
The case made in the court below was one appealing very strongly to the reason of that tribunal to grant a new trial. It was certainly from no fault of the court before which the defendant was tried that the trial resulted in a conviction. A number of unfortunate circumstances concurred in presenting him before the jury substantially without defence, and yet standing thus unaided and unshielded before them, there was evident hesitation with the jury in convicting him of the crime of murder. There is every reason to believe that on another trial the crime laid to his charge will, if not excused, be greatly mitigated. I think it is eminently due to this comparative stranger to us and our institutions — this "waif," as he has been appropriately called, cast upon our shores from "the central flowery kingdom" — that he should have one more opportunity to show the extenuations of his offence, even if he cannot succeed in wholly purging himself of crime.
I think the order of the general term granting the writ of prohibition should be reversed, and the order of the Oyer and Terminer granting a new trial affirmed.
Judgment affirmed.