The question raised by the prisoner's counsel, whether Sands, one of the justices of the Court of Sessions before which he was tried and convicted was competent to sit, is not presented by the writ of error in this case. The *Page 91 objection to Sands' competency was founded on affidavit, and does not appear from the record itself. The affidavit presented a question as to the right of the court to try the prisoner, and was in fact an application to the court for a new trial, on the ground that Sands was disqualified to act as a judge in the case. This perhaps was authorized under § 40 of chap. 33 of Session Laws of 1859. But it could not be regarded as a motion in arrest of judgment, for such motion is based entirely on some defect in the record. (People v. Thompson, 41 N.Y., 1; People v.Allen, 43 id., 28.) The record shows no such defect, and hence presents no question for review.
The writ of certiorari from the Supreme Court to the Court of Sessions brought up the record, and all the papers upon the motion for a new trial, and the affirmance of the judgment there, ended its purpose and office.
The writ of error from this court does not bring up these proceedings, as they are subsequent to the judgment, and no part of the record. It reaches only errors in the record itself, and does not present the question raised for review.
This point was distinctly decided by this court in The People v. Casey (72 N.Y., 393). See opinion of EARL, J., and authorities cited.
A serious question would arise as to the legality of the proceedings if the point was presented by the writ of error. As it is not no error appears upon which any relief can be granted, and the judgment of the General Term affirming the conviction must be affirmed.
All concur.
Judgment affirmed. *Page 92