The term of the Court of General Sessions, at which the prisoner was tried and sentenced, was commenced on Monday, the 2d day of December, 1861, and was continued until the 4th day of January, 1862, when the sentence was pronounced. The prisoner was tried and found guilty by the jury, on the 11th day of December, 1861. The trial of one Jefferds was commenced in that court, on the 18th day of that month, and was concluded, by a verdict of guilty, on the 24th day of the same month. On the 28th day of that month, the district attorney moved that judgment be pronounced upon the prisoner and Jefferds. But the pronouncing of judgment in each case was postponed, at the request of the counsel for the prisoner, until the 4th day of January, 1862.
The prisoner's counsel now insists that the Court of General Sessions was unlawfully continued, as to the prisoner, beyond the third week in December, 1861. The law fixing the terms of that court, until the year 1846, was, that the same should commence on the first Monday of every month, and might continue and be held until and including Saturday in the third week thereafter. (2 R.S., 317, § 31.) But, by chapter two of the Laws of 1846, it was provided that, whenever the trial of a cause shall have been commenced in that court, "and the same shall not be concluded before the expiration of the term of said court, it shall be lawful for the said court to continue in session until the conclusion of said trial, and to proceed to judgment, if they shall so deem necessary, in cases where convictions shall be had." (Laws of 1846, p. 4.) The trial of Jefferds had been commenced and was not concluded until the term prescribed by statute, prior to the year 1846, had expired; the court, therefore, was lawfully continued in session until the 4th day of January, 1862; which was two days before the first day of the January term in that year. There can be no doubt that it was lawful for the court to sentence Jefferds on the 4th day of January, 1862; and I am of the opinion, it was also lawful for the court to proceed to judgment against the prisoner in this case on that day. The court then was legally in session, and was authorized to proceed to judgment in cases where *Page 339 convictions were had. It was not restricted to proceeding to judgment in the case on trial at the expiration of the December term. The language of the statute is too broad and comprehensive to admit of such a restricted construction. It is, that the court may "proceed to judgment, if they shall so deem necessary, in cases where convictions shall be had." This authorized the court to pronounce judgment upon any number of prisoners at any time before its final adjournment; for the term was lawfully continued, because the trial of Jefferds was not concluded when it would have expired, if no cause had then been on trial.
It must be presumed that the authors of the law of 1846 knew what every lawyer then knew, to wit: that prisoners were seldom sentenced at the time they were found guilty by the jury, but generally at the close of the term, after all the cases ready for trial had been disposed of. Sentence was sometimes delayed to enable counsel to prepare and engross exceptions, and for other reasons; and during such delays other cases were taken up and tried; and having this knowledge, the legislature would have used different language if the intention had been to restrict the court to pronouncing judgment, after the expiration of the regular term, to the single case on trial when such term expired.
It is certain that the court lawfully continued its sittings beyond the third week in December, 1861, if chapter 208 of the laws of 1859 (Laws of 1859, p. 465) is applicable to it. That act provides that it shall be lawful for "the Court of Sessions of any county of this State" to continue its sittings at any term thereof, so long as it may be necessary, in the opinion of such court, for the dispatch of any business, or the determination of any cases that may be pending before such court. The Court of General Sessions of the Peace in and for the city and county of New York is but a Court of Sessions of the county of New York, and is designated in the act of 1859, by the words, "the Court of Sessions of any county of this State." A Court of General Sessions of the Peace and a Court of Sessions of any county are one and *Page 340 the same tribunal. It is the criminal court of the county, whether held by the same or different magistrates. (People v.Powell, 14 Abbott's Reps., 91.) I am therefore of the opinion the act of 1859 authorized the Court of General Sessions of the city and county of New York to continue in session until it passed sentence upon the prisoners in this case.
The prisoner was convicted of murder in the first degree, and sentenced under the act of April 14, 1860, entitled "An act in relation to capital punishment, and to provide for the more certain punishment of the crime of murder." (Laws of 1860, p. 712.) The crime was committed after that act took effect. But the prisoner's counsel contends that that act abolished all punishment for murder "of the first degree." Section one was as follows: "No crime hereafter committed, except treason, and murder in the first degree, shall be punished with death in the State of New York." By section four it was provided: "When any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall, at the same time, be sentenced to confinement at hard labor in the State prison until such punishment of death shall be inflicted." Section 5 declared that "no person so sentenced or imprisoned shall be executed in pursuance of such sentence within one year from the day on which such sentence of death shall be passed, nor until the whole record of the proceedings shall be certified by the clerk of the court in which the conviction was had, under the seal thereof, to the governor of the State, nor until a warrant shall be issued by the governor, under the great seal of the State, directed to the sheriff of the county in which the State prison may be situated, commanding the said sentence of death to be carried into execution." That act expressly repealed section 25 of that portion of the Revised Statutes, entitled "of crimes punishable with death," which declared that the punishment of death shall, in all cases, be inflicted by hanging the convict by the neck, until he be dead. (2 R.S., 659, § 25.) And it amended section one of the same portion of the Revised Statutes, so as to read as follows: "Every person who shall *Page 341 hereafter be convicted, first, of treason against the people of this State: or second, of murder; or third, of arson in the first degree, as those crimes are respectively defined in this title, shall be punished as herein provided." Provision was made in section 18 of the act of 1860 for the execution of persons, by virtue of the warrant of the governor, who should become insane after being convicted of murder in the first degree, provided they should subsequently become sane. Punishment with death was recognized by section 19 of the same act. And I am of the opinion that part of section 11, of the portion of the Revised Statutes above mentioned, which stated that the warrant for the execution of the sentence of death, made out by the court, should appoint the day on which such sentence should be executed, was repealed by the act of 1860, which provided for the fixing of the time of execution, if ever, by the governor. The designation of the time for executing the sentence by the governor was entirely inconsistent with the appointment of such time in the warrant for the execution of the sentence, made out by the court. Hence, conferring authority upon the governor to fix the day for executing the sentence, necessarily took away the authority before vested in the court to appoint such day.
It seems to me, that the act of 1860 clearly affirms the common law right to execute persons convicted of murder in the first degree. It nowhere professes to abolish the penalty of death for that crime; and the right to inflict it is recognized in several different sections. The fact that the act so amended a section of the Revised Statutes, above quoted, as to declare that persons convicted of murder should be punished as therein provided, and that the section prescribing the mode of taking the lives of persons so convicted was expressly repealed, does not make the common law mode of inflicting the death penalty inapplicable to cases where that punishment is recognized by such act or the Revised Statutes as amended by that act. The words, "shall be punished as herein provided," in the act of 1860, were applicable so far as that act prescribed the extent and mode of punishment, but no farther. And if the authors *Page 342 of such act intended, by the repeal of the statute declaring that the punishment of death should, in all cases, be inflicted by hanging the convict by the neck, so to alter the law as to make it impossible ever to inflict the penalty of death upon a murderer, they did not go far enough to make such intention effectual; for they stopped short of abrogating the common law, by which the mode of executing murderers had become fixed and certain. That mode was by hanging the convict by the neck until he was dead, unless he was a slave. This is shown in a very learned opinion delivered by Justice CAMPBELL, in The People v.Doane.
The prisoner's counsel challenged Durant as a juror for principal cause, on the ground that he had formed or expressed an opinion as to the guilt or innocence of the prisoner. But the most that was established against his competency was, that he had formed an opinion that the prisoner killed Hoffman, which he had never expressed. This was not an opinion as to the guilt or innocence of the prisoner. He might have killed Hoffman and still been innocent of any criminal offence. The court, therefore, properly overruled the challenge to Durant for principal cause; and as he was not challenged for favor, there was no error in permitting him to sit as a juror in the case. The rule respecting such challenges, was correctly stated by BEARDSLEY, J., inFreeman v. The People (4 Denio, 33). He there said: "Every challenge for principal cause, must be for some matter which imports absolute bias or favor, and leaves nothing for the discretion of the court. The truth of the fact alleged, and that alone, is in question. Its sufficiency, as a ground of challenge, is conceded by omitting to demur and taking issue on the fact. It is otherwise, on a challenge for favor. That must be determined by triers, who are to pass upon the question of actual bias or favor." Within this rule, the ground of challenge to Durant was not proved. Before it could be said it was established, the proof must have been that he had formed and expressed an opinion as to the guilt or innocence of the prisoner, or at least that he had formed such an opinion. It is clear, that the forming of an opinion that *Page 343 the prisoner had done one act necessary to be shown, among others, in order to convict him, was not the forming of an opinion that he was guilty of murder or of any other crime.
The foregoing views lead to the conclusion, that the prisoner was lawfully convicted of murder in the first degree.
But I am of the opinion, the Court of Sessions erred in adjudging that the prisoner should suffer death on a particular day. The day on which he should be executed, if ever, should have been left for the governor to designate. The proper sentence would have been, that the prisoner suffer death for the crime of murder in the first degree, in killing Samuel Hoffman, at the city of New York, on the 14th day of November, 1861, whereof he has been duly convicted, by being hung by the neck until he be dead, by the sheriff of the county in which he shall be imprisoned, at such place and time, after the expiration of one year from the date of his sentence, as such sheriff shall be commanded, by a warrant issued by the governor, under the great seal of the state; and that he be confined in the State prison, at hard labor, until such punishment of death shall be inflicted.
The court fixed a day for the execution of the prisoner, so he was to be confined in the State prison at hard labor more than thirteen and a half months before he could be executed, when by the act of 1860 he could be so confined only one year, if the governor should so determine, and issue a warrant for his execution.
The Supreme Court could not lawfully affirm this judgment. Its duty was to reverse it. [The majority of the court differed from the learned judge in this conclusion, as will appear at the close of the case.]
When the case was before that court, the statute was as follows: "If the Supreme Court shall reverse the judgment rendered, it shall direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case. (2 R.S., 741, § 24.) The act of 1863 (Laws of 1863, p. 406), amending this section, was passed after the judgment was pronounced, and, therefore, is ex post facto as to this case, *Page 344 and cannot influence our decision in it. We must, therefore, determine whether, according to the common law, the Supreme Court should have directed a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case.
In The King v. Ellis (5 Barn. Cress., 395), the prisoner was sentenced to be transported for fourteen years, when, according to law, he could only be transported for seven years, and the Court of King's Bench reversed the judgment, and discharged the prisoner, holding that there was no ground to send it back to be amended. In The King v. Bourne and others (7 Adol. and Ellis, 58), it was held, where an erroneous judgment is given by an inferior court, on a valid indictment (as by passing sentence of transportation in a case punishable only with death), and the defendants bring error, the appellate court can neither pass the proper sentence, nor send back the record to the court below, in order that they may do so; but the judgment must be reversed, and the defendants discharged. In Shepard v. TheCommonwealth (2 Metcalf, 419), the prisoner was sentenced to be imprisoned four years, when the limit was three, and the Supreme Court of Massachusetts reversed the judgment and discharged him. And that court subsequently, in Christian v. The Commonwealth (5 Metcalf, 530), laid down the following rules, namely: "When a judgment in a criminal case is entire, and a writ of error is brought to reverse it, though it is erroneous in part only, it must be wholly reversed. The court, after reversing a judgment in a criminal case, cannot enter such judgment as the court below ought to have entered, nor remit the case to the court below for a new judgment. These rules were approved by BRONSON, Ch. J., inThe People v. Taylor (3 Denio, 91.)
My conclusion is, as the only error the Court of Sessions committed was in giving a wrong judgment, in part, against the prisoner, no new trial can be legally granted; and that the judgment must be wholly reversed, and the prisoner discharged.
I regret that I am forced to this conclusion, for it is quite *Page 345 clear that the prisoner is guilty, and will escape just punishment. But this result cannot be avoided, for it is for the legislature, and not the courts, to alter the laws, in order to prevent the guilty escaping the punishment they deserve.