I am constrained to record my dissent from the decision about to be made. It is undoubtedly true that when a person has been conicted of a crime this court may order a new trial if it be satisfied that justice requires it “whether any exception shall have been taken or not in the court below ” (Code Crim. Proc. § 527), but a defendant cannot claim as a matter of . right a review of errors to which no objection and exception has been taken. (People v. Jackson, 196 N. Y. 357.) The language of section 528 of the Code of Crimimal Procedure, which was under consideration in that case, and that of section 527, above referred to, is identical in this respect. It is true that the broad power given to this court by section 527 applies to every criminal case, while similar power is bestowed .upon the Court of Appeals by section 528 only when, the judgment is of death. But the case above cited was such a case, *314and the language of Chief Judge Cullen in delivering the opinion of the court seems to me peculiarly apt on this occasion. He says, referring to the rule that such review is not á matter of "right: “ The reason and justice of this rule is obvious. The most- learned and careful judge will at times during the trial of an action fall into an error which he would at once correct if his attention were called thereto. The purpose of an objection and exception is to call the attention of the judge to the ruling complained of, that he may correct the error if such it is. To permit the party to remain silent and suffer, the error to go unchallenged and claim, on an appeal from an adverse judgment the benefit of the error, as if objection and exception had been taken, would not conduce to the proper administration of justice nor tend to secure a fair trial for the defendant, but simply give him an opportunity to reverse on appeal a proper judgment.” It seems to me impossible for any one to read the record in this case and have the slightest doubt of the defendant’s guilt. Aside from other corroborating evidence, the conduct and acts of the defendant as testified to by him are inconsistent with any innocent purpose upon his part in placing money in the hands of the witness Heene. The controversy in respect to which it is charged that bribery was committed was not one between Wolf, the accused, and Haibele who was the victim of his criminal act. It was between the People of the State of Hew York on one side and the said Wolf on the other. If the only purpose of giving money to Haibele was to obtain a mitigation of sentence after a plea of guilty upon Wolf’s part, it was quite sufficient to- be able to show the court at that time that the money feloniously taken had been restored. After a plea of guilty, it was unnecessary to placate Haibele by paying him a sum in excess of that taken from him,, and it was a matter of indifference to the People of the State whether or not he wasfavorahly disposed toward the accused. The fact that a larger sum than was required to make restitution was given to Haibele is conclusive evidence to my mind that the purpose of it was to produce some effect upon him and secure from him some favorable consideration toward the man who had robbed him. In no othér way could he make such favorable consideration of any avail than in respect to the testimony which he might give upon the trial;
*315Justice is satisfied when a person accused of crime has a fair and impartial trial. If, upon such a trial, the evidence, of his guilt is overwhelming, justice does not require that an appellate court should go out of its way to scrutinize the record carefully to see whether any technical rule of law has not been complied with and to reverse a judgment founded upon, such evidence, if, perchance, one of such rules has been overlooked. In this case the accused was defended by one of the ablest counsel in the county. He may have thought, and very wisely too, that it was good policy not to have the attention of the jury called to the rule respecting the necessity of corroborative evidence lest, by so doing, their attention might be concentrated upon such evidence more strongly than it would otherwise have been. After having pursued that policy, if new counsel are to persuade an appellate court to reverse a perfectly just judgment because the trial court did not, of its own motion, refer to a well-known rule of law, it seems to me that a criminal trial ceases to be an inquiry after the truth and becomes instead a “ wit combat.”
Judgment of conviction reversed and new trial ordered.