concurred in the result of the foregoing opinion.
Note.—It is difficult to understand upon what ground, or by what authority, the court of appeals ordered a new trial in this case. After an able opinion of the court, by Judge Denio, reviewing and discussing the cases where judgments were arrested, because the laws which gave the penalties or created the offence had.been repealed, even after trial and conviction, he says': e< In conclusion, therefore, we determine that the judgment under review is erroneous, because there is not at this time any law which authorizes or sustains it, or which would warrant its executionNot one word is said or reference made to any other error in the judgment and proceedings brought up for review. The law of 1860, as construed and applied by the court, created the only error upon which the judgment was reversed and this error was fatal. The law reversed the judgment, and consequently discharged the prisoner. What further jurisdiction of the case had the court of appeals, after announcing what the law required? Especially what jurisdiction to retain the prisoner for a new trial, when the law had left nothing upon which a new trial could he based? The crime and conviction of murder were merged in the judgment of the court below, and that judgment was sentence of death. This judgment, upon review, was found to he erroneous, because an act of the legislature had stepped in and repealed the law under which it was made, and no other law -having been provided to carry the judgment into execution, it was a mere pro forma act of the court of appeals to announce the decision of judgment of reversal, only.— Rep.