People v. Loomis

By the court, Balcom, J.

It is clear that the district attorney had no authority at common law to bring a writ of error in behalf of the people, to review the decision of a county court of sessions or a court of oyer and terminer, quashing an indictment and discharging the defendant from imprisonment thereon. (The People agt. Casborus, 13 Johns. 351; The People agt. Corning, 2 Comst. 9.) And the statute of 1852 only authorises the district attorney to; bring writs of error to review judgments rendered in favor of defendants in criminal cases (Laws of 1852, p. 76). There must be a judgment in favor of a defendant in a criminal case, before the district attorney can bring a" writ of error in behalf Of the "people to review a decision therein, though the effect of it be to discharge the defendant from further prosecution upon the indictment in the case. (See People agt. Merrill, 4 Kern. 74; People agt. Nestle, 19 N. Y. Rep. 583 ; People agt. Hartung, 26 Id. 154 , People agt. Barry, 4 Parker's Cr. Rep. 657 ; S. C. 10 Abb. 225 ; Dawson agt. The People, 5 Parker's Cr. Rep. 118; 2 R. S. 738, §4; 19 N. Y. Rep. 551.) When judgment is arrested, ór the indictment is quashed, or a nolle prosequi is entered in a criminal case, no judgment is given though the defendant be discharged, and the order and proceedings cannot be pleaded *326in bar to a subsequent indictment for the same offence. (Barb. Cr. Tr. 303; 13 Johns. 351; Wharton's Am. Cr. Law, 2d ed. 190, &c.; Lindsay agt. The Commonwealth, 2 Vir. Cases, 345; Wortham agt. The Commonwealth, 5 Randolph, 669 ; Commonwealth agt. Wheeler, 2 Mass. Rep. 172; 2 R. S. 701, § 24.)

There would not be much danger of injustice being done to persons accused of crime, if the legislature should author rise district attorneys to review the decisions of criminal courts, by writs of error or otherwise, quashing indictments, or arresting judgments, or discharging prisoners without trial, except by nolle'prosequi. But unless such authority be conferred upon district attorneys, criminal courts should require prisoners to present defences by plea, or .in a way so that judgments may be rendered upon the indictments in cases of acquittal without the intervention of a jury.

• ■ If the defendant’s motion to quash the indictment in this case had been denied, as it might have been, upon the ground that he should present his defence by a plea of the statute of limitations (2 R. S. 726, § 37; Laws of 1860, p. 474), and he had pleaded the statute, as he probably would have done, a judgment sustaining the plea could have been rendered, which the district attorney could have reviewed by writ of error under the statute of 1852.

■ It is inexpedient for this court to express an opinion upon the question whether the defendant could have been tried on the indictment against him that was feloniously destroyed, or as to whether the statute which declares that indictments except for murder, “ shall be found and filed in the proper court, within three years after the commis-. sion of the offence,” unless the accused has been out of the .United States, &c., was a defence, to the indictment that was quashed. {See 2 R. S. 726, § 37; Laws of 1860, p.' 474.) We only decide' that the district attorney cannot review the decision of the Madison county court of sessions, quashing the indictment and discharging the defendant, by *327writ of error in Tbelialf of the people, and that such" writ should be quashed ás unauthorised. And it is proper to add that we are constrained to make this decision; though the defendant’s counsel has not questioned the right of the district attorney to review the decision-of the .court of sessions by writ of error. ' :

Writ of error quashed as unauthorised.

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