The facts and orders in this case are the same as in the People agt. Fitzpatrick, decided at' the last September general term. In the latter case we considered the merits and decided that the order setting aside and discharging the grand jury as to tliat defendant, and as to him quashing the indictment found, was erroneous, such order was therefore reversed.
Upon that occasion counsel on either side desired the court to pass upon the merits and no question was raised as to the validity of the appeal taken by the people from such order. That question was not, therefore,, passed upon. This appeal by the people arises upon the same state of facts, but the defendants now move to dismiss it upon the ground that the people have no right to appeal in the present instance, and hence the court can acquire no jurisdiction.
Formerly people had no power to review an adverse decision (People agt. Corning, 2 N. Y., 9; People agt. Comstock, 8 Wend., 599). Afterwards, in 1852 (chap. 82 Laws of 1852), an act was passed giving the people the right to review judgments in favor of any defendant, except in case of acquittal by a jury.
In 1879 and 1880, such right of review was further extended in favor of the people. But a writ of error at common law would not lie on behalf of the people after a judgment of acquittal (People agt. Corning, ut supra; People agt. Pork, 78 N. Y., 346); nor from an order quashing an indictment (People agt. Stone, 9 Wend., 191).
But all these provisions have been abolished by the Code of Criminal Procedure (sec. 515), and now the only mode of reviewing a judgment or order in a criminal action is by appeal. ¡No such mode of review ever existed before and so we must look to the Criminal Code for all authority or limitation of authority. Unless the Code gives to the people this right of appeal the appeal must be dismissed. By soction 518 the people may appeal to the supreme court in two cases: First, from a judgment for defendant on demurrer to indictment; *379second, from an order arresting judgment; neither of which cover the present case. In no other case has the right of the people to appeal to the supreme court been given. The district attorney concedes that the right is not given by the .Code of Criminal Procedure. The concession is fatal.
This court may correct errors and mistakes only when they can be brought before us pursuant to law. The court below, through ignorance or corruption, may rule against the people on questions of evidence, throughout a trial for murder whereby a criminal is acquitted, but this court cannot correct such errors. So, too, of the drawing of a panel of jurors in a criminal case, however gross the error and however fatal to justice the consequences may be, the action cannot be reviewed on behalf of the people. . There is no precedent for an allowance of an appeal in criminal cases outside and independent of the statute. We are not prepared to make one in this case.
Happily we cannot believe any danger can arise from a. willful disregard of the criminal laws or a corrupt purpose to thwart their due execution by judicial officers. The order in the case under consideration was made at the same time with the one in Fitzpatricks case. Hence our decision in that case could not have been known to the learned judge, or aided in modifying his action in the present instance.
Hor can we believe that any judge, after the decision of the Fitzpatrick case, would, on the same facts, disregard that decision, even though that appeal was unauthorized by law. The question may be very easily determined by the court of last resort, as in the Petrea case (92 N. Y., 128), by deciding such motions in accordance with our former opinion and leaving the defendant to test the correctness of the same.
For the reason stated, we think this appeal must be dismissed.
Learned, P. J"., and Pottee, J., concur.
Note.— People agt. Fitzpatrick, refered to in the opinion of judge Boardman, is reported ante 14. In that case counsel for the defendant waived the jurisdictional question and argued the case upon the merits.
*380The court assumed jurisdiction and reversed the order appealed from, but in People agt. Dempsey, above reported, the same general term held that in a case like Fitzpatrick’s they have no power to review.
■ Consent may give a court jurisdiction of parties to an action, but not ■ of the subject matter (Brady agt. Richardson, 18 Ind., 1; Overstreet agt. Brown, 4 McCord [S. C], 79; Campbell agt. Cowden, Wright [Ohio], 484; Cleveland agt. Welsh, 4 Mass., 593; Harrison agt. Rowan, Pet. C. Ct., 489; Walker agt. Rogan, 1 Wis., 597; Hills agt. Miles, 13 Wis., 625; Clyde agt. Parker, 22 Barb., 323).
Consent of parties cannot confer jurisdiction in a matter which is excluded by law. (Bents agt. Graves, 3 McCord [S. C], 280; Foley agt. The People, 1 Ill. [Breese], 32; McHenry agt. Wallen, 2 Yerg. [Tenn.], 441; Simpson agt. McMillion, 1 Nott & M. [S. C], 192; Wells agt. Reynolds, 1 Tread. [S. C], Const., 478; Banks agt. Fowler, 3 Litt. [Ky.], 332; McCall agt. Peachy, 1 Call. [Va.], 55; Brown agt. McKee, 1 J. J. Marsh. [Ky.], 476; Ormsby agt. Lynch, 6 Litt. [Ky.], 303; Lindsey agt. McCleland, 1 Bibb. [Ky.], 263; Little agt. Fitch, 33 Ala., 343; Andrews agt. Wheaton, 23 Conn., 112; Randolph Co. agt. Ralls, 18 Ill., 29).
The proceedings of any tribunal, not having jurisdiction of the subject matter which it professes to decide are void. (Wicks agt. Cauld, 5 Har. & J. [Md.], 42; Griffith agt. Frazier, 8 Cranch, 9; Denn agt. Handen, 1 Paine, 55; Collamer agt. Page, 35 Vt., 387; Gormley agt. McIntosh, 22 Barb., 271; Elliot agt. Piersoll, 1 Pet., 340; 1 Bish. Crim. Pro., sec. 986.
Wells, on jurisdiction of courts, lays down this rule: “Where there is no jurisdiction it does not belong to the proper functions of a court to give an opinion upon a matter submitted to them for the guidance of parties or inferior tribunals, even where the parties consent to it. The whole business of a court is confined to giving decisions in cases properly before it” (P. 10, sec. 13).—[Ed.