The practice in question has heretofore been confined, with few exceptions, to the trial of capital cases; and, even in those, I do not now recollect an instance where any division of opinion occurred on the trial, resulting in a certificate of a question to the supreme court. Generally speaking, motions in arrest of judgment, or for a n* w trial, which are liberally indulged, afford sufficient security against errors or mistakes at the trial. A division of opinion may be certified on a motion in arrest of judgment (U. S. v. Kelly, 11 Wheat. [24 U. S.] 417), though it cannot on a motion for a new trial. But, where there is a difference of opinion on a motion for a new trial, such g direction will be given to the ease as will enable the defendant to obtain a certificate of a division under the statute. A new trial will be granted, and the cause will be again submitted’to a jury in the presence of the two judges, and the question or questions will be regularly certified. This has occurred in a very few instances in the Northern district of New York, and also in the Southern district of New York, and, indeed, as far as I can remember, in every case where a serious and well-grounded difference existed.-
I think that, under these guards and securities against error, on the trial of the current and ordináry offences against the laws, the contingency or possibility of a difference of opinion between the two judges on the trial does not present a case which would justify an interference with the trial of the cause in the usual way. in conformity to the practice in criminal cases.