People v. Hill , 73 Hun 473 ( 1893 )

PER CURIAM.

This is a motion to correct an order made by this court reversing the judgment of the oyer and terminer by adding to such order a direction for a new trial, or that the defendant be discharged, or his bail exonerated, as required by Code Crim. Proc. § 545. The defendant was indicted for murder in the second degree,, and at the oyer and terminer held in Delaware county, September,. 1890, convicted of manslaughter in the second degree. From the judgment of conviction thus rendered an appeal was taken to this-court, where the judgment was reversed for errors in rejecting evidence offered by the defendant and in the judge’s charge. 20 N. Y. Supp. 187. In the memorandum of decision' handed down by this court it was stated that the judgment and order were reversed, without directing a new trial, or discharging the defendant or his-bail. In pursuance of that memorandum the defendant caused an order to be entered in the office of the clerk of Oneida county, where-the court was held when the decision of this appeal was made; and the clerk of that county thereupon certified a copy thereof to Delaware county, where the original judgment roll was filed. Subsequently this motion was made, and the court of oyer and terminer was requested to return to this court the papers and proceedings-sent to the clerk of Delaware county, and the judgment entered therein, to be used upon -the consideration of this motion. With-that request the court of oyer and terminer complied, so that the judgment roll and all the papers in the case are now before us. These papers disclose that no judgment has in fact been entered on the decision of this court, either in Oneida or Delaware county,, but that only an order has been entered. It is manifest that the decision handed down by this court, and the order entered in pursuance thereof, do not comply with the requirements of section 545. It is also manifest that the omission to comply with the provisions-of that section occurred through inadvertence, and not by design. That this court did not intend to discharge the defendant or exonerate his bail becomes obvious when we consider the grounds-upon which the judgment and order were reversed. It is clear front the papers that the omission in this case was of a direction ordering a new trial in the court below, and such was the fact. Under these circumstances it is clearly the duty of this court to amend the order in this case, so as to carry into effect the actual intention •of the court, if it has jurisdiction and power to make such an order at this time. The defendant contends that this court has no such power. His precise contention is that, the court having announced its decision, although upon its face it disclosed that it was imperfect in failing to comply with the requirements of the statute, the power of the court is spent, and it cannot amend the order so as to conform to the decision intended. We think this contention cannot be sustained. A bare inspection of the memorandum handed down by the court showed that it was imperfect and incomplete; jet the defendant, who must have discovered that fact, saw fit to procure an order to be entered and certified, without in any way ■calling attention to the omission, or seeking to have the decision -amended, or to discover whether the court intended to discharge the defendant or to grant him a new trial. Upon these facts, and with all the orders and papers before us, we think we have power and authority to amend this order so as to make it conform to the decision intended to be made. Altman v. Hofeller, 137 N. Y. 619, 620, 33 N. E. 601; People v. Phelps, (Sup.) 18 N. Y. Supp. 699, affirmed 30 N. E. 1012.

We find nothing in section 549 of the Code of Criminal Procedure ¹ that prohibits this court from granting the order sought. We are of the opinion that the intention of that section was not to prohibit an appellate court from so amending its order or decision as to make it conform to the decision intended, but that it applies only to a case where the decision of the court has been fully perfected in accordance with its intentions. Moreover, no judgment has been entered or remitted as required by section 547. While in some of the affidavits read upon this motion the affiants are made to say that a judgment was entered, still in each case they refer to a paper annexed as a copy thereof. When the paper to which they refer is examined, it is found that it is not a judgment, but only an order, upon which a judgment might have been entered. By an examination of section 532 of the Code of Criminal Procedure-it will be seen that, upon an appeal being taken, it is the duty of the clerk with whom the notice is filed to transmit a copy of the notice of appeal and of the judgment roll to the clerk of the county where the next general term is to be held. Section 547 declares that, after “the judgment of the appellate court is given, it must be entered in the judgment book,” and when so entered “a certified ■copy of the entry” shall be remitted to the clerk “with whom the -original judgment roll is filed;” while section 548 provides that “the decision of the court and the return shall be remitted to the court below in the same form and manner as in civil actions.” Thus the practice is clearly pointed out by the statute, and requires, among, other things, that a judgment shall be entered in the judgment book in the county where the court is in session when the decision is-made, and that it shall be certified to the county where the original judgment roll is filed. Until this is done a case must be regarded, as still in the appellate court, and it must have sufficient jurisdiction to make an order granted by it conform to its intended decision. Thus we are led to the conclusion that this court has jurisdiction and authority to amend the order in this case, and that it should be amended so as to conform to the intended decision of the appeal herein. Order amended in accordance with the foregoing, opinion.

1 Code Crim. Proc. § 549, provides as follows: “After the certificate of the judgment has been remitted as provided in section 547, the appellate court has no further jurisdiction of the appeal or the proceedings thereon; and all orders, which may be necessary to carry the judgment into effect, must be made by the court to which the certificate is remitted, or by the court to which the cause may thereafter be removed.”