The People v. Nestle

The People v. Nestle. The People are not entitled to a writ of error to review the order of the Supreme Court, granting a new trial in a criminal case, where there had been a conviction and certiorari with stay of judgment in the court below. The writ only lies where there has been judgment for the prisoner upon the indictment. The defendant was tried in the Court' of General Sessions of Montgomery county, upon an indictment for embezzlement and grand larceny, and was found guilty of grand larceny. Before judgment a bill of exceptions was taken by the defendant, and a certificate made by the judge of probable cause. Judgment was stayed upon the indictment and the District Attorney sued out a certiorari to remove the indictment and bill of exceptions into the Supreme Court. That court, on argument, held the exceptions well founded and ordered a new trial. The People thereupon brought a writ of error to the Court of Appeals. A motion was thereupon made by the defendant to dismiss the writ of error. • A. H. Ayres, for the defendant. A. Hees, District Attorney, for the plaintiffs in error. [MAJORITY — Johnson, Ch. J.] Johnson, Ch. J. .The right of the People to bring-writs of error in criminal cases depends upon chapter 82 of the Laws ■of 1852. That act provides that writs of error to review any judgment, rendered in favor of any defendant upon any indictment for any criminal offence, except where such defendant shall have been acquitted by a jury, may be brought on ‘behalf of the People, and that the Court of Appeals shall have full power to review, by writ of error on behalf of the People, any such judgment rendered in the Supreme Court in . favor of any defendant charged with a criminal offence: It is only judgments for the defendant upon an indictment to which the terms of the statute extend. No such judgment has yet been rendered in this case. In the general sessions judgment was stayed j in the Supreme Court a new trial, was ordered, but no judgment on the indictment was given for the defendant in either Court. The case is plainly not provided for by the statute, the language of which is clear and precise. Technical words are employed which accurately exclude such cases as the present. The motion to dismiss must be granted. Writ of error dismissed.