The People of the State of New York, Appellant, v. James J. O'Brien, Respondent

The People of the State of New York, Appellant, v. James J. O’Brien, Respondent. Appeal — Non-reviewable Order of Reversal in Criminal Case. An order of reversal in a criminal case, that does not, upon its face, exclude the possibility that it was based upon an examination of the facts or made as matter of discretion, presents no question of law reviewable by the Court of Appeals. People v. O’Brien, 48 App. Div. 66, appeal dismissed. (Argued June 21, 1900; decided October 2, 1900.) Appeal from an order of tlie Appellate Division of the Supreme Court in the first judicial department, made February 9, 1900, reversing a judgment of the Court of General Sessions convicting the defendant of the crime of assault in the third degree. The facts, so far as material, are stated in the opinion. Charles E. Be Barbier for appellant. James W. Riclgway for respondent. There is nothing before this court to review. "Where a judgment of conviction is reversed on the facts by the Appellate Division, its decision is not reviewable by this court. (People v. Mitchell, 142 N. Y. 639; People v. Stevens, 104 N. Y. 667.) When the order of the Appellate Division does not state upon what ground the judgment of conviction was reversed, it is assumed that the judgment was reversed upon the facts, and the order is not reviewable before this court. (People v. Boas, 92 N. Y. 560; People v. Conroy, 97 N. Y. 62.) [MAJORITY — O’Brien, J.] O’Brien, J. The defendant was indicted for the offense of assault in the third degree, and on a trial was convicted by the jury and sentenced to pay a fine of $50. On appeal to the Appellate Division the judgment was reversed. The order of reversal simply states that it was “ ordered and adjudged that the said judgment so appealed from, as aforesaid, be and the same hereby is reversed.” The order does not state upon what ground or for what reason the judgment was reversed. The defendant was entitled to have the facts examined upon the appeal, and we cannot say that the reversal did not proceed upon that ground. If the court below reversed upon some view of the facts, as it might, this court has no power to review the decision since our jurisdiction is expressly limited to questions of law. We have no power to review a judgment of reversal in a criminal case unless it appears affirmatively in the body of the order that the court below has exercised its power and discretion to review the facts, and that, being satisfied with the judgment in that respect, the reversal was ordered for error of law only. Inasmuch as the order in this case does not, upon its face, exclude the possibility that it was based upon an examination of the facts, or made as matter of discretion, no question of law is presented by the appeal. (Harris v. Burdett, 73 N. Y. 136; People v. Boas, 92 N. Y. 560; People v. Conroy, 97 N. Y. 62; People v. Stevens, 104 N. Y. 667; People v. Mitchell, 142 N. Y. 639.) The appeal should, therefore, Joe dismissed. Parker, Oh. J., Bartlett, Vann, Landon, Cullen and Werner, JJ., concur. Appeal dismissed.