People v. Helmer

The jurisdiction of this court is limited to the review of questions of law only, and no unanimous decision of the Ajipellate Division that there is evidence supporting or tending to sustain a verdict not directed by the court can be reviewed by the Court of Appeals. (Const. art. 6, § 9; Szuchy v. Hillside Coal & Iron Co., 150 N. Y. 219 ; People ex rel. v. Barker, 152 N. Y. 417 ; Harroun v. Brush Electric Light Co., 152 N. Y. 212 ; People v. Ledwon, 153 N. Y. 10 , 15.) Consequently no questions of fact, or questions relating to the sufficiency of the evidence, can be reviewed on this appeal. ,

The indictment was based upon the provisions of section 592 of the Penal Code, which, so far as material, provide that an officer of a corporation, who knowingly exhibits a false book to any public officer authorized by law to investigate its affairs, with intent to deceive such officer in respect

The defendant’s counsel also insists that the court erred in admitting in evidence the quarterly report of the Merchants’ Bank, showing its condition on the nineteenth day of September, 1893, which was signed and verified by the defendant. It was proved upon his cross-examination, and was obviously admissible to contradict his testimony. As it was, however, received without objection or exception, it presents no question which can be reviewed upon this appeal.

On the trial the questions most seriously litigated were whether certain entries in the tickler or cash book were false to the knowledge of the defendant, and whether, with that knowledge, he exhibited it to the bank examiner. The evidence to establish these facts was to some extent circumstantial. In submitting the case to the jury, the learned trial judge, after charging that there was no direct evidence to show that the defendant exhibited this book to the bank examiner, and that he was in and about the bank and knew the purpose of the visit of the examiner, then added: “And, as the court at General Term had said, in this case, that was sufficient to satisfy the jury that there was an inspection or presentation of the books to the examiner.” That part of the charge was excepted to by the defendant, and this exception presents the only serious question in the case. The possible effect of that portion of the charge was to convey the idea that the General Term had determined the precise question which was before the jury. It is manifest that this statement was improper, as the question whether the defendant had knowingly exhibited false books to the examiner was purely one of fact to be determined by the jury from the evidence before it, unprejudiced by any statement as to what another court might have said upon that subject. The obvious conse

(dissenting). The defendant was convicted of' a felony under § 592 of the Penal Code, upon an indictment charging him with having exhibited to an examiner of the bank department a false book concerning the condition of a state bank, of which he was the president, and which subsequently failed. On the argument of the appeal in this court his counsel insisted that there was no evidence whatever in the case upon which the issues of fact could properly have been submitted to the jury. On the part of the People this contention is answered by the suggestion that whether there was evidence or not this court has no jurisdiction to look into the record for the purpose of ascertaining that fact, or to-examine sucli a question when the Appellate Division has affirmed the conviction-by a unanimous vote, as it has in this case. The principle is of so much importance, and-tlie decision of the majority of this court upon the point is such a wide departure from what seems to me to be the law of the case,, that I am constrained to dissent from the doctrines of the'

The point is made by the district attorney that when an issue of fact has been joined upon an indictment and a con-, viction for any offense, not punishable by death, is followed by unanimous affirmance at the Appellate Division, that this court is deprived of all jurisdiction to examine the record to see whether the accused has been convicted upon evidence, or without any evidence whatever. If this proposition be correct, then all appeals to this court in such cases ought to be prohibited, since, if we have no power to examine such a vital and fundamental question, we should not be required to listen to arguments that deal only with the competency or relevancy of questions propounded to witnesses, or with the language in which the trial judge may have instructed the jury. The most important question in a criminal case is whether the accused is innocent or guilty, and that must always depend upon the evidence. But if we must shut our eyes against the record and cannot be permitted to inquire whether, in any case, where the court below is unanimous, any evidence has been produced against the accused, then, certainly, all minor questions ought to follow the principal one.

The contention of the learned district attorney practically asserts that in all such criminal cases the most important question of law must be regarded as finally determined by the unanimous decision of the Appellate Division, and that this court can deal only with questions that are generally insignificant. Since this court is disposed to sustain the contention of the district attorney, that we have no power to inquire whether the defendant was convicted with or without evidence, the reasons for such a conclusion certainly merit some examination. The general ground upon which the conclusion rests is that the power which this court has always exercised, to examine and decide all questions of law in criminal cases that come properly before it, has been withdrawn by force of article 6, § 9, of the Constitution. It is clearly provided in that section that, except where the judgment is of death, the jurisdiction of this court

But a little closer analysis of the words of the section will dissipate all doubt derived from a careless reading. It is clear, beyond any dispute, that by the provisions of the section, appeals to this court as matter of right, can be made in three cases only : (1) Judgments finally determining actions. (2) Final orders in special proceedings. (3) Orders granting new trials upon exceptions where the appellant stipulates that judgment absolute may be rendered in case of affirmance. It is these three classes of appeals that the section regulates and prescribes the powers and duties of this court upon the hearing. When we are forbidden to review any particular question of law, it must be some question embraced in a record before this court in some one of the three cases mentioned, for no other cases can come here under that section as matter of right. How, if it can be shown that the three classes of

(1) Appeals from orders granting new trials on exceptions, where the party stipulates that judgment absolute may be given against him in case of affirmance. I assume that no one will claim that any appeal which is conditioned upon a stipulation for judgment absolute could possibly have any application to a criminal case, or that a person charged with a crime was obliged to, or could, stipulate in writing for his own conviction. It is hardly necessary to say that such an appeal was never known to criminal procedure, whereas, it has long been familiar to the practice oh the civil side of the court. The notion that such an appeal applies to criminal cases is so absurd that this class of appeals need not be further considered.

(2) Appeals from final orders in special proceedings. A special proceeding is a civil remedy. It was always known as such and is so expressly defined by statute. (Code Civ. Pro. sec. 3343.) The authors of the Constitution used the term in the sense in which it was generally understood. The record before us shows that the defendant was prosecuted upon an indictment for a public offense. It is not conceivable that any one will contend that it was a special proceeding within the meaning of the Constitution. This disposes of two of the three classes of appeals that the Constitution deals with.

There can be no mistake with respect to the language of the section. It permits appeals in only the three cases that have been mentioned, and each class is designated in careful and accurate terms, that is, final judgments in actions, final orders in special proceedings, and orders granting new trials where stipulation for judgment absolute is given. By no refinement of thought or language can there be a place made in any of these three classes for an appeal in a criminal case. How can the limitations of the section possibly apply to appeals other than'the classes there designated? When we hold that the restrictions of the section apply to all appeals that this court may entertain, then the conclusion is irresisti

We can then look for the right of appeal in such cases, and the power of the court with respect to the questions to be reviewed, elsewhere than in the Constitution, and we find it, as we shall see hereafter, in the statute law on the sxibject, which has not been affected in the least by the limitations referred to, but remains, except as to some vei’bal changes adopting the new names given to the several courts, just as it was befoi'e.

But this is not all that may be said concerning the meaning of the word actions, as used in the section of the Constitution now under consideration. The meaning of a word is freqxxently determined from the company in which it is found; and when the eminent lawyers who framed this section associated together in the same section actions, special proceedings and orders granting new trials, with a stipulation for judgment absolute, it would simply be a perversion of language to hold that they had any reference to criminal cases. Moreover, if the phrase, “ final judgments determining actions,” has any application to criminal cases, then, clearly, a judgment entered upon a verdict of acquittal woxxld be such a judgment, since it certainly determines the action, if action it be, and is final in its nature. It would then follow that the People had noxv the right to appeal to this court from a judgment in a criminal case where the accused was acquitted by the jury, something that was never known befoi’e, and, of course, was not intended.

We will presently see xvhat havoc the construction of the Constitution contended for by the People in this case must inevitably play in other directions with the whole statutory plan of criminal procedure as it exists in this state. But there is still another provision in the section of the Constitution so

If anything more is needed in support of this proposition it can be found in the language of the limitation itself. A finding of fact has no proper application to the result of a trial of an indictment. While, of course, facts are found, yet the determination of the jury in such a case was never, I venture to say, expressed in the fundamental law of any state by such words. A verdict certainly does apply to such a case,

It must always be borne in mind that section nine deals only with the classes of appeals there distinctly specified, and whether these appeals, or any of them, include criminal cases is the pivot of the whole question. It will be observed that the limitation now under consideration applies to a decision, It is called a unanimous decision of the Appellate Division, What does the word decision here mean ? It is used in the plural form in the next sentence of the section providing that appeals .may be taken of right only from judgments or orders entered upon decisions of the Appellate Division. In both cases the word is used in the same sense and refers to the same thing, and this court has so expressly decided. (People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 434 .) It is plain, then, that it must refer to the formal judicial determination which authorizes the entry or enrollment of the judgments and orders designated in the section; that is to say, final judgments in actions, final orders in special proceedings, and orders granting new trials. It has been shown that those are judgments and orders in civil cases, and cannot possibly be anything else, and, if I am right in that, it must follow that the decisions specified in the two sentences of the section must be decisions in civil cases only, and hence the “ unanimous decision ” referred to in the limitation .must be a decision in a civil case. Whoever claims that it can possibly have any reference to a criminal

I have now examined each of the three provisions of section 9, which embodies all the limitations that the Constitution has imposed upon appeals to this court. That section, as we have already seen, deals only with three classes of appeals, and these 'classes are, as it seems to me, civil cases only. If the section should be construed to apply to all appeals, it would have the effect of excluding appeals in criminal cases entirely.

It is worthy of note that the lawyers in the convention who framed this section and reported it .to the convention, and upon whose advice it was adopted, made no mention, either in the debate, or in any report, of any purpose to interfere with appeals in criminal cases, while the effect it was intended to have upon appeals in civil cases was fully explained and debated; and what is still more remarkable is, that a member of the judiciary committee, who was prominent in framing the section and urging its passage, is the author of two bills which he presented to the legislature in behalf of the bar of the state, revising both the Codes of Criminal and Civil Procedure, in order to bring them into harmony with the changes in the practice which the new Constitution, then adopted, had introduced. His work is found in chapters 880 and 946 of the Laws of 1895. These statutes, enacted for the very purpose of carrying the changes into effect, have great weight in the construction of the limitations upon appeals contained in section nine. The Code regulating the procedure in all civil cases has incorporated in it all the limitations upon appeals that are to be found in the section, in the very words there used. While in the Code regulating the procedure in criminal cases, and defining the right of appeal in such cases to. this court, they have all been omitted and the practice left just as it was before. It would be impossible to conceive a weightier example of, not only legislative construction, but construction by the framers of the Constitution themselves. We know that arguments drawn from like

When we want to determine what cases and questions this court may review, we always look into the statute to see whether the power has been granted, and if it has been then the only question that can arise is whether the lawmaking body had the power to grant it, or whether it has been abrogated by the Constitution. The Constitution is not a code of practice, but an instrument containing fundamental principles and restrictions. Looking into this statute we find that the legislature has provided for appeals to this court, without any restrictions or limitations whatever, either with respect to the. mode of review or the questions to be considered, in at least seven distinct cases that can arise only in a criminal prosecution. They are all to be found in section 519 of the Code of Criminal Procedure, or in statutes that are made a part of it, and the appeal is declared to be a matter of right. It will be profitable to note these cases and we can then see how every right of appeal in criminal cases, as there given, will be shattered by the construction of the Constitution, which is urged by the People in this case.

(1) The defendant only may appeal from a judgment of conviction in a capital case directly to this court from the trial court. Ho such appeal as this is provided for in the Constitution, though judgments of death are excepted from certain of its restrictions. But the right of appeal cannot be built upon mere words of exception, and we must look for it elsewhere, and it is found in the statute law which the Constitution retained. The appeal which the Constitution provides for is not from a judgment of conviction in a capital case, or other criminal cases, but a final judgment which determines an action. Moreover, the right of appeal specified in section nine is general, and given to the plaintiff as well as the defendant, and if the section applies to criminal cases, the People may appeal as well as the defendant, since there is no restriction in that respect. So that upon the assumption that

(2) An appeal is also given by the statute to this court from a judgment of the Appellate Division affirming or reversing a judgment of conviction. That appeal may be taken by either party. The appeal now before us is from a judgment affirming a conviction. It is in no proper sense an appeal from a final judgment in an action, and hence is not within the limitations or restrictions of section nine of the judiciary article of the Constitution. The right of the defendant to appeal to this court from a judgment affirming his conviction implies the right to be heard on every question of law disclosed by the record, including the question whether there was any evidence to submit to the jury, and also implies the power in the court to decide all such questions. The Constitution has not abrogated, in the slightest degree, the right or the power.

(3) The statute also gives the right of appeal from a judg-' inent of the same court affirming or reversing a judgment for the defendant on a demurrer to the indictment. Here, again, the original judgment must be one in favor of the defendant. A judgment sustaining or overruling a demurrer to an - indictment is, from its very nature, interlocutory. It determines nothing except the sufficiency of a pleading. The guilt or innocence of the accused is not involved, but only a mere preliminary question of law. Such a judgment is in no sense final, much less is it a final judgment which determines an action. This shows that the limitations of section nine have no application to criminal cases, otherwise the right to take such an appeal could not exist and the statute would be unconstitutional, since the section declares that appeals may be taken only from the judgments and orders there specified.

(4) The statute also gives an appeal as matter of right from

(5) An appeal is also authorized in a criminal case from a final determination affecting a substantial right of the defendant. Here, again, the appeal is given only when the decision affects the defendant. It is perfectly clear that all appeals of this character to this court have been abolished by the Constitution in civil cases, but no one will contend that they have been abolished in criminal cases, and, if they have not, then what becomes of the contention that the limitations on appeals in section nine apply to both cases alike ?

(6) Appeals may also be taken to this court from the Supreme Court by certain charitable institutions, and by parents and guardians when children have been summarily committed to such institutions. Of course, such appeals are not from any final judgment in an action, or from a final order in a special proceeding, or an order granting a new trial, but in summary orders in proceedings of a criminal nature. The case is mentioned here, since it serves to illustrate the wide distinction which the Constitution has observed between appeals in civil cases and in criminal cases. The right to bring such appeals can never be attacked except upon the ground now urged, that criminal cases are within the limitations of the Constitution, and when that proposition is sanctioned by this court the right is gone, and it certainly ought to go if it be true that we have no power upon an appeal from a conviction of murder in the second degree, or any lesser crime, unanimously affirmed below, to look into the record in order to ascertain whether there was any evidence to submit to the jury.

It is obviously impossible at this day, if it ever was possible, to classify appeals in civil and criminal proceedings together, and subject them all alike to the same general and sweeping restriction. The general principles that govern the two branches of the law, the rules of evidence and the methods of procedure are radically different. (Cancemi v. People 18 N. Y. 128 .) In civil cases issues of fact are determined by a preponderance of testimony, and the law subjects every case and each party to the same general rules. Hot so in criminal cases. The accused must be acquitted unless his guilt is established beyond a reasonable doubt. In some cases, as in treason and conspiracy, certain overt acts must be proven and, sometimes, by at least two witnesses. Ho conviction can be had upon the uncorroborated testimony of an accomplice, and, in at least one class of public offenses, the jury, under the Constitution, must determine both the law and the facts. How can this court ever know whether these rules of law have been observed at the trial if we are concluded upon all the substantial issues in the case by the unanimous opinion of the court below and are forbidden to look into the record to see whether there was any legal evidence upon which to base the judgment? Moreover, the right of ajDpeal in

The attempt under such conditions to group appeals in civil and criminal cases together in the same class, and to subject them all to the same general and sweeping restrictions, such as are to be found in section nine, is to my mind such a utopian scheme that I am unwilling to believe that any constitutional convention that ever assembled in this state entertained it for a moment. In the criminal law it is a fundamental principle embodied in the Constitution that a person cannot be deprived of life or liberty without proof of the conviction of some crime, and by the common law which the Constitution has adopted, as well as by express statute, unless the proof establishes guilt beyond a reasonable doubt, the accused is entitled to an acquittal as an absolute right. Hence the phrase, “ tending to sustain a verdict ” has no application. The question is not whether the proof tends to sustain the charge as in civil cases, but whether it is established beyond a reasonable doubt. This may be illustrated by the very common case of positive proof by an accomplice that the accused did in fact commit the crime. Certainly here is evidence tending to sustain the charge and tending to sustain a verdict not directed by the court. But the law will not permit a conviction to be had on such proof unless corroborated, and yet, according to the contention of the People, if the accused happens to be convicted on such proof, without any corroboration, we have no jurisdiction to look into the record to correct such an error in any case where the court below unanimously affirms the conviction.

If the rule in civil cases applies, it will not help the defendant to show from the record that he has excepted to the submission of the case to the jury. It is, of course, no answer to this argument to say that the defendant should have raised the question in some other way. (Szuchy v. Hillside Coal & Iron Co., 150 N. Y. 219 .) The radical vice in the contention, from beginning to end, consists in the effort to apply such a restriction to appeals in criminal cases, by fastening

In a conviction for libel, where the jury determines the law and the facts, can we not look into the record so see whether there was anything tending to sustain the verdict, or is the unanimous affirmance below conclusive ? If this restriction is confined to civil cases, where it obviously belongs, these questions cannot possibly arise.

The solution of the question raised in this case seems very plain and simple. We have a statute relating wholly to criminal procedure, enacted since the Constitution went into effect, which, in the plainest terms, gives us jurisdiction over every question of law in the record, and that includes the power to reverse the conviction, if we are satisfied that there was no evidence on any of the material questions of fact to submit to the jury. This statute gives us the same jurisdiction that we had before the present Constitution was enacted. It cannot be shown that this statute is in any way repugnant to the Constitution or to any of its limitations, or that it has in any respect been abridged or modified by that instrument. Every presumption is in favor of its validity. The Constitution and the statute can stand together, and each can perform the office which the lawmakers intended and had in view. Ho conflict can possibly be created between them unless we push the provisions of the Constitution to a point not warranted by the language. We have only to apply the Code to appeals in criminal cases and the limitations of the Constitution upon appeals to civil cases, and there is no longer any room for conflict.

. I regard the question upon which the court has concluded to reverse the judgment as comparatively insignificant. I need not discuss it further than to say that, in my opinion, it is infinitely more difficult to defend the proposition that we have lost jurisdiction over the rnost substantial questions in the case than it is to uphold the charge of the learned trial judge.

I, therefore, dissent from the judgment in so far as it holds

Bartlett, Haight and Yarn, JJ., concur with Martin, J., for reversal.

says: I think this judgment should be affirmed. I concur with my brother Martin’s opinion upon all the points discussed, except as to the alleged error in the charge of the trial judge, and it is from the conclusion which he reaches in that respect that I dissent.

O’Brien, J., reads dissenting opinion on question of jurisdiction, but declines to vote on the question of alleged error in the charge.

Judgment reversed and new trial granted.