order, respiting and continuing to the next court of sessions to be held in the county, all indictments pending and undetermined in such court of oyer and terminer, and triable in the court of sessions, and not otherwise continued or disposed of at the same term of court, and in like manner respiting and continuing to the next court of oyer and terminer, all pending indictments not triable in the court of sessions, and not otherwise continued or disposed of at the same term. And in the courts of sessions a similar order is also generally entered upon the last day of its term, respiting and continuing to the next court of sessions all indictments triable in the court of sessions, and not previously continued or disposed of, and respiting and continuing to the next court of oyer and terminer all indictments not triable in the court of sessions, and not previously respited or continued at the same term.

It has also sometimes been the practice to enter at the close of the court, a general order continuing all recognizances given for the appearance of prisoners or witnesses, and not otherwise disposed of, to the next term of the same court, although it has been questioned whether such order is binding, and whether the recognizances should not have been estreated instead of continued by such order.

In addition to the general order of continuance for indictments, of which a precedent will be found in the appendix, the clerk of the court generally enters a special order upon each indictment, continuing it to the proper court. It is well enough to see that the general order, however, is entered, in case of omission by the clerk to continue any particular indictment to its appropriate

court.

CHAPTER XIII.

OF WRITS OF ERROR AND CERTIORARI, AND OF MOTIONS FOR NEW TRIALS.

In many cases where a conviction of the defendant has been had, his counsel may be of the opinion that the proceedings had upon the trial were, in some respects, erroneous, and that the conviction is illegal, and may seek to have the proceedings reviewed by a superior tribunal.

In cases of summary convictions, as previously stated, the method of obtaining a review of the proceedings is by a common law writ of certiorari.1

In cases of convictions had before a court of special sessions, or police court, as has been previously stated, the method of review is by the statutory certiorari in the court of sessions of the county where the conviction is had.2

In case a conviction of the defendant is had upon the trial of an indictment in a court of record, and it is sought to review the proceedings of the trial for error in a superior tribunal, recourse is had to the writs of error and certiorari provided for that purpose by the Revised Statutes.

In these cases a review is had in the Supreme Court by writ of certiorari if before judgment is pronounced, and by writ of error if judgment has been had, all appeals of felony having been abolished. Besides the reviews above mentioned, in the court of sessions, a motion may be made for a new trial upon the merits, or for irregularity, or on the ground of newly discovered evidence in all cases tried before them.

The subject of such motions, and of the review of trials had upon indictments in courts of record, will be treated of in this chapter:

The rules hereinafter laid down, in regard to the grounds of exception, contents of bills of exceptions, and the questions reviewable upon writs of error and certiorari must, however, be understood as subject to exception from the general rule in those

1 Page 148, ante.

* Vide page 225, ante. 2 R. S., 748, § 50.

cases; falling within the scope of the act of 1855,1 of which mention will be made hereafter.2

Section

SECTION I.

OF EXCEPTIONS AND BILLS OF EXCEPTIONS.

I.-OF THE DEFENDANT'S RIGHT TO MAKE EXCEPTIONS ON THE TRIAL OF THE INDICT

MENT.

II.-EXCEPTIONS, WHEN TAKEN.

III-GROUNDS OF EXCEPTION.

IV-BILL OF EXCEPTIONS.

V.-TIME IN WHICH TO MAKE BILL OF EXCEPTIONS.

VI.-OF SETTLING THE BILL OF EXCEPTIONS.

VII.-RE-SETTLEMENT OF THE BILL.

§ 1. DEFENDANT'S RIGHT TO MAKE EXCEPTIONS ON THE TRIAL OF AN

INDICTMENT.

On the trial of any indictment exceptions to any decision of the court may be made by the defendant, in the same cases and manner provided by law in civil cases, and a bill thereof shall be settled, signed and sealed, ånd shall be filed with the court, and returned upon a writ of error as now authorized in personal actions, or upon a certiorari as hereinafter provided, and the same proceedings may be had to compel the signing and sealing of such bill and the return thereof.3

To enable a party to avail himself of any irregularities in the court below it should be presented, in the first instance, in that court, either by plea in abatement or bill of exceptions, so as to introduce it upon the record, and thus subject it to review.1

§ 2. EXCEPTIONS, WHEN TAKEN.

When an exception is taken it may be reduced to writing at the time, or entered in the judge's minutes and afterwards settled as provided in the rules of court.5

The law is explicit upon the point that the exceptions in which the questions of law are sought to be raised should be taken at

'Laws 1855, ch. 337, § 3, p. 613; Peo. v. McCann, 2 Smith, (16 N. Y.,) 58; Laws 1858, ch. 330.

2 Vide post.

32 R. S., 736, § 23; Safford v. Peo., 1 Park, 474.

Hayen v. Peo., 3 Park., 175.

* Code, § 264.

the time of trial. Decisions made by the judge during the trial, which are deemed erroneous, must be excepted to at the trial.1

A point not raised at the trial cannot be taken on a motion for a new trial.2

An exception to a charge of a judge, after a jury have withdrawn, will not be received.3

Where the bill of exceptions showed that on the trial of the cause a verdict was directed for the plaintiffs, with leave for the defendant to move that a non-suit be entered, and to the plaintiffs to except in the same manner as if the non-suit was granted at the trial, and the court, after argument at bar upon the questions raised on the trial set aside the verdict, and directed a nonsuit to be entered, to which decision the plaintiffs excepted; held, that inasmuch as the exception was not raised at the trial, it must be disregarded.*

Refusal to charge as requested is not available on bill of exceptions, where such refusal was not excepted to on the trial, notwithstanding there was an exception to the charge as given.5

Under the old practice, if the judge at the trial of the cause, whether at bar or at nisi prius, either in his charge to the jury or in deciding any interlocutory question, mistake the law, the counsel on either side might tender an exception to his opinion, and require him to seal a bill of exceptions."

Objections to the manner in which a jury were summoned or empanneled cannot be made for the first time after verdict.7

Where on the trial there is an opportunity to object, but the party remains silent, all reasonable intendments will be made in a court of review to uphold the judgment.8

And where improper evidence is received, and the question of its admissibility on objection is reserved, and it is taken subject to the objection, and after the evidence is closed the jury are

1 Hunt v. Bloomer, 13 N. Y. R., 341; Johnson v. Whillock, 3 Kern., 344;. Code, § 264.

Ford v. Monroe, 20 Wend., 210.

Life and Fire Ins. Co. v. Mech. Ins. Co., 7 Wend., 31.

• Onondaga Co. Mut. Ins. Co. v. Minard, 2 Com., 98; McCracken v. Chalwell, 4 Seld., 133.

Nichols v. Dusenbury, 2 Com., 283.

3 Bl. Com., 372.

Dryharsh v. Enos, 1 Seld., 531.

Jencks v. Smith, 1 Com., 90.

instructed to disregard it, no specific objection to that course being raised at the time, such ruling cannot afterwards be complained of.1

§3. GROUNDS OF EXCEPTION.

An exception is available for the purpose of correcting an error in the admission or rejection of evidence, in granting or refusing a non-suit, in charging or refusing to charge the jury on a specific proposition, or in deciding any question on the trial affecting the merits, but all that relates to the manner of conducting the trial, to the forms of the questions asked, if not objectionable in substance, and to the range allowed to counsel in their arguments, is matter of discretion as to which a remedy for a supposed error cannot be had by exception.2

Under the old practice a bill of exceptions did not draw the whole matter into examination, but only the points upon which it is taken, and the party excepting must lay his finger upon these points which might arise, either in admitting or denying evidence, or matter of law arising from a fact not denied, in which either party was overruled by the court."

Among the reported decisions, the following may be cited as illustrating the general grounds of an exception; although most of them are to be found in the reports of civil cases, yet the general principles involved are the same as those occurring in criminal practice; but where an exception is taken so indistinctly that the court cannot readily perceive the exact point of the objection, the appellate court will disregard it.4

The exceptions are limited to those taken on the trial of the main issue, and are not available as to decisions made on the trial of preliminary or collateral questions, such as decisions made on a motion to quash the indictment on the grounds of irregularity in organizing the grand jury, or on an issue joined on a challenge to the array of jurors.5

Where a judge omits to notice material testimony in his charge to the jury, this is not error, unless the party call his attention to it, and request him to give it in charge."