SECTION II. WRIT OF CERTIORARI TO REVIEW TRIAL OF INDICTMENT. Section 1.-GENERAL REMARKS. II.-BILL OF EXCEPTIONS. III-STAY OF PROCEEDINGS. IV.-LETTING CONVICT TO BAIL. V. OF THE CERTIORARI, AND RETURN OF THE CLERK. VIII.-NO ASSIGNMENT OR JOINDER OF ERRORS NECESSARY. X-JUDGMENT ON CERTIORAKI. XI-DEFENDANT NOT APPEARING AFTER JUDGMENT. § 1. GENERAL REMARKS. In seeking to obtain a review of proceedings had upon the trial of an indictment, two modes are prescribed by the statute-one by certiorari, the other by writ of error. The certiorari is a proceeding after conviction and before judgment, but after judgment the proceedings can only be reviewed by writ of error.1 In this section we shall treat only of the review by way of certiorari before judgment. The manner of obtaining the review by writ of error will be treated of in the succeeding section. Prior to the Revised Statutes there was no bill of exceptions in a criminal case, and writ of error thereon for the review of convictions in the oyer and terminer. The review was obtained in this manner: The court suspended passing sentence, and certified the question which was in doubt to the Supreme Court, who considered and passed upon it and advised the court below either to grant a new trial or proceed to pass sentence; and sometimes, when the convict was before them, they passed the sentence themselves. Whether the trial should be reviewed was at the option of the court before which it should be had, and the party had not the right, as in civil cases, to take exceptions and carry up the record for review. In case the judge consented to the review, the necessary time for that purpose was given either by the court suspending its judgment, or after judgment pronounced by suspending the execution. The Legislature, in the Revised Statutes, altered this practice and gave to the prisoner the right to interpose his exceptions, and a right to the review of his case, and they adopted various provisions to carry out their intentions. Peo. v. Donnelly, 21 How., 406; Willis v. Peo., 32 N. Y., 715. They gave the party on trial an absolute right to a bill of exceptions. In certain cases the district attorney might sue out a certiorari, and so bring the exceptions to the attention of the appellate court; and, on the other hand, the defendant might sue out his writ of error, and so bring the case up for review. In all cases not capital, the writ of error was one of right, and the judge was bound to allow it. In capital cases it was in the discretion of the judge who tried the cause, or any other judge of the Supreme Court, to allow or refuse the writ. And then, to provide the time necessary for a review of the case in the higher court, it was provided in all cases that the writ of error should stay or delay the execution of the judgment, or of the sentence thereon, when there was an express direction that it should operate as a stay.1 Since the report of the case above alluded to, the Legislature has made some amendments in relation to the practice of the writ of error, which will be noticed in the next section. A challenge for principal cause constitutes a part of the record, and, to review this, a certiorari will lie in a criminal case; but otherwise, if a challenge to the favor.2 Error committed by a criminal court having jurisdiction of the offence and of the person of the prisoner, cannot be re-examined on habeas corpus. Whether the error occurred at the trial, or is alleged to exist in the judgment rendered, the only remedy is by certiorari or writ of error.3 § 2. OF THE BILL OF EXCEPTIONS. 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 of exceptions shall be settled, signed and sealed, and shall be filed with the clerk of 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.1 In the case of the People v. Haynes (11 Wend., 561), the court, Carnell v. Peo., 1 Park., 268. See Peo. v. Gates, 15 Wend., 159. 'Ex parte Vermilyea, 6 Cow., 555. Peo. v. Cavanaugh, 3 Park., 650. 2 R. S., 736, § 23. NELSON, Justice, said many questions were raised and urged upon our consideration by the counsel for the prisoner, which we cannot entertain or determine, such that the verdict of the jury is against law and evidence, if the charge of the court be correct, and that the court erred in commenting upon the facts or testimony in the case. These are questions that cannot be raised on the bill of exceptions, or be brought before us for review according to the established practice. By the statute (2 Revised Statutes, 736, § 21), on the trial of an 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. In civil cases, it has long been settled that the bill of exceptions does not draw the whole matter disclosed on the trial of a cause again into discussion or examination, and that the party excepting must, lay his finger on the points which may arise either in admitting or rejecting evidence, or in relation to questions of law arising from facts. not denied, in which either party was overruled by the court.1 This proceeding brings up for review only questions of law, and no more of the evidence should encumber the record than is sufficient to present them to the court. Everything else is surplusage, and would be stricken out on a proper application. Relief from verdicts which are against law and evidence in civil cases, must be sought by pursuing a different remedy, unless there has been some error in the ruling of the court upon a question of law. So it must be in criminal cases An exception to the rejection of proper testimony, falls with the abandonment by the district attorney of that branch of the charge to which it relates.2 In this case, there was an indictment for a nuisance, charging the defendants with causing an obstruction in a public highway, and also occasioning the atmosphere in the same locality to be infected with offensive smells by means of their business; and in the progress of the trial, the court excluded competent evidence offered by the defendants to repel the charge relating to the alleged smells, and the defendants excepted; but before the cause was submitted to the jury, the public prosecutor abandoned everything charged in the indictment except the alleged obstruction to the highway, and it was held that the defendants were not 1 1 Bacon, 528, and cases cited, Phila. Ed., 1811; 5 John. R., 467, 8 Id., 507; 1 Cow., 639; 9 Wend., 296. Peo. v. Cunningham, 1 Den., 524. entitled to a new trial on account of the erroneous ruling of the court, as under the circumstances they could not have been injured thereby. The reader who is familiar with the grounds of exceptions taken upon trials in civil cases, will have no difficulty in ascertaining what are sufficient grounds of exception upon the trial of indictments.1 The same exception in regard to the review of convictions for capital offences, or for those punishable as a minimum punishment in State prison for life, when had in the court of general sessions, already noticed, must be borne in mind, where a new trial may be had, if the verdict was against the weight of evidence, or law, or justice requires it, whether any exception was taken or not in the court below. § 3. STAY OF PROCEEDINGS. It is provided by statute that no such bill of exceptions shall stay or delay the rendering of jugdment upon any such indictment, or the execution of such judgment, or of any sentence thereon, except as is provided by the statute. In courts of oyer and terminer it is provided that, upon such bill of exceptions being settled and signed, if the circuit judge who tried the cause, or a justice of the Supreme Court, shall certify on such bill that, in his opinion, there is probable cause for the same, or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon, such certificate, upon being filed with the clerk of the court, shall stay judgment on such indictment until the decision of the Supreme Court be had upon such exceptions. If such bill of exceptions shall have been tendered to any court of sessions, and shall have been settled, signed and sealed, and the judge who presided on the trial, or any justice of the Supreme Court, shall grant a certificate, as provided in the last section, upon the filing thereof with the clerk of the court, judg ment shall be stayed upon such indictment until the decision of the Supreme Court be had upon such exceptions. But no certificate shall be granted by a judge of the Supreme court unless application therefor shall first have been made to the judge who presided at the trial, and the reasons of such judge for refusing the same be attached to the bill of exceptions.3 § 4. LETTING CONVICT TO BAIL. Upon such certificate being granted, as above provided, in any case where the offence charged is punishable by imprisonment in a State prison, or in a county jail, the court in which the trial shall have been had, or any justice of the Supreme Court, may let the defendant to bail upon a recognizance with sufficient sureties, conditioned that he shall appear in the court where such trial was had at such time as the Supreme Court shall direct, and that he will obey any order or judgment the Supreme Court shall make in the premises.1 § 5. OF THE CERTIORARI AND RETURN OF THE CLERK. When judgment shall have been stayed upon any indictment, as herein provided, it shall be the duty of the district attorney of the county immediately to sue out a writ of certiorari, returnable in the Supreme Court, to remove such indictment, with the bill of exceptions and other proceedings thereon, into such court, and the clerk of the court shall without delay make a return thereto, containing a transcript of the indictment, bill of exceptions and the certificate staying judgment." The certiorari may be served by delivering it to the clerk of the court below during vacation, who may return it immediately, notwithstanding it be directed to the court.3 § 6. DUTY OF DISTRICT ATTORNEY TO BRING CERTIORARI TO ARGUMENT. The statute declares that the district attorney of the county shall bring on for argument, as soon as practicable, the return to any writ of certiorari issued by him under the provisions of the statute above cited, in cases where judgment on an indictment shall be stayed, and it shall also be competent for the defendant in any indictment removed by certiorari, as above provided, to notice and bring on for argument the return to any such writ.* § 7. NOTICE OF THE ARGUMENT. If an attorney shall have appeared for the defendant in any indictment so removed by certiorari, by giving notice of his Id., § 29; vide 17 Abb., 345. 12 R. S., 736, § 28. Lambert v. The Peo., 7 Cow., 103. 2 R. S., 740, § 23. |