McKee v. . the People

Davies, J. The sentence passed upon the prisoner, by the Oyer and Terminer, was clearly erroneous. We so held in the case of Ratzkey v. The People, decided in this court, at June Term, 1864. In that case the prisoner was indicted and convicted for the crime of murder in the first degree, committed *243 in 1861, and while the act of 1860 was in force, and he was tried after the passage of the act of 1862, and a similar sentence was passed upon him to that pronounced upon the prisoner in the present case. We held that but for the saving clause of the act of 1862, the prisoner could not legally have been punished for the crime whereof he had been convicted. The judgment in that case, as in the one now under consideration, was pronounced on the assumption that the prisoner was to be punished according to the act of 1862, which revived the provisions of the Revised Statutes repealed by the act of 1860. We also held, in that case, that in reference to the crime of murder in the first degree, committed after the passage of the act of 1860, and while it remained in force, the offender could be convicted and punished pursuant to the provisions of that act, and that the proper sentence, upon the conviction for that crime, under that act, was that the prisoner should be sentenced to suffer the punishment of death, and should, at the same time, be sentenced to confinement, at hard labor, in the State prison, until such punishment of death should be inflicted. . Such a sentence should have been pronounced on the plaintiff in error in the present case. As in the case of Ratzky, the sentence pronounced in this case, and thé judgment affirming the same, are erroneous, and'must be reversed, and it would follow, from the authority of the case of The People v. Shephard (25 N. Y., 406), that a wrong judgment having been given, it must be reversed; and that, although the trial and conviction were regular upon such judgment of reversal, the prisoner must be discharged. That decision was founded on the idea that there was not, previous to the act of April 24, 1863, any authority in the appellate court, on the reversal of a judgment wrongfully pronounced, when the trial and conviction were regular either to pronounce the proper judgment or to remit the record to the court where sentence was pronounced, with directions to that court to pass the appropriate sentence, and that in the absence of any such authority, upon the reversal of the judgment, the prisoner was entitled to his discharge. *244 That act, which was passed and took effect on the 24th of April, 1863, declared that any appellate court, to which a writ of error in a criminal action should have been brought, when it should appear that the conviction had been legal and regular, should have the power to remit the record to the court in which such conviction was had, to pass such sentence thereon as the appellate court should direct. In the case of Eatzky (supra), this court reversed the judgment of the Supreme Court, on the ground that the sentence pronounced was not warranted by law, and remitted the record, to pass the appropriate sentence, there being no question made, in that case, but that the conviction had been legal and regular. It is true that it appeared, in that case, that the sentence pronounced upon the prisoner was so pronounced after the act of April, 1863, took effect, but that circumstance was not made a controlling point, of the decision. It was, however, deemed important, that the writ of error to this court was brought after the passage of that act, and after it had taken effect. In the cases of Lowenburgh v. The People, and of Jefferds v. The People, we had held that the provisions of that act could not be deemed to apply to writs of error pending in this court at the time of its passage. The reason for that ruling was, that there was nothing in the act of the legislature showing an intention to make its provisions retroactive. The power of the legislatme so to do cannot be doubted, in any case, where no constitutional security is invaded. And it cannot be successfully maintained that any such guaranty would have been assailed if the act, by its terms, had declared that it should apply to all cases in which an illegal or improper sentence had been then pronounced, and to all writs of error then pending in' any court. The only constitutional provision which it is alleged or .claimed would have been violated if such had been the terms of the act, is, that the case would then be within the constitutional provision which forbids a person being twice put in jeopardy for the same offense. In the case of Eatzky (supra), it was said by the chief judge of this court that a person is said to be put in jeopardy only *245 when he is a second time tried upon a criminal accusation, but the term has no relation to the reversal of the erroneous judgment and pronouncing a legal one, pursuant to a legal conviction. In the case at bar, it is not questioned that the trial and conviction were regular and legal; and the only t ground upon which the judgment pronounced upon such a verdict is sought tó be reversed is, that the sentence and judgment pronounced and given were erroneous. That they were unauthorized has been already shown. In the case of Batzky a similar question arose, and the chief judge, in Ms opimon, said: The conviction was legal and the sentence only was erroneous. The only question is whether the act, having been passed after the conviction, though before the judgment was given in the Supreme Court, could be applied to the case. I am of the opimon that it could be applied. In this case, the conviction was complete on the rendition of the verdict, but the judgment of the Supreme Court was not given until the act of 1863 had taken effect. It may be conceded that the act of 1863 would not have authorized the Supreme Court, on the reversal of the judgment and sentence of the Oyer and Terminer, to direct that court to pass ' a legal sentence upon the prisoner; but it does not follow, therefore, that it is not competent for this court to do so upon judgment of reversal. As already remarked, it was ■ competent for the legislature to have made the act retroactive and applicable to all writs of error then pending in any court. But such intention is never inferred, but must be derived from the clear and unquestionable language of the legislature. If the language of the act had been such that the intent of the legislature to make it applicable to writs of error then pending was unquestioned, then it would have been competent for the Supreme Court, upon reversal, to have directed the proper judgment and sentence to have been given. Ho question can be made as to the applicability of the act in question to a writ of error prosecuted to this court after the act was passed and took effect. That point was expressly ruled in Batzky’s case. It is not perceived what right of the prisoner is invaded by tMs construction of the *246 statute. He has been legally tried and convicted of murder in the first degree. The court, in pronouncing sentence or judgment upon that conviction, committed an error in not making the sentence conformable to the existing provision of law. As the law stood at the time the writ of error was taken to the Supreme Court, that court, on reversal of that judgment, had no power to direct the court in which the verdict had been rendered to pass the legal and appropriate sentence. If, therefore, the Supreme Court had reversed such judgment, as the law then stood, the prisoner would have been entitled to his discharge. But the judgment was affirmed, and not reversed, and, therefore, the exigency entitling him to his discharge did not arise. But the matter is presented to this court in an entire different aspect. We reverse the judgments of the Oyer and Terminer and of the Supreme Court, and our duty is, therefore, clearly defined by the legislature to remit the record, and direct the appropriate sentence to be passed. The judgments of the Oyer and Terminer and of the Supreme Court are accordingly reversed, and the conviction being, in the opinion of this court, legal and regular, the record is remitted, to the end that the Oyer and Terminer may pass the same sentence as directed to be passed in the case of Batzky. Tn which all the judges, except Bbowtt, J., concur. Beowkt, J., dissents. Ordered, that the judgment be reversed, and that the record be remitted for proper sentence.