DENIO, Ch. J.
I am of opinion that the charge in its general scope was entirely correct, and that there was no error in the particular part which was specially excepted to. The judge instructed the jury, in effect, that an irritable temper and an excitable disposition of mind did not constitute insanity; that an individual possessing such mental peculiarities was more predisposed to an attack of insanity than men in general, but was not on that account actually insane; that such peculiarities were not of themselves evidence of insanity. He then proceeded to state what did constitute mental alienation, and said that if at the time of the act the person was under a delusion, and did not know right from wrong, or that the act was an offense or was wrong, he was insane, and was not responsible for the act; but that a person was not insane who knew right from wrong, and that the act he was committing was a violation of law, and wrong in itself. These positions were laid down in an abstract form. The judge might have said that if the prisoner, when he killed the deceased, was in such a state of mind as to know that the deed was unlawful and morally wrong, he was responsible, and that otherwise he was not. This would perhaps have been more precise and discriminating; but as the jury was only concerned with the prisoner's condition when he committed the act which was under investigation, it was impossible that the instruction should have been misunderstood. The prisoner's counsel must have been of that opinion, for they did not require that it should be pointed more distinctly to the killing of the deceased. The general correctness of the position laid down cannot be questioned. It is in substance and in the language usually adopted, and which is sanctioned by the authorities. ( Freeman v. The People, 4 Denio, 9, and cases cited by BEARDSLEY, J.)
The prisoner's counsel sought in various forms to impeach the conviction on account of the alleged want of indifference of the juror Smith H. Shaw. I assume that it was competent for the Court of Oyer and Terminer to entertain a motion to set aside the verdict for the cause alleged, if they had determined that the facts were established and were of a character likely to prejudice the prisoner. The case of Quimbo Appo v. The People ( 20 N.Y., 531) only determines that Courts of Oyer and Terminer have no jurisdiction to grant new trials upon the merits. I suppose that if it should be made to appear that the purposes of justice had been perverted to the injury of the accused by practices dehors the trial, as by procuring improper persons to sit upon the jury, by management on the part of any person which could not be guarded against by ordinary care and attention, or the like, or by an accident, and without the fault of the prisoner, that the same court in which the miscarriage took place, might set aside the verdict as for a mistrial, and that the prisoner might be again tried. This seems to have been the view of the King's Bench in The King v. Fowler (4 Barn. Ald., 273), and the practice is countenanced by this court in the leading opinion in Quimbo Appo's Case (p. 552), and in Stephens v. The People, to which I shall refer. But it is not material to pursue this inquiry, as the Court of Oyer and Terminer, in the present instance, entertained the prisoner's motion and disposed of it, we are to assume, on the ground that a satisfactory case for disturbing the verdict had not been made out.
The further question is whether the determination of the motion was reviewable on the writ of error to the Supreme Court. When a writ of error is brought to the court of original jurisdiction in a criminal case, the questions which arise are those appearing upon the record; and if a bill of exceptions has been taken — the merits of the exceptions. There may be matters which would not appear upon the ordinary return required by the statute, to a writ of error, but which are in their nature connected with, and form part of the record, which may be brought up in certiorari, issued upon allegations of diminution, or which may appear by papers annexed to the record and returned with it. Such was the case of Cancemi v. The People ( 18 N.Y., 128), which was tried by consent by eleven jurors. That circumstance, together with the stipulation consenting to that mode of trial being stated in the return, the judgment was reversed because the indictment had not been tried by a legal jury. In Stephens v. The People (19 Id., 549), certain matters which could not well form part of the record were returned on the writ of error to this court, and were considered. Our judgment, however, was one of affirmance, and there is nothing in the opinion countenancing the idea that a judgment could be reversed for an irregularity which could form no part of record. At common law the only review in criminal cases, unless the indictment was tried on the civil side, as it was called, was by writ of error, upon which only the record and such outlying matters as could be returned on certiorari issued upon an allegation of diminution, could be returned. But as it often happened that questions of law of great importance would arise in the course of the trial, and would be determined definitively by the ruling of the court, a practice had grown up, before the revision of the laws of 1830, of taking the opinion of the Supreme Court in an informal way; but this, it seems, could not be done without the assent of the prosecuting attorney, except by a voluntary application by the court. Hence, upon the revision of the criminal law, provisions were introduced allowing bills of exceptions to be tendered and settled. (2 R.S., 736 and seq.) In introducing this provision to the legislature, the commissioners remarked that the only way in which an objection to any decision could be examined by a Superior Court, was by the consent of the public prosecutor, or by suspending judgment and taking the advice of the Supreme Court. Thus, they continued, while in any controversy concerning property of the most trifling value, a party may have a review of any decision which has been made, yet in cases involving personal liberty, imprisonment in a State prison and lasting infamy, he must depend on the caprice of the prosecutor or the magnanimity of a judge, to admit the probability of error; that the mode pursued by the court to ask advice was irregular, and gave no authority to enforce the advice, while it did not enable the accused to present his case himself. They therefore proposed the provisions allowing exceptions, as in civil cases, and their suggestions were adopted. The method of reviewing decisions in criminal cases, as the law now exists, is embraced in the statutory provisions which have been referred to, and certain others connected with that system. The judgment may be stayed after verdict, and the case be brought before the Supreme Court on certiorari, when the exceptions may be passed upon; or, if judgment be not stayed, a writ of error may be brought on the record, with which the exceptions, if any were taken, are to be returned, when any question arising upon either the record or bill of exceptions, or both, may be examined. The matters stated in the affidavits, upon which the motion was made in the Oyer and Terminer, took place out of court. They could not be made to appear by the record, for they formed no part of the proceedings; and they could not be the subject of exceptions, for they did not take place on the trial, and were not brought to the attention of the court until after the verdict was given. We are referred to a case in 16 Johns., 8, In the matter of Bradstreet, c., where the Supreme Court issued a writ in the nature of a supersedeas to certain statutory commissioners, in a case where there was no action pending in the court. The court does undoubtedly possess a certain superintending power over inferior tribunals and officers; but in criminal cases, the only review in that court is that authorized by the statute to which I have referred.
It follows that the judgment of the Court of Oyer and Terminer was final. Should it be said that irremediable error may in this way be committed in determining such motions, it may be answered that error may occur in any stage of a case, and even in the highest court. The question in all cases is, in what tribunal the right to make a final determination is vested. In my opinion such questions as those which arose upon the motion in the Oyer and Terminer, belong exclusively to that court to adjudge. The only method of remedying any error which may occur there, is by the exercise of the executive prerogative of pardon.
It follows, also, from what has been said, that neither the merits of the motion in the Oyer and Terminer, nor the original motion for a new trial, made at the General Term of the Supreme Court, ought to have been entertained by that court. The record was there for the sole purpose of examining the alleged errors contained in it, if any, and those arising upon the rulings and determinations which were set out in the bill of exceptions. The circumstance that the affidavits used in the Oyer and Terminer were returned to the Supreme Court, and that these papers, and those which were first introduced at the General Term, have been returned here, and that they are all printed in the error book, makes no difference. Jurisdiction cannot be conferred by an error of the clerk in returning superfluous papers, or in the causing them to be printed in the error book.
I am of opinion that the judgment of the Supreme Court ought to be affirmed.
As the time fixed by the Supreme Court for the execution of the sentence has elapsed, the proceedings will be remitted to the Supreme Court, to the end that it may direct the sentence to be executed according to law.
All the judges concurring, the judgment of the Supreme Court was affirmed.
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