Colden, Mayor.
The prisoner was indicted for a burglary, in the house of Jacob H. Varian, and stealing therefrom a pocket-book, money, &c. to the value of more than $200, his property. She was found guilty of grand larceny. Upon her arraignment her counsel suggested, that since her conviction facts had been discovered which, if they had been proven on the trial, would have induced the jury to have rendered a verdict in her favor ; and they desired time to present these facts by affidavits, and to ground on them a motion for a new trial. The court thereupon suggested for the consideration of the counsel,
1st. Whether a new trial could be granted in a case of felony, on the merits.
2d. Whether this court was competent to grant a new trial, in such a case.
See Noah M; Hauxhurst’s Noah’s case’ ^ voL 3l 23’
A modern English writer on criminal law says, that it , ... . , . : ’ , seems to be completely settled, that no new trial can be granted in any case of treason or felony. 1 Chiíty’s C. L. 664.; and this position is fully supported by the authorities which he cites. In the case of the King v. Mawbry, [496]*4961 T. Rep. 639. Ld. Kenyon, Chief Justice, says, that in cases greater than misdemeanors, no new trial can be granted. In the case of the king v. The Inhabitants of Oxford, 13 East, 416 (in notes) we are informed by a note of the reporter, that upon the debate of all the judges on a new trial in Margaret Tiusell’s case who had been convicted of a felony, in 1781, it seemed to be considered that it could not be.
When first granted.
New trials* in civil cases are not comparatively of very ancient daté. The first of which we have any notice, was granted in the year 1648. 1 Burr. Rep. 390. And this proceeding appears to have been introduced into .the administrations oí criminal law, cotemporaneously, or very soon after. Though it be said, in a note to the extraordinary and mysterious case of Simon, the Jew, who was tried for a misdemeanor, in the year 1752, that that was the first instance of a new trial having been granted in a criminal case, (10 State Tr. p. 416.) yet it will appear, by the cases noticed in the sequel, that the practice had then long prevailed.
The expression of Blaclrstone, (4 Com. 351.) would lead us to suppose that in his opinion, the highest as well as the lowest criminal case might, where the verdict was_against the prisoner, be reviewed by a new trial; and indeed, it is not easy' to give any satisfactory reason why a person convicted of a high crime, should be denied those advantages which it is universally acknowldged} are derived from granting new trials" in civil and inferior criminal cases. Yet all the authorities cited by Blackstone in support of his general position, are cases of misdemeanor. The one is the case of Simon, the Jew, [497]*497above mentioned, who had a new trial after a conviction for a misdemeanor; another, is the case of the King V. Read, 1 Sid. 153. S. C., who in the year 1672 was indicted for perjury, of which he was acquitted; and the third is the case of the King v. Smith, Jones’ Rep. 163., which was also a case of perjury, in which, in the year 1693, a new trial was awarded after a verdict for the King.
6 T R. 635. to 633.
In the earliest of these cases, the important limitation that a new trial can only be granted on the prayer of the defendant, is fully recognized; and it is also there said; that they can only be granted in cases criminal,- not capital.
' 6T.R.638. East, 416,, 533^ s C"L-
From these remote times, though there are frequent stances of new trials, in cases of misdemeanors, yet no precedent can be found of a new trial having been granted 'on the merits, in a case of felony. Our own courts have sanctioned and acted on this distinction.
In the case of The People v. Townsend, 1 Johns. Cas, 104., who was convicted of perjury, the Supreme Court advised a new trial, on the report of the judge of oyer and terminer, who tried the cause, that the verdict was against evidence.
A new trial not be gI?n.ted,In a criminal case, on the ground testimony^to impeach the credlbillty of [498]*498a witness has been discover11 ed,his character having been testified to at the trial. 3 Mass. Rep. 26L
[497]*497In the case of The People v. The Justice of go, 2 Johns. Cas. 319. Kent, Chief Justice, in delivering 07 7 7 d the opinion of the Supreme Court, says, that the power of granting a new trial, after verdict, is not exercised by that court in case of felony. Upon a renewed application, in the same case, 1 Johns. Cas. 179., in the judg[498]*498ment of the court it is said, “ Besides, this is a case of felo11 nv, in which considerations of policy and expediency would prevent this court from granting a new trial. In ,¡ sucjj cases the practice is to recommend the convict to ' 1 “ pardon.” •
. Though we may he at a loss to discover the considerations of policy and expediency which oblige us to deny to one whom we may think illegally convicted of high crimes, those advantages to which he would be entitled to if he had been pronounced guilty of a minor offence, yet we are bound to submit to the law, as we find it settled by preceding adjudications. It would be our duty to do so, were this court, in every respect, equal to that to whose decision we have appealed ; but it would be a very unwarrantable presumption in a tribunal constituted as this is, to attempt to introduce a new rule of law, on any doubts it might have of the expediency or policy of former decisions.
The case of the United States v. Fries, 3 Dali. 516., is not in opposition to the decision of our Supreme Court. He was convicted of treason, and a new trial was granted on the 'ground that one of the jurors had expressed opinions which would, had they been known, and presented as objections to his competency,- at a proper time, have disqualified him to sit as a juror. This was not, there, fore, a new trial, granted on the merits.
The opinion that this court, admitting it had all the powers of the Supreme Court, would not grant a new trial in this case, renders a decision of the second point, which was suggested by the counsel to the court, unnec[499]*499essaiy. Whether the New York Sessions, in virtue of the acts giving it special powers, 1 Rev. Laws, 318. 335. 2 R. L. 150. n. § 9., is not to he considered as a superior court, as to all cases which it is authorized to try, is a question which, as it is not necessary, we do knot mean to decide. If its being subject to the mandates and supervision of the Supreme Court, determine it to be an inferior court, as is supposed, in the case of the justices of Chenango, then, undoubtedly, this is an inferior court, and so must be our courts of oyer and terminer; though it appears that a court of oyer and terminer was established in the late colony of New York, with the highest criminal jurisdiction, before the Supreme Court had existence. 1 Rev. L. 318, 335, and notes.
It must be observed, also, that it is not now decided that this court cannot grant a hew trial, even admitting it to be an inferior court, when the first trial was incomplete, where there has been a mis-trial, or where there have been certain irregularities in the first trial.
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Colden, Mayor.
The prisoner was indicted for a burglary, in the house of Jacob H. Varian, and stealing therefrom a pocket-book, money, &c. to the value of more than $200, his property. She was found guilty of grand larceny. Upon her arraignment her counsel suggested, that since her conviction facts had been discovered which, if they had been proven on the trial, would have induced the jury to have rendered a verdict in her favor ; and they desired time to present these facts by affidavits, and to ground on them a motion for a new trial. The court thereupon suggested for the consideration of the counsel,
1st. Whether a new trial could be granted in a case of felony, on the merits.
2d. Whether this court was competent to grant a new trial, in such a case.
See Noah M; Hauxhurst’s Noah’s case’ ^ voL 3l 23’
A modern English writer on criminal law says, that it , ... . , . : ’ , seems to be completely settled, that no new trial can be granted in any case of treason or felony. 1 Chiíty’s C. L. 664.; and this position is fully supported by the authorities which he cites. In the case of the King v. Mawbry, [496]*4961 T. Rep. 639. Ld. Kenyon, Chief Justice, says, that in cases greater than misdemeanors, no new trial can be granted. In the case of the king v. The Inhabitants of Oxford, 13 East, 416 (in notes) we are informed by a note of the reporter, that upon the debate of all the judges on a new trial in Margaret Tiusell’s case who had been convicted of a felony, in 1781, it seemed to be considered that it could not be.
When first granted.
New trials* in civil cases are not comparatively of very ancient daté. The first of which we have any notice, was granted in the year 1648. 1 Burr. Rep. 390. And this proceeding appears to have been introduced into .the administrations oí criminal law, cotemporaneously, or very soon after. Though it be said, in a note to the extraordinary and mysterious case of Simon, the Jew, who was tried for a misdemeanor, in the year 1752, that that was the first instance of a new trial having been granted in a criminal case, (10 State Tr. p. 416.) yet it will appear, by the cases noticed in the sequel, that the practice had then long prevailed.
The expression of Blaclrstone, (4 Com. 351.) would lead us to suppose that in his opinion, the highest as well as the lowest criminal case might, where the verdict was_against the prisoner, be reviewed by a new trial; and indeed, it is not easy' to give any satisfactory reason why a person convicted of a high crime, should be denied those advantages which it is universally acknowldged} are derived from granting new trials" in civil and inferior criminal cases. Yet all the authorities cited by Blackstone in support of his general position, are cases of misdemeanor. The one is the case of Simon, the Jew, [497]*497above mentioned, who had a new trial after a conviction for a misdemeanor; another, is the case of the King V. Read, 1 Sid. 153. S. C., who in the year 1672 was indicted for perjury, of which he was acquitted; and the third is the case of the King v. Smith, Jones’ Rep. 163., which was also a case of perjury, in which, in the year 1693, a new trial was awarded after a verdict for the King.
6 T R. 635. to 633.
In the earliest of these cases, the important limitation that a new trial can only be granted on the prayer of the defendant, is fully recognized; and it is also there said; that they can only be granted in cases criminal,- not capital.
' 6T.R.638. East, 416,, 533^ s C"L-
From these remote times, though there are frequent stances of new trials, in cases of misdemeanors, yet no precedent can be found of a new trial having been granted 'on the merits, in a case of felony. Our own courts have sanctioned and acted on this distinction.
In the case of The People v. Townsend, 1 Johns. Cas, 104., who was convicted of perjury, the Supreme Court advised a new trial, on the report of the judge of oyer and terminer, who tried the cause, that the verdict was against evidence.
A new trial not be gI?n.ted,In a criminal case, on the ground testimony^to impeach the credlbillty of [498]*498a witness has been discover11 ed,his character having been testified to at the trial. 3 Mass. Rep. 26L
[497]*497In the case of The People v. The Justice of go, 2 Johns. Cas. 319. Kent, Chief Justice, in delivering 07 7 7 d the opinion of the Supreme Court, says, that the power of granting a new trial, after verdict, is not exercised by that court in case of felony. Upon a renewed application, in the same case, 1 Johns. Cas. 179., in the judg[498]*498ment of the court it is said, “ Besides, this is a case of felo11 nv, in which considerations of policy and expediency would prevent this court from granting a new trial. In ,¡ sucjj cases the practice is to recommend the convict to ' 1 “ pardon.” •
. Though we may he at a loss to discover the considerations of policy and expediency which oblige us to deny to one whom we may think illegally convicted of high crimes, those advantages to which he would be entitled to if he had been pronounced guilty of a minor offence, yet we are bound to submit to the law, as we find it settled by preceding adjudications. It would be our duty to do so, were this court, in every respect, equal to that to whose decision we have appealed ; but it would be a very unwarrantable presumption in a tribunal constituted as this is, to attempt to introduce a new rule of law, on any doubts it might have of the expediency or policy of former decisions.
The case of the United States v. Fries, 3 Dali. 516., is not in opposition to the decision of our Supreme Court. He was convicted of treason, and a new trial was granted on the 'ground that one of the jurors had expressed opinions which would, had they been known, and presented as objections to his competency,- at a proper time, have disqualified him to sit as a juror. This was not, there, fore, a new trial, granted on the merits.
The opinion that this court, admitting it had all the powers of the Supreme Court, would not grant a new trial in this case, renders a decision of the second point, which was suggested by the counsel to the court, unnec[499]*499essaiy. Whether the New York Sessions, in virtue of the acts giving it special powers, 1 Rev. Laws, 318. 335. 2 R. L. 150. n. § 9., is not to he considered as a superior court, as to all cases which it is authorized to try, is a question which, as it is not necessary, we do knot mean to decide. If its being subject to the mandates and supervision of the Supreme Court, determine it to be an inferior court, as is supposed, in the case of the justices of Chenango, then, undoubtedly, this is an inferior court, and so must be our courts of oyer and terminer; though it appears that a court of oyer and terminer was established in the late colony of New York, with the highest criminal jurisdiction, before the Supreme Court had existence. 1 Rev. L. 318, 335, and notes.
It must be observed, also, that it is not now decided that this court cannot grant a hew trial, even admitting it to be an inferior court, when the first trial was incomplete, where there has been a mis-trial, or where there have been certain irregularities in the first trial.
Perhaps the power to grant new trials, for certain just causes, which cannot appear in the record of their proceedings, if they should be removed to a superior court, is necessarily incident to every court that has power to try.
But these are questions we shall reserve for further consideration, when it becomes necessary to decide them.— The extent of our present decision is, that we cannot grant the application for a new trial, in this case, it being a case of felony, and the application being on the merits.
Note,—In the case of the Commonwealth v. Green, 17 Mass. Rep. 515. Parker, chief justice, speaking of the power of the court to grant new trials in case of felony, says :
3 11 516
“ We think there is a power in this court to grant a new trial, on the motion of one convicted of a capital offence, sufficient cause * being shown therefor, notwithstanding the English courts are supposed not to exercise such authority. And if this opinion needs support, the case of John Pries, who, after conviction of treason, was tried a second time; and the case in South Carolina, cited at the bar from Bay’s Reports, are sufficient for this purpose. In the trial of the United States v. Fries, Mr. Rawle, the district attorney, admitted the power of the court 1 to grant a new trial; and argued only against the propriety of exercising the power in that case. Judge Iredal expressly admitted the power; and Judge Peters, who was against a new trial, although he yielded to the circuit judge, did not deny the authority of the court to grant it. In a late case in New York (The People v. Goodwin, 18 Johns. Rep. 187) which was a cause of felony, it was decided that the cause might be taken from the jury, and a new trial ordered.”
And again he says, “ Certainly, cases may arise, when the exercise of this power in the court would be salutary and wise; but every case of discretion must depend upon its circumstances, and be judged of with due regard to the rights of the public, as well as the interest of the prisoner. In cases which affect life, duty as well as- inclination would insure the most favorable consideration of all circumstances which might have a tendency to protect innocence from punishment, and even to extend to the guilty all the legal advantages Of a trial. '
[501]*501<! But when there has been a trial, which the court are satisfied was fair and impartial, and which all the legal rights of the party cused were observed, and a new trial, is sought for, the court is bound to look into the evidence upon which the verdict is founded, in order that may ascertain whether the cause suggested in support of the motion is such as would, or ought to produce a different result in the minds of another intelligent jury.
“ It is true, it cannot be known what effect may be produced upon othér men’s minds, by any specific kind or degree of evidence; and with that, in the course of the trial, the court have no concern; but on a motion to their discretion, they must necessarily revise the evidence, and must judge for themselves of the probable bearing of the circumstances relied on to support the motion.
“ Having decided, that to grant new trials in capital cases, is within the power of the court: that the exercise of this power, where there has been no error on the trial, is discretionary ; if every suggestion should be listened to, without regard to the merits of the case, or the just bearing of the facts suggested, it is certain the courseof public justice would be much obstructed, and that the punishment of crime would often be evaded. It is a power to be used sparingly for the protection of innocence, not screen the guilty.