Supreme Court—General Term—Third Department.

*December,*1886.

#### PEOPLE v. BECKWITH.

Appeal from an Order granting New Trial.

The people cannot appeal from an order granting a new trial to a defendant after his conviction upon the ground of newly discovered evidence.

After the affirmance by the General Term of the Supreme Court and the Court of Appeals of a judgment of conviction of defendant, said defendant obtained from a justice of the Supreme Court at Chambers an order for a new trial upon the ground of newly discovered evidence. *Held,*that an appeal by the people to the General Term of the Supreme Court item such order should be dismissed.

*233Appeal by the People from an order made 26th November, 1886, by Mr. Justice Ingalls, at Chambers, granting a new trial to defendant, under § 465, subdivision 7, of the Code of Criminal Procedure, on the ground- of newly discovered evidence.

The defendant having been convicted of murder in the first degree, appealed to the General Term of the Supreme Court, in the Third Department, where the conviction was affirmed (4 N.Y. Grim. 335), and upon an appeal from the judgment of the General Term to the Court of Appeals that court rendered judgment of affirmance (5 N.Y. Grim.) Thereafter the defendant made the motion for a new trial, and from an order granting it, the people appealed to,the General Term.

*A. B.*Gfardinier, district attorney, for the people, appellant.

*Levi B.*Longley, for defendant, respondent.

Learned, P. J.

Section 462 of the Code of Criminal Procedure states what a new trial is, and the following sections down to and including section 466 declare when it can be granted and for what causes. Chapter 65 of the Laws of 1882 amended section 466, so that in case of a sentence of death the application may-be made before execution and to any justice of the Supreme Court or Special Term thereof of the judicial department where the conviction was had. The subsequent section 518 declares in ydiat cases the people may appeal. There are two and no other. First, upon a judgment for the defendant on a demurrer to the indictment. Second, upon an order of the court arresting the judgment. • Both of these, it will be seen, are questions of law. The first is evidently so. And a reference to section 467, defining a motion in arrest of judgment, shows that such a motion raises only questions of law. For we have no doubt that the second subdivision of section 518 refers solely to motions in arrest of judgment. Now, inasmuch as the Code, after careful provisions as to applications for new trials above referred to, proceeded to specify by section 518 the cases where appeals

*234might be taken by the people and omitted to mention orders for a new trial, we are satisfied that no appeal in such cases is allowed. And this is consistent with general principles. The granting of a motion"for a new trial involves a decision of fact rather than law; an exercise of sound judgment upon matters of fact. When such a decision has been made favorable to the defendant it is somewhat like the verdict of a jury in his favor. The people should have no right to appeal, unless such right is unequivocally given. The people, however, urge that on the affirmance of the judgment by the Court of Appeals the proceedings were remitted to the Supreme Court. And they further urge that by sections 548 and 549 the record is in this court and all orders are to be made here which are necessary. They further urge that as the order for a new trial was made by a justice of this court an appeal lies to the General Term substantially as an appeal would lie in a civil ease. But we do not agree in this view. This action is still a criminal action, notwithstanding the new trial was granted after an affirmance by the Court of Appeals and after the cause had been remitted here. Still the motion was made under section 466 of the Code of Criminal Procedure as now amended. An appeal, if it lies at all, must be authorized by the provisions of that code. It is further urged by the people that section 518 uses the words “ an appeal to the Supreme Court,” and hence it does not apply to an appeal in that court. But the answer is that if the appeal is not authorized by this section it is not authorized by any. Section. 485 authorized the clerk to include in the judgment roll a copy of the minutes upon a motion for a new trial, and section 517 gives an appeal to the defendant from the judgment, including the proceedings forming part of the roll. But such appeal is not given to the people, and it may be doubted whether even the defendant could bring up by appeal an order denying, after judgment, a motion for a new trial. A majority of the court were of the opinion that such an appeal would' not lie in the case of *People*v. Hovey, 37 Sup. Ct. N. Y. (30 Hun), 354; 1 N. Y. Crim., 324. At any rate there is *235nothing authorizing an appeal by the people. The people also urge that the order appealed from practically arrests judgment. But the phrase “ a motion in arrest of judgment” has long been familiar, and it is defined in accordance with its old meaning in section 467, to which we have already referred. It is evident that it is to such a motion only that section 518, subdivision 2, refers.

The appeal is dismissed.

Bockes and Landon JJ., concur.