Supreme Court—General Term—Fourth Department.

*January,*1884.

#### PEOPLE v. BORK.

Presumption of Regularity of Proceedings of Court.— What Irregularity Cannot be First Objected to on Appeal.—L. 1875, oh. 19—Conviction Under NEED NOT STATE LOSS SUSTAINED.Co. Grim. Pro. § 512.

The prisoner was sentenced May 3, 1883, by a Court of Oyer and Terminer, held by a justice of the Supreme Court, 'and also by two justices of Sessions, as appears by the caption of the minutes kept by the clerk, and by the judgment entered by him. The defendant did not object at the time to the constitution of the court, but claims for the first time on appeal that the judgment and sentence were void because the court should have been held by a Supreme Court justice alone, as required by Co. Grim. Pro. § 23. *Held,*that it may properly be assumed, especially in the absence of objection by defendant, that when the Court of Oyer and Terminer was held in the proper place by a justice of this court, as the law requires, that a regular • court was held as the law directs, and that if the caption contains a recital not authorized by law, it may be disregarded as surplusage, or as a technical error which does not effect the rights of defendant. (Barker, J., dissenting.) Therefore, under the provisions of Co. Grim. Pro. § 542, that the appellate court must give judgment without regard to technical errors or defects, the judgment and sentence must be affirmed.

Defendant was tried and convicted under L. 1875, ch. 19 (the “Peculation Act”), of which section 3 provides, “ When rendering a verdict of guilty upon the trial of any person indicted under this act, the jury may find and state with their verdict, the amount of loss resulting from the offense of the defendant.” *Held,*that the statute is permissive only, and that a sentence upon a conviction thereunder may be lawfully imposed without any such finding in the verdict. (Per Barker, J.)

Appeal by the defendant, Joseph Bork, from a judgment of the Court of Oyer and Terminer, of Erie County, May 3, 1881, convicting defendant, on an indictment found November *5712, 1877, of embezzlement and conversion of property and funds of the city of Buffalo, and also from an order made April 9, 1883, denying a motion for the arrest of said judgment.

After the conviction of defendant at the Erie Oyer and Terminer, a stay was granted before sentence was pronounced, and the case carried upon a writ of certiorari to this court, where the conviction was affirmed (1 N. *Y. Crim. Rep.*368), and such judgment of affirmance was affirmed by the Court of Appeals (1 *N. Y. Crim. Rep.*379.) A motion for a reargument was denied in that court *(Id.*392).

Thereafter the defendant was sentenced at a Court of Oyer and Terminer of Erie county, May 3, 1883.*

The caption of the May, 1883, term of that court reads, viz.: “ At a Court of Oyer and Terminer held in the city and county hall in the city of Buffalo, in and for the county of Erie, on the 3d day of May, 1883. Present, Hon. Charles Daniels, Justice Presiding. Fayette Bead, Seth A. Abott, Justices of Sessions.” Then follows the title of the cause, and the record proceeds to state, viz.: “ The defendant, Joseph Bork, having been held and convicted at a term of this court in the month of June, A. D. 1881, etc., defendant appears in court in- person. Defendant being asked by the court if he has any legal cause to show why judgment of the court should not now be pronounced against him, said *‘*nothing.’ Defendant sworn, etc. Defendant sentenced to be confined in the state prison at Auburn, H. Y., at hard labor for the term of five years. A copy by Charles H. Avery, Deputy Clerk.” Then follows a similar caption to the one already stated, then a recital of the proceedings from the finding of the indictment down to the trial in 1881, and the conviction by the jury and the sentence.

Defendant was convicted under the “ Peculation Act,” L. 1875, ch. 19—of which section 3 provides, that “ when rend'er*58ing a verdict of guilty upon the trial of any person indicted under this act, the jury may find ^ and state with their verdict the amount of loss resulting from the offense of the defendant.”

*Norris*Morey, for defendant, appellant.

The verdict was defective, and not sufficient under the statute to authorize the pronouncing of sentence, or the entry of judgment thereon, in that it did not contain any finding or statement of “the amount of loss resulting from the offense of the defendant.”

*First.*It has been claimed on behalf of the prosecution, that the use of the word “ may ” in the third section of the statute leaves it permissive with the jury whether or not they .will find and state with their verdict the amount of loss, and that if they choose to make no such finding or statement, then the presumption will be that they have found in fact that the entire loss charged in the indictment has resulted; in other words that a general verdict of guilty will have the same legal effect as though they had found, pursuant to the provisions of section three, the entire amount stated in the different counts of the indictments as the amount of the loss resulting from the offense of the defendant.

• *Second.*It has also been claimed in support of this verdict, that the provision of section 3 as to the finding and statement of the amount of loss by the jury is permissive, and that this provision of the statute was intended, to leave, and does leave it in the discretion of the jury, and not of the court, to determine whether or not any fine shall be imposed ; and that if the jury make no such finding or statement, then the court is limited thereby to imprisonment as the only sentence which can be imposed.

I. The word “may” in section 3 is not permissive, but mandatory.

“ May ” should be construed as “ must ” when it imposes a duty or confers a right. Mayor *v.*Furze, 3 *Hill,*612; Malcom *v.*Rogers, 5 *Cowen,*188; Phelps *v.*Hawley, 52 *N. Y.*24-27 ; Newburgh Turnpike Co. *v.*Miller, 5 *Johns. Ch. 112;*Rex *v.*Barlow, 2 *Salkeld,*609 ; Stamper *v.*Miller, 3 *Atkyns,*211; Blackwell’s Case, 1 *Vernon,*152; People *v.*Supervisors of Otsego Co., 51 *N. Y.*401; Hagadorn *v.*Raux, 72 *N. Y.*583-*59*6;*People *ex rel.*Conway *v.*Supervisors, 68 *N. Y.*114-119; Supervisors *v.*United States, 4 *Wall.*435; *Sedgwick, Constit. Law,*375-7; *Dwarris on Statutes,*604.

The well settled rule of construction is that “ *may*” shall be construed as “ *must*” in a statute whenever the power conferred is either for the sake of justice, or in the public interest or public good, or for the protection of individual rights. In the contemplation of the statute, it is sometimes for the public interest that the offense defined in the statute, which consists wholly in wrongs, affecting public moneys and rights of property, should be punished by fine rather than by imprisonment. The individual rights of the accused person may always be affected upon a trial of an indictment under this statute by the finding and statement of, or the omission to find and state, the amount of loss resulting from the offense. Justice also requires that such finding and statement should be made by the jury ; for the power of the court in fixing the penalty would, in every case, be greatly restricted or greatly extended, according as the jury should see fit to exercise this power of stating the amount of the loss.

Upon the first of the theories above referred to, the discretion as to whether a fine should be imposed would always be lodged in the jury, and although the court might deem it just to impose a fine which might, in an offense of this character, be of a very trifling amount without imprisonment, yet, if the jury should ignore this provision of the statute, the court would have no alternative except to inflict an imprisonment of not less than three years. And upon the second of the theories above stated in support of the verdict, while as in this case the proof might show a loss of not to exceed $25,000, yet the jury might, by neglecting to make a finding of the amount, compel the court, if it exercised its discretion of imposing a fine at all, to impose a fine measured by five times the entire amount charged in the indictment, which, instead of being $37,000, amounts to $300,000.

II. A reference to other provisions of the statute furnishes additional reasons for the conclusion, that the word *“*may ” in the third section can only be interpreted to mean *“*must.” The provision of section 1 is that"“ every person &c. . . . shall *60on conviction of such offense, be punished by imprisonment in a state prison for a term not less than three years, or more than ten years or by a fine &c., ... or by both such imprisonment and fine.” The rvord here used is “ shall,” and this word “ shall,” by plain and necessary construction, applies to all that follows it in the sentence. The provision is that such persons *“*shall be punished,” but the requirement goes further and is that he *“*shall be punished by imprisonment &c., ... or by a fine, &e., . . .or by both snch imprisonment and fine, &e.” The same sentence which gives the court power and imposes upon it the duty to punish the convicted person, also gives it the power and imposes upon it the duty to punish either by imprisonment or. fine or by both, according to the facts of the particular case. This requirement of the statutet needs no construction, and it is not open to misconstruction. And the reading of this section appears wholly to dispose of the second theory heretofore mentioned which has been advanced to support the judgment in this case, to wit, that the statute has intended to leave it to the jury to determine, whether in the particular case, the court shall have the power to impose a fine. The word “ may ” was used because it was the proper word with which to make a grant of a new power. The duty had already by section one been imposed and enjoined, and by section 3 the grant of power is made which enables it to perform that duty. And it is an ancient and well settled rule, that where any cause of doubt arises, although the doubt apparently attaches only to a particular clause, the whole statute is to be taken together and to be examined to arrive at the legislative intent. *Sedgwick Stat. & Const. Law (2d*ed.) 199. Where a statute requires a designation of a degree, or the assessment of a punishment, a general verdict, without such designation or assessment, will be a nullity, and if the jury are discharged a new trial will have to be granted. *Wharton Crim. Law,*§ 3196 ; State *v.*McCue, 39 *Mo.*112; People *v.*Bonney, 19 *Cal.*426; Robertson *v.*State, 42 *Ala.*509; Brown, *In re,*32 *Cal.*48; Dick *v.*State, 3 *Ohio St.*89; Parks *v.*State, 3 *Ohio*St. 101; Com. *v.*Scott, 5 *Gratt.*697 ; Com. *v.*Hatton, 3 *Gratt.*623; People *v.*Littlefield, 5 *Cal.*355; Cropper *v.*U. S., *Morris,*259.

III. It has been argued that it is now too late for the de*61fendant to raise the question of the insufficiency of the verdict; that it should have been raised in some manner at the time it was rendered ; and that a failure to object or except at that time is a waiver of the defendant’s right to object upon that ground at any time. It has also been claimed that this cause having been taken to the.General Term upon a bill of exceptions by certiorari, and from thence to the Court of Appeals, there can now be no point made upon the insufficiency of the verdict. There can be no question but that the verdict of the jury, and the finding or statement of amount of loss required by this statute to accompany the verdict would be matter of record and part of the record of the case. It would certainly be a part of the minute or record of l< conviction,” which is the word used in our statute. 3 *R. 8.*6th ed. 1033-4, §' 5, *Ind.*13. Such finding would be a part of the proceedings upon the trial, which, whether it be called a verdict or not is in legal effect made part of the verdict by the statute. The judgment in a criminál case is a conclusion of law from the facts upon the record, and must be collected from the whole record. 1 *Archbold’s Cr. Pr.*178, note. 1 *Colby’s Cr. Law,*§ 127. And by the statute this finding would enter into and form a part of the facts of record upon which the judgment would be founded. The appeal in this case after judgment is a substitute for a writ of error under the Revised Statutes. The writ of error would only issue after judgment. Hill *v.*People, 10 *N. Y.*463; Tabor *v.*People, 90 *N. Y.*248. And the power to have a review upon exceptions in criminal cases upon a writ of error did not exist at common law, and was granted to the courts at a comparatively recent date in this state. People *v.*Dalton, 15 *Wend.*581-4; Freeman *v.*People, 4 *Denio,*9, 21; 2 *R. S.*736, § 23. Prior to that the review upon a writ of error was confined wholly to errors of record, and it has never been necessary or proper to bring up or attempt to bring up for review errors of record by exceptions. Manke *v.*People, 74 *N. Y.*415 ; Gaffney *v.*People, 50 *N. Y.*416; People *v.*Thompson, 41 *N. Y.*1; People *v.*Allen, 43 *N. Y.*28. The office of the writ of error is to bring before the reviewing court the entile record so that upon an inspection thereof the court may determine whether there is any legal error or defect in any of the *62parts of which it is composed. The exceptions taken at the trial to the decisions of the court upon the evidence or on the charge given to the jury, never were matters of record, and therefore could not be reviewed, until by the provisions of our statute a party taking them was allowed to incorporate them into a bill of exceptions and to present them to the court; and after they were settled, signed and sealed, they were allowed to go with the record upon a writ of error before the court of review. People *v.*Dalton, 15 *Wend.*581; People *v.*Allen, 43 N. *Y.*28; 2 *R. S.*736, §§ 23-5. Every error appearing of record, and which involves matter of substance and not merely of form, and which is therefore not cured by the verdict, could be con-' sidered upon a writ of error ; and the appeal after judgment upon a conviction, has been substituted as above stated, for the writ of error, and performs the same office. And the right to raise the objection is not waived because it was not raised when the verdict was rendered; nearly all defects appearing of record might be raised by motion or some other act by defendant before verdict. But it is not required of him to scan the record and see that it is correctly made up against him. In Messner *v.*People, 45 N. *Y.*1, judgment was reversed because the record failed to show that defendant was asked why sentence should not be pronounced against him. The objection of duplicity in the indictment is a ground for motion in arrest of judgment. Dawson *v.*People, 25 N. Y. 399—402; People *v.*Wright, 9 *Wend.*193. In these cases no objection or exception was taken or motion made. They but illustrate the general fact that objections based upon defects appearing of record are not wraived by not raising them before trial or upon the trial, but are properly raised either by motion in arrest of judgment, or after judgment, by appeal. A motion in arrest of judgment is directed wholly to some defect in the record; but it has been held that the same objection can be raised upon a writ of error after judgment as upon a motion in arrest of judgment. People *v.*Allen, 43 N. *Y.*28. This appeal therefore brings before the General Term the entire record for examination, and if the verdict in any substantial particular is not such a verdict as is required by the statute under which the indictment was found, then the judgment is without legal foundation and should be re*63versed. The claim that this question cannot now be raised because this case was taken upon a bill of exceptions by a writ of error to the Court of Appeals is not well taken. The Court of Appeals must not examine the record to discover error until after, judgment has been entered in the Supreme Court. Eighmy *v.*People, 78 *N. Y.*330. The only matters which the Court of Appeals could pass upon were the exceptions set forth in the bill of exceptions.

IV. The court that pronounced sentence upon the defendant was not a legally constituted Court of Oyer and Terminer, and had not power or authority to pronounce sentence or render judgment. The record shows that the court which pronounced sentence was composed of Hon. Charles Dakiels, justice, presiding, and Fayette Read and Seth H. Abbott, justices of Sessions. 1. The court of Oyer and Terminer, as created and authorized by the statute, is held by a justice of the Supreme Court without an associate. *Code Crim. Pro.*§ 23 ; People *v.*Ostrander, 1 *N. Y. Crim. Rep.*274.

It follows that a court of Oyer and Terminer is not rightly organized with two justices of the Sessions sitting with a justice of the Supreme Court. And if not rightly organized, then it has not the powers of a court. Only the particular persons designated by law are vested with judicial power, and they are only vested with it, at the very times and places, and when they exercise it in the particular way prescribed by law. A justice of the Supreme Court undertaking to hold a court of Oyer and Terminer at a different place within the county from that fixed upon by the justices of the Supreme Court, pursuant to the statute, is without judicial power, and any criminal trials or convictions had at such place will, be void. Northrup *v.*People, 37 N. *Y.*203. The same rule obtains if a judge attempts to hold court at a time different from that prescribed statute. People *v.*Moneghan, 1 *Park.*570. But it has been suggested that, as a justice of the Supreme Court was in fact present, and was one of the persons shown by the record to have been holding this court, he constituted a legal court of Oyer and Terminer, and that the acts of the court as such were not vitiated by the presence of the two unauthorized persons; that, in short, the question is one merely of surplusage. The *64simple answer is that when another person or persons became so associated with the justice of the Supreme Court in that Court of Oyer and Terminer that the records of the court could •not be truthfully kept without making a record of them as a part of the court, the same as the Supreme Court justice, that moment he ceased to have any judicial power in that court, and the court itself ceased to be a court of Oyer and Terminer, becaiise not organized in conformity to the law creating it. It was not simply that they were incompetent to sit as members of that court, but that as soon as he consented to sit with them and allow them to participate in the exercise of the power of the court, and to be so entered in the record, that moment his judicial inability in that court became precisely the same as theirs. The record is conclusive evidence of the facts shown by it. 1 *Greenleaf Ev.*§§ 19, 32. 2. Defendant did not waive all objection to the illegal organization of the court by not making objection when he was called upon pursuant to the statute to state if he had anything to say why sentence should not then be pronounced upon him, for judicial power and authority is conferred only by law, and not by the consent of parties. And it appears to be well settled upon the authorities that any question involving the organization and constitution of the court or its fundamental mode of procedure cannot be waived by an accused person. Cancemi *v.*People, 18 *N. Y.*128, 136; Blend v. People, 41 *N. Y.*604; Maurer *v.*People, 43 N. *Y.*1; People v. Shaw, 3 *Hum,,*272; 63 *N. Y.*36; Oakley *v.*Aspinwall, 3 *N. Y.*547; Schoonmaker *v.*Clearwater, 41 *Barbour,*200; S. C. under name Chambers *v.*Clearwater, 1 *Keyes,*310; Messner *v.*People, 45 *N. Y.*1; Graham *v.*Linden, 50 *N. Y.*547-9 ; Dudley *v.*Mayhew, 3 *N. Y.*9-12 ; Coffin *v.*Tracy, 3 *Caines,*129 *n.*

It is a familiar maxim that consent will not confer jurisdiction, although it is a sufficient answer to any error committed to its exercise.

*Edward W. Hatch,*district attorney, for the people.

I. No appeal lies from the order of the Special Term. There is no statute authorizing it. The omission of the special finding of value occurred at the trial, when the general verdict was *65rendered, and if the defendant desired to avail himself of that defect if there was one, he should either have excepted for the want of such finding, or have moved in arrest of judgment, and in case the motion was denied this ground, as well as others, would have appeared in the bill of exceptions as settled» But the statute makes no provision for a second appeal or writ of error in reference to matters which existed prior to the- taking of the first appeal, and which by taking proper steps- might have been embraced within it. 3 Revised Statutes, 6th edition, pages 1007 to 1039, shows the mode of review before the new Criminal Code, and it contains a provision -authorizing but one review, that is for the purpose of reversing the judgment or obtaining a new trial. The same is true of the-new Criminal Code, sections 15 to 532, inclusive. On the motion for a reargnment in this case, the Court of Appeals held that no defect or error appeared' upon- the record showing want of special finding, and as this appeal purports to be from an order denying a motion in arrest of judgment, the record shows no ground to base it hpon„ It follows- therefore upon this point: 1. That the questions, sought to- be presented have already been determined on appeals and writs of error, and that there can be no second appeal in reference- to said matters. 2. It is the law that a motion in arrest can "only be made for errors appearing on the face of the record, and the Court of Appeals in this casé have decided on the motion for a reargument, that no error appeared on the record showing a want of special finding of Value. 3. There is not nowr, and never was, any law authorizing an appeal from- a sentence; besides, this notice of appeal does net purport to.' be taken from the sentence, but from the judgment, and- the order denying a motion in arrest of judgment. •

II. The prisoner’s counsel, as well as the prisoner, were present when the verdict was rendered, and that they were vigilant in raising such objection as they deemed material, it will be further observed, that by the statute the verdict is one thing, and the finding of value is simply directory, for the obvious reason, that in most cases the special finding of value vwould be of no importance to the prisoner. A general finding would establish that value as charged in the indictment,, which *66in this case was $200,000. State *v.*White, 25 *Wis.*359; Schoonhover *v.*State, 17 *Ohio,*294. So that the Value as well as the guilt is established by the verdict. If the defendant thought that a lower value should be found, he had a right to ask for a special finding; in ojnitting to do so, he was willing to treat the value as charged in the indictment. That the statute is directory is shown not only by its language, but it is adjudged on like language in Williams *v.*People, 24 *N. Y.*405, so the court could impose a fine as .well as imprisonment under this verdict. In any event the finding of special- value was for the prisoner’s benefit, and -by omitting to object for want of such finding, or to request such finding, he effectually waived all objection on that account. Pearson *v.*People, 79 *N. Y.*424, 429, when it was decided that “ he may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.”

It is well settled that the rendition of a general verdict, and its reception without objection is good, notwithstanding its failure to find upon special issues. “ A party by so receiving it waives objection.” Moss *v.*Priest, 1 *Robt.*632; 19 *Abb. Pr.*314. It is entirely clear, therefore, that- this objection is effectually waived, if it ever existed.

III. The statute in reference to finding the value, outside of the general verdict, is simply directory, and there are controlling reasons why it was so drawn as- to make it directory or permissive. - No conviction could be had in a case like this without converting property; property implies value ; it could not be property without possessing' nominal value, and no verdict of guilty could be found without including within it the determination of the conversion of property of' at least nominal value. A general, ver diet of guilty undoubtedly fixed the value of the bonds converted at $200,000. The value of the property has been ascertained. The general verdict’ determined that; and the power to fine is not- taken away, and does not depend upon the special finding -or value.- That power is absolutely conferred by the statute, the special finding being only directory ; that is only one of the ways in which value may be' ascertained. •

*

 After sentence, two motions, one for a certificate staying execution of sentence (1 *N. Y. Crim. Rep.*393), and the other for the discharge of the prisoner on *habeas corpus*(1 *N. Y. Crim. Rep.*398) were made and denied.

*67Hardin, J.

Section 542 of the Code of Criminal Procedure reads as follows: *“*After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” This section was adopted to prevent technical errors or defects from defeating the ends of justice. And all such errors or defects as do not affect the substantial rights of the parties complaining, the court must disregard, in considering the case before it upon appeal.

It is now urged that since the amendment of section 23 of the-Code of Criminal Procedure in 1882, a court of Oyer and Terminer is held by a justice of the Supreme Court without an associate *(laws*1882, ch. 360). We held in Ostrander *v.*People, 29 *Hun,*519; 1 N. *Y. Crim. Rep.*274, that after the passage of the act of 1882, there was no law authorizing justices of Sessions to sit in the Oyer and Terminer. Our decision in that case was subsequently affirmed by the Court of Appeals.

We may properly assume that when the Oyer and Terminer of May 3,1883, was opened, and a justice of this court appeared and presided, a regular court was held, as the law authorizes.

It is a universal presumption in respect to judicial proceedings, criminal as well as civil, that they have been conducted according to' law, unless the contrary is clearly made to appear. The law also presumes that judicial officers have discharged their duties according to the requirements of the law, until the contrary appears. In the case in hand, the court of Oyer and Terminer appears to have been presided over by a justice of this court in the proper place, and in the proper building for-holding courts of Oyer and Terminer in Erie county. Such court had jurisdiction of the subject matter and the person-of the defendant, as the record before us shows, and nothing to the1 contrary is shown or claimed by the defendant. If we grant that the caption contains a recital not authorized by the law, may it not be disregarded as surplusage, and at most showing a technical error “ which does not affect the substantial rights of” the defendant *\*When he appeared in the court on the 3d day of May, 1883, he did not object to the jurisdiction of the court, nor that it was not holden on the proper authority. Strengthening the presumption that the officer authorized by law to hold *68a court of Oyer and Terminer did then and there discharge his duty, is the absence of an objection or exception to the proceedings then had. For the first time, the objection to the organization of the court on the 3d day of May, 1883, is taken after the ■ court has completed its duty in the premises. The defendant apparently was silent, acquiescing in the proceedings as conducted by the court, when the sentence was pronounced.

We incline to the opinion that the remarks of Judge Andrews in People *v.*Cornetti, 1 *N. Y. Crim. Rep.*306 ; 92 *N. Y.*88, are applicable here. That judge said as follows: “ It is claimed that the court of Oyer and Terminer, by which the prisoner was tried, was not legally constituted, the allegation being that the justices'of Sessions, who in part composed it, were not legally designated" or elected. This point is taken here for the first time. It was not raised at the trial, and there is no evidence, and no exception bearing upon it. It must be assumed, therefore, that the court was properly constituted, and that the justices of Sessions who acted, were duly designated according to law.” Again, in People *v.*Hovey, 92 *N. Y.*554; 1 *N. Y. Crim. Rep.*287, the court, in considering when an exception should be taken, says: “ An exception to a charge taken after a criminal trial has terminated, and where, if erroneous, the jury could not have been instructed to disregard the erroneous instructions, does not present any question for the. consideration of 'an appellate court.” This case differs from those decided 'before the adoption of section 542, which cases relate tp mere irregularities. Here we have a court in which sat a justice of this court, clothed with full power to conduct the court, and such court, the record says, imposed a sentence, without any objection or exception being taken thereto. In Commissioners of Highways *v.*The Judges, 7 *Wend.*264, it was said by the court that the fact that the certificate was made by twenty freeholders did not vitiate it, though only twelve were required by the statute ; and in the same case Judge Melson said: “The objection that one of the judges who decided the appeal had before passed upon the same questions might be considered as warranted by the provision of the statutes forbidding officers acting in appellate tribunals from taking part in the decision of matters before determined *69by them (2 *R. S.*275, § 3), hail it been urged when the question was under .consideration before the judges; but it was not. The appeal was contested solely upon its merits, and the commissioners are now too late to avail themselves of the objection. It might have been and probably was waived. It would promote litigation and contravene well established principles, -now to allow it as well taken.”

We think we must obey the letter and spirit of section 542 of the Code of Criminal Procedure, and that to do so, we should sustain the judgment befóle us. (2) The opinion of Barker, J., as to the questions made as to the form of the verdict meets with our approval. (3) The views already expressed lead to an affirmance of the order refusing a discharge of the prisoner on a writ of *habeas corpus.*

Judgment affirmed, order denying motion for arrest of judgment affirmed, and order refusing a discharge of prisoner affirmed.

Smith, P. J., concurs.

Barker, J.

The indictment on which the defendant was tried and convicted, is based upon charges which constituted a violation of the provisions of chapter 19, of the Laws of 1875, entitled, “ An act to provide more effectually for the punish-, ment of peculation and other wrongs affecting public moneys and rights of property.”

The property and funds wrongfully and illegally converted by the appellant to his own use as described in the indictment consisted of one hundred bonds issued i>y the city of Buffalo, known as the city and county Hall Bonds of the denomination of one thousand dollars each, and of the value of one thousand dollars each, the property of the city of Buffalo.

A more particular reference to the indictment and statement of the nature of the offense described is unnecessary for the purposes of this appeal.

The trial on the indictment was had at a court of Oyer and Terminer held in and for Erie county, in May, 1881, Mr. Justice' Dahiels, presiding, and the justices of Sessions sitting and acting as his associates. The form of the verdict as ren*70dered by the jury and recorded by the clerk was that the prisoner is “ guilty of the crime as charged in the indictment.”

Before sentence, was pronounced on the conviction a stay was granted, and the rulings made on the trial, to which the defendant took exceptions, were reviewed in this court and in the Court of Appeals on a bill of exceptions, and in both courts the conviction was sustained and" a new trial denied. ■ On filing a *remittitur*from the Court of Appeals with the clerk of Erie county, the order and judgments of the Supreme Court and the Court of Appeals were made the judgment of the Court of Oyer and Terminer, thereupon and on the 9th day of April, 1883, the defendant moved in arrest of judgment, which motion was denied. The record before us does not disclose the grounds upon which the motion in arrest of judgment was founded. At a subsequent day and on the 3d day of May, 1883, at,a term of the court of Oyer and Terminer, held in and for Erie county, judgment was pronounced on the verdict and the prisoner was sentenced to be confined in the Auburn prison at hard labor for the term of five years.

One of the grounds upon which the appellant now seeks to reverse the judgment is, that unauthorized persons, to wit: the justices of Sessions in. and for the county of Erie, were present and acted as members of the court of Oyer and Terminer, when the sentence was made up and judgment pronounced against the prisoner. If such be the fact and the same is made to appear by the record then the judgment is illegal and void and the prisoner is suffering punishment administered by a tribunal unknown to the law of the land.

Formerly courts of Oyer and Terminer as organized under the judiciary act (Laws of 1847) except in the city and county of Mew York, were composed of a justice of the Supreme Court, who presided, the county judge and the justices of the peace designated as members of the court of Sessions; with a provision that the presiding justice and any two of the other officers mentioned therein, constituted a quorum and had power to hold a court. In June 1882, the organization of the court was changed a'nd the court as now constituted *71consists of a justice of the Supreme Court without any associates ; the words of the enactment being- as follows:—

> “ A court of Oyer and Terminer is held by a justice of the Supreme Court, without an associate.”—Section 23 of the Code of Criminal Procedure, as amended by chapter 360, Laws of 1882.

An inspection of the record as set forth in the appeal book, discloses the fact, that when Bork was sentenced there were present and acting as members of the court and participating in its deliberation, other persons than the justice of the Supreme Court who then presided.

In the papers embraced in the judgment roll is a copy of the minutes of the trial; a copy of the minutes of the motion made in arrest of judgment; a copy of the minutes of the judgment as directed and required by section 483 of the Code of Criminal Procedure. In the caption of the clerk’s minutes, as kept by him on the day the prisoner was sentenced, in a statement of the persons who were present and acting as members of the court, the whole is as follows:

> *“*At a court of Oyer and Terminer held at the City and County Hall, in the City of Buffalo in and for the County of Erie, on the 3d day of May 1883. Present, Hon. Charles Daniels, Justice, presiding. Hon. Fayette Read and Seth A. Abbott, Justices of Sessions.”

Then follows the judgment as prepared by the clerk and signed by him, the caption of which is in the following words, viz.:

> “ State of Hew York. At a court of Oyer and Terminer held at the City and County Hall in the City of Buffalo, in and for the County of Erie on the third day of May 1883. Present: Hon. Charles Daniels, Justice presiding, and Hon. Fayette Bead and Seth A. Abbott, Justices of the Sessions.”

The judgment, after making the usual formal recitals referring to the indictment, trial and conviction, concludes in these words: “And (Bork) was thereupon, on the 3rd day of May? 1883, sentenced to be imprisoned in the State Prison at Auburn at hard labor, for the term of five years. J. E. Ewell, Clerk.”

In all courts of record in this state, it is the province as well as the duty of the clerk, to keep a minute-book or record of the *72proceedings of the court, in which he states the day of trial, the name of the judge who presides, and also the names of his ^associates, when he has any, and this book, with all its entries, is, as a general rule under the complete control of the court to which such entries relate.

We must conclude, therefore, when the prisoner was sentenced that Fayette Bead and Seth A. Abbott, two persons not legally members of the court of Oyer and Terminer, were present and acting as members of the court and deliberated with Mr. Justice Daniels, in preparing the judgment, which they together, all acting as members of the court, pronounced on the prisoner. These individuals were judicial officers, the members of another tribunal. We may take judicial notice of the fact who are the members of the several courts of record in this state, and it is for us to understand from the record before us, that these individuals were the justices of the peace designated as members of the Court of Sessions in and for the county of Erie, at the time judgment was pronounced in this case. As such officers were formerly members of the court of Oyer and Terminer and the change in the organization of the court had then but recently taken place, this circumstance most likely explains why they deemed in their duty and were permitted to act as members of the court when Bork was sentenced. Although the trial took place before the court as organized under the judiciary act, the judgment on the verdict should have been pronounced by the court organized as the statute now provides. Ostrander *v.*People, 29 *Hun,*513; 1 *N. Y. Crim. Rep.*274.

The legal proposition presented by the learned counsel for the appellant, that the judgment is void for the reason the court was not legally constituted,-does not, in my opinion, admit of any doubt. The court had jurisdiction of the subject matter as well as the person of the prisoner; the trial and conviction were regular in all respects, and free from error. The question under consideration does not, accurately speaking, involve the jurisdiction of the court in which he was tried and sentenced. The precise question is, was the court legally-organized when the judgment was pronounced. If there is anything settled in the jurisprudence of this state it is, that no *73man shall be condemned and punished by the judgment of an unauthorized tribunal.

• To create a judicial tribunal is one of the functions of government, and it is against public policy to recognize judgments and decrees of a self-constituted court. In civil actions the judgments of unauthorized judicatories are sometimes held binding on suitors as mere arbitrations, when the proceedings are conducted with their consent, but never in criminal prosecutions, for the punishment that follows a. conviction, may, and often does involve life and liberty, and is not limited to the loss of property. It is a maxim of the law that consent never confers jurisdiction. This applies as well to consent which Creates a tribunal, as to that which submits matter to a subsisting tribunal which is an utter stranger to it. Germond *v.*People, 1 *Hill,*345.

A court is as much disorganized and without power to act, when one or more unauthorized individuals participate in its deliberations and judgments as when it acts without the presence of those who are necessary to constitute a quorum as required by some provision of positive law.

The cases which I will now mention prove, as far as judicial decision can establish any proposition, that the tribunal which pronounced judgment against the prisoner on the verdict of conviction, was illegally constituted and unknown to the law of the land.

In Oakley *v.*Aspinwall, 3 *N. Y.*547, it was held, that if one of the members of a court is disqualified to sit in a particular case, by reason of his consanguinity to one of the suitors, he cannot properly and legally act as a member of the court, though it should be with the express consent of all the parties in interest.

This rule was applied in that case where one of the members of the Court of Appeals was disqualified by reason of his relationship to one of the parties, although all the parties gave express consent and requested the disqualified judge to sit, and there was in fact a quorum of the court without his presence. The judgment in which he participated was declared void and vacated on motion. In the opinion of the court, the statute on the subject of the disqualification of judges was quoted, and *74the provision of the statute is: “ ¡No. judge of any .court can.sit as such in any cause to which he is a party, or in which he is interested, or in which. he would, be excluded from being a juror by reason of consanguinity or affinity to either-of the parties.” 2 *R.*S. 275, § 2; Reviser’s Notes, 3 *R. S.*694.

The court, in remarking upon the rule of the common law and the provisions of the statute, says, viz.: *“*.After so plain a prohibition, can anything more be necessary .to prevent a judge from retaining his seat ip the cases specified *%*He is first excluded by the moral .sense of all mankind; the common law next denies the right to sit,, and then the revisers of our law declared that they intended to embody this universal sentiment in the form of a statutory prohibition,, and so they placed this explicit provision before'the legislature, who adopted it without alteration and enacted it as the law. The exclusion wrought by it is as complete as is, jn the nature pf the case, possible. The judge is removed from the cause, and from the bench ; or if he will occupy the latter, it must *1)6 only as an idle*spectator, *and not as a judge.*He cannot sit as .such. The spirit and language of the law are against it. Having disqualified him from sitting as a judge, the statute further declares that he can neither decide nor take part in the decision of the causes, as to which he is divested of the judicial function. Nor ought he to wait to be put in mind of his disability, but should himself suggest it and withdraw, as the judge with great propriety attempted to do in the present case. He cannot sit, says the statute. It is a legal impossibility, ,and so the courts have held it.” Edwards *v.*Russell, 21 *Wend.*63; Foot *v.*Morgan, 1 *Hill,*654,

The statute applicable to the case we have in hand declares : The court of Oyer and Terminer shall be held by a justice of the Supreme Court *without an associate.*

In the case of the People *v.*Shaw, 63 *N. Y*. 36, it was held that if a quorum of- the court, as. provided -by -the statute which created it was not present when the verdict of the jury was received, it was error, and the judgment pronounced thereon was reversed. In the opinion of- the. Supreme Court, the same view was taken, and is reported in 3 *Hun,*272.

In Cancemi’s case, 18 *N. Y.*128, he.consented to be-tried by a -jury of eleven qualified jurors, and- was convicted of the *75crime of murder. The Supreme Court sustained the conviction on the ground that the prisoner could waive his constitutional right to be tried by a jury of twelve.

The Court of Appeals reversed the judgment, and set aside the conviction, and ordered a new trial, holding that the prisoner could not waive his right to be tried by a jury composed of the number provided by the constitution of the State, and the verdict of conviction was a nullity. The court further held that when an issue was joined on an indictment, the trial must be by the tribunal and in the mode which the constitution and the laws provided, without any essential change, that the public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant.

On the authority of these cases, the judgment appealed from must be held erroneous and void. The following cases are cited as authority on these propositions. Blend *v.*People, 41 *N. Y.*604; People *v.*Dohring, 59 *N. Y.*374; Hinman *v.*People, 13 *Hun,*266 ; Chambers *v.*Clearwater, 1 *Keyes,*310; Foot *v.*Morgan, 1 *Hill,*654; Germon *v.*People, 1 *Id.*345; People *ex rel.*Tweed *v.*Liscomb, 60 *N. Y.*571.

As the defect in the organization of the court deprived it of the character intended by the law creating it, this court must take notice of the defect, although the appellant on this appeal for the first time makes the objection to the validity of the sentence. 92 *N. Y.*144; 1 *N. Y. Crim.*244.

For the reason that the judgment is a nullity, it cannot stand, and must be reversed. The question now arises, whether this court has the power to give a new judgment on the verdict, and if not, must the record be remitted to the Oyer and Terminer, with directions to proceed on the conviction, and pronounce the appropriate sentence on the verdict, or should the judgment be reversed and a new trial ordered, or the prisoner absolutely discharged ? The Code of Criminal Procedure has abolished writs of error, and substituted an appeal as the only mode of reviewing a judgment in a criminal action. Section 515.

As the judgment in this action was pronounced after the Code went into operation, the record is brought before us on appeal as provided by section 517. By the Revised Statutes, *76as amended by chapter 226, Laws of 1863, relating to writs of error in criminal cases, it was provided :—

“ If the Supreme Court shall affirm such judgment, it shall direct the sentence pronounced to be executed, and the. same shall be executed accordingly. If the Supreme Court shall reverse the judgment rendered, it shall either direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case; provided, however, that the appellate court shall have power upom any writ of error, when it shall appear that the conviction has been legal and regular to remit the record to the court in which such conviction was had, to pass sentence thereon as the said appellate court shall direct.” 2 *R. S.*§ 24, marginal page 471.

There can be no doubt but that this section is repealed and the provisions of the Code on the same subject substituted in lieu thereof. Section 962 declares that the provisions of the Code apply to criminal actions and to all other proceedings in criminal cases, which are therein provided for from the time when the same took effect (which was September 1, 1881). That all such actions and proceedings theretofore commenced must be conducted in the same manner as if the Code had not been passed. Although this action was commenced and a trial had before the Code went into operation, the provisions of the same, relating to giving judgment on appeal are applicable, because the judgment on the verdict and the appeal therefrom, are proceedings in the action instituted after the Code took effect, and are not such proceedings as are embraced in the exception as mentioned in the section.

Entertaining jurisdiction on this appeal at the instance of the appellant, is giving a construction to the statute in accordance with these views. Chapter 4 of the Criminal Code contains provisions relating to the power of the appellate court to give judgment on disposing of the appeal. The directions are,- after hearing the appeal, the court must give judgment, without regard to technical errors or to exceptions which do not affect the substantial rights of the parties. The next section (see. 543) provides: “Upon hearing the‘appeal the appellate court may in cases where an erroneous judgment has been rendered upon a lawful *77verdict, correct the judgment to conform to the verdict; in all other cases they must either reverse or affirm the judgment appealed from, and in case of reversal may, if necessary or proper, order a new trial.” If the judgment against the defendant be reversed without ordering a new trial, the appellate court must direct his discharge. If the judgment be affirmed the original judgment must be carried into execution as the appellate court may direct and if the judgment be corrected, *the corrected judgment must be carried into execution as the appellate court may direct.*

There is also the further provision, that, when a judgment in the appellate court is given, it must be entered in the judgment book and a certified copy of the entry forthwith remitted to the clerk, with whom the original roll is filed, and the papers returned to the appellate court must there remain a record and not be remitted to the court below.

The verdict in this case was, in every respect, valid and legal, and I am of the opinion that the judgment pronounced thereon is void. The question now arises, has this court, on correcting the error and setting aside the void judgment, the power and authority to pronounce an appropriate judgment on the verdict as it stands ? I am of the opinion that the provisions of the Criminal Code which we have mentioned, confer such power, and that it is our duty to give the judgment which the law pronounces on the verdict.

Prior to the act of 1863, if an erroneous judgment was pronounced on a legal and regular conviction, on the trial of a good indictment, and the judgment was reversed on a writ of error in an appellate court, such court had no power to remit the proceedings to the court below to proceed on the verdict and give the appropriate judgment, nor could the appellate court give a new judgment, but, under the provisions of the statute and the law as it then stood, the defendant was entitled to an absolute discharge on a reversal of the judgment which had been given against him. Shepherd *v.*People, 25 *N. Y.*406; McKee *v.*People, 32 *Id.*239; Ratzky *v.*People, 29 *Id.*127; People *v.*Taylor, 3 *Denio,*97; O’Leary *v.*People, 4 *Park. Cr.*187.

The decision in People *v.*Shepherd was founded on the idea that there was not, previous-to the act of 1863, any authority *78in the appellate court on the reversal of a judgment wrongfully pronounced when the trial and conviction was 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.

It was, as we think, the clear intent of the legislature, in amending section 24 of the Revised Statutes, by adding the provision contained in the act of 1863, to retain the verdict when the trial and conviction were jugular and legal on a good indictment, when the judgment was reversed and ,set aside, because of some error in the form or substance thereof. To accomplish this end, specific power was given the appellate court to formulate the appropriate judgment arid .to remit it, with the record to the court in which conviction was had-, with directions to pass sentence on the verdict in the form and to the effect as prepared by the appellate court.

In Ratzky’s case, the judgment was reversed because of error in the form and effect of the same, and as no error occurred on the trial, and the indictment was good and' sufficient, the Court of Appeals prepared the judgment which should be pronounced on the verdict and sent the same with the record to the court below, to be pronounced on the defendant.

If we were reviewing the judgment in this case, on a writ of error, issued under the provisions of the Revised Statutes, we should not, on reversing the judgment, discharge the defendant nor award him a new trial, but should formulate a new sentence and direct the Oyer and Terminer to pronounce the same.

We are entirely satisfied that it was the purpose of the legislature in adopting, sections 242 and 243 of the Criminal Code, to keep and preserve the verdict in all cases where the same is lawful, and if an erroneous judgment' has been pronounced thereon by the trial court, on appeal therefrom, then,- that the appellate court should give the proper judgment.

There is no provision in the statute as it now stands for remitting the record to the- court below, with directions to that-court to proceed anew and pronounce the appropriate sentence. Without a statute on the subject conferring the power,' this *79court is without authority to give such directions, and the court below has none to proceed anew on the subject. Unless the statute does confer on this court the power to give a new judgment on the reversal of an erroneous one when the verdict is lawful, then, in every such case the defendant is entitled to an absolute discharge, for the reason that the trial and conviction already had, would be a complete bar to another trial and conviction.

Authority, full and complete, is conferred on this court to correct an erroneous judgment, and to conform it to the judgment when the judgment is lawful. But it is said, as this judgment is void, it cannot correctly be held erroneous, within the meaning of the statute, so as to bring the same within its provisions.

I do not concur in the suggestion, and on the contrary believe the judgment erroneous as well as void, within the sense and meaning of the statute, so that we may give the appropriate judgment on the verdict. A judgment may be erroneous and not void, and it may be erroneous *because*it is void. It is within the power of the legislature to confer on a court the right to pronounce sentence on a verdict convicting the accused.

A judgment now given by this court on the verdict will be, it is true, a new judgment, to stand in the place of the present void judgment. So are all corrected and modified judgments in criminal or civil actions, in a certain sense, new judgments. Suppose a sentence wholly unauthorized by law be pronounced on a legal verdict, by a competent and duly organized court, the same is erroneous and void, for the reason that the same is without sanction of law. On appeal therefrom, this court has the undoubted right under the provisions of the present statutes to correct the same and conform it to the verdict. In doing this, the court does make up and give a new judgment in every respect. Ho part or feature of the void judgment can be retained,

The judgment now under consideration is erroneous and void in the same sense as in the case supposed, but for a different reason. The phrase “ erroneous judgment,” as used in section 543, should be considered to embrace void judgments, *80as well as those which are merely erroneous, and the power to correct judgments and conform them to the verdict should be held to include those that are erroneous, because they are void. It cannot be doubted, but such was the intention of the legislature. It cannot reasonably be supposed that the legislature was ignorant of the well-established rule of law, that, if there has been a legal conviction on a good indictment, the accused cannot be re-tried on the same indictment after an erroneous judgment on the verdict has been reversed and set aside; nor can it be believed* that in codifying the law on this subject, it did not intend to preserve the provisions of the Revised Statutes, conferring on courts of review the power to give a proper judgment on a legal verdict on reversing an erroneous and void one, and thus to secure the punishment of guilty persons who have been legally convicted, and not allow law-breakers to escape altogether by reason of error in pronouncing the judgment of the law on a just conviction.

The form of the verdict is set forth in the record, and if for any reason the same is incomplete and does not pass upon all the issues as required by the statute, the question was propperly brought to the attention of the trial court on the motion in arrest of judgment. It is now argued that the motion should have been allowed and the judgment arrested for the reason, that the verdict did not contain any finding or statement of the loss sustained from the offense committed by the defendant as required by the statute under which the indictment was found.

It is not claimed by the learned counsel for the defendant, that a request was made on the trial by the people or the defendant, that the jury find and state with their verdict the amount of the loss sustained by the city. The fact which may be found by the jury under the statute, is no part of the verdict. It must be stated with the verdict, when the fact is the language of the statute being; *“*when rendering a verdict of guilty, upon the trial of any pei'son indicted under the act, the jury *may find*and state with their verdict, the amount of loss resulting from the offense of the defendant.”

I am unable to discover that it was the intention of the legislature, that in every distance where a . conviction takes place, that the jury must pass on the question of loss, and con*81sequently hold that, if there be omission so to do, the verdict is incomplete and for that reason a mis-trial must be adjudged. The statute is not imperative and peremptory in terms; the language is permissive. Although the act relates wholly to matters of public concern, this provision of the statute should not be regarded as imperative. Should the defendant plead guilty, he would then be legally convicted and the court could lawfully pronounce sentence, without any finding by a jury as to the extent of the loss.

Let it be conceded that this provision of the statute was inserted solely in the interest of the- accused, that does not seem to be a sufficient reason for requiring the construction to be given to the statute, making it the duty of the court on every trial, to require the jury to pass on the question of loss.

This is like the case where the sheriff or other officer is empowered to let to bail. Before such an officer is derelict in duty, he must be required to perform, tbe-duty required. We put this with that class of cases, which we do not deem it necessary to cite, which hold., that there must be a request made of officers or public bodies to act and discharge the duty . imposed on them by law before it can be- said, that they have not discharged their official duty to the injury of the complaining person.

I am of the opinion, that the verdict was complete and that there was not a mis-trial, because the jury failed to find the extent of the loss sustained by the city.

Judgment and orders affirmed.

Note.—For case where the objection was made to the organization of the Court of Oyer and" Terminer that it was held by too few, not, as in the present case, by too many judges, see Smith v. People, 47 *N. Y.*330. .