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Transcript Appeals.

JANUARY TERM,

1867.

ROBERT MCKEE, PLAINTIFF IN Error, v. THE PEOPLE,

ETC., DEFENDANTS IN ERROR.

Court of Oyer and Terminer- Appeals in Capital Cases-Laws 1855, Ch. 337.

Laws 1858, Ch. 330.

The act of 1855 (Laws 1855, ch. 337, as amended by Laws 1857, ch. 330) has no application to trials in Courts of Oyer and Terminer.

It applies only to cases where there has been a conviction for a capital offence in the General Sessions of the Peace in and for the City and County of New York.

Only in such cases, therefore, can the Court of Appeals grant new trials, whether or not exceptions have been taken in the Court below.

Scott Lord for Plaintiff.
J. H. Martindale, Attorney-General, for Defendants.

Davies, CH.J.-At a Court of Oyer and Terminer, held in the county of Livingston, in the month of February, 1863, the Plaintiff in error was convicted of the crime of murder in the first degree, and sentenced to be executed on the third day of April, then next ensuing.

The homicide was committed on the 18th day of November, 1861. On the 9th day of March, 1863, a writ of error was brought upon said judgment to the Supreme Court, and at a General Term thereof, held on the 16th day of December, 1863, the judgment was affirmed, and on the 31st day of December, in the same year, the writ of error, upon this latter judgment, was brought to this Court.

Opinion by DAVIES, Ch. J.

The cause was argued in this Court at the January Term thereof, held in 1865.

We then held that the sentence passed upon the prisoner was clearly erroneous; and in conformity with the provision of the act of April 24th, 1863 (this Court upon that occasion being of the opinion that the conviction of the prisoner had been legal and regular), directed the record to be remitted to the Oyer and Terminer, to pass the sentence prescribed by the act of 1860 (32 N. Y. Rep. 239). Upon this argument no question was made that the trial and conviction of the prisoner had not in all respects been legal and regular. Nay, this Court understood the learned counsel for the prisoner to concede upon that argument that it had been.

At the September Term of this Court, held in 1865, an application was made, on behalf of the Plaintiff in error, to this Court, for a reargument, on the ground that errors had intervened on the trial prejudicial to the prisoner, and which, in the opinion of his counsel, were sufficient to procure a new trial, and which had not been urged on the former argument, for the reason that it was supposed the point relied on was fatal to the conviction, and would, of itself, ensure the discharge of the prisoner.

Under the peculiar circumstances presented, this Court ordered a reargument, and the Court have now heard all the suggestions of counsel deemed important for the consideration of this Court. We do not propose to review the questions discussed and decided upon the former argument. They are there carefully considered, and received the general approval of the members of the Court. Those questions then passed upon must be regarded as finally settled, and not open to further discussion (Ratzky v. The People, 29 N. Y. 124).

There remain to be considered the points now made by the counsel for the prisoner, on this reargument, and urged as reasons why this conviction and judgment should be reversed. The homicide was perpetrated under circumstances evincing premeditation, and a determination to take the life of the deceased.

He was the brother-in-law of the prisoner, and had been at the

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