Opinion
December 9, 1910.
Present — INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN, CLARKE and SCOTT, JJ.
The district attorney wishes to have inserted in the order on this appeal a provision certifying that the reversal was solely upon errors of law and not upon matters of fact or matters of discretion, and that the court has reviewed all questions of fact and finds no errors.
The defendants were convicted of forgery in the third degree, under section 515 of the Penal Code. The necessary element of that offense is an intent to defraud or to conceal a larceny or a misappropriation of money or property. We expressly held that the evidence failed to prove the crime charged under the statute relied upon, and reversed the judgment. Where the reversal is upon the ground that the proof fails to establish the crime charged, we cannot recite in the order that the court has reviewed and considered all the questions of fact in the case and finds no error therein; for the reversal was because the facts proved did not sustain the indictment and justify the conviction. Such an order can only be in a case where the facts would justify a conviction of the crime; but the judgment is reversed because of an exception which presents a question of law, or an act under which the defendants were convicted is unconstitutional, or for some other reason void. Under the Constitution (Art. 6, § 9) a unanimous decision of the Appellate Division that the verdict is sustained by the evidence cannot be reviewed by the Court of Appeals, and, therefore, if we inserted such a clause in the order, the Court of Appeals would, as I understand their decisions, reverse the order, unless there was some exception which presented an error of law. This has been before stated in denying motions to resettle orders; but, notwithstanding the position that this court has taken, the applications are renewed again and again. The court can only affirm on the facts when the evidence sustains the verdict of the jury convicting of the crime charged. We cannot affirm on the facts when the evidence shows that no crime was committed.
The application is, therefore, denied.
Motion denied.