¶1The opinion,of the court was delivered by
¶2The defendant was convicted before the Union •County .Quarter Sessions of a high misdemeanor, and on error her conviction was reversed by the Supreme Court for the .admission at the trial of testimony deemed illegal. Thereupon the state sued out a writ of error from this court to reverse the judgment of the Supreme Court, and now the -defendant moves to dismiss the writ on the ground that the state is not entitled to a writ of error in a criminal case.
¶3On this contention the primary question is, how stood the matter at the common law?
¶4The right of the crown to issue a writ of error in a criminal ^case is assumed by the older jurists of England. Thus Lord Coke says, that if a judgment of acquittal be given upon an -erroneous indictment, the king need not bring a writ of error in order to subject the defendant to a new indictment. Coke P. C. 214. This is repeated by Matthew Bacon as good law in 'his time. Bac. Abr., error A. So, Lord Hale (2 Hale P. C. *234247, 248) clearly indicates that, if judgment be given for the defendant on a special verdict found in a case of murder or felony, it may be reversed on error; and (Id. 394, 395) that the like course may be taken, even when the defendant has been acquitted by a general verdict on a plea of not guilty.
¶5dSTo intimation to the contrary appears in any of the ancient books.
¶6This fact is perhaps stronger evidence of the right of the-crown than would be a direct assertion of the right, for it shows that, when the minds of the writers adverted to the-subject, no doubt was suggested.
¶7It was also a settled rule of the common law that the defendant could not sue out a writ of error in a criminal case-without special warrant from the crown or the fiat of the attorney-general, and, at least in cases of treason and fehmy, this fiat was given ex gratia fegis, and not ex debito justifies. Rex v. Wilkes, 4 Burr. 2550. From this it is a reasonable-inference that the attorney-general might himself prosecute such a writ.
¶8The old ease of the Marquis of Winchester points in the-same direction. For, while the reporters are not agreed as to-whether the writ in that case issued at the instance of the crown or of the defendant (Jones 407; Cro. Car. 504), they concur in the statement that the judgment was reversed for a defect prejudicial to the king. Sir William Jones, who-reports the case as a writ of error brought by the king, had sat upon both the common bench and the king’s bench in England, and his omission to comment upon the proceeding as anomalous is a plain indication of its legal propriety.
¶9Coming to more recent times, we find that in Regina v. Houston, Craw. & D. 10, 191, the defendant had judgment on his demurrer to an indictment for conspiracy, but on writ of error brought by the crown the judgment was reversed by the Court of Queen’s Bench in Ireland. So, in Queen v. Millis, 10 Cl. & F. 534, on an indictment for bigamy a special verdict was rendered, which, being removed by certiorari into the Queen’s Bench in Ireland,, resulted there in' a judgment of acquittal; this judgment was taken into the-*235House of Lords'by writ of error, at the instance of'the queen. Likewise, in Regina v. Chadwick, 11 Q. B. 205, there was a special verdict on an indictment for bigamy, on which the-defendant had judgment in the Liverpool Assizes, and this was removed into the Queen’s Bench by writ of error at the-instance of the crown.
¶10In none of these cases was a doubt intimated as to the right' of the crown.
¶11In view of these matters, it seems almost incredible that by the English common law the crown was not entitled to a writ of error in criminal cases.
¶12In this country, as early as 1821, the Maryland Court of Appeals, in State v. Buchanan, 5 Harr. & J. 317, considered the authority of Lord Hale alone as sufficient to establish the-rule of the common law, and on that basis sustained the right of the state to prosecute the writ.
¶13The leading case to the contrary is People v. Corning, 2 N. Y. 9, for the earlier cases of People v. Dill, 1 Scam. 257, and Commonwealth v. Harrison, 2 Va. Cas. 202, cite no-authorities and give no reasons for the judgment, and in State v. Reynolds, 2 Hayw. (Tenn.) 110, the question is confounded' with the very different one of granting a new trial after' acquittal.
¶14With regard to the case of People v. Corning, I think that anyone reading the opinion of Judge Bronson will perceive-that his conclusion was induced more by the supposed danger-arising from the exercise of such a power by the state than by the legal authorities for and against the possession of the-power. That his apprehensions were not shared in by people-generally was soon shown by the statute passed to confer on the state the power denied by the court. Moreover, the decision rendered in that case was rendered in the teeth of the-previous practice in New York, and of a former decision by" the same court, given after full discussion and consideration,, in People v. De Bow, 2 N. Y. 9, note a.
¶15The case of Commonwealth v. Cummings, 3 Cush. 212, was decided mainly on the construction of the Massachusetts-statutes, and that of United States v. More, 3 Cranch 159, *236174, turned wholly on the jurisdiction of the federal Supreme Court.
¶16These decisions are not satisfactory as to the common law •of England, and should not be followed in this state, where we are accustomed to adhere closely to common law rules which were not obsolete before the Revolution, and are not •out of harmony with our institutions.
¶17This issuance of a writ of error should not be confounded with the granting of a new trial, which always rests in the ■discretion of the court. The rule of the English judges was to refuse a new trial after the acquittal of the accused •upon an indictment, and the principle underlying that rule -is now imbedded in our constitution: But the acquittal there intended does not include the reversal of a conviction for •error of law. Smith v. State, 12 Vroom 598.
¶18But not only does the common law sanction this writ of ■error; our statutes likewise authorize it.
¶19From the time of Lord Cornbury’s ordinance, promulgated in 1704, the Supreme Court has had cognizance of all pleas, .civil, criminal and mixed, as fully as the Courts of Queen’s Bench, Common Pleas and Exchequer in England; and in 1799 the legislature enacted “that errors happening in the Supreme Court of this state shall be heard, rectified and determined by the Court of Appeals in the last resort'in all causes of law,” and “that it shall and may be lawful for the .attorney-general, in behalf of the state, or for any party, his •legal representatives, or other person, who may be damnified <or aggrieved by any judgment rendered or to be rendered in the Supreme Court, to sue forth a writ of error, to be directed •to the judges of the said Supreme Court for the time being, commanding them to cause the record of such judgment, and .all things concerning the same, to be brought before the said Court of Appeals.” Pat. L., p. 345.-
¶20Effeet cannot be given to this language without including criminal cases, and making the right of the attorney-general, ■on behalf of the state, as clear as that of the defendant. The •right thus committed to the attorney-general has since been *237delegated also to the prosecutors of the pleas, in case of the-absence of the attorney-general. Gen. Stat., p. 118. These provisions of the act of 1799 still exist (Gen. Stat., p. 1391),, and this court has already held that they embraced criminal causes. Hines v. State, 25 Vroom 199.
¶21The question whether, after such an acquittal as will protect the defendant from being tried again, the state, may prosecute a writ of error in order to correct a misconstruction-of law need not now be and has not been considered by the-court.
¶22The motion to dismiss the present writ of error is denied.-
¶23For the motion—None.
¶24Against—The Chancellor, Chief Justice, Van Syckel,Dixon, Garrison, Collins, Eort, Hendrickson, Adams,Vredenburgh, Voorhees. 11.