VANN, J.

The defendant was indicted for the crime of manslaughter in the first degree, which is taking human life without a design to effect death, but was convicted of assault in the first degree, which is an assault made with intent to effect death, or to commit a felony upon person or property. (Penal Code, §§ 189, 217.) The Code of Criminal Procedure provides that "upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence." (Code Cr. Pr. § 444; L. 1900, ch. 625.)

The evidence warranted the jury in finding that on the 9th of January, 1905, the defendant with intent to kill, struck one Dernberg on the head twice with a flatiron and that on the 25th of the same month said Dernberg died from the wounds thus inflicted. They could also have found, however, that he would not have died from the effect of such wounds had he not constantly violated the orders of his physician. There was no evidence to warrant a finding that the assault was made with intent to commit a felony upon person or property.

The Appellate Division reversed the judgment of the County Court, but by its amended order the reversal is certified to have been made "upon questions of law only, the facts having been examined and no error found therein." The opinion indicates that it reversed because manslaughter negatives the idea of an intent to kill, while it is an essential element in the crime of assault in the first degree. That was a question of law, but it was not raised by any exception. No court can create an error of law by certifying that there is one, and a question of law in a criminal case prosecuted by indictment can be raised only by an exception. The Appellate Division could have reversed because the verdict was against the weight of evidence, but they did not and we cannot. There is no exception in the record to justify the reversal. Those relating to the evidence and the charge raise no reversible error. There was no motion made at the close of the evidence that the court should advise an acquittal, or that the defendant should be discharged. There was no exception to the charge that the jury could convict of assault in the first degree and no request made to charge upon that subject. When the case was submitted to the jury, therefore, the defendant was in the attitude of consenting that they might pass upon the evidence and also of acquiescing in the charge that they could convict of assault in the first degree, notwithstanding the indictment was for manslaughter in the first degree.

There was a motion for a new trial but the order denying it brings up nothing for us to review. There was a motion for an arrest of judgment, but that brought up only the jurisdiction of the court over the subject of the indictment, which is not disputed, and the question whether the facts stated constitute a crime, meaning, of course, the facts stated in the indictment. ( People v. Meakim, 133 N.Y. 214, 219; Code Cr. Pro. §§ 323, 331, 467.) It is not claimed that the facts stated in the indictment do not constitute a crime, although it is strenuously insisted, as the Appellate Division held, that they do not constitute the crime for which the defendant was convicted. However, when the court charged the jury that they could convict him of an assault in the first degree, notwithstanding the indictment was for manslaughter in the first degree, the defendant made no objection and took no exception. He acquiesced in that instruction and was apparently satisfied with it. If the trial judge had been asked to charge in accordance with the present contention of the defendant, and he had refused, an exception to the ruling would have brought up the question upon appeal. The defendant, however, refrained from so doing, perhaps because he thought that portion of the charge upon which he seeks to overturn the judgment was favorable to him, inasmuch as manslaughter in the first degree "is punishable by imprisonment not exceeding twenty years," while assault in the first degree "is punishable by imprisonment for a term not exceeding ten years." (Penal Code, §§ 192, 220.) The sentence of the defendant was imprisonment for one year and eight months, which, in view of the evidence, does not impress us as severe. In no way did the defendant call the attention of the trial court to the position he now takes, or try to procure a ruling which would permit us to consider it. The power given us to reverse in a capital case without an exception, under certain circumstances, is withheld in all others. ( People v. Grossman, 168 N.Y. 47; Code Cr. Pro. §§ 527, 528.)

We have no power to pass upon the question of law which led the Appellate Division to reverse, because it was not raised by an exception. That learned court was in the same situation with reference to that question, although it had ample power with reference to other questions not open to us. We are thus compelled to reverse their determination because they had no power to make it.

The order appealed from should be reversed and the judgment of conviction affirmed.

CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT and CHASE, JJ., concur.

Ordered accordingly.