UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY **. Green. as well as other circumstances, to see whether it is proved that in truth there was bad feeling on the part of the mother in re- lation to her son's marriage, that she regretted what had hap- pened and disapproved of the marriage. And in corroboration of that it is urged and shown, that the mother did not call on the deceased. It is urged by the prosecution also that this match, thus has- tily and prematurely entered into, did not indicate that desirable and abiding affection which is supposed to be incompatible with the feeling that induced the commission of this crime; and that a former attachment to Miss Godfrey (the same one that went with him after his marriage on the sleigh ride) still lingered about the prisoner, and prompted him, in connection with the interview with his mother, to the commission of the act for which he is arraigned. Look at the evidence, gentlemen, and see whether this is proved. You must look at this question of motive and give it due weight; because this is all a question of fact, and belongs to the jury to decide. It is not proper that the court should express an opinion, or attempt to control you in settling it. On the part of the prisoner it is urged, and many witnesses have been introduced to prove, that up to the time of this occur- rence, the prisoner sustained a fnir character. Now, in cases of doubt, this is very important evidence. If the evidence stood balanced, or nearly so, or if it admitted of doubt, it would be more satisfactory to know what had been the true character of the accused before; and he is entitled to the benefit of former good character. But if the crime be proved upon him to your satisfaction, then it is of no consequence what his character had been. You have heard, however, what the witnesses have said on this point what was drawn out on the direct and cross- examination; and if this case be one of doubt in your minds, then you must resort to the question of character, and give to the prisoner all the benefit of his character as proved. I have thus called your attention to the prominent issues in- volved in this case. In all such cases, it is the rule of law, and it is a salutary one, which has prevailed from time immemorial., RF.NSSELAER, JULY, 1845. 3/5 The People v. Green. that if there be a reasonable doubt of the guilt of the accused, he is to have the benefit of that doubt. But by a reasonable doubt, I do not mean a bare possibility of innocence, because that may exist in all cases. Even where a witness comes be- fore you and swears that he saw a murder committed, there is a possibility that he swears to an untruth. I mean to say that if there be a conviction on your mind, from the evidence before you, that the prisoner is guilty; if in your hearts you feel that there is no reasonable question on that point, you must then find him guilty. Throughout this whole trial it has been the intention of the court to secure the prisoner a fair trial. In all questions of doubt as to the admissibility of evidence, the court has been governed by views favorable to the prisoner. So with you. Where a circumstance is of a doubtful character, or doubtful in its bearing, you are to give the prisoner the benefit of the doubt. But where a fact is established, which leads the mind necessarily to the conclusion that he is guilty, though there may be a bare possibility that he is innocent, still you must find him guilty. In all these cases, gentlemen, there are appeals to the sym- pathies of the human heart appeals which if not made by counsel, grow out of the cases themselves. Our sympathies naturally tend in favor of prisoners arraigned for a capital offence. In this case, no doubt, you would gladly acquit, if you could. It is the natural tendency of the human heart. But you must bear in mind thai mercy is not an attribute that belongs to courts. We must pass upon the law, and the facts as they exist. We have nothing to do with sympathy in this case. If mercy is to be extended to the prisoner, it will be extended by a different tribunal. The executive alone can interfere. And in this case, as in all others of great importance in capital cases especially it is urged that attempts have been made to operate on your minds by local appeals and prejudices, by influences other than those legitimately to be drawn from the tes- timony. I have no doubt you will guard against such influences. 36 DECISIONS IX CRIMINAL CASES. The People v. Green. A high and solemn duty devolves on you. I have no doubt you will meet it as becomes yourselves, though it is the most painful act of your lives. Probably this is the first time that you have been called upon to pass upon an issue so momentous; and I trust it maybe the last. You are to soar above all extraneous influ- ences, political or local to discard every thing foreign to the case before you. You are above it and beyond it. You have a high and holy duty to perform. You are to mete out justice with a firm and impartial hand; and under every obligation to your country, to your own consciences, and to God, to discharge your whole duty, without fear or favor. You have been told of the consequences of a wrong verdict in this case. You have nothing to do with conjectures or possibilities. You are to say, on your consciences and your oaths, whether, upon the evidence before you, the prisoner is guilty. If you discharge that duty faithfully, whatever may be the true state of the case, you can have hereafter no cause for regret. You will always be sustained by the reflection that you have faithfully acted according to the lights before you at the time; and whether you acquit the guilty or convict the innocent, your consciences will approve your conduct. I can not close the discharge of the duty that devolves on me without urging upon you the importance of agreeing upon a verdict. The case has occupied two whole weeks, A vast deal of time and money has been expended. The case has been very fully presented. Many witnesses have been examined, and most ably has the case been argued by counsel. You see, there- fore, the great importance of endeavoring to agree on a ver- dict. Not that I anticipate any difficulty; but in all such cases I deem it my duty to present to the jury the importance of agreeing. And I must add, that you ought not, any of you, to place your minds in that fixed position, that you can not yield to conviction, by reason and argument among yourselves; but rather cultivate a disposition to seek after, and arrive at, the truth. I have no doubt your duty will be most faithfully dis- charged kindly towards the prisoner weighing carefully the REXSSELAER, JULY, 1845. 37 The People v. Green. ingenious and able arguments in his behalf, at the same time with a due regard to your consciences and the public interests. And whatever result you may arrive at, if you arrive at it un der a full sense of duty faithfully discharged, it will be, it must be, satisfactory to all. It will be enough for you, however, to know that it is satisfactory to your own consciences. The counsel for the prisoner asked the court to charge, that there had been no evidence to prove that the prisoner was ac- tuated by any motive that induced him to murder his wife. The court refused so to charge, but held and charged that that was a question of fact for the jury to decide, to which decision and charge the counsel for the prisoner excepted. The counsel for the prisoner also asked the court to charge, that they had no right to infer anything against the prisoner, in consequence of the absence of his mother and sister from the city of Troy during the trial. And that the jury had no right to infer from the evidence, that either the mother or sister, at their interview with him at Berlin, expressed any dislike to his wife, or said any thing to the prisoner against the character of His wife. The court charged as requested, on the first propo- sition; and as to the second proposition, charged that the jurj were not authorized to make any such inference, buf must look only to what was affirmatively proved, if any thing was proved, on that subject. The counsel for the prisoner also asked the court to charge, that by the last dying declaration of the deceased, according to the testimony of Porter G. Dennison, she declared she did not know the cause of her illness, and thereby contradicted all she had previously said implicating her husband. The court refused so to charge, but charged that the jury must ascertain what that last dying declaration was, not only from the testimony of Porter G. Dennison, but also from that of David W. Wyatt, and having ascertained what it was, it was for the jury to say whether there was a contradiction of her previous declarations implicating her husband. 33 DECISIONS IN CRIMINAL CASES. The People v. Green. The jury found the prisoner guilty, and he was sentenced to be executed, on Wednesday the tenth day of September fol- lowing. He was executed in pursuance of the sentence (a). (a) Form of a warrant of execution. The People of the State of New York, to the Sheriff of the County of Rensselaer, Greeting; Whereas, at a Court of Oyer and Terminer, held at the Courthouse in the city of Troy, in said county, on the nineteenth day of July, 1845, by and be- fore Amasa J. Parker, one of the Circuit Judges of said state, presiding judge and George R. Davis, First Judge of said County, and Archibald Bull and Silas W. Waite, Judges, of the County Courts of said county, Henry G. Green, was convicted of having murdered Mary Ann Green, his wife, by poison, and was thereupon sentenced by the said Court of Oyer and Terminer to be hanged by the neck, on Wednesday, the tenth day of September next, between the hours of nine o'clock in the forenoon and three o'clock in the after- noon, until he should be dead. Now, we do by this warrant, pursuant to the statute in such case made and provided, require and appoint that you cause the said sentence to be executed on the day and between the hours therein mentioned aud at the place and in the manner prescribed by law. Given under the hands of the undersigned, being, the Judges who constituted aid Court of Oyer and Terminer, on this nineteenth day of July, 1845. Amasa J. Parker, Circuit Judge. George R. Davis, First Judge, &c. A. Bull, ) Judges of the S. W. Waite. J County courts. DELAWARE, SEPTEMBER, 1S45. DELAWARE OVER ANE TERMINER, September 1845. Before Parker, Circuit Judge, and Wheeler, Hakes, Gregory and Jennings, County Judges. THE PEOPLE vs. JOHN VAN STEENBURGH. An offence, in regard to which there is a discretion vested in the court, to pun- ish it, either by imprisonment in the slate prison or by fine, or by imprison- ment in the county jail, is within the statutory definition of felony. If the offender, on conviction, be liable to imprisonment in the state prison, he is guilty of felony, though he be also liable to the infliction of a less severe punishment. A violation of the seventh section of the act. entitled ' ; an act to prevent per- sons appearing disguised and armed," passed January 28, 1845, is a felony; and the killing of a human being by persons engaged in the violation of that section, though the act be perpetrated without any design to effect death, is murder. The prisoner was indicted for the murder of Osman N. Steele. At the time of Steele's death, he was the under sheriff of the county of Delaware, and was shot while engaged in the col- lecting of rent, by some persons in a large assemblage of peo- ple who had collected for the purpose of resisting the collection of the rent, most of whom were armed and disguised. The prisoner pleaded, to the indictment, not guilty. It was proved on the trial that Moses Earle lived upon and occupied a lease lot of 160 acres of land, in the town of Andes in the county of Delaware, which he held under Charlotte E. Verplanck at a rent of $32 a year. The rent w r as paid up to the spring of 1843. Two years' rent being due in the spring of 1845, the agent of the lessor applied to Earle for payment, but it was not paid, and on the 4th of June, 1845, a distress warrant, in due form, for the collection of $64 was issued tnd and delivered to Osman N. Steele, to be executed by him as un- der sheriff of the county of Delaware. It was proved that a levy was made on sufficient personal property, which was duly appraised and advertised for sale; lhat Earle was urged to pay and refused; that on the 29th July, for which day the sale was advertised, the sheriff offered the 40 DECISIONS IN CRIMINAL CASES. The People v. Van Steenburgh. property for sale and could get no bidders, though from forty to fifty persons were present, and that the sale was postponed for want of bidders till the 7th of August. That on the day last named, Green Moore, the sheriff, andOsmanN. Steele, the under sheriff, accompanied by Mr. Wright, the attorney for the lessor, and Mr. Edgerton, who acted in their aid, went to the place of sale on the leased premises; that Earle, when again appealed to for payment, said, " You will have to go on and make it out of the property. I shall fight it out at the hardest." Peter P. Wright, one of the witnesses for the prosecution, described the further occurrences of the day as follows: Soon afterwards six persons, armed and disguised as Indians, were seen in the pasture lot on the southerly side of the road. The sheriff told the spectators to assist him in arresting them, but it was not done and no attempt was made to arrest them. A few minutes afterwards, as many more persons similarly armed and disguised were seen in the pasture lot, who entered the woods at the same place. Between ten and eleven o'clock, I saw a company of disguised persons coming from the north side of the road. They crossed the road and went across the pasture lot to the same place, and their chief commanded them to halt. They did so, and turned around and looked at me, and their chief cried " Tory " several times. They then faced about and returned and went to the nc r th side of the road and passed near me. Some of them had theii masks up. I was anxious to learn who they were and followed tt<;m up the hill. At the same time, about 60 t^sguised persons came out of the woods below the line, ann fo*o?ed in single file. Their chief was dressed in scarlet. 1 hey entered the woods at the same place as the others, which was tb<> general puace of ren- dezvous. It is said there is a spring at thr place of *<. adezvous. About noon they commenced coming out f-om th". place in single file, and formed in platoons, four deep, n^sa th'- i>ars, and then marched down the road and formed a line, as far ;r JSarle's house. As they passed through the bars, I trieu to c?vn them. I counted part and estimated the remainder. I thlnJ ,ber* DELAWARE, SEPTEMBER, 1845. 41 The People t>. Van Steenburgh, were about one hundred. They faced to the north, fronting Earless house. I then passed down along the front of the line towards Earle's house. These men were armed and disguised as Indians masked, so as not to be distinguished. I went down to about the centre of the line and met the commander- in-chief. He was telling the spectators to stand back that they wanted the ground. He told me to stand back twenty feet. I told him I should not stand back twenty feet, nor one inch for him, or any of his tribe. He had a broad sword in his hand, and he then placed it flat against my breast and told me to stand back. I then put my hand on the handle of a pistol in my breast pocket, and told him to withdraw his sword from my person instantly, or I would make a hole through him. He then dropped his sword and took it in the other hand, drew up his dress and drew a pistol from his pantaloons pocket, and presented it and said, " I have a pistol as well as you," and said, " do you draw a pistol upon me?" I said I had drawn none on him, but if he violated my person again, I should de- fend myself as long as I had power to do it that I did not come there to get into any quarrel. I told him that he was violating the law as well as the rest of his tribe, and they were liable to be punished in state prison, and they all knew it. One of the Indians in the line said, "damn the law; we mean to break it." The commander-in-chief had a scarlet dress black cap, something like a chapeau, and a red mask made of cloth that set very close to his face. I told him I knew him. He said " No you don't," I said, " Yes I do, and I shall remember you too," He said " You can't swear to me," and he turned and left me standing there. Pretty soon he came back and ran against me intentionally, as 1 supposed. I paid no attention to that. Then the Indians in the line commenced blackguard- ing me, and asked me if I came there to bid upon the property. [ told them, if the property was offered for sale, I should bid on it. They then said, that if I bid on the property, I should go home feet foremost in a wagon. One of them wanted the chief VOL. I. 6 42 DECISIONS IX CRIMINAL CASES. The People v. Van Steenburgh. to order him to throw me over the stone wall, and said it would be done very quick. Just before Sleele and Edgerton came up, there was a horn blowed by some one in the line of Indians. Wher Steele and Edgerton came to the lower end of the line, the chief com- manded the Indians to march up to the stone wall and they did so, and faced about and Steele and Edgerton rode by. We then had an interview, and the sheriff announced we would proceed with the sale, and he started and requested some one to go with him. John Burr and another person went with him into the pasture lot, to assist him to drive up the cattle levied on. The commander-in-chief then said, he wanted twelve volunteers to accompany the sheriff and prevent his sell- ing the property in the lot. They came out from the east end of the line and went through the bars, and the chief counted them off. Shortly after, he called for more volunteers, who also went The sheriff drove the cattle up near the bars, but he had some difficulty in doing so. The whole body of Indians then moved up the road and through the bars, and formed a hollow square around the bars. Steele and Edgerton took their position near the bars, and I was between them. We were facing south and Edgerton was on my right. I was on foot and Edgerton and Steele were on horseback. The sheriff was trying to drive the property into the road. A person named Brisbane came up, and said we had no right to sell in the road, because the advertisement said, " on the premises." Brisbane was in disguise. Steele and Edgerton then rode down the road to read the advertisement at the barn. Some of the Indians came out of the lot, across the road, over the fence, and went in a westerly direction. Steele and Edgerton re- turned to the bars and the Indians went back into the lot. We took our positions as before. Then I talked with Steele and Edgerton, about adjourning the sale. W r e thought it was best to offer one article. Steele told me to stand between him and Edgerton and they would protect me if I wished to bid on the property. We remained a few moments and I called the sheriff out and told him, unless the Indians would permit hii DELAWARE, SEPTEMBER, 1845. 43 The People v. Van Stcenburgh. to get the property into the road, he might adjourn the sale. He went back into the lot and said he thought he should be able to get them to consent to it. The sheriff took his position a little to our right fifteen or twenty feet distant. At this time, there was a platoon of Indians guarding the bars, to pre- vent people entering the lot. I then asked permission to paes into the lot. I wanted to see the sheriff and they forbade my passing in. I told the.:. I should go in and they said I should not. I stepped up again, and a man put up his gun perpendi- cularly. I put up my cane and forced a passage through into the lot. They huddled up around me and Steele and Edgerton rode in immediately. They came up side of me. The platoon of Indians at the bars fell back as they passed, and I advanced. They rode in, twenty or thirty feet. After they had got in about a rod, the command was given to shoot the horses. The horses were six or eight feet apart, and I was in the middle, a little in advance. " Shoot the horses" was spoken by several; can't be certain the chief started it; I think it was repeated as many as three times. Edgerton in a loud voice said, " I com- mand all persons present to assist in preserving the peace." Edgerton was a constable. I think his horse was about sta- tionary at that time. The Indians formed a circle or semi- circle about us. I saw an Indian on the right, six or eight feet from Edgerton's horse, pointing his gun at the right breast of the horse; the discharge took effect and I saw the blood flow out freely; three or four guns were then fired in quick suc- cession. Some of them said " shoot him" or " shoot 'em.'* It was repeated more than once. Edgerton's horse reared up and plunged and turned to the left. So did Steele's horse. While they were passing around that way, there was a volley of twelve or fifteen guns discharged among us. This was just after the words " shoot 'em," a few seconds after the others had been fired. I stepped back towards the bars while this second volley was fired, and I saw Steele falling towards the right, near the rail fence, fifteen or twenty feet above the bars. His horse did not fall, but turned towards the left. His horse passed down and stumbled and fell. Edgerton's horse stumbled 44 DECISIONS IX CRIMINAL CASES. The People v. Van Steenburgh. and Edgerton got off and the horse fell near Steele. Sheriff More, Edgerton and myself run up to Steele. More said, " For God's sake, you have done enough desist." I think the firing continued after Steele commenced falling. We ran up and took hold of him, and asked him how bad he was wounded, and he said his bowels were all shot to pieces that there were two bullets in him and he could not live but a few minutes. This was about half past two o'clock. The sheriff, Edgerton and myself carried him through the bars, and then Doct. Calhoun came to our assistance in the road, and we car- ried him down to the shade of the barn, where Steele requested us to lay him down a moment. Then Brisbane joined us, and we carried him into Earle's house and laid him on the bed. Doct. Calhoun and all of us examined his wounds, and found he was mortally wounded. One bullet went into the breast and out near the right shoulder. One entered on the back the mortal wound and came out on the right side, and one through the right arm. He died at fitfeen minutes past eight on that night. There was further evidence, tending to show that the Indians made threats against Steele before he entered the bars and that Steele made no reply. It was also proved that Steele was armed with a pistol, but that, if he fired it, it was not till after from three to five shots had been fired. He was then seen trying to raise his right arm with the help of his left hand, with the pistol in his right hand. It was also proved, that some of the Indians broke and run as soon as the firing com- menced or very soon after, and that the whole number of Indians present was about one hundred and fifty. It was proved that the prisoner was one of the disguised persons present upon that occasion; and that he was armed with a rifle, and that when the disguised persons were return- ing home on that day, after Steele was shot, one of the dis- guised persons whom the evidence tended strongly to prove to be the prisoner, said, speaking of Steele's be-ing shot, " that it was good enough for him and that he got what he ought to have." DELAWARE, SEPTEMBER, 1845. 45 The People v. Van Steenburgh. One of the witnesses testified that about fifteen minutes after the firing, he heard the prisoner inquiring for a small ram rod, to enable him to reload his rifle. But the witness who testified admitted he was one of the disguised men and there was evidence impeaching his general character. There was also evidence tending to show that the prisoner's gun was discharged by him on his way to the place of rendezvous. S. Gordon and S. Bowne, for the prisoner, cited 2 R. S. 546, 587; 6 Wend. 277; 4 Black. Com. 95, 104; 1 Cow. if HiWs notes, 64; People v. Ward, 3 Hill, 397; Roscoe Cr. Ev. 567. J. B. Steele and S. Sherwood, for the people, cited Russ. on Cr. 447, 451, 454; Starkie Ev. 3; Barbour Cr. L. 258; Stat- utes of 1845, Ch. 3 PARKER, Presiding Judge, among other things, charged, that the offence of being armed and disguised, while engaged in a riot or in resisting the execution of legal process, as described in the seventh section of the act entitled an act to prevent per- sons being disguised and armed, passed January, 28, 1845 (Sess. Laws of 1S45, page 7), was a felony, and brought the offender within the definition of murder in the third subdivision of the 5th Section, Title 1, Chap. 1, Part 4 of the Revised Stat- utes, if the killing of a human being was perpetrated without a design to effect death by a person engaged in the commission of such offence; to which portion of the charge .the prisoner's counsel excepted. The prisoner's counsel contended that the offence created by the act of 1845, was not a felony, because its commission was not necessarily to be punished by imprisonment in the state prison, but might be punished by fine and imprisonment in a county jail. But the court held that the offence was felony, because it was liable by law to be punished by imprisonment ii a state prison, and that it was none the less felony, because .1 WPS also liable to be punished by some milder punishment, 46 DECISIONS IN CRIMINAL CASES. The People v. Van Steenburgh. the statute definition of felony, in this state, being, "an offence. for which the offender, on conviction, shall be liable by law tc be punished by death or imprisonment in the state prison" (2 R. S. 702). And the court charged the jury, that if they were satisfied from the evidence, that the armed and disguised persons men- tioned, by the witnesses, had assembled for the purpose of pre- venting a sale of the property levied on under the landlord's warrant, either by force or by intimidation, and in the further- ance of that object some of them shot at the horses of Steele and Edgerton, though such shots were fired with the intention of killing the horses and not of killing Steele, yet if Steele was killed by such shots, the crime committed was murder, for which act each one of the armed and disguised persons so assembled was responsible. The jury found the prisoner guilty of murder, and he was sentenced by the court to be executed on Saturday the 29th day of November, I845.(a) (a) A statement of the conviction, sentence and testimony in this case having been transmitted by the presiding judge to the Governor, pursuant to the re- quirement of the Revised Statutes (2 R. S. 658, $ 13), the latter submitted the ease to the justices of the Supreme Court of the State, who concurred in the correctness of the decisions of the legal questions which arose on the trial. At the same Court of Oyer and Terminer, Edward O'Connor was also tried and convicted of the murder of Steele and sentenced to be executed at the same time with Van Steenburgh. Moses Earle, and Daniel W. Squires, Daniel Northrop and Zera Preston were convicted of manslaughter in the first degree, and sentenced to imprisonment in the state prison for life. Calvin Madison was convicted of manslaughter in the first degree, and sentenced to imprison ment in the state prison for ten years. John Phoenix, Isaac L. Burhans, Join Burch, William Reside and John Latham, were convicted of manslaughter in the first degree, and sentenced to imprisonment in the state prison for seven years. William Brisbane was convicted of manslaughter in the second degee, and sentenced to seven years' imprisonment. William Jocelyn was convicted of manslaughter in the fourth degree, and sentenced to two years' imprisonment. Charles T. McCumber was convicted of robbery in the second degree, and sentenced to seven years' imprisonment. At the same court, fines, ranging from $25 to $500, and amounting in the aggregate to S2150, were imposed upon the following named persons, convict- ed of conspiracy, or of havine, on some occasion, been unlawfully disguisea nd armed, in violation of the act of 1845. Harvey Hubbell, Richard Halcott NEW YORK, MARCH, 1846. 47 SUPREME COURT. At Chambers, New York, March, 1845. Before Edmonds, Circuit Judge. THE PEOPLE v GEORGE POTTER. The power conferred upon the executive by the constitution to grant pardon*, includes the power of granting a conditional pardon. Such condition may be banishment from the United States, and on a breach of the condition the pardon becomes void, and the criminal may be remanded on his original sentence. The power to remand him can be exercised by the court in which he was con- victed, or by any court of superior criminal jurisdiction. The prisoner presented his petition to the circuit judge, set- ting forth, that he was unjustly imprisoned in the bridewell of the city of New York, and praying for the allowance of a ha- beas corpus. The keeper of the bridewell in his return to the habeas cor- pus, set forth the following commitments as the authority by which he held the prisoner in his custody: New York General Sessions of the Peace: The People of the State of New York v. George Potter. January 8th, 1846. On indictment for an attempt to commit a grand larceny, goods of Edward Jones. On motion of Jonas B. Phillips, Esq., acting district attor- John M. Bardsley. George Lynde, Abel A. Fuller, John Lockwood, Nathan Travis, David T. Scudder, James Barnhart, William Bryant, Chauncey P. Wolcott, Miles Bromley, John O.Liddle, Andrew Liddle, Homer Bergen, Levi Jenkins. James A. Mills, Homer Sandford, Cantine Connelly, Robert Ruther- ford, Archibald McNair, John Oliver, Lewis Delamater, Levi Sanford, John Davis, Robert Scott. As to the following persons, who pleaded guilty, sentence was suspended. Augustus Kittle, James Clayton. Smith Sanford, Edwin Mason, Barber Stafford, Henry L. Russell, Zadok P. Northrop, John Wilson, Jr., William Ferdon, James Hayes, Alonzo Sanford. AI of the convictions mentioned in this note were for offences com.nitted in resisting the collection of rents. It is due to the character of the people of Delaware County to say that since such convictions, no instance of an illegal resistance to the execution of process has occurred in that county. DECISIONS IN CRIMINAL CASES. The People v. Potter. ney, ordered that the said George Potter be committed to the custody of the keeper of the city prison of the city of New York, until thence delivered by due course of law. Extract from the minutes. HENRY VANDERVOORT, Clerk. New-York Oyer and Terminer, January Sth, 1846: The People v. George Potter : It appearing to the court, that the said George Potter was convicted of grand larceny at the September General Sessions, 1844, and was sentenced on the thirteenth day of September, 1844, to be imprisoned in the state prison at hard labor, for the term of five years, and that the said George Potter had received a conditional pardon from the executive of this state, and that he had not complied with said conditions : On motion of Jonas B. Phillips, Esq., in behalf of the district attorney, ordered, that the said George Potter stand committed to the custody of the keeper of the city prison of the city of New-York, until thence delivered by due course of law. A true extract from the minutes. HENRY VANDERVOORT, Clerk. At a court of general sessions of the peace holden in and for the city and county of New- York, at the Halls of Justice of the said city, on Tuesday the tenth day of February, in the year of our Lord one thousand eight hundred and forty-six: Present, the Honorable Frederick A. Tallmadge, Recorder of the city of New-York; Joseph A. Diver, Bernard J. Messerole, Alder- uaen of the said city, Justices of the Sessions. The People v. George Potter. The prisoner is arraigned on a former conviction in this court, at the August term, one thousand eight hundred and forty-four, for grand larceny of the goods and chattels of Abraham Mallory, and for which he was sentenced to be imprisoned in the state prison at hard labor, for the term of five years. Whereupon the district attorney moved, that he be arraigned upon the said conviction, and that he be required to show cause why he should not be remanded NEW YORK, MARCH, 1846. 49 The People v. Potter. to and be imprisoned in the state prison, for the residue of the said term, to which the said prisoner objected, first, because the court had no jurisdiction, and, secondly, because a habeas corpus was now pending before his honor the circuit judge of this circuit in the same matter. Whereupon, it is ordered by this court, that the said prisoner be remanded to the custody of the keeper of the city prison of the city of New-York, upon the said conviction, until he be thence delivered by due course of law. A true extract from the minutes. HENRY VANDERVOORT, Clerk. To that return the prisoner pleaded that at the September term of the general sessions of New York, 1844, he was con- victed of grand larceny, and sentenced to five years' imprison- ment in the state prison, that he was immediately by virtue of that sentence committed to the state prison, and there remained until the 12th April, 1845, when the governor of the state did execute, grant and deliver to him his certain pardon or act of grace, whereby he pardoned, released and remised him from the said offence, and from all sentences, judgments and executions thereon, on condition that the prisoner should, on or before the last day of the said month of April, depart from and out of the United States, and never return to the same, and in the event of his not complying with the said condition, the pardon should cease, and be inoperative, and he should be arrested and im- prisoned according to his sentence. The plea further stated, that upon the execution and delivery of the pardon to him, he was immediately discharged from the state prison, and from imprisonment, and so remained until the time of the said several commitments; that on the 28th of April, he did depart from the state of New York, into the Ca nadas, and into others of the United States, viz. Missouri, Ohio and Louisiana, and remained out of the state of New York until the 21st of November, 1845, when he was forcibly brought from the state of Louisiana into this state, by one of the po- licemen of New York. VOT. I. 7 50 DECISIONS IX CRIMINAL CASES. The People v. Potter. To this plea the district attorney interposed a general de- murrer, and the prisoner joined in demurrer. T. W. Warner and D. Graham, moved for the discharge of the prisoner: 1. Because the prisoner had been pardoned by the executive; 2. Because the pardon was absolute, the condition being void for want of power in the government to grant a conditional pardon, and because exile from the United States was beyond his power to enforce; 3. Because there was no power in the courts to enforce the performance of the condition. J. McKeon (district attorney) and J. R. Whiting, contra. EDMONDS, J. The commitment, by the general sessions to answer to the second indictment is not complained of by the prisoner on these proceedings, and is to be regarded as legal and valid. He has, however, the right to have the other causes of his detention inquired into and determined (exparte Badgley, 7 Cow. 472> Those other causes involve the validity of the pardon, and in regard to that, three points are ma"de for the prisoner: 1. That the governor has no right to grant a conditional pardon; 2. That if he has, he has no power to impose exile, or ban- ishment, from the United States, as a condition; 3. That even if he has the authority denied to him in the foregoing propositions, yet there is no power or jurisdiction in any court or officer to enforce the condition, or a forfeiture which may flow from its violation. First. Has the governor authority to grant a conditional pardon? His authority in the premises is derived from the constitution, which, Art. 5, 5, contains these words: "The governor stall have power to grant reprieves and pardons after conviction, for all offences, except treason and cases of impeachment. NEW YORK, MARCH, 1846. 5J The People v. Potter. It is contended for the prisoner that this is not a grant to the executive of the pardoning power, which is inherent in the sovereign authority, with all its incidents, but is simply a naked power to bestow or refuse pardons; in the exercise of which, like that of the veto power, he is, as it were, a mere automaton, clothed only with authority to say aye or no to the application to him-. And while it is conceded that by the common law the right to attach conditions is necessarily incident to the pardoning power, it is insisted that the whole power is not, by the lan- guage of the constitution, vested in the executive, but only the power to grant or deny; and that the rules of the common law do not affect or bear upon this special and limited grant. This view of the case seems to depend mainly upon a verbal criticism upon a distinction between the " pardoning power" and the " power to grant pardons." There are two controlling reasons why the aid of the com- mon law is to be invoked in the decision of this question. First. Because the words in which this grant of power is conveyed are well known to the common law, and by use and adjudications have obtained a precise and definite meaning. And, second. Because the instrument which grants the power, eo instanti, makes the common law a part of the law of the land ( 1 R. S. 54, article 7, section 13). The word " grant" comprehends something more than the mere execution of the instrument; it includes a delivery of it; and as there can be no delivery without an acceptance, there is necessarily comprehended within the word, the idea that the minds of both parties to the instrument have met, that they, have agreed that one shall execute and deliver, and the other shall accept and receive (per Marshall, Ch. J., in the United States v. Wilson, 1 Peters, 156). The word " pardon" includes a remission of the offence, or of the penalties, forfeitures or sentences growing out of it, and may be of a part or the whole of these things. Thus one may be pardoned of the imprisonment, and still be left to suffer the other penalties attached to the offence. In 52 DECISIONS IN CRIMINAL CASES. The People . Potter. cases of perjury this would still subject the convict to the disa- bility of being a witness. A convict for life might be set at large and still suffer the penalty of the dissolution of his marriage contract or the vest- ing of his property in the hands of administrators or trustees. And so, under our statute, though the prisoner is pardoned both of the offence and of the penalties, he is not restored to the rights of citizenship unless by the terms of such pardon he shall be so restored (1 R. S. 127, 3; vide also State v. Twitty, 4 Hawks' JV. Car. R. 193). To " grant pardons" seems then to imply that the sovereign power of the state, or its representative, has executed and de- livered, and the prisoner has agreed to accept, and has accepted, a pardon or forgiveness of the offence which he has committed, or some part of it, and a remission of, and release from, the penalties attached to the offence, or "some of them. Such is the common law definition of the terms in question; and as by the constitution the common law was declared to be the law of this state, I can not see how that definition can be disregarded in any judicial proceeding, and as that definition was established long before the use of these words in the con- stitution, so I can not well see how it can be argued that the framers of that instrument did not use those words in the sense thus explicitly established. The whole current of common law authority for very many years is to the same effect. Blackstone, Hawkins, Coke, Chitty, elementary writers, as well as the judges in pronouncing the decisions of the courts, use the words in the same sense, and none other. The constitution of the United States, the present and the former constitutions of this state, and those of every state in the Union, excepting only two, New Hampshire and Massachusetts, use the same expression, " grant pardons," thus, almost uni- versally, signifying that the term has obtained a precise and definite meaning. Our own statutes, through all the revisions from 1781, to the present time a period of near sixty years have been equallv NEW YORK, MARCH, 1846. 53 The People v. Potter. guarded in the use of the same terms, and have been explicit in conferring upon the governor the power to attach conditions to his pardons (3 Greenleaf's L. of JV. F. 1 13; 1 Rev. L. of 1813, 126). The decisions of the courts in our state, in several of the states of the Union, in the courts of the United States and in the courts of the British empire, have all regarded these words as conveying the right to attach conditions to the grant of a pardon. In The People v. James (2 Caines, 57), the prisoner had been pardoned on condition that he would leave the United States in forty days, but neglecting to do so, the same proceedings were had against him that have been had in this case. In Pease's Case (3 John. Ca. 333), the court for the correction of errors, in deciding the main point in the case, expressly admit the power of the governor to annex conditions and restrictions to pardons, and say, " The punishment may be mitigated, or it may be changed from imprisonment to voluntary transportation." In Smith's Case (1 Bailey, 283), South Carolina, a pardon was granted on condition of banishment. The prisoner, as in this case, complied so far as to leave the state, but returned in violation of the condition. On his arrest, it was insisted that the governor had no right to attach conditions, and it was held that, even without the express authority given by the consti- tution, the governor would have a right to impose terms, and the court add, " all the common law writers agree to this in so many words." (See, also, Addington's Case, 2 Bailey, 516; Mary Fuller's Case, 1 McCord, 178; State v. Twitty, 4 Hawks' North Carolina Rep. 193). In the United States Supreme Court (7 Peters, 175), Ch. J. Marshall says, as this power has been exercised from time immemorial by the executive of that nation whose language is ours, and to whose judicial institutions ours bear a close re- semblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used. Mr. Wirt, when attorney general of the United States, gave it as his 54 DECISIONS IN CRIMINAL CASES. The People *. Potter. opinion that the power to pardon, as given by the constitution^ is the power of absolute and entire pardon. On the principle that the greater power contained the less, he was of opinion that the power of pardoning absolutely includes the power of pardoning conditionally (Opinions of Attorney General, 250). Butler, Attorney General, ib. 1034, recommends a law au- thorizing the president to commute and grant conditional par- dons, thus clearly implying that even under a limited consti- tution like that of the United States, the legislature could con- fer the power on the executive; and Gilpin, Attorney General, ib. 1382, in his opinion, recognizes the principle that the rules of the common law govern as to the operation of a pardon. This principle being thus applicable to the grants of power under a constitution like that of the United States, which is one of specific grants, and into which the common law has not been specially incorporated, how much more forcibly is it ap- plicable to a constitution like that of the state, which is general in its nature, which grants the whole legislative power of the sovereign, and which adopts the common law as a component part of itself. The English books are full of authorities upon the point that a pardon may be extended on any condition, precedent or sub- sequent, on the performance of which the validity of the pardon will depend (1 Chitty Cr. L. 773; 2 Hawk PI. C. c. 37, 45; 3 Tomlins, 13; Cole's Case (in 13 Eliz.), Moor, 466: Foxworthy's Case, Holt, 521 (in 1 Ann). Banishment was first known in England as abjuration, where the party accused fled to a sanctuary, confessed his crime, and took an oath to leave the kingdom and not return without per- mission (4 Bl. Com. 333; 3 P. Williams, 37). This was not as a punishment, but as a condition of pardon. After abjuration was abolished, and about the reign of Charles II, it became usual to grant pardons on condition of banishment, and that the original sentence should be revived on a violation of the stipu- lations of its remission (Kel. pre. 4; Williams, J. Felony, VI; 1 Ch. Cr. L. 789). And it was usual to bind the criminal as An apprentice, and both he and his master were liable to severe NEW YORK, MARCH, 1846. 5,3 The People v. Potter. penalties on his return. Afterwards the performance of the stipulation of banishment was enforced by requiring security from him that he would leave the country; and finally the prac- tice settled down to that adopted in this case, namely, that of granting pardons on condition, and enforcing the condition by inflicting the original sentence upon the party in case of vio- lation. It seems then that the practice of granting conditional par- dons is sustained by the principles of the common law, which we have adopted as the law of the land; by the practice of the country whose institution in this regard we have borrowed in totidem verbis; by the provisions of the constitution of the United States and of most of the states of the Union; by the decisions of the courts of the United States and of our own state, and of other states in the Union; by the enactments of our statute for over half a century, and by the practice of our executive since the formation of our government. Against this force of authority, we are cited only to a pos- sible distinction between the pardoning power and the power to grant pardons a distinction which, if not merely verbal, is scarcely enough, in the absence of authority, to combat the dictates of good sense, that the injured party has the power to prescribe the atonement upon which his forgiveness shall rest; and that the power of pardoning being a fit one to be intrusted to all governments, humanity and sound policy dictate that this benign prerogative be as little as possible fettered or embar- rassed (Story's Com. on the Constitution, 1492). This view of the case sanctioning the authority exercised by the executive in imposing a condition upon the pardon granted to Potter, renders unnecessary a minute examination of another view which has been suggested, and which I will merely mention. It is this: that the power to pardon is incident to the sovereign power of the state and vested in the legislative authority; that the legislative power of the sovereign people- of this state being by our constitution vested in the legislature, the power to pardon is in the legislature, notwithstanding the grant also to the executive: that the legislature have a right to 56 DECISIONS IN CRIMINAL CASES. The People v. Potter. delegate the power to the executive, to exercise it in accordance with and subordinate to their will, and that they have so dele- gated it by the statutes which they have passed; and that under the statute the executive has thus obtained authority to impose conditions. This view may be found to be consistent with the principles of the common law and with the spirit of our institutions, but I do not, under the circumstances, feel called upon to consider or decide upon it. I ought not to dismiss this part of the case without noticing an objection which was pressed upon me with much earnestness, to wit: that banishment being a punishment unknown to our law, the imposition of it as a condition of the pardon was in violation of that provision of our bill of rights which forbids the infliction of cruel or unusual punishments (1 R. S. 94, 17). There is no doubt that any immoral, impossible, or illegal condition would be void. This is a principle of the common law well established (Com. Dig. Tit. Condition, D; Pease's Case, 3 John. C. 333; Watson's Case, 9 Ad. Sf Ell. 731). And the general language of the statute, that the governor may grant pardons " upon such conditions, and with such re- strictions, and under such limitations as he may think proper," is to be taken subject to this principle. His conditions must not be immoral, impossible or illegal. No authority to impose such conditions has been or could be conferred upon him by the statute. Therefore, the argument of the prisoner's counsel, drawn from the general language of the statute, that it was void because it authorized the governor to impose unusual or cruel punishments, necessarily falls to the ground. These bar- barous practices are impliedly excluded from the enactment, unless it should actually express them (per Lord Denman, 1 JJ. fy E. 783). No principle is better established than this, that statutes must be so construed that all their parts, when in pari matcria, shall be allowed to operate; and the effect of that rule on these statutes is simply, that the governor may grant a pardon on a condition which does not subject the prisoner to an unusual or NEW YORK, MARCH, J84G. 57 The People v. Potter. cruel punishment. Banishment is neither. It is sanctioned by authority, and has been inflicted, in this form, from the founda- tion of our government (Smith's Case, 1 Bailey, supra; James's Case, 2 Caines, 57; Pease's Case, in the Court of Errors, 3 John. Ca. 333; 2 Bailey, 516; 1 McCord, 178). Second. The next objection which I am to consider, is that founded upon the nature of the condition imposed in this case, that, namely, of banishment from the United States. In support of this objection, it is insisted that the power of the governor is confined to the territorial limits of the state; that by this condition he is virtually extending his power be- yond those limits, and assuming to himself to dictate to other states whom they shall not have as residents among them. There would be more force in this objection if the question before me grew out of any attempt of the executive to exercise his authority out of the state; if, for instance, finding that the prisoner was in one of the other states in violation of the con- dition of his pardon, he had demanded him as a fugitive from justice, in respect to the offence to which that pardon applied, and had attempted, forcibly or otherwise, to withdraw him from another state, in order that he might be again subjected to the jurisdiclion of this state in respect to that particular offence. But such is not this case. The prisoner is lawfully within this state; and being within it, its courts are required to enforce the 'aws against him (Case of Smith, 1 Bailey, 283). Every appearance of impropriety is, however, dispelled the moment we come to consider the true nature of the pardon and of the condition attached to it. It is, in fact, a contract between the sovereign power, as represented quoad hoc, by the governor and the prisoner, that the former will release him from the of- fence and its consequences, and that the latter will withdraw himself from the United States, In this light these conditions to a pardon have ever been regarded by the courts, and their practice has been in conformity therewith. Almost, if not quite, every case cited on both sides, on the argument, takes this view of it. 1 Chitty's Cr. Law (773) states VOL. I. 8 58 DECISIONS IN CRIMINAL CASES. " The People v. Potter. Che doctrine which is sustained by all the authorities: " A par- Jon may be extended on any condition, precedent or subsequent, on the performance of which the validity of the pardon will depend, and if he does not perform the condition it will be alto- gether void, and he may be brought to the bar and remanded to suffer his original sentence." The practice in England is, when the jud'/e recommends to mercy, for the crown to signify its intention to pardon, and then the court let him to bail to plead his pardon, and take his recognizance to perform the condition (1 Ch. Cr. L. 774; 1 Bl. Rep. 479; per Lord Mansfield; 1 Leach, 74; 15 East, 463; Moor Bac. Jib. 466; Pardon, E). This is entering the contract on the part of the prisoner on the record. In Copeland's Case (Kcl. 45), it was held that there was no power to commute the prisoner's sentence without his consent, and the only means of enforcing the condition was, the infliction of the original sentence in case the criminal violated the con- ditions. But it is useless lo multiply authorities where so many abound. A reference to a few will be sufficient (2 Hawk. Ch. 37, 59, 64, 65; 4 Black. Com. 402; 5 Bac. Ab. 292, Pardon E; 13 Pet. Jib. 82; Kelygne, 24; Radcliff's Case, Foster 40; 1 Wilson, 214; Jenk. Cent. p. 12, ca. 62). In our country the same doctrine prevails. In Smith's case (1 Bailey, 283), the court say that the offender has a right to accept or reject the terms proposed. He may prefer to make the reparation demanded by the law, or the atonement substi- tuted, at his election. The condition is in effect a contract, and to entitle the party to the benefit he must perform the con- dition, for that is the only conclusive evidence of assent to the grant, and from its very nature the thing must be done of his own accord. In Wilson's case (7 Peters, 156), Chief Justice Taney, then attorney general, asserts that the whole current of authorities establishes this principle, that unless a party in some way claims the benefit of a nardon, thereby denoting his acceptance of the proffered grace, the court can not notice it; and per NEW YORK, MARCH, 1846. 59 The People v. Potter. Marshall, Chief Justice, in delivering the opinion of the Unit- ed States Supreme Court, "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may be rejected; and if rejected there is no power to force it on him." In a more recent case that of the Canada prisoners re- ported in 9 Ad. fy Ellis, 731, Lord Denman, in the Queen's Bench, treats the case as one where a man charged with crime is permitted to obtain a pardon, by which his life is spared, but he binds himself to undergo a less severe punishment. And Lord Jlbinger, in the same case (5 Mee. fy Welsby, 49), says, if the condition was lawful, but the prisoner did not assent to it, nor submit to be transported, he can not have the benefit of the pardon; and that if the condition on which alone, the par- don was granted be void, the pardon must also be void. He also asserts that if the prisoner, having assented to it, his assent be revocable, we must consider him to have retracted it by his application to be set at liberty, and he is unable to avail himself of the pardon; he can not plead a pardon which he has renounced, &c. As we are then to regard the pardon and its conditions as a mutual contract between the criminal and the sovereign au- thority of the state, the remaining question is, what is the effect of a violation of the stipulations entered into on the part of the prisoner: does it render the pardon or only the condition void ? It is conceded on all hands that if it is a condition precedent, its nonperformance renders the grant void. It has already been seen that where the condition is immoral, impossible, or illegal, the condition will be void, and the grant good, and it is contended in this case that the nonperformance of a condi- tion subsequent does not vitiate the grant. Without multiplying authorities upon this point, I will con- tent myself with referring again to the case of the Canada prisoners, merely premising that my researches have fully sustained the soundness of the positions there assumed (9 J3d. if Ell. 731, 5JV/. W. 49). The prisoners were convicted in the colonial courts, and 60 DECISIONS IN CRIMINAL CASES. The People v. Potter. sentenced to be executed. They were pardoned on condition of being transported to Botany Bay. In the execution of this commutation of punishment, they were sent from tbe upper to the lower province of Canada, and thence to England, whence they were to be transported to their destination. On their ai rival in England they sued out a habeas corpus in the queen's bench, and afterwards in the court of exchequer, and their case was twice argued by some of the most eminent counsel in England. The case is not authority with us, but is referred to merely because it was elaborately argued, and the cases are there cited which establish as parts of the common law these positions: That a man can assent to his own transportation when authorized by a statute: That if the power to transport exists, it follows that there is a power to do all that is necessary to give effect to the condi- tion: That if the Lieut. Governor had no authority to impose the condition, the prisoner is in the situation he was in before: That the pardon can not stand upon any supposition which annuls the power to impose the condition: And that if the condition upon which alone the pardon was granted, was void, the pardon must also be void: I repeat, all the authorities, ancient and modern, in England and in this country, sustain these positions, and I know of no principle which would authorise me to disregard them (Maxi- milian Miller's case, Leach Cr. L. 74; 2 Bl. Rep. 797 ; Ma- dan's case, Leach, 223). In carrying out this principle, it is held that a party is not restored to competency as a witness until he has performed the condition (1 Ch. Cr. L. 775; Leach, 454, 498; Hob. 67, 82; 4 Har. St. Tr. 582; Holt, 688; Sir Thomas Ray, 379; 1 Ld. Ray, 39; 2 Hale P. C., 278; Com. Dig. Testmoyne, J], 5; Bac. M. Par. H). And that any fraud in obtaining the pardon rendered it void, such as the suggestio falsi or suppressio veri (3 Inst. 238- Yel 43, 47 j Cro. Jac. 18,34, 548; 2 Roll, Jlbr. 188; Dyer, 352, NEW YORK, MARCH, 1846. The People v. Potter. pi. 26; 1 Sid. 41; 3 Tomlins, 13); and within this category is included, in some of the cases, the instance of a prisoner asking for a pardon on conditions suggested by himself, and which he afterwards disregards. In this connection it will be necessary to note two positions assumed by the prisoner's counsel. 1. That the banishment imposed on Potter was a condition subsequent, and that therefore its violation did not vitiate the grant. Without entering into the wide field thus opened to us, of the effect of conditions of this character, it will be sufficient to say, that I fully accord with the constitutional court of South-Carolina, in 1 McCord, 178, in holding that his leaving the United States was a condition precedent to the operation of the pardon, and as the violation of a condition precedent always avoids the grant, the nonperformance of this condition renders the pardon merely nominal. 2. That as the person arrested upon a ca. sa. } in a civil suit, can never again be arrested by the prosecuting creditor, when voluntarily released by him, whatever may have been the con- ditions of his discharge, so by parity of reasoning, one dis- charged from custody, when in execution on a criminal proceeding can not be recaptured. The parallel between the two cases is more apparent than real. In the civil proceeding, the caption is in satisfaction of the claim such is the form of the writ the sheriff is commanded to take the body in satisfaction, &c. It is not so in criminal proceedings. Will any one say that the caption of a murderer is a satisfaction of his condemnation to death, or that the mere arrest of a crimi- nal is a satisfaction of the judgment which condemns him to imprisonment for life ? In civil proceedings the arrest is the principal and the detention is an incident, while in criminal cases the caption is the merest incident to the principal of jontinuing imprisonment. 3. Having thus been led by the force of abundant authority, to the conclusion that the executive has power to attach condi- tions to his act of grace, and that the violation of those condi 62 DECISIONS IN CRIMINAL CASES. The People t> Potter. tions renders the deed of pardon void, the remaining question is, whether the courts have any power to take cognizance of such violation. This point seems to be equally well settled bv a long train of adjudications. On the day that the prisoner was brought to this city from New-Orleans, I was waited upon by the chief of police, who communicated to me the facts and inquired whether it was not his duty at once to deliver the prisoner to the keeper of the state prison. While I was connected with the state prison, I had had occasion to examine this question. A female had been par- doned on condition of leaving the state within twenty days, and she was found in this city after the expiration of that time. I found among the documents at the prison the follow- ing opinion of the present chief justice, then attorney general: ALBANY, JUNE 19, 1829. Gentlemen : Your favor of the 16th was not received until this day. You ask my opinion of the course proper to be pur- sued in the case of a person found within this state after having been discharged from the state prison on a pardon conditioned that he shall leave the state. The governor is authorized by statute, as well as by common law, to grant a conditional pardon, and it is well settled that if a person be pardoned upon a condition, either precedent or subsequent, which he neglects to perform, the pardon is void, and he may be remanded to suffer his original sentence. The statute has not prescribed any mode of proceeding in such cases. At the common law the offender may be arrested and committed to the common prison. An order is then made by the court in which he was convicted (or some superior court of criminal jurisdiction), that he show cause why execu- tion should not be awarded against him on his former convic- tion. He is then put at the bar, the record of conviction produced, and it must appear that he is the same person. If he plead that he is not the same person, a venire to try that NEW YORK, MARCH. 1846. (53 The People v. Potter. fact is awarded, returnable instanter, and if found against him, or if he confess that he is the person, the court order execution of the original sentence. There are other questions (according to the nature of th? condition) for the consideration of the court, as whether the prisoner has had proper time to comply with the condition whether he has been prevented from doing so by sickness, mental alienation, or the like, or in case of banishment, whe- ther he had not been brought back forcibly and against his will. The practice you mention as having obtained in such cases, of recommitting to the state prison, without any warrant or adjudication, is, in my opinion, neither warranted by law or a just regard to personal liberty. I am with great respect, Your obedient humble servant, GREENE C. BRONSON, Att'y Gen'l. George Tibbetts, Stephen Allen and Samuel M. Hopkins, Esqrs., Commissioners, &c." Acting upon the recollection of this opinion, I advised against the direct transmission of the prisoner to the state prison, and suggested the propriety of his being brought before the oyer and terminer, then in session, to the end that he might have an opportunity of pleading his pardon, duress, or aught else that might entitle him to his liberty, of which I deemed he ought not to be deprived without the opportunity of defence. He was accordingly brought before the oyer and terminer; a petition was filed, asking that he might be remanded in execu- tion of his original sentence, and an order was entered com- mitting him to custody until that question could be determined. Subsequently the court of sessions took cognizance of the case, and made the order in question requiring him to show cause in that court why he should not be remanded. By what authority that court assumed cognizance of a case of which the court of superior jurisdiction had already obtained cognizance, I am yel 64 DECISIONS IN CRIMINAL CASES. The People v. Potter. to learn. That point was not argued before me by the counsel for the prosecution. They contented themselves with a gene- ral admission that the court of oyer and terminer had not jurisdiction of the matter. I do not so understand the law. The opinion of Attorney General Bronson is explicit that " an order is then made by the court in which he was convicted, or some superior court of criminal jurisdiction, that he show cause why execution should not be awarded against him on his former conviction;" and so are the authorities. In James 1 case (2 Caines, 57), the prisoner had been convicted of forgery, not in ihe supreme court, but in some oyer and terminer or general sessions, yet he was brought before the supreme court, as one of superior criminal jurisdiction, to show cause why he should not be remanded under his former sentence. In Sir Walter Raleigh's case (Cro. Jac. 495), he was attainted before commissioners, yet brought before the king's bench fifteen years afterwards for sentence. In Radcliffe's case (Foster, 40), he was convicted in the oyer and terminer, yet thirty years afterwards brought up in the king's bench and sentenced to execution. In Rex v. Rogers (3 Burr, 1810), three felons convicted in the oyer and terminer, were taken before the king's bench for sentence; and in Miller's case (2 W. BL), the prisoner convicted at the Old Bailey, and pardoned, was brought up before the king's bench, and remanded on his original sentence. These cases, and numerous others, where the criminal had made his escape before sentence, and was afterwards brought up to receive sentence, all confirm .the opinion given by the late attorney general, that the court in which he was convicted, or any court of superior jurisdiction, might enforce the execu- tion of the original sentence. The supreme court or the court of oyer and terminer, both being courts of superior jurisdiction, might entertain the case, and having possession of it, it was not competent for the ses- sions, a court of inferior jurisdiction, to interfere in the matter. The court of sessions is a court of inferior jurisdiction, limited in its powers mainly to those conferred by the statute; NEW YORK, MARCH, 1846. (35 The People v. Potter. but the oyer and terminer is a court known to the common law, and un-ler the common law is possessed of powers and charged with duties beyond those defined in the statute. Of those duties, one of the most important to public liberty is that of delivering the jail of seeing that every person in confine- ment has an opportunity of having the cause of his detention inquired into. It is empowered to try and deliver every p iso- ner who shall be in the jail when the judges arrive at the circuit town, whenever and before whomsoever indicted, and for whatever crime committed (4 Bl. .Com. 270). So that, one way or the other, the jails are in general cleared, and all offenders tried, punished or delivered, twice every year: a con- stitution of singular use and excellence. Ibid. To enable the court to discharge this duty, it has been clothed with the power of bringing up to itself every thing pending in the sessions; and so that no prisoner shall be removed out of its jurisdiction, there is an express prohibition against the allowance of a habeas corpus in a criminal case during its sittings, returnable elsewhere than in that court, unless issued by itself (1 R. S. 758, 27). And as it must frequently happen, as it happened in times past, that the court at its coming, or during its session, shall find in custody per- sons upon whom judgment has been pronounced, but sentence not yet executed, so it must in the discharge of its high duty of delivering the jail, exercise the power which the court has in such cases exercised for very many years, at least since the days of Queen Elizabeth. But the question raised by the prisoner's counsel is not, which court has power to remand him on his original convic- tion: it assumes broader, bolder ground, and denies that any court has that power. I was not referred to any case that sustains that denial, but I have found many fhat maintain the converse of the proposition. James' case in 2 Caines, Smiths' case in 1 Bailey, Fuller's case in 1 McCord, Wilson's case in 7 Peters, are all cases in this country, where the power is recognised and enforced, and the common law authorities are abundant and explicit on the point (Watson's case, 9 Jid. Sf VOL. I. 9 66 DECISIONS IX CRIMINAL CASES. The People v. Potter. Ell. 731; 5 Mee. if W. 49; Miller's case, Leach, 74; Madan's cast, Leach, 223; Rex v. Miller, 2 Bl. Rep. 797). In Miller's case, in 1771 (Leach, 74), the prisoner was in- dicted for being at large contrary to the conditions of his pardon; but in Madan's case, in 1780 (Leach, 223), the prisoner was ordered to show cause, as suggested in the attorney gene- ral's opinion, and a jury summoned instanter to try the ques- tion of identity, and on their finding he was remanded on his original sentence. And so in Radcliffe's case (Foster, 40), where the prisoner was ordered for execution when thirty years had elapsed since his conviction. In those cases it is distinctly ruled, that the prisoner having broken the condition, he remained in the same state in which he was at the time the pardon was granted, viz., under sentence, and should be remanded to his original sentence. In some of the cases the prisoners were executed in the exercise of this authority And in one case, it is said, the circumstan- ces confer the authority, and no warrant could enlarge it. Why should it not be so ? Are our courts so imperfectly organized that a felon, under sentence of death or imprison- ment, can seek for and obtain a remission of his offence on conditions proffered by himself, and then violating the condi- tions, be permitted to set the authority of the state at defiance, and say there is no power to punish the fraud he may have perpetrated, or to enforce the contract he may have made 1 The authority of the law is not so imperfect but in criminal, as well as in civil proceedings, it may be invoked to enforce the dictates of common sense and the obligations of good faith. Under the view which I have thus taken of the case, the prisoner must be remanded to custody; and the district attor- ney will draw up an order accordingly. NEW YORK, OCTOBER, 1846. 57 SUPREME COURT. At Chambers. October, 1846. Before Ed- monds, Circuit Judge. In the matter of GEORGE KIRK, a fugitive slave. A fugitive slave can be retaken and returned to service, only on the demand of his owner, or his agent or attorney. The power of legislating on the subject of fugitives from service is exclusive in the government of the TJ. S., and it is not competent for state authorities to add to. or interfere with the subject. The statute of the state of New York (I Rev. St&t. 659, $ 15), which allows the master or commander of a vessel, in case a slave shall have concealed himself on board his vessel and thus escaped to this state, to recapture such fugitive, and take him before the mayor or recorder, for tho purpose of ob- taining a warrant for his removal from the state, is repugnant to the constitu- tion of the U. S., and therefore void. On the 22d October, 1845, on a petition presented by Lewis Napoleon, setting forth that a colored boy, whose name was unknown, was closely confined on board the brig Mobile, lying at the foot of Maiden Lane, and bound in chains, the circuit judge allowed a writ of habeas corpus, returnable forthwith in the oyer and terminer then sitting; which was duly served, and the boy brought before the court, when the following return was made to the writ: I, Theodore Buckley, master of the brig Mobile, do return to the annexed writ of habeas corpus, that a colored man calling himself George, the person now present, at the time of the ser- vice of said writ was under my restraint, and that I claim to hold him under rny restraint, as a fugitive from service in the state of Georgia, under and by virtue of the laws of which state he is held to labor and service as the slave of Charles Chapman, of Bryan county, in said state of Georgia. And I do further return, that said George covertly and pri- vately, against my knowledge and consent, with a view to effect his escape from the service to which he was lawfully held, under and by virtue of the laws of the state of Georgia, secreted and concealed himself on board the brig Mobile, of which I am 68 DECISIONS IN CRIMINAL CASES. lu the matter of George Kirk. master, while lying at the port of Savannah, in the said state of Georgia; that said vessel sailed from said port on the thir- teenth of October instant for the port of New York, without any Icnowledge on my part of the concealment on board said vessel of said George; that while on the high seas on her said passage, in latitude 34 deg. 10 m. N., longitude 75 deg. W., the said vessel being at the time without the jurisdiction of the state of Georgia, to wit, on the fifteenth day of October, one thousand eight hund- red and forty-six, the said George was discovered concealed in the fore steerage of said vessel, covered with a sail; and, on being questioned, admitted that he was the slave of the afore- named Charles Chapman, and that he had secreted himself on board of said vessel with a view to effect his escape from the service to which he was lawfully held, under and by virtue of the laws of said state of Georgia, as the slave of the said Charles Chapman. I do further return, that the state of Georgia is an independ- ent and sovereign state, having full power and authority to govern and regulate all matters of internal social polity of said state, not by the terms or spirit of the federal compact surren- dered to the government of the United States; that, for more than one hundred and fifty years past, the said state of Georgia, as a colony of Great Britain, and in connection with her sister colonies, by her declaration of independence as a sovereign state, has continually and without interruption held and pos- sessed a certain internal domestic institution called slavery; that the existence of such institution has been from time to time, by competent authority, recognized as a right reserved and secured to said state, and within the spirit, meaning and guaranties of the said federal compact; that the said institution was authorized and provided for by the laws of Great Britain, whereof the first settlers and the colonists of said Georgia were and always continued to be loyal subjects, until the year one thousand seven hundred and seventy-six, when the said colo- nists, by an overt act, declared themselves to be, in common with the inhabitants of divers other colonies and provinces, free and independent of the said government of Great Britain, NEW YORK, OCTOBER, 1816, gg In the matter of George Kirk. that the said colonists did not, in consequence of said declaration of independence, in fact or in design, remit or relinquish their right to regulate and govern their own internal affairs and socia 1 . polity; but, on the contrary, did thereby design and intend more fully and freely to assert and maintain said rights. That in and by the said institution so held, possessed and enjoyed by the said state by long usage and of right, and under the paramount law of the land that is to say, under the con- stitution and laws of the United States certain persons, of whom the said George is one, have been and are held to labor and service within the said state of Georgia, and are held and owned as property, and protected and guarded by the laws of said state, and the happiness and well-being of said persons are secured by said laws. That, nevertheless, for many years last past, divers malicious and evil disposed persons, residents of other states, regardless of the laws of the land, and treating with contempt the consti- tutional and rightful exponents of said laws, have assailed said institution, and have sought by fraud, violence, and other de- vices known to the wicked, wrongfully and seditiously to cause insurrections among those persons, and thereby to cause the citizens of said state of Georgia to be exposed to robbery, assassination and general anarchy; and although these evil designs and attempts have hitherto been hindered and checked by the firmness and loyalty of the national government of the United States, yet the said evil disposed persons have organized, and in many instances have executed, a system of robbery; and, in disregard of the word of God denouncing such doings, have feloniously abducted and carried away, and encouraged the escape of divers such persons from the possession of their law- ful owners. That the said state of Georgia, in discharge of its political duty as a government of and for the people of said state, has, under the constitution of the United States, from time to time passed and enacted various laws to the end that the people of said state should be protected against the wicked acts and designs of such evil disposed persons, and that the property of the good people of said state should be protected 70 DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. and preserved to the said citizens under the law of the land; and in and by which said laws it is, among other things, enacted as follows: 24. " It shall and may be lawful for every person to take, apprehend and secure any runaway or fugitive slave; and they are hereby directed and required, within forty-eight hours after such taking, apprehending and securing (otherwise such person to be construed and taken as a harborer of such runaway or fugitive *bive), to send such slave, if convenient, to the master or other person having the care and government of such slave, if the person taking up or securing such slave knows, or can without difficulty be informed, to whom such slave belongs." 34. " If any person shall conceal, harbor, hide, or cause to be concealed, harbored or hidden, any slave or slaves to the injury of the owner or owners thereof, such persons so offending shall, on conviction, be sentenced to be imprisoned in the peni- tentiary, at hard labor, for any period of time not exceeding two years. Provided, nevertheless, that on the trial for this offence, the person charged with it shall be acquitted if he or she had an apparent well founded claim to the slave or slaves so har- bored and concealed,- and on every conviction for concealing or harboring a slave or slaves, the owner or owners of such slave or slaves may recover damages by civil suit for the loss of the labor and services of such slave or slaves, notwithstanding the raid conviction." 35. " If any person shall remove and carry or cause to be removed and carried away out of this state any slave or slaves, or out of the county where such slave or slaves may be, without the consent of the owner or owners of said slave or slaves, any person so offending shall, on conviction, be sentenced to un- dergo an imprisonment in the penitentiary, at hard labor, for any period of time not exceeding seven years." I do further return, that Charles Chapman, of Bryan county, state of Georgia, is interested in the detention of said George. THEODORE BUCKLEY. Sworn in open court, this 23a uay of October, 1846. NEW YORK, OCTOBER, 1846. In the matter of George Kirk. HENRY VANDERVOORT, Clerk of Oyer and Terminer. J. Bowditch Blunt, of Counsel. To this return, Mr. John Jay, for the prisoner, interposed a general demurrer, and Mr. Blunt joined. John Jay and J. White, for the demurrer, made the following points: I. The common law of all nonslaveholding states is, that foreign slaves are no longer such after their removal into a non- slaveholding state (Somerset's Case, 20 How. St. Tr. 79; Story's Con. Laws, p. 92, and Cases; Forbes v. Cochran, 2 B. and Cr. 448). II. The question, therefore, first presented is, how far is the operation of this common law abridged by the constitution and laws of the United States? The constitution provides, " no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be dis- charged from such service or labor, but shall be delivered up ON THE CLAIM OF THE PARTY to whom such service or labor may be due (jirt. 4, sec. 2, sub. 3). The law of congress authorizes the owner, his agent or attorney, to seize the fugitive, take him before a judge or magis- trate, and upon proof, oral or by affidavit, of the service due, it shall be the duty of the judge, &c., to grant a warrant to the party or agent to remove ( Story's Laws U. S. vol. 1, p. 285,. 12 Feb. 93). III. The judge must be satisfied from the " proof" of thret things: 1st. That by the laws of Georgia the negro is held to service or labor; 2d. That the person to whom the service or labor is due, desires to reclaim the fugitive; 3d. That the negro is a fugitive. IV. Neither of these three things are shown, because, 1st The allegation is (in the return), that by the laws of Georgia the negro is held to labor as a slave. Foreign Jaws can not be 72 DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. proven in this way; 2d. There is no allegation that the negro is a slave no terms of servitude set forth; 3d. The claim made is in derogation of the natural right of the negro, and must be clearly proven; 4th. It does not appear that the negro left without the consent of the owner; 5th. He is not claimed by Chapman, or by his agent or attorney. V. Concede, therefore, that the negro was the property of Chapman; the defendant has no right, in fact, to the custody, because, 1st. He shows no authority to act for Chapman; 2nd. He claims no interest in the negro. The right to the service is a personal right, given by positive municipal law; and the court and a stranger can not exercise or claim it, because excluded both by the constitution and the law of 1793. VI. Neither has the defendant the right to the custody by the federal law or court, by the law of this state or of Georgia. 1st. He can not claim under the first, because he is neither owner, agent or attorney; 2nd. Nor under the second, because our law does not recognize the institution of slavery, except under the compulsion of federal legislation and the federal con- stitution. Beyond their actual and positive requirements, it knows no slave and no slavery: 3d. The third gives no right here, because the laws of Georgia were designed to operate upon the citizens of Georgia within the jurisdiction of Georgia. Beyond the limits of the state they have no binding obligation; 4th. Our courts administer foreign laws ex comitate but such law has no force here ex proprio vigore, nor will it be adminis- tered if violative of justice, natural right, morality, or settled policy; as the law of Georgia is violative of each and all, it will not be administered. VII. The negro when discovered was without the jurisdiction of Georgia, and every othet state of the Union. The respondent could not, therefore, have arrested him by virtue of the law of Georgia. He was beyond its operation. Nor by any law of the federal government, for there is none. The defendant was guilty, therefore, of a trespass, and his claim to the custody of the negro is founded in tort. NEW YORK, OCTOBER, 1846. 73 In the matter of George Kirk. VIII. If the defendant is the agent of Chapman, he must be the general agent, as no special agency for the purpose of this reclamation is shown. If this be so, then, as he voluntarily brought the negro to this port, it was the act of the principal, and the negro was ipso facto free (Commonwealth v. Jlver, 18 Pick. 143). But no agency is shown, and none will be presumed, as the law of this state has no intendments against human liberty. Mr. Blunt, in reply, insisted, 1. That the respondent is, under the laws of Georgia, the agent of the master of the slave; and under the constitution of the United States and the laws of congress, has a right to retake him and return him to Georgia. 2. That under the state statute (1 Rev. Stat. 659, 15), the respondent has a right to the custody of the boy, in order to take him before the mayor or recorder, to the end that he may obtain a certificate to warrant his returning him to the state of Georgia. On the 27th October, Judge Edmonds delivered the opinion of a majority of the court. By the United States constitution, art. 4, 2, a fugitive from service can be claimed only by the party to whom the service is due. By the act of 1793 (1 Story Laws of U. S. 285), in case of the escape of a person held to labor, the person to whom such service may be due, his agent or attorney is empowered to seize or arrest such fugitive and take him before a proper officer, to the end that a warrant may be obtained for removing him to the state from which he had fled. As I read and understand this statute, it clearly contemplates that the right to reclaim a fugitive slave shall not be exercised except by due process of law, and never vi et armis. Such, at least, was the contemporaneous interpretation by congress of this provision in the constitution, and would forbid to the owner and if to him, then surely to his agent or attorney VOL. I. 10 74 DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. the right by strong hand, by fastened hatches, blows and hand- cuffs, to enforce a reclamation. And such a construction seemed to me most consonant with the principle of our institu- tions, which forbids that any one shall be deprived of life, lib- erty or property, except by due course of law. The Supreme Court of the United States, however, seems, in the case of Prigg v. Com. of Penn. (16 Peters, 539), to have intimated a different opinion, though as that point was not necessarily before them, and as the question submitted to them by consent was the constitutionality of a law of Pennsylvania, and the power of its legislature to pass any law upon the sub- ject, it may well be doubted whether their remarks were not obiter dicta. But if they are otherwise if pertinent and de- cisive, they are still carefully guarded with the qualification, that the party may " claim and retake his wife, child or servant, wherever he happens to find them, so it be not in a riotous manner or attended with a breach of the peace," " and the owner may seize and recapture his slave whenever he can do .-t without any breach of the peace or any illegal violence." The general language of the return in this case, and the ;ight assumed under it, might justify the resort to illegal vio- lence in seizing and retaking the slave. The right to retake him or to hold him in durance, is in the return founded on the asserted fact that he is a fugitive from service in the state of Georgia, under and by virtue of the laws of which state he is held to labor and service as the slave of Charles Chapman, of Bryan county " in said state," and the fact that he had concealed himself on board the vessel for the purpose of escaping from such servitude. If this fact alone, without qualification without any averment that the restraint was without illegal violence, would justify this restraint, then they would of necessity justify restraint in a riotous manner or by a breach of the peace. That could not be defended in the owner, and of course not in his agent or attorney. If it were otherwise, the master of the vessel, in this case, would be justified in holding the slave, at the point of the bay- onet, with closed hatches and with chains. NEW YORK, OCTOBER, 1846. 75 In the matter of George Kirk. But it is unnecessary to dwell upon this consideration, for the master of the vessel can not justly be regarded as the agent or attorney of the owner. It is not pretended that he has any express authority from the owner. The facts of the return pre- clude the idea. It is contended that the authority is implied from the laws of Georgia. To this claim there are several very conclusive answers. 1. The laws of Georgia do not operate beyond her territory. From the first moment that the respondent discovered the boy on board his vessel and began the exercise of his control over him, until the present time, he has been without the jurisdiction of Georgia, beyond her territory, and beyond the operation of her laws. And to allow this claim would be in effect to call upon the magistrates of this state, within our territory, to ex- ecute the laws of Georgia, not to enforce a right which had become perfect within the territory, but one that had no beginning even till her boundaries had been passed. I am not aware that the obligation of one state to give full faith and credit to the public acts, records, and judicial proceedings of every other state, has ever been carried to that extent. How can it be without subjecting the territory of every state to the juris- diction of at least twenty-seven independent sovereignties? 2. The laws of Georgia do not of themselves contemplate any such agency. It is true that by those laws any person may apprehend a fugitive slave and return him to his master. But this confers no special authority upon the respondent to the ex- clusion of every body else. " Every person " may do it, and how can it be said that this makes him more than any other person the owner's agent? Every person may just as well be such agent as the respondent. But that statute in its very terms is intended to operate within the territory of Georgia, and not beyond it. Or why the provision that within forty-eight hours after the apprehension, the slave shall be sent back to his master? If the manucaptor in Maine should detain him forty-eight hours, forty-eight months or forty-eight years, could the jurisdiction of Georgia reach him with its penal inflictions? Why the provision that he. who 76 DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. harbors the slave shall be confined in the penitentiary? Could a citizen of New York be condemned to the penitentiary of Georgia for harboring the slave in New York? It is evident that the statute was calculated only to operate within the territory of Georgia, and the sovereign authority of that state would doubtless be not a little surprised to learn that so wide a range of authority was claimed for its enactments. Numerous difficulties would spring from the establishment of the principle contended for. Though in this case there is no reason to apprehend that aught would be done that con- science and the law would not sanction, yet it is worth while to consider the effect of the decision in case it should be drawn into a precedent. How long may the master of a vessel, under such circumstan- ces, detain the slave within our borders ? Days, months, or years ? What security is to be afforded that the slave will be returned to the person entitled to his service, and not be sold elsewhere in bondage ? What is there to prevent our own free citizens from being carried away into slavery ? Our protec- tion would be very imperfect, if the law should be so estab- lished. As then the respondent can not with propriety be regarded as the agent of the owner, and as such owner does not present a claim to the services of this boy, either by himself or by his agent or attorney, the prisoner can not be held, under the constitution or laws of the United States, as a fugitive from service, and must be discharged, unless he can be held under the laws of our own state. Our Rev. Stat. (1 R. S. 659, 15), contain a provision that whenever a person of color, owing service in another state, shall secrete himself on board a vessel and be brought into this state in such vessel, the captain rriay seize him and take him before the mayor, &c., who may inquire into the circum- stances and give a certificate, which shall be a sufficient warrant to the captain to carry or send such person of color to the port or place from which he was brought. And on the argument, it was suggested that, non constat, the respondent NEW YORK, OCTOBER, 1846. 77 In the matter of George Kirk. held him in custody for the purpose of taking him before an officer under such statute. It kas been well questioned on the argument, whether our legislature had any authority to enact such a statute. In Prigg's case (16 Pet. 617), Story, J., says, the legislation of congress, if constitutional, must supersede all state legisla- tion upon the same subject, and by necessary implication prohibit it. For if congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it can not be that the states have a right to interfere. In Houston v. Moore (5 Wheat. 1), it is expressly held, that where congress have exercised a power over a subject given them by the constitution, it is not competent for state legisla- tion to add to the provisions of congress. In Prigg's case (16 Pet.}, the court held that the power of legislation on the subject is exclusive in the national govern- ment, and cite with approbation the language of Chief Justice Marshall in Sturgiss v. Crowninshield (4 Wheat.}. " Wher- ever the terms in which a power is granted to congress, or the nature of the power require that it should be exclusively exer- cised by congress, the subject is as completely taken from the state legislatures as if they had been forbidden to act." And after discussing the evils that might arise from state interference, conclude, surely such a state of things never could have been intended under such a solemn guarantee of right and duty. The nature and objects of the provisions imperiously require, that to make it effectual it should be exclusive of state authority. But still the police power is left to the states, so that the rights of the owners be in no just sense interfered with. And whether the provisions of our revised statutes are con- stitutional or not, depends upon this question whether it was intended, and would necessarily operate, merely to advance and enforce the rights of the owner, or to secure the state from the depredation and evil example of the fugitive ? If the former, the statute can not be sustained. Yet in this case it is 78 DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. invoked solely for the benefit of the owner, and the statute provides not that the fugitive shall be removed from our terri- tory which would be all that would be necessary if our own welfare alone was consulted but that he shall be delivered up to the master of the vessel, lo the end that he may be carried back to the port from which he was brought. The constitutionality of this provision of our revised statutes may, therefore, well be questioned. But it is not necessary to decide that point. It is enough that it is no where in the return alleged that the respondent claims, or did claim, to hold the slave for any such purpose. The claim, as has already been stated, is founded solely on the fact that George is a slave; and that fact is set forth in the return in such general terms, that at one moment it is urged as suffi- cient to justify a claim to hold him as the agent of the owner, and at another as the captain of the vessel; at one instant as justified by a well defined provision of our national constitu- tion, and at another by a doubtful local statute. The fact set out in the return does indeed support the one claim as well as the other. But that circumstance of itself shows that the averment is too defective to be available under either aspect. Besides, ihe fact would justify a still broader clajm, that, namely, of any person who should please, within our territory, to arrest him as a fugitive from service. If the respondent was in fact holding the boy in pursuance of this statute, and for the purpose of taking him before the mayor, that his liability in servitude might be adjudicated upon, he ought so to have averred on his return, and this, not merely as a matter of form, but as matter of substance, that the prisoner might have taken issue upon it. To seize him and take him before the mayor, &c., would require a very brief period of time; yet, consistently with the truth of the return, he may have been detained for days after his seizure and after his arrival in this port. If, on an issue joined, such should appear to be the fact, any court or jury might nay, would be bound in common fairness to declare, that he had not been held for any such purpose. NEW YORK, OCTOBER, 1846. 79 In the matter of George Kirk. In case involving personal liberty, T^ere the fact is left in such obscurity that it can be helped out only by intendments, the well established rule of law requires that intendment shall be in favor of the prisoner. We have not in the return any thing to warrant the idea that the respondent was holding the slave for the purpose of taking him before the mayor, under the statute, except the facts that he was a slave, that he had concealed himself on board the vessel and was there held in durance. And those facts would just as well warrant the idea that he held him as the agent of the owner, under the laws of the United States, or held him for the purpose of selling him into bondage elsewhere. This claim, resting as it does on a doubtful statute, and unsupported by the facts, must also fall to the ground. And the respondent is left before us to be regarded as one having no authority in the matter, but as preferring a claim to the cus- tody of this boy, simply because he has admitted himself to have been a slave. To allow the claim in this case, would justify his being surrendered to any other stranger who might demand him, in order to transport him into closer and more enduring bondage, or to conceal him beyond the reach of his lawful master. The court then instructed the clerk to enter an order on the minutes, directing the slave to be discharged. On the same day, Mr. Jay presented a petition to the circuit judge, setting forth that after the discharge of the slave by the oyer and terminer, he had been seized by the authority of the master of the vessel and taken before the mayor, for the purpose of obtaining the certificate under the Rev. Stat. to warrant his reconveying him to Savannah and praying the allowance of a writ of habeas corpus, directed to the mayor, who held him in custody, for the purpose of inquiring into the propriety of granting a certificate. To this second writ the following return was made DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. To the Honorable JOHN W. EDMCN T DS, Circuit Judge for the first judicial circuit of the state of New- York : The return of Andrew H. Mickle, mayor of the city of New- York, to the writ of habeas corpus directed to him, and allowed by the circuit judge above named, on the twenty-seventh day of October, A. D. 1846, to inquire into the cause of the deten- tion of a colored boy named George Kirk shows : That on the same twenty-seventh day of October, A. D. 1846, the application in writing, whereof a true copy is here- unto annexed, was made to the said Andrew H. Mickle as mayor of the said city of New-York, by Theodore Buckley, in said application mentioned, setting forth that he, the said Buckley, was master of the brig " Mobile," an American ves- sel, belonging to the port of New- York. That on the thir- teenth day of October instant the said vessel sailed from the port of Savannah, in Georgia, bound for the port of New- Yoik. That on the fifteenth day of October instant, in latitude 34 deg. 10 m., N., and longitude 75 deg., W., the said Buckley discovered a colored man secreted in the foresteerage of said brig covered with a sail. That upon examination of said negro, he admitted that he was the slave of Charles Chapman, of Bryan county in the state of Georgia, and that he had ecreted himself on board of the said brig while lying at the port of Savannah, in said state of Georgia, with a view to escape from the service to which he was lawfully held under the laws of said state. The said application farther set forth, that the said Buckley arrived ?t the wharf in the port of New-York, with said colored man on board, on the 22d day of October instant, and that said colored man was taken on that day from the custody of said Buckley by a writ of habeas corpus, and at the time of presenting such application was in the city prison. The said application farther set forth, that said colored man did secrete himself on board of said brig Mobile, while lying at the port of Savannah aforesaid, without the knowledge or consent of the said Buckley, the master and commander of such brig, and that by so doing he subjected the said Buckley to the NEW YORK, OCTOBER, 1846. gj In the matter of George Kirk. penalties of fine and imprisonment under the laws of Georgia; wherefore the said Buckley prayed that a certificate might be furnished to the said Buckley, to carry or send such colored person to the port of Savannah aforesaid. That the said Buckley duly verified, by his oath before the said mayor, the said application. That in the afternoon of the same twenty-seventh day of October, A. D. 1846, the said colored boy named George Kirk, was brought before the said mayor, at his office in the city hall of the city of New-York, by the said Buckley and persons by him authorized to aid and assist him as his agents in that behalf. That there appeared before the said mayor, at the said time and place, Nathaniel B. Blunt, esquire, counsel for the said Buckley, and John Jay, esquire, counsel for the said colored boy. That thereupon the said mayor, at the request of the said Buckley, and in discharge of the duty imposed upon him in that behalf by the laws of the state of New-York, was about to proceed, in conformity with the law, to inquire into the circumstances stated in the application aforesaid, for the purpose of determining judicially under the law whether the certificate applied for should be given as authorized by the law, when it was agreed by and between the parties to the said proceeding and their counsel, that the inquiry should be postponed until the hour of six o'clock in the afternoon of the same twenty-seventh day of October, A. D. 1846, and that until such hour the said colored boy should remain in the charge and under the control of the said mayor and be detained by him. That this latter arrangement was assented to by the parties and their counsel. That the said mayor thereupon took the charge and control of the person of the said colored boy, and before the hour appointed for the inquiry aforesaid, there was served upon the said mayor the writ of habeas corpus hereunto annexed, and to which this is a return. And the said Andrew H. Mickle insists, that by reason of the facts hereinbefore stated, it is his duty, under the law, to make the inquiry aforesaid, in the exercise of an authority VOL. I. 11 DECISIONS L\ CRIMINAL CASES. In the matter of George Kirk. judicial in its nature; and that, lor the purpose of such inquiry and until the termination thereof, he is entitled to have the said colored boy before him and subject to his orders, and that the said boy is now in the charge and under the control of said mayor. But whether, on the foregoing facts, the said colored boy is subject to any order of the circuit judge, by whom the said annexed writ of habeas corpus was issued, the said mayor submits to the decision of the said judge. In witness whereof the said mayor hath hereunto subscribed his name, this twenty-eighth clay of October, A. D. 1846. A. H. MICKLE, Mayor. State of New-York, city and county of ^New-York, ss. Theodore Buckley being duly sworn deposeth and saith,that he is the master of the brig Mobile, an American vessel, belonging to the port of New-York. That on the thirteenth day of October instant the said vessel sailed from the port of Savannah, state of Georgia, bound for the port of New-York; that on the fifteenth of October instant, in latitude 34 deg. 10 m., N., and longitude 75 deg., W., this deponent discovered a colored man secreted in the foresteerage of said brig, covered with a sail. That on examination of the said negro, he admit- ted that he was the slave of Charles Chapman, of Bryan county, state of Georgia, and that he had secreted himself on board of said brig, while lying at the port of Savannah, in said state of Georgia, with a view to escape from the service to which he was lawfully held under the laws of said state. And deponent further saith that he arrived at the wharf in the port of New-York with said colored man on board, on the 22d day of October instant, and that said colored man was taken on that day from the custody of deponent by a writ of habeas corpus, and is now in the city prison. And deponent further says, that said colored man did secrete himself on board of the said brig Mobile, while lying at the port of Savannah, in the said state of Georgia, without the knowledge or consent of this deponent, the master and com- XF.W YORK, OCTOBER, 1846. 33 In the matter of George Kirk. mander of the said vessel; and that by so doing he subjected this deponent, under the laws of Georgia, to the penalty of fine and imprisonment; wherefore deponent prays that the certifi- cate may be furnished to this deponent to carry or send such colored person to the port from which he was brought. And further says not. (Signed) THEODORE BUCKLEY. Sworn to before me, this 27th day of October, 1846. (Signed) A. H. MICKLE, Mayor. To this return a general demurrer was interposed, and a joinder in demurrer. The demurrer was argued before the circuit judge by Mr. Jay and Mr. White as counsel for the petitioner, and by Mr. McKeon (district attorney), on the same side, and by Mr. Blunt as counsel for the master, and Mr. J. T. Brady as counsel for the mayor. The points taken were, 1. That the provision of the Rev. Stat. under which the pro- ceedings before the mayor had been instituted, had been re- pealed by the act of 1840. 2. That, if not repealed, the statute was void, as repugnant to the constitution of the United States, which conferred the power of legislation on this subject exclusively upon congress. EDMONDS, Circuit Judge. When this boy was before me on a former occasion, no principle of law was involved, but mainly a question of fact, arising out of the return. On the present occasion it is quite otherwise. The question now presented is, the constitutionality and consequently the validity of a statute of our state. It is not from any choice on my part, that I am called upon to consider this question. If my wishes had been consulted, the case would have remained with the mayor, until he had decided it; and even then, 1 should have been much better pleased, if the review of his decision had been commilted to some func- tionary whose other duties would have allowed him more lei- DECISIONS IN CRIMINAL CASES'. In the matter of George Kirk. sure than I can command to examine it. But the party had a right to bring the matter at once before me; under our statute, I was bound to allow the writ of habeas corpus, even if I had been fully convinced of the legality of the imprisonment; and the return made to the writ, necessarily raising the question to which I have alluded, it becomes my duty to consider and de- cide it a duty from which I am not at liberty to shrink, and which I hope I may be able to discharge, without partaking of the excitement which has surrounded the question from the be- ginning. It is. conceded on the record that George is a slave, owing service to a master in Georgia; that without the consent of his owner, and without the knowledge of the officers or owners of the vessel, he concealed himself on board the brig Mobile, in the port of Savannah, for the purpose of securing a passage to New York; that his being on board was not discovered by the officers of the brig until they had been at sea two days on their return voyage, and had got without the territory of Georgia; that as soon as he was discovered, he was arrested and confined until his arrival in this port, and that on his arrival, the master of the vessel took him before the mayor, to the end that he might obtain from the mayor a certificate which shall warrant him in returning the boy to the port of Savannah; that the owner of the slave does not demand him under the constitution and laws of the United States, but he is demanded by the claimant, simply by virtue of his station as master of the vessel, and by virtue of a provision of our statutes. Such are the facts of this case. The law applicable to it, is to be found in 15, 1 Rev. Stat. 659, which enacts that when- ever any person of color, owing labor or service in any other part of the U. States, shall secrete himself on board of a vessel lying in any port or harbor of such state, and shall be brought into this state in such vessel, the captain or commander thereof may seize such person of color and take him before the mayor or recorder of the city of New York. The officer before whom such person shall be brought, shall inquire into the circum- stances, and if it appear, upon proper testimony, that such per- NEW YORK, OCTOBER, 1846. 5 In the matter of George Kirk. son of color owes service or labor in any other state, and that he did secrete himself on board of such vessel without the knowledge or consent of the captain or commander thereof, and tha't by so doing he subjected such captain to any penalty, such officer shall furnish a certificate thereof to such captain or com- mander, which shall be a sufficient warrant to him to carry or send such person of color to the port or place from which he was so brought as aforesaid. It must constantly be borne in mind that the question before me does not grow out of, nor is it in any way connected with an attempt on the part of the owner of the slave to enforce his rights under the constitution of the United States and-the law of congress of 1793, but arises solely out of a state statute, which authorizes another person, in no respect connected with the owner of the slave, nor acting by his authority, to retrans- port him from our territory to the place where he had been held in bondage, and where again he may be returned to bondage. In other words, while the constitution of the United States gives to the party to whom the service or the labor may be due, the right to reclaim h and can not be conferred upon him by the state legislature. Two objections are raised to this claim of authority: 1. That the provision of the revised statutes authorizing the proceeding has been virtually repealed by an act of our legis- lature, passed in 1840. 2. That if it has not been repealed, it is repugnant to the con- stitution of the United States, and therefore inoperative and void. gg DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. The conclusion to which I have arrived on this point renders an examination of the first unnecessary. The section of the revised statutes under consideration is part of title VII of chap. 20, of the first part, which is entitled, "Of the importation into this state of persons held in slavery, of their exportation, of their services, and prohibiting their sale;" and is a revision of the act of 1817, entitled " An Act relative to slaves and servants." The 30th section of the act of 1817, which contains the pro- vision which has been incorporated into this 15th section of the revised statutes, is preceded by a recital that " whereas persons" of color owing service or labor in other states, some- times secrete themselves on board of vessels while such vessels are lying in the ports or harbors of other states, and thereby subject the commanders thereof to heavy fines and penalties." And it is worthy of observation, that the act of 1817 as well as this title of the revised statutes, aims at prohibiting the export- ation as well as the importation of slaves, and that while the act of 1817 abolishes slavery after the 4th of July, 1827, the revised statutes declare that every person born in this state shall be free, and every person brought into this state as a slave, except as authorized by this title, shall be free. It may well be questioned whether, as this slave was brought into this state in a manner not authorized by the revised stat- utes, he did not thereby, under our law, become ipso facto, free, and whether this proceeding before the mayor is not, therefore, in effect, a proceeding to carry a free citizen into bondage But I do not consider that point, as it was not raised before me in the argument, was not discussed, and is not necessary to the decision of the question before me. The broad question discussed, and which I am called upon to decide is, whether our state legislature have authority to pass this law. The point has never, as far as I can learn, been decided, or even agitated in our state, and it is presented to me not only as a new one, but in the imposing form of requiring from me a decision that a law of our state is repugnant to the constitution NEW YORK, OCTOBER. 1840. g? In the matter of George Kirk. of the United States, and therefore void. Fully aware of the diffidence with which courts should always entertain such ques- tions, I approach this with all the caution becoming the gravity of the case, yet with a lively sense of what is due to personal liberty and the fraternal relations existing among the members of the Union. As T have already mentioned, the statute under consideration was first enacted in 1817, and was subsequently re-enaeted and went into effect as part of the revised statutes, in 1830. In 1834, the supreme court of this state, in Jack \. Martin ( 12 Wend. 311), held that the law of congress, in regard to fugitive slaves, was supreme and paramount from necessity j that so far as the states are concerned, the power, when thus exercised, is exhausted, and though the states might have desired a different legislation on the subject, they can not amend, qualify, or in any manner alter it; that though the act of the state might not be in direct repugnance to the legislation of congress, it does not follow that it is not in legal effect; that if they correspond in every respect, then the latter is idle and inoperative; if they differ, they must, in the nature of things, oppose each other so far as they do differ; that a fair interpretation of the terms in which the provision of the constitution is expressed, prohibits the states from legislating upon the question involving the owner's right to this species of labor; and that while the law of congress, thus passed, exists, the power of the states is sus- pended, and, for the time, is as inoperative as if it had ne/er existed. The case of Jack v. Martin, was carried to our court for the correction of errors and the judgment of the supreme court was affirmed. Though the reasons given for the decision in the court of last resort, as reported in 14 Wend. 507, differ from those given in the court below, the positions of the supreme court, as I have extracted them, were in no respect disturbed, but have ever since remained, and are now the law of the land, governing the courts and citizens of this state. In 1842, the supreme court of the United States, in Prigg v. Pennsylvania ( 16 Peters, 539), had the same question before gg DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. them. It arose out of various statutes which that state as well as New York and other northern states had from time to time been enacting on the subject of slavery, and which contained, among other things, provisions very like ours in regard to slaves who had absconded from other states Story, J., in delivering the opinion of the court, declares that the law of congress may be truly said to cover the whole ground of the constitution, not because it exhausts the remedies which may be applied, but because it points out fully all the modes of attaining the object which congress have as yet deemed expedient or proper to meet the exigencies of the con- stitution. And he adds: If this be so, then it would seem upon just principles of con- struction that the legislation of congress must supersede all state legislation upon the same subject, and, by necessary im- plication, prohibit it. For, if congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner and in a certain form, it can not be that the state legislatures have a right to interfere, and, as it were by way of compliment to the legislation of congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case the legislation of congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject matter. This doctrine was fully recognized by the court in Houston v. Moore (5 Wheat. 1), where it was expressly held that where congress have exercised a power over a particular subject given them by the consti- tution, it is not competent for state legislation to add to the provisions of congress upon that subject. This is the supreme law of the land, which I am bound to obey, and is applicable to the case before me in this aspect, that while congress, in the exercise of its constitutional power over fugitives from service, has given the right to retake and reconvey them to the place of service, to the party to whom the service is due, his agent or attorney, the state legislation adds to the provision of congress on that subject, by conferring the NEW YORK, OCTOBER, 1846. gg In the matter of George Kirk. power of recapture and reconveyance upon the commander of a vessel on board of which the fugitive may have concealed himself. If it may add, may it not diminish? And if state legislation once begins, where is it to end, and what bounds are to be set to it, but state discretion? Well, indeed, did our supreme court repudiate the idea that the framers of the constitution intended to leave the regulation of this subject to the states, when the provision itself obviously sprung out of their fears of partial and unjust legislation by the states in respect to it. While this construction of the constitution though recent in its promulgation, yet old as the instrument itself was conceded on all hands during the argument before me, it was contended that our statute did not fall within its destroying influence, because it was only a police regulation, and therefore legiti- mately within the scope of state authority. In 16 Peters, 625, Story, J., qualifies the decision of the su- preme court of the United States, by saying that they were not to be understood in any manner to doubt or interfere with the police power belonging to the states, in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the states, and is distinguishable from the right and duty secured by the provision of the consti- tution under consideration. It becomes, therefore, material to inquire what is the police power here alluded to, and does our statute justly and properly fall within its scope ? In 16 Peters, the same learned judge speaks of this power as conferring full jurisdiction on the states to arrest and restrain runaway slaves, and remove them from their borders and other- wise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vaga- bonds and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course; and in many cases the operations of this police power, although designed essentially for other purposes, for the protection, safety and peace of the state, may essentially pro- VOL. I. 12 90 DECISIONS IN CRIMINAL CASES. In the matter of George Kirk. mote and aid the interests of the owners. But such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave, or with the remedies prescribed by congress to aid and enforce the same. In New-York \. Milne (2 Peters, 139), Mr. Justice Barbour, in delivering the opinion of the court, applies this test to deter- mine the nature of the power: Did it belong to the state before the adoption of the constitution ? has it been taken from the states and given to congress? or does it fall within that immense mass of legislation which embraces every thing within the territory of a state not surrendered to the general govern- ment ? And the power then under consideration was held to be of that "mass," because its place of operation was within the territory, and therefore within the jurisdiction of the state; because the person on whom it operates was found within the same territory and jurisdiction ; because the persons for whose benefit it \vas passed were the people of the state; because the purpose to be attained was to secure the protection of that people, and because the means used were just, natural and appropriate to those ends. Complaint was made during the argument, that this police power was exceedingly vague, uncertain and undefinable, and hence, I suppose, an inference was to be deduced that I ought to regard the claim of power with little favor at least. In the very nature of things it must be difficult, in few, or perhaps in many words, to define the power; for it comprehends an im- mense mass of legislation, inspection laws, quarantine laws, health laws, internal commerce, roads, ferries, &c. Yet, immense as is this mass, and various as are the interests embraced in .and affected by it, it seems to me that the rules laid down by the Supreme Court of the United States, as I have already quoted them, and the tests which they provide, are plain and simple and easy to be understood, and in their application to this case entirely decisive and satisfactory in the result to which they lead us. To apply, first, the rules given us in the case of Prigg, in 16 Peters : NEW YORK, OCTOBER, 1846. In the matter of George Kirk. The police power " extends over all subjects within the territorial limits of the state," yet our statute does not confine its operation within our limits, but provides, in case the fugi- tive is from another state, for the return of the fugitive back to the place whence he fled. We " may remove slaves from our borders to secure ourselves against their depredations." To transport the slave to Canada or Connecticut would effect this purpose, yet that is not allowed by our statute. He must in compliance with its com- mand, be returned only to his place of bondage. " The rights of the owners are not to be interfered with or regulated." Yet, what is a compulsory return of the slave, with or with- out his owner's consent, to the place whence he fled, but an interference with or regulation of the master's right to control his movements and govern his person ? The state regulation is, " not to interfere with the remedy prescribed by congress." Congress has limited the power of recaption to the owner, his agent or attorney, but our state law has removed that limitation. Congress" has protected the rights of the owner, by securing the reclamation to him and those appointed by him, yet our statute gives to the commander of the vessel the power of transporting the slave beyond even the reach of the owner. Such is the result of the rule furnished us by Judge Story. The application of Judge B arbour's tests will be found equally satisfactory and conclusive. Is the power exercised in this statute one " embracing a matter within the territory of the state, not surrendered to the government, and which can be most advantageously exercised by the state ?" It can not be most advantageously exercised by this state. It can not, indeed, be exercised at all without the consent of the state from which the slave fled. Suppose that any slave state should forbid the return to its territory of a fugitive slave, could our law commanding his return be en- forced ? It could be only enforced by the national govern- ment. 92 DECISIONS IX CRIMINAL CASES. In the matter of George Kirk. But to proceed with his tests: We are to look at the place of its operation to see that the statute operates within the territory of New York; yet the main object of this statute plainly is, not the removal of the slave from our borders, but his return to the place whence he fled, involving of necessity the operation of our statute, without our territory and without our jurisdiction. Could it be more so if it provided that every vagrant arrested in our streets should be transported to and abandoned in the streets of Savannah? We are next to look upon the person on whom it operates, to see that he is within the same territory and jurisdicton; yet this statute must of necessity, operate both on the slave and the com- mander of the vessel more out of the state than in it. We are next to look at the persons for whose benefit it was passed, to see that they are the people of our state. Yet this statute does not confine the power of recaption to the commanders of vessels, being citizens it confers it on all commanders, reside where they may. We are next to turn our attention to the purpose to be at- tained, to see that it is to secure that very protection and pro- vide for that very welfare. The argument is, that this statute had its origin in the desire to protect our citizens from the evil example of having slaves among us; yet that very statute pro- hibits the removal of slaves from our territory by high penal enactments; and surely if the welfare of our citizens and their security from the evil example of slavery were the object in view, it could be attained as well and far more easily by trans- porting the slave to a free state, which it prohibits, than to a slave state, which it absolutely commands* And lastly we are to examine the means by which these ends are to be attained, so that they bear a just, natural and appropriate relation to those ends. There is no special plead- ing, no refinement of reasoning, that can disguise from a com- mon understanding the fact that the whole object of the statute was to allow the commander of the vessel to protect himself by retaking and returning the fugitive; and the means used, namely, the examination and adjudication by the mayor, and NEW YORK, OCTOBER, 1846. 93 In the matter of George Kirk. his certificate, were natural and appropriate to that end, and to none other. If any other end had been in view if the pro- tection of our people at large had been aimed at there would have been something compulsory in the law, something obliga- tory on the captain to afford us the desired protection. But every thing is left to his discretion. If he pleases he may re- take, and, after retaking, if he pleases, he may return the slave to the place whence he fled. If the captain should chance not to be a citizen of this state, it would be difficult to discover how it could benefit this state; yet under no circumstances would it be difficult to see how it could benefit the owner to have his fugitive servant placed again within his reach. In every aspect in which I view this statute, I can not help regard- ing it as intended and calculated to aid in returning a fugitive slave to his master: and it seems to me that the claimant in this case, and his counsel, have so understood the law, and have acted accordingly. Else why was the boy confined on board the vessel after her arrival here? Why does the captain plead his obligation to the laws of Georgia, when those laws compel him to return the boy to his owner? Or why, when George was making every effort, with the assistance of numerous friends, to escape from the state, did the captain invoke the aid of the police to arrest those efforts; and why does he now press this claim, but that he may do that which the constitution and laws of the United States declare shall be done only by the party to whom the service is due, or his agent or attorney? I do not allude to these considerations for the purpose of even implying a censure upon the commander of the vessel or his owners; but solely with a view of drawing from his acts, and those of his very respectable counsel, the consolation justly flowing, that he and they do, in effect and from necessity, understand our statute precisely as I do, namely, in the language of the United States supreme court, as by way of compliment to the legisla- tion of congress, prescribing additional regulations, and what they deem auxiliary provisions for the same purpose. It must have occurred to all who have given this subject much consideration, as it has to me, to observe the extreme 94 DECISIONS IX CRIMINAL CASES. In the matter of George Kirk. watchfulness with which this provision of our national -consti- tution has been regarded by our courts. It is not worth my while to pause and inquire into the cause or the propriety ot this. It is enough to know that whenever any state legislation, attempting to intermeddle with the question, has come before our highest courts, it has without ceremony been swept from the statute book. Our statute regulating and controlling the master's right of reclamation, and allowing to the alleged slave the benefit of the writ of homine replegiando, fell before the decision of our supreme court in Jack's case. The laws of Pennsylvania, running through a period from 1780 to 1826, and containing a provision like that now under my review, were overturned by the supreme court of the United States in Prigg's case; and I only discharge my duty obey, indeed, merely one of its plainest and most simple dictates by declaring that the rule of law thus laid down by the highest judicial tribunals in the country, and whose decisions I am bound to respect and to enforce, is applicable to the statute in question, and being applicable renders the statute null and void, and the arrest and detention of Kirk under it improper. It will be observed that I have omitted to discuss many con- siderations which were pressed upon me during the argument The view which I have taken of the case rendered their dis- cussion unnecessary, but I will briefly allude to one topic, be- cause, if the danger apprehended were to ensue, it would be the only cause of regret which I should experience growing out of this case. I allude to the penalty which it is averred may fall upon the captain in case of his return to Georgia. I can not persuade myself that there is any cause for the fear. The slave was concealed on board his vessel without his knowledge or consent. He was not discovered until the limits of Georgia had been passed, and to have returned then to Sa- vannah would not only have vitiated the captain's insurance, but have rendered him liable in an action to the boy; and since his arrival in this port, he has resorted to every means which our law allows to return him to his place of servitude. And if he shall be finally defeated in his attempts, it will not NEW YORK, AUGUST, !&47. The People v. Phillips. be from any want of efforts on his part, but from a determina- tion on the part of the authorities of this state, to avoid state usurpation, and to maintain the constitution as it has been interpreted by the highest tribunals in the country. It can not be, that,*under such circumstances, he can have any thing to fear from the penal enactments of Georgia. If, however, contrary to all just calculation, those fears should yet be realized, our regard for the individual may not warp the law from its uprightness, though it may well excite our regrets that its integrity can not be maintained without the infliction of unmerited suffering. This boy must at all events be dis- charged. The law allows it and the court awards it. SUPREME COURT. At Chambers, New York, August, 1847. Before Edmonds, Circuit Judge. THE PEOPLE vs. ELIZA PHILLIPS. The power of summarily convicting offenders being in derogation of the com- mon law. must be strictly confined to the special statute from which its force is derived. The restrictions and regulations relative to these convictions established by the higher courts in England before the revolution, were declaratory of the common law, and are binding in this state, unless they have since been re- pealed or altered by statute. A. record mnst be made up in every such case as a prerequisite to commitment ; and trespass will lie against a magistrate who commits without having so done. The reasons of its necessity are: 1. For protection of the accused: that he may not again be convicted of the same offence. 2. For protection of the magistrate: a proper record being conclusive evi dence in his favor, in cases within his jurisdiction. 3. In the absence of an appeal, the only mode by which the accused can obtain a review of the sentence is by habeas corpus or certiorari founded on the record. Greater certainty is required in such records than in indictments, because they are taken as true against the accused; and nothing will be presumed in favor of the commitment, but the presumption will be against it. 96 DECISIONS IN CRIMINAL CASES. The People w. Phillips. Although there is no jury trial, the proceedings must be according to the course of the common law in trials by jury. Thnre must he first an information or charge, and the defendant must be ummoned and have an opportunity to make his defence. The evidence in support of the charge, must be such as the common law approves, unless specially directed otherwise by statute. , There must be a conviction, judgment and execution, all according to the course of the common law. The record is designed to show the regularity of the proceedings, and that the sentence is supported by legal evidence; therefore, everything necessary to support a conviction must appear upon it. It must set forth: 1. The particular circumstances constituting the offence, to show that the magistrate has conformed to the law and has not exceeded his jurisdiction. A mere statement of the offence in the terms of the statute is insufficient, 2. The plea of the defendant, whether confession or denial. 3. The names of the witnesses, to show their competency. 4. That the evidence was given in the presence of the accused that it may appear he had the opportunity of cross-examination. - 5. The whole evidence both for prosecution and defence so far as applicable tj>the charge, to show that every material allegation was sustained by proof. 6. An adjudication of the guilt of the accused, which must ba exact and precise, judgment for too little being as kid as for too much. (a) ON the 31st of August, 1846, Eliza Phillips presented to the circuit judge a petition for a writ of certiorari, to certify the cause of her detention in the penitentiary on Black well's island. On the 3d September, the keeper made a return to the certi- orari, that she was detained in his custody by virtue of a commitment by one of the police magistrates in the foil', ving words : One of the special justices for preserving the pe. j in the city of New-York : To the constables and policemen of the said city, and ( ;ry of them, and to the keeper of the penitentiary of the cit of New- York. These are in the name of the People of the State of N w- York, to command you, the said constables and policemen to (a) Since this decision a more general form of record has been authorize by the act of 12 April, 1803 (Ses*. Law of 1803 p. 353). NEW YORK, AUGUST, 1847. 97 The People . Phillips. cohvey to the said penitentiary the body of Eliza Phillips, who stands charged before me of being a vagrant, viz. : an idle person, having no home or means of living, being a common prostitute, having no lawful employment whereby to maintain herself, and whereof, he convicted on competent testi- mony. And you the said keeper, are hereby commanded to receive into your custody, in the said penitentiary, the body of the said Eliza Phillips, and her safely keep for the space of sixty days, or until she shall be thence delivered by due course of law. Given under my hand and seal, this 4th day of August, in the year of our Lord one thousand eight hundred and forty-six. (Signed), Ji. Nash, on behalf of the prisoner, controverted the return and set forth the record of conviction in the following words : Police Office, Halls of Justice. City and county? of New-York, $ s Be it remembered, that on the 4th day of August, 1846, Alexander McDougal, of the said city and county, did bring before me, one of the special justices for preserving the peace in the city and county of New- York, one Eliza Phillips, and did complain unto me, and give me to be informed, that on this present day, at the said city and county, the said Eliza Phillips was a common prostitute, who had no lawful employment whereby to maintain herself, and was a vagrant within the intent and meaning of the statute, which complaint and information being heard by me at the city and county aforesaid, I, the said justice, on the day and year aforesaid, at the city and county aforesaid, upon the oath of said Alexander McDou- gal, as well as upon the examination of the said Eliza Phillips, taken before the undersigned having jurisdiction in the matter, being satisfied that the said charge and accusation were in all respects just and true, and that the said Eliza Phillips was a vagrant within the description of the statute in such case made and provided, did therefore convict the said Eliza Phillips of ' VOL. I. 13 DECISIONS IX CRIMINAL CASES. The People v, Phillips. being such vagrant; and it appearing to me that the said Eliza Phillips improper person to be sent to the Alms House, I, the undersigned, thereupon sentenced her to the penitentiary for the term of two months. (Signed) J. D. Phillips, Assistant District Attorney demurred, and the prisoner joined in demurrer. A. Nash claimed that the record was void, and therefore the prisoner was entitled to her discharge. THE CIRCUIT JUDGE. I have been so frequently called upon to discharge from the penitentiary prisoners committed on sum- mary convictions for vagrancy on the ground of some alleged defect or irregularity in the proceedings of the sitting magis- trate, that I have deemed it advisable on this occasion to give the subject a full examination, in the hope that the matter being thoroughly understood, the corrective for the evil may once for all be applied. Our Rev. Stat. (vol. 1. p. 633), declares that if a magistrate be satisfied, by the confession of the offender or by competent testimony, that the accused is a vagrant, within the description of the statute, he shall make up and sign a record of conviction thereof which shall be filed in the office of the clerk of the county, and shall by warrant under his hand, commit such vagrant, &c. Under this law and one subsequently passed (Laws of 1833), somewhat enlarging the description of the offence and varying the punishment, the magistrates mainly proceed in the class of cases now under consideration. And the mode of proceeding is not by a formal trial by a jury, but is by a summary conviction, which is described to be the examination, and punishment of offences in a summary man- ner by justices of the peace out of their sessions and without the intervention of a jury or an open trial (Paley on Convic- tions, 1). NEW YORK, AUGUST, 1847. 99 The People v. Phillips. The power thus exercised is not in conformity to, but is in derogation of the common law, is derived solely from the statutes, and all the proceedings under the authority so created must be strictly conformable to the special law in each instance, from which all their force is derived (Cole's case, Sir W. Jones, 139, 170; 1 Showers, 14). The earliest statute upon which a summary conviction is on record, is, that of 33 Henry VIII. ch. 6. This was in 1544. From that time to the present, statutes have been enacted, extending tht jurisdiction to other cases and regulating its exercise. So great has been this extension, that in England and Wales, the number of summary convictions in one year (1842), was 71,725. Immediately after the creation of this new judicatory, its dangers became manifest. The earliest case reported (43 Eliz.) is that of a sheriff's officer going to execute a writ against a justice of the peace for a debt, and taking with him a hand- gun from the apprehension of a rescue. The justice, instead of obeying the writ, apprehended, convicted and imprisoned the officer till he paid a fine of j10 under the color of the act of parliament against carrying daggs or short guns. The necessity of putting under some restraint a power so summary, so arbitrary, so materially affecting personal liberty, and so liable to be perverted to purposes of oppression and wrong, required from the courts great watchfulness and care Hence frequent decisions were made by the higher courts in regard to it, and a system of regulations and restrictions grew up and became incorporated into the common law. Those regulations and restrictions were a part of the common law at the adoption of our constitution, which made the common law the law of our land, and when by our statutes we adopted this peculiar mode of trial, we necessarily subjected it to the princi- ples already established in regard to it, and we must therefore, in examining the question before us, go back to the law as it existed at the adoption of our constitution, and be governed by the rules then established, unless in the language of our consti- tution, they have since been repealed or altered. And it is the 100 DECISIONS IX CRIMINAL CASES. The People . Phillips. more important that those rules should be well understood and rigidly enforced, because our constitution in securing to us the trial by jury, secures it only in those cases, in which it had been heretofore used (Art. vii. sect. 2). The British statutes, alive to the dangers of this extraordi- nary jurisdiction, have, and principally since our revolution, given an appeal to the accused, by which he can review the judgment which may deprive him of his property, his liberty and his character. But our statute provides no such remedy: our constitution deprives him of the protection of a trial by jury, and he has no other protection left to him against the arbitrary exercise or wanton abuse of this extraordinary power than what he may find in " such parts of the common law and of the acts of the legislature of the colony of New-York, as together did form the law of said colony on the 19th April, w 1795" (Const. Art. vii. sect. 13). g JjJ It is by that common law that I shall examine the case now g* -r\ before me; mindful, throughout, that no member of this state * H| can be deprived of any of the rights or privileges secured to ** j3 any citizen thereof, unless by the law of the land or the judg- %* 35 ment of his peers (Const. Jirt. vii. sect. 1). And that no person ^j? can be deprived of life, liberty or property without due process of law (Ibid. sect. 7). Among the rules of the common law, and almost the only one of them that has been incorporated into our statute, was that which required a record to be made of every summary conviction (12 Dalt. c. 2, 4; 1 Salk. 300; 8 Co. 60, 38; Boston v. Carew, 5 D. fy R. 558; 3 B. 8? C.649; R. v. Eaton, 2 T. R. 285; R v. Black, 1 Sir. 147; 1 Rev. St. 633, 3). This is rendered necessary by many considerations. 1. For the protection of the accused, that by having a record, particularly describing the offence, he may be saved from being a second time convicted on the same charge (Paley on Con. 55; Rex v. Midlam, 3 Burr. 1721). 2. For the protection of the magistrate. Where he has juris- diction, a proper record, though made out by himself, is a conclusive defence in any action brought against him by reasop NEW YORK, AUGUST, 1847. The People v. Phillips. of his action in the premises (Nixon v. Nanney, 1 G. fy D. 370; 6 Jurist, 389; Gray v. Cookson, 16 East, 13; 2 Cow. Tr. 651; Mather v. Hood, 8 Johns. R. 44; Buquet v WW&f/is, 1 JlfiV. La. ep. 131; Pa/ey, 332; JW/er v. Patch, Holt, 287; Strickland v. JFard, 7 T. ^. 631; Massey v. Johnson, 12 .&w, 81). And it has been suggested in some cases whether the record is not a protection even on the question of jurisdiction. 3. In the absence of all provision for an appeal, the record becomes the only means the accused has of reviewing the judgment against him and of ascertaining whether he has been justly condemned. A certiorari, a remedy still left to him, carries up the record alone: and on habeas corpus he can avail himself only of objections so flagrant, as to render the com- mitment absolutely void, not voidable only. Without a re- cord therefore and that of a proper character, the party would be deprived of all means of inquiring whether he had been justly condemned and be also deprived of an effectual remedy against a wanton excess of the jurisdiction. He would, it is true, in the latter case, have his remedy in an action of trespass, but thai would not come until he had suffered the wrong, and while his conviction would be exceedingly prompt and summary, his remedy for the wrong done him would be very slow and burdensome. 4. In all cases of special and limited authority, especially where it is penal in its character, and to be exercised in dero- gation of the common law, great strictness and jealousy ought to be exercised not only in construing the law, but in canvass- ing the proceedings. Lord Ch. J. Holt, in R. v. Whistler (Holt, 215), with great propriety remarks, " every body knows, that this being a penal law, ought by equity and reason to be con- strued according to the letter and no further. That it is penal is plain and what is highly so, the defendant is put to a summary trial different from Magna Charta, for it is a funda- mental privilege to be tried by a jury. Then where a penalty is inflicted, and a different manner of trial from Magna Charta instituted, and the party offending, instead of being tried by his neighbors in a court of justice, shall be convicted by a 102 DECISIONS IN CRIMINAL CASES. The People v. Phillips. single justice in a private chamber, upon the testimony of one witness, I fain would know if on the consideration of such a law we ought not to adhere to the letter." Hawkins, 2 PL C c. 25, 13; Lord Kenyan, in R. v. Jules, 8 T. R. 544; Lord Mansfield in R. v. Little, 1 Burr. 613; Jlshhurst, J. in R. v. Green, Cald. 391, and Abbott , Ch. J., in R. v. Pain, 7 D. & R. all maintain the doctrine that greater certainty is required in convictions than in indictments, because the defendant has no opportunity of pleading to these summary forms, and they must be taken strictly, because they must be taken as true against the defendant. 5. It is a well established rule, that a record is an abso- lute prerequisite to a commitment, and that without it, not only is the party entitled to his discharge, but the magistrate is liable to him in trespass. In one case, where the magistrate had refused to give a record, the court denounced the whole proceeding as " one of the many cases where poachers are pur- sued with unintermitting vengeance. Here was not only that, but gross oppression also" (3 Burr. 1722). The necessity and object of a record being thus established, it only remains to inquire what that record must contain. It is a memorial of all the proceedings that have taken place op to, and including the judgment or sentence (Paley on Con. 65). The best summary of the law on this subject which I have found, among the many authorities which I have examined, is in 1 Ward's Justice, 705; Tit. Conviction, in these words: The power of a justice of the peace is in restraint of the common law, and in abundance of instances, is a tacit repeal of that famous clause in the great charter, that a man should be tried by his equals, which also was the common law of the land long before the great charter, even for time immemorial, beyond the date of histories and records. Therefore, generally, nothing shall be presumed in favor of the office of a justice of the peace: but the intendment will be against it. Therefore, where a special power is given to a justice of the peace by act of parliament, to convict an offender in a summary manner, NEW YORK, AUGUST, 1847 103 The People v. Phillips. without a trial by jury, it must appear that lie hath strictly puisued that power; otherwise the common law will break in upon him and level all his proceedings. Therefore, where a trial by jury is dispensed withal, yet he must proceed neverthe- less, according to the course of the common law in trials by juries, and consider himself only as constituted in the place both of judge and jury. Therefore there must be an informa- tion or charge against a person; then he must be summoned or have notice of such charge, and have an opportunity to make his defence; and the evidence against him must be such as the common law approves of, unless the statute specially directcth otherwise: then if the person is found guilty, there must be a conviction, judgment and execution, all according to the course of the common law, directed and influenced by the special authority given by the statute; and in the conclusion, there must be a record of the whole proceedings, wherein the justice must set forth the particular manner and circumstan- ces, so as if he shall be called to account for the same by a superior court, it may appear that he hath conformed to the law, and not exceeded the bounds prescribed to his jurisdiction (1 Burn, 364). A conviction must contain the following particulars : An information or charge against the defendant a sum- mons or notice of the information, in order that he may appear and make his defence his appearance or nonappearance his confession or defence the evidence, if he does not confess and the judgment or adjudication All these matters must be particularly set out on the conviction (2 Robinson's Justice, 542 Brackett v. State, 2 Tyler, 167; People v. Miller, 14 Johns. R. 371; 4 Johns. R. 292). The information should state correctly the time when taken, the place, the jurisdiction before which taken, and the charge preferred ( 1 Ld. Ray. 509 ; 2 Bl. Com. 14 1 ; Lacon v. Hooper, 6 T. R. 224). So that it may appear that it had been given within the time limited by the statute that the power was exercised at a place commensurate with the jurisdiction, before a magistrate having jurisdiction at that place (2 Salk, 473), 104 DECISIONS IX CRIMINAL CASES. The People v. Phillips. that the offence was directly charged, and not by implication, and contained, in express terms, every ingredient necessary to constitute the crime described by the statute (Rex. v. Bradley, 10 Mod. 155; R. v. Trelawney, 1 T. R. 122; 2 Lord Ray. 791; 2 T. R. 34). In describing the offence, a mere compliance with the terms of the statute will not suffice, for if a magistrate merely states the facts of the offence in the words of the act, when the evi- dence does not warrant the conclusion, he subjects himself to a criminal information (R.v. Thompson) 2 T.R. 18; R. v. Pearce, 9 East, 358; R. v. Davis, 6 T. R. 171; Ardry v. Hoole, Cowp. 825). The particular circumstances which conduce the opinion of the magistrate must be set forth, and not the mere result or conclusion from them (2 Rob. Jus. 546). It must appear that the accused was summoned or appeared before the magistrate (Rex. v. Mlason, 2 Str. 678; R. v. Ve- nables, ib. 630), and if he neglects to appear after proof of being duly summoned, the justice may proceed to judgment, but he must state all these facts in their proper order in the conviction (R. v. Simpson, 1 Str. 44; State v. Stokes, 1 Coxe, 392; Bige- low v. Stearns, 19 /. R. 41; Son v. People, 12 Wend. 348; Chare v. Hathaway, 14 Mass. R. 224J). The plea of the defendant must be set forth, whether of denial or confer ion (Paley on Conv. Deacon's ed. 139, 5). If he Denies the charge, it must be supported by evidence, and the ' ames of the witnesses must be set out, that the court may p.<'/e whether they are competent (Rex v. Tilly, 1 Str. 16; far v. Blaney, Jlndr. 240). The evidence should be stated to have been given in the pre- -*ence of the accused that it may appear he had an opportunity of cross-examination (Rex v. Vipont, 2 Burr, 1163; Rex v. Crowcher, I T. R. 125; Rex v. Barwell, 6 T. R. 75; R. v. Lo- celf, 7 T. .152; R. v. Swallow, 8 T. R. 284; R. v. Selway, 2 Ch't. 522). TLf, whole evidence which applies to the charge, must be purWiP.rly set out in the conviction, that the court may judge NEW YORK, AUGUST, 1847. The People v. Phillips. whether sufficient proof appears on the face of it to sustain/ every material allegation and to justify the adjudication (RexJ v. Killer, 4 Burr. R. 2063; R. v. Vipont, 2 Burr. R. 1165; 2 Rob. Jus. 550, per Lord Mansfield', Rex. v. Lloyd, 2 Sir. 999, per Lord Hardwick; R. v. Theed, 2 Str. 919, per Lord Raymond; vide also 2 Doug. 486; Rex v. Smith, 8 T. R. 588, per Lord Kenyan,; Rex v. Warnford, 5 D. fy R. 489; Rex v. Dove, 3 B. fy Al. 596; Rex v. Taylor, 2 Chitty R. 578; Commonwealth v. Hardy, 1 Jlshmead R. 411). It will not be sufficient to state that " the said offence was duly and fully prove'd," for that is to state the result of the evi- dence and not the evidence itself (Rex v. Reed, Doug, 490; Rex v. Lovet, 7 T. R. 122). And the evidence for the defendant, as well as that for the prosecution, must be set out (2 Rob. Jus. 561; Rex v. Clarke, 8 T. R. 220). The record must contain an adjudication of the magistrate upon the evidence, as to the guilt or innocence of the prisoner (Rex v. Harris, 7 T. R. 238; Mayor v. Mason, 4 Doll. 266). And the adjudication on every point to which it refers, must be precise and exact, a judgment for too little being as bad as a judgment for too much (Rex v. Clarke, Cowp. 610; Morgan v. Brown, 6 JV*. # M. 57; 4 M. # E. 515; Rex v. Patchett, 5 East* 339; R. v. Hazell, 13 Ea^, 139; Gumming' 's Case, 3 Green/. R. 51; Power v. Peop/e, 4 JoAws. . 292). That the design of the conviction is not merely to record the fact of the judgment, but to show that the proceedings required by justice had been regularly observed and the sentence legally supported by evidence, is everywhere evinced by the language and sentiments of the ablest judges from the time of Lord Holt^ who himself, on all occasions, regarded the obligation of record- ing the whole proceedings as a necessary counterpoise against the liability to error or misapplication, to which a private and discretionary tribunal is naturally exposed (Intro, to Paley on Con. xxxiii). Everything requisite to support a conviction should appear on the conviction itself (6 T. R. 538), and its validity must be VOL. I. U DECISIONS IN CRIMINAL CASES. The People . Phillips. determined by what appears on the face of it, not by reference to matters dehors (3 T. R. 338). It will have been seen in the course of this examination, that the same principles which pervaded the English courts before the revolution, have been regarded in our own couits since that event. And it has frequently occurred to our courts, in view of the manifold dangers arising from the exercise of so summary and arbitrary a jurisdiction, that it was the more necessary for them to assert and maintain the principles on which personal liberty is dependent. The supreme court of Massachusetts, in' Chase v. Hathaway, take occasion to say, it is a fundamental principle of justice essential to every free government, that every citizen shall be maintained in the enjoyment of his liberty and property, unless he has forfeited them by the standing laws of the community, and has had opportunity to answer such charges as according to those laws will justify a forfeiture or suspension of them. In the State v. Savannah (Charlt. 235), the courts of Georgia hold this language. In this country no person can be injured, in his personal pro- perty, without an opportunity of defending himself. He has the right of being confronted with his accusers, and of being apprised of the accusation against him. "jJudialteramparlem," is a maxim of natural justice, dear to the human heart, and as- sociated with every principle of our jurisprudence. A con- viction, founded upon ex parts accusation, is the most terrible species of despotism that the human heart can conceive. It is not only a violation of the most obvious dictates of common law, but it is destitute of every principle by which the social com- pact is supported. In the case of Rex\. University of Cambridge, all the judges agreed, that the want of a summons was an incurable error; and on this point, the expression of Justice Fortescue are so im- pressive, that I can not avoid inserting them. The objection, says the judge, for want of notice, can never be got over.. The laws of God and man both give the party an opportunity of making his defence, if he has any. NEW YORK, AUGUST, 1847. 107 The People v. Phillips. In Geter y. Commissioners of Tobacco Inspection ( 1 Bay's Rep. 357), the courts of South Carolina say: The proceedings must be, as nearly as possible, according to the course of trials before juries at common law; as these jus- tices or commissioners are, on these occasions, put in the place both of judges and juries. The party accused must be sum- moned; there must be a specific charge against him; and he must have time and opportunity of being heard in his defence. The witnesses against him must all be on oath, agreeable to the rules of law, and reduced to writing, or at least so much as is necessary to the conviction. And in cases of conviction, there ought to be record of it, under the hands and seals of the jus- tices or commissioners, in which so much of the testimony must be set forth, as will bring the offender under the terms of the law, and evince that they have not exceeded the powers given them by the law. If this is not done in such convictions, the common law will break in upon them, and level all their pro- ceedings. 'These principles are deeply imbedded in the system of laws in our state also, and as thousands of our citizens are yearly subjected to the operation of this summary and dangerous juris- diction, it is of the highest importance that the rules which have been adopted for the purpose of restraining it, within due bounds, should be strictly and carefully preserved. Testing the record in this case by these rules, it can not foi a moment be sustained. The information merely states the offence in the words of the statute: it is not stated whether the accused pleaded to the charge; nor whether she was present when the witness was examined; nor is any part of the evidence set forth, and the record is so drawn up, that while two males and one female are named in it, it is the female who is convicted of being a va- grant and one of the males which one does not appear who is thereupon sentenced to the penitentiary for two months. The record being void, the prisoner must be discharged. 103 DECISIONS IN CRIMINAL CASES. SUPREME COURT. At Chambers. New York, March, 1847 Before Edmonds, Justice. In the matter of NICHOLAS LUCIEN METZGER. A treaty containing provisions to be executed in futuro, is in the nature of a contract, and does not become a rule for the courts until legislative action shall be had on the subject. The treaty with France of 1843, providing for the surrender of fugitives from justice, can not be executed by the President of the United States without an act of Congress, (a) No person can be surrendered under that treaty, who is merely charged with crime before a committing magistrate. He must under our law be indicted, or under the French law be mis en accusation by the chambre des mises en accusation. THE prisoner was a notary public in one of the departments of France, which he left and came to this country. After he had left his residence, it was charged against him that he was a defaulter to his clients to a large amount, for moneys of theirs which he had embezzled, which embezzlement he had at- tempted to conceal by means of forgeries. Complaint to that effect was made against him, before a French committing magistrate, who issued a warrant for his arrest. He was not, however, apprehended on the warrant, but the papers, duly authenticated, were transmitted to this country, and the French minister'to this country demanded his surrender under the treaty with France of 1843. That functionary was referred by the secretary of state to the courts or magistrates of the country, and accordingly made application to one of the police magistrates of New York for a warrant, on which Metz- ger was arrested. An examination was had before that officer, who adjudicated that the prisoner was within the treaty, and issued his warrant committing him to prison until the President of the United States should demand him. (a) In accordance with this decision, an act was passed by Congress on 12th August, 1848, entitled "an act for giving effect to certain treaty stipulations between this and foreign governments, for the apprehension and delivering up of certain offenders." NEW YORK, MARCH. 1847. 108 In the matter of Metzger. Before that demand was made, the prisoner was taken before the circuit judge of the first circuit on habeas corpus. That officer decided that the police magistrate had no jurisdiction in the matter, and the prisoner was entitled to be discharged from that commitment. The French diplomatic agent then made application to the United States district judge, before whom similar proceedings were had, which' resulted in a similar adjudication and a like warrant of commitment. (6) Application was then made to the supreme court of the United States for a writ of habeas corpus to review the action of the district judge. The application was denied on the ground that that court had no power to review the action of a district judge at chambers. Thereupon the president of the United States issued his man- date to the marshal of New York, commanding him to surrender the prisoner to the diplomatic agents of the French government. Before, however, the surrender was actually made, a writ of habeas corpus issued, directed to the marshal, returnable before Edmonds, circuit judge. The matter was twice argued before him, and under the judi- ciary act of 1847 was transferred from him, as circuit judge, to him as judge of the supreme court under the new constitution. The following is a copy of the petition under which the writ of habeas corpus was granted: To John W. Edmonds, circuit judge of the first circuit of the supreme court of judicature of the people of the state of New York: The petition of P. Barthelemy shows, that Nicholas Lucien Metzger is detained, and imprisoned and restrained in his liberty by the marshal of the district court of the United States for the southern district of the state of New York, at the jail of the city and county of New York, and that he is not committed or detained by virtue of any process issued by any court of the United States, or by any judge thereof, in any case where any (6) See 5 N Y. Legal Obttrver, 83. DECISIONS IN CRIMINAL CASES. In the matter of Metzger. such court or judge has or had exclusive jurisdiction under the laws of the United States, or in any case where any such court or judge, has or had acquired exclusive jurisdiction by the com- mencement of any suit in any court of the United States; nor is he committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal juris- diction, or by virtue of any execution issued upon such judg- ment or decree j that the cause or pretence of such detention and imprisonment, according to the best of the knowledge and belief of your petitioner, is a warrant of commitment, a copy whereof is hereto annexed, marked A, issued by his honor Samuel Betts, district judge of the district court of the United States, for the southern district of the state of New York, under pretext of the provisions of the treaty beween the United States and France, called the treaty of extradition, and dated the ninth day of November, A. D., 1843, against the said Metzger as a person charged with some one or more of the offences named in the provisions of said treaty, having escaped from the jurisdiction of the government of France, which im- prisonment, your petitioner submits, is illegal for want of juris- diction in said district judge over the person of said Metzger, or the subject matter aforesaid, wherefore your petitioner prays that a writ of habeas corpus issue, directed to said marshal, commanding him to bring the body of the said Nicholas Lucien Metzger, together with the time and cause of such imprison- ment and detention, by whatsoever name the said Metzger shall be called or charged before, to do and receive what then and there be considered concerning said Metzger. Dated the second day of March, 1847. O. Hoffman and JV. B. Blunt, for Metzger. Butler ( U. S. District Attorney'), for the United States Cutting and Tillou^ for the French government. EDMONDS, J. This case involves the question whether th& president of the United States has authority, by virtue of mere XEW YORK, MARCH. 1847. In the matter of Metzger. treaty stipulation, and without an express enactment of the national legislature, to deliver up to a foreign power, and vir- tually to banish from the country, an inhabitant of one of the sovereign states of our confederacy. The importance of the question has weighed heavily upon me during the whole time that the case has been before me. The right is claimed, and has been exercised, by that high functionary in this instance; its exercise is demanded by the French government in the name of the treaty between the two nations, and a branch of the federal judiciary has sanctioned it. Amid this imposing array against him, the prisoner, a resi- dent among us and entitled to the benefit of our laws, has thrown himself for protection upon state sovereignty and de- manded the interposition of its authority between him and the exercise of this extraordinary power. To that protection he has a right, in common with every inhabitant of our state, and it becomes my duty, as one of the state judiciary, to see that he sustains no injury in its exercise. The apprehension that out of the discharge of this duty there might spring a conflict between national and state authority, has not been without its influence on my mind, causing me to pause long and weigh well any decision which I might make. Presenting to my mind, as this case does, the picture of the whole authority of the nation, claiming and enforcing the sur- render of the individual on the one hand, and personal liberty demanding protection against the exertion of extraordinary power on the other. I have not been free from anxiety as to the conclusion at which I might arrive and the consequences which might flow from it. The question is, in a great measure, under our institutions, anomalous, arising out of that peculiar provision of our national constitution which declares that all treaties made under the authority of the United States shall be the supreme law of the land. But for this provision, and the construction claimed for it, the question might justly be regarded as already settled by authority. The British government, in February, 1843, made a treaty with France, identical in this regard with the con- 112 DECISIONS L\ CRIMINAL CASKS. In the matter of Metzger. vention between France and the United States. The British administration and the British parliament did not deem that the convention executed itself, or that it could be exected without legislative enactment. Hence the statute 6 and 7 Viet., c. 75, was passed, which recited this clause of the convention and de- clared that it was expedient that provision should be made for carrying it into effect, and then enacted that any justice of the peace, or other person, having power to commit for trial per- sons accused of crime, &c., might examine witnesses and issue his warrant to apprehend the alleged fugitive and commit him to jail until delivered, pursuant to the requisition. Under this statute the lord mayor of London, in September, 1844, issued his warrant for the arrest of an alleged fugitive from France, who, on being arrested, was brought before the Queen's Bench on habeas corpus. That court held the warrant void, and on being applied to, for the purpose of remanding the prisoner, as a person accused under the treaty, they denied that they had any power but under the statute, and if its provisions were not clearly complied with, they had no power at all in the matter (In re Besset, 1 New Sessions Cases, 337). Here, then, is a decision that, on the principles of common law, the treaty does not execute itself, and that even the highest judiciary in the nation could not act under it but in pursuance of a statute, and this exposition flows, not only from the British courts, but from the British executive and the British legisla- ture. I know of nothing except the provisions of the constitution of the United States to which I have alluded, which can exempt our courts from the binding force of the same doctrine, when they and the English courts alike draw the principles of their action and the rule and guide of their judgments from the same fountain of the common law. Hence arises the necessity, in this case, of considering the meaning and force of this constitutional provision and of inquiring how far it does ex proprio vigore, and without legis- .ative sanction, confer upon the officers of the national govern- NEW YORK, MARCH, 1347. In the matter of Metzger. raent the power of executing the various matters to which it relates. In the first place it must be observed that the provision in question does not relate to treaties alone. It is the constitution itself and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, which shall be the supreme law of the land (Const. Art. 6). If this provision has this self-acting power in regard to treaties, it has it equally in regard to the constilution at large, and from this consideration we may well appreciate the mag- litude and interest of the question involved What is the meaning of the supremacy here provided for? That the power is itself omnipotent self-acting and self- dependent alone and that the functionary clothed with it, if perchance he be the executive, is in that regard beyond the control alike of the judicial and legislative departments of the government? Such must be the result, if that provision does give, as is claimed in the argument before me, to the constitution and to treaties this self-sufficing authority. But such, as I understand it, is not the true reading of this provision. The 22d No. of the Federalist defines its purpose in language more felicitous than any which I can use: " The treaties of the United States, to have any force at all. must be considered as part of the law of the land. Their true import, as far as respects individuals must, like all other laws, be ascertained by judicial determinations. To produce uni- formity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal." * * * "If there is in each state a court of final jurisdiction, there may be as many different final determinations, on the same point, as there are courts." * * * "To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice." * * VOL. I. 15 DECISIONS IN CRIMINAL CASES. In the matter of Metzger. " The treaties of the United States under the present consti- tution are liable to the infractions of thirteen different legisla- tures and as many different courts of final jurisdiction." Hence arose the establishment of a supreme judicatory, not that it should be omnipontent and self-sufficing in its power, but that, within its sphere, it should be paramount to all other judicatories. Hence, too, the provision in question, that the constitution, the laws made in pursuance of it, and the treaties, should be the supreme law; not that they should be omnipotent and self-sufficing in their authority, but that they should be paramount over all other authority, so that if, when duly exe- cuted, they should come in conflict with any other they should be supreme and paramount. This is no novel doctrine. But as I read the history of oui country, it has prevailed from the beginning, though not now for the first time questioned. In the celebrated case of Jonathan Bobbins, Chief Justice Marshall, then a member of the House of Representatives, as- serted the same claim which is put forth for the government in this case. But he went farther and followed the doctrine out to its legitimate results, by insisting that the case was one for executive and not judicial decision, and that the judicial power can not extend to political compacts, such as the case of the delivery of a murderer under the 27th art. of Jay's treaty with Great Britain (5 Wheaton, JJpp. 16). In several instances, however, and at different periods, Con- gress has, by its action, given a different construction to this provision of the constitution. A few instances will suffice: The constitution (art. 3, 2), declares that the judicial power shall extend, among other things, to all cases affecting ambas- sadors, other public ministers and consuls, and that in those cases the Supreme Court shall have original jurisdiction. It might well be supposed, that if any power in that instrument, which is to be the supreme law of the land, could be thus self- acting, it would be the power thus explicitly conferred. Yet in the judiciary act of 1789, 13, congress provide? for the NEW YORK. MARCH. 1847. In the matter of Metzger. exercise of this jurisdiction, both for and against ambassadors and other public ministers. So, too, the constitution, art. 4, 2, provides that fugitives from justice shall on demand of the executive of the state from which they have fled, be delivered up to be removed to the state having jurisdiction of the crime. This provision also of the supreme law of the land might be supposed to execute itself, yet Congress, in 1793, passed a law upon the subject, in order to carry it into effect. The origin of this law is a striking illustration of the inter- pretation which prevailed at those early days. It grew out of a demand made by the governor of Pennsyl- vania upon the governor of Virginia for the surrender of a fugitive from justice. With that demand the executive of Virginia refused to comply, for one reason, among others, because congress had not passed any statute to execute this provision of the supreme law of the land. The opinion of the attorney general of Virginia assuming that position, and the reply of the executive of that state, sanctioning it, were com- municated to congress by President Washington in October, 1791, and out of that state of things flowed the statute which has for more than half a century governed the whole action of our citizens in that regard American State Papers, vol. 20 p. 38). If the claim now asserted is well founded now, it was so then, and if well founded, then indeed were this statute, and that also which came into existence at the same time in regard to fugitives from service, works of idle supererogation on the part of congress. So, too, the same article of the constitution provides that persons held to service or labor in one state, escaping into another, shall be delivered up on claim of the party to whom such service or labor may be due. This provision, too, of the supreme law, so far from execut- ing itself by virtue of its supremacy, is helped out and carried into effect by the same law of congress, and sprung from the same necessity for legislative action which was then conceded. DECISIONS IN CRIMINAL CASES. In the matter of Metzger. So, too, the article of the constitution (art. 2, 3), which declares it to be the duty of the president to take care that the laws be faithfully executed, is helped out and carried into effect by the act of 1795, which gives him authority to call out militia to suppress insurrection in any of the states. These are all provisions of the constitution the supreme law of the land, which congress has at an early day deemed it necessary to legislate upon, for the purpose of carrying them into effect. And it may well be asked, why this necessity, if this supreme law was, by virtue of its supremacy, self sufficing, and did exe- cute itself without legislative interposition ? Such also has been the action of congress and the interpreta- tion of the national government in relation to our treaties which are also the supreme law. In 1788, a convention was entered into between France and the United States, providing for the arrest and surrender of deserting seamen, in which it is provided that for that purpose the consuls shall address themselves to the courts, judges and officers competent, and demand said deserters in writing, &c. And all aid and assistance to the said consuls shall be given for the search, arrest and seizure of said deserters, who shall be kept ?nd detained in the prisons of the country, &c. In 1824 a similar treaty was made with the republic of Columbia, and from that time down to 1845, various treaties with nations in Europe, Asia and America have been made, containing the same provision as to deserting seamen. Specific as is this provision in these various treaties point- ing out, as it does, even the manner in which the power shall *be exercised, Congress and our government have been so far from regarding it as capable of executing itself, that in 1829 a law was passed in language scarcely more particular than the various treaties, providing for carrying them into effect. This act is understood to owe its origin to the fact that so distin- guished a jurist as Judge Story refused to execute one of the treaties, until congress had legislated upon the subject. A marked instance of a similar character is of more recent occur- NEW YORK, MARCH, 1847. In the matter of Metzger. rence. We have a treaty with Spain providing against pri- vateering, and declaring that if any person of either nation shall take a commission as privateer or letters of marque, he shall be punished as a pirate. Yet congress and our govern- ment did not regard this treaty, though the supreme law of the land, and distinctly defining the offence as piracy, and thus bringing it clearly within the jurisdiction of the federal courts, as sufficient to execute itself, but on the 3d of March, 1847, passed a law in the following words : AN ACT to provide for the punishment of piracy in certain cases. Be it enacted by the Senate and House of Representatives of the United States of Jlmerica in Congress assembled, that any subject or citizen of any foreign state, who shall be found and taken on the sea, making war upon the United States, or cruis- ing against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the state of which such person is a citizen or subject, when by such treaty such acts of such persons are declared to be piracy, may be arraigned, tried, convicted and punished before any circuit court of the United States, for the district into which such person may be brought, or shall be found, in the same manner as other persons charged with piracy may be arraigned, tried, convicted and punished in said court. Approved March 3, 1847. So far as the Supreme Court of the United States have acted on this question, they seem to have adopted the same principle. . In Foster v. Nelson (2 Peters, 314), they declare that a treaty is in its nature a contract between two nations, not a legisla- tive act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infraterrito- rial, but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the Je- U5 DECISIONS IN CRIMINAL CASES. In the matter of Metzger. gislature whenever it operates of itself without the aid of any legislative provisions. But when the terms of the stipulation import a contract, w r hen either of the parties engages to perform a particular act, the treaty addresses itself to the political, not to the judicial department, and the legislature must execute the contract before it can become a rule of court. And speaking of the particular treaty then under consideration, they add, "This seems to be the language of contract, and if it is, the ratifica- tion and confirmation which are promised, must be the act of the legislature. Until such act shall be passed, the court is not at liberty to disregard the existing laws on the subject." In the U. S. v. Jlrredondo (6 Peters, 734), that Court affirm the same doctrine and again speak of a treaty which is a contract between two nations, the stipulations of which must be executed by an act of congress before it can become a rule for their decision. These two cases involved the treaty with Spain of 1819, and they grew out of the words used in it, that certain grants, " shall be ratified and confirmed." The court held that if these words imported that those titles " are hereby ratified and con- firmed," then the treaty by virtue of its being the supreme law, operated per se to ratify and confirm, but if they imported a contract, that they should at some future period be ratified and confirmed, then the treaty did not execute itself, but it must be executed by an act of congress before it could become a rule for the decision of the courts. In other words, where the treaty is a contract to be performed infuturo, the English rule, as laid down by Lord Denman in 1 New Sess. Ca. is applicable, the courts have not any power but under the statute, and if its provisions are not clearly complied with, they have no power at all in the matter. The Supreme Court of the United States a third time, in reference to those words, reiterate the doctrine. In the U. S. v. Pescheman (7 Peters, 87), Ch. J. Marshall says, that although the words " shall be ratified and confirmed" are pro- perly words of contract stipulating for some future legislative NEW YORK, MARCH, 184/. In the matter of Metzger. act, they are not necessarily so. They may import that they shall be ratified and confirmed by force of the instrument itself. In the latter signification of the terms, in a country where the treaty is the supreme law of the land, it may perchance be well said that the treaty executes itself. But this provision in the convention with France under which this prisoner is held, can in no such sense be held to execute itself. It never was intended to act in presenti. It was a contract between the two nations to be executed only in faturo, and in the language of principle, of the action of congress and the decisions of the federal judiciary, it stipulated for future legislation, without which, as the Queen's Bench declares, the courts have no power at all in the matter. In the debate in congress on the Jonathan Robbins matter, it was stated that President Washington had entertained doubts whether the extradition clause in Jay's treaty could be executed without legislative action. And in 20 Sergt. and Rawle, 135, the Supreme Court of Pennsylvania express the same doubt, and declare that the opinion of the executive hitherto had been that it had no power to act. In the case of Prigg v. Commonwealth of Penn. ( 16 Peters, 624), the provision of the constitution as to the surrender of fugitives from service was under consideration. Story, J., in delivering the opinion of the court, speaking of that clause which enacts that the fugitive shall be delivered up on claim of the party to whom such service may be due, says, " We think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some farther remedial redress than that which might be administered at the hands of the owner himself. They require the aid of legislation to protect the right, to enforce the delivery and to secure the subsequent possession of the slave." And the court in that case, in adjudicating upon language very similar to that contained in this treaty, declare that the constitution does execute itself so far as to establish the abso- lute right of the owner to recapture his slave, but that to enforce the right the aid of legislation is required. And DECISIONS IX CRIMINAL CASES. In the matter of Metzger. by parity of reasoning while we may regard this treaty as exe- cuting itself so far as to establish the right of the French government to the surrender, legislation is required to enforce the delivery and secure the subsequent possession of the fugi- tive. The want of this legislative sanction on which so much stress is laid, is not mere matter of form. It is a substantial right and involves too deeply the liberty of the citizen to be dispensed with. Treaties by our government are made by the executive without the sanction of the legislature. The extradition pro- vided for by this convention with France is not confined to the subjects of France. An American citizen may be demanded by the French government, and our executive may, on such demand, banish a native of our soil nay, if one, then hun- dreds. And it becomes us well to see that power so great should be properly guarded There is another consideration flowing from this view of the case. Neither the constitution, the laws nor the treaty, which together constitute the supreme law as to this case, provide for the interposition of the judiciary in the exercise of this power On the other hand the treaty provides that on the part of the United States the surrender shall be made only by the authority of the executive thereof. And although the executive has, in this case, with great propriety, invoked the aid of the judici- ary, yet he has done it in such a manner that the decision of the subordinate tribunal appealed to can not be reviewed in the court of dernier resort and therefore becomes final. And if the right claimed in this case for the executive to act in the matter without legislative sanction, be once firmly established, I can not discover any provision in the supreme law which renders it necessary for him to seek the aid of the judiciary. It may be convenient for the executive to resort to the machinery of the judiciary or the incumbent for the time being may entertain such a sense of duty as to induce such a resort; but the right once established as now claimed, it must necessarily become a matter of discretion with the executive, NEW YORK, MARCH, 1847. In the matter of Metzger. whether he will require the assent of either the legislative or judicial departments to his surrendering to a foreign govern- ment any person native to the soil, or immigrant, whom it may please to demand as a fugitive from justice. In the absence of any statutory provision, the executive can resort for the rule of its action only to the treaty. The treaty with France nowhere provides for a resort to the judiciary. Persons accused of crime shall be delivered up, provided that this shall be done only when the fact of the commission of the crime shall be so established, as that the laws of the country would justify their apprehension and commitment for trial How established, and before what tribunal? It is the execu- tive alone who can surrender, and if the treaty alone is to be the guide of his action, then when he becomes satisfied that the commission of the alleged crime is established, whether that be with or without the aid of the judiciary, he can surrender. Such is the claim presented before me, and, if established, then is the liberty of the citizen, at least as respects extradi- tion, subject to the executive discretion to an extent that is calculated to alarm even a country where freedom in the aggregate is so common that its invasion in detail is too often and too easily disregarded. To meet an objection so formidable in its character, it is urged that the aid of the judiciary must of necessity be invoked in the execution of the treaty. I have alrea'dy had occasion to decide in this case, that the state magistrates have no original authority in the matter. Not having seen any reason for changing my opinion, and that opinion having been acquiesced in by all parties concerned in this matter, it must be regarded as pro tanto the law of this case. The remaining question then is, whether any of the federal magistrates have the authority? The question may well be put still broader, and comprehend not merely the inquiry whether the federal judiciary may entertain jurisdiction, but also whether it ought not to be the duty of the government, and the right of the prisoner, to make the appeal to them. I will not stop, however, here to consider that question, but pass VOL. I. 16 122 DECISIONS IN CRIMINAL CASES. In the matter of Metzger. at once to the simple topic of the authority of the fe^al mag- istrates, voluntarily or otherwise, to act in the matter. And this topic need not be discussed any further than to the extent and as to the manner in which the authority has been exercised in this case. It must then be observed in the outset, that the action on which the prisoner was committed, was not the action of any court, but of a district judge as such. The arrest, examination, and commitment were none of them the act of the district court, but of the judge as such at chambers, or as committing magistrate. It is important to keep this fact in mind, as it is one of the main grounds on which the United States Supreme Court refused to the prisoner his application for the writ of habeas corpus, and it brings us to the real question in this case, whether a district judge, not sitting in court, has the power to aid in carrying a treaty into effect. Marshall, in his speech in the Robbins case, repeatedly denied the authority of the judiciary in every form. That was the second proposition he maintained (5 Wheat. Jipp. 16): which was that the case was a case of executive and not judi- cial decision. He proceeded to refute the position of Mr. Liv- ingston, that the judicial power of the United States expressly included that under consideration. He maintained (page 77), that the judicial power can not extend to political compacts, as the establishment of a boundary line, &c., or the case of the delivery of a murderer, under the 27th art. of ouf present treaty with Britain, and he proceeded with this language : " The gentleman from New-York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government? Permit me, said Mr. Marshall, but not triumphantly, to retort the question. By what authority can any court render such a judgment? What power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal? Surely our courts possess no such power. Yet they must possess it, if this arti- cle of the treaty is to be executed by the courts. And he concluded with the remark, " The case was in its nature a NEW YORK, MARCH, 1847. J23 In the matter of Metzger. national demand made upon the nation. The parties were the two nations. They can not come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance." Again (on page 28), he says: It is then demonstrated that according to the practice and according to the principles of the American government, the question whether the nation has or has not bound itself to deliver up an individual charged with having committed murder or forgery within the jurisdiction of Britain, is a question the power to decide which rests alone with the executive department. The inference from that debate and its results, is as fair, per- haps, as any other, that the majority of congress who went with him on that occasion, and in the language of Judge Story, " put the question at rest forever," intended to sustain that as well as other principles which he then advanced. Mr. Marshall maintained that, a treaty providing for the surrender of fugitives being made, the executive was competent of itself, without judicial or legislative aid, to execute it. How far he is competent without legislative aid, has already been shown from authority, upon principle and by the action of the government for fifty years. And the United States Supreme Court, in the case of Holmes v. Jennison ( 14 Peters), and more recently on the application of Metzger for a habeas corpus, have recognized the necessity of judicial action. But then the questions recur, whence do the judiciary derive their authority to act in the matter? Who is to set them in mo- tion, and what is to regulate and control the form and manner of their going? And how are the rights of the accused to be protected? These are important questions under our state constitution, which declares that no man shall be deprived of any of the rights or privileges secured to him, unless by the law of the land or the judgment of his peers. The learned judge, upon whose warrant the prisoner was committed, evidently has strong doubts upon this subject, though he thinks them capable of a satisfactory solution. But the. so- 124 DECISIONS IN CK iOXAL CASES. In the matter of Metzger. lution which he discovers is applicable only to courts of the United States, not to the judges acting out of court, and he seems to have overlooked the distinction which the Supreme Court have since rendered so important, as on that ground to deny to the prisoner the privilege of having his case reviewed in the federal courts. Under that decision, I am not at liberty to disregard so grave a distinction, and am compelled to inquire, if, perchance, the courts have the power, does it follow that the judges out of court possess it also? If so, whence does it now? Not from the constitution, for that is silent on the subject -not from the treaty, for that is equally silent not from any express statutory enactment, for the want of that has been throughout the whole case the great ground of complaint and not from necessary implication from any power otherwise granted. It seems to me, then, that it can trace its origin to no other source than the necessity or convenience of the case. When we are brought to this point, then, the whole course of reasoning on which was founded my decision, that the police magistrate acted without authority, becomes equally applicable to the dis- trict judge. In the absence of any provision of the constitution, of the treaty or of the statute, conferring the power upon that officer, I am compelled, by the view which I then took of the case, and which was acquiesced in on all hands, to arrive at the same conclusion as to his power. It is with unfeigned diffidence, and after long consideration, that 1 have imbibed a view of this case, so different from that entertained by the learned judge whose decision I am compelled, from my position, thus to review. His long experience and the high respect which I entertain for his judicial character, might have inclined me to yield my own conviction to his, if his own opinion of the power of the United States court had been clear and decided, or if he had at all considered the power of a judge out of court; a distinction, I repeat, which has been rendered important by the subsequent decision of the Supreme Court of the United States. There is another view of the case which has had its weight NEW YORK, MARCH, 1847. 135 In the matter of Metzgrer. with me, and that is the mode of reviewing the decision of one of the federal judiciary, which is thus brought about. Such review is not ordinarily through the state tribunals, yet I see no way in which it can be avoided in this case. I was bound by the law of the sovereignty whose minister I am, under severe penalties, to allow the writ of habeas corpus. It was to the prisoner, under our laws, a writ of right. The United States Supreme court having denied to him the privilege of carrying up the decision of the district judge directly for their review, he had a right to resort to the state tribunals as the conduit through which he can more indirectly pass to that ultimate tri- bunal, whose peculiar province it is to pass upon all questions arising under treaties made by the authority of the United States. The writ being returned before me, it was my duty to inquire into the cause of his detention, and that not merely as it ap- peared on the warrant by which he was held, but as it might appear from any fact alleged before me, to show that his im- prisonment or detention was unlawful, or that he was entitled to his discharge (2 Revised Stat. 569, 50). I have, therefore, of necessity, gone behind the mandate of the president and inquired into the legality of the foundation on which it rested. And finding it to be wanting in the legal aliment necessary to support it, I have no alternative but to declare that the prisoner can not lawfully be held under it. It will be observed, that I have in this opinion omitted to discuss many of the points raised before me on the several ar- guments, which have been had in the case. This omission has not arisen from any want on my part of attention to and careful consideration of them, but solely from the belief that their con- sideration was not necessary to the determination of the case, on which I was to render my judgment. There is, however, one topic, on which I differ in opinion with the learned district judge, which strikes me with so much force, that I can not forbear dwelling a moment upon it. The Spanish treaty, which has been already alluded to, con- tained a stipulation as to the ratification and confirmation of 126 DECISIONS IN CRIMINAL CASES. In the matter of Metzger. certain grants of land therein mentioned. The English side of the treaty contained in that regard, the words " shall be ratified and confirmed." The United States Supreme Court, in con- struing those words in Foster v. Neilson (2 Peters, 253), held that they imported a contract to be performed at some future time, and therefore, as has been already mentioned, required legislation before that part of the treaty could become a rule for the courts. That treaty again came before the court, in United States v. Percheman (7 Pet. 87), when it was said that the treaty was drawn up in the Spanish as well as the English language. Both were originals and were unquestionably intended by the parties to be identical. The Spanish had been translated, and they then understood that the article (of the treaty) as ex- pressed in that language, was that the grants " shall remain ratified and confirmed," &c. The court then holds, that if the English and Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail. No violence is done to the language of the treaty by a construction which conforms the English and Spanish to each other Although the words " shall be ratified and confirmed," are properly words of contract, stipulating for some future legislative act, they are not necessarily so. They import that they shall be ratified and confirmed by force of the instrument itself. When we observe that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this sense, we think the construction proper if not unavoidable. To apply that principle to the case in hand. The convention with France, under consideration, is drawn up in the French as well as the English language. In the latter language, when the party to be surrendered is spoken of, he is twice spoken of as the person " charged" and twice as the per son " accused." In the French counterpart, the expression is uniformly accuse: " les individus accuses" " les individus qui accuses" " les individus qui seront accuses" " L'individu ainsi accuse." XEVV YORK, MARCH, 1847. 137 In the matter of Metzger. It appears from the opinion of the learned district judge, that it was claimed before him that this French phrase was equiva- lent to the term in our law indicted or arraigned, and that it was proved before him that such is the understanding of the term by the bar and the courts in France: inculpe andprevenue, designate persons against whom criminal charges or proceed- ings are instituted up to the period when the charges are acted upon by the Chambre des mises en accusation, and an accusation is decreed by it, and then and not before they become accuses (Code tfinst. Crim. Arts. 127, 128, 241. 265). The same question, then, arises here that arose under the Spanish treaty, which language is to prevail in the construction? If the English, then a party, merely " charged" or " accused" before the committing magistrate may be demanded. The prisoner is in that precise situation. He has been charged or accused before a magistrate authorized to arrest, and nothing more. But if the French phrase is to prevail, then the prisoner does not come within the treaty, because he has never been indicted or arraigned, never been mis en accusation. There is a great difference in the French practice, as well as in ours, between a person merely charged with a crime and one who has been indicted; between inculpe and accusee. There is much more solemnity in the latter than in the former, more probability of guilt; a farther progress toward conviction has been attained, and the questions both as to the guilt of the pri- soner and the nature of the offence, no longer rest merely upon the untried and uninvestigated complaint of a party, but have been investigated by the proper tribunal, the grand jury or the Chambre des mises en accusation, and probable cause for the accusation been duly found, and the nature of the offence charged duly defined. This is an important consideration, for it is not every offence with which a person may be charged, for which he can be sur- rendered. It is only a few specified cases, and it often becomes an extremely difficult question for courts, even after the fact is established, to ascertain the nature of the offence growing out of it 128 DECISIONS IN CRIMINAL CASES. In the matter of Metzger. In this case, it is very difficult, if not quite impracticable, for an American lawyer to determine whether the act charged upon the prisoner was forgery under the French law. If the matter had passed through the Chambre des mises en accusdtion, and the prisoner had been mis en accusation, had become accuse, it would have been judicially determined that if the prisoner had done the acts imputed to him, it would constitute the crime of forgery, but now the complexion of the act, whether forgery or not, rests, in a great measure, if not solely, on the charge of the complainant. So, too, under our law, it is often difficult to define the boundary between breach of trust and constructive larceny; between mere fraud and the felony of obtaining money under false pretences. And when we come to the exercise of so important a duty as the surrender of a native or naturalized citizen to the demand of a foreign nation, to be tried in a fo- reign judicatory, shall it depend on the complexion which the anger or malice of the complainant may give to the case, or shall it obtain its hue from the investigation which the grand jury or the Chambre de Conseil may subject it to? These inquiries are too important to have escaped the at- tention of the contracting parties, and hence we find a phrase, having a definite meaning in the French code, entirely incon sistent with the idea of allowing so important a consideration as extradition to rest upon the color which the complainant may give the matter, purposely, repeatedly and carefully used, in a manner which, under our law, gives it controlling influence over both parties of the treaty. So that a person demanded of the French government by ours, would not be surrendered, unless he had been indicted or mis en accusation. At all events, the French government might so act with great propriety, and point to the language it had carefully used in the convention as a perfect answer to the demand. Entire reciprocity was evidently aimed at by both parties, and I can not conceive a reason why the language of the Su- preme Court, in regard to the Spanish treaty, does not apply here with equal force, and why I am not bound to hold, as the Supreme Court then held, that if the English and French parts NEW YORK, JULY, 1847. 129 In the matter of Da Costa. can without a violence be made to agree, that construction which establishes this conformity ought to prevail, and that no violence will be done to the language of the treaty by a con- struction which conforms the English and French to each other. If this construction is to prevail, then, it is inevitable thai the prisoner is not within the treaty, and can not be demanded by the French government, nor surrendered by the American, but is entitled to the protection of the laws of this state against the attempt to surrender him. The conclusion, then, at which I have arrived is, that the prisoner is not a party accused mis en accusation within the meaning of the treaty, and that the president can not execute the power of extradition without both legislative and judicial sanction, and I acknowledge that the conclusion commends it- self to my favor, because of the protection it, is calculated to afford to personal liberty against executive authority. The prisoner must therefore be discharged. SUPREME COURT. At Chambers. New York July, 1847. Be- fore Edwards, Justice In the matter of JOSE DA COSTA and JOSE DA ROCHA. The adjudication of an officer having power to issue and decide upon a writ of habeas corpus, may be set up as res adjudicate upon any subsequent writ of habeas corpus, and is conclusive upon the same parties, when the subject matter is the same; and there are no new facts. The parties are the same, where the writ is issued on behalf of the same person, against the same respondent, although the relators are different. The material facts alleged in the return, which are not denied by the party brought up must be taken to be true. The circumstances under which this application was made, sufficiently appear in the opinion of the court. John Jay and J. L. White for the slaves. VOL, I. 17 [30 DECISIONS. IN CRIMINAL CASES. In the matter of Da Costa. 1. The writ of habeas corpus is a substantial right, and not the mere shadow of a right. It is a writ ex debito justice, in- tended to afford an easy, prompt and efficient remedy for all unlawful imprisonment a writ to which oil persons are en- titled in the most expeditious and ample manner, and by which personal liberty is not left to rest for its security upon general and abstract declaration of right nor allowed to depend upon the arbitrary discretion of any one man. It is a writ, for the denial of which judges are made person- ally responsible, and of the benefits of which no man can right- fully be deprived (2 Kent's. Com. p. 26, et seq. on personal lib- erty and security; 1 Stephens on the Eng. Constitution, p. 454, title Habeas Corpus J)ct; 2 JV*. F. Rev. Stat. 563, et seq. and especially 44 [ 42] , stating the except ed cases into which the court can not inquire}. In Great Britain, from which we received the habeas corpus act without alteration, it is well established that the doctrine of res judicata has no application; but that a party restrained of his liberty has a right to the opinion not only of every court, but of every judge, as to the legality of the imprisonment, and that each court and judge, when applied to, are bound to consider and decide the case upon their own examination, with- out being concluded by previous decisions in the same matter (Ex parte Partington in the Court of Exchequer ( 1845)/ 13 Meeson fy Welsby, 679, per Parfce. B. and Pollock, C. B. See the same case reported 2 Dowling 4" Lowndes' Practice Reports, 650, and 9 London Jurist, 93). 2. It has never been determined in our courts that the doc- trine of res judicata applies to decisions in writs of habeas cor- pus involving the liberty of the citizen. Such a principle, once established, would destroy the essential value of the writ, as affording " a free, easy, cheap, expeditious and ample " remedy against infringements of persona] liberty, and would tend to place the liberty of the citizen at the disposal of a single judge; which is the very thing the writ is intended to prevent. The case of the People v. Mercein (25 Wend. R. 64), which has been relied upon to maintaip such a doctripe, involved no NEW YORK. JULY, 1847. In the matter of Da Costa. question of personal liberty, but simply the question whether the custody of an infant child, under a certain state of facts, should be given to the father or to the mother. Various writs having been issued, and the matter having repeatedly occupied the at- tention of the judges, the court for the correction of errors, after a full examination of the testimony, declared, by special resolu- tion, that thai case was resjudicata (see remarks of Cowen, J., People v. Mercein, 3 Hill, 440), but their decision did not ex- tend to any case involving personal liberty: and no general language used by individual judges, in their opinion, can suffice to abridge or lessen the constitutional authority of this writ of right A decision tending by an enlarged construction to over- throw or impair a fundamental right, must receive such a construction as shall best preserve the liberties of the people and the decision in this case on the point of res judicata, declared as it was by a special resolution, only recognizes the right of a judge to apply the doctrine of res judicata to cases of habeas corpus involving the custody of an infant child. Had it extended to all other cases of habeas corpus, such decision would have been utterly inoperative to abridge the right of a person restrained of his liberty to the full benefit of the writ, according to its ancient character which includes his right to the opinion of every court and of every judge, upon the legality of his imprisonment for the reason that the right to this writ is secured, not only by the constitution of this state, but by the constitution of the United States, and can not, therefore, be taken away, crippled, or abridged in any degree by the legislation or the adjudications of individual states. 3. In case the doctrine of res judicata could apply in its full force to proceedings on habeas corpus, involving the liberty of persons, which is utterly denied, this matter, upon the facts shown by the record, is clearly not within the rule, but must be held to be res Integra and res intacta, as wanting in all the essential requisites to constitute it an adjudicated case. Upon the essentials of resjudicata, &c., see 2 Kent's Com. 12 Co. Lit. 352, b. 303 a. Bronson, J., in People v. Mercein, 25 Wend. 82. 132 DECISIONS IN CRIMINAL CASES. In the matter of Da Costa. Same case, 3 Hill, 420; 3 Cowen and Hill's Phil, on Evidence^ p. 824, note 586, and authorities there cited. 1. The opinion of Judge Daly annexed to the return of the respondent, is unaccompanied by any judgment, order or decree, and does not therefore constitute a record that can be pleaded by way of estoppel. Further evidence on the point, whether or not there was an order is inadmissible. We can look only at the return, and that shows the conclusions of Judge Daly's mind, but not his final action as a judge. We have the reasons for the -act, but the act itself has never been performed. Until the act is performed it can not be on record, and until the record is complete, it can not be an estoppel. 2. The decision of Judge Daly, if his opinion be regarded as such, was not a solemn decision of a court of justice, or of a judge in the exercise of his rightful jurisdiction, for the reason that a judge of the Common Pleas, under the new constitution, has no authority to issue a writ of habeas corpus and it was in a proceeding coram non judice, for the additional reason that the writ had been formally dismissed by the attorney of record, by whom the same had been issued, the said attorney being clothed also with full authority from the negroes_, before any order was made or decision pronounced, or opinion given, and there was, therefore, no proceeding before the judge, nor any conflicting claims to require, or justify his decision of the questions raised by the return. Upon the right of a plaintiff to discontinue his plaint at his own pleasure, and suffer a nonsuit, see 3 Blackstone's Com. 376, 7; 1 BurriWs Prac. 241; People v. Mayor's Court of Albany, ] Wend. 36; Wooster v. Burr, 2 Wend. 295. 3. The proceeding before Judge Daly was not between the same parties or privies but a matter inter alios acta be- tween the relator, John Inverness, and the captain with which the Africans had nothing to do. It was a proceeding instituted without their privity or consent, and by which they are in no way bound. The relator was to them a stranger, the counsel unknown and unauthorized: ignon nt of the language, they had no understanding of the matter. NEW YORK, JULY, 1847. In the matter of Da Costa. 4. A decision is not res juaicata, unless the parlies to be affected by it have had an opportunity of being fairly heard, and the decision is made upon due deliberation by the judge These Africans in the former proceeding, were denied a hear- ing. The order of the court was based upon an admission on the record made without their authority, knowledge or assent and the truth of which they positively deny. Upon the point that records are only prima facie, evidence, and may be disproved, see Bradshaw v. Heath, 13 Wend. 407; Language of Hosmer, C. J., quoted in same case; Idem. 415, 416, and Shumway v. Stillman, 6 Wend. 447; 2 Rev. Stat. 563, et. seq. as to the rights of the party to show the facts relative to his imprisonment. 5. The grounds of the decision must be the same actually and necessarily, so that the evidence in the one would support the decision in the other. In this case, the former decision was based on the admission apon the record, that the Africans were seamen; the present record shows they are not, and can not be, seamen, in the meaning of our law, and it further shows a new imprisonment, manacling, and restraint differing from any that appeared in the first proceeding, and which, of itself, admitting them to have been seamen, was a breach of the contract assumed to exist between them and the captain and has rendered that compact void, and determined the relationship in which the opinion of Judge Daly declared that they stood. 6. This writ should not be dismissed on the ground that the case is res judicata, even did it possess the essentials which it wants, for the reason that it appears by the opinion of Judge Daly, that the Africans were remanded as seamen, although admitted by the captain to be slaves, and it being an estab- lished principle that no slave can either make or assent to a contract, and it being the law of this state that all slaves brought within its borders are free, and that servitude under any possible form, pretence, or circumstances, shall not be recognized by our courts, save in the single case of fugitives held to service in the southern states, it would be a violation 13 i DECISIONS IN CRIMINAL CASES. In the matter of Da Costa. of constitutional right, a denial of justice, and an outrage upon personal freedom, were a judge, when appealed to for protec- tion upon habeas corpus, to dismiss that writ upon the strength of a decision shown to be erroneous, and remand these Africans to an imprisonment known to be unlawful, to a condition of servitude which the law abhors, and has peremptorily forbid- den, and to the power of a master who has threatened them with violence, the instant he escapes from the jurisdiction of a free state. Purroy, for ihe respondent. EDWARDS, J. A writ of habeas corpus was issued by his honor, Judge Edmonds, on the 17th day of July last, directed to Clemente Jose Da Costa, master of the Brazilian bark Lew Branca, commanding him to have the bodies of Jose da Costa and Jose da Rocha, by him imprisoned and detained, as was alleged, together with the cause of such imprisonment and detention, before him, the said judge, at a time and place therein specified. The respondent appeared before Judge Ed- monds, and made his return to the said writ, under oath; to which the said da Costa and da Rocha put in an answer, also under oath. At this stage of the proceedings, by the consent of the counsel for all the parties, the writ was amended in such a manner as to be returnable before me, and, by a similar con- sent, I allowed the writ nunc pro tune. The return of the respondent admits the detention of da Costa and da Rocha, and alleges that before the issuing and service of the said habeas corpus, to wit: on the 10th day of July last, a writ of habeas corpus was allowed and issued, by the Hon. Charles P. Daly, one of the associate judges of the court of common pleas, in and for the city and county of New- York, and of the degree of counsellor of the supreme court, directed to the said respondent, with the object and for the purpose of producing, before the said judge, the persons named in the said first mentioned writ, for the purpose of inquiring into the rouse of their .detention .or imprisonment by the said NEW YORK, JULY, 1847. In the matter of Da Costa. respondent. That, in obedience to the said writ issued by the said Judge Daly, the respondent produced before the said judge, the persons of the two negro men called Jose da Costa and Jose da Rocha. That upon said writ so issued by said Judge Daly, and upon the return thereto, proceedings were duly had before said judge, who after mature deliberation, and after hearing the allegations and arguments of counsel on both sides, decided and adjudged, on or about the 16th day of July last, that the said Jose da Costa and Jose da Rocha were legally under the restraint of the said respondent, and that they should be remanded to his custody; which said decision and judgment of said Judge Daly, it is alleged in the said return, are still in force, unreversed, not set aside, nor made void. The return further states, that in pursuance of said decision and adjudication, the persons of said da Costa and da Rocha were committed to the custody of the respondent. The return also sets forth other matters, to which it is not necessary, in this place, to allude. The answer of da Costa and da Rocha, does not deny the substance of any of the allegations above cited from the return of the respondent. Upon the said return and answer, the respondent contends that there has been an adjudication of the matter by Judge Daly, and that such adjudication is binding upon me, and pre- cludes any investigation into the facts of the case, unless new matters are shown, which have arisen since the adjudication of Judge Daly, and which renders such investigation proper. Before the enactment of the Revised Statutes, the law seems to have been settled, that the return of the respondent was con- clusive, and that none of the facts' contained in it could be controverted. (3 Hill, 658, note 30.) By the revised statutes, the party brought up may deny any of the material facts set forth in the return, or allege any fact to show either that the imprisonment or detention is unlawful, or that he is entitled to bis discharge. (2 R. S. 471, p. 50.) If, then, any of the material facts set forth n the return, are 136 DECISIONS IN CRIMINAL CASES. In the matter of Da Costa. not denied by the party brought up, the return, pro tanto, lias the same effect as before the revised statutes, and those facts must be taken to be true. (3 Hill, 658, note 28.) Upon this construction of the law, I am bound to assume that the facts set forth in the return, and not denied in the answer, are true, and that da Costa and da Rocha have heretofore been brought before Judge Daly, upon a writ of habeas corpus, and that, after an investigation into the causes of their detention by the respondent, Judge Daly adjudged that they were legally under the restraint of the respondent, and that they should be awarded to his custody; and that said judgment now remains in full force. It thus appears that there has been an adjudication, upon a writ of habeas corpus: that da Costa and da Rocha were at the time of the said adjudication, under the legal restraint of the respondent. The next question is, does the principle of res adjudicata apply to this case, and am I precluded by the above mentioned adjudication from any further inquiry into the subject ? In the case of Mercein v. The People ex ret. Barry, (25 Wend. 64) it was decided by the court of errors of this state, that the princi- ple of res adjudicata was applicable to a proceeding under habeas corpus. Two opinions only were delivered; one by the chancellor and the other by Senator Paige. The question under review had been decided by Judge Inglis, then a judge of the court of common pleas, upon a writ of habeas corpus issued by him. The chancellor, in delivering his opinion, said that " he concurred in the decision of Judge Inglis, that the principle of res adjudicata was applicable to a proceeding upon habeas corpus.; and that it could make no difference in the application of the principle, whether the first writ was returna- ble before a court of record, or a judge or commissioner out of court, for, in neither case, ought the party suing out the writ, to be permitted to proceed ad infinitum before the same court or officer, or before another court or officer, having concurrent jurisdiction, to review the former decision, while the facts NEW YORK, JULY, 1847. In the matter of Da Costa. remain the same; but if dissatisfied with the first decision, should appeal to a higher tribunal. Senator Paige says, that " if a final adjudication upon a habeas corpus is not to be deemed res adjudicata, the consequen- ces will be lamentable. This favored writ will become an engine of oppression, instead of a writ of liberty." He further says, " I think that the following rule will be found sustained by the cases, viz. : Whenever a final adjudication of an infe- rior court of record, or of an inferior court not of record, or of persons invested with power to decide on the property and rights of the citizens, is examinable by the supreme court, upon a writ of error, on a certiorari, in every such case, such final adjudication may be pleaded as res adjudicata, and is conclu- sive upon the parties in all future controversies relating to the same matter." And, finally, a resolution was adopted by the court. " That in the opinion of the court, the decision of Judge Inglis upon the question of res adjudicata was correct, and in conformity to the law." This decision fully ancUclearly estab- lishes the rule that the principle of res adjudicata is applicable to proceedings upon habeas corpus. The only question, then, that remains upon this branch of the case is, whether the same subject matter between the same parties, has been adjudged by an officer having power to issue and decide upon a writ of habeas corpus. First. Is the subject matter the same ? The subject matter under the first writ, was the imprisonment and detention of da Costa and da Rocha, and the adjudication of the judge was, that they were " legally under the restraint of the respondent, and should be remanded to his custody." The subject matter of the present writ, is the detention of the same persons by the respondent; and I am called upon to decide what was decided by Judge Daly, viz: Whether they are legally under the restraint of the respondent ? Second. Are the parties the same? The proceedings, in both cases, have been in behalf of the VOL. I. 18 138 DECISIONS IN CRIMINAL C^SES. In the matter of Da Costa. same persons, against the same respondent. The fact that the relators are different, does not alter the case. Third. Had Judge Daly the power to issue the writ and to decide the questions arising under it ? By the law, as it stood under the old constitution, it is not questioned that he had the power. By the new law, it is enacted that the "judges of the court of common pleas for the city and county of New-York, shall have and possess the same powers, and perform the same duties as the first judge and assistant judges of the said court of common pleas now have and possess and perform." (Laws of 1847, p. 281, s. 7). There are several matters alleged in the answer of da Costa and da Rocha, for the purpose of showing that there was irre- gularity in the proceedings before Judge Daly. The answer to all these allegations is, that I am bound by the adjudication, and can not look behind it. If there ; has been irregularity, I have no power to decide upon that question, in this collateral proceeding. ^The remedy must be in a court sitting as a court of review. But it is contended that new facts have arisen in this case since the decision of Judge Daly. The answer of da Costa and da Rocha, sets forth that since the said adjudication, and on the 17th July last, they were hand-cuffed and put in a store- room, in the forward cabin of the vessel, and there confined, and that the respondent also threatened them with violence when he " got them at sea." These are not new facts of such a character as to change the relations of the parties. If there has been an abuse of the right which it has been adjudged that the respondent had to the custody of the persons held in restraint by him, the remedy is not by habeas corpus; much less so as to any threatened violence. With these views, I am of opinion that the question pre- sented to me under the present writ of habeas corpus, is res adjudicata, and that I am precluded from going into any investigations of the facts in the case; and that no new facts are set forth in the proceedings which authorize any interfer- NEW YORK, JULY, J847. In the matter of Da Costa. ence by me. The writ must, therefore, be dismissed, and Jose da Costa and Jose da Rocha remanded to the custody of the respondent. NOTE. The following is the decision of Judge DALY, referred to in the preceding case : DALY, J. This is an application upon a writ of habeas corpus to discharge Jose da Costa, Jose da Rocha, and Maria da Costa, alleged by the relator, John Inverness, to be restrained of their liberty by Clemento Jose da Costa, master of the Brazilian barque Llembranca. It is set forth in the return of the master, that the persons above named were brought from Rio de Janeiro to the port of New York, in the barque aforesaid. That the two first named, Jose da Costa and Jose da Rocha, were shipped on board the Llembranca at Rio de Janeiro as part of the crew, and as such he is required to take them back by the laws of Brazil. That the woman Maria has come upon the voyage to this port as a servant and nurse to his wife and family, in whose service she now is. It is further set forth in the return, that Jose da Costa and the woman Maria, are slaves, lawfully acquired by the re- spondent, according to the laws of Brazil, by which laws, slavery is permitted and the acquisition, possession, and transfer of persons as property, allowed, recognized and protected. That Jose da Rocha is also a slave, and the property lawfully acquired is as aforesaid, of 'Antonio Jose da Rocha Peresira, of Rio de Janerio, part owner of the barque, and by him committed to the custody of the respondent. These facts are admitted by the relator, but he denies that they are sufficient to justify the detention of the parties concerned. The fact that Jose da Costa and Jose da Rocha constitute part of the crew of the Llembranca, is an answer to the application for their discharge. By $ 31st, of the existing treaty between the United States and Brazil, provision is made tor the arrest, detention, and custody of persons composing a part of the crew of any public or private vessel of either nation, who shall desert. The consuls of the respective nations are authorized to apply to the proper judicial authorities, and upon proving by the exhibition of the ship's roll, register or other document, that the persons claimed were part of the crew, they are required to be delivered up. They are to be put at the disposal of the consul, and may, at his request, be placed in any public prison until sent to the vessels to which they belong, or to others of the same nation. The treaties made under the authority of the United States, are declared by the Cth Article of the Constitution to be the supreme law of the land, to be binding upon the judges of eveiy state, any thing in the constitution or laws of any state to the contrary notwithstanding. I am bound, therefore, to regard and carry out the provisions of this treaty. And it would be a palpable violation of its obvious meaning and intent, to dis- charge persons upon a writ of habeas corpus, admitted to be part of the crew j 40 DECISIONS IN CRIMINAL CASES. In the matter of Da Costa. of a Brazilian vessel. If the two persons should desert, they could be re- claimed as a part of the crew. It would be the duty of the judicial tribunals of this state, in such a case, upon the proper application, to deliver them up. The right of the master to detain them as a part of his crew, is necessarily implied When a duty is imposed to deliver them to him, should they desert from his service, he undoubtedly has a right to detain them as a part of his crew, if he has a right to reclaim them when they leave his vessel. That they are slaves does not alter or vary the case, for were I to hold that they are free persons, according to the laws of this state, the master would still be entitled to retain them as members of his crew. They must, therefore, be returned on board the vessel from whence they were brought in obedience to this writ. It will not be necessary to determine the principal question argued upon the return, to wit: Whether slaves voluntarily brought into this state, are to be regarded as property within the meaning of that section of the treaty by which the United States has stipulated specially to protect the property of subjects of Brazil . The point is not material to the matter now before me. Da Rocha and da Costa are left in the custody of the respondent, not upon the ground that they are his property, but because they compose a portion of his crew. The question could only be material as far as respects the right of the re- spondent to detain the woman Maria. But she, by her own declaration, is under no restraint. The writ has been sued out without her knowledge, privity or consent. She has expressly declared her unwillingness to leave the service of the respondent, and expressed her desire to return with him to Kio de Janeiro. As she is on board the respondent's vessel of her free will, she can not be regarded as under restraint. The interposition of this writ, therefore, in her behalf, is not called for. She has elected to remain where she now is, and there is no room to make any order respecting her. ALBANY, JANUARY, 1848. SUPRREME COURT. Albany General Term, January, 1848 Harris, Watson and Parker, Justices. THE PEOPLE vs. FRANKLIN GRAHAM. A recognizance taken in a court of Oyer and Terminer, for the appearance of a prisoner at a court of General Sessions, to answer to a pending indictment must be entered in the minutes of the court, or it will be void. S.ich entry must contain all the substantial parts of the recognizance, such as the acknowledgment of indebtedness, the offence charged and the condition tc.-, a mere memorandum that a recognizance in a certain sum was taken is not sufficient. *Vhat was said between the clerk and the bail, on the taking of a recognizance, can not be proved by the certificate of the clerk. This was an action of debt on a recognizance, tried at the Schoharie circuit, before PARKER, circuit judge, in May, 1846. The plaintiffs alleged in the declaration, that on the 23d day of October, 1844, the defendant appeared before the court of Oyer and Terminer of the county of Schoharie, and acknowledged himself to be indebted to the people of the state of New York in the sum of four hundred dollars, to be well and truly paid, if default should be made in a certain condition, &c., that if one Robert Streeter should personally appear at the next court of general sessions of the peace, to be held in and for the said county of Schoharie, then and there to answer to an indictment preferred against him the said Robert Streeter, for grand lar- ceny, and to do and receive what should by the court be then and there enjoined upon him, the said Robert Streeter, and should not depart the court without leave, then the said recognizance should be void, &c. It was then alleged that the said Streeter did not appear at said court of general sessions, but upon being duly called made default, and that the recogni- zance was declared forfeited by an order of the court, &c. &c. The defendant pleaded nul tiel record At the trial, the plaintiffs, to maintain the issue on their part, introduced as evidence an exemplified copy of the record of the 142 DECISIONS IN CRIMINAL CASES. The people v. Graham. minutes of the Oyer and Terminer of Schoharie county, and also an exemplified copy of the record of the minutes of fhe court of general sessions, which copies are as follows: " At a court of Oyer and Terminer, held in and for the county of Schoharie, at the court house, in the town of Schoharie, on Tuesday the 22nd day of October, 1844: Present His Honor Amasa J. Parker, circuit judge; Charles Goodyear, Martinus Mattice, John Westover, Jonas Krum, Robert EAdridge, judges. The People v. Robert Streeter. Indicted for grand larceny. Defendant arraigned, and pleaded not guilty. The court assign R. R. Menzie as counsel for defendant. Court adjourned till 8 o'clock to-morrow morning. Wednesday, October 23rd, 1844. Court met pursuant to adjournment. Present- His Honor Amasa J. Parker, circuit judge; Charles Goodyear, Martinus Mattice, Jonas Krurn, John Westover, Robert Eldridge, judges. The People v. Robert Streeter. Grand larceny. Indictment continued to next February sessions. Principal recognized to appear in sum of $400. Franklin Graham bail for his appearance, do. $400. Which recogni- sance was taken in the following words: You, Robert Streeter and Franklin Graham, acknowledge yourselves to be severally indebted to the people of the state of New York, each in the sum of four hundred dollars, to be well and truly paid, if default be made in the condition following: The condition of this recognizance is, that if you, Robert Streeter, shall personally appear and remain at the next court of general sessions of the peace, to be held in and for the county of Schoharie, to answei to an indictment against you for grand larceny, and shall then and there do and receive what may be enjoined on you by the court, and shall not depart the court without leave, then this ALBANY, JANUARY, 1848. 14 3 The People v. Graham. recognizance shall be void, otherwise of force. Are you, and each of you, therewith content? Schoharie County, Cleric's Office, ss. I, Thos. McArthur, clerk of said county, do hereby certify that I have compared the preceding copy of the minutes of the court with the original, and that it is a correct transcript therefrom (with the addition of the recognizances being fully expressed in the copy) and of the whole of such original minutes, so far as relates to Robert Streeter. Witness my hand and official seal, the 16th day of L. s. May, 1846. THOS. MCARTHUR, Clerk. At a court of general sessions of -the peace, held in and for the county of Schoharie, at the court house, in the town of Schoharie, on Friday the seventh day of February, A. D., 1845: Present His Honor Charles Goodyear, first judge; John Westover, Robert Eldridge, Jonas Krum, Martinus Mattice, judges. The People v. Robert Streeter. Grand larceny. The defendant having been duly called, and not appearing, and Franklin Graham, bail for the appearance of the said defendant at this court, having been duly called to produce said Robert Streeter, and he not being produced Ordered, on motion of Thos. Lawyer, district attorney, pro. tern., that the recognizance in this cause be estreated. Schoharie County, Clerk's Office, ss. I, Thomas McArthur, clerk of said county, do certify that I have compared the pre- ceding copy with the original minutes of the court, and that it is a correct transcript therefrom and of the whole of such original, so far as relates to said Robert Streeter. Witness my hand and official seal, the 16th day of L. s. May, 1846. THOS. Me ARTHUR, Clerk. 144 DECISIONS IN CRIMINAL CASES. The People v. Graham. The counsel for the defendant objected to the introduction of the certificates upon the following grounds: 1. It did not appear that a recognizance roll had been made, before the commencement of the suit, 2. It did not appear that any recognizance was entered 01 any record of a recognizance made and filed. 3. That there was a variance between the declaration and proof that the declaration does not aver that any order was made transmitting the recognizance from the oyer and terminer to the general sessions. The court admitted the testimony; to which decision the iefendant excepted; and the testimony being here closed on both sides, the judge directed a verdict for the plaintiff, subject to the opinion of the supreme court; and the jury accordingly foun-d a verdict for the plaintiffs for the debt daimed, subject to the opinion of the supreme court. R. R. Menzie, for defendant. Point 1st. The plaintiff should have been nonsuited on the trial on the ground that no legal or binding recognizance was entered into by defendant as required by statute, and that no recognizance roll had been made and filed. All the recog- nizances required or authorized to be taken in any criminal proceeding in open court, by any court of record, must be entered on the minutes of such court, and the substance thereof read to the person recognized. All other recognizances in any criminal matter or proceeding, or in any proceeding under the law respecting the internal police of this state, must be in writing and subscribed by the parties to be bound thereby. (2 R. S. 746, 24.) A mere entry in the minutes of the court not containing an acknowledgment of indebtedness to the people of this state, does not amount to a recognizance. ( The People v. Rundle, 6 Hill, 506; 17 Wend. 252; 4 ib. 387.) Point 2nd. The suit was improperly brought. The district attorney was not authorized to sue; no order to prosecute was entered; this appears affirmatively from the plaintiff's evidence. ALBANY, JANUARY, 1848. The People v. Graham. Whenever any recognizance is directed by law to be estreated, such estreat shall be made by the entry of an order directing the same to be prosecuted, and the same shall be prosecuted as herein directed. (2 R. S. 486, 31.) It is provided, (2 R. S. 485, 29) that whenever any recognizance to the people of this state shall have become forfeited, the district attorney of the county in which such recognizance was taken, shall pro- secute the same by action of debt for the penalty thereof, and the pleadings and proceedings shall be the same in all respects as in personal actions for the recovery of any debt, except that it shall not be necessary to allege or prove any damages by reason of a breach of the condition of such recognizance; but on such breach being found or confessed, or upon a judgment by default, the judgment shall be for the penalty of the recog- nizance. It is conceded that it is not necessary to aver in the declaration that an order was entered to prosecute. ( The People v. Blankman, 17 W. R. 252.) But the defendant is at liberty to insist upon the argument that no order to prosecute was entered, although the objection was not taken at the trial. The defect could not have been obviated, if made at the trial. On a case made, if it appear that the plaintiff ought not to have recovered on an objection which, if it had been specifically taken at the trial, could not have been obviated, the verdict will be set aside. (Rich v. Penfield, 1 W. R. 380; Lawrence v Borke, 5 W. R. 301.) Point 3rd. The indictment being found on the pretended recognizance taken in the court of oyer and terminer, the general sessions had no jurisdiction of the matter, without an order being entered in the court of Oyer and Terminer. The declaration does not aver that an order was made sending the indictment and recognizance to the sessions^ In this there is a material variance. The court of Oyer and Terminer may, by an order in their minutes, send indictments to the general sessions (2 R. S. 205, 31). The whole of the evidence offered on the trial ought to have been disregarded the minutes of the court are not properly certified. It appears from the certificate VOL. I. 19 DECISIONS IN CRIMINAL CASES. The People v. Graham. of the clerk, that the copy contains more than the original; see 2 R. S. 403, 59, as to the form of such certificate. (7 Hill, 42, 4 Wend. R. 387.) P. S. Danforth (district attorney), for the people. I. The recognizance declared upon was a record in th* minutes of the court of Oyer and Tenninerof Schoharie count} (2 Rev. Stat. 624, 24, 2d ed.; 2 Bouvier's Law Dictionary, 413), as to the form of a recognizance. II. The statute does not authorize the making of a recogni- zance roll, but directs in what manner the recognizance is to be taken and how it is to be prosecuted. (2 R. S. 398, 29, 4 Wend. 387.) III. There is no variance between the declaration and proof, nor is it necessary or proper to aver that an order was made transmitting the recognizance from the Oyer and Terminer to the general sessions. ( 17 Wend. R. 252). Per Curiam. The statute requires (2 JR. S. 746, 24) all recognizances authorized to be taken in any criminal proceed- ings, in open court, by any court of record, to be entered in the minutes of such court, and the substance thereof to be read to the party recognized. That requirement was wholly disre- garded in this case. No part of the substance of the recogni- zance was entered in the minutes of the court: there was entered only a memorandum of the fact that a recognizance was taken. It does not help the matter that the clerk certifies he addressed the defendant in appropriate words, in taking the recognizance. The failure to comply with the statutory requirement can not be supplied by any thing that was said at the time between the clerk and the defendant. All that was then said is improperly inserted in the certificate, and could not be proved by it. The clerk can only certify what appears of record. All the substantial parts of the recognizance, such as the acknowledgment of indebtedness, the indictment against Streeter and the offence charged, the condition, &c., should ALBANY, MAY, 1848. The People v. Finnegan. have been entered in the minutes of the court ( The People v. Rundle, 6 Hill, 506). No legal recognizance having been taken, judgment must be given for the defendant. Judgment for the defendant. SUPREME COURT. Albany General Term, May, 1848. Harris, Parker and Watson Justices. THE PEOPLE vs. JOHN FIXNEGAN. As a general rule, it is not competent, in support of the testimony of a wit- ness, for the party calling him, to prove that he has made declarations out of court corresponding with his testimony in court. The exceptions to this rule stated. And this rule is applicable to cases where an attempt is made, on a cross- examination, to throw doubts on the testimony of a witness, as well as to cases where other witnesses have been called and examined to contradict the statement of the witness. An exception is available for the purpose of correcting an error in the admis- sion or rejection of evidence, in granting or refusing a nonsuit, in charging or refusing to charge the Jury on a specific proposition, or in deciding any question on the trial affecting the merits ; but all that relates to the manner of onducting the trial, to the forms of the questions asked, if not objectiona- ble in substance, and to the range allowed to counsel in their arguments, is matter of discretion, as to which a remedy for a supposed error can not be had by an exception. Where the court permitted the counsel for the people to urge to the jury that they might infer from the prisoner's omission to prove a good character, that his character was bad, because the counsel for the prisoner had stated to the jury in opening the defence that he had known the prisoner from his youth and knew him to be a man of fair character, held, that such decision could not be reviewed on exception, the latitude to be allowed counsel in addressing the jury being a matter of discretion ; but that the proper way to have raised/ the question was by asking the court to charge, after the coun.s*?rVaa[*.a- dressed thu jury, on a specific proposition as to the lv&-Ji presumption, anjMf the court refused so to charge then to e^^P" 1 to suc ^ refusal. In criminal, as well as in civil ca^ 8 i except in a criminal prosecutwn for libel, it is the duty of th* ' l lo decide the questions of law and of the jury to decide the o.-' tions of fact - DECISIONS IX CRIMINAL CASES. The People v. Finnegan. Certiorari to the mayor's court of the city of Albany. The prisoner was indicted and convicted of robbery in the first de- gree. The indictment charged that the prisoner, on the 20th day of November, 1847, at the city and county of Albany, with force and arms, in and upon one William F. Terhune, &c., feloniously did make an assault and certain articles of per- sonal property, therein described and belonging to the said Terhune, from the person of the said Terhune then and there violently and feloniously did steal, take and carry away, to the great damage, &c., and against the form of the statute, &c. The prisoner pleaded not guilty, and the cause came on to trial in the Albany mayor's court on the 16th February, 1848. After Terhune had been called as a witness on the part of the prose- cution and had been fully examined and cross examined as to the circumstances of the transaction in detail, Weare D. Par- sons was called as a witness for the prosecution and testified that he was the keeper of the Carlton House, where Terhune stopped at the time of the alleged robbery; that he^recollects that Terhune came in, that evening about eight o'clock, that his back was covered with sand and his knees and other parts of his body were covered with clay or dirt; that his face was a little scratched, &c., and that he said something when he came in. He was then asked by the district attorney the following question. What did Terhune say when he came in about the robbery and the persons who robbed him? The prisoner's counsel objected to the proof by this witness of the account given by Terhune on that occasion, of the manner in which he was robbed, and of the persons who, he alleged, committed the robbery. The court overruled the objection and the counsel for the prisoner excepted. The witness then answered, that Terhune came into the house and said he had been robbed. Witness asked him of how much, and he stated of one hundred aurstjvtfinty dollars, or something near that. Witness then 3iJ . Finnegan. cited case was approved and followed in Dudley v. Bolles (24 Wend. 465, 472), and the law on this point must now be re- garded as well settled by these later decisions. A careful reading of the case of The People v. Vane shows that the ques- tion did not necessarily arise in that case, and the dictum of the court on this point must now be regarded as overruled. In England, as well as in this country, it is believed such evidence is no longer admissible. (The King v. Parker, 3 Doug. 242; Bull. J\T. P. 294; 1 Starkie Ev. 148; 1 Phil. Ev. 107, 307, note; 1 Starkie Ev. 149, note; 1 Cow. and Hill's notes, 776.) The exceptions to the rule, as now established in this state, are when the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, in which case it is said it may be shown that he made similar declarations at a time when the imputed motive did not exist: and where there is evidence in contra- diction, tending to show that the account of the transaction given by the witness is a fabrication of a late date, it is said it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of cir- cumstances, could have been foreseen. (Robb v. Hackley, 23 Wend. 50.) But neither of these exceptions are applicable to the case under consideration. The evidence in this case was received only for the purpose of answering the doubts attempted to be thrown by the cross-examination upon the testimony of Terhune. But it was not admissible for that pur- pose. It stood upon the same footing as if it had been offered to support the witness after other witnesses had been called to contradict him. What Terhune had previously said was mere hearsay, and could add nothing to the weight of his testimony. The court below erred therefore in receiving the evidence. Tke next alleged ground of error is, that the court permitted the counsel for the people to urge before the jury, that they might infer, from the prisoner's omission to prove a good cha- racter, that his character was bad. This was permitted by the court for l he reason that the counsel for the prisoner, in opening the defence, had stated that he had known the prisoner from 152 DECISIONS IN CRIMINAL CASES. The People v. Finnegan. his youth, and knew him to be a man of fair character It is supposed that the refusal of the court to restrain the counsel for the people in his argument, within what was suggested by the defendant's counsel as the true limit, will bring this case within the decision in The People v. White (24 Wend. 520). In that case the judge in his charge, after alluding to the benefit of good character to the accused in a doubtful case, called the attention of the jury to the absence of such proof in the case before them, and it was held erroneous and ground for a new trial. But although it may be error so to charge, it is not for the counsel so to argue, or for the court to permit such argu- ment. The limits within which counsel are to be restrained is a matter of discretion, and an exercise of that discretion can not be reached and corrected by an exception. The prisoner's counsel should have submitted to the court a request to charge in regard to the presumption claimed to arise from the omission to prove good character, and to such charge, or to the refusal to charge, an exception could have been taken. An exception is available for the purpose of correcting an error in the admission or rejection of evidence, in granting or refusing a nonsuit, in charging or refusing to charge the jury on a specific proposition, or in deciding any question on the trial affecting the merits. All these matters properly belong to the record as presented by a bill of exceptions. But all that relates to the manner of conducting the trial, to the forms of the questions asked, if not objectionable in substance, to the restricted or wide range allowed to counsel in their arguments, are matters of discretion in the court before which the trial is had, and as to them, a remedy for a supposed error can not be had by an exception. The second exception is not therefore available. The third point made by the defence is, that the court erred in charging that me jury were the judges of the law and the fact, and that the only duty of the court was advisory. This was erroneous. It is only on the trial of indictments for libel, that " the jury have the right to determine the law and the fact" (Const, of New York, Art. 1, Sec. 8). In all other criminal prosecutions, as well as in all civil actions, it is the ALBANY, MAY, 1548. The People v. Finnegan. duty of the court to decide the questions of law and of the jury to decide the questions of fact. (Carpenter v. The People, 8 Barb. S. C. R. 603; Cow. $ Hill's Notes to Phil. Ev. 1501; Barb. Cr. L. 2d ed. 353; 2 Sumner R. 240, 243; 2 Blackf. 156, Mdis. R. 156.) In 2 Sumner, 240, Story, J., said, it had been the opinion of his whole professional life, that the jury are no more judges of the law, in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. He said that, in each case, they had the physical power, but not the moral right, to decide the law according to their own notions or pleasure. That it is the duty of the court to instruct them as to the law, and of the jury to follow such instruction. That if the jury were to decide, it would render the law uncertain: it would be almost impracti- cable to learn what they did decide; the court would have no right to review their decisions, and every person has a right to be tried according to the fixed laws of the land. A wrong impression on this point has prevailed to some extent in the community, and it is time it was corrected. The doctrine that the jury are to decide the law in criminal cases, with the single exception made by our state constitution, can not be supported either upon principle or by authority. The proceedings in the court below must be reversed, and a new trial awarded in the Albany mayor's court. VOL. I. 20 154 DECISIONS IN CRIMINAL CASES. NEW YORK OYER AND TERMINER. Before Edmonds, Justice, a id Aldermen Stevens and Dodge. THE PEOPLE vs. JOHN S. Austin. Where an indictment contaius several counts charging the same offence in dif- ferent forms, the prosecution will not be compelled to elect on which count they ask a conviction. Such election will be directed only when the several counts charge separate and distinct offences. It is not collateral but relevant to the main issue to inquire into the motives which influence a witness in giving his testimony, and a party examining a witness in regard to them, is not bound by his answers but may contradict him. A sufficient foundation is laid for such contradiction if the attention of the witness has been directed to the time, place and circumstances attending an alleged statement made by him, and the name of the person to whom he may have made it, need not be mentioned, if it was not necessary to enable him to know to what remark his attention was directed. The statute allowing the relative of a person killed, to recover damages there- for, it will be no impeachment of a witness, that he as father of the deceased, had attempted by negotiation to recover compensation from the author of the death. Whether a homicide was justifiable under the statutes is to be determined by the jury from their conviction whether there was reasonable ground for the accused to apprehend great personal injury, and not from the fact that the accused did in fact entertain such apprehension. Whether a homicide is excusable or not, must depend in a great measure upon the nature of the weapon used and the manner in which it was used. Killing by intentionally firing a pistol into a crowd can not be said to be by accident or misfortune. To constitute murder there must be an intention to kill, in all cases, except where the perpetrator is at the moment engaged in commit- ting a felony. Any killing without a design to effect death unless it is justifiable or ex- cusable is manslaughter only. Implied malice, constituting killing, without an intention to kill, murder, is not recognized in our law. Recent provocation, and the fact that the passions have not had time to cool, do not under our statute mitigate a killing with a design to effect death from murder to manslaughter. Such killing is murder, whether the design to effect death was formed on the instant or had been previously entertained. The intention to take life constitutes, under our statute, the main distinction between murder and manslaughter. THE prisoner was indicted with one Nesbitt, for the murder NEW YORK, MARCH, 1847. The People v. Austin. of Timothy Shea, on the 28th of September, 1848, by firing a pistol at him. The indictment contained two counts, one charging that the pistol was fired by Austin by the aid and procurement of Nes- bitt, and the other that the firing was by Nesbitt, and that Austin aided and encouraged. After the testimony for the prosecution closed, which tended to show that Austin had fired the pistol, J. Graham, for the defence, moved that the prosecution be put to their election on which count they intended to ask for the conviction of the pri- soner. He insisted that the prosecution, having now got in all its testimony, was able definitely to inform the prisoner of the precise nature of the charge of which they claimed him to be guilty, and that it was his right to know, so as to determine how to shape his defence. H. G. Wheaton (who appeared instead of the attorney gene- ral) insisted that the right to compel an election existed only when the indictment contained distinct charges, and not where, as in this case, it contained only charges connected with the same transaction. EDMONDS, J. That is undoubtedly the true rule where the two offences charged form parts of one transaction, yet are of such a nature that the defendant may be found guilty of both The prosecutor will not be called on to elect upon which charge he will proceed, for in such case the joinder of counts can not prejudice the defendants, which is the only ground on which this application to the discretion of the court can be founded. The right of election is confined to cases where the indictment contains charges which are actually distinct and grow out of different transactions. Thus the prosecution will not be com- pelled to elect on an indictment charging both larceny and receiving stolen goods, where it appears by the indictment that the charges relate to the same transaction modified to meet the proof, nor when several counts are inserted in an indictment solely for the purpose of meeting the evidence as it 156 DECISIONS IX CRIMINAL CASES. The People v. Austin. may transpire on the trial, the charges being substantially fof the same offence. Such is this case, and the impropriety of compelling an election here is very apparent. If the prosecu- tion should elect to go on the count that charges Austin with having fired the pistol, and it should turn out on the trial that it was in fact fired by Nesbitt, but by the order and procure- ment of Austin, Austin would be guilty of the murder, yet could not be convicted because the prosecutor had been com- pelled to elect, and in a necessary ignorance of the facts had elected the wrong count. The prisoner can not be embarrassed by being tried on both counts, while the prosecution may be much embarrassed and indeed entirely thwarted by being compelled to elect. The motion must be denied. John Shea, the father of the deceased, was examined as a witness on the part of the prosecution, and on his cross-exam- ination was asked whether he had not offered to the prisoner or some of his friends to leave the state and refuse to testify in the case for a suitable remuneration. To which he had answered, not exactly that, but and was then proceeding to detail what he had said in that regard, when he was stopped by the prisoner's counsel, and told that they had got all the answer that they wanted. On his reexamination by the prosecution he was asked what it was he had said in that regard. D. Graham, for prisoner, objected. EDMONDS, J. But you have yourselves introduced the sub- ject and have obtained only part of an answer. The whole of it ought to be got out. Besides, you have an answer from which you may call on the jury to infer corruption on the part of the witness, while the matter may be susceptible of a per- feet explanation. It will be right to have it all. Being examined on that point the witness detailed two interviews with one who acted as an agent of the prisoner in conducting his defence, in which, as he alleged, an offer had NEW YORK, MARCH, 1847. 157 The People v. Austin. been made to him of some money if he would remove from the state. After the prisoner had entered upon his defence, his counsel offered to prove several acts of this witness going to show a desire to obtain from the prisoner pecuniary satisfaction for the injury which he had received by the death of his son, and what had taken place between him and the prisoner's agent in that respect. Wheatoii, for the prosecution, objected that the examination of the witness on this subject had been to a matter entirely collateral to the main issue, and that the defence were there- fore bound by his answers and could not contradict them. D. Graham, for the prisoner, contended, first, that it was not collateral matter so that the defence was bound by the answer and, second, that the testimony was proper, independent of what the witness had said on his examination, as it might tend to show him governed by corrupt or revengeful feelings, and it would enable the jury to judge what credit to give him when they should learn that he had attempted to make money out of a transaction which had resulted in the death of his son. Wheaton, in reply, said that since our statute of 1847, which had given to the relatives of a person killed under circumstan- ces which would constitute a trespass, a right to recover damages for the injury sustained by the loss of the deceased, it could be no impeachment to the credit of a witness to seek to avail himself of the benefit of the statute. EDMONDS, J. I was not aware that the statute gave the remedy for damages in such cases as this. I supposed it was confined to cases of persons traveling in public conveyances. It grew out of injuries on railroads and steam boat accidents, but I see that it extends to all cases where death is caused by the wrongful act, neglect or default of any person or corporation, anr the party injured, if living, might have maintained an 158 DECISIONS IN CRIMINAL CASES. The People v. Austin. action for the injury. And it is worthy of note to observe this return to a law which once prevailed among our ancestors, but which has been exploded for several hundred years. The Weregild of our Saxon ancestors was the fine set on a person's head for the murder of a man. Tacitus speaks of it as having been found by the Romans to exist among the Northern Ger- mans, from whom it was doubtless brought into England by the Saxons while pagans, and continued even after the Nor- man conquest until the introduction of the Christian religion, when it fell into disuse, it being regarded as contradictory to the divine law. Some years since T found the same Jaw in existence among the northern native tribes on our continent. I once witnessed on the island of Michilimackinac the inter- esting ceremony of the " Weregild" performed among some Indians inhabiting the borders of Lake Superior, and I had several times occasion in my then official capacity in settling claims against Indians, along that region of country from Lake Winnebago to Lake Superior, to make similar allowances which I found was in pursuance of a well settled custom among them. But this is a digression, perhaps not ail unnatural one. It is enough for the question now before me to know that such a law now prevails among us also, so that it could in no respect affect the credit of this witness that he was seeking to avail himself of its advantages. Yet if there was no such statute, this question has been settled by our court in 11 Wend. (The People v. Genung.) That was an indictment for false pre- tences, and the defendant offered to show that during the sitting of the court the prosecutor had offered to the prisoner that if he would settle the subject matter of the indictment he would leave the court and not appear against him. The testimony was excluded and the supreme court sustained the decision on the ground that if the fact had been proved it could legiti- mately have had no influence with the jury, for it did not tend in the least degree to impeach the testimony of the witness or to show that his narration was not true. So far then as to one view in which this evidence is offered, namely, as independent of what the witness may have testified on the subject, the testi NEW YORK, MARCH, 1847. The People v. Austin. mony would not be proper. But when offered to contradict his testimony, it has a different aspect. In the view which I have already stated, the question put on the cross-examination of this witness might have been objected to and perhaps exclu- ded. But it was asked and answered without objection and the inquiry was fully gone into on both sides in order to ascertain the feelings with which he testified. That surely can not be called collateral, for any inquiry which is allowed having that object in view is pertinent and relevant to the main issue. In regard to such matters it is always open to contradict what the witness himself has said on the subject. With that view and to that extent the inquiry will now be allowed. The witness, John Shea, on his cross-examination, had been asked whether on the evening of the affray and immediately after his son had been shot, he had said to two men in his basement that he did not know who had fired the pistol? To which he had testified that he had not said so, but a good many persons had spoken to him that evening, that he did not know whether they were friends or enemies and had not been always particular as to what he did say. For the defence, a police officer was introduced who said he entered the basement directly upon the first alarm and saw the dead body lying on the floor, and he asked some questions of the witness Shea. His answers being offered in evidence, Wheaton, for the prosecution, objected, because the proper foundation had not been laid, as the attention of the witness had not been particularly called to the police officer by name. EDMONDS, J. His attention was challenged to the particular circumstances and occasion, to every thing, indeed, except the name of the person to whom it is now alleged he made the declarations offered in evidence, so that he has had a full opportunity of recollecting and explaining what he has for- merly said. The main thing is first to ask him, whether or no he has said or declared that which is intended to be proved. All that has been done in this case, and the only omission has 160 DECISIONS IN CRIMINAL CASES. The People t>. Austin. been the name of the person to whom the remark was made, and that person an entire stranger to the witness. That name was not necessary to enable the witness to know to what remark his attention was directed. The time, place and circumstances were all specifically mentioned, and they were enough to give him the required opportunity of explanation, having that, this inquiry now becomes proper. The evidence bearing on the offence charged in the indict- ment went to show, that on the evening in question the prisoner, with three of his companions, sallied out into the streets on a frolic, and after visiting five or six drinking houses entered one in Leonard street, next door to the residence of the deceased, and on coming out passed the door of the basement occupied by the deceased's mother as a porter house, and in which the deceased, two of his brothers, and a sailor were then engaged singing and carousing. As Austin was passing the door one of the inmates came out and invited him to go in and hear the singing, which he refused to do. After refusing repeated invi- tations, he was taken by the collar and dragged into the base- ment. The door was then shut upon him and he was repeatedly urged to sing or to drink, but refused. One of his companions, the other defendant, Nesbitt, followed him into the basement and attempted to fasten the door open. A row then began, in the course of which Nesbitt fled from the room, and the brother of the deceased threw a tumbler and a pitcher at Austin, and struck him a severe blow on the forehead with a decanter. Austin retreated from the basement; he was followed by the sailor, and struck a blow with a chair. At about this time, but whether before or after the blow with the chair was not ascertained, some one fired twice into the basement from a six barreled revolving pistol. One of the balls took effect upon the deceased, who was then advancing with a chair uplifted towards the door through which Austin had retreated, and who died almost immediately, exclaiming as he fell and expired, " Father, I am shot." At about the same moment, but whether before or after the firing, the light in the basement was extin- guished. It was from a lamp hanging over the bar, so low NEW YORK, MARCH, 1S47. The People v. Austin. that Patrick Shea, who was standing by the bar, could easily extinguish it with a breath. After the firing, the prisoner retreated towards the police station house, distant about 100 feet from the scene of the affray. On the way which he had passed a pistol was afterwards found. Austin repaired directly to the station house, where he was met by the captain of the police, who, observing him to be very bloody, ordered him to be taken care of and a physician to be sent for. On examining him it was found that he had received a very severe wound in the forehead with some sharp instrument which had cut through the rim of his hat and which stupefied him, a hole was cut through one cheek, as if by a stab from an oyster knife, and various bruises on his head and body, showing that he had received at least nine blows. He was too ill from these wounds to be removed from the station house for several days, and several weeks elapsed before he arose from his bed. There was much contradictory evidence in the case. The father of the deceased swore positively to his having seen the prisoner firing the pistol from the sidewalk, after the affray was over, while other witnesses testified that he was an habitual drunkard; that he had gone to bed very drunk that afternoon, and was asleep in another room when the affray began, and was just rising from his bed as his son expired. It was also proved that the family of the Sheas was very debased, the daughter being a strumpet, the mother sharing with her the wages of her prostitution; the deceased had been a convict in the state prison, and his brother, one of the wit- nesses, was then in confinement on a charge of stealing, and that the house they kept had frequently attracted the notice of the police for its riotous and disorderly character. D. and J. Graham, of counsel for the prisoner, made the following points: I. In order to make homicide, by an act imminently danger- ous to others, murder, it must be occasioned by an act committed when the mind is in the same mood as would be necessary to make the act murder if it was committed upon a particular VOL. I. 21 162 DECISIONS IN CRIMINAL CASES. The People v. Austin. individual, and there must be a preintention to take human life, or else to do the act which must necessarily or may result in the death of some one. II If the jury believe that the defendant fired the pistol, smarting under a provocation so recent as not to be under the influence of reason, it is not murder. III. If the jury should believe the statement of John Shea, as to the door's being opened after Austin was put out, and the pistol discharged into the basement, it would not be murder unless the time that elapsed between the defendant's becoming disconnected from the violence of the inmates of the basement and the firing of the pistol was a reasonable time for the cooling of human passion. IV. If the jury believe that the pistol was fired from the street, i. e. outside of the basement, and that the defendant was pursued there by the violence of the inmates of the basement, and that there was reasonable ground for supposing that great personal injury would be done to him, and imminent danger of its being accomplished, it would be justifiable in law. V. If the judgment of the defendant was so impaired by the violence of the injuries inflicted upon him, that the act of firing the pistol, though not necessary to guard himself against further injury, was rather the result of instinct than judgment or re- venge, the act would be justifiable in law. VI. Where the loss of reason or deprivation of consciousness is the direct result of an injury, and not attributable to mere passion, an act committed while in such a state, is not an offence. VII. The basement of the Sheas being a public bar room, it was no trespass in the defendant to enter it. VIII. If the Sheas had the right to eject the defendant from the basement, owing to his misconduct, they were only entitled to use the kind of violence calculated to attain the end. Throw- ing a tumbler or decanter would not be justifiable, and would make those resorting to them, trespassers. IX. If the Sheas resorted to excessive or unnecessary vio- lence, for the purpose of ejecting the defendant from the base NEW YORK. JULY, 1847. The People v. Austin. ment, they became trespassers in so doing, and the defendant would have the right to act in self-defence. X. If Austin discharged the pistol under an honet suppo- sition that his life was in danger, or that some great personal injury was about to be done to him, he is not guilty of an offence. XI. If the defendant, though in no danger of serious bodily harm, through fear, alarm or cowardice, discharged the pistol at the deceased, or into the basement, under the impression that great bodily injury was about to be inflicted upon him, it is not an offence. J. McKeon (district attorney), and Wheaton, for the prose- cution, made the following points: 1. If the jury believe the prisoner armed himself with this deadly weapon, with an intent to use it against human life, if he should get into an affray, and was induced or encouraged to provoke the affray in question or unnecessarily to continue it after it had been commenced by others, by the fact of his bf ing thus armed, and did use it against the life of Timothy Shea, in the manner proved by the witness, he is guilty of murder. 2. That if the jury believe the prisoner was so far self- possessed as to be able to restrain his passion while in the basement receiving the blows, although his weapon was then at hand, and omitted to use it till he had got out of the base- ment and out of the more immediate view of the inmates, and then used it as proved by the witnesses, he has exhibited all the deliberation which the law requires to be guilty of murder. EDMONDS, J., in charging the jury, said, that the first question for them to determine was, whether the prisoner had fired the pistol. This was sworn to positively by two witnesses: Shea, the father, and Clara King, a girl of the town, who was passing at the moment. The testimony of the father was not to be relied upon. His character, his intoxication, his strong feelings and the falsehoods which had been proved against him, forbid the idea of giving much credit to him. The testimony of the girl, however, had not been impeached, but had been corrobo- DECISIONS IN CRIMINAL CASES. The People t. Austin. rated by several independent circumstances in the case, and particularly by the facts that all the witnesses unite in saying, the firing was from the very spot, where all agree that the prisoner was at the time; that the pistol when found was bloody, and that he alone of all the party was bleeding; that he had an inducement to do it, whether from motives of revenge or in self-defence; that the direction of both shots was from where Austin was, back upon those who had beat him; that the pistol was found at a spot which he had just passed; that he who fired the pistol wore a white hat, and that the prisoner alone had such a hat that evening. From these considerations, the jury must determine whether it was not the prisoner who fired the pistol, and in determining it, they must bear in mind that the evidence to satisfy them must exclude, to a moral cer- tainty, every hypothesis but that of guilt, that the conviction of guilt must flow naturally from the facts proved and not by a forced or strained construction, and be consistent with all the facts, for if any one fact is utterly inconsistent with that con- clusion it can not follow; and that, in case of doubt, it is safest to acquit, for the protection of innocence has an equal claim upon the administration of justice with the punishment of guilt. If upon this question, the conclusion of the jury should be adverse to the prisoner, the next inquiry would be into the nature and quality of the act which should be thus established against him, and whether the homicide was justifiable or excu- sable, or was murder or manslaughter. The homicide would be justifiable under our law, only in case it was committed by the prisoner when there was reason- able grounds to apprehend a design to do him some great personal injury, and there was imminent danger of such design being accomplished. But of this the jury were to be judges, not the prisoner, and it was for them to say from all the cir- cumstances proved before them, whether there was reasonable ground for such apprehension, and whether there was, at the moment the fatal shot was fired, imminent danger that some great personal injury would have been done to the prisoner. This would depend mainly upon the facts when and from NEW YORK, JCJLY, 1S47. The People v. Austin. what position the pistol was fired? If fired after the prisoner has escaped from the party in the house and after he had reached the sidewalk, it may have flowed from a spirit of re- venge for the injuries under which he was smarting. But if he fired before he had extricated himself from the party, who had thus forcibly drawn him into the building, and had there displayed towards him such unjustifiable violence, he might at the moment have very reasonably apprehended farther personal injury and might be justifiable in using the means at hand to protect himself from it. There was, however, another view of the case in which the prisoner might be justified, even if he had fired the pistol after he had left the basement. One of the witnesses had testified that the prisoner had been followed from the basement by one of the party inside, and had been slruck with a chair while ascending the steps on his retreat. If this were so, then the apprehension of personal injury would not cease with the pri- soner's leaving the basement, and the imminent danger in which he had been placed might have continued up to the moment of firing the pistol, and thus he be justified in firing it. If the jury were not satisfied that it was justifiable, they were next to inquire whether it was excusable. It is so under our law when committed by accident or misfortune, in the heat of a passion upon a sudden and sufficient provocation, or upon a sudden combat without any dangerous weapon being used. The nature of the weapon used, and the manner in which it was used, must be mainly instrumental in determining this question. Thus if, in the heat of passion, upon sufficient provocation or upon a sudden combat, a man had used his walking stick, or a butcher in his stall had used his knife that lay near him, or a cooper used the adze with which he was then at work, and had given a blow which was fatal, but without any intention to take life, the homicide might be excusable. But that could hardly be where the weapon used was of a dangerous charac- ter, constructed solely for the purpose of taking life and which could scarcely be fired off without hazarding it. If in the melee the ; nsoner had used the pistol as he might any other 166 DECISIONS IN CRIMINAI CASES. The People v. Austin. hard substance found at the instant in his pocket, by striking a blow with it calculated rather to w*und than to kill, but had killed, it might be attributed to accident or misfortune. But that could not with propriety be predicated of the act of inten- tionally firing the pistol and unless such firing was justifiable, it was either murder or manslaughter. Whether the act was murder or manslaughter under our stat- ute, depended entirely upon the existence of an intention to kill either some particular person, or generally some one of a num- ber of persons against whom in a mass the fatal act is perpe- trated. There is only one homicide known to our law which becomes murder in the absence of an intention to effect death, and that is when the act is perpetrated by one then engaged in committing a felony. Except in that one case, no homicide is murder without an intention to kill and with such an intention, every homicide, with the single exception already mentioned, unless it be justifiable, is murder, whether the intention is formed on the instant or has long been entertained. Such intention may be inferred from the act itself, for it may be one which of itself plainly indicates a heart regardless of social duty and fatally bent on mischief, and men are to be presumed to intend the natural and inevitable consequences of the acts which they willfully perform, but unless there be such an intention, the act can not be more than manslaughter. It would readily be perceived that this view of the statute had entirely superseded many of the rules of the law of homi- cide as it existed in England and which had been quoted on this occasion, and among them the whole doctrine of implied malice and the power of recent provocation to reduce the act from murder to manslaughter. The English law provided very slight punishment for man- slaughter, sometimes as low as the fine of a shilling and never beyond a year's imprisonment. To remove from the operation of so inadequate a penalty acts of peculiar barbarity, such as that of the schoolmaster who whipped a scholar until it died, and that of the master chimney-sweeper whose boy stuck fast in the chimney and was killed by the violent manner in which NEW YORK, JULY, 1847. 157 The People v. Austin. he was pulled from the place, the English courts adopted the principle of implying malice, where there was in fact no pre- meditated design to take life. On the other hand, lest such a principle should extend too far, they adopted another principle which gave to recent provocation, and the fact that the pas- sions had not time to cool, the power of modifying the acts from murder to manslaughter. All this had been done away by our statute. If the homicide had been perpetrated without an intention to kill it would be man- slaughter and no more, except in the single case of its perpe- tration by one engaged in committing a felony. But if perpetrated with an intention to kill, no matter how recent the provocation or how high the passions, it was murder. An act of homicide perpetrated with a premeditated design to effect death, though in the very highest flight of passion, and spring- ing from even an existing provocation, can find no resting place in our statute except under the definition of murder or justifiable homicide, and the intention to kill being established, there is no degree or description of manslaughter in this stat- ute which can embrace it. That this is the intention of the statute is manifest not only from a careful perusal of all its enactments relative to homi- cide, but also from the recommendations of the revisors. They proposed that murder should include a homicide when perpe- trated from a premeditated design to do some great bodily injury, although without a design to effect death, thus recog- nizing and adopting the principle of implied malice and defending it on the ground that the transaction would be such as would ordinarily lead to the result of taking life. But the legislature refused to adopt the suggestion and enacted a section, which, in the language of the revisors was " founded on the great principle that to constitute murder there should be an express design to take life or such circumstances as to induce a very strong presumption of such a design." This view of the law will commend itself to our favorable regard, not merely because it confines the crime of murder within its legitimate bounds of a premeditated design to take 163 DECISIONS IN CRIMINAL CASES. The People i>. Austin. life, but because it effectually destroys the doctrine of allowing sudden provocation and heat of passion to mitigate the offence, a doctrine most dangerous in its operation, because it tolerates the practice of carrying arms, and takes from the sudden use of them the consequences that ought justly to follow. No man can under our laws go habitually armed and in an affray use those arms with an intent to kill, without incurring the hazard of a conviction for murder, and no violence of provocation, no height of passion can mitigate or extenuate the offence. It will be murder if there is an intention to kill, unless self defence demands the sacrifice. The practice out of which this case has sprung is too pernicious to be tolerated. No life would have been taken, if the person who fired the pistol, whoever he might have been, had not gone into the affray with so deadly a weapon. The same remark is applicable to the last case tried in this court and the sooner this law becomes well known, and understood, and rigidly enforced, the better; for far better the land though stricken with poverty, where the unseen majesty of the law affords its sure protection to all, and where the atmosphere of its supremacy pervades every tene- ment however humble, than that where gold may be gathered at every footstep, but where every man is armed to the death against his fellow, where every breath is drawn amid the rattling of armor, and every pulsation beats with the appre- hension of instant conflict. The inquiry, therefore, would be, was there a design to effect death? For if there was, however recent in birth, the offence was murder, but if there was an intention to wound only a design to do some great bodily harm and not to kill, it was manslaughter and no more. The prisoner was acquitted. NEW YORK, DECEMBER, 1848. SUPREME COURT. New York Special Terra, December, 1848. Before Edmonds, Justice. In the matter of JOSEPH BELT, an alleged fugitive from service in the state of Maryland. In a proceeding on habeas corpus under the Revised Statutes, the averment of a person claimed as a fugitive from service that he is a freeman, is a suf ficient answer to the allegation by the claimant that such person is his slave, and a demurrer to such answer on the ground that it is argumentative and evasive will be overruled. In submitting proof of the claim to the alleged fugitive, the contemporaneous acts of the fugitive and the claimant during the period when the relation of master and slave is said to have existed between them, may be shown by the claimant. The general rule of evidence in regard to the proof of the laws of the various states of the union, stated in Greenleaf 's Evidence, $ 489, has not been adopted by the courts of the state of New York, and is not the rule therein, excepting so far as it is enacted by the act passed April 12, 1848, entitled "an act relative to the proof of the Statute and Common Law of other States, &c." (p. 442). The provision of the new Code, that no person shall be excluded as a witness by reason of his interest in the event of the action, does not extend to cases of habeas corpus, and the claimant to an alleged fugitive from service can not testify in behalf of his claim. A general understanding that the laws of any state tolerate slavery, does not exempt a judge from requiring lawful evidence thereof, and failing to give such evidence the claimant of an alleged fugitive fails to establish the main point in his case, issue having been joined thereon that the person was bound to him in service. It being sufficiently proved that the alleged fugitive was bound in service to the claimant, yet, if the claimant, instead of removing him from the state without delay, has detained him in his own custody, that is a sufficient rea- son why the person is entitled to his discharge. There is only one case in which a fugitive slave can be k?pt by his master in his personal charge in this state, and that is under the law of Congress, to take him without delay before the proper authority, in order to obtain the certificate necessary for his removal from the state. When it appears that the claimant holds his slave in this state, not for the purposes contemplated in the act of Congress, but that he holds him as his slave because he owes him servitude, it is the duty of the judge to order him to be discharged from custody. On the 21st day oi December, 1847, on an affidavit made by Thomas Peck, of the cily of New York, setting forth, that VOL. I. 22 170 DECISIONS IX CRIMINAL CASES. In the matter of Belt. on the 20th December (the day preceding), Joseph Belt, while walking with the deponent in Duane street, in the said city, was kidnapped by some persons, to the deponent unknown, and was carried off; and that the deponent had just learned that the said Belt was carried to Gravesend, on Long Island, by his kidnappers, and was there detained by their waiting for a change of wind, to be carried to the south as a fugitive slave; and that deponent believed that he would be carried out of the state before he could be relieved by a writ of habeas corpus; a writ was issued by Judge Edmonds, in pursuance of the pro- visions of the Revised Statutes, addressed to the sheriff of Kings county, or to any policeman of the city of New York, reciting the facts set forth in the affidavit, and commanding the party addressed to take the said Joseph Belt, and him forthwith bring before the judge issuing the same at the City Hall of the city of New York, to be dealt with according to law. The sheriff of Kings county, Daniel Voorhis, deputed Russell F. Hulse, a police officer of the city of New York, to execute the process; and Hulse, assisted by Samuel Wolven, a police officer of the city of Brooklyn, proceeded immediately to Graresend, and on the next day returned that he had executed the writ, and had the person named therein in custody. On the hearing before Judge Edmonds on the same day, Mr. John Lee, of Maryland, with his counsel, James R. Whiting, appeared and claimed the custody of Belt as his fugitive slave, and prayed time to put in a return to the writ in the form pre- scribed by law, which was duly granted, and the hearing post- poned until the next morning, when the following answer was put in. " I, John Lee, of the county of Frederick, in the state of Mary- land, do return to the annexed writ, that a colored boy named Joseph Belt, the person now present, at the time of the service of said writ, was under my restraint, and that I claim to hold him under my restraint as a person held to labor and service due to me as a citizen of the state of Maryland. That said Belt is a fugitive from said state, and from my service in the NEW YORK, DECEMBER, 1848. In the matter of Belt. said state of Maryland, under and by virtue of the laws of which state he is held to labor and service as a slave to me. ' I do further return, that saiti Joseph Belt ran away from me in the month of November, one thousand eight hundred and forty-seven. That at that time he was in Baltimore, in the said state of Maryland, in my service, and he privately, against my knowledge and consent, with a view to effect his escape from my service, to which he was lawfully held, and (as I be- lieve) proceeded to Lynn, in the state of Massachusetts, and from thence to the city of New York. " That on Wednesday last the 20th of December instant. I caused the said Belt to be arrested and brought to me, from which time and until the service of the annexed writ he was in my custody and control, as his master and owner, and I claim it to be the duty of your honor to restore the said Belt to my custody from whence he has been taken by the annexed writ, together with a certificate sufficient to warrant me in re- moving said slave and fugitive from labor to the state of Mary- land aforesaid, from which he fled, without any further molesta- tion or interruption. JOHN LEE Sworn this 23d day of December, 1848. J. W. EDMONDS. Accompanying the answer were the affidavits respectively made by Theodore C. Shadbolt, of the city of New York, and William Hunkey and H. R. Howlett, of Gravesend, in the county of Kings, -stating that in conversation they had with Belt, he had admitted that he was the slave of Lee, that his master had brought him to Baltimore to sell, and that he had run away from him at Baltimore, and had gone from there to Lynn, near Boston, in the state of Massachusetts, whence he had come to the city of New York. John Jay, appeared as counsel for Belt, and asked time to put in a reply on his behalf, and the hearing was adjourned to the 26th December, when the following reply was made: " I, Joseph Belt, not admitting that at any time I have geen legally held to service or labor to John Lee, but insisting that 172 DECISIONS IN CRIMINAL CASES. In the matter of Belt. I am a free citizen of the United States, and not legally held to service or labor, do allege that whilst passing through Duane street in the city of New York, in the state of New York, on the 20th day of December, 1848, in company with Thomas Peck, about half past eight o'clock in the morning, I was seized by two persons whom I believe to be Charles Bird and Sydney Clayton, and forcibly and violently thrust into a hack carriage, the door of which was immediately closed by the driver. That the question being asked why I was so seized, it was stated by the persons arresting me, that I was charged with stealing at the fire. That both myself and P'eck denied having stolen any thing, and insisted that we had not been out on the night before, at which time the fire was said to have taken place. Not regard- ing this denial, handcuffs were placed by these men upon me, but as handcuffs were about being placed on one of the arms of Peck, he was ordered to get out of the hack, and was told he w r as not the man. Peck refused to get out of the hack, desiring to go with me, but at my request he left the hack to inform Mrs. Jackson, at whose house I boarded, of my arrest. The persons m the hack told Peck they would take me to the Tombs, where he might find me. After Peck left I was carried to a hotel in Broadway, and then to the residence of Charles Bird, in El- dridge street, in the city of New York. " The two men in the carriage who had hand-cuffed me, stated that they were going to take me to Long Island and keep me there until they caught some other person; that then they would bring me back to New- York and have me tried, but did not say for what they intended to try me. That at the hotel in Broadway, a man named John Lee came into the hack, and said to me, " I will pay you for all this." One of the men got out at the hotel when Lee entered the hack. On arriving at Eldridge street I was compelled to get out of the hack, go up stairs into a room, when Lee and Bird questioned me about the whereabouts of some person I knew nothing of. After remaining about fifteen minutes I was placed in the hack again with Bird and Clayton, and driven across a ferry in the East river and carried about ten miles to a village on the ocean NEW YORK, DECEMBER. 1848. In ili.- mat;er of Belt. beach. There I was plaml in a room until Thursday evening, the 22d instant, when I was removed to another house, about a mile and a half distant from that I had been first placed in. I remained there by force and restraint until Friday morning about 1 o'clock when I was brought back to the city by officer Hulse, under the warrant issued by his Honor, John W. Ed- monds. I was deprived of my liberty without any process of law. The seizure of me in the public street was done in a riotous manner, in breach of the peace, with illegal violence. From the time of kidnapping by the said Bird and his associ- ate Clayton, on Wednesday morning, the 20th instant, until Friday morning, the 22d instant, I was kept hand-cuffed and restrained of my liberty. When notice was given that officer Hulse had arrived with a warrant, Clayton hastily took off the hand-cuffs and asked me to get out of the window, intending as I believed, to recapture me; I declined to go out of the win- dow; went through the door into the adjoining room, and met officer Hulse. I believe that Lee, Bird and Clayton have entered into a conspiracy to kidnap me, and carry me away out of the state of New-York. That Lee has promised to indemnify Bird and Cayton against any harm they might suffer from violation of the laws of the stale of New-York. That the intention of all these parties was to keep me in irons in this state, secretly and without the knowledge of the public authorities, until they had succeeded in kidnapping some other person. At no period since my arrest has any process of law for my arrest or deten- tion been exhibited to me or alleged to have been issued. At the time of my arrest I was not half a mile from the ferry to Jersey City, and the train for Philadelphia, which is the most direct route for Baltimore in Maryland, did not leave until 9 o'clock A. M. That I have been informed and believe there were eight regular departures or modes of travel from this city to Philadelphia and southward between eight o'clock on the morning of the 20th December, and 1 o'clock A. M. of 22nd December, and there were other irregular departures. The village where I was detained, was, I believe, Gravesend, on 174 DECISIONS IX CRIMINAL CASES. In the matter of Belt. Long Island, and is in a direction contrary to that of any route leading to Philadelphia and southward, and there are no regu- lar means of communication from Gravesend to Philadelphia. Sworn this 26th day of December, 1848, his before me. HENRY VANDERVOORT, JOSEPH >4 BELT. Clerk of Sessions, Sfc. mark. To this reply, Lee put in a general demurrer. For the Demurrer. J. R. Whiting, upon the whole facts stated, contended 1. That upon the pleadings in this cause, it was clearly to be inferred, that the boy Joseph was a slave belonging to Mr. Lee; that the averment that he was a free man, was no answer to the allegation of Lee, that he was a slave; that the reply was argumentative and evasive; and he claimed of the court to decide that he was now a fugitive slave. 2. That, if a slave, the master had a right, under the consti- tution of the United States, to arrest him in this state, either himself, or by the persons whom he employed, without warrant, and take him home with him. 3. That in the manner of the arrest, or in the detention of the slave, though done as stated in the reply, there was nothing to impair his right to the slave; and he demanded of the court, lhat the boy should be delivered to him as his slave. In enforcing his claims, Mr. Whiting complained of those who interposed in aid of the boy, as attempting to rob Mr. Lee of his property, and agitating a subject which puts the union of the states in jeopardy. He cautioned all concerned against being led away by sympathy. J3gainst the Demurrer. John Jay, Jlsa Childs, lately of the Maryland bar, and John McKeon, district attorney of the city and county of New-York (who appeared in the cause under the provisions of the statute of the State of New- York, passed May 6th, 1840, requiring the district attorney of each county, upon due notice, to render his advice and professional services in all NEW YORK, DECEMBER, 1848. 175 In the matter of Belt. proceedings for the recovery of alleged fugitives from service or labor), presented and argued the following points I. This is not a proceeding under the act of congress for the delivery of fugitives. The alleged master has not come here voluntarily for a certificate, but he has been dragged here by force of law, on a complaint entered on behalf of Belt. That act, therefore, has nothing to do with these proceedings, and no certificate can be properly demanded under it. The judge will be governed by the provisions of the revised statutes (2 vol. 469, 40 and 41), and discharge the party unless legal cause be shown. Belt stands here as a free citizen of a free 8tate, and the court will so' regard him until the contrary be proved in accordance with the usual rules of evidence. Even admitting that he has been held as a slave by Lee, and has escaped from him, it does not follow that he was legally held. He may have been kidnapped from a free state, and reduced to slavery unjustly. (See Law of New-York of 1844, appointing agents to recover citizens who had been kidnapped.) His insist- ing, therefore, that he is not legally held to service, but is a free citizen, is a sufficient denial under 2d revised statutes (page 471, 50). This is a matter affecting liberty, and every intendment is to be made in favor of freedom. The proceed- ing is a summary one, and the strict rules of pleading are not required to be followed, provided the sworn answers are suffi- cient in substance. The reply is, therefore good, and the demurrer should be overruled. II. Even if the reply of Belt be construed as admitting that he was the slave of Lee, which it does not; and if the court were sufficiently satisfied of that fact, which they can not be by any admission expressed or implied, still the other facts shown by the reply sufficiently show that the imprisonment in which he was found on the service of the writ was illegal: First. Recapture of slaves can only be made either under the act of congress of 1792, or under the constitution of the United States. Belt was not capturpd under the act, for he was not taken 1 76 DECISIONS IN CRIMINAL CASES In the matter of Belt. before a magistrate, nor any certificate obtained for his remo- val. His capture, to have been legal, must, therefore, have been under the power conferred by the constitution. But if the constitution does give such right, it gives it only where it can be done without a breach of the pence or illegal violence, (In re Kirk, 4 JV". F. Leg. Obs., 459, quoting Prigg v. Common' wealth of Pennsylvania, 16 Peters, 539.) The owner's privi- lege being in derogation of state rights the rights of every free citizen are to be preserved the power to seize the slave is coupled with the condition that there be no illegal violence; and if the condition is broken in the execution of the power, the power is gone, and the arrest is void. Here there was illegal violence towards a free citizen, Peck, in the arrest of Belt; and an infringement upon the public peace; and the arrest of Belt was therefore illegal ab initio, and any subse- quent detention under it void- Second. The answer shows the detention to have been illegal, even if the arrest were good. The power of recapturing slaves, is in derogation of state sovereignty and common law right, and must be strictly followed. It is given simply for the purpose of removing the slave to the state from whence he fled. (See JJct of Congress, 1792.) The owner is entitled to reasonable time to recover his slave, but may not detain him here for his con- venience. Here, no intention immediately to remove the boy appears, but the contrary. Belt was taken from the city of New York, the usual port of departure where opportunities for removal abound, to a remote village, and moved from house to house for the purposes of confinement and concealment, until an indefinite period, when some other alleged slave should have been captured. Such detention can not be justified under the facts shown, nor could it have been justified if a certificate had been previously obtained by Lee under the act of congress, for such certificate warrants not the detention of the slave in the state, but only the removal of the slave out of the state. (See Revised Statutes, 662 [repealed], that slaves became free if con- tinued here beyond time specified; and Jlctof May 6, 1840, Gen. Stat. page 330, 7, that the removal must be by direct route.} NEW YORK, DECEMBER, 1848. In the matter of Belt. And under the principle settled in the case of slaves (18 Pickering), the voluntary detention of Belt in a free state by his master, entitles him to his freedom. Third. If the demurrer is overruled, and the reply held suf- ficient, Belt is entitled to be immediately discharged. The reply shows his right to freedom, apart from any facts that might be produced touching his former condition, and as it is in the discretion of the court to decide finally on the present hearing, they will not detain an innocent man, who is to be held free until proved to "be a slave, in order to allow the re- spondent to procure or manufacture proofs of his having been once a slave. He should have brought legal proofs when he first came to arrest him. The counsel for Belt, in reply to the charge of interference with the constitutional rights of the claimant, maintained that the claimant admitting Belt to have been his slave, had, in his arrest and detention in the manner proven, overstepped the farthest limits of his authority, and committed an outrage upon the dignity of the state of New York, and the peace and quiet of its citizens. Whiting, in reply quoted Sergeant on the Constitution, ch 31, page 387; Glen v. Hoages, 9 Johnson, R. 69; Wright v. Dean, 5 Ser. Sf Rawle, 62; Commonwealth, fyc. v. Griffin, 3 McLean, 480. The court after taking time for examination overruled the demurrer, adjudging the reply sufficient, and allowed Lee to submit proof in support of his claim. THOMAS LEE, sworn as a witness for the claimant. I reside in Frederick county, Maryland, and have resided there all my life. I am twenty-nine years old, and am nephew of the claim- ant I know Belt perfecty. He is the man now here. I have known him as long as I can recollect, upon the estate of the claimant in Frederick county, Maryland, where he resides. He was always on that estate when I knew him; he was born the VOL. I. 23 DECISIONS IN CRIMINAL CASES. la the matter of Belt. slave of John Lee^ and was always in his service; I knew his mother, who was also in his service; she was a slave also. I knew his grandmother; she was on the same estate, and is still living. Belt is about twenty-two years old. I saw him last until yesterday in the railroad cars going to Baltimore; Lee was with him. I am pretty well acquainted with the laws of Maryland. Qaestion by counsel for claimant. Do those laws authorize slavery? To this question the counsel for Belt objected, and after an argument thereon, the court overruled the objection and allowed the question to be put. Jlnswer. Yes, sir, they do. Question by counsel for claimant. Do you hold slaves under those laws? Objected to, and the objection sustained by the court. Cross-examined by McKEON of counsel Jor Belt. Mr. Lee sold Belt's mother as a slave. My estate joins that of Mr. Lee. I know the boy was not born in New York or Pennsylvania, but I was not present at his birth. Direct examination resumed. Belt went to Baltimore as a house servant. Question. Did your ever hear of Belt's claiming to be free from the service of the claimant? To this question the counsel for Belt objected, insisting that no previous acts or expressions of Belt could be received as evidence to prove that he was a slave; and after hearing an argument on the point, the court overruled the objection, and declared that the contemporaneous acts of the parties might be shown. Direct examination resumed. I never heard of Belt's claim- ing to be a free man. I have heard Belt call Mr. Lee master. Belt was always considered by the other slaves on the estate as a slave. People resident there are acquainted with each other's slaves in the neighborhood. Belt was always reputed in the neighborhood to be a slave. I have not the slightest doubt as to Belt's identity NEW YORK, DECEMBER, 1848. ^79 In the matter of Belt. Cross-examination resumed. Belt is a. mulatto. The counsel for the claimant here offered the laws of Mary- land from their statute book, and objection being made by the counsel for Belt, quoted 1 Greenleaf on Evidence, 489, an 1 the decisions there quoted being held by the court to be inaj> plicable to the state of New York, a different rule having been adopted by the courts of that state, the counsel referred to a recent statute of the state of New York, passed April 12, 1848, entitled " An Act relative to the proof of the statute and com- mon law of other states and territories." " 1. Printed vo- lumes, copies of the statute laws of any other of the United States or of the territories thereof, if purporting to be published under the authority of the respective governments, or if com- monly admitted and read as evidence in their courts, shall be admitted in all courts of law and on all other occasions in this state as prima facie evidence of such laws." The volume offered in evidence was objected to by the coun- sel for Belt on the ground that it did riot appear that it was published " by the authority of the government of Maryland," and there was no evidence that it was a volume commonly admitted and read in their courts. The counsel for the claim- ant proposed to prove by a resident of Maryland, that the volume offered was the regularly authorized edition of the laws of the state, and as such was recognized and read in their courts, and for this purpose called, as a witness, John Lee, the claimant in person, whom he was about to examine, when Jay on behalf of Belt objected on the ground that Mr. Lee being directly interested in the result was utterly incompetent to testify in the matter. . . The People. fully kill and slay him. The acts of the defendants are the same, but the event has shown that those acts were felonious. The event relates back to the acts and gives them a new cha- racter, and if this indictment be a true bill, the prisoners were never guilty of an assault and battery, as the misdemeanor is merged in the higher offence of felony. (1 Russ. on Cr. 50, v. 2, 550; Bouvier's Law Diet, title Merger Cr. L.) It was argued by the counsel for the plaintiffs in error, that if the jury should acquit them of the offence charged in the indictment, they may still be convicted of the assault and bat- tery, and thus be a second time punished for the same offence. He referred us to 2 R. S. 702. 27, which provides that upon an indictment for an offence, consisting of different charges, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of such offence, inferior to that charged in the indictment, or of an attempt to commit such offence. The indictment charges a homicide; a felonious and willful killing and slaying. An assault and battery can not be " any degree of such offence." The killing of a human being without authority of law is either murder, manslaughter, or excusable or justifiable homicide, according to the facts or cir- cumstances in each case. (2 R. S. 656, 4.) In murder there are no different degrees, but in manslaughter there are four degrees as declared and defined by the statute. Homicide embraces all mankilling, and murder is the highest degree. Manslaughter is another degree or class of homicide, and is a degree lower than murder. Both are felonies, and upon an indictment for murder, the accused may be convicted of any degree of manslaughter, but he can not be convicted of a simple assault and battery, for when death has ensued from the beating, the homicide is murder, manslaughter, or excusable or jus- tifiable. If the killing was excusable or justifiable, then the accused can not be convicted of any offence. If the killing was not excusable or justifiable, then the offence would be murder or manslaughter, a felony, in which crime the assault and bat- tery would be merged; and in such a case, if the accused were NEW YORK, NOVEMBER, 184S. The People v. Martin. indicted for a simple assault and battery, it would be the duty of the jury to acquit him, and he might be indicted, tried and convicted of the murder or manslaughter, as the case might be, The judgment of the recorder's court should be affirmed. Judgment affirmed SUPREME COURT. At Chambers. Before Edmonds, Justice. November, 1848. THE PEOPLE vs. MARY MARTIN and CAROLINE MARTIN. On habeas corpus, how far the court or officer granting it, is bound by the return, or may go behind it. In criminal cases where an indictment has been found, he can not go behind the indictment, because there are no means of ascertaining upon what the indictment was founded. But on a commitment before indictment, the whole question of guilt or innocence is open for examination on the return to the writ of habeas corpus, and the inquiry is not necessarily confined to an examination of the original deposi- tions. In such cases, under our revised statutes, the proceedings on a habeas corpus ar> in the nature of an appeal from the decision of the committing magistrate. ON the return to a writ of habeas corpus sued out for the pri- soners, it appeared they were detained on a full warrant of commitment for trial on a charge of grand larceny issued by one of the police magistrates of the city. They filed their allegations in answer to the return, setting up that they were arrested without warrant by a person not a police officer. That when taken before the magistrate, he refused to examine the complainant in their presence, though they demanded it and committed them for trial. The allega- tions also averred the innocence of the accused, and that the money they were accused of stealing, was given to them under pretence of teaching French, but really for purposes of seduc- tion. On filing these allegations, McKeon, district attorney, and 138 DECISIONS IN CRIMINAL CASES. The People v. Martin. Galbraith, for the prosecution, insisted that the warrant of commitment being regular on its face, was conclusive on habeas corpus, and no inquiry could extend behind it A. Nash, contra. January 8, 1849, EDMONDS, J., delivered his opinion. It is claimed in this case, in behalf of the prosecution, that the com- mitment of the magistrate is conclusive upon me, and that I have no right on this return to look beyond the question of its regularity or that if I do look beyond it, I can look only at the depositions taken before the magistrate. I had understood the law otherwise, and have always sup- posed that by means of this writ, the officers who were author- ized to allow it, were by its very nature clothed with a certain revisory power over those by whose mandate any person might be restrained of his liberty. The earnest manner in which, however, the contrary doctrine was pressed upon my attention, the construction which has been put upon the decision of this court in the McLeod case, and the fact that the legislature has, once at least (by depriving the judges of the superior tribunals, of the power of revising the action of the committing magistrate in fixing the amount of bail), departed from the great principles of the habeas corpus law, have caused me to hesitate in yielding to my first impres- sions, which I confess were rather the fruits of the read- ing of my early boyhood than of riper years, and have induced me, at some labor, to review the law on this subject at large. I, by no means, regret this, though it has been some- what difficult to find among the pressing nature of my other avocations, time enough to devote to a task involving so extended an examination as I have given the subject, for an accurate and intimate knowledge of the properties of this great instrument of personal liberty, the writ of habeas corpus, can not but be valuable to every citizen. The language of our statute, " of writs of habeas corvus and eertiorari, when issued to inquire into the cause of detention" NEW YORK, NOVEMBER, 1848. The People v. Martin. (2 R. S. 567), is not sufficiently definite to leave no room for doubt on this question. Every person committed, detained, confined or restrained of his liberty under any pretence what- ever (except in a few enumerated cases), may, it is true, prose- cute this writ. On the return of the writ, the facts contained in the return may be examined into as well as the cause of the confinement, and if no legal cause be shown therefor, the party may be discharged. (Ib. 567.) Upon these enactments, for they are not new, it has been held that the officer allowing the writ out of court could not go behind the return. To remedy that, section 50 was enacted (76. 569), giving to the impri- soned party the power to deny any material fact set forth in the return, or to allege any fact to show the detention illegal or that the party was entitled to. his discharge, whereupon, the officer may hear such allegations and proofs, as may be pro- duced in support of the detention or against the same, and dispose of the party as the justice of the case may require. This language is broad enough to confer upon the officer the most ample power on habeas corpus, to inquire into the guilt or innocence of the party as to the offence charged, for on that, if his detention be not illegal, he may be entitled to his discharge. But it has been held that on habeas corpus, the court or officer will not try the question of guilt or innocence. ( 1 Ch. Cr. L. 130.) And Cowen, J., in McLeod's case ( 1 Hill R. 394), is very explicit in laying down the same doctrine, and he declares that the provision of the statute which I have quoted, would be sat- isfied by being limited to the lawfulness of the authority under which the prisoner is detained, without being extended to the force of the evidence upon which the authority was exerted. (Ibid, 404.) And in the statute to which I have referred, I mean the police law relative to this city, the legislature have gone some ways to sanction the same doctrine. So that with this positive enactment in the police law, and this construction of the habeas corpus act, the power of the committing magistrate as to the question of guilt or innocence, and as to the amount of bail to 190 DECISIONS IN CRIMINAL CASES. The People r. Martin. be required, would become absolute, irreversible and above all review. A power of this extent would ride over all the courts in the land, and become perfectly despotic, if it was not subject to review and inspection. I have already had practical evidence of the result of such a state of the law. In one case brought before me, the commit- ting magistrate had refused to let a party to bail, who was accused merely of a breach of the peace; thus arbitrarily, and as it was insisted before me, without the possibility of review or correction, putting assault and battery upon an equal footing with murder. In another case of assault and battery, the magistrate had fixed the amount of bail at some $16,000, and I was admonished that under that police law, I incurred the danger of committing a misdemeanor, if I reduced the amount. So that I was placed in the dilemma of running the hazard of an indictment or of violating my oath of office and the con- stitution, which forbids excessive bail. Of course I incurred the hazard, but not without some reflection upon the character of legislation which could thus jeopard personal liberty, and at the same time place a judge of the highest criminal court in the state, in such a position, that he could carry out the consti- tution only by incurring the hazard of becoming himself a criminal at his own bar. Such cases must and will occur again, if the law is such as to sanction them, and I have therefore been the more anxious in my researches, in order to ascertain with certainty, whether such is, in fact, the state of the law among us. I have already intimated that the language of Mr. Justice Gowen, in McLeod's case, was broad, enough to sustain this doctrine, and if that was an authoritative decision of the court upon the point, I should be bound to obey it as the law of the land until it should be reversed by an appellate tribunal or altered by the legislature. But fortunately that language is entitled to no such binding force. That point was not before the court. The dictum was obiter. The question raised there was, whether, after indictment, the court on habeas corpus, would entertain the question of guilt or innocence, and OB that NEW YORK, NOVEMBER, 1848. The People v. Martin. question the authorities had been very uniform, that it would not; and for very plain and simple reasons, that as the testi- mony before the grand jury would not be written and could not be looked into, the court or officer on the habeas corpus could not ascertain on what evidence the grand jury had acted, and could not entertain the question without receiving precisely the same testimony which the jury would be obliged to receive on the trial, and thus, in fact, usurp the province of the jury. Hence it had been the practice of the English courts and our own, Which was followed in the McLeod case, not to look into this question of guilt or innocence on habeas corpus, after indictment. But not so where the party was committed by the magistrate, nor even where he was committed on the coroner's inquest, because there were depositions which could be looked into. But even to this rule there were exceptions. Bac. Jlbr. Hab. Cor. B. sec. 11, says, that the court will sometimes after indictment examine the circumstances, and he cites the case of one indicted for piracy who was bailed because it appeared that it was the prosecutor himself who had committed the offence. In Rex v. Crips, referred to in Cunningham's Rep. 96, the party was bailed because of a mistake of the per- son of the party accused. I do not, however, understand the rule, whether it has few or many exceptions, to deny the power after indictment to look beyond the commitment. It merely says, that the court will not, not that it can not do so, and for very good reasons, as I have already mentioned. For equally good reasons it may and does do so, as is shown by the many cases where after delay to bring on the trial of an indictment, the party has been dis- charged or bailed. This rule, however stringent it may be held to be after indictment found, is by no means so, where the party is detained merely on the warrant of the committing magistrate. Ch. J. Marshall recognized this distinction in Burr's case. In Benoit's case ( 1 Martin's Lou. R. 142), the court looked into the testi- mony to see whether an illogical conclusion had not been drawn. Chitty lays down the rule (1 Cr. Law, 119), where a 192 DECISIONS IN CRIMINAL CASES. The People v. Martin. person committed is advised that his commitment is illegal he may obtain relief by habeas corpus, and the proceedings thereon, which is the only course of proceeding. Indeed, wherever a person is restrained of his liberty, by being confined, whether it be for a civil or criminal cause, and it is apprehended that the imprisonment is illegal, he may regularly, by habeas corpus, have his body and the proceedings under which he is detained, removed to some superior jurisdiction having authority to examine the legality of the commitment, and upon the return to the writ the court are to examine and determine the legality of such commitment and do what to justice shall appertain in delivering, bailing or remanding him. And he adds (page 129), if the court ascertain there was no pretence for imputing to the prisoner any indictable offence, they will discharge him. Even though the commitment be regular, the court will examine the proceedings and if the evi- dence appear altogether insufficient, will admit him to bail, for the court will rather look to the depositions which contain the evidence than to the commitment in which the justice may have come to a false conclusion. Such is the English rule, thus stated by this respectable writer and sustained by abundant authority, and it necessarily confers on this writ an appellate attribute, and upon the court or officer to whom it is returned power to review the proceed- ings of the inferior magistrate on whose warrant a person may be committed. The rule is the same in this country, and no stronger evi- dence of it need be given than the view which the United States Supreme Court have taken of it. That court has, under the constitution, original jurisdiction only in cases affecting ambassadors and the like, and those in which a state shall be a party. In all other cases it has only appellate power. The judiciary act conferred upon it, and upon the judges thereof, power to issue writs of habeas corpus a power which they could not exercise unless the writ had properly an appellate character. The question has frequently been before that court and its NEW YORK, NOVEMBER, 1848. 193 The People v. Martin. appellate character has been repeatedly maintained. (Bollman and Swart wout, 4 Cranch, 75; Ex part e Kearney,! Wheat. 42; Ex parte Wat/cins, 7 Peters, 200, where Ch. J. Marshall says it is in the nature of a writ of error which brings up the body with the cause of commitment; Ex parte Burford, 3 Cranch, 447; In the matter of Metzger, 5 Howard, 176; Ex parte Barry, 2 Howard, 65.) It is an essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create the cause. (Mar- bury v. Madison, 1 Cranch, 175.) * The United States Supreme Court has no common law juris- diction. It owes all its powers to the constitution and the statutes, and so far as the habeas corpus is concerned, uses the writ only as it ministers to its appellate jurisdiction. Our supreme court is, however, different in this respect. It has all the common law powers of the King's Bench, in which this remedial writ has been one of its instruments of adminis- tering justice for very many years, and the judges out of court have the same authority conferred on them by statute. Under the common law powers it has always been compe- tent for the court in term to inquire in the broadest manner into the legality of the imprisonment and for that purpose to go behind the return. The books are full of such cases, and the refusal of the king or the lords in council, or in other words that courts giving to the warrant of the king and the star chamber the same binding and controlling force which in this case is claimed for the warrant of a police justice, was a proli- fic source of trouble in the reign of Charles I, drew on a par- liamentary inquiry and produced the petition of right (3 Car. 1), which recites this illegal judgment and enacts that no freeman shall be so imprisoned and detained. (3 El. Com. 134.) The revision of our habeas corpus law in 1813, extended its provisions to persons detained on civil process, while the Eng- lish statute, from which ours had been copied, confined it to criminal cases. Our court, in Cable v. Cooper (15 J. R. 152), upon this new VOL 1. 25 1Q4 DECISIONS IX CRIMINAL CASES. The People v. Martin. provision of the statute, gave a similar construction and denied to an officer or judge acting upon a habeas corpus out of term the power of looking beyond the return. This decision was made in January, 1818, and the legislature, with commendable promptness and in close imitation of the action which as before mentioned, "produced the petition of right," in the same session passed a law correcting that judgment. The act passed April 21, 1818, recites that " Whereas doubts are also entertained whether returns made to writs of habeas corpus issued under said act are traversible or examinable by facts dehors the returns," and enacts that the officer before whom a prisoner is brought shall examine into the facts contained in the return, and into the cause of the imprisonment, and remand, bail or discharge, as the case shall require, and to justice shall appertain. (Laws of 1818, C/i. 277, p. 298.) Out of this enactment grew the existing provision of the revised statutes authorizing the prisoner to deny any of the material facts set forth in the return, or allege any fact to show that his detention or imprisonment is unlawful, or that he is entitled to his dis- charge. (2 R. S. 471, 50.) The note to 3 Hill, 658, n. 30, says, that " when the return is that a party is detained by pro- cess, the existence and validity of the process are the only facts upon which issue can be taken. These alone are the material facts within 50, not whether the process is founded on suf- ficient evidence or any evidence at all." If this is so, then is the principle of Cable and Cooper, 15 J. R., restored, the act of 1818 reversing that case rendered nugatory, and 50 of our habeas corpus law shorn of very much of its benignant power. But it is not so. The cases cited by the writer do not sustain his position. 9 Wend. 212, one of his cases, was on a requi- sition from another state for a fugitive from justice, in which the court refused to look behind the warrant, because that would in effect be removing the trial of the merits from the other state to this. The case of McLeod, another one he cites, I have already shown was, in this regard, nothing more than a refusal of the court to go behind an indictment; and his remaining authority (11 M. fy Ellis, 274 3) was upon the power conferred NEW YORK, NOVEMBER, 1848. The People v. Martin. by an English statute, in respect to which the court in that cause say, " if the warrant returned be good on the face of it, we can inquire no farther." Can that be said of a statute which had its existence in a desire to remove doubts whether facts out of the return could be inquired into, and which, to effect its purpose, declares that the prisoner may allege any facts to show his detention illegal or that he is entitled to his discharge? On commitments by final process upon summary convictions, it has long been the practice to examine on habeas corpus the record of conviction, and if void to discharge the prisoner. (Regina v. Chancey,- 6 Dowl. P. C. 281, 1 Mod. 102; In re Sweatman, 1 Cow. 144, Bac. Abr. Hab. Cor. B. PI. 13; In re Eliza Phillips, 5 JV. F. Legal Observer, 130; Rex v. Elwell, 2 Str. 794.) And indeed final process may in all cases be im- peached by showing either that there was no judgment, decree, conviction, &c., or that the judgment, &c., was absolutely void. (Randolph Case, 11 Jim. Jurist, 338; Ex part e Beatty, 12 Wend. 229; Riley's Case, 2 Pick. 172.) So, too, where the warrant was legal but the party illegally arrested upon it, (Pleas&nt's Case, 11 Am. Jurist, 257; Ex parte Beeching, 6 Dowl. and R. 209,) Or was entitled to his discharge by something occurring after his arrest. (McLeod's Case, 25 Wend. 572; State v. Ward. 3 Hoist. R. 120.) And in all cases, even before our act of IS 18, and at common law, the prisoner before indictment might insist that the depo- sitions be looked into on habeas corpus. (1 Ch. Cr. Law, 127; Petersd. on Bail, 521; Bac. Abr. Bail in Crim. Ca. D.) For- merly those depositions could be brought up only on a writ of certiorari, but now we have a statute directing the magistrate to send them up, on a mere requisition of the officer allowing the habeas corpus. I have thus taken occasion to express my dissent from the doctrines asserted in the note to 3 Hill's Reports, and more than once assented to, though never directly ruled, by the late Judge Cowen. It is the first time that the question has been directly presented for my adjudication, though it has been fre- 196 DECISIONS IN CRIMINAL CASES. The People v. Martin. quently intimated before me, and I have taken time to examine fully into the matter, because I consider the doctrine as striking a fatal blow at the remedial powers of this great writ, and, if once established, as virtually repealing the statute which was enacted for the very purpose of affording against oppression under the forms of law the same protection which for a long time had been secured against imprisonment without due pro- cess of law. And as the reign of lawless violence has passed away and been succeeded by times when it is chiefly through the tribunals of justice that men seek to vent their evil passions upon one another, it becomes of the highest importance that this writ should be maintained in its integrity, as it is thus alone that the great duty of government can be discharged of demanding an account why the liberty of the citizen is re- strained, wherever that restraint may be inflicted. (3 Bl. Com. 131.) In thus asserting and defending the high prerogative of ad- ministering relief against unjust imprisonment, as existing in this court at common law and in its members out of court under the statute, I must not be understood as maintaining that the appellate power thus conferred can or will be exercised in a wild or loose or arbitrary manner, or that an appeal exists as a matter of course in every case of a commitment, w-ith a right to demand a review of the grounds of the commitment. Where the party is in custody by virtue of a final judgment of a court of competent jurisdiction, he must be immediately remanded. (2 R. S. 567, 40.) If the party is in custody on an indictment found for felony not bailable, there being no means of ascertaining the grounds on which the indictment is predicated, he will be remanded. (McLeod's Case, 25 Wend.) If in custody on process merely irregular, he will be remanded on habeas corpus and be remitted to the proper court to crrrect and remedy the formal defects in its own process. (People v. Nevins, 1 Hill, 154; Bank of U. S. v. Jenkins, 18 Johns. 305.) If detained on civil process, regular and valid on its face, the examination will be confined to the jurisdiction of th? NEW YORK, NOVEMBER, 1848. 197 The People v. Martin. power which issued it, and to the inquiry whether some event has not since occurred to entitle the prisoner to his discharge (Ibid.) If in custody on criminal process before indictment, tne prisoner has an absolute right to demand that the original depositions be looked into to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion upon the evidence given be- fore him, whether he may not have been governed by malice, or have exceeded his jurisdiction, and whether he may not have mistaken the law, or, in the language of Lord Ellenborough in the case of Sir Francis Burdett against the Speaker of the House of Commons (14 East, 1,) to ascertain whether the commitment was not palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice. Confined within these limits, the inquiry can be effectual for the protection of personal liberty against oppression under color of legal process. Extended beyond it, it might be eminently mischievous in retarding the due administration of justice, and therefore, though the power of exceeding those limits is clearly conferred, no discreet judge will step over them, unless for soim palpable and overpowering cause. I shall in this case look beyond the return and inquire into the cause of commitment, and I shall not confine my inquiry merely to an examination of the depositions which have been returned to me and for these reasons. The warrant which is returned to the writ of habeas corpus, is a full commitment for grand larceny in stealing from Thomas J. Grossman $40 in gold coin. No such warrant could issue until the complainant and the witnesses produced in support of the prosecution had been examined on oath in the presence of the accused. (2 R. S. 708, 13.) Nor until the prisoner has also been examined in relation to the charge. (Ibid, 14.) The " allegations" put in by these prisoners in answer to the 198 PECISiOXS IX CiUMLVAL CASES. The People v. McDaniels. return and sworn to by them, set up that they were arrested by a person not a police officer, that when taken before the police magistrate, they demanded an examination of the complainant in their presence, which toas refused, and they were thereupon committed in default of bail. If these allegations are true the imprisonment was clearly illegal. And they are facts out of the return, which the pri- soners have a right to allege, and which it is my duty to in- quire into. WASHINGTON OYER AND TERMINER. November, 1839. Before Willard, Circuit Judge, and the County Judges. THE PEOPLE vs. MCDANIELS. A robbery may be committed by extorting personal property, from the person or in the presence of the owner, by means of threats of an unfounded criminal charge, where such property is obtained through fear produced by such threats. Where, by means of a threat to arrest the prosecutor, on a charge of having been guilty of the crime against nature (the charge being groundless and known to be so to the defendant), the prosecutor, through fear of such threatened arrest, was induced to deliver to the defendant $20 and a receipt for $13 owed by the defendant to the prosecutor, and to promise to pay the defendant $20 more, held, that the defendant was guilty of robbery in the second degree. It is not necessary to constitute such offence that the charge against the prose- cutor should be direct or should be made in unequivocal language. It is enough if the language used was intended to communicate such a charge and was so understood at the time by the prosecutor. The prisoner was indicted for robbery in the first degree, against the form of the statute. (2 R. S. 677, 55.) The in- dictment also contained a count for robbery in the second degree The prosecutor Russell Skeele, testified that he was 67 years old, and had resided in Sudbury, Vt., for 37 years, and that he had been acquainted with the prisoner for three or four years. From his testimony, which was long and minute, it appeared that in June preceding the trial, the prisoner came to the stable, WASHINGTON, NOVEMBER. 1839. The People v. McDaniels. where the prosecutor had one of his mares to be curried, and found the prosecutor with his pantaloons unbuttoned to make water, and it so happened that a milk stool stood behind the mare. The prisoner as he came into the stable observed, " How is this, Uncle Russell? What does this mean? A mare, a stool and a man with his trousers unbuttoned. A story might be made of it that would hurt you." The prosecutor explained the matter, and the prisoner said he was satisfied, that nothing improper had been done or intended by the prose- cutor. On a subsequent occasion the prisoner alluded to the same transaction, and observed that the prosecutor could be injured by it, conveying the idea that the facts would warrant the belief that the prosecutor had connection with the mare. The prosecutor asked him if he intended to injure him? "Oh no," said the prisoner, " I only meant that some persons might in- jure you by it." The prosecutor testified that the prisoner alluded to it again, afterwards. He also testified that the insinuation was entirely groundless. On one occasion the prosecutor informed the pri- soner that he, the prosecutor, was going on the 21st August to Ohio and Michigan to see his sons, and was going to carry about five hundred dollars to aid them in discharging incum- brances from their land, and that he then wanted the sum of thirteen dollars from the prisoner, which the latter owed him for money lent. The prisoner promised to pay by the day, but failed to do so. On the 21st August, the prosecutor left home early in the morning, came to Whitehall and took passage in the boat which was to leave the next morning on the canal, and went to bed, on board. . About midnight he was awaked by the cap- tain, who informed him there was a man on deck who wished to see him. He got up and went out, and there met the pri- soner, who said he had some business with him and desired him to accompany 1 im to the public house. They left the boat to- gether, and after traveling some distance (30 or 40 rods), no one being in the street the inhabitants in bed the prisoner 200 DECISIONS IN CRIMINAL CASES. The People v. McDaniels. stopped and told the prosecutor to hand him $500. The pro- secutor denied that he had over $300 with him. The prisoner v ,old him he must give him $250 cash and his nt>te for the same amount, or go back and suffer, for he had got a man with him to assist in taking him back. The prisoner also insisted that the $13 note should be given up. After parleying for some time they went to the tavern, and the prosecutor escaped from the prisoner, but was overtaken. The prosecutor said to the prisoner, what do you mean in demanding money of me in this way? I had as lief you had put a pistol to my head and de- manded it as to demand it in the way you are doing it. Do you think it right to take my money from me in this way? The prisoner replied that he felt perfectly clear in doing it, for his God had told him to take $500, for it would not distress the prosecutor or his family, as he owed no body, and if he ob- tained the money he would go off and not trouble him any more. The prisoner then told the prosecutor he must do it immediately or he should take him back that he had a man ready with a horse and wagon, and I should suffer. The pro- secutor declined, and the prisoner said, it seerns you had rather suffer than part with your money, and if you must suffer, you must suffer. The prisoner then walked off a few steps and beckoned as if to some person. The prosecutor was much frightened and called the prisoner back, and said stop, Mr. McDaniels, don't destroy me, don't hurt me. The prisoner re- turned, and the prosecutor agreed to let him have what he had in his wallet, which was $20, and give him a receipt to cut off the $13 note, and agreed to pay $20 more on his return, and prisoner agreed not to hurt him or his family, and to say no more about it. The prosecutor swore that he believed the prisoner, in his threats, had reference to the charge insinuated against him, of having connection with the mare in Vermont, and that he parted with his money out of fear of being taken back and prosecuted in Vermont on that charge. That he was in feeblr health, a stranger in Whitehall, and vas exceedingly alarmed Some other corroborating t^tinxon) was g : vca WASHINGTON. NOVEMBER, 1639. 201 The People v. McDaniels. s The prisoner's counsel moved for his discharge, on the ground that the proof was insufficient, but the court refused to grant the motion. They then demurred to the evidence. The court intimated that a demurrer to evidence was unusual in criminal cases. That the party demurring must not only admit the facts proved, but also all the facts which could be legally and properly inferred from them. The counsel being unwilling to do this, withdrew the demurrer and addressed the J UI 7- Crary, for prisoner. Allen (Dist. Att'y), for the People. WILLARD, Circuit Judge, after recapitulating the evidence and reading the statute definition of robbery in the first and second degree (2 R. S. 677, 55, 56), said: If the jury believe that the prisoner intended to communicate to the prosecutor the idea that he was to be taken back to Vermont, on a charge of having had sexual connection with his mare, unless he de- livered his money, and the prosecutor parted with his money through fear of that charge being made against him when taken back to Vermont, the offence amounts to robbery in the second degree. The prisoner did not, in explicit terms, make any direct charge against the prosecutor; nor is it necessary that he should do so, in unequivocal language, or in any particular form. It is enough if the language he used was intended to communicate such a charge, and was so understood at the time by the prosecutor. The jury found him guilty of robbery in the second degree, and he was sentenced to state prison for six years and six months. NOTE. See 1 Leach's Cr. Cases, 278; 1 Russ. $ Ryan, 145, 375, 408. VOL. I. 26 202 DECISIONS IN CRIMINAL CASES. SUPREME COURT. Albany General Term, September, 1850 Watson, Parker and Wright, Justices. THE PEOPLE vs. ABRAHAM STEIN and al. In an indictment for having feloniously received certain goods and chattels which had been embezzled, knowing them to have been embezzled, it is not neces sary to aver that the person embezzling was the clerk or servant of the owner of the goods and chattels. In a criminal case, one good count is sufficient to support a general verdict of guilty, though the other counts in the indictment are defective. Where several persons are indicted for feloniously receiving embezzled goods, knowing them to have been embezzled, all who are proved to have con- federated in the transaction may be convicted, though the receiving was at different times and places, and though all were not present. Certiorari to the court of sessions of Albany county. The defendants were indicted in the court of sessions of the offence of embezzlement. There were two counts in the indictment. The first count set forth that Abraham Stein, Israel Stein, and John Myers, late of the city of Albany, in the county o f Albany, &c., being persons of evil name and fame and of dis- honest conversation, and common buyers and receivers of stolen goods, on, &c., with force and arms, at, &c., one detached lever watch of the value of twelve dollars, one hunting lever watch of the value of fifteen dollars, one watch of the value of thirteen dollars, one lepine watch of the value of nine dollars, two lepine watches of the value of eight dollars each, &c., &c., (enumerating several hundred articles of jewelry and other property) of the goods and chattels of Lewis Goldsmith, by Moses Barks, then lately before feloniously embezzled of the said Lewis Goldsmith, unlawfully, unjustly and feloniously did receive and have (the said Abraham Stein, Israel Stein, and John Myers, then and there well knowing the said goods and chattels to have been feloniously embezzled), to the great da- mage of the said Lewis Goldsmith, contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity. ALBANY, SEPTEMBER, 1850. The Pople v. Stein. The second count charged a receiving of stolen property, alleging that the defendant, on, &c., at, &c., one detached lever watch of the value of twelve dollars, &c. (enumerating the same property as in the first count), of the goods and chattels of Lewis Goldsmith, by Moses Barks, then lately before felo- niously stolen of said Moses Barks, unlawfully, unjustly and feloniously, did receive and have (the said Abraham Stein, Israel Stein and John Myers, then and there, well knowing the said goods and chattels to have been feloniously stolen) to the great damage, &c., contrary, &c., against, &c. The defendants pleaded not guilty, and the cause was tried before Parmelee, county judge, and the justices of the sessions on the 14th May, 1850. And on the trial the prosecution to sustain the indictment examined several witnesses, and the defendants also examined several witnesses; and the evidence in the cause having been closed, the counsel for the defendants insisted before said court, that the defendants could not be convicted under either count of said indictment, for the following among other reasons, that is to say: 1. Because, although the evidence shows that Moses Barks was clerk and servant of Lewis Goldsmith, yet the first count of the indictment does not aver that fact. 2. Because in an indictment for receiving goods knowing them to be embezzled, the indictment must state the substan- tive fact that such embezzlement was committed by a clerk or servant. But the court held otherwise, and decided that the first count of said indictment was good, valid and sufficient without such substantive fact being stated or averred, to which decision of the court the counsel for the defendants did there and then except. And the counsel for the defendants did further insist and lequest the said court to decide that the second count of said indictment was not supported by the evidence, in that it \r as shown that the property mentioned and described therein was not feloniously stolen of Moses Barks, but of Lewis Goldsmith, 204 DECISIONS IX CRIMINAL CASES. The People v. Stein. if feloniously stolen at all, but the court then and there held and decided the words, " of said Moses Barks" were a clerical error or might be stricken out or disregarded as surplusage. To which decision of the court the counsel for the defendants did then and there except. The counsel for the prosecution and for the defendants then summed up the case to the jury, and the county judge charged the jury. The defendants' counsel then requested the court to charge the jury that the defendants could not be convicted under the first count in the indictment, because it is not averred therein that Moses Barks was a clerk or servant of Lewis Goldsmith, and that the property he is charged with embezzling came to his possession or under his care by virtue of such employment, and that such averment in substance is necessary to render the indictment good against the defendants as receivers of embez- zled property. But the court charged the jury otherwise, and decided that the first count of said indictment was good, valid and sufficient against the defendants as receivers of embezzled property. To which decision and charge of the court the counsel for the defendants excepted. And the counsel for the defendants further requested the court to charge the jury that the defendants could not be con- victed under the second count in the indictment, because such count was not supported by the evidence, by which it appeared that the property described therein was not feloniously stolen of Moses Barks, but of Lewis Goldsmith, if feloniously stolen at all, but the court refused so to charge, and charged that the words " of said Moses Barks" in said second count were a clerical error and might be disregarded as surplusage. To which decision the counsel for the defendants excepted. The counsel for the defendants further requested the court to charge the jury that the indictment being a joint indictment against all the defendants, a joint act of receiving must be proved against all in order to convict all; but the court refused BO to charge, and charged as follows: " If the jury believe that ALBANY, SEPTEMBER, 1830. 205 The People r. Stein. any one of the defendants was guilty of receiving, &c., he could be convicted under this indictment; and that all whom the jury believed to have so received the property could be convicted upon this indictment and under the evidence in the case, though the receiving was at different times and places, and that al- though all the defendants were not present." To which refusal to charge the counsel for the defendants excepted. The jury gave a general verdict of guilty against all the defendants. A. J. Colvin, for the defendants. I. The first count of the indictment is bad, and the court of sessions erred in deciding that it was valid, and that the defend- ants could be convicted upon it. 1. Because embezzlement, as a felony, is a statutory offence; and it is such felony only, when committed by a clerk, agent, servant or officer. It is indispen- sable, therefore, to aver that the embezzlement was committed by a clerk, agent, servant or officer. ( People v. Mien, 5 Denio, 70; Wheaton's Cr. L. 273; 2 R. S. 3d ed. 764, 59.) 2. And because, in the structure of an indictment for receiving property embezzled, it is necessary to aver that it was embezzled con- trary to the statute (2 R. S. 3d. ed. p. 765, 61;) in other words, to aver that the property received was embezzled by a clerk, agent, servant or officer. II. The second count of the indictment was not sustained by the evidence, and the exceptionable matter should not be treated as surplusage. III. The defendants having been convicted upon both counts of the indictment, are entitled to a new trial. 1. Because the party will be entitled to a new trial, if the court committed an error in law, which possibly may have operated to his prejudice. (Coles v. Marquand, 3 Hill, 447.) 2. Because, in a criminal case, the important and controlling question is, whether any error has been committed which could affect the rights of the accused. If there has been such error, however slight it may have been, the conviction should be set aside. (People v 206 DECISIONS IN CRIMINAL CASES. The People v. Stein. Lohman, 2 Barb. 221.) 3, Because, in this case, a discretion is allowed the court in passing sentence. It may sentence for two years on the first count, and three years on the second count, or vice versa; and a general judgment for the prosecution on an indictment containing two or more counts, either of which is bad, and where the punishment is not definitely pre- scribed by law, can not be sustained. (O'Connell and others v. The Queen, 1 1 Clarke and Finnelly's Parliam entary Reports, 155.) IV. The court of sessions was bound to charge as requested, viz: "That the indictment being a joint indictment against all the defendants, a joint act of receiving must be proved against all, in order to convict all." (Rex v. Messingham, 1 Moody's C. C. 257; Rex v. Jlrcher; Ibid. 143.) 1. Because, being an averment f the indictment, it was a fact to be affirmatively shown on the part of the prosecution, and was indispensable to be found, before the jury could convict. 2. Because the de- fendants were entitled to the benefit of the charge, whatever was the nature and degree of the evidence. 3. This was emi- nently a proper case for the court so to charge; and a bill may be. taken, if, in a proper case, the court refuse to give an opinion to the jury. (Douglass v. McJllister, 3 Cranch, 300; Smith v. Carrington, 4 do. 60, 62; 2 Dana, 242; 2 Jlikens, 115.) V. If the refusal to charge was erroneous, the charge itself was much more so. 1. Because (immediately following the refusal) it was calculated, nay, such was its inevitable effect, to mislead the jury; for it was not correct, that all the defend- ants who received the property, could be convicted, though the receiving was at different times and places, and that although all the defendants were not present. 2. The charge would have been correct, had the indictment contained separate counts, for receiving against each defendant; but being a joint indictment, it can, upon no principle, be sustained, (1 Moody C. C. 257; " Carr. and P. 796; 32 Eng. C. Law Rep. 589.) 3. Again, it is erroneous, because the court assumed that the defendants were confederates; a fact which should have been left to the ALBANY, SEPTEMBER, 1850. 207 The People v. Stein. jury to find. 4. Because the defendants could not be confede- rate, unless they were all present, actually or constructively aiding, abetting and assisting. ( 1 Russell on Crimes, 25 to 27, ed. 1845; Com. v. Knapp, 9 Pick. 496; King v. Borthwick, Doug. 207.) 5. Because the jury were charged to convict, if they found a separate receiving of goods embezzled, or goods stolen; in other words, that they were at liberty to convict, under either count of the indictment, and consequently under the first count, which is clearly a bad count. S. H. Hammond (district attorney), for the people. I. The first count in the indictment charges that the defend- ants received the goods of Barks with the knowledge that Barks had embezzled them. The crime charged is receiving them with a guilty knowledge of the embezzlement. The fact that the goods had been embezzled it was necessary to state in the indictment, but not the evidence of the fact. It need not allege the facts necessary to be stated in an indictment for embezzlement, because embezzlement is not the crime charged against the defendant. (Wharton's American Criminal Law, 420; 2 Blackford 103.) II. The second count is good, because 1. If the reading is as claimed by the defendants, the words "of Moses Barks " is a clerical error and may be stricken out as surplusage. ( 1 Leach, 109, 477.) 2. The defect, if any, is not one that can preju- dice the defendants. 3. But the reading is not as claimed by the defendants; a false punctuation is resorted to, to give it that reading. The allegation in fact is, that the defendants received the goods of Moses Barks, as will be understood by placing a comma after the word " stolen" in the indictment. III. The charge of the judge was correct. Every indict- ment, where there are more than one defendant, is joint and several. Three persons are indicted for robbery, one may be convicted and one may be acquitted. IV. The judge's charge properly understood, simply amounts to this, 1. If the jury believed that only one of the defendants 208 DECISIONS IN CRIMINAL CASES. * . The People . Stein. received the goods with a guilty knowledge, they could convict him and acquit the others. 2. If they believed two of them received the goods, they could convict those two and acquit the other, and that it was not necessary in order to convict the two to prove that all the persons indicted were present at such receiving. That the two could be convicted though part of the goods was received by them at one time and place, and a part of them was received at another time and place. V. The judge's charge was in substance what the counsel asked him to charge, and he need not adopt the language of the counsel. VI. Our statutes alter the English rule in regard to criminal trials. Here indictments which are joint may be tried sepa- rately as against each defendant, and if tried jointly the verdict as to each will be the same as though the trial had been several. Suppose these prisoners had been tried separately, and an act of receiving had been proved against the one first tried, clearly he could have been convicted. Suppose when the second one came to be tried, another act of receiving had been proved against him, clearly he could not escape because others were joined with him in the indictment, nor because the one first tried had been convicted and so when the third came on to be tried. Hence we say VII. That a joint receiving by all need not be proved. (7 Carrington Sf Payne, 475; 1 Moody, 143; 1 Carr 4" Kennin, 442; Russ Sf Ry. Cro. Cas. 520; White's Am. Cr. Law, 419; Cow. & HiWs notes, 1050.) PARKER, J. The first count charges that the defendants did unlawfully, unjustly and feloniously receive certain personal property of the goods and chattels of Lewis Goldsmith, which had been feloniously embezzled of the said Lewis Goldsmith by Moses Barks, the said defendants at the time well knowing the said goods and chattels to have been feloniously embez- zled, &c. It is objected that this count is defective in not alleging that Moses Barks was the clerk or servant of Lewis ALBANY, SEPTEMBER, 1800. 399 The People v. Stein. Goldsmith. Such an averment would certainly be necessary iu an indictment against Barks for the embezzling. (People v. Allen, 5 Denio, 76.) So would an averment of time and place in larceny. But it has been decided that an averment of the time and place of a larceny is not necessary in an indictment for receiving the stolen goods. ( 12 Blackford R. 103.) The same averments are not necessary in an indictment for receiving stolen or embezzled goods which are necessary in an indictment for stealing or embezzling. In an indictment for receiving embez- zled goods, the facts necessary to be averred are the felonious embezzling and the felonious receiving. In such case, I think, an allegation of such felonious embezzling and receiving with a description of the property and the name of the owner as well as of the person embezzling, is sufficient, without setting out the particular relation existing between the owner and the person embezzling. The means by which the embezzling was accom- plished need not be stated in an indictment for receiving. It is by means of the peculiar relation existing, that access is obtained and the property converted. An allegation of a felo- nious embezzlement includes within it and covers all the minor circumstances which go to make up the offence. They are matters of proof necessary to support the general allegation put in issue by the plea of not guilty. We think the objection to the first count was not well taken. But if we are wrong on this point, it . is not a reason for reversing the judgment^ if the second count is good. We can not follow the decision of the English House of Lords in 0' Council and al. v. The Queen. (11 Clark fy Fin, 155.) That case was decided by the Law Lords by a vote of 3 to 2 and adversely to the opinions of the majority of the judges of Eng- land, who were consulted. In this state, the law has been regarded as well settled, and it has been repeatedly held, that in a criminal case one good count is sufficient to support a general verdict of guilty, however defective the others may be. (1 Ch. Cr. L. 249; Am.ed. of 1836, ib. 638; People v. Curling, 1 Johns. R. 320; People T. Wiley, 3 Hill R. 194.) Though VOL. L 27 210 DECISIONS IN CRIMIKA-. CASES. The People v. Stein. the law is otherwise in a civil case, for ti e reason that dama- ges are given by the jury, and being entire, the court can not apportion them. There was no valid objection to the form of the second count. If properly punctuated, it alleged tie stealing from Lewis Goldsmith, and the receiving from Mose;. Barks. With this reading of the count, it is not denied but it was supported by the evidence. The court below was asked to charge, that the indictment being joint against all the defendants, a joint act must be proved against all in order to convict all. The court refused so to charge and the defendants excepted. This proposition standing alone and unexplained was undoubtedly correct; but it must be taken and considered as qualified by what the court did charge, viz.: that if the jury believed that any one of the defendants was guilty of receiving, &c., he could be convicted under the indictment; and that all whom the jury believed to have so received the property could be convicted upon the indictment and under the evidence in the case, though the receiving was at different times and pla- ces and although all the defendants were not present. The whole taken together shows clearly that the question made was, whether, to convict all, it was necessary that all should be present at one time and place, engaged in the receiv- ing. And the court rightly held, that all whom the jury believed to have so received the property, that is, all who were proved to have confederated in the transaction, could be convicted, though the receiving was at different times and places, and although all the defendants were not present. The question of the confederacy of the defendants was thus fairly submitted to the jury, and if that was established, those absent as well as those present, were equally guilty. And if all con- federated for the purpose of the transaction, and it was accom- plished, though at different times and places, sometimes a part of the confederates being present and sometimes others, there is no doubt all were properly conv'cted. ALBANY. FEBRUARY, 1851. 211 The People r. Burroughs. We think there was no error committed in the court of ses- sions, and the proceedings in that court must therefore be affirmed and the case remitted, that judgment may be given in accordance with the verdict. Proceedings affirmed. SUPREME COURT. Albany General Term, February, 1851, Harris, Parker and Watson, Justices. THE PEOPLE vs. DANIEL BURROUGHS. Form of an indictment for perjury in falsely swearing that usury was taken in discounting a promissory note. Where it does not appear on the face of the record, by the statement of the is- sue and evidence in the indictment, that the matter alleged to be false is material, it is sufficient to aver in the indictment that the matter, in relation to which perjury is assigned, became and was material upon the trial. Where in a suit brought by a bank on a promissory note, the defendant had testified as a witness in behalf of the endorser, that F., who at that time was president of the bank, had taken usury in discounting the note, it was held, on a trial of the defendant for perjury in giving such testimony, that it was not necessary to set forth in the indictment that F. was acting in the transaction as an officer of said bank, or in what particular way he was connected with the transaction, but that it was sufficient in the indictment to allege that it became a material matter and question, &c., whether the said F. discounted said note, and whether he took usury in discounting it, and then to set forth particularly the testimony of the defendant on those points and the facts as they actually existed, which were inconsistent with such testimony, with the usual allegations of falsity and corrupt intent. An averment in an indictment that the defendant was sworn as a witness between the bank and J. B. , is sustained by proof that the defendant was sworn in a suit brought by the bank on a promissory note against J. B., the endorser, and S. McF. and the defendant, as joint makers, the evidence of the defendant in such case being only available in behalf of the endorser. This case was brought up by certiorari from the Rensselaer Oyer and Terminer. The indictment there found was as fol lows: 212 DECISIONS IN CRIMINAL CASES. The People v. Burroughs. County of Rensselaer, ss. The jurors for the people of the state of New York, in and for the body of the county of Rens- selaer, to wit: Jason Burrell, &c., then and there being sworn and charged to inquire for the said people for the body of the county of Rensselaer aforesaid, upon their oath present that heretofore, to wit, on the twenty-fourth day of January, in the year of our Lord one thousand eight hundred and fifty, at the city of Troy, in the county of Rensselaer aforesaid, before the honorable William B. Wright, one of the justices of the supreme court of the state of New York, at the term of said supreme court held by and before the said William B. Wright (so be- ing one of the justices aforesaid), in and for the said county of Rensselaer, on the third Monday of January in the year last aforesaid, and continued to and upon the said twenty-fourth day of January, in the year last aforesaid, a certain action in said supreme court between the president, directors and com- pany of the Bank of Lansingburgh, plaintiffs, and Daniel Bur- roughs, Samuel McFarland and John Burroughs, defendants, upon a certain promissory note, in the words and figures fol- lowing, to wit: CAMBRIDGE, Jan. 22, 1849. Twenty-five days from date we promise to pay to the order of John Burroughs two thousand dollars at the Lansingburgh Bank for value received. Daniel Burroughs, Samuel McFarland, and endorsed: John Burroughs. And certain issues of fact in the said action came on to be tried in due form of law, and were then and there tried by a jury of the county in that behalf duly sworn and taken between the parties aforesaid to said action, upon which said trial Daniel Burroughs late of the town of Cambridge and in the county of Washington, laborer, then and there to wit, on the said twenty-fourth day of January,, in the year of our Lord one thousand eight hundred and fifty, appeared as a witness for and in behalf of the said John Burroughs, one of the said defend- ants in said action, and was then and there duly sworn and ALBANY, FEBRUARY, 1S51. 213 The People v. Burroughs. took his corporal oath to and before the said William B. Wright, justice as aforesaid, that the evidence which he, the said Daniel Burroughs, should give to the said court and to the said jury, so sworn as aforesaid, touching the matters then and there in question, between the said, the president, directors and com- pany of the Bank of Lansingburgh and the said John Burroughs, should be the truth, the whole truth and nothing but the truth, the said William B. Wright then and there being one of the justices of the supreme court, and then and there having full power and authority to hoH said court at the time and place aforesaid, and then and there having jurisdiction of the said action and the issues aforesaid, and having power and author- ity then and there to try the same, and then and there having full and sufficient power and authority to administer the said oath to the said Daniel Burroughs in that behalf and so as afore- said to swear the said Daniel Burroughs. And the jurors first aforesaid, upon their oath aforesaid, do further present that at and upon the said trial of the said action and of the said issues therein, it then and there became and was a material matter and question between the' said, the pre- sident, directors and company of the Bank of Lansingburgh, plaintiffs, and the said John Burroughs, one of said defendants in said action (the said John Burroughs being complained against in said action by said plaintiffs as endorser of said promissory note upon which said action was brought as afore- said), whether John S. Fake discounted the said note above recited, and upon which said action was brought, and also whether the said Daniel Burroughs paid to the said John S. Fake, at the time of the discounting of said note above recited and upon which said action was brought, any sum of money over and above the lawful interest and discount upon said note last mentioned, and also whether the said John S. Fake dis- counted the note for the renewal of which the said note above recited and upon which said action was brought was given; and also whether the said Daniel Burroughs paid to the said John S. Fake, at the time of the discounting of the said note for the renewal of which the said note above recited and upon 214 DECISIONS IN CRIMINAL CASEb. The People t. Burroughs. which said action was brought was given, any sum of money over and above the lawful interest and discount upon the said note for the renewal of which the said note above recited and upon which said action was brought was given. And the jurors first aforesaid, upon their oath aforesaid, do further present that the said Daniel Burroughs, with force and arms then and there, to wit: On the said twenty -fourth day of January, in the year aforesaid, and at the city of Troy aforesaid, being so sworn as aforesaid, and not having the fear of God before his eyes nor regarding the laws of the state of New York, but being moved and seduced by the instigation of the devil and contriving and intending to prevent the due course of law and justice and unjustly to aggrieve the said, the president, directors and company of the Bank of Lansingburgh, plaintiffs, as aforesaid, and to cause a decision to be made on the trial aforesaid against the said, the president, directors and company of the Bank of Lansingburgh, and in favor of the said John Burroughs, one of said defendants, and thereby to subject the said, the president, directors and company of the Bank of Lan- singburgh to the payment of sundry heavy costs, charges and expenses, then and there on the said trial, upon his oath afore- said, falsely, corruptly, knowingly, willfully, maliciously and feloniously, before the said court and before said jurors so sworn as aforesaid, did depose, testify and swear, amongst other things, in substance and to the effect following, that is to say: That John S. Fake [the said John S. Fake meaning] discounted this note [meaning the said note above recited and upon which said action was brought], and that he [the said Daniel Burroughs meaning] paid him [the said John S. Fake meaning] the in- terest on this note and seven dollars [meaning at the time of the discounting of said note above recited and upon which said action was brought the sum of seven dollars over and above the lawful interest and discount upon said note last named] and that John S. Fake [the said John S. Fake meaning] discounted the note for which this was a renewal [meaning discounted the note for the renewal of which the said note above recited and upon which said action was brought was given], and that he ALBANY, FEBRUARY, 1831. 215 The People v. Burroughs. [the said Daniel Burroughs meaning] paid him [the said John S. Fake meaning] ten dollars over and above the interest [meaning at the time of the discounting of said nole for the renewal of which the said note above recited and upon which said action was brought was given] the sum often dollars over 'nd above the lawful interest and discount upon the said note, f',r the renewal of which the said note above recited and upon which said action was brought was given. Whereas, in truth and in fact, the said John S. Fake did not discount the said note above recited, and upon which said action was brought; and whereas, in truth and in fact, the said Daniel Burroughs did not pay to the said John S. Fake, at the time of the dis- counting of the said note above recited and upon which said action was brought, or a.t any other time, the sum of seven dol- lars or any other sum c - and above the lawful interest and discount upon said note ist named; and whereas, in truth and in fact, the said John S. Fake did not discount the note for the renewal of which the said note above recited and upon which said action was brought was given; and whereas, in truth and in fact, the said Daniel Burroughs did not pay to the said John S. Fake, at the time of the discounting of said note for the renewal of which the said note above recited, and upon which raid action was brought was given or at any other time, the sum of ten dollars or any other sum over and above the lawful interest and discount upon the said note for the renewal of which the said note above recited and upon which said action was brought was given. And so the jurors first aforesaid, upon their oath aforesaid, do say: That the said Daniel Burroughs at and upon the said trial of the said action and of the said issues, on tke said twenty-fourth day ol January, in the year of our Lord one thousand eight hundred and fifty, at the said city of Troy, in the county of Rensselaer aforesaid, before the said William B. Wright, one of the justices of the supreme court of the state of New York, then and there holding a term of the said supreme court [he the said William B. Wright, so as aforesaid, having full and sufficient po-^er and authority to hold such court and 216 DECISIONS IN CRIMINAL CASES. The People v. Burroughs. to administer the said oath to the said Daniel Burroughs in that hehalf] by his own proper act and consent, and of his own most wicked and corrupt mind in manner and form aforesaid, falsely, wickedly, willfully, corruptly, maliciously and feloni- ously did commit willful and corrupt perjury, to the great displeasure of Almighty God, in contempt of the people of the state of New York and their laws, to the manifest perversion of justice, to the evil and pernicious example of all others in the like case offending, against the form of the statute in such case made and provided and against the peace of the people of the state of New York and their dignity. There was a second count in the indictment. The defendant pleaded not guilty, and the traverse came on to be tried on the 30th day of January, 1851, at a court of Oyer and Terminer, in the county of Rensselaer, before Mr. Justice Harris and the justices of the sessions. The district attorney first offered in evidence a record of a iudgment rendered in the supreme court in favor of the presi- dent, directors and company of the Bank of Lansingburgh, against Daniel Burroughs, Samuel M'Farland and John Bur- roughs. The plaintiffs alleged in the complaint that two of the defendants, Daniel Burroughs and Samuel M'Farland, on the 22d day of January, 1849, at Cambridge, in the county of Washington, and state of New York, by their promissory note in writing, dated on the day last mentioned, for value received* promised to pay to the defendant, John Burroughs or order, the sum of two thousand dollars, at the Bank of Lansingburgh, twenty-five days from the date thereof, and that the defendant, John Burroughs, afterwards endorsed the said note, and that the same was thereupon transferred to the plaintiffs. It was further alleged in the complaint that payment of the note was duly demanded at maturity, and th?t it was protested for non- payment, and notice thereof duly given to the endorser, and that the note had not been paid, &c. &c. Daniel Burroughs and Samuel McFarland answered togtlher setting up the defence of usury. John Burroughs answered separately setting up a like defence. To both these answers ALBANY, FEBRUARY, 1851. 217 The People v. Burroughs. replies were put in. It appeared by the record that on a trial at the circuit the plaintiff recovered the amount of the note. To the introduction of this record in evidence, the defendant by his counsel objected on the ground, that the said record did not present an issue to which the allegation in the indictment if sustained, could be material, and also that the said record did not show a trial, and if it did, it fixed it at another time than that laid in the said indictment. The court overruled the objection and admitted the evidence to which the defendant by his counsel excepted. The district attorney then called as a witness Harvy Betts who testified as follows, to wit: I was deputy clerk in January, 1850; I was present at the January term of this court, 1850; Judge Wright held the term; I know defendant by sight; he was sworn as a witness on that occasion in a suit between the president, directors and com- pany of the Bank of Lansingburgh and Daniel Burroughs and others defendants. The district attorney then called as a witness, Marcus L. Filley who testified as follows, to wit: I was present at the trial of the cause referred to in the record, and took minutes of the evidence therein. The defend- ant testified on that trial that he negotiated that note with John S. Fake; he said I brought the note to Fake at that time; I told him I wanted to exchange that note, to let him, Fake, have that note and take out the other, and that, at that time I paid John S. Fake seven dollars over and above the legal interest. He, defendant, testified farther than he procured the discounting of the note for which this note was given in the renewal with John S. Fake, and that he, defendant, paid John S. Fake at that time ten dollars over and above the legal interest. The district attorney then called as a witness Abram B. Olin who testified as follows, to wit: I was counsel for the plaintiffs in a suit spoken of by Filley, and kept minutes of the evidence. He, defendant, testified on that trial when called as a witness, in substance, that John S. VOL. I. 28 DECISIONS IN CRIMINAL CASES. The People v. Burroughs. Fake discounted this note and that he paid him seven dollars, over and above the legal interest; he also testified that the note for which this note was given in renewal, was discounted on his application by John S. Fake, and that he, defendant, agreed to pay, and did pay to Jo.hn S. Fake ten dollars over and above the legal interest for discounting that note. John S. Fake was then called as a witness for the people, and testified in substance as follows, to wit: I did not discount the note referred to, and the defendant did not pay me any sum over and above the legal interest, I do not know whether this note was given in renewal of another note or not. I do not recollect whether I discounted the note for which this was given in renewal. I never took any money of Burroughs over and above the interest, on any paper whatever. Alpheus Warren on the part of the people, testified in sub- stance as follows: I know defendant, I took this note to the bank for defendant, in January, 1819, defendant let rne have the money to pay the discount thereon, I paid it to the Bank of Lansingburgh and returned the balance of the money and the old note to the defendant. Defendant did not pay me any sum over and above the legal interest thereon. Pliny Corbin was called on the part of the people, and testi- fied in substance as follows: The note referred to was dis- counted by the Bank of Lansingburgh, on the 25th day of January, 1849, it was brought to the bank by Mr. Warren. Mr. Alexander Walsh made out the discount on said note, and Warren handed me some money and Walsh took out the dis- count on said note, and returned back the balance of the money, and I handed it to Warren. Defendant had some 17 or 20 notes discounted apd renewed at the Bank of Lansingburgh from October 1848, -> February 1849 for $2000 each. Alexander Walsh on the part of the people, testified in sub- stance as follows: I computed the discount on this note. I am teller of the Bank of Lansingburgh. I took out the discount and expense 6"f protest, and retained no more, and handed the balance of the money and old note back to Warren. There was testimony, also, introduced on the part of the ALBANY, FEBRUARY, 1851. The People v. Burroughs. defendant corroborating the testimony of the said defendant. I was in the former suit. It was admitted on the trial of the indictment that John S. Fake was, at the time of the alleged discounting of the note, president of the Bank of Lansing- burgh; and that it was so proved on the trial upon the note. After closing the testimony, the defendant's counsel raised the following*points of law touching the said indictment, and the matters therein charged against the said Daniel Burroughs, and asked the court to direct a verdict of acquittal, and also asked the court to charge the jury: 1st. That said indictment charged no offence, and alleged no issue that could have been material on the trial of the former suit. 2d. Any charge as laid in the indictment that Fake took usury did not even conduce to prove the issue, that the bank took usury on that note which was the only issue in that suit. 3d. The indictment varied fatally from the record as to what was the material issue in that suit. The record showed the issue to have been that the bank discounted the note usu- riously. The indictment showed the issue to have been that Fake discounted and took the usury. 4th. That there was a fatal variance between the indictment and the proof on two points. 1st. As to Burroughs being called and sworn as a witness on the issues between the plaintiffs and John Burroughs only (such being the allegation in the indictment), when the proof showed he was called and testified for both John Burroughs and McFarland. 2d. The proof showed that the real discounting was by the bank (not by Fake individually), and so sworn by Burroughs. But the indictment charged that he swore that Fake individu- ally discounted the note. These objections were severally overruled by the court, to each of which decisions the counsel for the defendant excepted. The defendant was found guilty and sentence suspended for the purpose of taking the opinion of the supreme court. 220 DECISIONS IN CRIMINAL CASES. The People v. Burroughs. R. W. Peckham, for the prisoner, made the following points: I. That said indictment charges no offence and alleges no issue that could have been material on the trial of the former suit. IL Any charge, as laid in the indictment that Fake took usury, did not even conduce to show that the bank took usury, on that note, which was the only issue in that 'suit. 1. The testimony of the prisoner was not shown to be material to the issue in the civil suit. The people were bound to show its materiality. (Roscoe's Cr. Ev. 3 ed. 820; 3 Starkie, 3 ed. 859; 2 Russell on Crimes, 5 Jim. ed. 662; W/ieaton Criminal Law, 423, 483.) 2. There is no proof in the case that Fake had authority to act for the bank. That the by-laws authorize him to act, or that he was accustomed so to act, when he discounted a note. His being president did not make him the bank, cer- tainly not without further proof. 3. If intended to insist that Fake acted as president, it should so have been interpreted by innuendo in the indictment, and should have been sustained by proof of his authority or practice ratified by the bank. Here the people show that the prisoner swore, on an issue whether the bank took usury, that Fake took usury can they convict the prisoner of perjury, by showing that the bank took no usury? It is gravely said that Fake was proved to be president of the bank. What then? He may also have been preacher of St. Paul's church. Does that vary his act? It is a mere description of the person. It in no manner, so far as shown, makes his act the act of the bank or of the church; (6 Hill, 240) further proof might make it so, but that must be given by the people. III. The indictment varies fatally from the record as to what was the material issue in that suit. The record shows the issue to have been that the bank discounted the note usuri- ously. The indictment shows the issue to have been that Fake discounted and took the usury. IV. There is a fatal variance between the indictment and the proof, on two points: 1. As to Burroughs being called and ALBANY, FEBRUARY. 1851. 221 The People v. Burroughs. sworn as a witness on the issues between the plaintiffs and John Burroughs only (such being the allegation in the indictment). The proof shows that he was called and testified both for John Burroughs and McFarland. 2. The proof shows the real dis- counting to have been by the bank, not by Fake individually, and so sworn by Burroughs. But the indictment charges that he swore that Fake individually discounted and took the usury. (2 Salk. 224; 2 Russell on Crim. 660; Roscoe's Ev. 771; 2 Starkie, 624; Peake's Ev. 155.) V. The exception to the introduction of the record was well taken. (Roscoe's Cr. Ev. 768; 7 Carr, fy Payne , 559; Roscoe's Cr. Ev. 757.) /. K. Porter, for the people. I. The indictment alleges that certain questions became and were material upon the trial; and the assignment of perjury relates to the testimony of the defendant in relation to those matters. 1. Where the materiality of the testimony appears from the statement of the issue and the evidence, no averment of materiality is necessary. (8 Wendell, 636.) 2. Where it does not so appear, it is sufficient to aver in the indictment that the matters in relation to which perjury is assigned, became and were material upon the trial. (Wharton's Criminal Law, 482; 1 Nott fy McCord, 546, 553; 1 Devereux Rep. 519; 12 Mass. R. 274; 5 Durnf. $ East, 311, 318-9: 2 Russell on Crimes, 541; 4 Wentworth PL 239, 240; 5 Wendell, 20.) II. The indictment charges the offence of perjury, and avers every fact essential to sustain the charge. 1. It alleges that the oath was duly administered; that the testimony was given in an action at law, and before a competent tribunal; that the evidence was material and false; and that it was given wick- edly, corruptly and feloniously. 2. Such an indictment is good at common law. (Jlrchbold's Cr. PI. 568.) 3. The indictment avers every fact, which, under the statute, constitutes an in- gredient of the offence, and such an indictment is always held 222 DECISIONS IN CRIMINAL CASta. The People v. Burroughs sufficient, except in cases of treason. (1 Baldwin's R. 79, 119; 2 Gallison R. 15, 18.) 4. " The indictment in this case con- tains the substance of the offence, with the circumstances ne- cessary to render it intelligible, and to inform the defendant of the allegations against him." This is all that is requisite. (5 Wendell, 9, 20.) f III. The testimony of the defendant was upon questions which are shown to have been in fact material upon the trial. 1 The allegation of John Burroughs was, that the note was dis- counted by the corporation at a usurious rate. 2. To prove this allegation, the defendant was called, who testified that it was discounted by John S. Fake, at a usurious rate. It was proved that Fake was the president of the bank. It was ad- mitted by the pleadings that the loan was made to the defend- ants by the bank; thus establishing the fact that the act of Fake was the act of the bank through him, as its presiding officer. 3. It is not necessary that the evidence should be material to the issue. It is enough if it tended to establish a fact, which might, when connected with other facts, establish a defence- (2 L'd Raymond, 889; 12 Modern R. 142; 2 Russell on Crimes 541; Roscoe's Crim. Ev. 682.) IV. The objections to the introduction of the record were not well taken. 1. The issue which it proved, was one in relation to which the testimony of the defendant not only " could be material," but was material; *br if true the note was void in its inception. 2. But if otherwise, it was no objection to the re- cord that it did not prove all the averments of the indictment. Other evidence was introduced subsequently to establish the materiality of the testimony. 3. The objection that the record did not show a trial, was unfounded in fact. 4. The record did not fix the time of the trial. That was proved by the clerk. V. The objection, that the defendant was sworn on the par- as well of M'Farland as of John Burroughs, is entirely un- founded. 1. The defendant and JVTFarland were joint makers. The endorsers pleadryi separately. The indictment states that defendant testified on the trial on behalf of John Burroughs. It is proved that he did. If the testimony enured also to the AI.BAXI, FEBRUARY, 1851. The People v. Burroughs. benefit of M'Farland, that fact was not proved. 2. Unless the fact and the averment are necessarily in direct antagonism, the defendant is not entitled to the presumption that the averment is inconsistent with the evidence. (Whartun's Cr. Law, 482; Ryan Sf Moody, N. P. 302.) 3. If there was a variance, and evon a misdescription of one of the parties, it would not pre- judice the indictment. (2 Russell on Crimes^ 539; 2 Campbell's R. 109.) VI. The objection of variance between the indictment and the proof, as to the discounting of the note, rests upon erroneous assumption of fact. 1. On the trial of the civil cause, it was admitted of record, and conceded by all parties that the note was discounted by the corporation. 2. The corporation could only discount through some officer of the bank. Some officer did it, and it was material to know who the officer was, and what were the terms of the discount. 3. It was proved on that trial that Fake was president of the bank, and the defendant was called to prove two facts: 1st. That he was the one who discounted it; 2d. That the discount was at a usurious rate. On both these counts he swore falsely. 4. If the jury had be- lieved his evidence, it was clear that the bank loaned him the money at a usuries rate, and the fact that it made the loan through its officer, did not make it any the less the act of the bank. VII. There is no variance or imperfection in the indictment, but if those which are alleged existed, they belong to that class which our courts have adjudged to be " matter of form'* within the meaning of the statute. (5 Wendell, 10, 19, 20; 2 R. S. 728, 52; 12 Wend. 45, 431; 3 Barbour, S. C. R. 470.) Per Curiam. We think the offence sufficiently charged in the indictment. It was enough to aver that the matters, in relation to which perjury was assigned, became and were ma- terial upon the trial. It was unnecessary to aver that Fake was acting as an officer of the bank, or to state in what other way he was connected with the transaction. That is left to be proved on the trial, under the general averment of materiality. 224 DECISIONS IN CRIMINAL CASES. The People v, Tompkins. We think the indictment sufficient, and that it was supported by the requisite proof. The objection to the introduction of the record in evidence was properly overruled. There was no variance between the allegation in the indict- ment that the prisoner was sworn and examined in behalf of John Burroughs, and the proof that he was sworn and examined in the cause. Being a joint maker with Samuel M'Farland, his tes timony could not have been received for him, and could only be made available in favor of the endorser. The proceedings of the Oyer and Terminer must be affirmed and the cause remitted to that court that sentence may be pronounced. SUPREME COURT. At Chambers. Before Justice Edmonds City of New York, February 25, 1851. THE PEOPLE vs. RAY TOMPKINS. Where, on a return to a writ of habeas corpus, it appears that the prisoner was detained by virtue of a warrant issued by a police justice, upon com- plaint on oath, the officer, before whom the habeas corpus is pending, has a right to go behind the warrant and inquire into the legality of the imprison- ment. To constitute the crime of obtaining property by false pretences under the statute, two things are essential, viz., a false representation as to an existing fact and a reliance upon that representation as true. Where, from the depositions taken before the police justice, it appeared that N, agreed to sell to T one hundred shares of stock, deliverable and payable the next day, and on the next day, before transferring the stock, N sent for T's check and received for answer that T had sent his check to be certified and would send it to N in ten or fifteen minutes, and relying upon this state- ment N thereupon transferred the stock to T, htld, that it was apparent that N's reliance was on the promise and not on the representation that the check had been sent to be certified, and that a case was not shown within the statute, especially as there was no proof showing that the check had not been sent to be certified, and the prisoner was discharged. Forms of writs of habeas corpus and certiorari, of the allowance thereof and of/the return thereto. NEW YORK, FEBRUARY, 1851. 225 The People v. Tompkins. On the 25th day of February, 1851, an application was made in due form of law by Ray Tompkins, to Mr. Justice Kdmonds, for a writ of habeas corpus to be directed to Isaac Edw ards, a police officer of the city of New York, then having the said Ray Tompkins, as was alleged, in custody; which writ was as follows: The people of the state of New York, to Isaac Edwards, greeting: We command you that you have the body of Ray Tompkins, by you imprisoned and detained, as it is said, toge- ther with the time and cause of such imprisonment and detention, by whatsoever name he shall be called or charged, before the Hon. John W. Edmonds, at the chambers of the said judge, No. 5 Brevoort Place, in the city of New York, on the 25th day of February instant, at 7 o'clock, P. M., to do and receive what shall then and there be considered concerning him, and have you then and there this writ. Witness, John W. Edmonds, esquire, one of the justices of the supreme court, on the 25th day of February one thousand eight hundred and fifty-one. G. W. RIBLETT, Clerk, JONAS B. PHILLIPS, Attorney. Allowed February 25, 1851. J. W. EDMONDS. Under which writ, the said Tompkins was brought before the said justice, and the return being suspended till the 27th of February, 1851, he was remanded and continued in the custody of officer Edwards aforesaid. To the said writ return was duly made by the said Isaac Edwards in the words and figures following, to wit: I, Isaac Edwards, one of the policemen of the city of New York, upon whom the annexed writ of habeas corpus was served, hereby return to said writ: That I hold and detain the said Ray Tompkins therein named, in my custody. That I do hold and detain him under and by virtue of a warrant, a copy whereof is hereto annexed, and the original whereof I now pro VOL. I. 29 22Q DECISIONS IN CRIMINAL CASES. The People v. Tompkins. duce. J And I further return that the said writ of habeas corpus was served upon me in the police office, Halls of Justice, in thh city, after I had written my -return upon the said original wai rant, but before I had actually returned the same. February 27th, 1851. ISAAC EDWARDS. State of New York, city and county of New York: To any constable or policeman of the city of New York: Whereas, complaint on oath has been made before the mi dersigned, cue of the police justices for preserving the peace in the said city, by Benjamin Nathan: That at the city of New York, on the 29th day of January, 1851, Ray Tompkins did designedly, and by means 01^ false pretences^ cheat and defraud the said Nathan out of one hundred share? of the stock of The Farmers' Loan and Trust Company, of the value of three thousand dollars and more, the property of the said Nathan. These are, therefore, in the name of the people of the state of New York, to command you, the said constables and policemen, and every of you, to apprehend the body of the said defendant, and forthwith bring him before me, or some other justice of the peace, for the city and county of New York, at the police office, Halls of Justice, Centre street, in the said city, to answer the said charge, and to be dealt with as the law directs. Given under my hand and seal, this 21st day of February, 1851. J. LOTHROP, Police Justice. And the prisoner made answer to the said return in the words and figures following: In the matter of RAY TOMPKINS Before the Hon. John W. Edmonds, on return of habeas corpus. The answer of Ray Tompkins to the return made by the officer to the writ of habeas corpus, shows that this defendant denies that the magistrate had any authority whatsoever to issue a warrant for the arrest of him, the said defendant; that there was no complaint or testimony before said magistrate, showing NEW YORK, FEBRUARY, 1851. 227 The People v. Tompkins. that this defendant had been guilty of any criminal offence, or that any criminal offence whatsoever had been committed, to authorize or justify the issuing of said warrant. And this defendant further answering, avers that no return had been made by the officer to said warrant at the time the writ of habeas corpus was served upon said officer in whose custody defendant was at the time of the service of said writ. That the officer, it is true, had endorsed a return upon snid warrant; but the same having never been returned, he (the said officer) erased such endorsement by drawing ink lines across and through the writing thereof, as he is informed and believes. RAY TOMPKINS. City and county of New York, ss: Ray Tompkins being duly sworn, says that he has read the foregoing answer by him subscribed, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated to be upon his information and belief, and as to these matters he believes it to be true. RAY TOMPKINS. Sworn to before me, Feb. 27th, 1851. J. W. EDMONDS. Judgment being again suspended on the said writ until March 3d, A. D. 1851, on that day the prisoner was again brought up, and again remanded until the 7th day of March, A. D. 1851, and again on that day remanded until March 14th, 1851, A. D. when final hearing was had. On the 26th day of February, a writ of certiorari on the application of the said Ray Tompkins was also allowed by his Honor Judge Mitchell, as will fully appear by the said writ and endorsement thereto as follows: The people of the state of New York, to Jeremiah Lothrop, justice police court, and Isaac Edwards, policeman, greeting: We command you, that you certify fully and at large to the justices of the supreme court, at the City Hall, on the 27th of February, A. D. 1851, the day and cause of the imprisonment DECISIONS IN CRIMINAL CASES. The People v. Tompkins. of Ray Tompkins, by you detained as is said, by whatsoever name the said Ray Tompkins shall be called or charged: and have you then this writ. Witness John W. Edmonds, presiding justice, the 26th day of February, 1851. GEO. W. RIBLETT, Clerk. L. s. JONAS B PHILLIPS, Att'y. Endorsed Certiorari allowed, returnable on the 27th inst. before Judge Edmonds, February 26, 1851. W. MITCHELL. To this writ return was made by Justice Lothrop, in the words and figures following, to wit: City and county of New York, ss. Complaint having been made to the undersigned, one of the police justices for the city of New York, that a criminal offence had been committed in said city, and that the said criminal offence had been committed by Ray Tompkins; and the said Ray Tompkins having been brought before me, accompanied by his counsel, the first day of February, 1851, and from time to time thereafter, until the 24th February, 1851,1 proceeded to examine under oath, Benjamin Nathan, one of the complain- ants, and other witnesses produced in support of said complaint, the said Ray Tompkins and his counsel being present through the whole of said examination, and the said counsel for the said Ray Tompkins fully cross-examining said witnesses, which said examination and cross-examination, are as follows: City and county of New York, ss. Benjamin Nathan, No. 77 Merchants' Exchange, sworn. I am a broker, of No. 77 Merchants' Exchange. I am ac- quainted with Ray Tompkins; he was a stock and exchange broker; it was in Wall street near Broad street; I have had one business transaction with him previous to the last. I sold him on the 28th January last one hundred shares of capital stock deliverable and payable the next day; this agreement to sell was at the second board of the board of brokers, in the Mer- NEW YORK FEBRUARY, 1851. 229 The People v. Tompkins. chants' Exchange, in the board of brokers' room. Previous to my transferring the stock to Mr. Tompkins on the 29th, I sent my brother, Jonathan Nathan, to Mr. Tompkins for Tompkins' check for the payment of the stock, which was three thousand three hundred and sixty-two dollars and fifty cents. This was in the neighborhood of one o'clock; the board of brokers had adjourned about half-past twelve o'clock of that day. I had not seen Mr. Tompkins on that morning before I sent for the check. My brother was gone five minutes,, and returned without the check; my brother said, that Tompkins had told him that he had sent his check to the Merchants' Exchange Bank to be certified, and that he would send it to me in ten or fifteen minutes, as soon as the boy would return with the check. I then went to the office of the Farmers' Loan and Trust Company, and trans- ferred the stock to Mr. Tompkins; I made the transfer in five or ten minutes after my brother had returned; I made the trans- fer in the books of the company to Ray Tompkins; I at this time owned the stock; I transferred one hundred shares to him. The reason that induced me to transfer this stock was that I was told he had sent his check to be certified, and would send it to me; I believed this representation; I went from the com- pany's to my other business; I left the stock transferred to Tompkins, who was present at the time I transferred the stock to him; he was standing next to me; nothing passed between us at that time. He was not in the office when I went in, but came in before I made the transfer; he came in immediately after I got in the office; he was present and heard me give directions to the clerk to transfer the stock to him. When I returned to my office, I found no certified check from Mr. Tompkins. On making up my money and checks at about two o'clock, I found that no check had been received from Tomp- kins; I went to his office; he was not in; this was a quarter past two or half past two o'clock; I saw a young man by the name of Harrison, and the clerk of Tompkins; I de- manded of the clerk a check; he said Mr. Tompkins had taken my check with others to the bank to be certified, and would be back in a few minutes; I waited ten minutes and Tompkins did 230 DECISIONS IN CRIMINAL CASES. The People v. Tompkins. not appear, and the clerk said he would go over to the bank and see if Mr. Tompkins was there, and what detained him; he left and I waited in the office; Mr. Tenbrook soon after went to the Merchants' Exchange Bank. On our way we met the clerk returning, who said Mr. Tompkins was not there. I went to the Merchants' Exchange Bank and he was not there. I returned to Tompkins' office, it being then about three o'clock; soon after the clerk opened the drawer where lay several checks, mine amongst the rest, one payable to my order signed Ray Tompkins, on the Merchants' Exchange Bank, for $3,362*50 not certified. Previous to my taking the check the clerk told me not to take the check, and he would give it to me. I took the check, but from his hand or not I can't say. I ran with the check to the bank and payment was refused for want of funds. I then went back to Tompkins' office; the clerk was there, also Minthorne Tompkins, but not Mr. Tompkins; I next saw Mr. Tompkins at the police court. I don't know the clerk's name except that they call him Archy; he was a young man; I do not know if he was or not a book keeper. I saw no other clerk than this one at Tompkins' office after two o'clock. The check has never been paid; I don't know what was done with the stock; I have not seen the books of transfer since I trans- ferred my shares to Tompkins; I heard Mr. Tompkins give some directions to Mr Boyd, the transfer clerk, just as I was leaving after making my transfer to him; I did not understand what it was. Cross-examined. I don't know how long Mr. Tompkins has been in the board of brokers; I have known him six months; his character in the board in regard to integrity was fair; 1 don't know that it was unusually high; he was in the habit of attending the board; I have heard him buy and sell in the board. I understood he lived in the country, but I don't know. I think this stock was sold to him on Tuesday: I had one hundred shares of stock for sale at a certain price: Mr. Tompkins made .me an offer. I had announced publicly one hundred shares of the stock for sale, and Tompkins said I will give one quarter, and I said I will sell for half, and he said a quarter at most, NEW YORK. FEBRUARY. 1851. The People . Tompkins. and I said, well, I will sell you one hundred shares at that rate; he never asked me to transfer this stock; the usual time of transfer is between 12 and 2 o'clock; I received no message from Tompkins until I sent for a check; I was in my office when I sent for the check; I did not know that Mr. Tompkins was to deliver the stock to any other person, but I presumed so. The stock was not in my name, but I was the owner of it. I had bought it in the morning of Wood & Co., but had not yet had it transferred; I sold one hundred shares of other stock on this day on time. When I sent for the check, I said to my brother, go and get Mr. Tompkins' check; this was about one o'clock; he was gone five or ten minutes; my brother reported that Mr. Tompkins would send me his certified check in a few minutes. Tompkins' office was further from mine than the Stock Com- pany's office; I did not exchange a word with Tompkins on that day; he was close to me in the stock office. I transferred one hundred shares of other stock; I understood that Tompkins was at the stock office to transfer this stock to some one else; it occupies most of the time between the meetings of the board to transfer the stock; I paid for my stock before I went to the board of brokers; I can't tell, but I think I was back to my office at 2 o'clock, where I remained a quarter of an hour be- fore I went to Tompkins' office; I found that Tompkins' check was not sent to me at about a quarter past two o'clock; that is the usual hour of making up their accounts and deposit; it is between two and three o'clock. I had been in my office ten or fifteen minutes before I discovered his check was not in. I made no inquiry about Tompkins' check until my brother told me it was not there; the clerk, "Archy," told me, as I understood, that Tompkins said he was going to get my check certified when he went out; my impression is that " Archy, 1 ' the clerk, said that Tompkins said, when he went from the office, that he was going to get his check certified for me; I understood it so. I can't say positively whether I took the check out of " Archy V hands or from the counter; I was excited at the time; I had been excited for som^ time from about three o'clock or about that time; I had been very uneasy, from fifteen minutes before 232 DECISIONS IN CRIMINAL CASES. The People . Tompkins. three, but I became excited at the time I found that the checks were in the drawer; " Archy" opened the drawer; the right I had to that check was, that he had my property without giving me any consideration, that is the right I claimed to the check. I have the check, here it is; I got this check after three o'clock it is not the common practice to pay checks after the bank is closed. I went from the bank to Tompkins' office, and from there to Mr. Cutting's office. I went to Mr. Tompkins' office after I left Mr. Cutting's office; I close my office after the usual office hour. After this, went to Drew & Robinson's office, and to the office of Gilbert & Johnson, and from there to the office of the chief of police, which was six or half past six o'clock. I there made a complaint before the chief, but it was not reduced to writing I did not swear that he had absconded or was concealed; I did not swear that in substance; I did not get a warrant, but I asked to have him arrested, and I believe he was arrested. I have never presented that check to that bank since. Direct resumed. A transaction previous to this was for stock sold to Tompkins about fifteen or twenty days previous; he paid me for that stock by my sending for his check; did not obtain it, but he afterwards sent me a certified check upon the Merchants' Exchange Bank. I transferred the stock before I received the check. BENJ. NATHAN. Sworn before me this February 1st, 1851. J. LOTHROP, Police Justice. Accompanying this affidavit, were the affidavits of Jonathan Nathan, Herman Johnson, William O'Kell, Le Grand Lock- wood, Wm. W. Gilbert, John P. Duffy, William M. Clark, John Thompson, Edward H. Arthur, Robert C. Boyd and others. The hearing upon the above writs of habeas corpus and cer- tiorari was postponed from time to time, and lecided on the llth of April, 1851, after argument of counsel. JV. Bowditch Blunt (district attorney), and W. C. JVbyes, for the people. NEW YORK, FEBRUARY, 1851. 333 The People v. Tompkins. Ogden Hoffman, and John Van Buren, for Ray Tompkins. EDMONDS, J. It was very strenuously urged on the argu- ment of this case, on the part of the public prosecutor, that on habeas corpus the court or officer had no right to go behind the warrant on which the prisoner was detained, and inquire from facts out of the return into the legality of the imprisonment. The effect of this principle would be, that the warrant of a committing magistrate, when legal upon its face, would be conclusive upon the prisoner, and he could have no relief from imprisonment, even if no charge whatever had in fact been preferred against him. The proposition was of so grave a character, and was fraught with consequences so palpably mischievous, and was withal asserted with so much zeal, and apparently with the support of authorities, that I have examined the subject very carefully, and rejoice to find that there is no authority to shake my previous convictions on this subject. The most prominent authority cited in support of the propo- sition is note 30 to the appendix, in 3 Hill, 659 where it is broadly laid down, that under our act of 1818, and under sec. 50 of our present habeas corpus law (2 R. S. 471) if the object be to impeach the warrant as irregular, or as founded on an irregular or erroneous judgment, decree or conviction, you can no more inquire of such things collaterally by habeas cor- pus than by action or indictment, and that our statute was not intended as an authority to inquire into the validity of writs, warrants or other process, further than to ascertain whether they will protect the party suing them out, or the officer serv- ing or executing them. So far as this relates to " judgments, decrees and convic- tions," it is unquestionably correct, for they can not be inquired into collaterally j but so far as it relates to writs, warrants or other process, before final judgment, it is far from being correct, and it is unsupported by any authority, except a dissenting VOL. L 30 234 DECISIONS IN CRIMINAL CASES. The People . Tompkins. opinion of one of the judges in- the matter of Prime, &c. ( 1 Barb. Sup. Co. Rep. 349.) Three cases are cited in the note in question in support of the proposition in its broadest form. The first is the case of the sheriff of Middlesex. (11 M. fy Ellis, 273.) In that case the court held, that it did not come under the 56 Geo. Ill, which is our statute, under which the proceeding is now before me, and the main question decided was, whether a process of con- tempt was good which omitted to state the particulars of the contempt. The position which it is cited to support was not raised in the case at all, nor indeed could it be, for the process was final in execution of a final judgment of contempt. The next case is, The People v. Nivens. (1 Hill, 154.) That, also, was final process of contempt, and the question now before me was not raised, nor even alluded to in the whole case. The matter of Clark (9 Wend. 212), is the remaining one cited in the note. That was an extradition case of a fugitive from justice, under the constitution of the United States, and the court held, that the question before it. was, under the con- stitution, not one of guilt or innocence of the accused, but whether he was properly charged, so as to warrant the gover- nor in surrendering him. It will be very readily perceived, that none of these cases support the principle contended for. The district attorney, however, cited other cases in support of his proposition. Among them, Bermac v. The People. (4 Barb. 31.) That again was a case of final process, in execu- tion of a summary conviction, and the counsel for the prisoner did not traverse the return, so that at first blush it is manifest that it does not touch the question before me. Another case is, The People v. Cossets (5 Hill, 168), which was also a commitment for contempt, and the court held that the prisoner had an undoubted right to show that the commit- ting magistrate acted without authority, and that this was so, notwithstanding the commitment recited the existence of the necessary facts to give jurisdiction. And they add, what is NEW YORK, FEBRUARY, IS3!. 235 The People v. Tompkins. alike good sense and good law, na court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends. The case of McLeod ( 1 Hill, 377), is the only remaining one cited for the prosecution. There the question was, whether the court on habeas corpus would go behind an indictment to exam- ine the question of guilt or innocence; and the court in refusing to do so, expressly admit the propriety, in case of a commit- ment on a coroner's inquest, to look into the depositions and say, that it was not necessary to inquire how far they might go were the prisoner in custody on the mere examination or warrant of a committing magistrate. These are all the cases which I can find, or to which I have been referred in support of the doctrine contended for in behalf of the prosecution. They do none of them sustain the doctrine, and it is well they do not, for the habeas corpus would be a mockery, whenever a magistrate might please to make the instrument of oppression and false imprisonment formal and regular on its face, and personal liberty would be at the mercy of ignorance or design, beyond anything yet known to our laws, careless as they too frequently are of freedom in the detail, from the abundance of it in the gross. I have always understood that it was the intention to give to a party committed for a crime by an examining magistrate, an appeal from his commitment to the higher judges, by virtue of the writ of habeas corpus, and such has uniformly been my practice. The practice is abundantly sanctioned by authority and stat- ute. Thus, in the very notes in 3 Hill, which are so much rtlied upon, it is laid down that on a commitment by final-, process upon a summary conviction, the record of conviction may be examined, and if it be void, the prisoner will be discharged. ( Note 38, p. 665.) So, where the arrest was without the ter- ritorial jurisdiction of the court; so, w r here the prisoner was carried before a* remote justice, when there was one nearer before whom he ought to have been carried. (Ib, note 39.) So, 236 DECISIONS IX CRIMINAL CASES. The People v. Tompkins. where in a criminal case the warrant is void, the original depositions will be looked into to see whether an offence has been committed, so that the prisoner may be remanded, or held to bail. (Ib. note 40). In case the commitment be for felony, the prisoner may, if brought up before the indictment, insist that the depositions be looked into as a part of the document- ary authority on which the commitment was founded. For this purpose, copies may be brought up by certiorari. (Ib. note 43.) And in Note 45 it is said, the accused who appeals by habeas corpus, must, at his peril, show that he has been committed on insufficient evidence, and where the charge appears to be wholly groundless and without suspicion, the prisoner may be dis- charged. For this the writer cites 1 Chitty Cr. Law 128, where it is said, that if the court ascertain that there is no pretence for imputing to the prisoner any indictable offence, they will discharge him; and Bultman and Swartwout's case (4 Cranch, 125), where the United States Supreme Court, chief justice Marshall delivering the opinion, quotes this passage from Chitty as that of a very learned and accurate commentator, and where the prisoners were discharged on habeas corpus. In ex parte Tayloe (5 Cowen, 51), the supreme court say, that in all cases on habeas corpus previous to indictment, the court will look into the depositions before the magistrate, or before the coroner's inquest, and though the commitment be full, and in due form, yet if the testimony proves no crime, the court will discharge or bail. In the matter of Prime (1 Barb., 349), the court looked beyond the warrants, and into the affidavits, to see that the judge had colorable jurisdiction. In ex parte Watkins (3 Peters, 202), Ch. J. Marshall described the writ of habeas corpus as in the nature of a writ of error, which brings up the body of the prisoner with the cause of commitment, and he adds the court can undoubtedly inquire into the sufficiency of that cause; and Chancellor Kent, in his commentaries, (vol. 2pp. 28, 31,) says' that the act of 1818, which is now incorporated into the revised statutes, NEW YORK. FEBRUARY, 1851 237 The People v. Tompkins. gave to the officer before whom the writ of habeas corpus was returned, authority to revise the cause of commitment and to examine into the truth of the facts alleged in the return, and the officer may examine into the merits of the commitment, and hear the allegations and proofs arising thereon in a summary way, and dispose of the party as justice may require. The language of the statute is equally explicit Section 38 enacts, that the court or officer before whom the party shall be brought on such writ of habeas corpus, shall immediately after the return thereof, proceed to examine into the facts contained in such return, and into the cause of confine- ment or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter or not Section 43 enacts, If it appear that the party has been legally committed for any criminal offence, or if he appear by the testimony offered with the return, or upon the hearing thereof, to be guilty, c., he shall be remanded, and by section 48, it is enacted, that the prisoner may deny the facts in the return, or allege any fact to show his imprisonment unlawful, and thereupon the officer shall proceed to hear the proofs and allegations produced on either side, and dispose of the party as the justice of the case may require. It is under this array of authority, settling thus clearly at once my authority and my duty, that I approach the main question involved in these proceedings. And here two things are apparent: 1. That the act imputed to the defendant is not a crime; and 2, that it is not proved. The offence charged is, that on the 29th day of January, 1851, Ray Tompkins did designedly, and by means of false pretences, cheat and defraud Benjamin Nathan out of one hundred shares of the stock of the Farmers' Loan and Trust Co., of the value of $3,000, and more. From the depositions, it appears that, on the 28th of Janu- ary, Nathan agreed to sell to Tompkins one hundred shares of that Co., deliverable and payable the next day. On the next day, before transferring the stock, Nathan sent for a check, and DECISIONS IN CRIMINAL CASES. The People v. Tompkins. received for answer that Tompkins had sent his check to bt certified, and would send it to Nathan in ten or fifteen minutes, and relying upon this promise, Nathan thereupon transferred the stock to Tompkins. Tompkins never asked to have it trans- ferred to him; but the usual time for transferring having arrived, Nathan, without any request from Tompkins, trans- ferred it. A previous transaction between these parties had been conducted in the same manner. Nathan having transferred the stock on that occasion and afterwards received Tompkins' certified check. Upon this state of things, it is perfectly apparent that Nathan's reliance was upon the promise, that a check would be sent in ten or fifteen minutes, and not solely on the fact that Tompkins had sent his check to be certified. And nothing can be- better settled than the rule, that such a promise is not a false pretence under the statute. To constitute the crime under the statute, two things are essential: a false representation as to an existing fact, and a reliance upon that representation as true. Both these ingredi- ents are wanting in this case; for the reliance evidently was mainly on the promise to send the check. This in no respect constitutes the crime. The only representation of an existing fact that there is to be found in the case, is that in respect to Tompkins having sent his check to be certified His having done so would be of no possible value to Nathan, unless it had been followed up by being sent to Nathan, and it is apparent that Nathan's reliance was upon Tompkins' credit and his promise to send him the check, and not upon the fact that he had sent it to be certified a fact which alone could be of no value to Nathan, and upon which alone, or even chiefly, it is manifest that Nathan did not rely. The best test is to suppose the case should go on to trial. The question to be submitted would be, whether Nathan trans- ferred the stock, relying solely on the representation, that Tompkins had sent his check to be certified, necessarily ex- cluding all idea of Tompkins' responsibility, for there was no NEW YORK. FEBRUARY, 1851. The People v. Tompkins. representation as to that excluding the promise to send him the check, for that is no element of the crime, and excluding the idea that the check would be certified when sent for that pur- pose, for there was no representation that it wodld be. It is idle to suppose that a conviction would be warranted, or be allowed upon such a state of things. The fact that in his cross-examination, Nathan conveys the idea, that his reliance was upon Tompkins' promise that he would send his certified check in a few minutes, the fact that the stock was voluntarily transferred on the 29th, pursu- ant to a previous contract of sale, and without Tompkins ever having requested it to be transferred, and the fact that it was in Tompkins presence that Nathan transferred the stock, and without a word passing between them, would be entirely con- trolling on the subject. But even if it were otherwise, even if it could be found that Nathan's reliance had been upon the representation that Tomp- kins had sent his check to be certified, there is no evidence that such was an untrue allegation. It appears that the check was made out, but it nowhere appears that it had not been sent to be certified. And the falsity of the pretence is not estab- lished, nor even attempted to be. And for aught that appears, it may be perfectly true that Tompkins had sent the check to be certified; and if it may, then there is no foundation what- ever for the criminal charge on which the defendant is arrested. 1 have thus far confined my attention to the charge against the defendant named in the warrant; and though I do not find in the depositions sufficient evidence to support that charge, it is still my duty, under the statute, to inquire whether the depo- sitions show him guilty of any criminal offence. The examinations before the magistrate took a very wide range, inquiring into all the transactions of the defendant on the day of his failure, and on the argument considerations were urged in reference to the moral propriety of his conduct on that occasion. With the latter topic I have nothing to do. I am not authorized to inquire whether his conduct squared with strict morals, or a high standard of commercial honor I am 240 DECISIONS IN CRIMINAL CASES. The People . Tompkins. to inquire merely whether a legal crime had been committed, and whether there is probable cause to suspect the defendant to have be-en guilty of it. None of the counsel for the prosecution suggested that the depositions showed the commission of any other crime, than that of obtaining the stock from Nathan by false pretences. Nor upon looking into the depositions do I find any other charged. The defendant's failure seems to have come upon him suddenly and unexpectedly. His transac- tions on the day of his failure do not seem to have been out of the ordinary course of his business, nor upon a larger scale than usual. All the money he received on that day, as well as several thousand dollars of a balance remaining in bank, except $25, he appropriated to the payment of debts, which seem to have been justly owing by him, and which, at all events, are not in these proceedings impeached. In such appro- priations, he preferred some debts over others. Whether it was lawful or proper for him to make such preferences, is not a question now before me. All that I have to do is to ascer- tain whether it was legally criminal for him to do so. It cer- tainly was not; and as that is the only offence imputed to the defendant, besides that growing out of the transaction with Nathan, there is no legal warrant for holding him in custody, and he ff.ust be discharged; and he is accordingly discharged ALBANY, MAY, 1851. 34 1 SUPREME COURT Albany General Term, May, 1851. Watson, Parker and Wright, Justices. HOUGHTALING vs. KELDERHousE and others. A person convicted of perjury is an incompetent witness, though he has been pardoned'by the governor, aud the pardon purports to restore him to all his civil rights, the legislature having provided that such convict shall not be received as a witness till such judgment be reversed. Such is the law, though the exclusive power of pardon be vested in the governor. Such incapacity to testify is the result of a rule of evidence and not a punish- ment of the offence. Where a defendant proves the making of an admission by the plaintiff, the latter has a right to give evidence in explanation of the admission and to have the witness state all that was said upon the subject at the time. This suit was originally commenced before a justice of the peace in assumpsit on a promissory note. The defence was usury. The plaintiff recovered before the justice on the 4th of September, 1846. The defendant appealed, and the cause was tried in the Albany common pleas, where the plaintiff abo recovered. On the trial in the court of common pleas, several exceptions were taken by the defendant's counsel, who brought a writ of error to this court. The facts appear sufficiently in the opinion of the court H. G. Wheaton, for the plaintiff. R. W. Peckham, for the defendant. By the Court, PARKER, J. The most important question in this case is whether James R. Brice, who was offered on the part of the defence, was a competent witness? It appeared that he had been convicted of perjury in this state and sent to the state prison in 1834, and was pardoned by the governor in 1840. The pardon expressly purported to restore him to all his civil rights. The court below held he was still incompe- tent as a witness, under our statute, and refused to admit him to testify; to which decision the defendant's counsel excepted. VOL. I. 31 242 DECISIONS IN CRIMINAL CASES. Houghtaling r. Kelderhouse. The statute (2 Rev. Stat. 567, 2d ed. 1] provides that a person convicted of perjury " shall not thereafter be received as a witness to be sworn in any matter or cause whatsoever, until the judgment against him be reversed." In all other cases of felony the person convicted is declared incompetent to testify unless he be pardoned [2 Rev. Stat. 586, 23]. The statute, therefore recognizes the efficacy of a pardon, to restqre the com- petency of a witness in all cases of conviction, except for per jury. It is urged by the defendant's counsel that inasmuch as the exclusive and full power to pardon, for all offences except treason and in cases of impeachment, was vested by the con- stitution in the governor [Const, of 1821, art. 3, 5], the legis- lature had no power to restrict the operation of the pardon, in a case of perjury; and that therefore the effect of the pardon in question was to render Brice a competent witness. The doctrine of a restoration of the competency of a witness by pardon, is comparatively of modern origin. Lord Coke (2 Bids. 154) is an authority against it. The maxim recognized was Poena potesttolli, culpa perennis erit.'" 1 But at a later day the doctrine was established by Lord Holt and others, in several decisions. (Rex v. Ford, 2 Salk. 691; Rex v. Grecpe, id. 514; Rex v. Crosby, id. 689; 3 Salk. 155.) It was then held that when the conviction was at common law, in which case an in- ference was only a consequence of the judgment, the king's pardon restored the party to his testimony; but \vhen the con- viction was for perjury, upon the statute, the person convicted could not be restored to his credit by the king's pardon; and the reason assigned was that by the statute it was part of the judgment that he be infamous and lose the credit of testimony. In such case it was held he might be restored by a statute par- don. (2 Salk. 691; Dives v. Mestayer, 5 Esp. Rep. 94; Bull. JV. P. 292; Phil. & Ames on Ev. 21,22; 2 Harg. Jur. Jirg. 221.) The statute on which that opinion was based was 5 Eliz. Ch. 9, 6, which provided that when a person was con- victed of perjury under that act " the oath of such person or persons so offending, from thenceforth shall not be received in ALBANY, MAY, 1851. 243 Hovghtalir.g v. Kelderhouse. any court of record within this realm of England and Wales, or the marches of the same, until such time as the judgment given against the said person or persons shall be reversed by attaint or otherwise." The cases above cited show that in England, in case of a conviction under this statute, competency as a witness might be restored by a statu/e pardon, though the king's pardon was ineffectual for that purpose. And it is claimed that inasmuch as in this state the legislature has no power to pardon for such offence, but the exclusive power is vested in the governor, his pardon must be effectual to restore the convict's competency. This is certainly very plausible reasoning; and if there were no interests concerned except those of the convict, that is to say, if the incompetency to testify was merely a punishment for the offence, I should deem the position impregnable. It must be conceded that full power to pardon in case of perjury is vested in the governor; and I think that power exclusive. In this respect the distribution of powers, in our state, differs some- what from that of the English government, where pardons may sometimes be granted by act of parliament. (2 Black. Com. 402; Fort. 43; 2 Hawk. P C. 397.) But though the legislature of our state has no authority ta grant a pardon for perjury, it has full power fo say who shah be competent witnesses. It may by statute admit or exclude any class of persons, such as parties, or persons interested, or those convicted of crimes. The admissibility of all witnesses is a matter entirely within legislative control and subject to its regulation. It is true the disqualification of a person convicted of perjury may operate, to some extent, as a punishment of'the convict. But whether such testimony shall be received, is a question in which others have a much larger interest. It is a question of public policy, with regard to which there may well be differences of opinion. On the one side, it may be said parties ought not to be deprived of such testimony, at the hazard of being unable to establish a legal right. On the other hand, it may be urged that such testimony would be dangerous to the rights of litigants, and unsafe in the administration of 244 DECISIONS IX CRIMINAL CASES. Houghtaling v. Kelderhouse. justice. The legislature, in deciding this question, have re- garded the latter argument as outweighing the former, and have excluded the evidence. And although this disqualifica- tion has been regarded as part of the judgment, yet I think it not merely a penalty for the offence, but an enactment of a rule of evidence within the legislative jurisdiction and beyond the reach of an executive pardon. I concur entirely in the view on this subject expressed by a writer in the American Jurist (11 Jim. Jurist, 360), who says, " But although an incapacity to testify, especially considered as a mark of infamy, may really operate as a severe punishment upon the party, yet there are other considerations, affecting other parties, which may well warrant his exclusion from the halls of justice. It is not con- sistent with the interests of others, nor with the protection which is due to them from the state, that they should be exposed to the peril of testimony from persons regardless of the obliga- tion of an oath; and hence on grounds of public policy, the legislature may well require that, while the judgment itself remains unreversed, the party convicted shall not be heard as a witness. The statute of Elizabeth itself seems to place the exception on the ground of a rule of evidence and not on that of a penal fulmination against the offender. The intent of the legislature appears to have been not so much to punish the party by depriving him of the privilege of being a witness or a juror, as to prohibit the. courts from receiving the oath of any person convicted of disregarding its obligation." It will be observed that the language of our act is very similar to that of the English statute. Both declare that the testimony shall not be received. The writer in the Jurist above quoted, commented on the fact that the act of Congress (btat. of U. S. Jlp. 3, 1790, 18) which declares the offender shall thereafter be rendered incapable of giving testimony, Sac., until such judgment be reversed, has more the appearance of a penalty upon the offender than the language of the English act. But the statute of Ihis state is certainly liable to no such criticism, and I doubt whether it will be recognized whenever the question shall arise under the act of Congress. It seems to me that ALBANY, MAY, 1551. 45 Houghtaling v. Kelderhouse. whether the statute provides that he shall be incapable of giving testimony, or says that his testimony shall not be received, in cither case it will be viewed as a rule of evidence, though it may also be a punishment of guilt. This view of the law is taken in 1 Greenleaf's Evidence 378 (note ) and was acted upon by Chancellor Kent in Holdredge v. Gillespie (2 Johns. Ch. Rep. 35), who excluded the deposition of a witness that had been convicted of perjury, though he had been pardoned by the governor, on the ground that the statute declared him incompetent till the judgment was reversed. The statute then in force (1 Rev. Laws, 171) was similar to the pro- vision of the revised statutes above quoted. It is said a construction ought not to be given to the statute that would deprive the governor of the power to relieve by pardon, when it might be discovered, too late to obtain a re- versal of the judgment, that the party was innocent. The an- swer is that if the legislature has power to deprive others of the benefit of his testimony, they must also have power to restore it. And the parties interested, so far from being remediless, would have only to apply to the legislature instead of the governor for relief. I am therefore of the opinion that the court below decided correctly in rejecting Brice as a witness. There were other exeeptions taken on the trial in the court below that remain to be considered. After the plaintiff had rested, the defendants called Robert Frazier, and proved by him an admission made by the plaintiff that he was in danger of losing the amount of the note in question, because he had re ceived more than lawful interest. The plaintiff's counsel then cross examined the witness. In the course of the cross exam- ination the witness testified that the plaintiff said " he had re- ceived a new note, and that was worse than the old one." On a further direct examination the defendant's counsel asked the witness if the plaintiff stated why the new note was worse than the first? This was objected to by the plaintiff's counsel, and the answer was excluded by the courtj to which decision the counsel for the defendant excepted. This decision was clearly erroneous. There was no objection to the form of the 246 DECISIONS IN CRIMINAL CASES. Baron v. The People. question. The plaintiff's counsel had called out an additional admission, and it was the right of the defendant's counsel to inquire further in regard to it, and to have all that was said upon the subject at the same time. I think there were other errors committed in excluding evi- dence on the cross examination of Slingerland, but it is not necessary to examine them at length, for the error I have already pointed out requires a reversal of the judgment. The judgment must be reversed with costs, and a new trial awarded in the Albany county court. SUPREME COURT. Monroe General Term, June, 1851. Welles, Taylor and Johnson Justices. Louis BARON plaintiff in error vs. THE PEOPLE def 'ts in error. Where a verdict in a criminal case is appropriate to one or more good counts in an indictment, and can be deemed to have been passed upon and to have disposed of the others, the good counts are established and the verdict will stand, notwithstanding there may be bad counts in the indictment: but if it appear that some of the counts are undisposed of by the verdict, the judgment rendered on such verdict will be reversed. An accessory can not be tried before the trial and conviction of the principal offender. An accessory may be indicted and tried in the county where the offence of the accessory was committed, notwithstanding the principal offence was com- nitted in another county, but the accessory can not be indicted and tried in the county where the principal offence was committed, unless his offence as accessory was committed there. This was a writ of error to the court of sessions of Ontario county. The plaintiff in error was indicted in the court below, the indictment containing seven counts, substantially as follows: 1st. For burglary and larceny. 2d. The same, being a second offence; stating the convic- tion for the first offence to have taken place in Monroe county general sessions. ALBANY, JUKE, 1851. 247 Baron v. The People. 3d. Charges that Samuel Hicks, Stephen Cross, Manlius Card, Hiram J. Clark, Benjamin F. Yerkes and William Ack- ley on the 29th day of June 1849, committed a certain burglary and larceny in the town of East Bloomfield, Ontario county, setting out the offence particularly; that Baron (the defendant in the court below), on the 3d of October, 1842, was convicted of burglary and larceny in the court of general sessions of Monroe county and sentenced to the state prison for five years; that after he had suffered the full term of imprisonment accord- ing to such sentence, and on the 29th day of July, 1849, said Baron did incite, move, procure, aid, counsel, hire and com- mand the said Hicks, Cross, Card, Clark, Yerkes and Ackley to commit the said burglary and larceny in this count first mentioned. 4th. Substantially like the third, alleging that the said Hiv:ks, Cross, Card, Clark, Yerkes, and Ackley were indicted, &c., for the said burglary and larceny, and that Ackley had been tried and convicted thereon, prout pat et per recordum in other respects, this count is similar to the third. 5th. For grand larceny, alleging the property stolen to be the property of Moses Sheppard. 6th. Like the 5th, alleging the property stolen to be the property of some person or persons to the jurors unknown. 7th. Like the 5th, alleging the property stolen to be the pro- perty of Luther Sheppard and Moses Sheppard. The defendant in the court below pleaded not guilty to the said indictment, and was tried and convicted in that court in February, 1850. The verdict of the jury, as appears by the record, is in the following words, viz.: " That the said Louis Baron is guilty of the felony aforesaid as an accessory before the fact, and for a second offence, as by the indictment afore- said is above supposed against him." Upon this verdict, the court below gave judgment against the defendant, that he be imprisoned in the state prison at Auburn for the term of nine years, eight calendar months and twenty days. Various questions arose upon the trial, which are sufficiently adverted to in the opinion which follows. 248 DECISIONS IN CRIMINAL CASES. Baron v. The People. E. G. Lapham and Jl. Warden, for plaintiff in error. S. V. R. Mallory (district attorney), for defendants in error. WELLS, Justice, delivered the opinion of the court as follows: I. The first point made for the plaintiff in error is, that the verdict and judgment is uncertain; that it does not appear for what offence the conviction was had, and that it is not found that any principal offence was committed by the direction or order of the defendant below, and it is contended that the first i fifth, sixth and seventh counts of the indictment are not dis- posed of in any way by the verdict. The indictment contained seven counts among them, is one for a second offence of burglary and larceny another charges that six other persons were indicted for burglary and larceny, and one of them, Ack- ley, was convicted. It does not state whether any of them besides Ackley had been tried. It is to be taken therefore, for the purposes of this case, that Ackley was tried separately and that the others have not yet been tried. The count then charges a previous burglary and larceny by the defendant Baron and a conviction and judgment thereon, before the com- mission of the said offence by Ackley and the others who were jointly indicted with him, and that the defendant Baron did incite, move, procure, aid, counsel, advise and command the other six, including Ackley, to commit the burglary and larceny for which they were indicted, &c. The finding of the jury as appears from the record in this case is, that " the said Louis Baron is guilty of the felony aforesaid as an accessory before the fact, and for a second offence of larceny, as by the indictment aforesaid is above supposed against him." If the verdict is appropriate to any one or more good counts in the indictment and can be deemed to have passed upon and disposed of the others, the good counts are established, and the verdict should stand, nptwithstanding there may be bad counts in the indictment. The rule is different in a civil case, where there are several MONROE, JUNE, 1831. 249 Baron v. The People. counts in the declaration and a general verdict with damages, for in such case, if there is a bad count joined with others that are good, the court can not know but the damages are assessed in whole or in part upon the bad count But in the case of an indictment a general verdict of guilty proves that all the counts are true, the good as well as the bad ones, and it is pre- sumed the court in rendering judgment measured the punish- ment upon the good counts alone. The verdict in this case pronounces the defendant below guilty of the felony as an accessory before the fact and of a second offence of larceny as charged in the indictment. There are three counts for simple larcenies alone and one for burglary ani larceny. Does this finding by fair intendment, dispose of those counts? If- it does not, it seems to me the judgment is erroneous. The defendant is neither convicted nor acquitted upon them, and upon another indictment for the same offences could neither plead autrefois acquit or autrefois convict. The language of the verdict as contained in the record " felony aforesaid," is broad enough to apply to all the counts, but the words "as an accessory before the fact," immediately follow; which limit and restrict their meaning to the two counts charging him as an accessory. This seems to be the fair interpretation of the language of the record. It is not like the case of an indictment for a crime, under which the accused may be convicted of another offence of the same character, but of a minor degree as, for instance, an indictment for murder and a conviction for manslaughter, or an indictment for an assault and battery with a felonious intent and a conviction for the simple assault and battery. But it is a question of construction of the language of the record merely, whether the finding of the jury, as contained in the record, can be understood to apply or refer to the three counts for simple larceny. The verdict proceeds to say that the defendant below is guilty " of a second offence of larceny," and concludes "as by the indictment aforesaid is above sup- posed against him." These words apply to both branches of VOL. I. 32 250 DECISIONS IN CRIMINAL CASES. Baron v. The People. the finding, that of guilty of the felony as an accessory and of the second offence of larceny. There is a count charging the crime of larceny as a second offence, and the last part of the finding I think must be taken as applying to that count only, for I take it a conviction for a second offence can not be had upon a count for a single first offence. The three counts for simple larceny, as well as the one for burglary and larceny therefore appear to be entirely undisposed of and untouched by the verdict. II. The court below charged the jury that the defendant could be convicted as an accessory, before the trial and con-, viction of the principal offenders. In this the court clearly erred. By the common law, no man could be convicted as an accessory until after the conviction of the principal felon. He could not be tried alone before the principal, for nun constat but the person charged as principal might be acquitted. They might be tried together, but in that case a conviction of the accessory and an acquittal of the principal would be irregular and void, as presenting the absurdity of an accessory without a principal. (4 Bl. Com. 40, 323.) The court below admitted that such substantially was the rule of the ancient common law, but held it was not the law at present. The only change in the law in this particular that I am aware of, is by our statute (2 R. S. 727, 49), which declares that " an accessory before or after the fact, may be indicted, tried, convicted and punished, notwithstanding the principal felon may have been pardoned or otherwise discharged after his conviction." This statute is substantially the same as the English statute of Anne, both of which were passed to meet a rule of the old common law by which the accessory could not be arraigned until the principal had been attainted, which might be avoided by pardon, clergy, or his death after conviction and before attainder. But the statute does not allow of a conviction of the accessory before that of the princi- pal, any more than the common law. It only allows it in cer tain cases after the conviction of the principal felon MONROE, JUNE, 1851. 251 Baron v. The People. The law has been further changed in England by the statute 7th Geo. IV, ch. 64, by which an accessory may there be now tried before the principal. (Rose. Cr. Ev. 217.) But we have no such statute. It is claimed by the counsel for the defendant in error that the conviction of Ackley, one of the principals, having been legally established, the part of the charge complained of was the expression of a mere abstract opinion, and that as it could not have influenced the verdict, it can not here be alleged as error. It was a question for the jury to determine, whether Ackley had or had not been convicted. They were to judge of that fact by the evidence before them. And although I incline to think the paper evidence, in connection with the testimony of the former county clerk, was sufficient to establish the con- viction^of a man by the name of William Ackley, yet the jury were to be satisfied that he was the identical man or one of the men to whom the testimony in reference to the commis- sion of the principal offence related. We may suppose all this was satisfactorily done; still the jury were by the charge left at liberty to leave the question of Ackley's conviction out of view entirely. It seems to me this will not do in a case of felony III. The court charged the jury that the defendant might be convicted in Ontario county although whatever he did in con- nection with the offence was in the county of Monroe. In this I think there was also an error. It was at one time doubted whether at common law an accessory in one county to a felony committed in another could be indicted in either. (Hawk. P C. book 2, ch. 25, 54; Keil. 67; Dyer, 38.) Our statute (2 R. S. 727, 45) provides that the accessory may be indicted and tried in the county where the offence of the accessory was committed, notwithstanding the principal offence was committed in another county. But there is no statute or rule of law allowing the accessory to be indicted and tried in the county where the principal offence was committed, unless his offence as accessory was committed there. As the conviction and judgment must be reversed for the 252 DECISIONS IN CRIMINAL CASES. The People v. Orcutt. reasons above mentioned, it is unnecessary to consider the other points raised upon the argument. Conviction and judg- ment reversed, and new trial ordered in the court below. ONEIDA OYER AND TERMINER, June, 1851. Before W. F. Jlllen, Justice of the Supreme Court, and the Justices of the Sessions. THE PEOPLE vs. JAMES J. ORCUTT. It is sufficient, in an indictment for arson in the 1st degree, to describe a building, which has been usually occupied by persons lodging therein at night, as a "dwelling house," although it may not be a dwelling house in the ordinary and popular acceptation of that term. (2 R. S. 657,^J 9.) A person is presumed to intend the ordinary consequences of his acts; and it devolves upon a person charged with crime to rebut this presu-nption, by evidence of a different intent. A design to produce death is not necessary to constitute the offence of arson in the first degree, either at common law or under the statute. It is immaterial whether the person charged with this offence has knowledge that the building burned has usually or at any time been occupied by persons lodging therein. (2 Buss, on Crimes, 552 . (/), Phil. Ed. of 1845). Any building is a " dwelling house," within the act denning arson in the first degree, which is in whole or in part usually occupied by persons lodging therein at night, although other parts, or the greater part, may be occupied for an entirely different purpose. Indictment for arson charging the defendant with burning in the night time a dwelling house in the city of Utica, in which there were at the time human beings. The indictment also contained counts describing the building as a barn, immediately connected with, joined to and a part of a dwelling house. The fire occurred on the night of the 8th of April, 1851, and wr.s kindled by the prisoner, in a stable or barn in which were several horses. This stable or barn was connected with and framed into another barn and stable, known as the livery barns. The roofs and frames were united, and the lofts were open from one to the other, and they were occupied by one man and as OXEIDA, JUNE, 1851. 053 The People v. Orcutt. one barn and stable, and both were entirely destroyed, with eleven horses and a large amount of livery property. The barns and stables were at right angles with each other, the yard being in the angle. At the end of the part known as the livery barn a room was finished off, which was used as an office and a place for buffalo robes, whips, &c., and which was occu- pied as a sleeping room by the drivers and men employed about the stable. For several .years, this part of the building had been constantly occupied as a sleeping room by one or more persons, and at the time of the fire three or more persons habit- ually slept there, having no other lodging place, and keeping their wardrobe there and were then actually sleeping there. Evidence was given tending to show that the prisoner was guilty of setting the fire. At the close of the evidence for the prosecution, F. Kernan, for the prisoner, insisted that there was a vari- ance between the proof and the indictment, in the description of the building destroyed: that the description of the building in the indictment was untrue; that it was neither a dwelling house nor a barn connected with, joined to and making a part of a dwelling house; that it was a barn, and occupied as such, and should have been so described, with proper averments, to bring it within the class of buildings which the statute declares shall be deemed dwelling houses, in defining the offence of arson in the first degree. S. B. Garvin (district attorney), for the people. The court decided that there was no variance. That if the building had been usually occupied by persons lodging therein at night, it was well described as a dwelling house within the statute (2 R. S. 657, 9); that it was sufficient to name the edifice by the statutory description of a " dwelling house," leaving it for the proof to detail the particulars which entitle it to be thus described, under the statute regulating the punish- ment of arson. 254 DECISIONS IN CRIMINAL CASES. The People t>. Orcutt. The cause was summed up by J. Jl. Spencer, for the prisoner, and The District Attorney, for the people. The counsel for the prisoner urged, among other things, 1st. That the edifice destroyed was not a dwelling house, within the statute; that the statute was designed to modify the common law and exclude from the first degree of arson the burning of all rough buildings, as barns, sheds, &c., unless actually at- tached to a building known as a dwelling house in the populai sense. 2d. That the evidence of a malicious intent was wamine, O ' citing and commenting upon People v. Cotteral (18 Johns. Rep. 115). 3d. That a design to produce death was necessary to authorize a conviction of arson in the first degree; that if there was no such design, the offence was mitigated to the second degree. The court charged the jury, 1st. That if from the evidence they were satisfied that the prisoner in setting the fire did not intend to burn the building, but intended to accomplish some other object, the case would be within the People v. Cotteral, in which the prisoners having been convicted of arson, the judgment was arrested upon the ground that it was proved, beyond all reasonable doubt, that the prisoners merely designed to effect their escape from jail, and did not intend to burn the jail. That the prisoner must be presumed to have intended the ordinary consequences of his acts, and that it devolved upon him to show the absence of an intent to burn the building. 2d. That to authorize a conviction for the offence charged, it was not necessary to establish a design to produce death. That such design did not enter into the offence of arson in the first degree, either at common law or under the statute. That it was immaterial whether the prisoner had knowledge that the building was occupied by human beings lodging therein, either habitually or at the time. It was sufficient if they believed upon the evidence, that the building was in fact thus occupied, and OXEIDA, JUXE, 18.51. 255 The People v. Orcutt. that the prisoner willfully burned it in the night time, there being some human being at the time therein, and v ; 3d. That the jury would inquire, 1st. Whether the barn or stable in which the fire was kindled, and that in which was the office and sleeping room, was one and the same building; and 2d. If they did not constitute one building and only one, but were two separate and distinct buildings, whether the former was joined to, immediately connected with and a part of the latter, and if either of these propositions should be found by them in the affirmative, they would inquire, 3dly, whether the building had been usually occupied by persons lodging therein at night, and whether at the time of the commission of the offence there was some human being therein; and that if they were satisfied that the building had been and was thus occupied, the willful setting fire to and burning it in the night time, con- stituted the offence of arson in the first degree (2 R. S. 657, 9, 10). That the statute had defined a dwelling house, and that within the statute, whether a building was a dwelling house or not, depended upon the fact whether it was usually occupied by persons lodging therein at night, and not upon the popular understanding of that term; that it was not necessary that the whole building should be thus occupied if a part was occupied as a sleeping room, it was sufficient, although other parts might be used for other and entirely different purposes. The jury found the prisoner guilty of arson in the first degree, and he was sentenced to be executed. The sentence was com- muted by the governor to imprisonment in the state prison for life, on account of the youth of the prisoner, and some circum- stances which made it a case proper for the exercise of this power by the executive. The conviction upon the facts, and the decision and charge of the court, were express ly approved by the governor. 256 DECISIONS IN CRIMINAL CASES NEW YORK OVER AND TERMINER. September, 1851. Before Ed- monds, Justice of the Supreme Court, and two of the Alder- men. THE PEOPLE vs. HENRY CARNAL. On a motion for a new trial, on the ground of improper conduct of the jury, the affidavits of the jurors are not admissible to prove such improper con- duct. A communication made to a jury while deliberating, by a party in whose favor the verdict is rendered will avoid the verdict; but a verdict will not be set aside because of such communication, where it is made by the losing party or by a stranger to the controversy. Where, on a trial for murder, while the jury were consulting together upon their verdict, one of them sent the officer in charge of them to the court, to request that the statute or some book containing the law of manslaughter should be sent to them, and the officer returned and informed the jury that " Judge Edmonds said they had nothing to do with manslaughter," and they found the prisoner guilty of murder, on motion before the court of Oyer and Terminer for a new trial, on the ground of such communication to the jury, a new trial was denied. This was a motion for a new trial. The prisoner had been convicted in March, 1851, of the murder of Charles M. Rous- seau and sentenced to be executed on the 2d day of May, 1S51. Before that time the governor respited his execution, to enable him to avail himself of a bill of exceptions taken on the trial. An application was then made to the governor for a pardon or commutation of sentence, on the ground that after the jury retired to deliberate on their verdict, the presiding judge had improperly given them private instructions in the absence of the prisoner or his counsel. The governor refused the applica- tion, but again respited the execution until the 19th of Septem- ber, to give the prisoner an opportunity of moving the court for a new trial upon the affidavits which were laid before him, and this motion was made accordingly. On the part of the prisoner, affidavits were read from eleven of the jurors, setting forth that the jury, after they had retired, requested the officer having them in charge to ask the court to furnish them with the law of manslaughter, or instruct them as NEW YORK, SEPTEMBER, 1861. 257 The People v. Carnal. to what that law really was, and that the officer in a few min- utes returned and stated that the jury as matter of law had nothing whatever to do with manslaughter, that the indictment was for murder only, and the case was not one of manslaugh- ter, and that Judge Edmonds had directed the officer so to state to the jury, and one of the jurors was made to swear that but for that communication he could not have conscientiously brought in a verdict of murder. On the part of the prosecution, the affidavits of ten of the jurors were read, stating that the jurors were at once unan- imous in finding the prisoner guilty, but that one of them, from his repugnance to taking life, desired to confine the verdict to manslaughter, that thereupon one of the jurors directed the offi- cer to request the court to send them the statute or some book containing the law of manslaughter that the officer gave for answer: Judge Edmonds says you have nothing to do with manslaughter and that this communication had no influence with the jury, because the court had clearly, in their charge, said the same thing. Some of the jurors stated further, that when called upon to make their affidavits in behalf of the pri- soner, they told the counsel who called upon them, what occurred as they now related it, and were told by him that it was matter of form as to the precise words, that he desired the affidavit to show the fact of the communication from the court to the jury; that the judge had no right to communicate with the jury except in open court, and that the object was to pro- cure a commutation of the punishment to imprisonment for life, and not to apply for a new trial. It was not alleged that the court had authorized the officer to make any communication to the jury. Clinton and H. F. Clark for the prisoner, contended that the irregularity of the officer in making the communication to the jury without the order of the court, rendered the verdict en- tirely void. Blunt (district attorney), objected, 1. That the affidavits of the jurors could not be read. 2. That the court after sentence pronounced, had no power to grant a new trial. ?. That the VOL. I. 33 258 DECISIONS IN CRIMINAL CASES. The People v. Carnal. irregularity, though it might subject the officer to punishment, in no manner affected the verdict, and 4. That the granting a new trial is a matter in the discretion of the court, which ought not to be granted in this case, because no injury had been done to the prisoner, inasmuch as the language used by the officer was a mere repetition of that which had already been used by the court in its charge to the jury, and because the witnesses, by whom alone the prisoner's guilt could be established, had left the state and gone to parts unknown in the interior of South America, never to return. EDMONDS, Presiding Justice, delivered the opinion of the court The facts on which the new trial is moved for, as established by the affidavits are simply these: that while the jury were consulting together of their verdict, one of them called the offi- cer having them in charge and said to him, " ask the court to send the jury the statute or some book containing the law of manslaughter," that the officer after a short interval returned and said, " Judge Edmonds said they had nothing to do with manslaughter." The officer was not instructed by the court or any member of it to make any communication to the jury, but it is probable (though on that subject there is no evidence), that when the officer made the application for the book, the judge refused it in the language used, and the officer instead of refusing to speak to the jury as he ought to have done, having no leave from the court; or instead of saying to the jury " you can not have the boo.k," conveyed the refusal to the jury in the words used by the judge in giving it to him. For the communication thus improperly made by the officer to the jury without authority from the court, a new trial is moved for, and the question is whether the irregularity is one which renders the verdict void. If such is the rule of law, it must be rigidly enforced, how- ever untoward the event which works such a result. Of the prisoner's guilt of the crime of murder, not a doubt can remain NEW YORK, FEBRUARY, 1851. 59 The People v. Carnal. on any rational mind, and there is every reason also to believe, that that crime was perpetrated while he was attempting another that of robbing his benefactors. And so, too, it is equally manifest that if a new trial is now granted, the pri- soner must escape the punishment which the law denounces upon the crime he has committed, for the witnesses by whom alone the facts can be proved have left the country and re- turned to the interior of South America, whence their testi- mony can not be procured so as to be used on the trial. And it is under such circumstances that the court is called upon to recognize the principle, that an unauthorized communication to the jury by the constable having them in charge, renders their verdict void. If this be so, then is the due administration of justice more under the control of the ignorance or corruption of the consta- bles who are in attendance at the court, than has been hitherto supposed. I dismiss from view entirely the consideration how far the communication influenced the jury; and for two reasons. In the first place, while one of the affidavits on the part of the prisoner conveys the idea that but for that communication, one of the jurors " could never have reconciled it to his con- science to concur" in a finding of murder, the affidavit of the same juror and those of nine of his colleagues produced on the part of the prosecution clearly establish that the jury were already unanimous in their opinion that the prisoner was guilty of murder; that the question of manslaughter was agitated among them merely from " a repugnancy " on the part of the juror " to taking human life;" that all of them had previously very distinctly understood from the charge of the court, that there was no question of manslaughter in the case, and that their verdict was in no respect affected by the communication. In the second place, while the affidavits were admissible t ) / prove an impropriety on the part of the constable, they were in no respect admissible to prove any on the part of the jury; and it surely would be an impropriety of a high character, for a jury to take the law of a case from the constable at their door 260 DECISIONS IN CRIMINAL CASES. The People v. Carnal. I therefore examine the question in its naked aspect, whether, as matter of law, such a communication does necessarily render the verdict void. It is undoubtedly true that any communication to a jury while deliberating, made by a party in whose favor their ver-r diet is rendered, will avoid their verdict, and that, no matter whether it had any effect upon their minds or not: for the best of reasons, that it is thus alone the purity of the trial by jury can be preserved. But we were shown no case, though we asked for one, where such an effect has ever been given to a communication made by the losing party or by a stranger to the controversy, nor can I, by my own researches, find any such. And, as I suppose, for an equally good reason: that it would be giving to intermeddlers a power and control over the adminis- tration of justice that is denied even to the courts. It is not worth while to spread out here the details of the ex- amination which I have made. I have given the subject the careful consideration its vital interest to the prisoner demands, and the conclusion at which I have arrived is quite satisfactory to my own mind, both on principle and authority. A reference to two or three cases will be sufficient. In the case of Taylor v. Everett (2 How. Pr. R. 23), our late supreme court held that a communication made by the constable to a juror, which the juror swore induced him to agree to the ver- dict, was not enough to set it aside, though the conduct of the constable was deserving of severe animadversion. In Harrison v. Rowan (4 Wash. C. C. R. 32), the jury after they went out took refreshments without leave of the court. The court held it was misbehavior to do so, but the verdict would not be affected, unless they were furnished by the party in whose favor they found. So, where a juror had left his seat without know- ledge of the court or either party. (Ex parte Hill, 3 Cow. R. 355.) So, too, when the jury had retired to deliberate on their verdict. (1 Cowen, 221.) In the case of The King v. Wolfe (1 Ch. R. 401), where the subject was very fully examined by the English judges, and in The People v. Douglass (4 Cow. 33\ in our own state, it was held that the mere separation .of NNW YORK, SEPTEMBER, 1851. 261 The People v. Carnal. the jury, without any further abuse, would not affect the ver- dict. And in Everett v. Youells (4 Barn, ty Jld. 681), where the servant of one of the jurors privately conveyed some fooJ to him while they were deliberating, the court held that it might be ground for imposing a fine, but it was not a reason for setting aside the verdict, and Parke, J., with great propriety says: " The officer who attended the jury may be punishable, but it would be a fearful thing if verdicts could be set aside on such grounds as this." It would be so indeed, and this case would be a strong ex- emplification of the truth of the remark. Here is no com- plaint that the prisoner was not rightfully convicted or that the verdict was not fully warranted by the evidence, no complaint that the law was improperly laid down by the court. The jury were unanimous in a verdict, which the court has already had occasion to express its approval of. The witnesses by whom alone the prisoner's guilt can be established, are beyond the jurisdiction of the court. It was a frightful crime which the prisoner committed, and it is now claimed that he shall escape the consequences, because the constable in charge of the jury was guilty of an impropriety! This can not be. Both prin- ciple and authority forbid it. I purposely abstain from examining the other questions raised on the argument, because having on the merits arrived at a conclusion adverse to the motion, it must be denied, what- ever our views upon those other questions. 262 DECISIONS IN CRIMINAL CASES. SUPREME COURT. New York General Term, October, 1851. Edmonds, Mitchell and King, Justices. f IENRY CARNAL plaintiff in error vs. THE PEOPLE &c. defendants in error. A motion to set aside a stay of proceedings and to quash a writ of error, in a capital case, may be made by the district attorney; and the prisoner's counsel can not avail himself of the objection, that such motion should have been made by the attorney general. A justice of the supreme court has power to allow a writ of error, and to make an order staying proceedings, after conviction, in a capital case. The mode of reviewing a decision of the Oyer and Terminer, as it existed previous to the adoption of the Revised Statutes, compared with the present practice. The prisoner had been tried and convicted of the murder ol Charles M. Rousseau. A writ of error having been allowed by Justice Harris with a stay of proceedings, a motion was made before the supreme court sitting in the first judicial dis- trict, where the writ was returnable, to quash the writ of error and to vacate the stay of proceedings. The grounds of the application are fully set forth in the opinion of the court. JV. Bowditch Blunt (district attorney), for the people. I. The motion is divisible into two branches, one going to quash the entire proceeding, the other simply to vacate the stay of proceedings. The motion to quash presents two questions, one purely legal, resting upon the form and character of the writ: the other, a mixed question of law and fact. Upon the first question, it will be necessary to examine the history -of writs of error at common law, and the changes, if any, effected by the statute. What then was the province, power and pro- ceedings of and upon writs of error at common law. First. Its province was to remove the record for review into the court of King's Bench, and from the King's Bench to the House of Lords. Second. Its power was to reverse the judgment in cases NEW YORK, OCTOBER, 1851. 263 Carnal v. The People nor capital, for notorious mistake in the judgment, or other parts of the record, and in capital cases to reverse attainders. Third. In cases of misdemeanors, writs of error were not allowed, of course, but on sufficient probable cause shown to the attorney general or public prosecutor, and then they were grantable of common right and ex debito justitia. Fourth. In capital cases, writs of error were only allowed ex gratia, and not without express warrant under the king's sign manual, or with the consent of the attorney general. ( 1 Chitty, Cr. Law, p. 749.) Fifth. In no case at common law did the writ of error operate as a stay of proceedings. (Lanett v. The People, 7 Cowen, 339; Rex v. Wilkes, 4 Burr Rep. 2527.) II. Assuming that the judge had no power to grant a stay of proceedings, and the present writ of error containing such express direction therein, what is the effect of such provision? Does it Hvoid the whole writ, or is the direction being a nullity mere surplusage? I conceive the writ itself must be set aside. If the order was separate from the writ, forming no part thereof, the court might discriminate, but as an essential part of the writ, in the present case, if improperly or illegally allowed, the whole writ must fall. The court can not separate the writ into parts retaining one and rejecting the other the excess of the authority renders the whole void. The writ is evidently a writ under the 15th and 16th sections, and if inapplicable to the case in hand must fall. III. The allowance of the writ was obtained by the sup- pression of material facts, and being a writ ex gratia, this court upon a knowledge of such facts, has the power to revoke this exercise of grace. IV. The previous application for a writ of error to a judge in this district, and the subsequent proceedings of the counsel for the convict as connected with said application, form an additional reason for vacating the present writ of error. The effect of tolerating or sustaining a proceeding of this description, will be, to encourage tardiness; to reward willful delay; and to uphold by subtle refinements and technical abstractions, the 264 DECISIONS IN CRIMINAL CASES. Carnal v. The People. practice of destroying just convictions on the merits; and thus subvert the ends of public justice. V. Finally, the sustaining of this writ of error, is calculated to pollute the fountains of justice, to destroy the public confi- dence in our judicial tribunals, and to render our laws, instead of being a terror to evil doers, a byeword and a mockery. Fiat justitia, mat ccelum. H. L. Clinton, for the prisoner. By the Court, EDMONDS, J. The prisoner was convicted of murder at the Oyer and Terminer in New York, in March last, and was sentenced to be executed in May. Before the day appointed for his execution, his counsel prepared a bill of exceptions, obtained a reprieve of execution until July, and applied to the judge who presided at the trial for the allowance of a writ of error. Before that application was passed upon, the counsel for the prisoner withdrew it, and gave notice of an application to set aside the conviction on the ground of irregu- larity, and obtained from the governor a further reprieve, in order to make that motion. On the day following the decision of that motion adverse to the prisoner, his counsel obtained from a judge, out of the district, an allowance of a writ of error on the bill of exceptions, and an order staying all proceedings on the execution until the decision on the writ of error. In regard to the objection made by the prisoner's counsel against the district attorney's appearing in the case and making this motion, it is enough to say, that under the statute (2 R. 6'. 741, 21), the district attorney has, at least, concurrent power with the attorney general; and it will be time enough to deter- mine which has paramount authority when a conflict shall arise between them. In the mean time, it is not competent for the prisoner to raise the question. It is sufficient for him that the motion against him is made by one having authority to make it. The main motion is to quash the writ of error, on two grounds. First, because of concealment of material facts from the officer who allowed the writ; and second, because that NEW YORK, OCTOBER, J851. 265 Carnal t>. The People. officer had no power to allow a writ of error, incorporating into it an order to stay proceedings. In respect to the first point, we took occasion to say, on the argument, that the explanation of the prisoner's counsel was entirely satisfactory. And all that is left us to consider is, whether the judge had power to stay proceedings on the judgment after a sentence had been pro- nounced. Upon this question, which is one of construction of a statute, we have no aid from adjudications. We have been referred to only one case (Freeman's) where such an order has been granted, and in that case the right to grant it seems not to have been a subject of discussion or adjudication. I confess my first impression on this subject was adverse to the existence of the power. The section of the statute so often referred to (2 R. S. 658, 15) is very explicit in its terms: "No judge, court or officer, other than the governor, shall have authority to reprieve or suspend the execution of any convict sentenced to the punishment of death." " The revisers, in their report recommending the section, say that " the preceding or some other provisions concerning the suspension of executions seem absolutely necessary. Those stated, viz., lunacy and pregnancy, are the only cases where the interference of any other power than that of the governor can be necessary. With- out expressing an opinion whether the judge or court possess the power of suspending executions, it is yet deemed an unne- cessary power, as the court may suspend judgment in case of doubt, and is so obviously liable to abuse, and conflicts with the powers and duties of the executive, that the exercise should be expressly prohibited." It will be observed that it is " re- prieves and suspensions" that are alone forbidden to all others than the governor, and it becomes material to inquire what is meant by those words in the statute. We can gather that meaning from an unmistakeable source. The constitution in force, when the revised statutes were enacted, in art III, 5, says he " shall have power to grant reprieves and pardons after conviction for all offences, except treason and cases of impeach- ment. Upon convictions of treason, he shall have power to VOL. I. 34 266 DECISIONS IN CRIMINAL CASES. Carnal v. The People. suspend the execution," &c., until the legislature can be non- suited. The revised statute (vol. 1, 165, 3), also enacts, in regard to his granting pardons for all offences and suspending exe- cution in cases of treason; thus showing plainly what reprieve or suspension it was that was to be prohibited to other officers, lest it might " conflict with the powers and duties of the exe- cutive." The statute has given a further construction to the terms under consideration. If a convict, under sentence of death, become insane, the sheriff, after certain preliminaries, may " suspend the execution" until the governor shall issue his warrant directing the execution. And so, in case of pregnancy, he may in like manner suspend the execution. The term " re- prieve" as applied to convicts, has a definite meaning. It post- pones the time of execution to a definite day, while " suspen- sion" is for an indefinite period. It can not be claimed, nor has it been, that the act complained of by the district attorney, in this case, was a reprieve; it was a suspension, if at all, within the statute under consideration. The object of the statute was to prevent a conflict between the executive and other depart- ments of the government. The power of the governor to grant an absolute pardon needed no protection from the statute, for it was confessedly vested in him, and in him alone. But his power to reprieve, that is, to defer the execution, until a definite time, did require such protection, for it was claimed, and had then recently been exercised by other officers. In Miller's case, in 1828, reported in 9 Cowen, 730, a court of Oyer and Terminer, after sentence of death had been pronounced, and the time for execution had been fixed, had interfered, by postponing the execution to a day certain and beyond that originally appointed, and had thus, as it was claimed by the governor, " granted a reprieve." The learned judge, whose conduct was arraigned on that occasion, in a letter which has, I believe, received the almost universal approbation of the jurists of our state, claimed that the power existed in the judges of granting reprieves to such time as might be necessary to give room to apply to the executive for NEW YORK, OCTOBER, 185!. Carnal v. The People. a pordon; that it belonged of common right to every tribunal which was invested with authority to award execution; and was no more an executive than a judicial power. It was to put an end to this claim and exercise of power that the statute in question was recommended and passed. Thus far the origin of. the statute has been regarded only as it affected reprieves. There was one case, and only one, in which the governor was authorized by the constitution and the laws to suspend a sentence for an indefinite period, and that was in cases of treason, where the power to pardon was expressly prohibited to him. Now, as the power claimed by the judges was rested upon grounds broad enough to reach suspensions also as well as re- prieves, and as the case of treason was one of those put forth by the presiding judge, in that instance, as one where the power might be exercised, the revisers (and the legislature following their recommendation) deemed it proper to extend its prohibition beyond the case which had actually occurred to one which might occur. It was in substance, therefore, enacted that, as the governor had power in all cases except treason and impeachment, to reprieve for a definite period, the power should not be exercised by any other officer, and that as he had power in cases of treason to suspend for an indefinite period, that power in like manner should not be exercised by any other one. And thus the object of the statute was attained in guard- ing against conflicts between the executive and judicial depart- ments. I have already remarked that the act complained of in the case before us was not a " reprieve," within the sense of that word as used in the constitution and the statute; and I now add, it is equally manifest that it was not a " suspension" within. that sense. It was, however, claimed on the argument, that even if the strict letter of the statute would bear such construction, it was evidently the intention of the legislature to prohibit the exercise of any power over, or interference with the sentence, by any one other than the governor, and that the act complained of was clearly within the spirit of the statute; and we have not over- looked that view, for it struck us with much force on the ar- 2(58 DECISIONS IX CRIMINAL CASES. Carnal t>. The People. gument; the revisers, in their report, touching this enactment, almost, if not quite, say so; and to ascertain how that is, it is necessary for us to examine somewhat at large the system which thty recommended and which was adopted by the legislature. Prior to the revised statutes, there was no bill of exceptions in criminal case and writ of error thereon, for the review of con- victions in the Oyer and Terminer; the review was attained in this manner: the court suspended passing sentence, and certified the question, which was in doubt, to the supreme court, who considered and passed upon it, and advised the court below either to grant a new trial, or proceed to pass sentence, and sometimes when the convict was before them, they passed the sentence themselves. Whether the trial should be reviewed was at the option of the court before which it was had, and the jury had not the right as in civil cases to take exceptions, and carry up the record for review. In case the judge consented to a review, the necessary time for that purpose was given, either by the court suspending its judgment, or, after judgment pronounced, by suspending the execution. The legislature, in the revised statutes, altered this practice, and gave to the prisoner the right to interpose his ex- ceptions, and a right to a review of his case, and they adopted various provisions to carry out their intentions. They gave the party on trial an absolute right to a bill of exceptions. In certain cases the district attorney might sue out a certiorari, and so bring the exceptions to the attention of this court, and, on the other hand, the defendant might sue out his writ of error and so bring up the case for review. In all cases not capital, the writ of error was one of right, and the judge was bound to allow it. In capital cases, it was in the discretion of the judge who tried the cause, or any other judge of this court, to allow or refuse the writ. And then, in order to provide the time ne- cessary for a review of the case in the higher court, it was pro- vided, in all cases, that the writ of error should stay of delay the execution of the judgment, or of the sentence thereon, when there was an express direction therein that it should operate as a stay. NEW YORK. OCTOBER. 1851. 269 Carnal v. Tha People. Thus a harmonious system was adopted, by which the pri- soner's right to have his case reviewed was secured to him, delays, on his part, were provided against, and ample time for such review was provided for. The act of the judge com- plained of in this case is, that while he thought, in the exercise of the discretion vested in him, that the case was a proper one for review, he provided the time necessary for that purpose, by ordering the execution of the sentence to be stayed until the decision of this court on such review. The section authorizing a judge to order a stay of proceedings, in terms applies to all criminal cases where a writ of error is allowed, and the prior section prohibiting the interference of any officer except the governor in the execution of a sentence, seems to apply to all cases of a reprieve or suspension in a capital case. If the two provisions are in conflict with each other, then the one which I have last named must yield to the other, because prior in its position in the statute, upon the well known rule that the last expression of the legislature is supposed to best declare its intention. But if they can be so construed as to allow both to operate, and they do not necessarily conflict, such construction must be given to them as will allow full force to both. The two sections may, it is true, be made to conflict by a certain construction, but they do not necessarily conflict. On the other hand they may be so construed that both may exist harmo- niously together. Thus, if the section which forbids the interference of a judge is confined to cases where the review or suspension is for pur- poses other than a review of the case in a higher court, and the section which allows him to grant a stay of proceedings is confined solely to cases where such review is sought, they can exist in unison with each other, and in entire harmony with the whole system. There will then be left with the judges that which is conceded to them in all other cases, civil and criminal, viz. the power to stay proceedings until a review can be had in a higher tribunal; and there will be left to the governor his full power to pardon, suspend or reprieve execution. This con- struction is commended to our favorable regard, not merely by 270 DECISIONS IN CRIMINAL CASES. Carnal v. The People. the well settled rules of construction as to enactments apparently conflicting, but by the difficulty we encounter in finding any reason why the statute should exempt capital cases from a rule which applies in all other imaginable cases, civil or criminal, important or inconsiderable. But there are still other consid- erations. In these cases the court before whom the trial is had may suspend all proceedings after conviction, provided they do so before they pronounce sentence, and for the purpose of having the case reviewed. What good reason can be found for denying the exercise of the power for the same purpose, after sentence shall be pronounced? Again, if the judge who presides at the trial should refuse to allow the writ of error, his decision is not final, but another judge may allow it. Of what use would that be in a capital case, if the proceedings could not be stayed? The allowance of the writ, which would be, in effect, a certificate by a judge of this court, that there was, probably, error in the conviction, would, in such an event, be the cruelest mockery, and the writ be rendered entirely nugatory. This view may be carried still further, by reflecting a moment on the state of things which existed when these statutes were enacted. It was a circuit judge who presided in the Oyer and Terminer. He might think there was no error or doubt in the case, and so refuse either to suspend the judgment, or allow a writ of error. Yet, the chancellor or a judge of the supreme court might think there was error, or at least doubt, and allow the writ of error. Yet, according to the construction contended for, he (the su- perior officer) would be obliged to leave the prisoner for execu- tion with that doubt or error hanging around the case, because the inferior officer had said so. There is another consideration to be regarded. Although a writ of error did not, from its nature, operate as a stay of proceedings, yet it had so often and so generally been clothed with that attribute by the English statutes, passed before our revolution, and incorporated into our law, that at the time of revising our statutes, it was generally supposed it would operate per se. The revisers so understood it, and hence the enactment is, not that a judge may grant a NEW YORK, OCTOBER. 18-51 Carnal v. The People. stay, but that no writ of error shall operate as such unless it contains in it a direction to that effect. So that but for that restriction, when the statute gave a writ of error in criminal cases, it might, in the then prevailing opinion, be of itself a stay; and the repiieve or suspension of execution that might thus be worked out, would be, not by the direct interference of " any court, judge or other officer," but by the very nature and office of the high writ. Again, the statute has made another very important distinc- tion between writs of error in capital and in other cases. In all cases not capital, the writ may be allowed by any county judge, recorder, and supreme court commissioner, and without notice to the public prosecutor, but in capital cases only by the chancellor, judge of the supreme court or circuit judge, the highest of our judicial officers, and then only after notice to the attorney general or district attorney. Why this distinction, if there was to be no stay of execution? Was the allowance of the writ of error confined to those officers who are alone trustee by the statute with the power to stay proceedings? And why, above all, this care and caution about a writ of error, which, when unaccompanied by a stay of proceedings, would become so illusive? In fine, the granting of pardons, reprieves, and suspending executions in criminal cases, provided for in one of these sections, is now, under our existing constitution and laws purely an executive power, confided to the governor alone; and the staying proceedings upon a judgment in either a civil or criminal case, for the purpose of enabling a party to enjoy fully the benefit of the reprieve which is secured to him, is purely a judicial power, which has always been exercised by the courts, and can not be abandoned without subjecting to great peril the important interests confided to and passed upon in them. We are, therefore, of opinion that this motion must be denied. 272 DECISIONS IN CRIMINAL CASES. SUPREME COURT. New York General Term, December, 185 Edmonds, Mitchell and King, Justices. HENRY CARNAL plaintiff in error vs. THE PEOPLE def'ts in error A juror may be challenged to the favor, after a challenge to the same juror, for principal cause, has been tried and overruled. Where, after a challenge for principal cause had been tried and overruled, a challenge to the same juror was interposed " to the favor," it was held that the form of the challenge was sufficient without stating specifically the grounds of challenge. Where an exception is taken so indistinctly that the court can not readily perceive the exact point of the objection, the appellate court will disregard it. Per Mitchell, J. This was a writ of error to the New York Oyer and Termi- ner, where the plaintiff in error was tried for murder, Justice Edmonds presiding, and sentenced to death. A bill of excep- tions having been settled, a writ of error was allowed with a stay of pro feedings. The questions presented by the exceptions are fully stated in the opinion of the court. H. L. Clinton and Jl. L. Jordan, for the prisoner. JV. B. Blunt (Dist. Att'y), for the people. KING. J. The first exception to the proceedings at the trial is thus stated in the bill of exceptions: After several jurors had been called and challenged to the favor on the part of the prisoner and set aside, Charles Mason was called as a juror and appeared and was chal- lenged for principal cause on the part of the prisoner, and the challenge denied by the counsel for the people, the said Charles Mason having been sworn to testify the truth as to his competency to serve as a juror, testified that he had not formed or expressed any opinion as to the guilt or innocence of the accused, whereupon the challenge for principal cause was overruled, and the counsel for the prisoner then challenged NEW YORK, DECEMBER, 1851. 270 Carnal v. The People. twin pr;rwn *nr \a\or, but the court thereupon decided that the ju^or hwvir^ bo^n challenged for principal cause, and on such challenge i-xj-Tiined rs to his indifferency, and said cause of challenge having been hoard and decided and the juror found indifferent, it was too la^t to interpose a challenge to the favor, to which decision the counsel for the prisoner then and there duly excepted. Said person Has then sworn as a juror to try the said cause. It is contended on the part of the prisoner, that the court erred in refusing to allow a challenge to the favor, after chal- lenge for principal cause had been overruled by the court. On behalf of the people it is contended that if a party has more than one cause of challenge to a juror, he must take them all at once, and can not, after the decision of a challenge for cause, again challenge the same juror for a second cause; though he may peremptorily. And next, that the court was at liberty to refuse the challenge, no cause of challenge being alleged. To which, on behilf of the prisoner, it is replied that chal- lenges to the favor are to be tried by triers, and challenges for principal cause may be tried by the court: that the rule re- quiring all causes of challenge to be shown at once, can only mean such causes of challenge as are triable by the same tri- bunal; that all principal causes of challenge must be urged together, and all causes of challenge to the favor must be urged together, but not all causes both principal and to the favor at the same time. And next, that it is not necessary to show cause of challenge to the favor, and had it been the decision of the court disallow- ing any challenge to the favor for the reasons assigned, ren- dered it unnecessary to show any cause. Two questions arise upon the first exception presented in the bill. First: Did the judge err in holding that after the decision disallowing a principal challenge to a juror for cause, the pri- soner could not interpose a challenge to the favor in relation to the same juror. And, second, if the judge did err, was the error committed in VOL. I. 35 274 DECISIONS IN CRIMINAL CASES. Carnal v. The People. reference to a point presented by the case and upon which he was called to pass, or upon an abstract proposition of law not applicable to the matter before him. As to the first question, there are rules laid down in the books on the subject of challenges which, if taken without qualifica- tion and to the extent which the generality of their terms im- port, would fully sustain the position that where, upon a prin- cipal challenge for cause, a juror had been found indifferent, the same juror could not be challenged to the favor. Lord Coke is usually cited as first collecting the learning relative to challenges, and among the general rules laid down by him is this: (Coke's Inst., p. 158, a) "He that hath divers challenges must take them all at once, and the law so requireth indifferent trials as divers challenges are not ac- counted double." Upon his authority the same rule is repeated in Bacon's Abridgment Title Juries (E.) 11; Burns' Justice, Title Jurors JV*. Ill; Joy on Confessions, Law Library, vol. 24, p. 223; Trials perpais, vol. 1, p. 197; and by Chitty, in his work on Criminal Law, vol. 1, 5th Jim. Ed. p. 545. Upon the same authority the rule is stated, " If there be several objections to the same juror they must be all suggested at the same time." In Tnals per pais, vol. 1, p. 200, it is said, " If one challenge a juror and it be found against the challenger, he may not chal- lenge the juror for a second cause. For this no authority is cited, and it probably is only the author's deduction from the general rule laid down by Coke. In Hale's Pleas of the Crown (vol. 2, p 274, 1st Jim. Ed.), it is stated, " When a prisoner challengeth for cause, he ought to show his cause presently, because it is the king's suit, but some books are that he shall not show cause till the panel be perused; but he must show all his causes together. (Per 24 Eliz., C. B. Brac/cett's case.) This case I have not been able to find. The general rule thus laid down by Lord Coke, it is obvious from other portions of his note on challenges, is not correct to the full extent which its terms import. Challenges are divided by him into challenges to the array and challenges to the polls. NEW YORK, DECEMBER, 1851. 270 Carnal v. The People. Challenges to the array are subdivided into challenges for principal cause and challenges to the favor. (Coke's Com. p. 156, a.) Challenges to the polls are said to be of four kinds; per- emptory, principal, which induce favor, and for default of hundredors; the latter now obsolete. (P. 156, 6.) Peremptory, without showing any cause. Principal, so called because if it be found true it standeth sufficient. of itself, without leaving any thing to the conscience or discretion of triors. These principal challenges are again classified under four heads: propter honoris respectum, propter defectum, prop- ter affectum, propter delictum; and in treating of challenges propter affectum, they are stated to be again subdivided into principal challenges and challenges to the favor (p. 157, a.), which would seem to confine challenges to the favor to challenges included in the subdivision propter affec- tum. But there appears to be some confusion in Lord Coke's classifications in first stating in his classification of chal- lenges that there are four kinds, viz.: among others, principal and for default of hundredors, and afterwards subdividing prin- cipal challenge into four heads and among others a challenge propter dejectum. He includes under this latter head a chal- lenge for want of hundredors, which he at first classified sepa- rately; and so in respect to challenges which induce fovor, first stating them as a separate class of challenges distinct from principal challenges, and afterwards including them under one head of principal challenges, he again treats of them as a dis- tinct class (p. 157, 6), as challenges concluding to the favor, where either party can not take any principal challenge, but showeth causes of favor which must be left to the conscience and discretion of the triors, upon hearing their evidence to find him favorable or not favorable. It thus seems that the correct classification of all challenges to the polls is, first, into challenge for principal cause, which, if found true, standeth sufficient of itself without leaving any thing to the conscience or discretion of the triors. Second, challen- ges concluding to the favor, when either party can not take 276 DECISIONS IX CRIMINAL CASES. Carnal v. The People. any principal challenge but showeth causes of favor, which must be left to the conscience and discretion of the triors to find the juror favorable or not favorable. And third peremp- tory without any cause assigned. And thus challenges to the array and to the polls, so far as they are challenges for cause, admit of the same classification into principal challenges and challenges to the favor; the challenge to the array being in respect to some matter affecting the offi- cer returning the panel of jurors, the challenge to the polls being in respect to some matter affecting the jurors individually. The general rule first stated that divers challenges must be taken together is then first qualified by the rule laid down by the same authors that after challenge to the array disal- lowed a challenge to the polls may be taken. It is further qualified by the mode in which challenges are to be stated and to be tried. It is stated in Joy on Confessions (vol. 24, Law Library, p. ^2S), that when a challenge is made, the adverse party may either demur (which brings into consideration the legal validity of the matter of challenge), or counterplead by setting up some new matter consistent with the matter of challenge to vacate and annul it as a ground of challenge, or he may deny what is alleged for matter of challenge and it is then and there only that triors are to be appointed. It seems to me probable that in early times the court, upon the established distinction that to them belongs the decision of questions of law, and to the jury the decision of questions of fact, would only have decided upon challenges when by de- murrer the facts stated as cause of challenge was admitted to be true, and their sufficiency to exclude the array or the juror alone disputed; but it appears now to be established that the court may pass upon a challenge for principal cause, as well upon questions of fact as of law, and that triors are only neces- sary upon challenges to the favor. ( 1 Chitty's Crim. Law, 5th Jim. Ed. p. 549.) If, therefore, challenges to the favor can not be interposed when, upon challenge for principal cause, the juror has been NEW YORK, DECEMBER, 1S51. 277 Carnal t>. The People. found indifferent, the party challenging is deprived of a Isenefit conferred by law that triors should pass upon the question of the unindifferency of the juror, and is compelled to submit to the decision of the court, which, without his assent^ is not the tribunal to determine challenges to the favor. In fact, different questions arise under the two challenges; if principal cause is shown, the juror must be set aside, and if allowed to serve, it would be error which would appear upon the record, and even before the introduction of bills of exceptions in criminal cases, would have furnished grounds for reversing the judgment; but the challenge to the favor is to be determined by the conscience and discretion of the triors alone and from their finding there is no appeal. Again, it is stated in Jacob's Law Dictionary by Tomlins ( Title Jury, II, p. 579, vol. 3, 1st Jim. Ed. ), that, " if one take a principal challenge against a juror, he can not afterwards challenge that juror for favor and waive Jiis former challenge, but a challenge may be made to the polls after it has been made to the array, citing Wood, 592. If the work intended be Wood's Institutes of the Laws of England, I have not been able to find in it the position which it is cited to sustain, and which, if founded on authority, would go far to support the rule that all challenges for cause must be taken together and decided by one trial. But there are authorities to the contrary. In Trials per pais (vol. 1 p. 189), it is said if a man chal- lenge a juror for nonsufficiency of freehold, and this is adjudged against him, yet he may challenge for favor and this shall be tried, citing 10 H. 6, 18; Roll. Trial, 658, pi. 3. Thus sus- taining a challenge to the polls for favor after an adverse decision on a challenge for principal cause. In Uoare v. Brown (Cro. Eliz.p. 369), in an action of replevin a defendant would have challenged the array ore tenus, because it was returned by one Stouner, sheriff, after he had received a writ of discharge; and it .vas held by the court that he could not challenge it for that cause because it would be a direct averment against the record, for it is returned by him as sheriff 278 DECISIONS IN CRLMINAL CASES. Carnal v. The People. and the return accepted. But by advice of the court he made his challenge to the array because it was favorably made and returned in favor of the party, &c., and issue being joined there- upon and all this matter given in evidence, the court directed the triors that it was not duly made and returned, for it was without warrant, whereupon the array was quafjhed. Thus sus- sustaining a challenge to the array for favor after a challenge for principal cause allowed. I have thus endeavored from a careful examination of Coke's Institutes and Trials per pais, works usually cited as authorities on the subject of challenges to jurors, to ascertain if the rule that divers causes of challenge must be taken together can be held to exclude a challenge to the favor after a challenge for principal cause disallowed, and feel satisfied that such is not the meaning of the rule but that it only means that all causes of principal challenge must be taken together and be tried at the same time, and if disallowed a challenge to the favor may be interposed; but that all causes for this latter challenge must be assigned together and tried at the same time; at least, that after one trial no fresh cause of challenge to the favor can be urged, unless arising subsequently to trial. In this state, the authorities appear fully to sustain the con- clusion thus arrived at. I have carefully searched the reports for cases on the subject, and in support of the first proposition, that the prisoner has a legal right to challenge to the favor after a challenge for principal cause has been decided against him, refer to the following instances where such challenges have been taken without objection: In The People v. Freeman (4 Denio, p. 9), Beach, a juror, was challenged for principal cause, and the challenge was overruled. He was then challenged to the favor, triors were appointed, the judge charged them, they found the juror indifferent, he was sworn, and Ihe prisoner was found guilty. The supreme court reversed the judgment, for, among other errors, an error com- mitted by the judge, in charging the triors. If the prisoner had not the legal right to challenge to the favor after a chal- lenge for principal cause disallowed, however erroneous *he NEW YORK, DECEMBER, 18-31. 379 Carnal v. The People. judge's charge might have been, no error would have been committed which could be reviewed in the court above. In the People v. Honeyman (3 Denio, p. 121), Roberts, a ju- juror, was challenged for principal cause; the challenge was denied and tried by the court and disallowed. The same juror was then challenged to the favor, and the triors found him indifferent and he was sworn. In the supreme court no comment was made upon the fact that challenge to the favor had been taken after challenge. for principal cause. In The People v. Mather (4 Wendell, 229), Samuel Clark was challenged for principal cause, and the challenge was overruled; he was then challenged to the favor, and the triors found the juror not indifferent. These separate challenges are not commented upon as improper by the supreme court. These cases, strongly contested as they were, furnish some evidence that the general opinion both of the bench and the bar has been, that the same juror might be challenged to the favor after a challenge to him for principal cause had been allowed. I have entertained much more doubt on the other question pre- sented by the exception in this case, whether the judge, what- ever were his reasons, erred in refusing to receive the challenge to the favor as it appears upon the record, without cause as- signed. The challenge to the favor is a challenge for cause, and if no cause is assigned, according to the doctrine, though not the practice, in the case of The People v. Freeman (4 Denio, p. 9), the challenge need not be received. The reported cases in this state do not, however, that I have been able to discover, disclose an instance where the general form of the challenge has been objected to; thus, in The People v. Lohman (2 Barb' up. Ct. Rep. p. 216), a juror was challenged to the favor, it does not appear from the record that any cause was assigned or that the omission was objected to in the Oyer or Terminer or in the supreme court, or in the court of appeals, in the report of the same case. (1 Comstock Rep. p. 280.) In Freeman's case, cited before, (4 Denio, p. 9) Beach was challenged to the favor; no cause was assigned, and Judge Beardsley, though he lays 230 DECISIONS IN CRIMINAL CASES. Carnal v. The People. down the rule that a challenge without cause assigned may be disregarded, practically violates the rule by reviewing the judge's charge to triors on such a challenge without cause as- signed. In The People v. Honeyman (3 Denio, p. 121), the juror was challenged for favor, on the ground of bias against the prisoner, a cause of challenge not more specific than the challenge itself. In The People v. Bodine(l Denio, 281), Coon and M'Colgan were challengedybryavor; no cause of challenge assigned, and the omission was not objected to. In 14 Wend. 13 1, (Rogers v. Rogers) a juror was challenged as not indifferent; no other cause assigned and no objection to the omission. In The Prople v. Mather (4 Wend. 229), Samuel Clark was chal- lenged to the favor; no cause was assigned, and no ob ection to the omission. In The Mechanics'' and Farmers' Bank v. Smith (19 Johns. Rep. p 115), the juror was challenged to the favor; no cause was assigned, and no objection made to the omission. In The People v. Thorn, N. Y. General Sessions, June, 1819, before Cadwallader D. Golden, mayor, P. A. Jay, recorder (4 City Hall Recorder, p. 81), the juror was challenged to the favor and his relationship to one of the parties inquired into, and the evidence not sustaining the intended objection, it was offered to prove other facts to sustain the challenge Emmet contended that the party must be confined to the matter first inquired into and should not be indulged in a fishing voyage. Golden decid- ed, that upon a challenge to the favor, it was not necessary to specify the cause previous to trial; that a logical precision in assigning cause in this species of challenge would in general not be practicable, and in the opinion of the court would be unnecessary. It would seem, from these cases, that in the opinion of the bench and bar, it has been sufficient merely to challenge to the favor without further or other cause assigned. Vide also 1 Chitty's Criminal Law, 5 Jim. ed. p. 547: " The mode of chal- lenging." In Lord Coke's language, the juror must stand indifferent as ne stands unsworn; and to effect this object, full libertv appears to have been given in modern times to an examination of the NEW YORK. DECEMBER 1851. Carnal v. The People. condition of the juror's mind and feelings [the distinctions be- tween opinions and impressions, &c., &c., be ng more meta- physical often than I am able to understand] ; but at all events, an opportunity is to be afforded to ascertain something of the juror's opinions before trusting him with the life of the prisoner; an opportunity not likely to be abandoned in this large city at least, where counsel, prisoner and juror meet often for the first time in the court room; the juror acquainted with many of the details of the accusation against the prisoner from the pub- lic press, and the prisoner unable, save from the juror himself, to asceitain how far that acquaintance has disqualified the juror for giving him an impartial trial. My conclusion, therefore, upon the whole case is, 1. That af- ter a juror has been challenged for principal cause, and the chal- lenge tried and disallowed, he may be challenged to the favor, and that the judge below erred in holding otherwise. 2. That it is sufficient to challenge to the favor without assigning other cause than the words of the challenge import, and therefore that the judge should, upon such challenge, have appointed triors and that his refusal to entertain the challenge was error for which, upon a bill of exceptions, the judgment must be re- versed, and a venire de novo awarded. The prisoner has been convicted of an atrocious crime, and it is to be regretted that the decision of this court may enable him to escape the punishment which the law affixes to his of fence. But the rule of law can not be varied to suit particular cases; it must, in a country of laws, be universal in its appli- cation. It is needless to consider the other questions presented by the bill of exceptions. The judgment pronounced by the Oyer and Terminer should be reversed, and a new trial ordered in the court of Oyer and Terminer, and the prisoner be remanded to the custody of the sheriff to await such new trial, on the indictment against, him. MITCHELL, J. At the Oyer and Terminer in this city, Carnal was found guilty of murder. He has brought a writ of error to VOL. I. 36 282 DECISIONS IN CRIMINAL CASES. Carnal r. The People. this court, and the exceptions taken by his counsel to the rulings of the court below have been argued. The bill of exceptions states that after several jurors had been called and challenged to the favor on the part of the prisonei and set aside, Charles Mason was called, and was challenged for principal cause on the part of the prisoner, and the challenge denied by the coun- sel for the people; the said Charles Mason having been sworn to testify the truth as to his competency to serve as a juror, testified that he had not formed or expressed any opinion as to the guilt or innocence of the accused, whereupon the challenge for principal cause was overruled, and the counsel for the pri- soner then challenged said person for favor, but the court thereupon decided that the juror having been challenged for principal cause, and on such challenge examined as to his indiiferency, and said cause of challenge having been heard and decided and the juror found indifferent, it was too late tc interpose a challenge to the favor; to which decision the coun- sel for the prisoner then and there duly excepted, and that said person was then sworn as a juror to try the cause. It is first objected by the district attorney that no cause of challenge to the favor was specified, and that the challenge was therefore a nullity. Such seems to have been deemed the rule, if the court below choose to insist on such a rule, and to re- quire the facts to be stated. But the practice has been different, and it has almost invariably been allowed in this city to the challenge first to interrogate the juror and get the facts from him, and then to argue on the evidence, as it may thus appear, whether he is admissible or not. And in conformity with this practice it is a frequent thing for the court to prescribe certain questions to be put to every juror, which he is to answer, and no specific cause of challenge is stated until these answers are given. Such is the course adopted in the United States courts in Philadelphia on the trials for alleged treason, now pending, and such also was the course of another branch of that court in Boston, within a few months, on similar trials. The same usage probably prevails throughout the state. Such being the case, it would be a surprise on counsel to allow them to proceed on NEW YORK, DECEMBER, 1851. Carnal v. The People. the trial as if the usual waiver of a form was to be allowed, ami to make no objection to the omission in the court below, and then for the first time raise the objection in the appellate court. In this case, before this juror was called, several other jurors (as the bill of exceptions stated), had been called and challenged to the favor on the part of the prisoner and set aside. Beyond any doubt they were challenged in the usual way without as- signing any cause until their examination had disclosed their incompetency. It would then be a fraud on the prisoner to allow the trial to commence in such way as to lead his counsel to believe that the formality of assigning specific causes was to be waived, and afterwards, without insisting on this formality in the court below, when this defect could be immediately cured, to make it an objection for the first time in the appellate court, when there would be no opportunity of curing it. Such an injustice would be entirely contrary to the intention, as it would be to the lenient character of the judge who presided at the Oyer and Terminer. In this case the counsel for the pri- soner challenged to the favor, and " the court f hereupon decided" that such challenge could not be allowed. This was a declara- tion to the counsel that however formally they might put their challenge, or whatever might be the cause which they might allege, it w r ould be disallowed. Counsel after that de- cision could not with propriety insist that they should be allowed to state the cause of challenge. Probably, as the bill of exceptions indicates, the counsel challenged to the favor, and the court thereupon or immediately on that challenge being put, stated the objection to it, and decided that it could not be made. Besides this, there is no need in a bill of exceptions of stat- ing more facts than are necessary to show the applicability of the point of law excepted toj that was the simple question, whether after a challenge for principal cause has been over- ruled, a challenge to the favor can be allowed. That was the precise point decided, and the precise point excepted to. All the facts that are necessary to present that point are, that there was a challenge for principal cause, and that it was overruled, 234 DECISIONS IN CRIMINAL CASES. Carnal v. The People. and that then a challenge to the favor was made. For the pur- pose of examining the point decided and excepted to, it is entirely unnecessary to know what the causes assigned for the principal challenge were, or what those assigned for favor were, and they may therefore have been omitted in the bill of excep- tions as unnecessary, and yet have been stated in the court below. A fair interpretation of the bill of exceptions would lead to a like conclusion. It states that several jurors were called and challenged to the favor; this means that they were duly challenged. It states that Mason was challenged for prin- cipal cause; that also certainly means that he was duly chal- lenged; and after that it states he was challenged for fevor; again, also, it can mean nothing else than that he was duly challenged. In any view of the case, therefore, we are com- pelled to decide the direct question passed on by the presiding judge of the Oyer and Terminer, and which we know he wishes should not be avoided, and which especially in a case of life or death should not be avoided. It has been before stated that it has been declared that the court may require the facts constituting the cause of challenge to be stated. If this means anything more than that the facts, as contradistinguished from the evidence of facts, may be required, it is believed that it would be impracticable in operation. In pleadings at common law, facts are to be so stated that, from the statement made, the court may draw a conclusion as a con- clusion of law. To require therefore a challenge for principal cause to state the fact is analogical and reasonable, for then the court is to determine, as a question of law and not of fact, whe- ther the challenge is good or not. But challenges to the favor do not rest on facts, from which the court can raise any inference of law, but on circumstances having the least tendency to make it probable that the juror may be under any bias, and which the triors are then to pass on, not as matter of law, but of fact. Thus a hypothetical opinion expressed by a juror, or his obtain- ing a discount at a bank which is a party to the suit, or being a fellow servant with a party to the suit, may be submitted to the triors, and they may find either way, and the court will not NEW YORK, DECEMBER, 1831. 2S5 Carr.al v. The People. interfere with their finding. Either of these circumstances may have others connected with it which may be proved in evidence, and may determine the result one way or the order, which yet it would hardly be proper or practicable to require to be stated as specific causes of challenge. Many of them, too, can only be ascertained (as is almost invariably the case) by the exami- nation of the juror and the disclosures so made by him. If the object be to obtain an impartial jury, no restriction that would forbid the examination of the juror, until the specific cause of challenge should be stated, should be allowed. The strict rule is laid down and carried out in Mann v. Glenn, in 2 Green's Rep. 192 (New Jersey). But in our courts the correctness of the judge's decision in the court below has been uniformly inquired into, although no specific cause of challenge was stated. In 6 Cow. 555, 558, in ex parte Vermilyea, Judge Woodworth says, " The most regular course would be to have stated in the first instance the facts relied on for cause. It seems, however, that the juror was challenged without specify ing the cause, and the question referred to the court." This, too, was a challenge for principal cause, yet the court examined into the propriety of the decision and ordered a new trial. In The People v. Freeman (4 Denio, 9), the court say (p. 31), "When a juror is challenged for principal cause, or for favor, the grounds of the challenge should be distinctly stated, for without this the challenge is incomplete, and may be (not must be) " wholly disregarded by the court. This points out a rule which it is intended should be followed, but the court proceeds in the next page to show " that challenges are not unfrequently made in general terms, which merely indicate the supposed cha- racter of the challenge, as for principal cause, or for favor," and so lenient were the court then, that although the bill of exceptions only stated that the juror was challenged for prin- cipal cause, they inferred that cause was alleged corresponding with the evidence from the fact that evidence was given (p 33). On the same principle it may be inferred here that cause was alleged from the decision of the judge, or that he waived 236 DECISIONS IN CRIMINAL CASES. Carnal v. The People. the allegation of any cause and rested his decision on a point which would have made the allegation unnecessary and imper- tinent This brings us to the question is it too late to interpose a challenge to the favor after a juror has been challenged for principal cause and the challenge overruled by the court? General expressions will be found in elementary works which seem to hold the affirmative. Thus it is said in Vin, Jtbr. (Trials L. D. pi. 20), " He that has divers challenges must take them all at once and the law so requires indifferent trials, that divers challenges are not accounted double," quoting Co. Litt. 158, a. The same thing is said, probably on the same authority, in the same words, in Trials per Pais (Ed. 1766, p. J97), and in similar, though not the same language in 1 Chitty Cr. Law, 545, and also in Joy on Con. They do not, however, refer to any case which would illustrate their meaning. They do, however, indirectly show what is intended by them. The words used are broad enough to require the party to take his challenge to the array and to the polls at the same time, for they are, " he that has divers challenges must taken them all at once," He who has a challenge to the array and to the polls has divers challenges, yet he can not take them both at once, but mu$t first challenge the array, and then the polls. The words also would include peremptory challenges; yet after a challenge to the polls is taken and found against the party he may peremptorily challenge the juror thus admitted. The rule therefore, is subject to qualification, and its qualification is shadowed forth in the latter part of it, when it says, " divers challenges are not accounted double." It is no objection that more than one sufficient cause of challenge is stated; that is not accounted double pleading. But if one should challenge for principal cause, and then set forth one sufficient principal cause, as that the juror was under lawful age, and added any number of good causes of challenge to the favor, that could be imagined, the last would hardly be subject to the Objection of being double, for they would constitute no cause of objection to NEW YORK, DECEMBER, 1851. 287 Carnal v. The People the juror on the only question before the court, which would be whether the challenge for principal cause was sustained. These certainly would not sustain that issue. If then two classes of objection were united, the court would be without the power of passing on those to the favor. It could not say whether they were sufficient challenges to the favor or not for that is a question of fact for the triors to decide, and not of law for a court to decide. Certainly there is no rule of law requiring a party to present an objection to a tribunal which can not pass on it. The rule therefore intended by these elementary books must bo, that " a party must prefer all his challenges of the same nature and triable by the same forum, at once. (Ch. J. Hornblower in Mann v. Glover, 2 Green, 196, 202.) The party must show whether his challenge is for principal cause or for favor, that the court may know whether it is to pass on the question, or submit it to triors. He may have rea- son to believe that he has both grounds of objection he should not lose either, as "the law (in the words of the rule) so requireth indifferent trials." To obtain the benefit of both, he must be allowed to present each to the tribunal appointed by law to pass on it the matter of principal cause to the court, and if that be found against him, then the matter for favor which the court could not have passed upon (or which if it had been alleged as principal cause, it must have been overruled as not of that character), to the triors appointed by law, or, if the parties choose, to the judge to determine, not as a princi- pal cause but as to the favor. A challenge might be taken as for principal cause, the evidence might show that it was not of that character, but that it clearly was sufficient to be submitted to triors. The judge would be bound to overrule it, because it did not amount to a principal cause, but for that reason must the juror, whom the triors would probably reject, be admitted? All that the judge would have decided would be that the principal cause was not sustained, he would not have passed on the question whether the juror might not still be biassed, or whether triors might not 283 DECISIONS IN CRIMINAL CASES. Carnal v. The People. be justified in excluding him. Tf the question therefore, wcs submitted to triors on the same evidence, it would not be on appeal from the judge to them. The judge might well say to them, that he was right in his decision, and yet that they might probably exclude the juror. Thus if, as in the case of The People v. Mather (4 Wend. 235), a juror should testify that he was a partner of the defendant's brother, that his partner was rich, and he poor, he contributing only his labor to the firm, that he resided with his partner, that he had read news- paper accounts of a similar trial, but had no fixed opinion of the guilt or innocence of the defendant the court might be bound to overrule a challenge for principal cause and yet be disposed, if established for the triors, to reject the juror for favor. In the one case the decision is that the law, under the facts proved, holds the juror not to be necessarily incompetent; in the other, that there is such probable cause of bias that he ought to be rejected. From the very nature of the challenges, it might be interred that the one might be allowed after the other had been disal- lowed. For the challenge to the favor is a supposition that the bias or partiality to be proved is not such as would be in law a ground for a principal challenge. This was fully shown in the case of The People v. Bodine. (1 Demo, 281.) The practice in our courts so far as the reports show, has been in conformity with these views. In The People v. Mather (4 Wend. 229, 232, 234), Clark, a juror was challenged for prin- cipal cause, and admitted by the judges; he was then challenged for favor, and triors appointed, and was rejected by them. No one intimated that there was any irregularity in this; and this case is quoted by Ch. .1. Hornblower in 2 Green. Rep. 205, as showing that after the court has decided certain matters not to be sufficient to sustain a principal challenge, the party may submit the same evidence to triors in support of a challenge to the favor." The same course was taken without any intima- tion from any question that it was irregular in The People v. Honeymann (2 Denio, 122). Roberts was challenged for princi- pal cause admitted by the court, who rejected evidence offered NF.W YORK, DECEMBER, 1851. 289 Carnal t>. The People. to show impressions made on the juror's mind as not amounting to principal cause, although proper on a challenge to the favor, and he was then challenged for favor and the jurors also admit- ted him. In The People v. Freeman (4 Denio, 9), two jurors were challenged for principal cause and admitted by the court They were then challenged for favor, and the court charged the triors as to the law and exceptions were taken to that charge; these exceptions were argued in the supreme court and were held to have been well taken, and on that account partly a new trial was ordered. If in such a case the prisoner had no right to a challenge to the favor, an error in the charge of the judge could have done him no harm in law; but no such objection was raised by the attorney general or his learned associate in this case as may be inferred from the fact that none such is returned by the court in an elaborate opinion which seems -to have been intended to meet every objection. (See p. 34 and p. 15.) The same principle is also contained in the elementary works, from which the general rule has been extracted. It is said in Trials per Pais (p. 189), " If a man challenges a juror for non- sufficiency of freehold, and this is adjudged against him, yet he may challenge for favor, and this shall be tried." The same is also stated in Vin. Abr. (Trial, L. d. pi. 3). This single illus- tration establishes the rule nonsufficiency of freehold is a challenge for principal cause and is to be " adjudged " by the court; but still after this is so adjudged the party may chal- lenge for favor, and this shall be " fried " by triors another forum, which could not pass on the first challenge; as the first forum, the court, could not on the last. Authority, the practice of the court and principle seem all to concur in allowing the prisoner first to challenge for principal cause and have that " adjudged," by the court, and then tc challenge for favor and have that " tried " by triors " the law so " anxiously '* requireth indifferent trials. It is perhaps necessary, in order to prevent misapprehension in future cases to notice the mode in which the exceptions were taken to the judge's charge. Five different propositions were VOL. L 37 290 DECISIONS IN CRIMINAL CASES. Carnal t>..The People submitted by the counsel for the prisoner, and the judge was requested to charge accordingly. After his charge was given, it is stated that he refused to charge the five propositions, ex- cept as in his charge: to which decision and refusal the coun- sel for the prisoner excepted. The judge had charged on the fourth proposition substantially as requested; as to the third, there was not a word of evidence to sustain it; the fifth was such every day doctrine that every juror knows it, and that the judge could not by any possibility have refused to charge it if his attention had been drawn to the fact that it was one of the requests, and that he had not stated it in his charge. After the charge, counsel should in fairness have pointed out to the court in what particulars the charge failed to comply with their request, and it might have been that they would not have been considered as having placed their finger on the point ex- cepted to with sufficient distinctness to enable the court to perceive it. If an exception is taken so indistinctly that the court below could not readily perceive the exact point of the objection, the appellate court will disregard it. The judgment should be reversed and a new trial had in tht court of Oyer and Terminer. Judgment of Oyer and Terminer reversed and new trial or dered KINGS. OCTOBER, 1851. 291 SUPREME COURT. Kings General Term, October, 1851. Morse, Barculo and Brown, Justices. THE PEOPLE vs. MICHAEL JOHNSON. Vhre on a trial for murder, it appeared that the prisoner and the deceased had been engaged in a fight or scuffle in the public highway, and the prisoner after knocking down the deceased, took from the stone wall a large stone and, with both hands, threw it upon the head of the deceased so as to break in his skull and cause his death, and the presiding judge charged the jury that if they believed the deceased came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder, under the second subdivision of the section denning murder, the charge was held to be erroneous and a new trial was granted. Where the facts of a case bring it within any of the degrees of manslaughter, it can not fall within any definition of murder. Where death is feloniously caused in a cruel and unusual manner, and in the heat of passion, the character of the crime depends on the intent-, if done without a design to effect death, it is manslaughter in the second degree; if done with premeditated design, it is murder under the first subdivision of the section denning murder. But if done in the heat of passion, it can not, whatever may have been the design, be classed under the second subdivisioa of the section defining murder. Cas^s stated in illustration of the class supposed to be covered by the second subdivision of the section defining murder. Per BARCULO, J. The prisoner was tried on an indictment for the murder of Daniel Kane, at the Westchester Over and Terminer, in No- vember, 1850, Justice McCouN, presiding. The evidence showed that the prisoner and Kane on the fourth day of July, 1850, while both were intoxicated, were seen alone engaged in a fight or scuffle in the public highway; that the prisoner knocked Kane down and took, from the stone wall near by, a large stone, which he threw upon Kane's head with so much violence as to break in his skull and produce Jeath. The presiding judge, among other things, charged the jury that if they believed that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the second subdivi- 292 DECISIONS IN CRIMINAL CASES. The People v. Johnson. sion of the section of the statute defining murder, to which por- tion of the charge the prisoner by his counsel excepted. The presiding judge also charged the jury that the said second subdivision was applicable to a case where one man has overpowered another, and then proceeds to do an act im- minently dangerous to that other, and evincing a depraved mind, regardless of human life, although without premeditated design to effect the death of that other, and although that act was dangerous only to the person killed, to which the prisoner by his counsel also excepted. The jury found the prisoner guilty and the cause was removed into this court by certiorari. F. Larkin, for the defendant. I. The evidence in this case, at most, makes out but a case of manslaughter in the second degree. (2 R. S. 3d ed. 750, 10. 12; Revisers' preliminary note, Manslaughter; 3 R. S. 2d ed, 811, and also their note to 10 of manslaughter.) . II. The judge erred in charging the jury, that if " they be- lieved that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the second subdivision of the section of the statute defining murder." In order to bring the prisoner under this subdivision of the statute, the act of killing must have been dangerous to others, besides the person killed. This subdivision of the section is not applicable to the case of the prisoner, but was enacted to reach another class of cases. (2 R. S. 3d ed. 746, 5; Revisers' note to this section, 3 R. S. 2d ed.809 [3] Foster ,256, id. 261: 1 Hale, 475; 4 Slack Corn. 200; 1 Hawk, ch. 29, 12; id. ch. 31. 61; 1 East, 231, 18; The People v. White, 24 Wend. 520; The People V.Enoch, 13 Wend. 159; Barbour Cr. L. 27.) III. This part of the judge's charge was too restricted; it narrowed down the inquiry of the jury to the simple fact whether Kane came to his death by a blow from the stone thrown against him," and if they believed that it was murder under the second subdivision of the section defining murder. This subdivision KINGS, OCTOBER, 1631 293 The People v. Johnson. intends the jury shall find other facts besides the mere act of killing: they must find that the act was imminently dangerous to others, evincing a depraved mind regardless of human life (2 R. S. 3d ed. 746, 5; Hanford v. Mitchell, 4 Hill, 271.) IV. The judge erred in charging the jury, that they could find the prisoner guilty under the second subdivision of the sec- tion defining murder, without premeditated design. In order to constitute murder under that second subdivision of the statute, there must be a general premeditated design or malice afore- thought, as distinguished " from a premeditated design to effect the death of the person killed or of any human being." (2 R S. 3d ed. 746, 5; East, 231; 1 Hale, 476; 4 Black. Com. 300; 1 Hawk. ch. 27, 12; id. Ch. 3 1, 61; Foster, 261; the Revisers' note to 10, of Manslaughter.} E. Wells (Dist. Att'y), for the People. I, The judge correctly remarked " that if the jury believed that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the second subdision of the statute defining murder." The facts being admitted as found, it is for the court to de- fine their legal character and effect , and to decide whether in point of law they constitute the crime of murder, under this branch of the statute. ( One by ' s case, 2d Ld. Raym,. 1493; 2 Strange' s Rep. 773; Foster Cr. Law, 255, 256; 2 R. S. 746, 5 sub. 2, 3 ed.) II. The second and third exceptions to the judge's charge, are substantially the same matters and may be considered together. It is not necessary that premeditated design to take life should exist nor that the act producing the death should endanger any other than the person killed, in order to constitute murder un- der the second subdivision of 5 of the statute; provided the act be such as is immediately dangerous to the person killed, and evinces a depraved mind regardless of human life. 1. The case of murder with premeditated design, is embraced in the 294 DECISIONS IN CRIMINAL C\SES. The People v. Johnson. first branch of the section, and is excluded from the second branch, or at most is rendered immaterial. The latter branch was intended to include the cases at common law, of murder with implied malice, as distinguished from those committed with a settled determination and formed design. (2 R. S. 746, 5; 4 Black. Com. 199; Wharton's Crim. Law, 225-6, citing U. S. v. Cornell, 2 Mason Rep. 91; Foster Cr. Law, 256-7; 1 East P. C. 214, 215; Revisers' Notes, vol. 4, p. 3, of this act; 1 Hale P. C. 449, note 2, Jim. ed. 1847; 1 Russell on Cr. 483, ed. of 1841; White's case, 24 Wend. 581, per Wager, Senator; Rec- tor's case, 19 Wend. 606-7.) 2. It is not necessary that the act of killing should endanger any other than the person killed, to make it murder under this subdivision of the statute. A differ- ent construction would exclude all the cases of murder at com- mon law, with implied malice (and where the person killing was not engaged in the commission of a felony) from the grade of murder under our statute. Such is manifestly not the intention of the law. (Revisers' Notes, 4 vol. p. 3 of this act, note; 2 R. S. 875, 11; People v. White, 24 Wend. 534, per Wai- worth, /.) III. This case as it stands on the evidence disclosed in the bill of exceptions, does not properly fall under the head of man- slaughter in the second degree, as defined by the statute. The killing being proved, it is presumed by the law to be murder, and the circumstances which would reduce it to the milder degree of manslaughter, must be affirmatively shown by the prisoner. No such evidence appears in this case. (2 R. S. 750, 10, 3d cd.; Foster, 255, citing 2 Ld. Raym. 1993; Stra. 773; 1 East P. C. 224, 12; Foster, 255.) By the Court, BARCULO, J., We think the learned jus- tice who presided at the Oyer and Terminer erred in charg- ing the jury that if they believed " that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the 2d subdivision of the section of the statute defining murder." He was probably led into the mistake by the remarks of the KINGS, OCTOBER, 1851. 395 The People v. Johnson. chancellor in the case of The People v. Enoch, 13 Wend. 159, an J of Justice Bronson in The v. People Rector, 19 Wend. 606. It would be with extreme reluctance that we could be constrained to dissent from the reasoning of those eminent jurists. But we think that our decision can stand consistent with those authori- ties, when it is considered that the ingredient of passion, which did not exist in those cases, is the controlling and distinguish- ing feature of the present case; and as the life of a human being is involved in the decision, we will proceed briefly to state the grounds of our conclusion that the jury may have been misled by the remarks of the learned justice at the Oyer and Terminer. It is quite obvious that the revisers in the first chapter relat- ing to " crimes and their punishment," intended to present a perfect system in which every grade of homicide should be dis- tinctly and accurately classed. They state in their notes that, " It has been supposed that there was nothing so much wanted in the criminal law, as a settled line of distinction between murder and manslaughter which are now so nearly connected, and run into each other so much, that courts and juries often mistake, and a lamentable uncertainty prevails, which operates as well to screen the guilty as to expose the innocent." This evil they have remedied by a careful and judicious classifica- tion, so complete and perfect, that upon an ascertained state of facts, every homicide can be reduced to its appropriate degrees, and while it falls clearly within one class can not be brought within any other. The authors of this statute, unlike some modern law givers, understood the precise force and effect of the language used; and as a skillful surveyor makes his work meet so that his map covers the whole ground, neither more nor less, so they have included in their system every species of homicide known to the law, each degree standing by itself and occupying its own peculiar ground. This principle, we apprehend, has not always been kept in view, even by our courts, in giving construction to some of the sections. It seems to have been supposed in some of the cases that, upon a certain state of facts, a case might fall indiffer- 296 DECISIONS IN CRIMINAL CASES. The People v. Johnson. ently within two or more degrees of homicide. We suppose that this can never happen that if the facts bung the case within any degree of manslaughter it can not also fall within any definition of murder. And if a case should arise which should seem to run into the two offences, the true rule of con- struction requires us to place it under the head of manslaugh- ter. This principle we deduce from the statute itself. It com- mences by declaring that the killing of a human being without authority of law " is either murder, manslaughter or excusable or justifiable homicide according to the facts and circumstances of each case." " Such killing, unless it be manslaughter or ex- cusable or justifiable homicide, as hereinafter provided, shall be murder in the following cases: 1. When perpetrated from a premeditated design to effect the death of the person killed or of any human being; 2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; 3. When perpetrated without any design to effect death by a person engaged in the commission of a felony." Thus it appears that by the terms of the statute, the killing of a human being in three specified cases is murder, unless it falls within some of the inferior classes of homicide; from which we deduce the inference that if a case comes within any degree of manslaughter, it can not be deemed murder, although it is accompanied by some of the circumstances which make up the latter crime. Now, in the case before us, the prominent and undisputed facts show, that the prisoner and Kane, both intoxicated, on the 4th of July last, were seen alone engaged in a scuffle or fight, in the public highway; that the prisoner knocked Kane down, and stepped to the stone wall and took from it a large stone and raised it with both hands and threw it upon Kane's head, with such force as to crush his skull and produce his death. The first idea which arises from this statement of facts to my mind is, that this was the killing of a human being in a cruel KINGS, OCTOBER, 1851. 297 The People v Johnson. and unusual manner', and that there is some probability that, ii was done in a heat of passion. If this be so, then the char- acter of the crime depends upon the intent. If it was done " without a design to effect death," it is plainly and clearly manslaughter in the second degree within the 10th section of title II. If, however, it was done with " premeditated design," it is murder under the first subdivision above cited of sec. 5 of title I. But it can not, whatever may have been the design, be classed under the second subdivision of that section, if it was done in a heat of passion. This last essential element upon which the case revolved between murder under the first subdi- vision, and manslaughter in the second degree seems to have been overlooked on the trial. The judge should have directed the attention of the jury to the tenth section of the act in rela- tion to manslaughter, and instructed them that the prisoner should be convicted under that section, if they believed that the killing was in a heat of passion, and without a design to effect death; and that if it was done with premeditated design, whe- ther formed at the time or before, he was guilty of murder under the first subdivision. Instead of this, the attention of the jury was directed particularly to the second subdivision and they were advised that the facts of the case authorized a conviction lor murder under that section. We suppose that an erroneous impression may thus have been produced upon the minds of the jury. We consider the second subdivision wholly inapplicable to a case where there is reason to believe that the killing was in the heat of passion, for such killing never was murder at the common law, and the revisers did not intend to increase the cases of murder. That subdivision is applicable to numerous cases of murder known to the common law, where malice was implied. It would apply to the case of a man shooting into a crowd, or throwing missiles from a house or wall into the public streets of a city, without regard to the lives of those who might be exposed. It may also apply to the case where but one person is exposed, and even where the blow is aimed at the person. This appears by the case of Rector, if the fatal blow was given not in the VOL. I. 38 29 3 DECISIONS IN CRIMINAL CASES. The People . Johnson. heat of passion, which seems to have been assumed by the counsel and the court. So if the prisoner had found Kane sleeping by the stone wall and had taken the stone in mere wantonness and let it fall upon him without designing to kill, he would properly have been convicted of murder under the second subdivision. But the law has respect to the infirmity of human passion, and if this blow was the result of the excitement of a fight, it falls w r ithin another section. This construction preserves the analogies of the common law: for in the English courts it has been held that, when, after mutual blows between the prisoner and the deceased, the prisoner knocked down the deceased, and after he was upon the ground stamped upon his stomach and belly with great force, it was manslaughter only. (Russ Sf Ry. C. C. 166.) The conviction must be reversed and the case remitted to the court of Oyer and Terminerin and for the county of West- chester, with directions to award a venire de novo.(a) Conviction reversed. (a) The doctrine of this decision is fully sustained in the case of the People v. Darry, decided by the court of appeals at March term 1S4, in which the second subdivision of the section defining murder is held to be inapplicable to a case of personal combat between two persons, and by which the dicta holding a contrary doctrine are overruled. NEW YORK, NOVEMBER, 1851. NEW YORK OVER AND TERMINER. November, 1851. Edmonds, Justice, presiding. THE PEOPLE vs. OTTO GRUNZIG. Where, on a trial for murder by poisoning, the deceased, on the third day of her illness, said to her female attendant that she expected to die because she was poisoned and also expressed a similar opinion at a subsequent time, and at no time expressed an opinion that she should recover, her declarations, made after the third day of her illness down to the time of her death on the twelfth day of her illness, were received as evidence, although it did not ap- pear that either of her attending physicians had told her she was going to die and although it appeared that one of the physicians, not understanding the cause of her illness, had spoken to her encouragingly of her prospect of recovery. The prisoner was tried and convicted of the murder of his wife Victorine, by poisoning her with arsenic. On the trial, it appeared in evidence that the deceased, in company with the prisoner (from whom she had previously separated), returned from the country on Tuesday afternoon the 31st of July; that they were together that night, and on the ensuing morning the deceased was attacked with violent vomit- ing and other symptoms usually accompanying poisoning "with arsenic. She continued in nearly the same state, occasionally being slightly relieved, until the morning of 12th August, when she died. During her sickness she was attended by a female neighbor in the day time, the prisoner remaining with her every night, and she also received occasional visits from two physicians. The first physician discontinued his visits on the Tuesday following her first attack, and the second physician commenced on the next day, being the eighth day of her illness. The second physician did not apprehend the cause of her dis- ease; on visiting her on Thursday preceding her death, he found her better; in her own language, " I feel better," said she; "I do not now vomit; I now begin to have my monthlies." This he thought a favorable symptom and so informed her. On visiting her on Sunday he found her in a dying condition, and on Monday morning about two o'clock she died. 300 DECISIONS IN CRIMINAL CASES. The People v. Grunzig. With a view to giving in evidence the declarations of de- ceased as well before as after the visits of the second physician, the female attendant of deceased was examined and testified as follows: By District Attorney. Q. How many days was Mrs. Grun- zig sick altogether? Ji. Twelve days. Q. Did you visit deceased every day from her first sickness until her death? Ji. Yes, sir. Q. How often each day? A. I would only quit her to get my meals. Q. At any time during those visits did she express her fears of dying? Ji. She said she expected to die because she thought she was poisoned. Q. When did she first express this opinion as to death? Ji. I think the third day after her first sickness; she was very sick but had her senses; she was very bad. Q. After this did deceased at any time express any hopes of getting well? Ji. She never told me she expected to live? By Court. Q. When was this? JI. She was taken sick on Wednesday, and on Saturday she first told me. Q. Did her condition improve at all? Ji. From bad it went to worse. By Counsel for Prisoner. Q Did any doctor attend her, and what did he say? JI. When Doctor Le Grand came (the second physician) on his first visit he said he thought he could cure her. The next day she was better; the day after she was worse; the next day I found her in a passion. The doctor, after deceased had given herself up, gave her hopes; deceased said she expected to die at 8 A. M., and at half-past 12 P. M. the doctor came; from 9 to 11 A. M. that day her mind wandered; the doctor never told her she was going to die. NEW YORK, NOVEMBER, 1851. The People v. Grunzig. Upon this testimony the district attorney offered in evidence the, declarations of deceased subsequent to the third day of her illness, as well before as after the visits of the second physician, and cited Rex v. Moseley ( 1 Moody's Crown Cases, 98.) After argument, the court permitted the declarations of deceased to be given in evidence. Prisoner's counsel excepted. The prisoner was convicted and sentenced to be executed. The case was submitted by the governor to the judges of the Court of Appeals for advisement, and the following opinion was delivered: ALBANY, 21st January, 1852. To His EXCELLENCY, WASHINGTON HUNT: SIR Your letter of yesterday, with the minutes of trial and other papers in the case of Otto Grunzig, has been received and considered. After a careful examination of the minutes of the trial, we are unable to say that the evidence objected to was improperly admitted, or that the prisoner was improperly convicted, by reason of any error committed by the judge or the jury. On -the contrary, although we think the declarations of the deceased to which exception was taken were entitled to no great weight with the jury, we are of the opinion that the judge would have erred in excluding them from their consider- ation We have the honor to be, with great respect, youi obedient servants, A. Gardiner, F. G. Jewett, Charles H. Ruggles, Alexander S Johnson, J. W. Edmonds, M. Watson, P. Gridley. An application was subsequently made to Mr. Justice Harris for an allowance of a writ of error, which was argued by Mr Blunt, district attorney, for the people, and H. L. Clinton, foi the prisoner, and after full advisement, denied by the judge The prisoner was executed. 302 DECISIONS IN CRIMINAL CASES. SUPREME COURT. Erie General Term, November, 1851. Tag- gart, Marvin and Hoyt, Justices. THE PEOPLE vs. HIRAM KNICKERBOCKER. Where, on a criminal trial, a person is drawn as a juror and challenged to the favor, and called as a witness in support of the challenge to prove a bias growing out of what he had heard or read on the subject, it is proper on his cross-examination, to ask him his opinion as to the character and extent of the supposed bias and whether he thinks it would influence him after hearing the evidence. Where, on the trial of a challenge to the favor, improper evidence is received and the triors find the juror indifferent, and he is then challenged peremptorily, and it appears the prisoner had not exhausted all his peremptory challenges when the panel was completed, the prisoner can not afterwards avail himself of exceptions taken to the admission of such improper evidence before the triors. To entitle the prosecution, on a trial for murder, to introduce evidence of the dying declarations of the deceased, it must appear by the preliminary evi- dence, that the declarant knew, or believed, his injury was mortal and that death was rapidly approaching. This may be shown by the expressions and conduct of the deceased, or by other satisfactory evidence. After the introduction of the proper preliminary evidence, the prosecution is entitled to show such dying declarations, notwithstanding there may be other witnesses by whose testimony the same facts might be proved, which are sought to be established by such dying declarations. At the Erie Oyer and Terminer held in June, 1851, Justice Parker presiding, Hiram Knickerbocker was tried upon an in- dictment for the murder of Karl Harkner and convicted. Ex- ceptions were taken to decisions made upon the trial, which were brought before this court for review. The facts appear sufficiently in the opinion of the court. /. Verplanckj for the prisoner. Ch. H. S. Williams (district attorney), for the people By the Court, MARVIN, J. John Koch was called as a juror and was, by the prisoner, challenged to the favor. Tri- ors were appointed and Koch was examined as a witness in ERIE, NOVEMBER, 1851. 303 The People v. Knickerbocker. support of the challenge. He stated that from what he had heard and read about the murder of Harkner, he had formed an opinion rather against the prisoner. On his cross-examination he stated: I have now no opinion of his guilt or innocence which would influence my mind after hearing the evidence. This was objected to on the ground that the conjectures or opinions of the witness as to the way he could act'as a juror, upon the evidence, were improper. The objection was over- ruled and the prisoner excepted. The witness further stated, " I could take the evidence and find accordingly. The opinion I formed was based on the supposition that the newspaper account was true. I have no opinion whether it was true." The district attorney inquired, have you any opinion which it would require evidence to remove? This was objected to as calling for the opinion of the witness. The objection was over- ruled and the prisoner excepted. The witness answered I think not. On being reexamined by the prisoner's counsel he stated, " I said and say that from what I read I thought the pri- soner guilty; if the evidence should be as I read, I think him guilty. Question by the court State whether you could try this man upon the evidence without bias? This question was objected to as calling for the opinion of the witness; the objec- tion was overruled and the prisoner excepted; the witness an- swered, I think I could. The triors found the juror indifferent and he was then peremptorily challenged by the prisoner. The chal- lenge was to the favor, and the issue before the triors was, w r hether the juror was indifferent between the people and the prisoner, and the question now is, was improper evidence admitted upon that issue? Could the witness under the circum- stances give his opinion as to his ability to try the main issue upon the evidence without bias? In Lohman v. The People (1 Com. R. 384), J idge Gardiner, in delivering the opinion of the court of appeals, says, " Upon an issue of this kind from the nature of the facts to be estab- lished, the opinion of the juror derived from his own conscious- ness, was relevant, competent and primary evidence." He says, in that case, the effect of the evidence was, " to elicit an 304 DECISIONS IN CRIMINAL CASES. The People, v. Knickerbocker. opinion as lo the strength of the impression to which he had previously testified, and whether he was conscious of the ability to render a verdict according to the evidence, notwithstanding. If the juror answered in the affirmative, it would have been a declaration that he possessed such ability. This would be but an opinion, but one founded upon his own consciousness, and so far entitled to the consideration of the triors, although by no means conclusive upon them." He adds, " The question then was equivalent to asking the juror, whether he felt or was conscious that he could render an impartial verdict, notwith- standing all he had heard or read." The decision in Lohman's ase seems to be an authority in point in the present case. There is also another answer to these exceptions. After the triors had found the juror indifferent, the prisoner challenged him peremptorily. He did not sit as one of the jurors upon the trial of the main issue. The prisoner had not exhausted his peremptory challenges when the panel was completed. He can not now avail himself of the exceptions taken to decisions upon the trial of the collateral issue raised upon the challenge. {Freeman v. The People, 4 Denio, 31; People v. Bodine, 1 Denio, 300.) The people proved that Harkner died, on the 23d day of Janu- ary about 8 o'clock in the morning, and they gave evidence tending to show that he died from the effect of a pistol shot; and that the prisoner and one Hall were together at the place where Harkner received the wound on the evening of Tuesday, the 21st January, and that the prisoner then had on a light colored coat and Hall a dark one; and that the prisoner had, on the same evening, stolen a watch from Harkner; also that the man with the dark coat, had a pistol in his hand and put it in his pocket immediately after the report of the pistol by the discharge of which Harkner was wounded. Harkner was taken home covered with blood and apparently dead. On being placed upon a bed, he made signs and talked in a whis- per. He said, one arm and one leg were much like death, and he would rather die than remain in pain. His wife told him she hoped he would not leave her, and he told her she had ERIE, NOVEMBER, 1851. The People v. Knickerbocker. a child and she should console herself with that. He did not say directly that he thought he should die. The attending surgeon testified that Harkner was very weak and could only speak a little at a time, that he was paralyzed on one side, that he could faintly answer on Wednesday night, that he endea- vored to console him, but he would not be consoled, but said he would die, but did not say when. He said he could not get well, he must die. The people offered in evidence the declarations of Harkner made the evening before his death, as to the person who killed him. The prisoner's counsel objected, the objection was over- ruled and. an exception taken. The witness testified that he said to Harkner the evening before his death, " I guess you will get over it again;" Harkner replied, " I never can get over it, I can't live." On being asked who shot him, who hurt him, he said the man who stole his watch; that the man with the white coat on shot him, and the man with the dark coat on stabbed him. About 12 o'clock the same night, in O * answer to a question, put by his wife, he spoke about dying. The objection to the declarations of deceased, was, that it did not appear, his statements were made under the belief or im- pression of immediate dissolution, or under the belief that he would die. After a careful examination of this case as disclosed in the bill of exceptions, I am of the opinion that the evidence as to the dying declaration of Harkner was properly admitted. The principle upon which this evidence is received in trials for homicide, as stated by Eyre, C. B., is, that the declarations were made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive of falsehood is silenced, and the mind is induced, by the most powerful considerations, to speak the truth. A situation so solemn and so awful is considered, by the law, as creating 1 an obligation equal to that which is imposed by an oath ad- ministered in court. (Roscoes's Cr. Ev. 7.) The rule has been applied in a great variety of cases, pre- senting different circumstances. When the preliminary evi- VOL I. 39 30(3 DECISIONS IN CRIMINAL CASES. The People r. Knickerbocker. dence has not been satisfactory to show that the declarant knew or believed that his injury was mortal and that death was ra- pidly approaching, the evidence of the declarations has been rejected; or when from the evidence it appeared that the party entertained hopes of recovery, or it was left doubtful whether he did not entertain such hopes, the evidence has been rejected. If we test the present case by any of the rules that have been established, the evidence was properly admitted. The decla- rations were certainly made in extremity, and when the decla- rant was at the point of death. But they are only admissible when the party making them, knows or thinks he is in a dying state. Positive evidence, however, of that knowledge or belief, is not required. It may be inferred from the general conduct or deportment of the party, nor is it necessary to prove ex- pressions of apprehension of immediate danger, if it be clear that the party does not expect to survive the injury. (Ros. Cr. Ev. 29, 30, and cases there cited.) If we consider Harkner's real condition, we find nothing in it upon which to build a hope; his conduct and declarations furnish no evidence that he entertained any hope of recovery; on the contrary, they furnish very strong evidence that he did not believe or entertain any hope that his recovery was possi- ble. He appears to have been fully conscious of the extremity to which he was brought, and that he must die and could not recover. (2 Russ. on Crimes, 682 to 687, and cases cited.) The evidence shows, I think, that all hope of this world was gone He rejected consolation, and consoled his wife. It was said upon the argument, that the rule admitting dying declarations, is founded in necessity, and that when other evi- dence of the facts to which the declarations state, can be, or is given, the necessity does not exist, and that therefore the decla- rations should not be received. It appears, in the present case, that it was proved on the part of the people, that the man with the dark coat had a pistol in his hand and put it in his pocket immediately after the report of the pistol wounding Harkner. This is the entire statement of this evidence in the bill of exceptions. The declarations of ERIE. NOVEMBER, 1851. 307 The People v. Knickerbocker. Harkner related to the shooting and stabbing, and he designated the man in the light colored coat (the prisone^^as the man who shot him. It is argued that as the people gave evidence in relation to the shooting, the declarations of Harkner should not have been received. Roscoe, in his Criminal Evidence, says: '* Evidence of dying declarations has been considered, by some, to be admissible, from necessity, since it often happens that there is no third person present to be an eye witness to the fact and the usual witness in other felonies, viz., the party injured, is got rid of. The rule, in its origin, may have been adopted from necessity, but it is now well established and rests upon principle, which do not exclude the declarations, although the fact declared may be susceptible of proof from other evi- dence." The dying declarations are received as evidence -in the cause, and if there are living witnesses who can give evidence touch- se charges. Admitting this to be so, in order to sustain the verdict after conviction, though the practice of making such general charges is not to be commended and is not in accordance with the rules usually governing criminal proceedings, yet even then the evi- dence does not appear admissible. It is true five commitments, on charges of felony preferred by different persons against Thompson, were produced, and one commitment on a charge of petit larceny, not, according to the revised statutes, a felony ; but among these commitments, there was none on the joint complaint of Lewis A. Sayre and others, and none on the sole complaint of Lewis A. Sayre in which the bail required was in the sum of $300. The title of the deposition is, " In the matter of The People of the state of New York on the complaint of Lewis A. Sayre and others." This, according to usual acceptation, would mean the joint complaint of Lewis A. Sayre and others, and would indicate but one complaint. Rejecting the averment on whose complaint the people proceeded against Thompson, the caption of the deposition shows it to have been taken in a case where Lewis A. Sayre alone complained and the bail offered was $3000. Upon the commitment proved on Sayre's complaint, the bail required was $500 only. To conform the evidence to the charge contained in t'.e indictment in all its latitude, we must change the title of the deposition so that it shall read, " In the matter of the People on the complaints of Sayre and others against Thompson," we must change the caption so as to read, " Interrogatories to CHENANGO, JANUARY, 1852. 31,7 The People v. Shaw. be administered to Smith who offers himself as surety for Thompson in the sum of $2500 (the aggregate amount of bail required on all the commitments for felony produced), charged on the oaths of Lewis A. Sayre and others with divers grand larcenies;" and we must omit the commitment of Thompson for petit larceny, which increasing the amount of bail so far in- creased the materiality of Smith's answers as to his property. As the proof now stands, it seems to me not to support any charge in the indictment. The result is, that the evidence on the trial varying from the charge in the indictment, the prisoner has been wrongfully convicted and is entitled to a new trial. The judgment in the court below must therefore be reversed, and a new trial ordered. Judgment reversed. SUPREME COURT. Chenango General Term, January, 1852. Mason, Shankland and Gray, Justices. THE PEOPLE vs. GEORGE I. SHAW. An indictment under the Revised Statutes charging the committing of au assault and battery with a deadly weapon, with the intent to kill, is sns tained by proof of having done the act with intent to commit any felonious homicide: it is not necessary to prove an intent to murder. The prisoner was tried at the Chenango Oyer and Terminer in October, 1851, before Mr. Justice Shankland, and the justices of the sessions, on an indictment charging the committing of an assault and battery on Isaac Williams, with an axe, with au intent to kill him. $ At the close of the testimony, the prisoner's counsel asked the court to charge the jury that the intent to kill must be proved in che same manner it would need to be proved, to con- stitute the crime of murder, if the intent had been carried into effect; and that a severe assault and battery, committed in the heat of passion, witl out an intent to kill, and where, if the 328 DECISIONS IN CRIMINAL CASES. The People v. Shaw. person assaulted had died, the offence would have only been manslaughter, would not be sufficient to convict under the in- dictment of an assault and battery with intent to kill. The court refused so to charge, except as modified in the charge given, and the prisoner's counsel excepted. The court then charged the jury, that the prisoner, under the indictment, should be convicted of an assault and battery with intent to kill; if the assault and battery were made under such circumstances that, had the person assaulted been killed, the offence would have been either murder or manslaughter in any of the various degrees of manslaughter, and that the prisoner could not be convicted on the main charge, if he had no intent to kill, or if he did the act under the belief that it was neces- sary in self defence; to which charge the prisoner's counsel also excepted. The jury found the prisoner guilty of an assault and battery with an intent to kill, and on bill of exceptions made, the cause was brought before the supreme court by certiorari. Henry A. Clark, for the defendant, argued that the word " kill " in 36, 2 R. S. 665, has the same meaning as " mur- der" in the previous statute of this state. (1 R. L. of 1813, 409, 9,) and in the English statute, citing 1 Russ. on C.; 550: Roscoe Cr. Ev. 653,785,775; BarbourCr. L. 80, 86; Wharton's Jim. L. 316; 1 City Hall Rec. 316; 5 id. 73. Dwight H. Clarke (Dist. Att'y), for the People, insisted that it was sufficient to prove such an intent to kill, that had death ensued, the killing would have come under any of the degrees of felonious homicide. That the change of the word " murder" to the word " kill " in the statute, showed an intention to. ex- tend the application and scope of the statute. That all the decisions cited were made under the statute before its altera- tion, and where an intent to murder was in terms required to convict, that there were some cases in which an intent to take life was requisite to convict of manslaughter, though generally it was otherwise. COLUMBIA, JANUARY, 1852. 339 The People v. Smith. The supreme court affirmed the proceedings at the Oyer and Terminer, and remitted the cause that sentence might be pro- nounced in pursuance of the finding of the jury. COLUMBIA OYER AND TERMINER. January, 1852. Before Parker, Justice of the Supreme Court and the Justices of the Sessions. THE PEOPLE vs. CHARLES A. SMITH. Under a plea of not guilty, a defendant can not avail himself of the fact that he has been indicted by a wrong name. Where, in an indictment for burglary, the building charged to have been en- tered was laid as the shop of William S. Amigh, it was held no variance that the shop was used in the business of one Winters, of whom Amigh was the agent, it appearing that Amigh hired and paid for the shop and that it was tinder his charge. In an indictment for larceny, it is sufficient if the goods stolen are laid as the goods and chattels of the bailee. Thus where, in an indictment for burglary and larceny, the property stolen was laid as the goods and chattels of William S. Amigh, and it appeared in evidence that the goods stolen belonged to one Winters, and that Amigh had the lawful custody of them from Winters with authority to sell them and account for the proceeds, it was held no variance. The prisoner had been indicted at a previous term of the court for burglary and larceny. The first count of the indictment charged as follows: " The jurors of the people of the state of New York in and for the body of the county of Columbia, on their oath and affirmation present, that on the ninth day of May one thousand eight hund- red and fifty, at the city of Hudson, in the County of Columbia aforesaid, Charles A. Smith, late of the city and county of New York, laborer, the shop of one William S. Amigh, in which goods, merchandise and valuable things, viz., segars and boxes were there kept for sale, deposit and use, situate in the city of Hudson aforesaid, feloniously and burglariously did break and enter with intent the goods and chattels of the said William S. Amigh, in the said shop, then and there being, then and there VOL. I. 42 330 DECISIONS IN CRIMINAL CASES. The People . Smith. feloniously and burglariously to steal, take and car -y away, and then and there in the said shop ten thousand segars of the value of two hundred dollars and fifty boxes of the value of five dollars, of the goods and chattels of the said William S. Araigh, in the said shop then and there being found, then and there feloniously and burglariously did steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity." In the second count, the place alleged to be burglariously entered was called a " store;" in the third count, a "warehouse," and in the fourth count, a " building." The prisoner having pleaded not guilty, the cause came on to trial. J. C. Newkirk (District Attorney), for the people. Tfteo. Miller, for defendant. William H. Amigh Testified that he was a segar maker by trade, and in May, 1850, was in the employment of his uncle, William S. Amigh, who had a shop for the manufacture of segars in Cherry Alley, in the city of Hudson. That said shop was broken into in May, 1850, when William S. Amigh was absent in the city of New York, the shop being left in the charge of the witness. The witness discovered the shop had been entered, when he went to it about six o'clock in the morning; that he found the front door unhooked and unbarred, and on entering discovered a box of segars on the lower floor had been opened and about sixty segars taken out of it; and on going up stairs into the shop and another room kept for storing segars, which were put up in boxes, he discovered that at least fifty or sixty dollars worth had been taken away during the night; that ten or fifteen thousand segars which had been there two or three months were missing; that witness had been in the shop the day before and discovered at once, on entering, that the segars were gone. COLUMBIA, JANUARY, 1851. 33^ The People v. Smith. Witness further stated that he did not recollect whether he shut up the shop the night before, hut he was generally the person to do it; that sometimes another yourjg man working in the shop shut it up at night. That about a week afterwards he saw segars that he thought to be the same, from the appearance of the boxes and the trim- mings, in a dry goods box marked " T. Dimmick," on board the steamboat Columbia, at the dock, in the city of Hudson. Christopher Turpin Testified that he was a tavern keeper at Bristol, a landing place, on the west side of the Hudson river, and a few miles below Hudson That before sunrise one morning in May, 1850, the prisoner came there in a small boat in company with one or two others and took out of the boat and put on the dock a dry goods box. That the prisoner came to witness's house near by and asked witness to label the box, that he might send it to New York. That witness furnished prisoner with a. card and hammer and small tacks and told him to label it. That prisoner took them and wrote on the card "G. & G. W. Spencer, New York, to be called for." The card was here presented to and identified by the witness. That the pri- soner nailed the card on the dry goods box and requested wit- ness to put the box on board the Catskill boat for New York, if it landed, and if not, on board the Hudson down boat that evening. Prisoner then went away in the small boat. Witness being the same day in Hudson heard of the burglary committed the night before, and returning as he went on shore put the box on board the steamboat Columbia, Capt. King, with the card on it. That very soon afterwards he telegraphed Capt. King to Newburgh, that he might receive the message before reach- ing New York. That witness afterwards saw this box in Mr. Amigh's shop. Capt. King, of the steamboat Columbia, testified to. the put- ting of the dry goods box on board at Bristol, and identified the card shown him as being then on the box. That he read the telegraphic communication at Newburgh, and that on reach 'ng New York some one (not prisoner) called for the box, bu' he refused to let it go. That he kept the box and brought it baok DECISIONS IN CRIMINAL CASES. The People v. Smith. to Hudson and delivered it to Win. S. Amigh. Was present \\hen it was opened. It contained segars in boxes and candy j that the cover of the box was marked with paint on the inside, '' T. Dimmick," which is the name of a merchant tailor in Hudson. William S. Amigh Identified the segars and boxes as being those taken from his shop. That there were about 15,000 se- gars, worth nearly $250. That the segars belonged to Mr. Winters, who lives in Albany. That witness hired the shop and purchased the material and manufactured the segars in the name of Mr. Winters. That witness sold what segars he man- ufactured for Mr. Winters. That witness was in the employ- ment of Mr. Winters, and received, a salary for his services; that he, witness, had charge of the segars, but had no interest in them; witness was merely agent, and Winters had a right to take the possession of the property at any time. Witness said an axe, buck and saw, in the lower room of the shop, belonged to him. The prosecution here rested, and the defence called Elizabeth Smith, who testified that she- resided in Hudson; that prisoner was her son, and was twenty-one years of age. Prisoner's counsel then offered to prove that prisoner's name was Alonzo Smith and not Charles A. Smith. This being ob- jected to, was excluded, the court holding that it was too late to set up such a defence after pleading not guilty. Some evidence was then given by the witness with a view to show an alibi. The prisoner's counsel then asked the court to decide that there was a variance between the indictment and the proof; that the proof would not sustain the allegation in the indict- ment that it was the shop of William S. Amigh, nor the alle- gation that the property stolen was the goods and chattels of William S. Amigh. The district attorney contended that the proof was sufficient, citing Wharton's Am. Cr. Lnw, 362, 404, ani cases therein referred to; Arch. Cr. PI. 212; Reg v. Bird, Car. fy Payne, 44. COLUMBIA, SEPTEMBER, 1851. 333 The People v. Alger. The court decided that there was no variance; that if the shop was in the custody and charge of Amigh, it was sufficient to support the allegation in the indictment; that it appeared the shop was hired and paid for by Amigh and in his charge. As to the segars and segar boxes, the court decided that it was sufficient to support the indictment that Amigh had the lawful custody of them and authority to sell them and account for them to Winters; that it was suffieient if goods stolen \\ere laid as the property of the bailee. The jury found the prisoner guilty of grand larceny, and he was sentenced to imprisonment in the state prison at Sing Sing, for the term of two years and three months. COLUMBIA OYER AND TERMINER. September, 1851. Before Johnson, Justice of the Supreme Court and the Justices of the Sessions. THE PEOPLE vs. ALGER. To an indictment for the seduction of an unmarried female, under the act of 1848, the defendant interposed a special plea, alleging that at the time of the committing the acts charged, the defendant was, and for five years previous thereto had been, a married man. having a living wife and family, with which wife and family he was then living, all of which at the time of the alleged promise and seduction was well known to the said female; on de- murrer to such special plea, the facts thus set up were held to constitute a good defence to the prosecution, and judgment was given for ihe defendant. The defendant was indicted for the seduction of an unmar- ried female, under the act of 1848, entitled " An act to punish seduction as a crime." The indictment contained three counts. The first count charged that the defendant under promise of marriage seduced and had illicit intercourse with the female, she being unmar- ried and of previously chaste character, following the language of the act, without setting out the promise or averring any mu- DECISIONS IN CRIMINAL CASES. The People v. Alger. tual promise on her part. The second count alleged that the defendant promised to marry the female, and under such pro- mise of marriage seduced, &c., as in the first count without alleging any mutual promise on her part. The third count was substantially like the first. The defendant pleaded not guilty and also a special plea, which alleged that at the time of com mitting the acts cnarged in the indictment, he was, and for five years previous thereto had been a married man, having a living wife and family, with which wife and family he was then liv- ing, all of which at the time of the alleged promise and seduc- tion was w r ell known to the said female. To this special plea a demurrer was interposed. By request of the defendant's counsel and with the consent of the counsel for the people, the defendant's plea of not guilty was stricken out, and the case was argued upon the demurrer to the special plea. J. Gaul, Jr., and H. Hogeboorfif for the people. E. P. Cowles, and D. D. Field, for defendant. JOHNSON, Justice, delivered the opinion of the court. The special plea admits the matters alleged in the indict- ment to be true, as the demurrer does those set up in the special plea. If the indictment can strictly be regarded as setting out the existence of any promise of marriage as a matter of fact, it must be held to import an absolute unconditional one, as con- tradistinguished from a promise depending upon some condition or contingency. The case presented by the pleadings therefore, is that of a married man cohabiting with a lawful wife, promising unquali- fiedly and unconditionally to marry an unmarried female, she knowing and understanding his situation, and under such a promise, seducing and having illicit intercourse with her Is this the kind of promise of marriage contemplated by thf act for the punishment of seduction as a crime? COLUMBIA, SEPTEMBER, 1851. 335 The People v. Alger. However criminal and offensive the act may be in the light of religion and morality it is the statute alone which gives it a criminal character in the eye of the law. It is to be observed that the act is not, as its title might seem to import, an act to punish seduction generally as a crime, but only when it is accomplished under certain circumstances, when the parties stand in a particular relation to each other. Three facts must concur to render the seduction a crime under the act. The female must be unmarried, she must be, or must at all times previously have been of chaste character, and there must be a subsisting promise of marriage. If all these concur, then the seduction, by whatever means accomplished, is a crime and punishable as such, but in no other case and under no other circumstances. It is not neces- sary that the promise of marriage should be made or used as the inducement to the consent of the female, it is enough if the parties are under promise. The framers of the act seern to have assumed that under such circumstances, the consent of the female mis:ht be much more * o readily obtained. That she confiding in the promise of future marriage, and relying upon it, would be more liable to yield to the solicitations and temptations of the man under this obliga- tion to her, than otherwise. Hence the statute was confined to this particular class of cases. It was to protect females really standing in such a relation to a man, and confiding in his pro- mise, from the employment of seductive arts against them by the man, and to punish him who, under such circumstances, should be guilty of violating and betraying and disappointing that confidence to the disgrace and ruin of the female, and the injury and scandal of society, that the statute was chiefly en- acted. But must the promise of marriage be mutual to bring the case within the statute? It is clear that to constitute any valid promise of marriage the promises must be mutual. Unless the obligation be reciprocal it is a nullity. It is contended by the counsel for the people, that the statute does not require this, 336 DECISIONS IN CRIMINAI CASES. The People v. Alger. Jhat if the man is under promise to the female it is immaterial whether she has ever consented or ever expects to marry him or not. The statute, it is true, taken literally, is broad enough to admit of this interpretation. And it might be carried still farther. Because, taken literally, it is not necessary that the man should be under promise of marriage to the woman he seduces. According to this, every man who was under pro- mise of marriage to any woman, if he should seduce any un- married female would fall within the act. But this obviously is not the spirit and meaning of the statute. It must have a reasonable construction, so as to meet the mischief it was intended to remedy, if susceptible of it. The promise must not only be to the female seduced, but there must be a correspond- ing one from her. Until the obligation is mutual, his declara- tion that he would marry the female, or was willing to marry her, is a mere declaration, or offer, and no promise, in any legal sense. The statute is to be taken as intending a promise in its legal signification, and not a mere declaration or offer by way of temptation or allurement. This is apparent from the language employed " under promise of marriage" That is, after having entered into and while under the engagement to marry. Again, must it be a promise of a lawful marriage to bring the case within the act? It is contended on behalf of the peo- ple that this is not necessary. It may be that in a case where a married man, represented himself to the female as unmarried, and under such circumstances under promise of marriage should seduce her, the case would come within the act, although the marriage, should it be consummated, would be void. I have no doubt that it would, if the female was ignorant of the fact of his marriage and was under a mutual engagement to him. Even a marriage under such circumstances, although it would be void, would not be criminal on her part. But take the promise presented by the pleadings, an agree- ment between a married man and an unmarried female to marry forthwith, at any time, without reference to the present mar- riage of the man, she knowing him to be at the same time law- COLUMBIA, SEPTEMBER, 1851. 337 The People v. Alger. fully married. Is this the kind of promise the legislature had in view? It can not be. It was an undertaking which if car- ried out would subject both parties to punishment in the state prison. The law, instead of upholding it as a marriage, would treat it as an infamous crime. To call such an engagement a promise of marriage would be a flagrant perversion of all legal sense and reasoning. The promise I apprehend required by the act, if it be not a promise of a marriage in all respects legal and valid, when it shall be consummated according to the intention, must at least be such a promise as the Jaw would presume the female, from I he facts within her knowledge, to regard, and rely upon, as a valid marriage. Females as well as males are presumed to know the law. It is therefore impossible to hold or to admit from the facts here presented, that this female regarded this as any promise of marriage, or could have relied upon it as such. The law presumes that every person intends the necessary and natural consequences of his or her acts and agreements. But it is urged that this may have been a conditional pio- inise on the part of the defendant to marry the female seduced, when he should obtain a divorce or upon the death of his wife. That such a promise would be void as against public policy I have no doubt whatever. But it is sufficient for the purposes of this case to remark that no such question arises here. No such promise could be proved under this indictment. The promise set out is absolute and unqualified. The facts therefore set up in the special plea, and which are ad- mitted by the demurrer to be (rue in my judgment take the seduc- tion entirely out of the statute, however much they may deepen the shades of its moral turpitude. It is not a question whether such an offence as here stands confessed ought to be punishable by law, but whether the legislature in the act before us made it so. Courts are to expound and administer and not make laws. I am inclined to the opinion that a mutual promise of marriage should be alleged in the indictment, and that it should VOL. I. 43 338 DECISIONS IX CRIMINAL CASES. The People, v. Warren. be substantially set out, so that the court can see that it is a valid promise. The promise of marriage is somewhat in the nature of a condition precedent to the ex'^pnc* 1 of the offence. It is clearly matter of substance. I have preierred, however, placing the decision in this case upon the interpretation of the statute rather than the construction of the pleadings. And I am clearly of opinion upon the substantial facts admitted that no offence under the act has been committed by the defendant. Judgment for the defendant on the demurrer. ALLEGANY OYER AND TERMINER. April, 1852. Before Marvin, Justice of the Supreme Court, and the Justices of the Sessions. THE PEOPLE vs. ALBERT WARREN. A trial and acquittal, on an indictment, charging the defendant with having mixed arsenic with flour, and with having caused it to be administered to one Louisa Loveland, with intent to kill and slay her, are no bar to a subsequent indictment, charging the same defendant with the same act in mixing the arsenic, and causing it to be administered to one William P. Loveland, with intent to kill and slay him. The indictment charged the mixing of poison, arsenic, with flour and causing and procuring it to be administered to one William P. Loveland, with intent to kill and slay him. It con- tained several counts. The defendant pleaded in bar that he was .arraigned and tried in August, 1851, upon another indictment charging him with the same identical acts, that is, the mixing the poison with the flour, and causing and procuring it to be administered to one Louisa Loveland, with intent to kill and slay her, and that upon such trial he was acquitted. The people demurred to the plea. J3. L. Davison (Dist. Att'y), for the People. Hawley fy Grover, for defendant ALLEGANY, APRIL, 1852. 339 The People v. Warren. MARVIN, Presiding Justice The demurrer is well taken. The former trial and acquittal are not a bar to the present in- dictment. The two indictments are not for the same identical act and crime. (4 Black. Com. 346; 1 Russ. on Cr. 829, 836.) The act of mixing the poison with the flour, and furnishing it to the persons who subsequently used it and partook of it, is the same act of the defendant in the present as in the former case, and if we assume that the defendant by the same single act administered or caused and procured the poison to be ad- ministered to the two persons, the intent charged in the present case is not the same intent charged in the former indictment; there it was to kill Louisa, here to kill William. The intent in these cases is the material constituent of the crime. Though the acts may have been the same, the crimes, as charaterized by the intent, are different. Upon the trial of the former indictment, the defendant could not have been convicted of the crime charged in the present indictment, though the jury should have been satisfied that the defendant administered the poison with intent to kill William P. Loveland, and that is the test ^whether a former acquittal or conviction is a bar. (Rex v. Vandercomb, 2 Leach, 708; cited in 1 Russ. on Cr. 831; Arch. Cr. Plea. 87; 1 Ch. Cr. L. 452; Commonwealth v. Raby, 12 Pick. 496.) The plea is overruled. NOTE. Sec Burns et al v. The People, page 182. ,, . 10 DECISIONS IN CRIMINAL CASES. SUPREME COURT. Albany General Term, May, 1852 //o?r&>, Parker and Wright, Justices. THE PEOPLE vs. CHARLES QUIN. In charging a jury, an expression of opinion by the judge as to trie effect of the evidence, leaving the jury to decide the question notwithstanding such expression does not furnish a valid ground of exception: aliter. if the lan- guage, which is the subject of exception, amounts to an instruct ion as to the law applicable to the evidence in the case Where the question, on the trial, was whether the prisoner was guilty of murder or manslaughter, and the presiding judge, in his charge to the jury, after commenting on the evidence for the prosecution, said. " Now, gentlemen, if you believe this evidence, and believe that the crime was committed by the defendant, under the circumstances as given to you by these witnesses, I see no ground to warrant you in finding the defendant guilty of manslaughter, but in my judgment he is then guilty of murder," it was held to amount to an instruction upon a conclusion of law: and the case properly presenting questions of fact to be passed upon by the jury, vi/., whether the killing was by " premeditated design to effect death," or in the " heat of passion," fyc., the charge was held to be erroneous and a new trial was awarded. Indictment for the murder of Michael Gleason. The defend- ant having pleaded not guilty, the trial was held at the Rens- selaer Oyer and Terminer, in November, 1851, before Mr. Jus- lice Watson and his associates. The alleged crime was com- mitted at the house of Harry Thompson, in the city of Troy, on the night of the 9th of January, 1851. There was a dance there that night, at which Gleason and the defendant were present. During the evening they had a dispute in relation to a tobacco box, which the defendant alleged he had lost. Michael McD$rmott, a witness for the prosecution, testified that Gleason as'ked the defendant if he said he had stolen his tobacco box; that defendant said "no; he did not know that he had taken it in particular, but he had lost it in the house, and still he might be mistaken and have left it home in his over- coat pocket; that Gleason said if he told him he took it he would go out doors and fight him for it; that defendant said he would not do it, as Gleason was too big a man for him, and then somebody interfered. This took place in the dancing room, ALBANY, MAY, 1852. 34 j The People v. Quin. and soon after one Gushing asked Gleason to go with him tc the bar in an adjoining room and drink with him. McDermott further testified, that they had been in the bar room two or three minutes, when defendant told him he was going to get a slice of lemon; that soon after he heard a scuffle in the bar room and then saw the defendant and Gleason come into the dancing room; Gleason shoved in the defendant; that Gleason had his arms around him and shoved him to about the middle of the floor and then fell, Gleason on the top; that they lay there a short time and were then separated. About the time they fell some one remarked that defendant had a knife, and Gleason said, " let him alone, I can lick him, knife and all." The witness further testified, that the defendant, after the knife had been taken from him, said to William Hunter that " he would take that man's life for mere nothing; that revenge was* swpet, and he had got it and was satisfied. Paul Kavanagh and William, Hunter gave substantially the same account of what occurred. John Wickes testified that he was tending bar at the time; that Gleason came in and asked the defendant if he had said that he had stolen his box; that defendant said he did not ac- cuse him of stealing the box; he might have lost it or left it in his overcoat pocket at home; that Gleason said he was no man at all, but a d d bullhead, and if he thought he had it, he would go out and fight him; that defendant said he was a big- ger man than he was, and wanted to know what he wanted to fight him for; that Hunter then jumped up and said, "No fighting, boys," and took Gleason out into the dancing room; that shortly after defendant followed; that they were out a few minutes, when Gushing called Gleason in to drink; they were just going to drink, when defendant came in; that he, the witness, was just cutting a lemon, and defendant said, " Jack, give me th( knife ; I want a slice of lemon." That he drew the knife through his hand and came to Gleason and said, " You son of a bitch, I've got you now;" that he caught him by the coat collar and jabbed the knife into him; that defendant held the knife in his right hand, and as he was drawing it back to make another 342 DECISIONS IX CRIMINAL CASES. The People v. Quin. stab the witness caught it; that Gleason then rushed him out into the other room. Several witnesses were examined on behalf of the prose- cution, but their testimony did not materially vary the case as above stated. It appeared from the testimony that the parties 1 ad been drinking freely that night, and that the affray occurred about two o'clock at night. Gleason died of the wound he re- ceived about eight days after. The presiding judge, in his charge to the jury, stated that the theory of the defence was, that the defendant, if guilty at all, was only guilty of man- slaughter. That the theory of the prosecution was, that the defendant was guilty of premeditated murder, and after com- menting upon the evidence relied upon by the prosecution to sustain their theory, he added: "Now 7 , gentlemen, if you be- lieve this evidence, and believe that the crime was committed by the defendant, under the circumstances as given to you by these witnesses, / then see no ground to warrant you in finding the defendant guilty of manslaughter, but, in my judgment, he is then guilty of murder." To this part of the charge the counsel for the defendant excepted. The jury found the defend- ant guilty of murder. A bill of exceptions having been made and settled, the proceedings were removed into this court by a writ of error. R. W. Peckham, for the people. J. Pie.rson, for the defendant. By the Court, HARRIS, J. The question which the learned judge who presided at the trial was presenting to the jury at the time he used the language upon which tke counsel for the defendant relies to sustain his allegation of error, was whether the defendant, if guilty at all, was guilty of murder or man- slaughter. Jf, in submitting that question for the decision of the jury, he had taken occasion to express his own opinion, as to the effect of the evidence, leaving them to decide the ques- tion, notwithstanding such expression, it would not have fur- RENSSELAER, MAY, 1852, 343 The People v. Quin, nished a valid ground of exception. Upon a motion for a new trial upon a case it might be otherwise, but such an expression of opinion does not of itself constitute error. It becomes im- portant, therefore, to determine whether the language which is the subject of this exception amounted to an instruction as to the law applicable to the evidence in the case, or was a mere declaration of the opinion of the judge upon the evidence. On behalf of the defendant it had been insisted that the evidence warranted the jury in convicting him of manslaughter only, while, on the other hand, the counsel for the prosecution had insisted that the evidence required a conviction for murder. In respect to these opposing " theories," the learned judge having very properly submitted it to the jury to determine whether the evidence as detailed by the witnesses for the pro- secution was to be credited, proceeded to say that, if they should believe that evidence, he could see no ground left which would warrant them in finding the defendant guilty of man- slaughter, but, on the other hand, the circumstances of the case, if believed, established a case of murder. It may not have been intended that the jury should understand that they had no right to convict the defendant of manslaughter. But I think the language may well be so construed. Indeed, I think it most likely that the jury understand from the charge that, if they would decide according to the law applicable to the case, they must either convict the defendant of murder or wholly acquit him. The language is emphatic and unqualified: " Under the circumstances as given you by the witnesses for the prosecution, I see no ground to warrant you in finding the defendant guilty of manslaughter." Upon such a charge, the jury may well have supposed that a verdict of manslaughter would have been in violatiom of law, If the charge was such that it might be so understood, I think it was erroneous. The evidence on the part of the prosecution was such as would, undoubtedly, have warranted a conviction for murder. The jury might well have come to the conclusion that the fatal blow was given with a premeditated design to effect death. On the other hand, I am not prepared to say .hat the jury might not have been war- 344 DECISIONS IN CRIMINAL CASES. The People v. Harriden. ranted in finding that the act was committed in the heat of passion. If so, the jury, instead of being told that there was no ground upon which they w r ould be warranted in convicting of manslaughter, should have been instructed as to the distinction between murder and manslaughter, and left to convict the de- fendant of the one crime or the other, as they should find, from the evidence, that the act was committed with a premeditated design to effect the death of Gleason, or in the heat of passion. Regarding that portion of the charge which has been inserted in the bill of exceptions rather as an instruction upon the law applicable to the facts proved, than an opinion advisory as to the effect of the evidence, I am inclined to think the charge had the effect, not intended perhaps, to mislead the jury, by inducing them to dismiss from their minds the consideration of the question whether their verdict should be murder or man- slaughter. For this reason, I am of opinion that the judgment should be reversed and a new trial ordered. Judgment reversed. STEUBEN OYER AND TERMINER. May, 1852. Before T. R. Strong, Justice of the Supreme Court, and the Justices of the Sessions. THE PtorLE vs. JAMES HARRIDEN. On the trial of an indictment for incest, charged to have been committed by a father with his daughter, the declarations of the defendant are competent evi- dence upon the question of consanguinity. The statute in such case is only applicable to cases in which the sexual inter- course is by mutual consent. Where it is accomplished by force it is punishable only as rape. This was an indictment for incest with a daughter of the de- fendant, founded upon the statute 2 R. S. 688, 12, which provides that "Persons being within the degrees of consan- guinity within which marriages are declared by law to be STEUBEN, MAY, 180-2. The People v. Harriden. incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, shall, upon conviction, be punished by imprisonment in a state prison for a term not exceeding ten years." The alleged daughter testified that she was 18 years of age, that the defendant and her mother had from the earliest recollection of the witness lived and cohabited together as husband and wife; that they had ten children; and that the defendant had always recog- nized the witness as his daughter; and she had recognized him as her father. She further testified that the defendant harl sexual intercourse with her at several different times; and her testimony tended to prove that the connections were without her consent, and forcible on the part of the defendant. An elder sister testified that the defendant and her mother had lived together as husband and wife as long as she could recol- lect, and that the defendant had called the principal witness his child. Similar declarations of the defendant were proved by other witnesses. All the testimony, in regard to the rela- tionship, was received under objection to its competency. t George T. Spencer, for the defendant presented two points. 1st. That it was not proved the defendant was the father of the witness who was alleged to be his daughter; that evidence of a marriage in fact between the defendant and the mother, as in case of an indictment for bigamy, was necessary in order to establish the relationship. 2d. That if any offence was proved, it was not incest but rape. R. L. Brundage (Dist. Att'y), and Wm. Irvine, for the people. The court decided that the acts and declarations of the de- fendant were competent evidence upon the question whether the defendant was the father of the witness, with whom it was alleged the offence was committed, but that it belonged to the jury to judge as to the weight due to the evidence; and that they must be satisfied by it the defendant was her father, or VOL. L 44 346 DECISIONS IN CRIMINAL CASES. The People t. Harridan. they would not be warranted in finding him guilty. See 2 R. S. 139, orig. 3, declaring marriages between such relations as are therein named incestuous and absolutely void, and that the section " shall extend to illegitimate as well as legitimate children and relations," also Regina v. St. Giles in the Fields, 11 Molphus fy Ellis, JV. S. 173, 191, 203, 244 j 2 Kent's Com. 4th ed. 214. But if proof of marriage between the de- fendant and his reputed wife was necessary, whether under our law allowing marriage to be contracted by a present agreement between parties without any formal ceremony the rule which has prevailed in prosecution for bigamy, and a few other cases, requiring direct evidence of the marriage ought to be extended or longer adhered to. (See Clayton v. Wardell, 4 Comstock, 230 and opinions there given.} (a) In respect to the other point raised, the court decided that the statute, upon which the indictment was founded, applied only to oases where the connection was by mutual consent; and that if the connections between the defendant and his daughter were accomplished by force used by the defendant, to such an extent as to render him guilty of rape, the charge of incest was not sustained. That the offence of rape was of a higher nature, for the punishment o"f which ample provision had been made; and that the statute in relation to the punish- ment of the incest was designed to embrace only cases of sex- ual intercourse between relations within the degrees referred to in it, not coming within the statute in respect to the crime of rape. The jury rendered a verdict of guilty. (a) See The People t>. Gahagan, infra. NEW YORK, MAY, 1852. 347 SUPREME COURT New York General Term, May, 1852. Ed- wards, Mitchell and Roosevelt, Justices. JAMES SULLIVAN pl'ff in error vs. THE PEOPLE def ' ts in errolr. JOSEPH CLARK pl'ff in error vs. THE PEOPLE def ts in error. Under the Revised Statutes of New York, declaring the killing of a human being to be murder, when done from a '" premeditated design" to effect the death of the person killed, it is erroneous to charge the jury, that the act would be murder, if the intent to kill was formed at the instant of striking the fatal blow, (a) Premeditation, as well as design, is now a necessary ingredient in making out the crime of murder, under the first clause of the section of the statute de- fining that offence. What are proper considerations on an application for an allowance of a writ of error and a stay of proceedings, in a capital case, by Edmonds, J. These cases came before the court on writs of error from the New York Oyer and Terminer, where there had been convic- tions for murder in both cases, Justice Edmonds presiding. The facts are sufficiently stated in the opinion of the court, to present the questions of law decided. After the convictions in the Oyer and Terminer, the counsel for the prisoners made application to Justice Edmonds, for a stay of proceedings and an allowance of writs of error, and on the i9th November, 1851, Justice Edmonds granted the application and delivered the following opinion: " Upon the bill of exceptions in these cases presented to me this day, I am asked to allow writs of error with a stay of pro- ceedings upon the execution of the sentences pronounced. The question raised by the bills of exception is a grave one It involves a construction of the revised statutes, and has never been authoritatively adjudged by our highest courts. It is this: whether the intention to kill, which forms an ele- ment of the crime of murder under our revised statutes, must be a design previously formed, or whether it is enough that it be formed on the instant the homicide is perpetrated? (a) Sed vide 3 Selden R. 385. 348 DECISIONS IN CR MINAL CASES. Sullivan . The People. The revised statutes made very important alterations in the preexisting law of homicide. Before their enactment, a class of cases were held to be murder where there was manifestly no design to kill; like the case of the schoolmaster, who whipped his pupil so that he died, or that of the chimney sweeper, who, in extricating his boy from a chimney, did it so cruelly as to cause his death. The law implied malice aforethought, or an intent to kill. On the other hand, there was a class of cases, where, though there was an intent to kill, it was held not to be murder, but manslaughter such as sudden affrays, in the heat of passion, and on sufficient provocation. The revised statutes adopted an intention to kill, as the chief line of demarkation between murder and manslaughter, and the first class of cases I have mentioned, where there is no inten- tion to kill, have been regarded as mitigated to manslaughter, and the last class of cases as aggravated to murder. In the case of The People v. Jlustin, I held, in a carefully considered opinion, that in all cases (except one class which is not involved in these cases and was not in that), there must be an intention to kill to constitute the crime of murder, and that where there was such an intention, whether formed on the instant or previously entertained, it was murder. I so charged the juries in the cases now under consideration. If I had any doubt upon the question, I would have reserved it for the consideration of my brethren; but I had none, be- cause I could find in the statutes no resting place for the killing of a human being, with an intention to kill, even though on a sudden impulse, except under the definition of murder. The counsel for the prisoners, who was assigned as such by the court, and who has himself occupied a prominent position in the administration of criminal justice, entertains doubts of the correctness of my ruling, and desires to obtain the decision of the higher courts. In order to do that now, the execution of the sentence must be stayed. I ought not to refuse it unless I am disposed to give my decisions a finality and an, authority that does not NEW YORK, MAY, 1852. 349 Sullivan r. The People. properly belong to them. If either the Supreme Court in "bank, or the Court of Appeals, should differ with me in opinion, the consequences would be irremediable. As, then, the question involved is a very grave one, and has never yet been passed upon by either of those courts, or by any tribunal, higher than the Oyer and Terminer, and as it is raised very fairly and definitely in these cases, it seems to be one that ought to be definitely settled, and by the highest authority in the state. The same question which was argued before the court at its last term, in the case of Carnal, is now under advisement, and will soon be determined. These considerations have moved me to allow the writs of error, and to order the proceedings to be stayed until decision thereon." In the first case, jR. H. Morris, for defendant. JV. J5. Blunt (Dist. Att'y), for the people. In the second case, John McKeon, and R. H. Morris, for defendant. JV. B. Blunt (Dist. Att'y), for the people. MITCHELL, J. In each of these cases the plaintiff in error was indicted for murder, tried, and found guilty. In each case the judge, at the Oyer and Terminer, charged the jury that, if they believed that the killing was produced by the prisone., with an intention to kill, though that intention was formed at the instant of striking the fatal blow, it was murder. To this charge there was an exception, as well as to the other parts of the charge; and the question has been very fully and ably argued, whether an intention to kill formed at the instant of striking the fatal blow, is a premeditated design to kill, 350 DECISIONS IN CRIMINAL CASES. Sullivan v. The People. within the meaning of the revised statutes. The revised stat- utes declare the killing of a human being to be murder (except in certain cases, not necessary here to notice), first, when it is perpetrated from a premeditated design to effect the death of the person killed, or of any human being (2 R. S. 657, sec. 5); secondly, when it is perpetrated by an act imminently danger- ous to others, and evincing a depraved mind, regardless of human life, although without any such design against any par- ticular individual; and thirdly, when it is perpetrated by one engaged in the commission of a felony, although without any design to effect death. The revisers say in their note to this section, that the great principle on which it rests is, that, to constitute murder, there should be an express design to take life (which seems to be the first case provided for), or such cir- cumstances as to induce a very strong presumption of such design, or such facts occurring in a transaction as would ordi- narily lead to the result of taking life. The two last cases, no doubt, were provided for in the second and third subdivisions. They add that this section conforms substantially to the law of Pennsylvania. They also state that there was nothing so much wanted in the criminal law as a settled line of distinction between murder and manslaughter, which were then sb nearly connected, and ran into each other so much, that a lamentable uncertainty prevailed, which operated as well to screen the guilty as to expose the innocent; and that the first step to such a distinction is the definition of murder. It is evident, there- fore, that it was their intention to use language which should be so clear as to remove this uncertainty, and to make it unne- cessary to examine the former adjudications on the subject For, if the former Jaw was to be retained, and the former decisions resorted to as authority as to what the present law should be, all the old uncertainty must still remain. The same motives must have influenced the legislature, for this uncer- tainty was but faintly portrayed by the revisers, as any one will experience* who will attempt to reconcile the old decisions; and Ihere was no subject which needed revision more, both on that account and on account of its vast importance. The revi- NEW YORK, MAY, 1852. 35 ^ Sullivan v. The People. sers accordingly abandoned the technical phrase which was appropriated to the description of the motive of the murderer malice aforethought and which had, in process of time, acquired a legal meaning, different from its primitive meaning, and substituted the untechnical words, " premeditated design," that a law in which the whole state and every individual in the state may be concerned, might be understood by each, in the sense which every man, professional or not, would, on the first impression, believe it was intended to have. Does the expres- sion " premeditated design," admit of the meaning given to it by the Oyer and Terminer? Without relying on the definitions of lexicographers, we may safely resort to the illustrations which they have given of the use of words. None of them give a single illustration of the word to meditate in which the idea of a considerable space of time is not contained as inter- vening during the operation of the mind. The word meditate comes to us from the Latin, and perhaps through the French. Ainsworth has collected instances of its use in those Latin authors whose works form the foundation of our education. They are, to forecast; to meditate or study how to plead a cause, or how to speak; meditate going into exile, or a flight, or snares or deceit against another, or punishment against a brother, or an armed expedition into India. The illustrations in the dictionary of the French Academy are to meditate a truth; an idea; rules of eloquence; an enterprise; a project; the ruin of another; a good or bad action; or to retreat from the world; and they say proverbially, " a man of ready wit comes sometimes to as happy results as if he had meditated," making a complete contrast between meditation and the hasty thought which in the same instant is followed by action. Their definition of meditation makes the contrast still greater. It is " an operation of the mind, which applies itself to reach the depths of any subject or matter." The mind which seeks to reach the depths of any subject that is worthy of reflection, must be long occupied before its wishes can be gratified. Can one be said to meditate the banishment of another, or snares, or deceit, or the punishment of another, or his own flight, or 352 DECISIONS IN CRIMINAL CASES. Sullivan t>. The People. the invasion of a foreign country, if he does not allow a consi- derable interval to elapse between the first formation of the. design and its execution? Csesar said of one of his conquests, veni, vidi, vici; and all understand it as a proud boast, that as soon as he reached and saw the enemy's country he conquered it. How completely would he have reversed this meaning if he had said " On my arrival I meditated on my design, and accomplished it." The admission that he had meditated would have showed that there were difficulties which delayed him and required some management before they could be accomplished. So, to turn to the French illustration, can one be said to have meditated on an idea, on an enterprise, a pro- ject, the ruin of another, or a good or bad action, who per- formed the action at the very moment the thought was formed? So, when " meditations on death" are spoken of, do men mean the thoughts of a moment, or the calm, deliberate reflections which may have exercised the mind for hours or years, or even the most of one's life? The only illustrations given by Webster, correspond with these One is from Washington, who says, " I meditate to pass the remainder of my life in a state of undisturbed repose;" and the other from the book which is in every body's hands or hearing, and is one of the best sources of pure English " His delight is in the law of the Lord, and in his law doth he meditate day and night." (Psalm I.) These quotations show the general and popular understanding of the word, and that is the legislative understanding, where technical words are not used, or words relating to a trade or art But here the legislature has used a still stronger word, viz.: " pre- meditated design." There must be, therefore, not only the t'esign to kill, but that design must have been the subject of meditation, or reflection before, as the prefix pre clearly re- quires. Before what is this premeditated design of killing to be, except before the act that was meditated, viz., the fatal blow by which the killing was accomplished. The very requirement that the design shall be thought of and meditated before the act shall be committed which is the cause of death, admits that there is an interval between the design or intention and NEW YORK, MAY. 1852. Sullivan v. The People. the commission of the act. We have no right to strike out so material a part of the word as this, which gives peculiar force to the ordinary meaning of the rest of the word. This inter- pretation of the word also corresponds with the expressed views of the revisers, which seem to have been to confine this part of the definition of murder to what was frequently called cases of express malice, which is thus defined by Black- stone: "Express malice is, when one with a sedate, deliber- ate mind and formed design, doth kill another, which formed design is evidenced by external circumstances, discovering that inward intention, as laying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm." (1 BL Com. 199.) These external circumstances are all of a nature which show a design formed before the moment when the crime was perpetrated; and the sedate, deliberate mind and formed design are descriptive only of a mind deliberating on and then sedately carrying out its design. In Tennessee, the term premeditated'is one of those used to define murder in the first degree, and in 10 Yerger t 551, Dale's case, the court said premeditation was a " design to kill, formed before the act." In Davis's case (2 Hamphrey, 439. 442), they say that the employment of a deadly weapon, although it implies malice at the common law, does not imply that the act was done with premeditation, so as (o make it murder in the first degree. In Virginia, in Jones's case (2 Leigh's Va. Rep. 598, p. 611), the court say that the death must be the ultimate result, which thfi concurring will, deliberation, and premeditation of the party accused sought. In an early case in Pennsylvania (4 Dallas, 145, Mulatto Bob], the court instructed the jury that the offence was willful, deliberate, and premeditated' (this would seem to have been a clear usurpation of the- province of the jury), the judge then admitted that the statute made premedi- tation an essential ingredient to constitute the crime, yet added that still the intention remains as much as ever the true criterion of the crime. This, in some sense, is true. The in- tention is one of the true criteria of the crime; but, as the judge admitted, and every one else must admit, it is not the 354 DECISIONS IN CRIMINAL CASES. Sullivan v. The People. only true criterion, for then the intention to kill being estab- lished, the jury are to inquire no further, and all intentional killing is murder, though committed in self defence or against a burglar in the act of breaking into one's dwelling house, or in the heat of passion in a combat provoked by the deceased, without any undue advantage being taken, or any dangerous weapon being used, and under the honest, though erroneous belief, that it was the only means of saving the life of the accused. In Ohio (12 Ohio Rep., 52), Shoemaker's case, the court held that if the accused premeditated the fatal act, he was guilty of murder in the first degree, " however short the time might have been between the purpose and its execution;" that it mattered not how short the time, if the party had turned it over in his mind, weighed, and deliberated upon it; but it was conceded that the offence was not committed when the design was so hastily formed or premeditated and executed that time did not intervene for deliberation. In 2 Tenn. Rep. 8, Anderson's case, the court say: " The law knows of no spe- cific term within which an intent to kill must be formed so as to make it murder. If the will accompany the act a moment antecedent to the act itself which causes death, it seems to be as completely sufficient to make the offence murder, as if it were a day, or any other time." Whether the rule thus laid down is not too harsh to be consistent with the term premedi- tated, is not now before the court; but the principle is clearly admitted by it that some period must intervene between the intent and the act. In our own state, in The People v. Enoch ( 13 Wend. 159), the meaning of the first subdivision of this section of our revised statutes was incidentally passed upon, and Chief Justice Nelson considered it as confined to express malice, or " malice aforethought, according to its sense in common par- lance, and as originally used." (Id. p. 164.) The chancellor also said that " the meaning of the term malice aforethought had been enlarged so as to include implied malice by judicial construction. (P. 164.) In White's case, senators Furman, Vt-rplanck, and Wager, concurred in the view that the words premeditated design," as used by the statute, limit the signi- NEW YORK, MAY, 1852. Sullivan *. The People. fication of malice aforethought to express malice. (24 Wend. 558, 569, 581.) There are some cases at Oyer and Terminer, in which the rule adopted in the court below was laid down; in one the party was acquitted, perhaps on account of the jury seeing no alternative between an absolute acquittal and the punishment less than death, which the party may have deserved. But the rule has never, it is believed, received the sanction of the court after an argument at a general term or in bench. It does not correspond with the spirit of the day, actuating not classes only, but all parties, which is that the penalties of the law should be mitigated; and that by this means the object of the law in securing a certainty of conviction where guilt is proved, may be more effectually accomplished. It was argued that the words used by the judge in his charge were " intention (not design) to kill formed at the instant of striking the blow;" and that intention always implied, and was the result of pre- meditation. The court below would be unwilling to adopt this argument, or to allow a jury to be as much misled as they would have been by this charge, if such a meaning **ere in- tended. That court have themselves defined the word by their own use of it. They speak of the intention, and say it is enough, " though formed at the instant of striking the fatal blow." The intention, therefore, that they spoke of was such as could be formed " at the instant," and needed no premedita- tion. This part of the charge was material to the case; and although in the case of Clark there are circumstances from which the question may be raised whether it ought not to be left to a jury to say whether he was not guilty under the second subdivision of the section, still, that was a matter not left to them, and which this court ought not to take from them, so far as the intent of the accused is concerned, and probably in other respects, and is a question which the court do not wish to pass upon. A new trial should be granted before the court of Oyer and Terminer in both cases. In the case of Clark, the following opinion was pronounced by RV/OSEVFLT, J. The prisoner, Joseph Clark, was convicted 356 DECISIONS IN CRIMINAL CASES. Sullivan v. The People. at a court of Oyer and Terminer, held in September last, of the crime of murder, and sentenced to be executed in November following. A stay of proceedings having been obtained for the purpose, his case is now brought before the supreme court for review on certain points of law raised at the trial, and which his counsel insist were erroneously decided against him. It appears from the bill of exceptions which it should be borne in rnind does not bring up all the facts, that some time in July last, about an hour after midnight, some seven or eight persons, including the prisoner and one John D. Brown, were together in Oliver street; that there were a great noise and indications of a fight between two sailors, one having taken off his coat, that two police officers, Sullivan and the deceased, hearing the noise, came up and requested the persons to disperse, which they did, leaving Brown and the prisoner, however, whose lodgings were immediately opposite to the scene of disturbance, remaining; these two also were then requested by the officers to go home, which it is contended they were not bound to do. They did not refuse; but Brown hesitating, deceased took hold of him gently by the arm, to lead him to his boarding house an act for which it is also contended the policeman had no authority. At all events, Brown resented it, and clenched the deceased, when Sullivan interfered and separated them. After going a few steps further, another clenching and separation took place. Deceased continued to urge Brown along, and at length got him, according to the testimony, as far as the alley way to the house in which he boarded, when a third clenching took place, Brown trying to throw the deceased. Sullivan again interfered, and in the scuffle struck Brown with his club. The prisoner now procured a cart rung, and came to the defence of his friend, striking the deceased a violent blow on the head, and repeating the blows three times after he had fallen. He then went into his lodgings. Deceased was removed to the hospital, where he died the same night. The conduct of the deceased policeman, it is in testimony, was mild and forbearing, and there is no conceivable motive for prisoner's assault upon him, unless it be the one intimated by him immediately after NEW YORK. MAY, :M2. 357 Sullivan r. The People. reaching his lodgings that " seeing two officers beating a sailor, he knocked one of them down." On the trial the de- fence rested mainly on two points: first, that there was no premeditation; and secondly, that the act, although unjustifia- bly severe, was defensive; and that, in either view, the case was one of manslaughter, and not murder. The court, among other things, charged the jury that, under the evidence in the cause, there was no sufficient excuse shown for the violent interference of the prisoner; that the mere fact of Brown and the policeman Sullivan being engaged in the alleged quarrel, shown by the evidence, was not sufficient to justify the assaults upon Gillespie; and that, so far as deceased was concerned, it did not appear that he had given offence to any one. The court further charged, that if the jury believed that the killing was produced by the prisoner, with an intention to kill, though that intention was formed at the instant of striking the fatal blow, it was murder; and that the jury might infer such inten- tion from the circumstance of the case, and among other things, from the nature of the weapon, and the wounds given by it. The first part of this charge, upon a more deliberate review, can hardly be said to do full justice to the position of the parties. It assumes that Brown and the policeman, Sullivan, were alone engaged in the quarrel; whereas the proof shows that the de- ceased, from the kindest motives, no doubt, was the first to lay hands upon Brown, gently, it is true, but still, as the resent- ment of the latter shows, offensively. Sullivan and the. deceased clearly co-operated; and although Sullivan alone used the club, both in judgment of law, were responsible for that act, lawful or unlawful. Had death ensued to Brown, both must have been tried for the homicide; and on such trial, both must have been required to prove that they were engaged in the discharge of a legal duty, and that the act, however deplorable, was necessarily committed, in overcoming actual resistance. Was it, then, the legal duty of the policemen, after the gathering had dispersed and quiet was restored, to compel, by force, the two remaining persons, standing on the sidewalk, in front of their own homes, to go in, whether willing or unwilling 1 If it was 358 DECISIONS IN CRIMINAL CASES. Sullivan v. The People. not what must have been the result of such trial '. A verdict of manslaughter, in one or other of the four degrees would seem to have been very probable. Brown, however, although thus assaulted and with a dangerous weapon, in point of fact, was not killed but only severely wounded. But did the circum- stances furnish no excuse for interference in his favor? Had it been the case of a wife, parent, child, master, mistress, or ser- vant, and there had been reasonable ground to apprehend im- minent danger of some great personal injury, the law would have justified interference, even to the point of killing. Although Brown stood in neither of these relations to the pri- soner, and may have been, as far as we know, a mere stranger, yet the spirit of the law in some degree at least may be cer- tainly invoked to mitigate what otherwise would seem to be not only an atrocious, but utterly motiveless and inexplicable deed. Next, as to the prisoner's intention to kill this clearly could not be inferred from the nature of the weapon alone, un- less we go back, and apply the same rule to the use of the club by Sullivan upon the head of Brown. The club and the rung were alike dangerous weapons- Death might result from the use of either. But the prisoner, it is said, after an interval re- peated his blows; and so did Sullivan. Admitting, however, that there was no palliation that there was an actual inten- tion to kill but that such intention was only formed at the instant of striking the fatal blow was the act manslaughter, calling for incarceration in the state prison, or was it murder, to be expiated only on the gallows? The law says that killing without authority, when perpetrated from a premeditated de- sign to effect the death of the person killed, or of any human being is murder. Is then an intention formed on the instant a premeditated design? Consulting merely the popular accepta- tion of language, or even the dictionaries in general use, we must certainly answer that it is not. So far from being syno- nymous, these two forms of expression are generally employed to convey directly opposite ideas. All extempore discourse is understood to be the antipode of a premeditated one. The words premditate ami design both import forethought, careful JN'EW YORK, MAY, 1852 35 y Sullivan . The People. reflection, deliberately arranged purpose ideas all involving^ in their structure, the essential element of time. We may not perhaps be able in every, or in any case, to define the precise number of hours or days; but still there must be time, reasona- ble time time for reflection time to survey the contemplated deed in all its bearings and probable results; and to contrive and arrange, if so decided, the means and method and occasion of its deadly accomplishment. How, then, can it be said, without shocking all our notions of speech, whether common or cultivated, that an intention to kill, formed on the instant of striking the fatal blow, is the same as a premeditated design to commit the crime of murder? The present law of homicide, it must be remembered, is, in this state, a written and a recent code. It was composed by men selected to give utterance to the more humane spirit of the age, and in language adapted, or at least intended to be adapted to the present understanding of those whose conduct it was to regulate. This consideration, therefore, must furnish the rule for its interpretation, and with such rule, or even without it, it seems impossible to believe that the legislature, in treating the subject of homicide, and mea- suring its criminality and punishment, intended to place sudden impulse upon the same footing as deliberate malice. To do so, instead of softening, would have been to aggravate the harsh features of the common law, and to violate .the almost universal sentiment of the community. But, says the district attorney, if the crime of the prisoner (and a great crime it is admitted to be) is not adjudged to be murder, the criminal, contrary to all just notions of the adaptation of punishment, will escape with the comparatively slight penalty assigned to manslaughter in the fourth degree, not exceeding two years' confinement in the state prison. If this result were to follow as a necessary con- sequence of a reversal of the judgment of the court below, it , would afford no reason for hanging the offender. It would merely show that in framing a system of written law, an over- sight not very uncommon in such cases had occurred, to be re- medied, not by the judiciary, but by the legislature. If, how- ever, the meaning above ascribed to the word " design," as 360 DECISIONS IN CRIMINAL CASES. The People v. Clark. used in the statute, be the true one if it imply forethought contrivance, laying in wait, deliberate purpose then there is no difficulty, should the case call for such a verdict, in bringing it under the head of manslaughter in the first or second degree, and applying to the crime such punishment, extending even to imprisonment for life, as may be justly adapted to whatever cir- cumstances of aggravation may have attended its commission. My conclusion, therefore, is that the verdict should be set aside and a new trial ordered. EDWARDS, J., concurred. Judgment reversed and new trial awarded. SUPREME COURT. New York General Term, December, 1852. Edwards, Mitchell and Roosevelt, Justices. THE PEOPLE vs. JOSEPH CLARK. THE PEOPLE vs. JAMES SULLIVAN. The court of last resort in this state is the exclusive judge of its own juris- diction, and its decision on that point can not be questioned by the court be- low, when directed to carry into effect a judgment of reversal; but where the jurisdictional question has not been decided by the court of last resort, it is open to examination in the court below. A. sentence inflicting corporeal punishment can not be pronounced in the absence of the defendant; but the personal presence of the defendant is not necessary where a fine only is imposed. On a writ of error brought to reverse a judgment in a capital case, the personal attendance of the defendant on the argument or at the decision in the ap- pellate court, is not necessary to give such court jurisdiction. The court of appeals having reversed the judgments rendered by the supreme court in both these cases, the district attorney applied to the supreme court, to issue warrants for the execution of the defendants. The grounds of the motion are sufficiently stated in the opinion of the court. JV. B. Blunt (District Attorney), for the people NEW YORK, DECEMBER, 1SJ2. The People . Clark. J. McKeon, and R. H. Morris, for the defendants. By the Court, MITCHELL, J. The prisoners in both these cases were tried at the Oyer and Terminer and found guilty of murder. The judge who presided at the trial charged the jury as to the meaning of the statute defining murder; the prisoners, by their counsel, excepted to the charge, and a writ of error was brought to this court. This court pronounced the charge of the judge erroneous, and in May last ordered a new trial. In pursuance of a statute passed in the preceding March, a writ of error was brought to review our judgment, and the court of ap- peals has reversed our judgment and affirmed that of the Oyer and Terminer. During all that time the prisoners have re- mained in prison, except when they have been brought before the Oyer and Terminer, or this court. They are now brought up before us, pursuant to sections 23 and 24 of 2 R. S. 659, the district attorney insisting that the sentence of death remains in full force, and that no legal reasons ex'st against the execution of the sentence and calling on the court to issue a warrant for the execution. The prisoners by their counsel insist in oppo- sition to this motion that the order of this court granting a new trial remains in force and assign various reasons all intended to show that the court of appeals had not gained jurisdiction of the case when their decision was made. The prisoners' counsel very properly refrained from addressing to the court a single argument against the decision of the higher court, on the point on which that court and this differed. If the appellate court had jurisdiction, its decision became the law of the case; and when remitted to the court for execution, became the law and judgment of this court by virtue of the higher authority of that court; and as we would have been bound to enforce obedience by the Oyer and Terminer to the judgment of this court, while it remained unreversed, so are we bound to receive the judgment of the higher court and even to carry its decrees into execution when that court has decided within its jurisdiction, whatever may be our individual opinions. But the question whether the VOL. I. 46 362 DECISIONS IN CRIMINAL CASES. The People v. Clark. court of appeals had jurisdiction, was very properly argued before us. It may be admitted that an appellate court, and es- pecially (in the words of Ch. J. Marshal) " that the court of dernier resort in every state decides upon its own jurisdiction." (8 Peters, U. S. R. 320.) But in this case, the question now presented, whether in a criminal case where the punishment is to be corporeal, any court has jurisdiction over the prisoner .unless he be brought before it, was never brought before that court, and so that court did not " decide upon its own jurisdic- tion in that respect." The question, therefore, remains open. Certainly there are cases in which it would be our plain duty to pass on such a question; and if, in any case, we should not hesitate to fulfill that duty, it would be when the law directs us to ascertain whether the sentence of death against two individ- uals still " stands in full force," and whether any "legal reasons exist against the execution of such sentence." If the act of March 22, 1852, giving the court of appeals jurisdiction in such a case had not been passed, then according to its own decision in The People v. Corning (2 Comst. 9), it would have had no jurisdiction, and its decisions would consequently have been of no authority, and it would have been the duty of this court not to carry out its decision so made. If, however, on a professed reexamination of that case, it had recalled that decision, it had the power to do so; but if there were no evidence that it had reexamined it, or professed to pass on the question of its juris- diction again, the fair inference would be that that question had been overlooked rather than that the court had indirectly re- versed its deliberate decision made directly on the point. The supreme court of the United States is, where it has jurisdiction, as much above the court of appeals as that court is above this, yet if the writ of error had issued since the act of 1852, from the United States court to this court, and the United States court had pronounced the same judgment that the court of ap- peals has, this court would have no right to obey it, as the supreme court can issue its writ of error only in certain cases, and then " to the highest court of J iw or equity of the state in which the decision is made," and not to any but the highest NEW YORK, DECEMBER, 18-32. 353 The People v. Clark. rourt. Nor would that, the highest tribinal of the country, disapprove of such a course. In the case of Davis against Pack- ard, that court decided that the judgment of the court for the correction of errors was erroneous, and adjudged that the judgment of the court for the correction of errors in this state be reversed, and that the cause be remanded to the court for the correction of errors with directions to con- form its judgment to that opinion. (8 Peters, U. S. Rep. 321.) The court of errors evaded conforming its judgment to that opinion, by announcing in its judgment the opinion of the United States court, and then declaring that the court of errors had no jurisdiction to reverse a decision of our su- preme court for an erior in fact, and therefore quashed the writ of en or which it had issued, and thus in effect left the erroneous judgment of the supreme court in full force. The United States court recognizing the principle that the court of dernier resort in the state could conclusively judge of its own jurisdic- tion, yielded to the decision and affirmed this last judgment of the court of errors. By this decision of the highest court of our state, if a decision were needed on that point, there are cases where it has no jurisdiction, and that decision is affirmed by the highest tribunal in the union. To the same effect is the de- cision of the court of appeals in Oakley v. Jispinwall (2 Comst. 548), where that court vacated its own judgment of reversal, because one member of the court had sat at the argument, who, by law, had no right to sit there on account of being distantly related to one of the parties, although the counsel who moved to vacate the judgment had requested him to sit. It is admitted and proved that the prisoners were at no time before the court of appeals, and the record shows that they appeared there by their counsel. The judgment of the court is that the judgment of the supreme court be reversed and that of the Oyer and Ter- ininer in all things affirmed, and that the record be remitted to the supreme court, in order that this court may direct the sen- tence of death to be executed. The cases state most decidedly that no corporeal punishment can be lawfully awarded by the court in the absence of the prisoner. Whether they mean tfcat 364 DECISIONS IN CRIMINAL CASES. The People t>. Clark. the judgment awarded in his absence would be erroneous merely, or without jurisdiction, is a material question. In Lofft, 409, the court was informed that the crown was inclined to mercy, and was desired to discharge the prisoner on some corporeal pun- ishment, as he was too poor to pay a fine. They said " they could not award corporeal punishment in absentem," and impo- sed a fine of one shilling. The case of Rex against Harris and against Duke, in 9 William III, is reported in a number of authorities. There the court was called on to pronounce judg- ment in the absence of the party, after he was outlawed. In Holt, p. 399, C. J. Holt is reported to have said: " Sir Samuel Astny tells me there never was a writ to the sheriff to take up any man that was at large and to put him in the pillory; there- fore, I think we can not give any such judgment in the absence of the party, which can not be executed. If he be in court, we deliver him to the marshal, and an entry is on the roll that the marshal do execution periculo incumbente. And if we were to send him into Somersetshire there is to be a writ of assistance to the sheriff, but if he came from Newgate hither, then if he be remanded there goes indeed a writ to the sheriff, but then constat de personal The difficulties here stated are, that there was no writ known after judgment, to bring up the prisoner before the officer who was to execute the judgment, and that if such a writ issued (it not bringing the party into court but be- fore the officer only) the person taken would have no opportu- nity to show 7 that he was not the one who, by the judgment, was to be punished. These objections would not exist in an appellate court, which was not to cause the sentence to be executed, but to devolve that responsibility on the court below. C. J. Holt added: " I never knew a judgment for corporeal punishment unless the party were present, except in the case of Mrs. Buckridge, which was irregular." In the case of Duke, he said: " Judgment can not be given against any man in his absence, for a corporeal punishment. He must be present when it is done. If a man was outlawed for felony, execution was never awarded" against the felon till brought to the bar. There is no precedent of any such entry; for if we give judgment that NEW YORK, DECEMBER, 1858. The People . Clark. he should be put in the pillory, it might be demanded when, and the answer would be, when they catch him. And there never was a writ to take a man and put him in the pillory; it ij not like to a capias projini, which is to bring him into court to pay the money. A defendant may submit to a fine though absent, if he has a clerk in court that will undertake for the fine." The opinion is given to the same effect in Lord Raym , 267, 1 Satk. 400, and Skinner, 684; Combroback, 447 and 12; More, 156, and section 2, Hawk. pi. cr., ch. 48 and 17, and Barbour's Criminal Law. The difficulties here stated are of a like character to those before noticed, and do not apply to a court which is not to award the execution, but is merely to or- der another court to award it. In 1 Salk. 556, Queen v. Tem- pleman, it was again said that when a man is to receive any corporeal punishment, judgment can not be given against him in his absence, for there is no process to take a man and put him in the pillory. In Rex v. Hann # Price (3 Burr. 1786), it was agreed that if a fine only was to be imposed, it was in the discretion of the court to give judgment in the absence of the defendants; but otherwise they should be .present. And it was said that even if a fine was to be imposed and the case was of a gross nature, the defendants should appear in person for the sake of example, and to prevent the like offences being committed by others, as the notoriety of their being called up to answer criminally for such offences would very much conduce to deter others from venturing to commit the like. These rea- sons only apply when the sentence is about to be executed Chitty says in his Criminal Law, p. 695: "When any corporeal punishment is to be inflicted on the defendant, it is absolutely necessary that he should be personally before the court at the time of pronouncing the sentence, and he assigns the reasons given in the above cases." He adds: " And when he is com- mitted to prison, it ought to appear upon the record that he was present at the time of the committal. So when a judgment has been once pronounced on a trial, and execution awarded against him, which is subsequently countermanded, so that he is not put to death at the time specified and part of the ensuing term DECISIONS IN CRIMINAL CASES. The People r. Clark. has elapsed, execution can not afterwards be awarded without bringing him again to the bar in person." (See, accordingly, Kingsley's Case, quoted by C. J. Hall in Lord Raym., 482, and at p. 700.) " It is now indispensably necessary, even in cler- gyable felonies, that the defendant shall be asked by the clerk if he has anything to say why judgment of death should not be pronounced on him, and it is material that this appear upon the record to have been done, and its omission after judgment in high treason, will be a sufficient ground for the reversal of the attainder." In 3 More, 265, " an anonymous case is given where an attainder was reversed on account of this omission in the record," and this good reason is given for requiring it to be asked, "that possibly he might have pleaded a pardon." That advantage, and all others which the prisoner could have, con- sistently with the legality of the sentence, he can have before the court which is to award execution, even if he do not appear before the higher court. (Such, also, was the case of Rex v. Spike, 3 Salk, 358; there the omission is called erroneous.) In 2 Hole's Pleas of the Crown, it is said: " If A be convicted at Oyer and Termmer of felony, and the record be removed to the King's Bench by certiorari, and the prisoner also be removed hither by habeas corpus, the court may give judgment after that conviction, but there must first be a filing of the record in the King's Bench, and he must be called to say what he can why judgment should not be given against him, and thereupon judg- ment may be given." So in Sir Walter Raleigh's case, C. J., 495, when the execution was extended for three years, he was afterwards brought into court, sentenced and executed. In The People v, Taylor, (3 Denio, 98, note a,) the court being about to impose sentence, the defendant's counsel objected that it could not be done in the defendant's absence. The court said, in substance, that when a corporeal punishment is to be inflicted, then " the rule is that such a sentence should not be imposed in his absence," but that if the court meant to impose a fine only, that rule would not apply, although the offence was uch that the court in their discretion might fine or imprison. In The People v. Son, ( 12 Wend. 348,) Savage, Ch, J,, also NEW YORK, DECEMBER, 1852. 307 The People *. Clark. says that the rule is, that when any corporeal punishment is to be inflicted on the defendant, he n.ust be personally present in court when sentence is pronounced." And in The People v. Winchill, (7 Cowen, 525,) the court refused to render judgment until the prisoner should be brought into court although he was out on bail. None of these cases have shown what the rule is in the appellate court and they all are consistent with the idea that the defect would be ground only for the writ of error, and not for holding the judgment void. Chitty says, (Cr Law, 751,) that while the writ of error is pending, " in cases of felonies, the defendant must be in court upon all motions." He, however, quotes no authority for this, and we find none. The practice in our courts, in this respect, seems not to have been uniform. In the case of Rector, he was brought into court, and so in many other cases. In others, the argument has been without the presence of the prisoner. If the final judgment were in his favor of course he would not object, and if the judgment of the court below were against him, ?nd that were affirmed on his writ of error he could not object. The cases in which the courts have proceeded without the presence of the prisoner are sufficiently numerous to lead to the conclu- sion that the presence of the prisoner in the higher court was not essential to its jurisdiction, even if his absence would make the proceedings erroneous. And when the highest court of the state gives a judgment which makes void an order for a new trial, and specially and carefully orders the sentence of death to be pronounced, it can hardly be supposed that it was done without that court considering that it had jurisdiction of the person of the prisoners. To obtain jurisdiction over the person, it is generally necessary only to have process served on the party, in due form of law, giving him such notice of the new action as the court regards as an equivalent to the bringing him into court. That was done in this case, by serving a copy of the writ of error on the prisoner. In other cases, especially in inferior courts, a special statute has sometimes prevented their obtaining jurisdiction unless the party were actually before the court. Such was Bigelow v. Stearns, ( 19 / .(33 DECISIONS IN CRIMINAL CASES. The People v. Clark. R. 39.) In other cases it has been held that, if no process was served on a defendant and he did not appear in court by an attorney, the judgment against him was void. Such was Borden v. Fitch, ( 15 /. R. 141,) and many others. And it may be that the express statutory provision, (2 R. S. 735 and 1S>) that " no person indicted for any felony can be tried unless he be personally present during such trial," would make void a trial when the person indicted was not present. But the trial there intended is that which is properly called the trial, namely, that before the jury, as the rest of the title containing that section tends to show. It is also true that at common law the defendant could not appear by counsel, and that the privilege to appear by counsel, 1 now granted, was not intended to dispense with the prisoner's personal appearance. But that again does not apply to the appellate court; there, it is believed, counsel could always argue for the accused. Undoubtedly, the presence of the ac- cused may be of great service to suggest to counsel even argu- ments of law, for self interest often excites an acuteness of perception in the client which the learning of the counsel may have failed to exhibit. That is a fair argument why the pri- soner should be present even in those cases, but not an argu- ment to show that without his presence, the appellate court is without jurisdiction. The statute authorizing the writ of error in behalf of the people was passed March 22d, 1852. A motion was made in the court of appeals to dismiss the writ, on the ground that by the record, as made up for that court, the judgment of this court purported to have been given in February preceding; but it appeared that, although the argument was in Febru- ary preceding, yet, in fact the judgment was rendered in May, 1852, and that court denied the motion. That decision binds us to regard the writ as applicable to this case. It was also argued, that the act of March 22, 1852, gave the court of appeals power only to review the judgment of the supreme court, and not to reverse or modify it; and it was argued that the appellate court, therefore only had power to review the WAYNE, MAi, 1852. The People v. The Court of Sessions of Wayne. judgment and state what the law was, and that on the new trial the law thus announced should be declared and acted on. But that court has practically given a different construction to this act by specially directing that the judgment of this court be reversed, and that of the Oyer and Terminer in all things affirmed, and that the record be remitted to this court, " in order that this court may direct the sentence of death to be ex- ecuted." Nothing remains for us in this place, but to execute the law as it is declared by the court of last resort. As when we reversed the judgment of Oyer and Terminer we would not interfere with the province of the jury by discussing the ques- tion whether in fact the prisoners were guilty or not, so now we will not depart from our proper sphere by expressing in this place any opinion as to the correctness of the decision of the higher court. It is our duty to obey it; and we do so. SUPREME COURT. Cayuga General Term, June, 1852. Sclden, Strong and Johnson, Justices. THE PEOPLE ex rel. WILLIAMS vs. THE COURT OF SESSIONS OF WAYNE COUNTY. Courts of sessions, as authorized under the judiciary act of 1847, have not power to grant new trials. Where, in a court of sessions, the defendant had been found guilty of arson in the third degree, and the court granted a new trial upon the merits, and refused to pass sentence according to the verdict, it was held lhat the granting of a new trial was a nullity, and a mandamus was awarded to compel the court to proceed and pass sentence. Semble, that a court of Oyer and Terminer has power to grant new trials. Per JOHNSON, J. This was an application for a mandamus to compel the court of sessions to proceed to the sentence of William Case, who was convicted in said court, of arson in the third degree. Tho court on motion of the defendant granted a new trial upon the merits and refused to pass sentence according to the verdict. VOL. I. 47 DECISIONS IN CRIMINAL CASES. The People v. The Court of Sessions of Wayne. S. K. Williams, (Dist. Att'y,) for the People. Jas. E. Smith, for the defendant. By the Court, JOHNSON, J. Courts of Sessions, as organized under the judiciary act of 1847, are courts of limited and infe- rior jurisdiction, having no powers, except such as are con- ferred by statute, like the former courts of general sessions of the peace. In the case of The People v. The Justicee of the Sess- sions of the County of Chenango, (1 Johns. Cos. 180; S. C., 2 Caines* Cas. in Error, 319,) it was held that the court of general sessions of the peace had no power to grant a new trial in criminal cases upon the m-erits. This was put expressly on the ground that the court was a court of limited and inferior powers, incapable of doing any act or of exercising any authority beyond the express grant of the statute. It was said in that case that no inferior jurisdic- tion can possess this power of granting new trials without an express authority. The same judges held in The People v. Townsend, ( 1 Johns. Cas. 104,) that courts of Oyer and Terminer may grant new trials. There seems'to be considerable conflict in the decisions in this state, as to the power of courts of Oyer and Terminer to grant new trials upon the merits. (The People v. Stone, 5 Wend. 39; The People v. Comstock, 8 Wend. 549; The People v. The Judges of the Dutchess Oyer and Terminer, 2 Barb. S. C. 282.) But there is no conflict as to the power of courts of sessions The rule laid down in The People v. The Justices of Chenango, has been, as we think, universally acquiesced in, and is the settled law of this state. Courts of Oyer and Terminer have full criminal jurisdiction and are the only courts in the state having such powers. And there are strong reasons in favor of the exercise of this power by the court of Oyer and Terminer, which do not apply to criminal courts of inferior jurisdiction. This question of the power of courts of Oyer and Terminer can not be regarded ?s being definitely set- tled, and we are inclined to think the better opinion is that ONOXPAGA, OCTOBER, 1852. The People . McJntyre. courts of Oyer and Terminer are clothed with this power and that the true difference in the power of the two courts in this respect, is that of full jurisdiction in the one, and qualified and restricted powers in the other. The court of sessions should have proceeded to pass sentence in pursuance of the conviction and their award of a new trial was a nullity. A mandamus must, therefore, be awarded. SUPREME COURT. Onondaga General Term, October, 1852. W. F. Jlllen, Hubbard and Pratt, Justices. THE PEOPLE vs. ALANSOX MC!NTYRE. Where two or more persons are jointly indicted for felony, and demand separate trials, they have not a right to elect which defendant shall be tried first. The order of the trials in such case is within the control of the district at- torney, subject to the direction of the court; and as a general rule, the court should not interfere to compel the district attorney in regard to it. The decision of the court, refusing to direct the district attorney in such case, is not the subject of review upon exception. On a separate trial of a defendant jointly indicted with a codefendant for felony, such defendant can not improve his codefendant as a witness in his behalf. Such codefendant is not a competent witness for the defendant on trial till discharged from the record by nolle prosequi. acquittal or otherwise. The defendant and Carrington Mclntyre were jointly in- dicted in the Madison county sessions for burglary and larceny and demanded separate trials, and that Carrington Mclntyre should be first tried. A separate trial was granted, but the court refused to compel the district attorney to try Mclntyre first; to which refusal the defendant excepted. Upon the trial of the defendant, his codefendant on the indictment was offered as a witness in his behalf, and was objected to on the ground that he was jointly indicted with the defendant. The objection was sustained and the witness excluded. The defendant was convicted and brings error to this court 372 DECISIONS IN CRIMINAL CASES. The People v. Mclntyre. D. Brown, for defendant. W. E. Lansing, (Dist. Att'y), for the People. By the Court, W. F. ALLEN, J. It was a matter addressed to the sound discretion of the court below whether they would interfere with the order of trial of the persons indicted. The statute secures to persons jointly indicted for a felony the right of separate trials, but does not give to them the right to regu- late the time or order of such trials. The public prosecutor controls and directs on these matters, subject to the direction of the court in cases calling for interference. It can not be assumed by any court, and certainly not by a court of review, that the grand jury have found an indictment without sufficient evidence or from improper motives, or that the public prosecutor has unworthily procured an indictment against an innocent in- dividual and delays the trial, in order to deprive another person indicted for the same offence of the benefit of his testimony. If a case of that kind should be brought to the knowledge of the court, it can not be doubted that measures would be taken to secure to the persons indicted their just rights and fair trials But even in such case the order of the court would not be the subject of review upon exceptions. (People v. Colt, 3 Hill, 432.) The decision of the court excluding the codefendant as a witness for the defendant upon the trial is properly the subject of review upon error. The statute provides that when two or more defendants shall be jointly indicted for any felony, anyone defendant requiring it, shall be tried separately. (2R. S. 735, 20.) Previous to this statute, persons jointly indicted for offences entitling them to peremptory challenges were entitled of right to separate trials, and a separate trial of persons jointly indicted might in all cases be had in the discretion of the court. The statute therefore restricts the discretion of the court in granting or withholding separate trials to indictments for of- fences less than felony, but does not affect the rights of the parties or the rules of evidence, in cases where separate trials ONONDAGA, OCTOBER, 1852. 373 The People v. Mclntyre, are hail either as a matter of right, or by direction of the court where the right is not absolute. The statute was enacted to conform the practice to the opinion of the court in The People v. Barber (7 Cowen, 108; Revisers' Notes, 3 R. S. 849). The right to a separate trial by no means determines the right of one defendant to improve his codefendant as a witness in his behalf. This can only be done by discharging him from the record; as by the entry of a nolle prosequi, or by an order for his dismissal and discharge, or by a verdict of acquittal, where no evidence or no sufficient evidence has been adduced against him. (iGreenl.Ev. 363; Roscoe Cr. Ev. 1412; 2 Russ. on Cr. 968, 969; State v. Moony, 1 Yerger, 451 ; Commonwealth v. Marsh, 10 Pick. 57; People v. Bell, 10 John. R 95; People v. Williams, 19 W. R. 377). The rule is too well established to be disturbed by this court, and the reasons assigned for it are satisfactory. The rights of individuals charged with crime are not endangered by the rule. The defendants jointly indicted may, at their option, be jointly tried; and if upon the trial there shall be no evidence, or but slight evidence, against one of the parties indicted, he may be discharged or his case submitted to and passed upon by the jury to enable the other defendants to call him as a witness. The provisions of the code have no application to criminal proceedings. The judgment of the court below is affirmed. 374 DECISIONS IN CRIMINAL CASES. SUPREME COURT. Albany General Term, February, 1853. Watson, Parker and Harris, Justices. JONAS H. MILLER vs. GEORGE I. FINKLE. The statute requiring the court to limit the time of sentence of a convict, so that his imprisonment in the state prison shall expire between March and November, is merely directory, and a failure to comply with such require- ment does not render the sentence void. If, by inadvertence in passing sentence, a requirement of the statute has been overlooked, the court may correct the judgment at the same term and before the sheriff has proceeded to execute it. Such correction may be made by expunging or vacating the first sentence and passing a new sentence. The disqualification consequent upon a sentence by which all the civil rights of the person sentenced are suspended, commences as does the running of the time of imprisonment, from the moment of passing sentence. The effect of vacating a sentence and pronouncing a new sentence at the same term, is the same upon the civil rights of the defendant, as if the first judg- ment had been reversed on error, and the defendant had been again convicted on a second trial. Where a defendant was sentenced, so that his term of imprisonment in the state prison would expire in December, and afterwards, at the same term, the sentence was vacated and a new sentence was pronounced for a shorter term, but so that it would expire in October, and the defendant after the first sentence and before the second sentence, executed an assign- ment of his book accounts to another person, it was held that such assign- ment was valid. This was an appeal from the county court of tfee county of Columbia. The action was brought originally in a justice's court to recover upon a note for $'50 and interest. The defendant in his answer claimed the right to set off against the plaintiffs demand certain balances of account, which the plaintiff had formerly owed to Peter Finkle and Calvin Finkle, and which had been assigned to the defendant before suit brought. The plaintiff recovered before the justice and the defendant appealed to the Columbia county court where the cause was referred to Darius Peck, Esq., as referee, who reported nothing due to the plaintiff, and the county court on motion refused to set aside the report. On the trial before the referee, it appeared that said Calvin ALBANY, FEBRUARY, 1853. 375 Miller e. Finkle. and Peter Finkle were, on the 18th day of June, 1847, tried before the court of General Sessions of Columbia County and convicted of a felony, and on the day last aforesaid, were seve- rally sentenced to imprisonment in the state prison for three years and six months. This sentence was entered in the min- utes of the court. On the next day, that is to say, on the 19th day of June, 1847, the clerk by directions of the court made an entry in the minutes immediately below the sentence aforesaid, expunging said sentence and thereupon proceeded to sentence said Calvin and Peter Finkle anew, for the term of three years and four months, which last sentence was entered by the clerk; and under a certified copy thereof said Calvin and Peter Finkle were taken by the sheriff to the state prison. The correcting of the sentence was made in consequence of the court discover- ing that the imprisonment under the senlence as at first pro- nounced would not terminate at the season of the year prescribed by law; 1 On the 19th day of June, 1847, after the first sentence and before it was altered, Calvin and Peter Finkle made the assign- ments of their accounts to the defendant; and the question pre- sented was, whether the civil rights of Calvin and Peter Finkle were suspended at that time, so as to vitiate such as- signments. E. P. Cowles, for plaintiff. Theo. Miller, for defendant. By the Court, PARKER, J. It was provided by the statute of 1836 (Laics of 1836, page 230, 6), that in cases where convicts shall be sentenced to be imprisoned in the state prison for a longer period than two years, " the court before whom the conviction shall be had shall so limit the time of sentence, that it will expire between the month of March and the month of November, unless the exact period of the sentence may be fixed by law." The sentence pronounced against Calvin and Peter Finkle was not in accordance with this requirement. It 370 DECISIONS li\ CRIMINAL CASES. Miller v. Finkle. was a sentence for two years and six months, and under it, the imprisonment would have terminated in December. The de- fendant's counsel argues that the sentence was therefore void. But that position is not tenable. The statute is merely direct- ory. There was no want of jurisdiction. The time for which they were sentenced was within the limit prescribed by the act for the punishment of the offence. The sentence of the 18th June, therefore, notwithstanding the neglect to comply with the requirement of the act of 1836, was binding and ope- rative, unless it was rendered otherwise by the subsequent proceedings. On the 19th day of June, the court having discovered the error, ordered the sentence, which had been pronounced on the day preceding, to be expunged, and the order was entered accordingly. The court then proceeded to sentence the prison- ers to an imprisonment of two years and four months, a certi- fied copy of which last sentence was delivered to the sheriff, under which they were imprisoned in the state prison. This proceeding was in effect vacating the judgment first pronounced; and it is necessary to consider whether the court had power to do so and what was its legal effect upon the transaction in question. The courts certainly have not the power to pardon. That is vested by the constitution exclusively in the governor. But courts have power over their own records and judgments, which may be exercised in certain cases and to a certain extent. This by no means infringes upon the power of pardon. The courts can not forgive or remit, or absolve from the consequen- ces of a criminal judgment. But they may see that the judg- ment itself is in conformity to law. Thus, they may reverse on error, or review on certiorari. If, by inadvertence in pro- nouncing a sentence, a requirement of the statute has been overlooked, it may be corrected by the same tribunal, before further action is taken. I think it a safe rule to lay down, that a court of criminal jurisdiction may vacate or modify a judgment at the same term at which it is pronounced, and before the sheriff has proceeded to execute it. ALBANY, FEBRUARY, 1853. 377 Miller v. Finkle. In King v. Price et al. (6 East R. 322), the defendants had been convicted of perjury and sentenced to imprisonment for one month and transported beyond seas seven years. After- wards, at the same term, the court vacated the judgment (which Lord Ellenborough observed might be done at any time within the said term), and passed a different sentence, viz.: that each should pay 20, and be imprisoned in Newgate six months and be afterwards transported for six years. The cor- rectness of such a practice was also recognized by the king's bench in King v. Justices of Leicestershire ( 1 Maul. Sf Selw. 442), and have been acted on in other cases. ( 1 Chitty's Cr. L. 772.) I think the court therefore had the right to expunge or vacate the first sentence, and to pass a new sentence; that the first sentence became void and inoperative, and the second sentence a valid and binding judgment: as much so as if the first sentence had been reversed on error, and the second sen- tence had been pronounced after a conviction upon a second trial. The next question to be considered is, what was the effect of the first sentence upon the assignments to the defendant? At the time these assignments were executed, the first sentence was in full force. The statute provides (2 R. S. 701, 19), that " a sentence of imprisonment in the state prison for any term less than for life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power, during the term of such imprisonment." This disqualification commences, as does the running of the time of the imprisonment, from the moment of passing sentence. If, therefore, the sentence had not been vacated, the assignments would have been void, the assignors being incompetent to execute such instruments. But what was the effect of the vacating of the sentence? I think it was precisely the same as if the sentence had been reversed on writ of error. When a judgment is reversed, all proceedings and sale.' under and by virtue of it are void at common law (6 Cowen R. 297; 8 Paige, 143, 9 do. 635), and VOL. I. 48 378 DECISIONS IN CRIMINAL CASES. Gahagan v. The People. it has been deemed necessary to provide by statute (2 R. S 375, sec. 68), that in cases, where the title to real estate which shall have been sold under a judgment shall fail in consequence of such judgment having been vacated or reversed, the pu r - chaser shall have his action against the party for whose benefit the real estate was sold to recover the amount paid on the purchase thereof with interest. This enactment was necessary for the protection of the purchaser, for the reason that the pro- ceedings were void. The vacating of the sentence rendered it inoperative from the time it was pronounced, so that it could not invalidate the assignments in question. I think, therefore, the setoff was properly allowed, and that the judgment of the county court should be affirmed. Judgment affirmed. SUPREME COURT. Albany General Term, February, 1853. Watson^ Parker and Wright, Justices. JAMES GAHAGAN pl'ff in error vs. THE PEOPLE def'ts in error. On the trial of an indictment for bigamy, the confessions of the defendant, though supported by proof of cohabitation and reputation, are not sufficient to establish the first marriage : proof of actual marriage, either by the record or by the evidence of an eye witness, is requisite. This cause came up on writ of error to the court of sessions of the county of Albany. The defendant was indicted in that court for bigamy, as follows: The jurors, c., &c., do present: That James Gahagan, late of the town of Watervliet, in the county of Albany, aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and fifty-two, at the parish of Dumklief, in the town of Kearney and county of Sligo, in Ireland, in the kingdom of Great Britain, did marry one Bridget McCarty, and her the said Bridget McCarty did ALBANY, FEBRUARY, 1853 379 Gahagan v. The People. then and there have for his wife, and that the said James Ga- hagan afterwards, viz., on the first day of July, in the year of our Lord one thousand eight hundred and fifty-two, with force and arms, at the town of Watervliet, in the county of Albany, feloniously did marry and take as his wife, one Rebecca S. Noice, and to the said Rebecca Noice, was then and there married, (the said Bridget McCarty being then and there living and in full life,) against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity. The defendant having pleaded not guilty, the issue came on for trial before said court, on the fourteenth day of December, 1852. To maintain the issue on the part of the people, Catharine McCarty was called as a witness and testified: That she was at home at the parish of Dumklief, town of Kearney, in the county of Sligo, Ireland, when the prisoner and the sister of the wit- ness, Bridget McCarty, came in on one Friday night, at the house of witness's mother, and said they were going to get married, and went to get married. That, when they came back, they said they had been married by a priest, whose name they mentioned, but that she had forgotten what the name was. That the prisoner and said Bridget lived together after that as man and wife. That they had one child in Ireland and five in this country; that the name of the child born in Ireland is Ellen and that she is now in this country. That the prisoner and said Bridget have lived together in Whitehall in this state, and that said Bridget was then in the almshouse in Washington county. On cross-examination, the witness said she was nineteen years of age; had been six or seven years in this country; had heard that her sister Bridget was still living, but had not seen her in three or four years; that she knew she was living, and had heard from her two months previously by way of a man coming from Whitehall; that she sent for some money by him. The counsel for the prisoner, in due time, objected to the admission of each and every part, separately, of the evidence of Catharine McCarty, on the grounds: 380 DECISIONS IN CRIMINAL CASES. Gahagan v. The People. 1. That, in order to prove the first marriage in a case of bigamy, it was necessary to produce the marriage record, or a certified copy thereof, or some one present at the marriage ceremony. 2. That the declarations and admissions of the prisoner of the first marriage and evidence of cohabitation with the first wife are incompetent and inadmissible to prove the first marriage. 3. That the declarations and admissions of prisoner do not dispense with the production of the record. Which objections were overruled by the court, and the evi- dence allowed, and defendant's counsel duly excepted. Thomas B. Richards, being called on the part of the people, and duly sworn, said: "I am one of the constables of West Troy; I know the prisoner; I arrested the prisoner. Prisoner told me he was married to Bridget McCarty. I know Bridget McCarty; I saw her in Washington county poorhouse, in Ar- gyle, about three or four weeks ago. Prisoner told me he had a wife there; prisoner told me he had another wife at White- hall, in the poorhouse. He did not tell me in what country he married her." The evidence of Thomas B. Richards was also, in due time, objected to, in each and every particular separately, by counsel for prisoner, on the grounds: That the admission and confession of prisoner were incom- petent and inadmissible to prove the first marriage. The objection was overruled by the court, and the evidence received, and defendant's counsel duly excepted. John W. Burns, being called on the part of the people, and being duly sworn, said: "I am a justice of the peace, living at West Troy; I married the prisoner to one Rebecca Sophia Noice, in December last, in William Van Olinda's office; Van Olinda was present and signed certificate. The evidence of John W. Burns, to prove second marriage, was also, in due time, objected to by counsel for prisoner, on the grounds: 1. That the prior marriage had not been sufficiently and le- gally proved, as charged in the indictment. ALBANY, FLURUARY, 1833. Gahagan v. The People. 2. That the first marriage had not been proved to have been solemnized in due form of law. , The court overruled the objections aforesaid, and held that the question as to whether the first marriage had been suffi- ciently proved, was a question of fact for the jury. To which rulings of the court, the counsel for the prisoner then and there duly excepted. The counsel for the people, farther to maintain the issue on the part of the people, called, as a witness, Nicholas Hallenbeck, who, being duly sworn, said: " I am the jailor of Albany county; prisoner sent this letter; it was given to me by the prisoner, requesting that I should send it to his wife." The counsel for the prisoner objected to the introduction of this letter, as evidence, on the grounds: That the acknowledgments and confessions or declarations of prisoner are incompetent and inadmissible. The court overruled the objection and admitted the evidence. To which ruling of the court, prisoner's counsel duly excepted. The district attorney then read the said letter to the court and jury, in which letter the defendant admitted he was the husband of said Bridget, to whom it was addressed, and to whom he excused his getting married the second time on the ground that he was drunk. The letter was dated twenty-se- venth November, 1852, and was directed to Bridget Gahagan, care of Mr. Hopkins, Argyle, Washington county. The cause was then rested on the part of the people, and the counsel for the prisoner moved that the court discharge the prisoner on the grounds: 1. That the evidence was not sufficient to go to the jury. 2. That there was a variance as to the time of the alleged first marriage set forth in the indictment and the proof thereof. The court refused to discharge the prisoner, and held the evidence sufficient for the consideration of the jury. No evidence was offered on the part of the prisoner, and the court thereupon charged the jury as follows: That, before the jury could convict the prisoner, they must 382 DECISIONS IN CRIMINAL CASES. Gahagan v. The People. be satisfied that the prisoner was married. to Bridget McCarty in Ireland, as charged in the indictment, and that such mar- riage was a lawful one, according to the laws of that country; that to establish such fact, the jury might take into considera- tion the statements made by the prisoner on the several occa- sions referred to by the witnesses, together with the letter written by the prisoner after his confinement on the charge; that when the first marriage takes place in a foreign country, the defendant's confession is evidence to go to the jury to prove the same, but that the jury must be clearly satisfied that such confession proves the fact of such marriage, before they will be warranted in convicting, provided a second marriage be proved. That the jury must also be satisfied that the second marriage has been legally proved, and that the first wife was living at its consummation. There would seem to be no question upon these points, if the people's witnesses were to be credited; however, that was a question for the jury. The defendant's counsel requested the court to charge the jury that the evidence on the part of the people was merely presumptive of a marriage in fact, as it regarded the first mar- riage, and that it did not prove an actual marriage; and that in order to prove the first marriage, it was necessary to produce the record of the marriage or a certified copy thereof, or some one present at the marriage ceremony; and that the confessions or declarations of the prisoner, and cohabitation with his first wife, were merely presumptive of a marriage in fact. The court declined so to charge, and held the evidence pro- per for the consideration of the jury; and prisoner's counsel excepted thereto and to each and every part of the charge as above set forth. The jury found the prisoner guilty, and he was sentenced to imprisonment in the state prison at Auburn, for the term of four years and nine months. /. Ji. Bloomingdale, for the prisoner, made the following points: ALBANY, FEBRUARY, 1853. Gahagan v. The People. I. It is necessary to prove the prior marriage in a case of bigamy by direct and positive proof. ( 1 Russ on Cr. 186 and note-, 15 Mass. 163; 3 Star/tie Ev. 893; 2 do. 781.) II. The declarations or admissions of defendant of his first marriage and evidence of cohabitation with first wife, are in- admissible to prove the same. (4 Comst. 230, 246; 4 Johns. 51; 6 Conn. R. 446; Swift's Ev. 140; Swift's Dig. 501; 19 Maine, 155; 7 Johns. 314.) Ill It is necessary to show that the foreign marriage was solemnized in due form of law. (10 East. 282.) The law will not presume a valid marriage as in civil cases. (Russ. Sf Ry. c.c. 109; 1 Phill 257; Jacobs' Cases, 1; Moody, c. c. 109.) IV. That the identity of the first wife must be proved by some one present at the marriage ceremony. (9 Mass. Rep. 449; 8 Greenl. R. 75.) V. The evidence of the first marriage is not sufficient to convict. T. C. Sears, for the people, claimed that the declarations given in evidence were admissible and sufficient, and cited 1 East. P. C. 470; 1 Car. & Kir. 164; 2 Cow. # Hill's Notes, 1148; 1 Ashmmd, 272; 16 Ohio R. 173; 3 Rich. .434; 11 Maine, 391; 8 Serg. & Rawl. 159.) By the Court, PARKER, J. The rule is not controverted as laid down in Kent (2 Kent's Com. 53) and in other elementary writers, that marriage may be inferred from continual cohabit- ation and reputation as husband and wife, except in cases of civil actions for adultery or in public prosecutions for bigamy and adultery, when actual proof of the marriage is required. But it is contended that the admissions of the defendant are of such a positive character as to be properly received to establish his marriage, even in the cases above excepted, and the deci- sions have been conflicting upon the questions, whether such declarations are admissible, and if so, whether they are suf- ficient, when deliberately made, to establish the fact of mar- riage. 384 DECISIONS IX CRIMINAL CASES. Gahagan v. The People. In Maine such evidence has been received. Cayford's case. (? Greenl. 57) was an indictment for lewd and lascivious co. habitation, and confessions of having been married in England were received as sufficient proof of the fact; and in Ham's case (2 Fairf. 391) it was held, that on the trial of one indicted for bigamy, adultery, or lascivious cohabitation, the marriage, whether solemnized in that state or otherwise, might be proved by the deliberate confession of the defendant. Both these cases are cited and approved in The State v. Hodgkins (19 Maine R. 155.) The same doctrine was held in Pennsylvania, in Murtagh's case, (1 Jlshmead, 272,) which was an indictment for bigamy, and in Forney v. Hallacher, (8 Serg. fy Rawle, 159,) which was an action for crim. con.; and in Virginia, in Warner's case, (2 Virg. cases, 95,) which was an indictment for bigamy in South Carolina, in Britton's case, (4 McCord, 256,) and Hilton's case, (3 Rich. R. 434,) both of which were indictments for bigamy in Ohio, in Wolverton's case y (16 Ohio, 173,) which was also an indictment for bigamy. In Regina v. Simmon-sto, (1 Carr. fy Kirwan, 167; 43 Eng. Com, Law,) which was also an indictment for bigamy, it was held in England that the first marriage might be proven by the admissions of the prisoner. A different rule is well established in other states. In Mas- sachusetts, such evidence is held to be insufficient. In the case of The Commonwealth v. Simeon Littlejohn and Margery Barb- arick, (15 Mass. R. 163,) indicted for lewdly and lasciviously associating and cohabiting together, the latter being alleged to be the wife of Thomas Barbarick, a sister of said Thomas tes- tified that about twelve years previous, said Thomas and Mar- gery left the house of the witness for the declared purpose of going to the house of a clergyman, about two miles distant, in order to be by him joined in marriage; that after an absence sufficient for that purpose they returned, declaring that they were married, and that they lived together as man and wife, having several children, until a year previous to the trial. The jury found the defendant guilty, but it was resolved by the whole court that the evidence was insufficient; that it was not ALBANY, FEBRUARY, 1853. 3,5 Gahagan v. The People. the best of which the case admitted; that if those persons were married, it could be proved by the record of the clergyman, or, at any rate, by the testimony of persons actually present and the \ erdict was set aside. The evidence introduced to prove marriage in that case was very much like that in the case be- fore us. It was decided in the state of Connecticut, in Roswell's case (6 Conn. R. 446), which was an information for incest alleged to have been committed by the prisoner with his legitimate daughter, that an actual marriage between the prisoner, and such daughter's mother must be proved; and that, for that pur- pose, neither cohabitation, reputation, nor the confessions of the prisoner were admissible. In that case, the subject was very fully and carefully examined, in the opinion of the court. See also Swift's Ev. 140; Swift's Dig. 501, for the law in that state. In this state, as early as 4 Johns. Rep. 51, it was held in Fenton v. Reed, that strict proof of actual marriage was only required in cases of bigamy and in actions for criminal conver- sation; and that in other cases, marriage might be proved from cohabitation, reputation, acknowledgment of the parties, re- ception in the family, and other circumstances from which a marriage might be inferred. In The People v. Humphrey, (7 Johns. R. 314), the question came directly before the supreme court in an indictment for bigamy. The prisoner had been found guilty on his voluntary acknowledgment of his former marriage. But the court held it insufficient evidence, citing Morris v. Miller, (4 Burr. 2056,) where Lord Mansfield held, that in prosecutions for bigamy, as well as in actions for critn. con., a marriage in fact must be proved, and Birt v. Barlow (Doug. 171.) The correctness of this rule is recognized in the opinions delivered in the late case of Clayton v. Wardell (4 Comst. Rep. 230.) Whatever, therefore, may be the rule of evidence in other states, I think we are bound in this state by the decision in The People v. Humphrey, which is directly in point. VOL. I. 49 DECISIONS IX CRIMINAL CASES. Gahagan w. The People. In one respect the decisions agree, viz., that public prose- cutions for bigamy, incest and adultery, and f .he single civil action for crim. con., all stand on the same footing, and are governed by the same rule of evidence. If admissions are ade- quate evidence in one, they are in all of these cases. It has not been decided in this state, that confessions of the marriage are not admissible, but that they are insufficient to prove the fact. I do not see upon what principle they can be excluded, and though insufficient of themselves to prove mar- riage, even when aided by proof of cohabitation and reputation, yet they may be important evidence, and I think they are in all cases competent. They corroborate the positive evidence of an eye witness to the marriage. They strengthen the proof of the identity of the parties, or of the clergyman or officei officiating; and they add to the weight and certainty of tht proof whether the marriage be proved by the record or by one present. It is the right, I think, of the party prosecuting, to avail himself of the statements voluntarily made by the defend- ant, as to any material fact in issue. But it is competent foi the court, in its vigilant care for the rights of a party, to re- quire the highest and most satisfactory evidence of the fact in issue, especially in a criminal prosecution. In questions of title to land the parol admission of a party is not sufficient to show he has parted with real property. The law exacts the better and higher evidence of a deed. And it is always com- petent, and no violation of principle, for the law to prescribe what kind of evidence shall be required to establish a fact. I see no reason for making a distinction between cases of marriage in a foreign country arid marriage in this state. A careful examination of the decisions shows that none has really been recognized. The fact is equally important to the defend- ant, whether alleged to have taken place here or in a foreign country, and calls for the same grade of evidence The same kind of evidence is required to prove the signature to a note executed in Ireland as if it were executed in this state, and so of every other fact necessary to be established on a trial. The peril of the defendant should not be increased, because of the MONROE, MARCH, ;&';2. The People v. McGinnis.. difficulty of obtaining proof. That is a misfortune that should fall on the prosecution, if upon either party. I think the court below erred in holding that there was suf- ficient proof of the first marriage to submit the question to the jury, and that, for that reason, the judgment of the sessions should be reversed and a new trial awarded. Judgment reversed. SUPREME COURT. Monroe General Term, March 1853. Selden, Johnson and T. R. Strong, Justices. THE PEOPLE vs. MICHAEL McGiNNis. An action for a divorce for adultery was under the Code of 1851, referrible. It is not necessary to a valid reference of an action, that the parties, or their attorneys subscribe a writing consenting to the reference; it is sufficient, if an order of reference is entered with their assent in open court; that is a " written consent." A. written consent, may be waived by appearing before the referee and partici- pating in the proceedings on the trial. A.n order of the court, on motion of the defendant's attorney, that the plaintiff pay a sum of money for costs and alimony, "on condition that the defend- ant's attorney stipulate with the plaintiff's attorney to refer the whole issues in the action," &c., where the stipulation is given and the parties proceed to trial before the referee, is a sufficient reference of the action. A variance between an indictment for perjury on a trial before a referee and the evidence, in regard to the person before whom the referee was sworn, is immaterial. The allegations and proof, as to the taking of an oath by th* referee are 'superfluous; he acquired jurisdiction by the order of reference duly made. The answer of a witness on cross-examination, to an inquiry, the subject of which is purely collateral to the issue, is conclusive. Indictment for perjury, tried at the sessions in Monroe County, in January, 1852. The indictment set forth, that one James Kane commenced an action against Catharine Kane, his wife, for a divorce for adultery; that she put in an answer to the complaint, and among other things alleged that the plaintiff had committed adultery with one Ann Golden, which 388 DECISIONS IN CRIMINAL CASES. The People r. McGinnis. allegation was denied in the reply; that in October, 1851, the action was referred to Isaac R. Elwood, Esq., to hear and decide the same; that afterwards, and before he proceeded to take any testimony in the action, " the said Isaac R. Elwood personally appeared before Samuel L. Selden, then and there one of the justices of the supreme court of the State of New York, and duly empowered and authorized to administer oaths in that behalf, and by and before the said Addison Gardiner, so being such judge, and duly empowered to administer such oath, was sworn and took his corporal oath faithfully and fairly to hear and examine the said cause," &c.; that the referee pro- ceeded to the hearing and trial of the issues, and that upon the trial, the defendant was sworn and examined as a witness, and committed the offence of perjury, in testifying to the adultery of the plaintiff charged in the answer. On the trial of the indictment, the district attorney proved, that a motion was made in the action in the supreme court, on the behalf of the defendant, for costs and alimony, that the order was thereupon made by the court hereinafter set forth, and that the stipulation hereinafter set forth was given by the defendant's attorney and the plaintiff's attorney, in pursuance of the said order. The district attorney then offered to read in evidence a stipulation in the following words: Supreme Court. James Kane agt. Catharine Kane. I hereby stipulate that this case be referred to Isaac R. Elwood. Esq., C. Jordan, attorney, for defendant. And also a rule of court, made and entered October 13, 1851, as follows: James Kane agt. Catharine Kane. C. Jordan, defendant's attorney. Ordered, on motion of Mr. Jordan, attorney for the defendant in this action, that the plaintiff pay the attorney of the defendant thirty dollars, for defence of this action, and to the defendant one dollar and fifty cents each and every week, commencing on the 13th day of October, 1851, for her support and maintenance, until a final decree in this action, or further order of this court, on condition that the defendant's attorney MONROE, MARCH, 18-53. The People v. McGinnis. stipulate with the plaintiff's attorney, to refer the whole issues in this action to Isaac R. Elwood, Esq., and in that case the plaintiff is to pay the referee's fees, and fees of the defendant's witnesses upon the reference, and that the plaintiff be not allowed to bring this action to trial until the sum of $50 bo paid to defendant's attorney." The counsel for the defendant objected to proof of the stipulation and rule, but the court overruled the objection and the exception was taken. Isaac R. Elwood, was sworn as a witness for the people and the district attorney offered to show by him what took place on said reference. The counsel for the defendant objected to the testimony, 1st. That it was not a referrible cause. 2d. That the cause had not been referred by the writ- ten consent of the parties. The court overruled the objection, and the counsel for the defendant excepted. The witness said that he acted as a referee, that he was sworn before Jud^e 7 O Selden, that Judge Gardiner was not at home The counsel for the defendant thereupon objected to the evidence, and moved that the defendant be discharged, on the ground of variance between the indictment and the proof. The court overruled the objection and received the evidence, and refused to dis- charge the defendant, to which decision the counsel for the defendant then and there excepted. James Kane and Ann Golden, were sworn as witnesses, and testified that Kane never committed adultery with her. On the cross-examination of the last witness, many questions were put to her as to her inti- macy with Kane, which were answered in the negative. She proceeded, I pay Kane three shillings per week for rent of the room. Kane told me to order James McDermott out of my house, and if he did not go to send for him. I never asked McDermott to come to my house. I never got a penny from McDermott for any purpose. On the part of .the defendant, there was testimony of one witness, that corroborated the testi- mony of defendant before the referee, and also testimony on the part of the people conflicting therewith, and confirming the testimony of Kane and Golden. The defendant offered to show that Ann Golden had said, that McDermott did give her fifty 390 DECISIONS IN CRIMINAL CASES. The People v . McGinnis. cents. This testimony was objected to by the district attorney, and excluded by the court, on the ground that the question on that subject to Ann Golden was immaterial, and her answer must be taken as true, to which decision the counsel for the defendant excepted. The defendant was found guilty, and a bill of exceptions was sealed, which was brought into this court by certiorari. W S. Bishop, for defendant. M. S. Newton (Dist. Att'y), for the people. By the Court, T. R. STRONG, J. I am satisfied that the action for a divorce was referrible. (Code of 1851, sections 253, 254, 270.) By 253, it was provided that " whenever in an action for the recovery of money only, or of specific real or personal property, there shall be an issue of fact, it must be tried by a jury, unless a jury trial be waived, as provided in section 266, or a reference be ordered, as provided in sections 270 and 271." Section 254 declares that, " every other issue is triable by the court, which, however, may order the whole issue, or any specific questions of fact involved therein, to be tried by a jury; or may refer it as provided in sections 270 and 271." By 270, " all or any of the issues in the action, whe- ther of fact or of law or both, may be referred, upon the written consent of the parties." The action was clearly embraced within the last two sections. It was not necessary to a valid reference of the action, that the plaintiff, or his attorney, should subscribe the stipulation given by the attorney of the defendant in the action, or any writing consenting to a reference; it was sufficient if the plaint- iff's attorney 'assented in open court to the order of reference- If the order was entered with his assent, it was a written con- sent of his to the reference. It is not expressly stated in the bill of exceptions, that the plaintiff's attorney was present and assented to the order when made, but it is stated that the stipu- lation of the defendant's attorney was given to him, from MONROE, MARCH. 1852. 39 j The People v. McGinnis. which and the terms of the order, it is apparent that the refer- ence was asked for by him. A written consent might also be waived, by appearing before the referee, and participating in the proceedings on the trial. It is not stated in the bill, in terms, that the plaintiff's attorney did appear and take part in the trial, but it is fairly to be inferred from the statements therein in respect to the trial, and the fact that he testified in the present case what was sworn to by the defendant on the trial before the referee. The order of reference is informal. It does not expressly refer, or direct a reference of the action, but I think it suffi- ciently shows the assent of the court to a reference to the referee named therein, and that it was intended thereby to refer the action, provided the defendant's attorney should give such a stipulation as was given by him. In regard to the objection of variance between the indict- ment and the evidence, in respect to the person before whom the referee was sworn, it is a sufficient answer to it, that it was not necessary to allege or prove anything on that subject. (Howard v. Sexton, 4 Comstock R. 157.) Assuming that the provision of the revised statutes, requiring a referee to be sworn before proceeding to hear any testimony (2 R. S. 384, 44), was applicable to the case, as it probably was, the oath was not necessary to confer jurisdiction to try the action. The referee acquired jurisdiction by the order of reference, duly made; the omission of the oath would have been an irregu- larity merely, and the subject only of a motion. Regarding the allegations and proof, in regard to the taking of the oath by the referee, as superfluous, no prejudice could result to the de- fendant from the variance, and it must be overlooked. (2 R. S. 728, 52; The People v. Treadway, 3 Barb. S. C. R. 470, arid cases cited.) The court properly excluded the proof offered on the part of the defendant, to show that Ann Golden had said that McDer- mott did give the fifty cents. It does not appear by the bill of exceptions that she had testified that she had not said so, or that any question was put to her as to whether she had so 392 DECISIONS IN CRIMINAL CASES. The People v. Derby. stated, but if the inquiry had been made of her and she had testified that she had not made such a statement to McDermott, evidence to contradict her in that respect would not have been admissible. The subject of the inquiry would have been purely collateral and the answer of the witness would have been conclusive. (Howard v. The City Fire Ins. Co. 4 Denio R. 502; Harris v. Wilson, 7 Wend. R. 57.) These views dispose of all the exceptions which were relied on upon the argument; the other exceptions taken at the trial were abandoned, and properly so, as it is manifest that neithei of them is tenable. New trial denied. COLUMBIA CIRCUIT. April, 1853. Before Parker, Justice. THE PEOPLE vs. EDWARD M. DERBY. A. recognizance, conditioned for the appearance of M at the next court ol sessions, to be held at the court house in the city of H, to be tried by a jury on two indictments for forgery, is to be construed as requiring the appearance of M at the next court of sessions to be held in the city of H, and not at the next court of sessions to be there held at which a jury shall be summoned. (Vnd where such a recognizance was taken in January 1851, and, at a court of sessions, held in June following, M was defaulted and his recognizance de- clared forfeited and ordered to be prosecuted, and in an action on the recogni- zance, it appeared that a regular term of the court of sessions had been held at that place in March of the same year, though no jury had been summoned to attend at such March term, it was held, that no breach of the condition of the recognizance had been shown, and judgment was given for the defend- ant. This was an action upon a recognizance, tried before PARKER, Justice, at the Columbia Circuit, in April, 1853. The complaint was as follows: Supreme Court, Columbia County. The People of the State of JVeto Yor/fc agt. Edvnrd M. Derby. The plaintiffs com- plain of the defendant and show to this court, that on the tenth COLUMBIA, APRIL, 1853. 393 The People v. Derby. day of January, A. D. 1851, at the city of Hudson, in the county aforesaid, personally came before a court of Oyer and Terminer then being held in and for the county of Columbia, one Michael P. Mandigo and the said defendant, and acknow- ledged themselves indebted to the people of the State of New York, the said Mandigo as principal in the sum of one thou- sand dollars, and the said defendant as surety in the sura of one thousand dollars, by a recognizance in writing signed by them, with a condition therein contained, that if the said Michael P. Mandigo should be and appear at the then next Court of Sessions, to be holden at the Court House, in the City of Hudson, to be tried by a jury, on two indictments for forgery in the second and third degrees, and not depart the court without leave, then the said recognizance to be void or else to be and remain in full force and effect, as by the said recognizance and the said condition, now remaining in the office of the clerk of the county of Columbia, at the city of Hudson aforesaid, reference being thereunto had, will more fully and at large appear. And the said plaintiffs aver, that the next court of sessions at which a jury was summoned and attended, to be holden next after the signing of said recogniz- ance, in and for the county of Columbia, was held at the Couit House in the city of Hudson, in and for the county of Colum- bia, on the third day of June, in the year of our Lord, one thousand eight hundred and fifty one, before John T. Hoge- boom, county judge of the said county of Columbia, and Wes- ley R. Gallup and Jacob Barringer, two of the justices of the peace in said county, duly designated according to the statute in such case made and provided to hold courts of sessions in said county, and that the said last mentioned court commenced its session on the said last mentioned day, and that, at the said last mentioned court, held on the day and at the place last mentioned, the said indictments were then pending undeter- mined therein, and the said recognizance in full force and effect. That the said Michael P. Mandigo being then and there called in open court, during the sitting of the said court, did not appear in said court and abide the order of the said VOL. I. 50 394 DECISIONS IX CRIMINAL CASES. The People v. Derby. court in the premises, but therein wholly failed and made default: whereupon an order was entered by the said court forfeiting the said recognizance and directing the same to be prosecuted according to law, as by the record and proceedings of the said court, reference being thereto had, will more fully and at large appear. Whereby the said recognizance became forfeited, and an action hath accrued to the said plaint- iffs to demand and have of and from the said defendant, the said sum of one thousand dollars above mentioned, wherefore the plaintiffs demand judgment in this action for one thousand dollars, besides costs of this action. J. C. NEWKIRK, District Attorney of Columbia County, plaintiff's attorney. The defendant, in his answer put in by M. SANFORD, IK attorney, denied each and every allegation contained in the complaint, and alleged that the said Michael P. Mandigo appeared at the said court of sessions, according to the condi- tion of the said recognizance, and that the said condition was complied with in all respects. On the trial, the counsel for the plaintiffs produced in evi- dence and read from the minutes of the court of Oyer and Ter- ra iner, held in and for the county of Columbia, on the tenth day January 1851, a recognizance in the words and figures follow- ing: " The People v. Michael P. Mandigo. January 10, 1851. Michael P. Mandigo as principal and -Edward M. Derby as surety, acknowledge themselves indebted to the people of the state of New York: the said Mandigo in the sum of one thou- sand dollars, and the said Edward M. Derby as surety, in the like sum of one thousand dollars, to be levied of their and each of their respective goods and chattels, lands and tenements, to the use of the said people if default shall be made in the condition following: The condition of this recognizance is such, that if the said Michael P. Mandigo shall be and appear at the next court of sessions to be held at the court house in the COLUMBIA, APRIL, 1853. 395 The People v. Derby. city of Hudson, to be tried by a jury on two indictments for forgery in the second and third degrees, and not depart the court without leave, then this recognizance to be void or else to be and remain in full force and effect. Michael P. Mandigo. Edward M. Derby. The counsel for the plaintiffs further proved, that on the said 10th day of January, 1851, orders were made by the said court of Oyer and Terminer and entered in the minutes sending each of the said indictments against Mandigo, for forgery, " to the next court of sessions for trial." The plaintiff's counsel then proved by the minutes of the court of sessions of said county, held in June, 1851, that an order was made and entered by that court as follows: " The People v. Michael Mandigo. June 3, 1851. Default entered. Recognizances forfeited and ordered prosecuted. Mi- chael P. Mandigo, principal; Edward M. Derby, surety." John R. Currie was then called as a witness for the plaint- iffs, and testified that he was clerk of Columbia county in 1851, and till January, 1853; that he acted as clerk of the Oyer and Terminer in January, 1851; that the recognizance in question was taken by him in open court, and signed by Mandigo and Derby in his presence. On his cross-examination, he testified that there was a court of sessions held in Columbia county in March, 1851; that no jury was drawn for attendance at such term; that the recog- nizance in question was not forfeited at said March term; that the June term, 1851, was the first term of the sessions at which a jury was summoned or attended; and that it appeared from the minutes of the court of sessions, that, at the said March term, there was no rule or order made or entered sending the said indictments to the June term, or continuing the said recog- nizance to the said June term. M. Sanford, for the defendant. J. C. Newkirk (Dist. Att'y), for the people. 396 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. PARKER, J., after hearing counsel, expressed the opinion, that the proper construction of the recognizance was, that Mandigo should appear at the next court of sessions to be held in the city of Hudson, and not at the next court of sessions at which a jury should be summoned; that Mandigo was bound, therefore, by the recognizance, to appear at the March term, and not at the June term; that though the indictments had been sent to the March term for trial, no proceedings upon them had been had at that term, nor had any step been taken to continue the recognizance till the June term, and that there- fore the default taken at the June term was irregular, and no evidence of a breach of the condition of the recognizance. Whereupon the jury, under the direction of the court, rendered a verdict in favor of the defendant. Judgment for defendant. SUPREME COURT. At Chambers, August, 1853. Before Wright , Justice. THE PEOPLE vs. JOHN HENDRICKSON, JR. In determining whether a writ of error should be allowed and a stay of proceed- ings granted, to enable a prisoner to review, before the supreme court, an exception taken at the Oyer and Terminer on a trial for murder, it is not necessary that the justice to whom the application is made, should arrive at the positive conclusion that the cou/t erred on the law; it is enough that the exception is not deemed frivolous, and that it involves a gravely important question, in regard to which there is a conflict of authority, and which re- mains unsettled by the courts of thi* state. Where a coroner's inquest was held on the day following that of the alleged murder, at which the prisoner was called by the coroner as a witness, and was sworn and examined by him, under oath, before the coroner's jury, having been subpoenaed to attend for that purpose, there being some circum- stances tending to show that the prisoner was then suspected of the murder though no charge had then been made against him, and on the subsequent trial of the prisoner at the Oyer and Terminer, the court permitted the counsel for the people to give in evidence the statements made by the prisoner on such examination, it was held there was sufficient doubt of the correct- ness of the decision to warrant the allowance of a writ of error with a star of proceedings. ALBANY, AUGUST, 1853. 397 The People r. Hendrickson. In July, 1853, at the Albany Oyer and Terminer, Justice MARVIN presiding, the prisoner was convicted on an indictment charging him with the murder of his wife, and sentenced to be executed on the 26th day of August, 1853. A number of ex- ceptions were taken by the counsel for the prisoner during the progress of the trial. After a bill of exceptions had been pre- pared and settled, the counsel for the prisoner, upon notice to the attorney general, applied for the allowance of a writ of error and stay of proceedings on the judgment. Wheaton fy Hadley, for prisoner. Colvin (Dist. Att'y), and Chatfield (Attorney General), for the people. WRIGHT, J. Upon this application, the counsel for the pri- soner have directed me to seven distinct exceptions taken during the progress of the trial, each one of which they deem of suf- ficient importance to merit an examination and review by the supreme court. On the contrary, the attorney general contends that there is but one of the exceptions at all worthy of con- sideration. The exception which relates to the admission of proof of the statements made by the prisoner under oath at the coroner's inquest, he concedes, at least, by an elaborate argu- ment of the point, is not to be regarded as frivolous. In de- termining whether the prisoner shall have an opportunity for review by the supreme court of the exceptions taken, I am not necessarily called upon to arrive at the positive conclusion that the court erred as to the law. It is enough that there is any one exception in the case which I deem not to be frivolous; and which involves a gravely important question, respecting which there may be even a conflict of authority, but which re- mains unsettled by the courts of this state. On the trial, the prosecution proved that an inquest was held by the coroner of the county of Albany, on Monday evening, the 7th March, (the death having occurred on the evening pre- vious,) on the body of the deceased. The prisoner was called 398 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. by the coroner as a 'witness, and was sworn by him, and was examined as a witness, under oath, before the coroner's jury. The witness who proved these facts, thinks that the prisoner was subpoenaed by the coroner. The prosecution proposed to prove the statement made by the prisoner before the coroner's jury under oath. The counsel for the prisoner objected to th^ witness' stating what the prisoner swore to when testifying as ; witness before the coroner, on the ground that what he swon to upon that occasion, was not a voluntary statement. Th* objection was overruled by the court, and the evidence admit ted, the prisoner excepting. The counsel for the prosecution then put to the witness this question: " What account did thf prisoner give, when examined as a witness before the coroner of the circumstances at ending the death of his wife?" The counsel for the prisoner objected to the question, on the grouno that his statements, made before the coroner, were not volun- tary, while testifying as such witness. The objection was overruled, and the evidence received, and the prisoner excepted. The witness then proceeded to detail the statements made by the prisoner. From the evidence of the witness, it appears that after the prisoner had stated the circumstances occurring on the evening of his wife's death, he was interrogated as to his having been in the city of Albany a short time previously, what he went to Albany for, and whether he had been in Springsteed's drug store, or any other drug store, whilst at Albany. Neither my own necessarily limited examination, or the re- searches of counsel, have enabled me to find a reported case in the courts of this country, on the question whether, on a trial for murder, the deposition or statement on oath of the prisoner, taken before the coroner on the inquest held on the body of the deceased, is, or is not, receivable in evidence, or upon what precise principle, or under what circumstances, a prior depo- sition, or statement on oath, of the prisoner should be rejected on his trial for a criminal offence. The case of The State v. Broughton (7 Iredell R. 96), is the only reported American case that I have been able to discover, bearing upon the ques- ALBANY, AUGUST, 1833. 399 The People v. Hendrickson. tion, under what circumstances, and upon what principle, the prior statement, or deposition of the prisoner, made on oath before a public officer or body, shall or shall not be receivable. In England, however, there are a number of reported cases. It must be admitted that the decisions of the British judges have not been always uniform; but the weight of authority seems to sustain the position, that when the circumstances do not show the prior statement or deposition of the prisoner made before a magistrate or coroner to have been entirely voluntary, it ought to be rejected. In a case tried at Worcester, reported in a note to the case of Rex v. Haworth ( 19 Eng. Com. Law R. 370), where it ap- peared that a coroner's inquest had been held on the body of A, and it not being suspected that B was at all concerned in the murder of A, the coroner had examined B upon oath as a witness; Park, /., would not allow the deposition of B, so taken on oath on the coroner's inquest, to be read in evidence on the trial of an indictment afterwards found against B for the same murder. In Reg. v. Wheeley (8 Carrington fy Payne R. 250 ), the prisoner was charged with the murder of Mary his wife, by administering poison to her. It was opened by Hume for the prosecution, that the deceased had died from poison, but that there was no evidence to affect the prisoner, except a statement made by him before the coroner at the inquest. This statement purported on the face of it to have been taken on oath, but the coroner would state, if parol evidence was admissible, that in fact no oath was administered to the prisoner; Jllderson, B., said: " As the statement purports to be a statement on oath, I cannot receive it as evidence against the prisoner; and I think, as it so purports, I can not allow parol evidence to be given to show that the statement was not made upon oath."' In Regina v. Owen et a/., at the Stafford assizes, in 1840 (9 Car. 8f Payne R. 238), Owen, and two others, were charged with the murder of Christina Collins, by drowning her. The prosecution pro- posed to give in evidence the depositions of the prisoners taken on oath, on the coroner's inquest held on the body of the deceased; Gurney, B., rejected the evidence. At a former 400 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. assizes held before Mr. Justice Williams, the prisoners had been tried for ravishing Mrs. Collins. The prosecution pro- posed to read in evidence the statements made by the prisoners on oath before the coroner's inquest; Williams, J., decided to receive the evidence, and reserve the question for the opinion of the fifteen judges. As the prisoners were acquitted, the point was not brought before the judges. This decision of Justice Williams was cited by the prosecution on the trial before Baron Gurney for murder; but the statements were, not- withstanding, rejected, the Baron saying, that he was not aware of any instance in which an examination on oath before a coro- ner or magistrate, had been admitted as evidence against the person making it. In Regina v. Robert and Jinn Sandys (41 Eng. Com. Law R. 191), at the Welch summer circuit in 1841, the prisoners were put upon their trial for the murder by poison of their child, Elizabeth Sandys. It appears that she died on the 25th September, 1840, and was buried, and that no sus- picion arose that her death had been occasioned by poison until the death of Mary Ann Sandys, another child, who died on the 13th October, 1840. The parents having insinuated that the child, Mary Ann Sandys, had been poisoned by a woman na- med Rik-y, she was taken into custody for examination before the coroner as to the cause of death. The mother, Ann Sandys, was examined on oath as a witness. In the course of examin- ation, questions were put to her relative to the death of Elizabeth Sandys. In consequence of her answers, and other circumstances, the body of Elizabeth Sandys was disinterred and examined, when it appeared that she had died of poison. The parents w r ere thereupon taken into custody on the charge of poisoning both children, and were brought before the coroner in custody separately. When Ann Sandys was brought in, she was told that she was charged with having poisoned her two children, and that that was the time when she might make any statement that she liked to the jury, and that what she said would be taken down in writing. Her former deposition made by her as a witness was then read over to her, and she said that she had a further statement to make, which she made, and ALBANY, AUGUST, 1853. The People v. Hendrickson. what she then said was written down, and afterwards read over to her. She was asked to sign it, but she refused. The coro- ner signed it, and it was produced at the trial, and identified by the person who wrote it, and was offered in evidence against Ann Sandys, together with her original deposition. The coun- sel for the prisoner objected, that as the greater part of the statement had been made by the prisoner when under examin- ation before the coroner upon oath, it could not be read in evidence against her. Erskine, J., said he would receive the evidence, and reserve the point for the consideration of the fifteen judges. Ann Sandys was acquitted. Afterwards the case was considered by the judges, but as the prisoner, Ann Sandys, could not be again put upon her trial, their lordships thought it unnecessary to consider whether her examination had been properly received or not These are the only cases to which I have been referred, where the question has been distinctly raised as to the admis- sibility, on the trial of a person for murder, of the deposition or statement made under oath by such person on a coroner's in- quest, held on the body of the deceased. The case reported in the note to the case of Rex \. Howarth; also, the case of Reg. v. Wheeley, and that of Regina v. Owen et a/., distinctly hold the inadmissibility of such statement or deposition. In Regina v. Owen, Baron Gurney rejected them when the prisoners were on trial for murder; while Mr. Justice Williams received them on the trial for rape, reserving the point for the judges. In Rex v. Lewis, (25 Eng. Com. Law R. 333,) the prisoner was indicted for administering poison to Elizabeth Davis. On the day on which the prisoner was committed, she and several others were summoned before the Rev. Charles Bird, and ex- amined on oath touching the poisoning, there being no specific charge against any person; but on the conclusion of the exa- mination, the prisoner was committed for trial on the charge. The prisoner was examined on oath, and her examination taken down. On the trial, the prosecution proposed to put the exa- mination in evidence. Baron Gurney would not receive it, saying, " That this being a deposition made by the prisoner at VOL. I. 51 402 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. the same time as all the other depositions upon which she was Committed, and on the very same day on which she was com- mitted, I think it is not receivable. I do not think this exa- mination was perfectly voluntary. In Rex v. Tubby, (5 Car. Sf Payne, 539,) on an indictment for burglary, it was proposed by the prosecution to read a statement made upon oath by the pri- soner at the time when he was not under any suspicion. Baron Vaughan decided to receive it, but as it contained nothing material, the prosecution did not offer it in evidence. This case was cited to Baron Gurney in that of the King v. Lewis, but he thought the cases were quite distinguishable. In the case of Rex v. Merceron, (2 Starkte's JV*. P. Cases, 323,) the defendant was indicted for corruption in office, in having cor- ruptly granted licenses to public houses. In the course of the evidence for the prosecution, it was proposed to prove what the defendant said on his examination before the committee of the House of Commons. The defendant had been compelled to ap- pear before the committee and was examined by them. It was objected that the statement was not voluntary, as he would subject himself to punishment for refusing to answer. Abbott, J., held the statement admissible. This case was afterwards questioned in Rex v. Gilham. (Moody C. Cases, 203.) In Wheater's Case, (2 Lewis's C. C. 157,) tried at the York spring assizes in 1838, the prisoner was indicted for perjury, and it was proposed to give in evidence against him his deposition taken on oath before commissioners of bankrupts. It was objected that the deposition was inadmissible as not being a voluntary statement; but to this it was answered that when before the commissioners he was not accused of any crime. Mr. Justice Coleridge received the evidence, reserving the point, and the judges were afterwards of the opinion that the evidence was admissible. In The State v. Broughton, (7 Ire- deWs R. 96,) a person sought the opportunity and voluntarily went before a grand jury, and was examined in relation to a certain offence. He was afterwards indicted for that particular offence. It was held on his trial that his testimony before the grand jury might be given in evidence against him. Roscoe ALBANY, AUGUST, 1853. 403 The People v. Hendrickson. says, " A question sometimes arises whether a statement which has been made by a party upon his examination as a witness can be given in evidence against him if he should, himself, be put upon his trial for the same offence. The general rule is, that admissions made under compulsory process are evidence against the party." (Roscoe Crim. Ev. 45.) So also it is said by Starkie, " that when a witness answers questions on his examination on a trial tending to criminate himself, and to which he might have demurred, his answers may be used for all purposes." (2 Starkie's Ev. 3d ed. 28.) Greenleaf says, " that when the prisoner, having been examined as a witness on a prosecution against another person, answered questions to which he might have demurred as tending to criminate himself, and which, therefore, he was not bound to answer, his answers are deemed voluntary, and as such may be subsequently used against himself for ail purposes, although, when his answers are compulsory, and under the peril of punishment for contempt, they are not received." And he cites Starkie, Roscoe, Wheater's Case, and Rex v. Tubby. (Greenleaf Ev. 225.) So also he says, in commenting upon the case of Rex v. Lewis, " This case may seem at the first view to be at variance with what has been just stated on the general principles in regard to testimony given in another case; but the difference lies in the different natures of the two proceedings. In the former case the mind of the witness is not disturbed by a criminal charge; and, more- over, he is generally aided and protected by the presence of the counsel in the cause; but in tlve latter case, being a prisoner, subjected to an inquisitorial examination, and himself at least in danger of an accusation, his mind is brought under the full influence of those disturbing forces against which it is the policy of the law to protect him." (226.) The counsel for the prisoner contends that the principles to be deduced from these and other authorities, are, that to render the statement or deposition of the prisoner admissible against him, it must have been made under circumstances sho\\ ing it to have been perfectly voluntary; that a statement made on oath before a coroner on an inquisitorial examination as to the cause 404 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. of the death of the deceased, when the prisoner did not volun- teer to make it, is not a voluntary statement, but is made under a sort of restraint or duress, and when he himself at least is in danger of an accusation; that when such statement is not made as a witness in a prosecution against a third person, but is drawn from him under oath in an investigation by a magistrate or coroner as to the cause of the death of the person that he is afterwards indicted and put upon trial for the murder of, it is not voluntary; and hence, under those circumstances, and whe- ther the prisoner was at the time he made the statement charged with crime or under suspicion or not, such statement or depo- sition, or evidence, is not to be received against him. On the contrary, the attorney general contends, that whether the state- ment be made before a coroner or other officer or body that may issue compulsory process, the distinction is, that if, when a person makes the statement sought to be offered in evidence, he is not charged with any crime, or suspected, the statement is receivable. If he be suspected, or in custody, then it is to be rejected. The cases cited would seem to sustain, in a de- gree, the positions of both counsel. I think it is clear that the previous statement of a prisoner ought not to be received against him, unless it has been voluntarily made. When made in a civil suit, or in a prosecution against a third person, and the witness's mind is not disturbed by a criminal charge, or he is himself in no danger of an accusation, his testimony or state- ment is deemed to be voluntary, and is to be received against him. When charged with crime, or suspected, any examination under oath is not a voluntary examination, and for that reason is to be rejected. Indeed so far have the English courts gone on this subject, that in the case of The King v. Wifson, ( 1 Holt, 597,) where the committing magistrate stated that the prisoner was not sworn, that he held out no hope or inducement to him and employed no threats, but that he examined him at consi- derable extent, in the same manner that he was accustomed tc examine a witness, Baron Richards refused to suffer the exami- nation to be read, holding that it was " no matter whether the prisoner was sworn or not. An examination itselt imposes ao ALBAXV. AUGUST, i&oO. 495 The People t>. Hendrickson. obligation to speak the truth. If the prisoner will confess, let him do so voluntarily. Ask him what he has to say. But it is irregular in a magistrate to examine in the same manner as a witness is examined." It would be error, of course, for a com- mitting magistrate to impose an oath, or even to examine as he would a witness, a person charged before him with crime. Statements or confessions made under such circumstances would not be voluntary. Are they or not to be deemed voluntary, when made under oath, on an inquisitorial examination bv a coroner as to the cause of the death of the deceased, no specific charge being made against any person? This is the important question in this case, and as I have intimated, I am not called on upon this application to definitively arrive at the conclusion, that, in law, statements or confessions made under such circum- stances are not voluntary and should be rejected. It is enough that there is doubt as to the law; that from the decided cases, it is not a clear proposition that the -presiding judge, on the trial of the prisoner, was right in admitting evidence of state- ments made on oath at the coroner's inquest, to justify me in giving the prisoner an opportunity to present the question 1o the supreme court. It is also worthy of remark that the evi- dence in the case, and the examination of the prisoner at the coroner's inquest, would seem to show that at the time of such examination he was a suspected man. The deceased had died suddenly. But a few hours before she was found dead, she had retired to her room in company with the prisoner, in her usual health. Her death occurred when he only was in her company. On his examination he was interrogated as to his being at Albany prior to his wife's decease, and whether he had been in Springsteed's or any other drug store in the city. There are one or two other exceptions growing out of the admission of evidence on the trial, that I deem not unworthy of further consideration; especially that, when under the pre- text o,f showing the state of feeling existing between the. pri- soner and his wife, and furnishing evidence from which the jury might infer a motive for the prisoner's committing the crime of which he was charged, the court permitted evidence 406 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. of charges of moral delinquency made by the wife against the prisoner, in conversations with him, without the prosecution proposing to show, or showing, that the prisoner resented such charges, or that they produced any ill will, or irritated, or re- vengeful feeling, on his part. I shall allow a writ of error in this case, with a stay of pro- ceedings on the judgment. One or two of the questions raised by the bill of exceptions are exceedingly important; and whe ther it shall be hereafter determined that the court of Oyer and Terminer erred or not upon these questions, there is at least, in my view, probable grounds to justify me in giving the pri- soner an opportunity for a review of the questions by the Su- preme Court. SUPREME COURT. Albany General Term, December, 1853. Watson, Wright and Harris, Justices. JOHN HENDRICKSON, Jr. plaintiff in error vs. THE PEOPLE defend- ants in error. On a criminal trial, it is no objection to proving a confession of the defendant, that it was made when he was under oath, if it appear that it was free and voluntary and not made under the influence of fear or hope. What a person says, when examined as a witness in a legal proceeding, may be used in evidence against him ; but the statements or oath of a party ac- cused can not be given in evidence. Lewi* 1 Case, 6 Carr. fy P. 161 ; David's Case, id. 177; ana* Owen's case 9 Carr. Sf P. 238: reviewed and overruled. Where on the trial of a party for the murder of his wife, it appeared that the prisoner had been examined as a witness before the coroner's inquest, on the evening subsequent to the death, and that he had not then been charged or accused of the crime, and that his statements, then made under oath, were free and voluntary, such statements were held to be properly receivable in evidence against him. Held also, that evidence of conversations between the prisoner and his wife, and between the prisoner and his brother in-lavv, tending to show an aliena- tion of affection oil his part in regard to his wife, was admissible on the questipn of motive. Held also, that the will of the prisoner's father-in-law was properly received in evidence, for the purpose of showing that the pecuniary expectations, which the prisoner might have entertained by reason of his alliance with the family, had been disappointed. ALBANY. DECEMBER, 1853. 497 The People v. Hendrickson. The prisoner had been convicted at the Oyer and Terminer in Albany county of the murder of his wife, and brought a writ of error to this court. The questions decided are fully slated in the opinion of the court. A. J. Colvin (Dist. Att'y) for the people. JV*. Hill, Jr., for the prisoner. By the Court, HARRIS, J. On the evening subsequent to the death of his wife, the defendant was sworn and examined as a witness before the Coroner's inquest. Upon such examination he gave an account of the circumstances attending the death, after which, upon being asked when he had been in Albany, he answered that it was two weeks ago the last Saturday. Upon being asked whether he had not been there since, he, answering, as if correcting himself, said he had been in Albany a week ago the last Saturday. He was again asked whether he had not ben in Albany still later than that, and he replied that he had been there on the last Saturday. Upon being inquired of, he stated the object for which he went to Albany and mentioned several places where he had been while there. He said he did not remember having been in Springsteed's drug store, or in any other drug store. Upon the trial, the counsel for the prosecution offered to prove what the defendant had thus stated before the Coroner's inquest. It was objected to, on the ground that such statements were not voluntary. The objection was overruled, and the testimony was received. No charge had been made against the defendant at the time he was examined, nor is there any evidence that he was suspected of the crime, unless the fact is to be inferred from the tenor of his examination. The question is thus presented whether, upon a trial for murder, statements made by the defendant^ upon oath, before the jury summoned to make inquisition con- cerning the death, and before he had been accused of the murder, are admissible as evidence for the prosecution. Confessions have been appropriately dirided into two classes, 408 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. judicial and extra-judicial. (1 Greenleafs Ev. 216.) The former embraces the preliminary examination authorized by statute, when a party accused of crime is brought before a magistrate. Such confessions, attended, as they are, with pe- culiar solemnities, take higher rank as evidence than other mere admissions or declarations. Such other admissions and declarations constitute the class of extra-judicial confessions. They are to be proved, as other facts are proved, and, being proved, are to be submitted to the consideration of the jury. The preliminary examination, which the magistrate, before whom a person accused of crime is brought, is authorized to take, must be conducted in the manner prescribed by law, or it will be deemed irregular and rejected. Thus it is required that the examination should not be taken upon oath. When- ever, therefore, it has appeared that the party accused has been sworn, the examination has been excluded. (Smith's case, 1 Stark. R. 242 $ River's case, 7 Carr. and P. 177; Pi/cesly's case, 9 Carr. and P. 124.) This rule is confined to the official examination of the party accused. It is no objec- tion to a confession, as such, that it has been made when the party was under oath. Accordingly, where a prisoner has been examined as a wit- ness upon a charge against another for the same offence, his deposition was received in evidence upon his own trial as a confession. Parke, J. said, " He might, on that, as well as on any other occasion, when called as a witnsss, have objected to answer any questions which might have a tendency to expose him to a criminal charge, and not having done so, his deposi- tion is evidence against him." (Haworth's case, 4 Carr. and P. 254.) In Tubby' 's case ,(5 Carr. and P. 530) it was pro- posed to read in evidence a statement made upon oath by the prisoner. Vaughn, B. said, " The question is, is it the state- ment of the prisoner upon oath? Clearly it is not, for he was not a prisoner at the time he made it." In the case of Merce- ron, (2 Starkie, 366,) a magistrate was tried upon an indictment for misconduct in office. He had previously leen examined before a committee of the House of Commons, and it was pro- ALBANY, DECEMBER, 1853. 499 The People v. Hendrickson. posed to prove what he had said upon that examination. Th evidence was objected to, not because the statements were made upon oath, but because, having been compelled to attend before the committee, the declarations were not voluntary, but it was held to be admissible. It is true that the same judge before whom the case was tried subsequently questioned the correctness of the report: (Rex v. Gilham, 1 Moody's C. C. 203) but so far as it is enti- tled to any weight as an authority, it is against the doctrine that a confession is to be excluded as evidence merely because it has been under oath. In Wheater's case, (2 Moody's C. C 45) a charge had been made against the prisoner before the Lord Mayor of London for forgery, but the complainant failed to make such a case as would warrant a commitment. After this, the prisoner was examined before commissioners in bank- ruptcy, in relation to the same transactions. Upon his trial, upon an indictment for forgery, his statements, when examined before the commissioners, were offered in evidence and were received. The question was subsequently presented to the fif- teen judges. It was insisted that, the prisoner having been compelled to testify, his answers were not admissible as evi- dence against him. But the judges were of opinion that the evidence was properly received. In the case of Broughton, tried in North Carolina, (7 Iredell, 96) the defendant had been examined on oath before the grand jury touching the murder for which he was subsequently indicted. On the trial, his statements before the grand jury were offered in evidence and received. Upon an application for a new trial it was insisted that the testimony before the grand jury ought not to have been received, because, having been given under oath, it was not voluntary. The motion for a new trial was denied. Ruffin, Ch. J., said, " It is certainly no objection to the evidence, merely that the statement of the prisoner was given by him as a witness under oath. He might have refused to answer questions when he could not do so with- out criminating himself, and the very ground of that rule of law is, that his answers are deemed voluntary and may be VOL. I. 52 410 DECISIONS IN CRIMINAL CASES. The People . Hendrickson. used afterwards to criminate or charge him in another proceed- ing. Such is clearly the law." The only valid objection that can be taken to any extra-judi- cial confession is, that it was not voluntary. No witness is bound to answer any question, when the answer will tend, in the least degree, to criminate him. Of this he is made the judge. If, waiving the right to object on this ground, he proceeds to answer, his statements are to be regarded as vohm tary and may be used against him for all purposes. (2 Stark. Ev. 50; 1 Phil. Ev. t Cowen fy H. ed. 110; Roscoe's Cr. Ev., ed. 1852, 38; 1 Greenleafs Ev., 219.) In every such case, therefore, the proper inquiry is, not whether the statement was made under oath, but whether it was free and voluntary, or was made under the influence of fear or hope. In the one case, the confession may always be proved in the other, never. There may be difficulty in determining whether a confession has been made under the influence of hope or fear, but, that question being determined, the question of admissibility is also deter- mined. I am aware that there are three or four reported cases which have been regarded as sustaining a different doctrine. The princi- pal of these are Lewis's case, (6 Can. and P. 16 J) Davis' s case, (6 Carr. and P. 177) and Owen's case. (9 Carr. and P. 238.) These are the cases principally relied upon as sustaining the doctrine that a statement made upon oath is not to be regarded as vol- untary, and therefore not receivable as evidence. A brief examination of these cases will show, I think, that, instead of sustaining the position in support of which they are cited, they may all be referred to the general criterion in respect to the admissibility of extra-judicial confessions already stated. In Lewis's case the charge was poisoning. The magistrate, on the day he committed the defendant, had summoned her with several other persons before him and examined them all on oath touching the poisoning. When he had concluded the ex- amination he committed Lewis for trial. Baron Gurney, upon the trial, refused to receive the examination, thus taken, as evidence. He said that as the deposition had been taken at ALBANY, DECEMBER, 1853. The People v. Hendrickson. the same time as all the other depositions on which she was committed, and on the very same day on which she was com- mitted, he did not think it was receivable. He added, also, that he did not think the examination was perfectly volun- tary. In Davis's case, a father and daughter had together been indicted for receiving stolen goods. Upon the trial, it appeared that the daughter had been examined as a witness against her father before the committing magistrate. It was proposed to prove what she then said, but Baron Gurney refused to hear it. He said, " if, after having been a witness, you make her a pri- soner, nothing of what was said then, can be admitted as evidence." In Owen's case, (9 Carr. and P. 83 and 238) there were three defendants. They were twice tried once for rape and then for murder. Before the Coroner's inquest was held, they had all been arrested, and they were brought before the coroner in custody. They were each asked whether they wished to give evidence, and each said he did. They were then sever- ally sworn and each made his statement upon oath. These statements were offered in evidence. It was conceded by the counsel for the defendants that, if they had come voluntarily before the coroner as witnesses, their statements would have been evidence against them. He placed his objection upon the ground that they had been brought before the coroner as prisoners, and not as witnesses. They had been treated by the coroner as persons charged with crime, and not as witnesses, for before they were examined, he inquired whether they were desirous of giving evidence. Under such circumstances, the examination might well be regarded as judicial in its char- acter, and not as a mere examination of witnesses; and yet, upon the first trial, the prosecution was allowed to prove their statements. Upon the trial for murder, the evidence was ex- cluded by Baron Gurney and, I think, properly. The exam- ination itself was illegal, and the statements could not be regarded as voluntary. The examination of a party in custody upon a charge of crime has never been allowed to be taken upon oath, and it is well settled that where a judicial examina- 412 DECISIONS IN CRIMINAL C^SES. The People v. Hendrickson. tion is rejected for irregularity, proof of the statements made upon such examination will not be received. Besides these three cases, which, it should be observed, are all nisi prius decisions, and made, too, by the same judge, Wheeley's case (8 Carr. and P. 250) has been referred to for the same purpose. In that case, the defendant had been accused of poisoning his wife. He had been brought before the coroner, upon the inquest, in custody. He there made a statement which, when offered in evidence against him upon his trial, purported to have been made upon oath. Baron Alderson held that, being made upon oath, it could not be re- ceived. The report of the case is very meagre, but enough appears to show that the defendant was brought before the coroner as a party accused, and not as a witness. This case was referred to upon Owen's first trial, which took place the next year. (9 Carr. and P. S3.) It is there stated that Baron Alderson had rejected the statement of the defendant, because it was on oath, and taken while the defendant was in custody. Williams, J., said he knew that his brother Alderson had rejected the evidence, but that he also knew that there had been a reaction in opinion, and he would therefore receive, the evidence. It is stated elsewhere that Baron Alderson was in the next court at the time, and that Justice Williams had con- sulted with him. See Joy on the Mmissibility of Confessions t 63. Mr. Greaves, the learned editor of Russell's Treatise on Crimes, in a note referring to the cases of Lewis and Davis, above cited, says that, after the decision in Wheater's case, it may perhaps be doubted whether the fact that the prisoners had been examined on oath as witnesses was a sufficient reason for rejecting their depositions. (2 Russ. on Crimes, Phil. ed. of 1852 856, note.) If the depositions offered in evidence were to be regarded as having been made by witnesses, then, obviously, they are within the principle of Wheater's case, and ought not to have been rejected. If, on the other hand, they are to be considered as the judicial examination of a party accused or suspected of crime, as I think they may be, although such NEW YORK, DECEMBER, 1852. The People v Hendrickson. examination may have been irregularly conducted, then they were properly excluded. The rule applicable to such cases is, I think, accurately stated b> Joy, in the treatise above cited. " A statement," be says, " not compulsory, made by a party, not at the time a prisoner under a criminal charge, is admissible in evidence against him, although it is made upon oath." The same writer adds, that " there are conflicting opinions of judges at nitsi prius on this point, but the proposition appears to be established by high authority." Mr. Phillips, 1oo, in his last edition, after noticing the decisions on the subject, says. " it may be laid down generally, (citing Wheater's case, among others, for the position,) that a statement upon oath by a per- son, not being a prisoner, and when no suspicion is attached to him, the statement not being compulsory, nor made in pursu- ance of any promise of favor, is admissible in evidence against him." See Roscoe's Crim. Ev., (Phil. ed. of 1852,) 50. The author can not be understood as using the term " suspicion " in its proper sense. It can not be that the fact whether or not some person may have entertained an undisclosed opinion or conjecture, in respect to the guilt of the party, can be made a criterion for determining whether a confession is admissible in evidence or not. The suspicion must have so far become tangible as to make it the subject of proof. The party must, at least, have been accused though he may not have been arrested. That this is so, is evident from the facts in Wheater's case, upon which, chiefly, Mr. Phillips relies in support of his proposition. Wheater had been accused of forgery. He had been arrested upon the charge and brought before the Lord Mayor for exam- ination. The proof against him not being sufficient to warrant a commitment, he was discharged. After this, he was exam- ined as a witness in some bankrupt proceeding. Having been indicted for the forgery, his statements as a witness were received in evidence against him. Of all the English cases that have been cited, this alone was brought before the fifteen judges. The decision was sustained. 414 DECISIONS IN CRIMINAL CASES. i The People v. Hendrickson. It was held that, inasmuch as the defendant, \vhen he testified, was not charged with the crime, and had not objected to answer, as he might, on the ground that his statements might have a tendency to criminate him, such statements might be proved as his voluntary confessions. If the mere fact that somebody had thought the defendant guilty of the crime, at the time he testified, would have been sufficient to exclude the evi- dence, the proof of this fact was at hand. But he was exa- mined as a witness in a legal proceeding. He was not then under accusation for the crime, and, under these circumstances, it was deliberately adjudged that what he said was to be regarded as his voluntary confession. Broughton's case, already noticed, is to be regarded as sustaining the same doctrine. From this review, I think it must be apparent that it is only when a party accused has been examined on oath that his statements are to be rejected when offered in evidence against him. The general rule, that what a person says, w r hen exam- ined as a witness in a legal proceeding may be used in evidence against him, has not been restricted or qualified. The witness speaks at the peril of having his statements turned against himself. He may refuse to answer any question, the answer to which may tend, in any degree, to involve him in a criminal charge. If, waiving this privilege, he proceeds to testify, his statements, though upon oath, are to be regarded as free and voluntary, and are received as evidence against him. It has been said that the very fact that a witness objects to answer will excite suspicion, and may thus tend to involve him in an accusation. This may be so. A refusal to answer a pertinent question may be supposed to betray conscious guilt; but against this the law has furnished no protection. It guards the witness against involuntary self-crimination but not against the unfavorable surmises which his refusal to answer may sug- gest. It is only because his answer, if given, will be deemed to be voluntary, that a witness is excused from answering in any case. In the case before us, the defendant was examined before the coroner's inquest, in the capacity of a witness. -He had not ALBANY, DECEMBER, 1853. The People e. Hendrickson. then been accused; nor was he, in any legal sense of the term, suspected of the crime for which he was subsequently indicted and tried. He had the same right as any other witness to de- cline answering any question, if, in his own opinion, the answer would tend to involve him in a criminal charge. If, after having so declined, he had still been required to answer, what he said could not have been used against him. Having testified, and having omitted to avail himself of his privilege to decline answering, his statements must be deemed free and voluntary, and were properly received in evidence against him upon the trial. I think, too, that evidence of the conversations between the defendant and his wife, and also the conversation between the defendant and his brother-in-law, Hungerfordj was properly received. The defendant was charged with the murder of his wife. The marital' relation existing between them furnished a strong presumption in favor of his innocence. In the absence of proof to the contrary it was to be presumed that he loved her and would protect her. It was important, therefore, for the prosecution, if it could, to repel this presumption by proof that the defendant had dis- regarded the claims of connubial duty. For this purpose, evidence tending, however slightly, to show an alienation of affection any thing from which a jury might infer a desire to be free from the burden of one who was no longer the object of regard, was competent. Suppose it could have been proved that the defendant had said that he hated his wife, and wished to be rid of her, would any one doubt that this might be proved to rebut the presumption that he loved her? So any conduct or declarations evincing unkindness or disrespect, though less decisive in their character as evidence, were admissible as tending to show the state of the defendant's feelings towards his wife. Nor do I think it was error to allow the will of Van Deusen, the defendant's father-in-law, to be given in evidence. By that will, the wife of the testator had become entitled to the whole estate for life. It was only upon the death of her 416 DECISIONS IN CRIMINAL CASES. The People v Hendrickson. mother, that the defendant's wife would receive any part of her father's property. Though the evidence may not have been very important, it was not irrelevant to show that any pecuni- ary expectations which the defendant might have entertained, by reason of his alliance with the family, had been disappointed As this is a case involving the life of the defendant, I have examined it with a disposition to give him a new trial, if any, even the slightest error should be found to have been commit- ted. But, upon the most deliberate and anxious consideration of all the questions presented, I am constrained to say that I find no error in the proceedings. The judgment of the court of Oyer and Terminer should, therefore, be affirmed. Judgment affirmed.(a) (a) The judgment in this case was affirmed by the court of appeals at the March term, 1854. The cause had been argued in that court at the previous January term by John K. Porter, for prisoner. Hamilton Harris, (Dist. Att'y), for the people. The following opinion was delivered by PARKER, J. The wife of Hendrick- son died on Sunday, the 6th of March. On the evening of the next day a coroner's inquest was held, before which Hendrickson was sworn and examined as a wit- ness. He stated the circumstances attending the death of his wife When inter- rogated as to his having been in Albany, he said he had been there "two weeks ago last Saturday;" and when asked if he had not been there since, he said, " O, yes, I believe I was there a week ago last Saturday," as if correcting himself; and on being further interrogated, said, " I was there last Saturday." He further stated the object of his going to Albany, and mentioned several places in the city where he had been, but said he did not remember having been into Spnngsteed's drug store or any other drug store. Upon the trial at the Oyer and Terminer, the counsel for the prosecution of- fered to prove the statement so made at the coroner's inquest. The counsel for the prisoner objected to the evidence, on the ground that what the prisoner swore to on that occasion was not a voluntary statement. The objection was overruled and the evidence received, to which the counsel for the prisoner ex- cepted; and the alleged erroneousness of that decision constitutes the first ground on which the prisoner relies for a reversal of the judgment. I. The general rule is, that all a party has said which is relevant to the questions involved in the trial, is admissible in evidence against him. The exceptions to this rule are where the confession has been drawn from the prisoner by means of a threat or a promise, or where it is not voluntary, b- ALBANY. DECEMBER, 1853. The People v. Hendrickson. cause obtained compulsorily or by improper influence. It is not claimed in this case, that the statement in question was obtained by means of any promise or threat, or by any inducement whatever; nor is it supposed that there was any compulsion or any influence affirmatively exercised upon the mind of the pri- soner, beyond what is sought to be inferred from the fact, that he was required to testify as a witness. But it is contended that because he was so required to testify, upon a general inquiry into the cause of the death of his wife, his statement was not voluntary, and should have been excluded. The record shows that the objection at the trial was placed only on the ground that the statement was not voluntary. Hendrickson was not in custody. He made no objection to being sworn as a witness, or to answering any question that was put to him. He was treated in every respect, like the other witnesses. At the time of his examination, no circumstances had been developed warranting a suspicion against him. The post mortem examination did not take place till the next day, and it was not until the second day after his testimony before the coroner's inquest that he was arrested under a warrant issued, not by the coroner, but by a police justice of the city of Albany. His statement as a witness was in no respect an ad- mission of guilt. On the contrary, it was a denial of material facts attempted. on his trial, to be established by other witnesses. His testimony was calcu- lated to ward off suspicion from himself, not to attract it towards him. The question presented, therefore, is, whether, under the circumstances, the statement of a witness is to be excluded on the ground that it was not voluntarily made. Several English nisi prius decisions were cited on the argument, which it its necessary to examine. Merceron's case, ( 2 Starkie, R. 366,) decided in 1818. was an indictment against a magistrate for having corruptly and improperly granted licences to public houses which were his own property. ABBOT, J., permitted the prose- cution to prove what the defendant had said in the course of his examination before a committee of the House of Commons, appointed for the purpose of in- quiring into the police of the metropolis, though it was objected that the statement had been made under a compulsory process from the House of Com- mons, and that the declarations were not voluntary. In the case of Ha worth. (4 Carr. and Payne, 254.) decided in 1S30, it ap- peared that before the prisoner was charged or suspected, a person named Shearer had been examined on the charge of forgery, and that the prisoner was called as a witness against Shearer, and his deposition taken. The counsel for the prosecution proposed to read this deposition as evidence against Haworth, which was objected to. Justice J. PARKE said, " I think that I ought to receive this evidence. The prisoner was not, when he made this deposition, charged with any offence, and he might, on that as well as on any other occasion when called as a witness, have objected to answer any question which might have a tendency to expose him to a criminal charge; and not having done j->, his deposition is evidence against him. VOL. I. 53 418 DECISIONS IN CRIMINAL CASES. The People v. Hendrickson. In a note, by the reporter, to this case; it is said, that in a case tried at Worcester, where it appeared that a coroner's inquest had been held on the body of A, and it not being suspected that B was at all concerned in the mur der of A, the coroner had examined B upon oath as a witness. PARKE, J., would not allow the deposition of B so taken on oath on the coroner's inquest to be read in evidence, on the trial of an indictment afterward found against B for the same murder. I can not find that this anonymous case is anywhere reported more fully, It would be much more satisfactory, to know the particular circumstances of the case and the grounds for the decision. Without them, it is entitled to but little weight as authority. And so it seems to have been viewed by LITTLE- DALE, Justice, in the case of Rex agt. Clewes, tried before him during the same year, and reported as to other points in 4 Carr. and P., 221. In Mr. Greaves' note w, $ Russ. on Crimes, SCO, 7 Jim ed., on the authority of his manuscript notes, he says, the grand jury asked L ITT LED ALE, J., " Can evidence of a prisoner who was examined on oath before the coroner as a witness be ad- mitted as evidence against the same person, when subsequently indicted for the murder of the person on whose body the inquest was held? 1 ' LITTLEDALE, J., answered in the affirmative; when, the case referred to in the anonymous nott being mentioned, the judge (Littledale) directed the grand jury to receive the evidence and leave the point for discussion on the trial. Tubby's case. (0 Carr. and P., 530.) tried in 1833, was an indictment for burglary. Andrews, for the prosecution, proposed to read a statement made upon oath by the prisoner, at a time when he was not under any suspicion. Pendergast objected that it was a violation of the rule of law, which held that a prisoner should not be sworn. VAUGHAN, B., said, " I do not see any ob- jection to its being read, as no suspicion attached to the party at the time. The question is, is it the statement of the prisoner under oath? Clearly it is not, for he was not a prisoner at the time he made it." In Rex agt. Lewis, (6 Carr. and P. 161.) decided also in 1833, several per- sons, one of whom was the prisoner, were summoned before the committing magistrate touching the poisoning of C. No person was then specifically charged with the offence. The prisoner was sworn, and made a statement, and at the conclusion of the examination she was committed for trial. It was held that this statement was not receivable in evidence against the prisoner. GURNEY. B., said this case was quite distinguishable from that of Rex agt. Tubby, and that under the circumstances he should have agreed with his brother Vaughan. ' But (he said) this being a deposition made by the pris- oner at the same time as all the other depositions on which she was committed, and on the very same day on which she was committed. I think it is not re- ceivable. I do not think this examination perfectly voluntary." It has been supposed the prisoner was brought before the magistrate on a charge or suspicion of guilt, but Greaves says, in his notes. (2 Russ. on Cr. 857, 7 Jim. ed. note n.) that he was counsel in this case, and that the prisoner was sum- moned in the ordinary way, as a person who could give some evidence touching the matter, and not because any suspick n attached to her. ALBANY. DECEMBER, 1653 . 419 The People . Hendrickson. In Rex agt. Davis, (6 Carr. and P. 177,) also decided in 1833, the daughter had been examined as a witness before the committing magistrate against her father, and was then committed as a joint receiver of stolen goods with him. Her statement was excluded as evidence against her on the trial by GURNKY B., on the same ground, as in Rex agt. Lewis. In regard to this case, Mr. Greaves says. (2 Russ. on Cr. 8-37, note n, 7 Am. ed ,) that the ground of the decision was, not that there was a suspicion in the mind of the magistrate, or even that the prisoner might be aware that there was such a suspicion, but that t"he prisoner had been examined on oath as a witness, and says, that after the decision in the late case of Rex agt. Wheater, (to which I shall refer hereafter.) it may be doubted whether that was a sufficient reason for rejecting the deposi- tion. In Regina agt. Wheeley, decided in 1838, (8 Carr. and P. 250,) a party who was charged with murder made a statement before the coroner at the in- quest, which was taken down. The paper purported that the statement was made on oath. Aldeison, B., held on the trial of the party for murder, that the statement was not receivable, and that parol evidence was not admissible to show that no oath had in fact been administered to the prisoner. If this was a case of the examination of a prisoner, and not of a witness, as it has been understood to be by commentators, (Russ. on Cr. 85-3 and SGO, and notes.} its correctness will not be questioned, and it can have no bearing upon the question now before us. The next case, in order of time, was Regina agt. Wheater, (2 Moody's Crown Cases, 4-3.) decided in 1838, which was an indictment for forgery. On the trial, before COLRIDGE J., 'the examination of the prisoner previously taken on oath, as a witness, before the commissioners of bankruptcy, concerning the bills alleged to be forged, was held admissible as evidence against him. The opinion of all the judges, was desired on this point, and the case was argued be- fore all the judges, except Park, J.J and Gurney, B., who held that theevidence Had been properly received. In Retina agt. Owen and al, (9 Carr, $ P. 83,) tried in 1839, the defend- ants were indicted for rape. The prosecution offered to prove the statements made by Owen on oath at the inquest held on the body of the person ravished, while the defendants were in custody. The counsel for the prisoners admitted that where witnesses had been examined voluntarily, their deposition might afterward be read against them; but objected that these defendants were in custody, and cited the case of Wheeley, where Baron Alderson rejected the deposition because it was on oath and taken while in custody. But WILLIAMS, J.. said, u I know that my brother Alderson did so; but I also know that there has been a reaction in opinion, (if I may be allowed the expression.) I shall therefore receive the evidence and reserve the point, if it shall become neces- sary." It is said that Baron Alderson, who had tried Wheeley's case, was in the next court, at this time, and that Williams, J., had consulted with him in an earlier part of the case. (Joy on Confessions. 62.) In Regina agt. Owen and others, (9 Carr. $ P. 248,) the same defendant tried in 1840 for the murder of the person ravished; and Gurney, B. re 420 DECISIONS IX CRIMINAL CASES. The People v. Hendrickson. fined to receive in evidence the deposition on oath of the prisoners taker, before the coroner's inquest, though it must have been known they had been received on the previous trial of the same prisoners for rape. Baron GuRNEY, however, cited Wheater's case, then recently tried before Colriedge, and admitted he could not, on principle, see the distinction between that and some of the other cases. In the later case of Regina agt. Sandy's (1 Carr 4" Marsh. 34-5,) decided in 1841, the prisoner was tried for murder, and ERSKINE, J. admitted in evidence her deposition taken at the coroner's inquest, and reserved the point for the consideration of the fifteen judges. All the decisions to which I have referred, except that in the case of Wheater, were made at nisi prius, and their general current is certainly in favor of the admissibility of the evidence in question; but to give them, or any of them, much weight as authority, it is necessary to understand the reasons that go- verned, and to see on what principles they are based. Without that, decisions made at the assizes, necessarily without time for consultation and examination, can avail but little in deciding a controverted question of law. So far as the evidence was rejected on .the ground that the statement was on oath, as in the case of Davis and others, it must now be regarded as settled by the decision of all the judges in Wheater's case above cited, that that, of itself, constitutes no objection. Mr. Joy, in his treatise on the admissibility of con- fessions, reviews all the decisions at nisi prius, apparently conflicting, and comes to the conclusion that the decision by all the judges in Wheater's case establishes the principle that a statement not compulsory, made by a party not at the time a prisoner under a criminal charge, is admissible in evidence against him, although it is made upon oath. (Joy on Confessions, 8, 62.) It is now regarded as a well settled rule, and recognized in the elementary books, that where a witness answers questions upon examination on a trial tending to criminate himself, and to which he might have demurred, his an- swers maybe used for all purposes. (2 Starkiis Ev. 50; Roscoe's Cr. Ev. 45.) Such answers are deemed voluntary, because the witness may refuse to answer any question tending to criminate him. (1 Green. Ev. 22-5.) If, however, he should be compelled to answer after claiming his privilege, his answer will be deemed compulsory, and can not be given in evidence against him. Where the evidence offered has been rejected on the ground that the state- ment was made when the prisoner was in custody charged with crime, as in AVheeley's case and Owen's case, it seems to me clear that it was properly excluded. Because these were cases of the examination of a prisoner, not of a witness. In such cases it is a judicial examination, and it should not be on oath, and certain precautions for the protection of the accused are always ob- served. In this state such examinations are regulated by statute. (2 R. S. 2 id. 794.) But neither is the statute, nor were the common law rules of which it is declaratory, applicable to any examination except that of a person brought before a magistrate on a charge of crime. All other examinations are classified as extra judicial, (Green. Ev. 216,) and are to be conducted like other case? of the examination of witnesses. ALBANY, DECEMBER, 1853. 43 j The People v. Hendrickson. It is evident that in deciding the case of Lewis, above cited, the mind of the presiding judge was influenced to some extent by the supposition, that the facts peculiar to it gave to the testimony the character of a judicial examina- tion, for Baron Gurney lays stress upon the facts that the deposition was made at the same time as all the other depositions on which she was committed, and on the same day on which she was committed. In both these resemblances to a judicial examination, the case of Lewis differs from that now before us; for Hendrickson was arrested on a complaint made before a different magistrate, and on a subsequent day. It is unnecessary, therefore, to express an opinion as to the soundness of the reasons given by Baron Gurney for bis decision in the case of Lewis. The examination of a witness before a coroner's inquest bears even less re- semblance to a judicial examination than that taken before a committing ma- gistrate or a grand jury. A coroner's inquest may be held in all cases of sud- den death, but an examination before a committing magistrate or a grand jury takes place on complaint made that a crime has been committed. It is only where a person is charged with crime and is examined with regard to the truth of such charge, that his examination can be considered judicial. In the case of the State agt. Broughton, (7 bedell's Rep. 96,) decided in North Carolina in 1846, where the grand jury were investigating an offence with a view to discover the perpetrator, and the person who was subsequently indicted was examined before them on oath and charged another with the commissiou of the offence, it was held that the examination might be given in evidence against the prisoner on the trial of his indictment. RUFFIN, Ch J., said, how- ever, that if the evidence given by the prisoner had been a confession of his guilt, and the grand jury had found a presentment on it, the court would have held that it could not be given in evidence against him. It is not material to the decision of this case to inquire whether the chief justice was right or not in the distinction he made between a confession and a statement not a confes- sion, because neither in that case nor in the one now before us was there any confession. Both statements tended to turn attention away from the witness. I am inclined, however, to think the chief justice erred in the case of Broughton, in the reason assigned for his decision. For the law seems to be that the rule as to confessions applies not only to direct confessions, but to every other de- claration tending to implicate the prisoner in the crime charged, even though in terms it is an accusation of another, or a refusal to confess. (Green. Ev. 219, note 2, and cases there cited.) But while the decision in the case of Broughton is in accordance with the ruling in the case before us, the reason given for that decision, if it be erroneous, does not conflict with such ruling. Independent of any supposed authority, I do not see how, upon principle, the evidence of a witness not in custody and not charged with crime, taken either on a coroner's inquest, or before a committing magistrate or a grand jury, could be rejected. It ought not to be excluded on the ground that it was taken on oath. That reason would exclude also the statements of wit- nesses on the trials of issues. The evidence is certainly none the less reli- able because taken under the solemnity of an oath. No injustice is done to 422 DECISIONS IN CRIMINAL CASE&. The People v. Hendrickson. the witness, for he was not bound to criminate himself, or to answer in re- gard to any circumstance tending to do so. If it is a good ground of exclusion that the statement was made as a witness on oath, the rule of law that pro-* tects a witness from criminating himself is of no value, and may at once be abrogated. The rule was adopted upon the supposition that the answer might be introduced in evidence against the witness. If it can not be, the witness has no longer any reason for claiming his privilege. Nor can the exclusion of the evidence depend on the question whether there was any suspicion of the guilt of the witness lurking in the breast of any person at the time the testimony was taken. That would be the most dangerous of all tests, as well because of the readiness with which proof of such suspi- cion might be procured, as of the impossibility of refuting it. Besides, the witness might have no knowledge of the existence of any suspciion, so that his mind could not be affected or his testimony influenced by it. It is only when he is charged with crime and examined on such charge, that there is good reason for treating him as a party to the proceeding. The common law has been as tender of the rights of witnesses as of parties. It is the policy ot the common law never to compel a person to criminate himself. That policy secures as well to a witness as to a party the privilege of declining to answer. The former is supposed to know his rights the latter is to be specially instructed in regard to them by the presiding magistrate. But if either fail to avail himself of the privilege, his answer is deemed volun- tary, and may be used as evidence. It is only upon a judicial examination, viz.: in the case provided for by statute where the prisoner is brought before a magistrate charged with crime, that the preliminaries required by statnte are to be observed, and the examina- tion taken without oath. All other examinations are extra judicial. The 'former is the examination of a party, the latter of a witness. In all cases, as well before coroner's inquests as on the trial of issues in court, when the wit- ness is not under arrest, or is not before the officer on a charge of crime, he stands on the same footing as other witnesses. He may refuse to answer and his answers are to be deemed voluntary, unless he is compelled to answer after having declined to do so; in the latter case only will they be deemed com- pulsory and excluded. Applying these rules to the case before us, Hendrick- son's answers before the coroners inquest were voluntary, and were properly received as evidence against him II. The second ground on which the prisoner asks a reversal of the judg- ment is. that the will of Lawrence Van Deusen, the father of the deceased, was improperly admitted in evidence. The will was dated 1st November, 1851, and by it the testator devised all his property to his wife for life, and after her death to his three children, Lawrence Van Deusen, Maria Hendrick- son, (the deceased,) and Susannah Hungerford, one moiety to Lawrence Van Deusen, and the remaining moiety to be equally divided between 1 Maria Hendrickson and Susannah Hungerford. By the will, therefore, the deceased would have recieved one fourth part of the estate after the death of her mother. This evidence was received as bearing upon the question of, motive. If it ALBANY, AUGUST, 1853. The People v. Hendrickson. tended, in the least, to show that the prisoner had been disappointed in the pecuniary expectations he had entertained from his alliance with the family, in not being able to realize them till after the death of his wife's mother, and then not in an equal proportion with the brother; or, if it tended to show how little property he might expect from his wife, if she lived in either case whether the supposed motives was resentment or avarice, it was properly re- ceived. It was competent to show whether the prisoner would gain or lose by the death of the deceased, and to compare the small amount expected to be realized at a distant day with the intermediate burden of her maintenance. Taken in connection with the previous testimony, tending to show a want of affection on the part of the prisoner toward his wife, this evidence was clearly admissible. Considerable latitude is allowed on the question of motive. Just in proportion to the depravity of the mind, would a motive be trifling and insignificant, which might prompt to the commission of a great crime. We can never say the motive was adequate to the offence; for human minds would differ in their ideas of adequacy, according to their own estimate of the enormity of crime, and a virtuous mind would find no mo tive sufficient to justify the felonious taking of human life. I think the evidence of the will was properly received. It was the province of the jury to determine the weight to which it was entitled. My conclusion is, that there was no error committed on the trial, and that the judgment of the supreme court should be affirmed. DENIO. JOHNSON, RUGOLES AND EDWARDS, JJ., concurred. SELDETN, J. , delivered an opinion expressing his dissent upon both points discussed in the above opinion. ALLEN, J., dissented upon the first ground dis- cussed in the above opinion, and GARDINER, Ch. J., read an opinion concurring upon the first point and dissenting upon the second. Upon each separate point therefore the judgment was affirmed by a vote of 6 to 2. 424 DECISIONS IN CRIMINAL CASES. SUPREME COURT , Onondaga General Term, October, 1853. Pratt, Gridley, W. F. Jillen and Hubbard, Justices. THE PEOPLE vs. ABIGAIL STOCKHAM, impleaded, &c. A bill of exceptions lies only to correct an erroneous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court, to which an exception was taken at the time. In a case where the sufficiency of an indictment is not involved in some decision made, or opinion advanced, at the trial, the only mode of reaching a defect .'n the indictment is on a motion in arrest of judgment, or by a writ of errca brought on the record of judgment itself. If an indictment for a statutory offence alleges all the facts which the statute requires to constitute the offence, this, as a general rule, is sufficient. Where an indictment charged that the accused administered to one A. D., a pregnant woman, a certain medicine and drug, and used and employed upon her body a certain instrument, with intent to procure the miscarriage of the said A. D., contra formam statuti, fyc., Held that the facts charged were suf- ficient to constitute a misdemeanor, under the act of May 13, 1845 to prevent the procurement of abortion. The decision in The People v. Lohman, (2 Barb. S. C. Rep. 220,) upon this point approved and adopted. It is a matter of discretion with the court to allow the district attorney to try prisoners who are jointly indicted, for a mindemeanor jointly or separately, as it seems best to consist with the advancement of justice; and the court has no power to correct any error in the exercise of that discretion upon a bill of exceptions. That discretion may be exercised by an order made on the motion of the dis- trict attorney, as well as on that of the prisoner's counsel. Motion for a new trial upon a bill of exceptions. An in- dictment was found at the court of Oyer and Terminer held in and for the county of Onondaga, in June, 1852, against Hiram Adams, Elijah Thomas, Washington Stockham and Abigail Stockham. It alleged that the defendants on the first day of March, 1852, " did administer to one Almira Davenport, a pregnant woman, and did prescribe for the said Almira Daven- port, being then and there a pregnant woman, and did advise and procure the said Almira Davenport, a pregnant woman, then and there to take a certain medicine, and drug, and sub- stance, of a name to the jury unknown, and then and there, use and employ upon the body of the said Almira Davenport, a cer- OXONDAGA, OCTOBER, 1853. 425 The People v. Stockham. tain instrument, of a name and description to the jury unknown, with intent thereby, then and there, to procure the miscarriage of the said Almira Davenport, against the form of the statute in such case made and provided, and against the peace," &c. Elijah Thomas, one of the persons thus indicted died, in June, 1852, and before he was arraigned thereon, or had pleaded thereto. Washington Stockham, Abigail Stockham and Hiram Adams, the other defendants appeared and severally put in the plea of not guilty thereto. On the 16th day of June, 1853, in said court of Oyer and Terminer, the district attorney moved on The trial of Washington Stockham and Abigail Stockham his wife, and not of said Hiram Adams, who was present in court. Adams did not require a separate trial. The counsel for Washington Stockham and Abigail Stockham objected to separate trials of the said Washington Stockham and Abigail Stockham, and claimed that the indictment was a joint indict- ment, and for a joint offence, and that the district attorney had no right to try the persons indicted, separately, and that the statute only allowed separate trials in cases of misdemeanor, when a defendant required it, and then only in the discretion of the court; and the counsel for said Washington Stockham and Abigail his wife, to sustain such objection, then read and filed an affidavit alleging that the husband was not guilty of the offence and that Adams was a material witness for himself and his wife. The court denied the motion, and decided that the trial of said Washington Stockham and Abigail his wife only, might be had, on motion of the district attorney. To which decision the counsel for Stockham and wife excepted. The counsel for the defendants then asked that Adams might be first tried, so that the defendants, Stockham and wife, might, upon their trial, have the benefit of his evidence, to which the district attorney objected, and the court denied the motion, to which the defendant's counsel excepted and the trial proceeded. Almira Davenport was sworn on the part of the people, and gave evidence tending to show, that the said Abigail Stock- ham administered, and advised the administering of powders VOL. I. 54 426 DECISIONS IN CRIMINAL CASES. The People v. Stockham. and medicines to her, the said Almira Davenport, with intent to produce the miscarriage of a child, of which she the said Almira was pregnant. The said Almira Davenport was the only witness on the part of the people, and after the district attorney had rested, the counsel for defendants called the said Hiram Adams as a witness; the district attorney objected tc him, because he was one of the defendants named in said in- dictment, and the court rejected the witness, to which the counsel for the defendants excepted. No other witness was sworn in the cause. The counsel for defendant moved that the said Washington Stockham be discharged, and he was discharged, by the court, on the ground that there was not sufficient evi- dence against him, of the commission of a joint offence with Abigail Stockham. There was no evidence to show that the said Abigail Stockham used instruments or other means to pro- duce a miscarriage, except as above stated. The jury found a verdict of guilty against Abigail Stockham. B. D. JVbxon, for the prisoner. R. H. Gardner, (Dist Att'y,) for the People. By the Court, GRIDLEY, J. The prisoner was jointly indicted with her husband and two other persons, under the act passed in May, 1S45, for a misdemeanor in administering to a preg- nant woman a drug or medicine with the intent to procure the miscarriage of the patient. The district attorney was about moving on the trial of Mrs. Stockham and her husband, (Tho- mas, one of the defendants, having died after the indictment was found,) when the counsel of the prisoner applied to the court to have her tried jointly with the other defendant, Adams. In support of this motion the husband of Mrs. Stockham made an affidavit stating that he was not guilty of the offence charged in the indictment, and that Adams was a material witness for himself and his wife. The motion wao opposed by the public prosecutor, and was denied by the court. The trial proceeded and the jury convicted the prisoner and acquitted her husband. ONONDAGA, OCTOBER 1853. 407 The People v. Stockham. A bill of exceptions was taken to the ruling of the court. A new trial is now asked for on two grounds: 1st. Because the indictment is defective, and charges no offence. 2d. Because the court should have compelled the district attorney to try the prisoner jointly with the defendant Adams. I. Upon the first question presented upon the argument, we are met in the outset with the objection that there is no way of reaching the alleged defect upon the bill of exceptions. There has been no judgment pronounced, and no question was raised on the trial respecting the sufficiency of the indictment. There is no decision of the court on any question arising upon the indictment to which an exception has been taken. The point has been argued as though it arose on a writ of error brought on the record, after judgment. This however is not the fact, and a bill of exceptions only lies to correct an errone- ous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court, to which an exception was taken at the time. In a case where the sufficiency of the indictment is not involved in some decision made, or opinion advanced at the trial, the only mode of reaching a defect in the indictment is on a motion in arrest of judgment, or by a writ of error brought on the record of judgment itself. Nevertheless as this point was fully argued by the counsel, we have examined it, and have come to the conclusion that the indictment is sufficient. It alleges all the facts which the statute requires, to constitute the offence under the act of 1845. This, as a general rule, is sufficient. (People v. Taylor, 3 Denio, 91). The indictment also alleges, after enumerating all the ingredients of the offence, that it was com- mitted against the form of the statute in that case made .and provided. It is expressly decided in the case of The People v. Lohman, (2 Barbour, 220,) that the facts charged in the indict- ment in this case, are enough to constitute a misdemeanor under the act. The opinion contains a very well reasoned argument on the very point involved in the case under consid- eration; and we are satisfied with the conclusion to which the court arrived and adopt it in the present case. 428 DECISIONS IX CRIMINAL CASES. The People v. Stoctham. II. Upon the second ground on which we are asked to grant a new trial, there is a similar objection to the argument, viz* that the error did not occur in any decision made on the trial. It occurred, if at all, on the decision of a motion made before the jury were empanneled, and before the trial was commenced. It was not strictly the subject of an exception. It was a mat- ter of discretion to grant the motion or not. Our statute reads as follows: " Whenever two or more defendants shall be jointly indicted for a felony, any one defendant desiring it shall be tried separately. In other cases defendants jointly indicted shall be tried separately or jointly in the discretion of the court," If the defendants have not a right to be tried jointly, in other words, if it be a matter of discretion with the court to allow the district attorney to try the prisoners jointly or sepa- rately as it seems best to consist with the advancement of jus- tice, then it is clear that no bill of exceptions lies to correct any error that we may suppose was committed by the court, in the exercise of that discretion. (See People v. Barker, 3 Hill, 159; Rapelyea v. Prince, 4 Hill, 119.) In the first volume of Baldwin's Rep. page 75, 81, it is said by the court: " It is now settled that separate trials are a mat- ter of discretion and not of right. If in the opinion of the dis- trict attorney public justice requires a joint trial, the court will not direct separate trials, except under very special circum- stances. As a general rule, the prosecutor has a right to select his course, and the court will not undertake to control him." We have already shown that our statute expressly reserves the right to the court to decide, as a matter of discretion, whether the trial of an indictment for misdemeanor shall be joint or separate. That discretion may be exercised by an order made on the motion of the district attorney as well as on that of the prisoner's counsel. The district attorney may have been fully prepared to try the prisoner Stockham, while he may have been unable to procure witnesses to try Adams. If compelled to try them all jointly, Adams would escape. If he should postpone the trial of all the defendants, he might never be able to get the attendance of his witnesses against the Stockhams again. NEW YORK, DECEMBER, 1853. 429 In the matter of Heilbonn. In fact if the defendants are numerous, and all to be tried jointly, unless the prisoners ask for separate trials, it may happen that all can never be tried without great danger that some will escape for the reason of some witnesses who could not be pro- cvred. In fine, the court in its discretion, refused to order a joint trial. We have not the means of reviewing that discre- tion, for we are not informed of the objection of the district attorney to the motion, That discretion was conferred by the statute, and we have not the power to review it, except in very special cases, and then not upon a bill of exceptions. New trial denied. SUPREME COURT. At Chambers. Before Mitchell, Justice New York, December, 28, 1853. In the matter of ALEX. HEILBONN, claimed by the British go- vernment under the treaty of 1842, as a fugitive from justice, on a charge of forgery. The power to issue warrants for the purpose of apprehending fugitives from justice, under the tenth article of the treaty between the United States and Great Britain, concluded on the ninth day of August 1842, and under other treaties between this government and foreign governments is conferred by the act of congress of August 12, 1848, ch. 167, as well upon the judges of the several state courts, as upon the justices of the Supreme Court and the several District Courts of the United States and the commissioners appointed by the courts of the United States. Such warrant can only be issued upon complaint made under oath or affirma- tion, charging some person with having committed one of the crimes enumerated and provided for in the treaty, and if the complaint be insuf- ficient there is no jurisdiction to issue the warrant. Where the charge of the crime is made in the complaint in general terms, and the complaint also contains all the facts on which the charge is made, and from such facts it clearly appears that no such crime has been committed, but some other offence not provided for in the treaty, the complaint itself disproves the general charge and takes away the foundation for the warrant. Where a person had been arrested as a fugitive from justice under a warrant issued by a commissioner appointed by a court of the United States and was 430' DECISIONS IN CRIMINAL CASES. In the matter of Heilbonn. afterwards brought before a justice of the Supreme Court of this state o( habeas corpus for the purpose of inquiring into the cause of his detention with a view to obtaining his discharge, held that it was proper for the jus- tice to look behind the warrant for the purpose of ascertaining whether the complaint made was sufficient to give the commissioner jurisdiction. The proper mode of reviewing a decision of a state judge, made in such case, is by carrying it to the Supreme Court of the state, and from thence to the Court of Appeals, and from thence to the Supreme Court of the United l> fates, if I he decision of the Court of Appeals be against the power claimed una?r the United States law. Where a bill was drawn by the Bank of Ireland on the Bank of England, on the2d July 1853, to the order of Mrs. A. Haliday, for 43, 7s. 6d. sterling, and after several intermediate endorsements, was endorsed to Chas. Macin- tosh A; Co., to order, and the bill came 1o Macintosh & Co by letter, which was sureptitiously taken possession of by Alex. Heilbonn, the prisoner, a clerk for Macintosh & Co.. who wrote the following endorsement on the bill. " Received for Chas. Macintosh & Co , Alex. Heilbonn, No. 9 Vine Street, Regent Street No. 73, Aldermanbury," on which the bill was paid to the prisoner. AeW, that such endorsement did not amount to the crime of forgery, though it appeared that Heilbonn had no authority to endorse bills of exchange or to receive the amount thereof, and that the words ; ' Cnas. Macintosh & Co." were an imitation of the hand writing of a member of the firm, the rest of the endorsement being in the undisguised handwriting of said Heilbonn. And held that the offence of the prisoner belonged to a difk-rent class of crimes and was not one of those provided for in the treaty between this country nnd Great Britain. This was an application on habeas corpus, for the discharge of Alex. Heilbonn from arrest, under a warrant issued against him as a fugitive from justice, by U. S. Commissioner Nelson, under the treaty between the government of the United States and Great Britain, on a charge of forgery. The facts of the case are stated in the opinion of the judge. Mr. Busteed, for the prisoner, made the following points: 1. That the extradition treaty between this country and Great Britain executes itself, and that the act of congress of 3848 was passed only in aid of such treaties as do not, ex vi termini, execute themselves, or provide for their own execution. 2. That the act of congress of 1848, providing a less mea-* sure, and establishing a different rule of evidence from that provided for by the treaty and the constitution, is void and un- constitutional. NEW YORK, DECEMBER, 1853. In the matter of Heilbonn. 3. That the prisoner having been found within the territorial limits of the state of New York, only such evidence as by the laws of this state would be admissible before a state magis- trate, possessing criminal jurisdiction, can be admitted on the hearing before the commissioner; and that it is the statutory and common law right of the prisoner to be confronted by his accuser and the witnesses against him, so as to have them cross-examined on his behalf. 4. That, there is no legal evidence that Muggeridge, (the London alderman,) is a justice of the peace or other magistrate and no evidence as to what crimes the jurisdiction of justi- ces of the peace for the borough of London extends. 5. That there is no evidence or attestation that the papers offered in proof of the criminality of the accused are true copies of the original depositions upon which the original warrant was issued. 6. That the " complaint under oath," required by the tenth article of the treaty and the first section of the act of congress of 1848, is necessary to initiate jurisdiction in the officer issu- ing the warrant here; and that no complaint was made in this case. 7. That the facts alleged against the prisoner do not, if proven, constitute the crime of forgery. Chs. O'Conor, (U. S. Dist. Att'y,) for the government. MITCHELL, J., delivered the following opinion: The prisoner is brought up on a habeas corpus issued by Mr. Nelson as commissioner, appointed by the United States circuit court for this district, under the act of congress for the extradi- tion of fugitives from other countries, pursuant to treaties with those countries, and issued also to the United States marshal for this district. Those officers return, that the prisoner is in the custody of the marshal on a warrant issued by the commis- sioner, charging the prisoner with having committed in Eng- land the crime of forgery, upon the back of a bill of exchange; the warrant orders his arrest, and that he be brought befor the commissioner that the evidence of his criminality might be 432 DECISIONS ll\ CRIMINAL CASES. In the matter of Heilbonn. heard and considered. The prisoner was arrested on the 22d of November, and on the 30th he applied to the commissioner that the examination should take place; the matter was adjourned to the 3d of December, and then he insisted by his counsel that the examination should no longer be delayed. On that occasion it was admitted by the counsel for the prosecution that he would have no further evidence than that on which the warrant issued, except the production of the document alleged to be forged. An adjournment was allowed, notwithstanding the objection of the prisoner; and afterwards this writ was taken out and returned. On the evidence taken on the return, it appears that the only proof on which the warrant issued and on which the further commitment of the prisoner was claimed, consisted of copies of three depositions taken in England, viz.. of George Leigh, Wm. Brockdon and George Bryant; copies of which were produced. Leigh states all the facts of the alleged forgery, Brockdon and Bryant use language which, standing alone, would impute the crime of forgery to the prisoner; Brockdon saying that the endorsement " Chas. Macintosh & Co." appearing on the bill, is a forgery, not written by him or either of his partners nor authorized by them, and he believed it to be the handwriting of the prisoner. But the examination of the two last persons was taken after that of Leigh, and each of them refers to the preceding examination of Leigh as con- taining a copy of the bill of exchange, and Bryant says also a copy of the endorsement thereon. The facts contained in that examination as to the contents of the bill of exchange and of its endorsement must prevail over those general affidavits, especially as Leigh's examination gives a verbatim copy of the bill and its endorsement. Leigh shows that the bill was drawn on the 2d July, 1853, by the bank of Ireland on the bank of England, in London, to the order of Mrs. A. Haliday, for 43 7s. 6d sterling, that it was endorsed by Mrs. Haliday, without restrictio is and not to order then endorsed by Bukhard & Lohne to A. & L. Camphausen, by the last to L. Kneljer, and by him to Chas. Macintosh & Co., to order. Then follows this endorsement, in which the alleged forgery consists: NEW i'ORK. DECEMBER, 1853. 433 In the matter of Heilbonn. Received for Chas. Macintosh & Co., Alex. Heilbonn, No. 9 Vine street, Regent street, No. 73 Alderraanbury. Leigh says that the endorsement, " Chas. Macintosh & Co.," is an imitation of the handwriting of Mr. Hugh Birley, a part- ner in the firm, but that it is not his handwriting, or that of any member of the firm; and that the words "received for" and "Alex Heilbonn," are in the undisguised handwriting of the said Alex. Heilbonn. He also says that the bill of ex- change came to Macintosh & Co., by letter, and that it and the letter " were surreptitiously taken possession of by the pri- soner, and that the prisoner had no authority to write such an endorsement. That after the prisoner fled from England Leigh opened the desk he had used and there found a memorandum in Heilbonn's handwriting, headed " accounts not acounted for," and among the items in that account this bill of exchange was entered as for 42, 7s. 6d. He also states that Heilbonn had been a clerk of Macintosh & Co., for two years, and that his duty was to collect outstanding book debts only, and he had no authority to endorse bills of exchange, or to receive the amounts thereof; and all such securities were paid to the bank- ers of the firm. The question now presented is whether these facts, if admitted to be true, show that the prisoner committed forgery. Two cases precisely similar in principle have been twice decided in England, and in each it was held that the offence was not forgery. In Rex v. Arscott, (6 Carr. Sf Payne, 408,) the prisoner had endorsed on a bill of exchange, payable to the order of R. Aickman, these words: " Received for R. Aickman; G. Arscott." On the trial the court held this was not forgery. Littledale, J., said " I take it that to forge a receipt for money is writing the name of the person for whom it is received. But in this case the acts done by the prisoner were receiving for another person and signing his own name. Under these circumstances the prisoner must be acquitted upon the indictment." Vaughan, J., said: "I am of the same opinion and I think it is much belter that the most guilty offender should escape than that the law should be strained to meet any particular case. In Regina v. White, (2 Carr. and VOL. I. 55 434 DECISIONS IN CRIMINAL CASES. In tbe matter of Heilbonn. Kirwin, 404,) the prisoner White wrote on a bill of exchange to the order of T. Tomlinson, this endorsement per procura- tion Thomas Tomlinson, " Emanuel White." Pattison, J., ap- parently to raise the question of law, told the jury that if they were of opinion that the prisoner, at the time when he signed the endorsement, had willfully misrepresented that he came from Tomlinson, with intent to defraud him or the bankers, and had no authority from Tomlinson, they ought to find him guilty. But he reserved the question for the fifteen judges. It was argued fully before them, and they " held the conviction wrong; and that endorsing a bill of exchange under a false assumption of authority to endorse as per procuration, is not forgery, that being no false making." It might not be necessary to refer to these authorities, for it is the essence of forgery that one signs O / O the name of another to pass it off as the signature, or counter- feit of that other. This can not be when the party openly, and on the face of the paper, declares that he signs for the other, there he does not counterfeit the name of the other, nor attempt to pass the signature as the signature of that other. The offence belongs to an entirely different class of crimes, and is not one of those provided for in the. treaty between this country and Great Britain. That country from which we borrow most of our views of law, and in which the offence was committed, has declared it not to be a 'forgery. There is no dispute about the facts, and with these two express decisions before us, con- curring with the clear meaning of : the term forgery, there would appear to be no reasonable doubt about the law from the facts disclosed in these depositions and which constitute the crime with which the person is charged, he can not, with any propriety, be said to be charged in these depositions with the crime of forgery. It is unnecessary to say how far facts must be stated in the " complaint made under oath," required by our act of congress, nor even to say whether any facts need be stated but if the charge of a crime is made in general terms, and the complaint also contains all the facts on which that charge is made, and 'on the admitted facts it clearly appears that no such crime has been committed, the complaint then NEW YORK, DECEMBER, 1853. 435 In the .matter of Heilbonn, disproves the general charge, and takes away the foundation for the warrant. The oath of an individual, swearing in gene- ral terms that a particular crime was committed, can never be received as a foundation for any legal proceeding, when the particular facts which he states disprove the charge it is not for him, but for the courts to decide what is the character of the offence, when the facts are established. Otherwise, one might be arrested on a charge for forgery, when the complaint shows the offence committed was a literary forgery, or the use of the name ol a commander in a military order by an officer engaged in a civil war on the side in opposition to such commander. In this case, too, the prisoner had general authority to collect book debts of the firm, that gave him power to sign the name of the firm 1o receipts for those debts; and as the limitation of his authority would not be known to the public, and he was engaged, so far as the public could judge, in collecting the prosecutor's debts generally, third persons would be protected in their payments to him. He, too, might even have supposed that he had power to collect this debt, and receipt for it, if the charge of surreptitiously obtaining the bill and letter be disre- garded, and it ought, perhaps, to be disregarded, as Leigh states no means of knowledge which he had of the prisoner committing that wrong, and leaves it in doubt whether the pri- soner was ever expressly restricted from receipting for bills, or merely had a special authority to collect book debts, from which Leigh inferred that he was restricted from the other power. It is at least extremely doubtful whether forgery can be committed by an endorsement not at all essential to the negotiability of a bill; and it has been held in our Superior Court in a learned opinion, that a draft once endorsed without restriction could not afterward be so undone, in order to make the endorsement of the last endorser necessary. It is a rule in relation to all magistrates acting under a special and limited power, that they have no jurisdiction unless they strictly com- ply with the power conferred. The power to apprehend fugi- tives from justice in these cases is conferred by the act of congress of August 12, 1848, ch 167. It gives the power 436 DECISIONS IN CRIMINAL CASES. In the matter of Heilbonn. to issue the warrant to arrest to any of the justices of the Supreme Court or judges of the several District courts of the United States, and commissioners appointed as the present commissioners have been appointed, and also to the judges of the several state courts, but it is given only " upon complaint," made under oath or affirmation, charging any person with hav- ing " committed any of the crimes enumerated or provided for by any such treaty or convention." This shows that without a sufficient complaint on oath, there is no jurisdiction to issue the warrant. It was argued that on habeas corpus the judge should not go beyond the warrant, and if that were regular he should remand the prisoner. The answer to this is that the commissioner has no power to issue the warrant, and no jurisdiction under the act of congress until a complaint on oath be made before him. Those, therefore, who oppose the discharge of the prisoner in order to show that there is a valid warrant, are bound to show that it was issued on such complaint on oath, and to show this they must produce the complaint. If when produced it shows its original invalidity, it must fall to the ground and the war- rant with it. In the case of Metzger, before the present presi- ding judge of the Supreme Court in this district, and in the case of Haynard before the late Justice Sandford, both of these distinguished justices went behind the warrant and discharged the prisoners. In the case of Metzger, which was under the extraditional treaty with France, Mr. Butler, the United States district attorney, appeared against the prisoner, and among his printed points, while he said that "the validity "of the mandate was the only question then to be decided, he added that in or- der to its decision it was proper to look into the provisions of the treaty, the orders of Judge Betts, contained in the return, and the evidence presented to and taken before him, ( 1 Barb. S. C. R. 251,) and he did not rely on the mandate of the presi- dent merely, but on it as fully warranted by " the facts of the case." In his view, it was essential on habeas corpus to go behind even the mandate of the president of the United States, and to see what the facts of the case were, and what the evi- NEW YORK, DECEMBER, 18-33. 137 In the matter of Heilbonn. dence was. So the learned judge in that case said, " It was his duty to inquire into the cause of the prisoner's detention, and that not merely as it appeared on the warrant by which he was held, but as it might appear from any fact alleged before the judge, to show that the imprisonment or detention was unlaw- ful." In the case before Judge Sandford he looked into the affidavit on which the warrant of arrest was issued, ( 1 Sand- ford's Superior Ct. Rep. 705), and found it insufficient and discharged the prisoner. There, too, the affidavit charged the prisoner with felony, but its specifications showed that the real offence was obtaining goods by false pretences, which, as rep- resented to him, was only a misdemeanor in the state where the offence was committed, which he also noticed, (pp. 707, 708.) It is enough here to say, that when the warrant depends for its vitality on a complaint on oath, the judge, on habeas corpus, must examine the complaint on oath, to see if it does clearly complain of such an offence as authorizes the issuing of the warrant. It was also strongly pressed that on habeas corpus a state judge could not interfere when the arrest purported to be under the laws of the United States or under a treaty. The cases of Metzger and Haynard were both under the laws of the United States, yet the state judges acted then, and acted re- luctantly, but without hesitation, deeming it their duty first to issue the writ, and after they had issued it, not to stop then to make a mockery of justice by refusing to act further, but to go on and hear the prisoner's case and decide it. In Metzger's case, the prisoner was committed, to be surrendered after exa- mination before a police magistrate, but was discharged by the state judge; he was again arrested and examined before the United States district judge, and a commitment ordered by him, and also by the mandate of the president of the United States; but again he was brought on habeas corpus before the state judge, and by him (after a full argument by the learned coun- sel, and after a very complete examination into the malter,) finally discharged. This was in 1847, and congress in the following year adopted the views of the state judge, passed a law to meet the difficulty which he had pointed out; and in that 438 DECISIONS IN CRIMINAL CASES. In the matter of Heilbonn. act, so far from discountenancing the action of state judges in such cases, gave to them the like power to arrest as was given to the United States judges. There is a further reason why justice requires the state judges to act. In the case of Metzger, and in a moie recent case, the supreme court of the United States refused to grant a writ of habeas corpus in order to re- view the decision of the United States district judge, holding that they had no power to review his action at chambers But if the decision of the state judge is erroneous, it can be carried to the Supreme Court of the state, and from thence to the Court of Appeals, and from thence to the Supreme Court of the United States, if the decision of the court of appeals be against the power claimed under the United States law. This is the only entirely peaceable mode of having such questions finally settled, if they are still matters of doubt; and the state courts will freely follow (as is their duty) the decisions of that court of last resort. The revised statutes of our state provide that all proceedings commenced under the article authorizing a habeas corpus be- fore any officer, may be removed by certiorari into the supreme court, to be there examined and corrected; but that no such certiorari shall be issued unless the same be allowed by a justice of the Supreme Court or a circuit judge, nor until a final adjudi- cation shall have been made by such officer, upon the claim to be discharged or bailed. (2 R. S. 573, 71, 69.) They then provide for a writ of error to the court for the Correction of Errors, by the prisoner and by the attorney general in criminal cases, or the party aggrieved in civil cases. There is no limit to the cases in which the appeal may be made by certiorari from the decision of the officer issuing the habeas corpus to the Supreme Court, and if (as suggested) the United States attorney an not carry the case from the Supreme Court to our Court of Appeals, then when the Supreme Court shall decide this case, a final judgment will have been given in a suit in the highest court of law in this state in which a decision in that suit could be had, and there its decision could be reexamined and revised or affirmed in the supreme court of the United States, upon a writ of error, if the decisions of the state court were against NEW YORK, DECEMBER, 1853. 439 In the matter of Hcibonn. the right set up under the treaty, or a statute of the United States. ( 1 Story's Laws U. S. p. 61, Act of 1789, ch. 22, sec. 25.) The state judge, in thus acting, does not in any way in- terfere with the law of the United States. On the contrary, he conforms to it. He finds an act of congress authorizing an inhabitant of the state to be carried away to a foreign country only when the person is charged on a complaint on oath with some of the offences particularized in a treaty; that inhabitant of the state demands the protection of our laws, and it turns out that the complaint made against him does not show that he has committed any offence for which he can be removed from our territory; thus, those who hold him under the warrant are acting in opposition to the United States laws, and those who discharge ihe prisoner are acting in support of those laws. The revised statutes have been in operation for more than twenty-three years, and may be considered, so far as they have remained unaltered, as receiving the approbation of successive legislatures. They allow the writ of habeas corpus, and re- quire the judges and courts to issue it except in certain exceptecl cases. All the excepted cases in favor of the United States are those where process has been issued by any court of the United States, or any judge thereof in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suits in such courts. (2 R. S. 503, 24, 22.) The author- ities before referred to show that this " section" does not apply to a United States judge acting at chambers, or as a commis- sioner, at least when no actual suit is pending. Besides, the United States judges have no exclusive jurisdiction to arrest in these casesr the same act which gives them power to arrest gives it also to the state judges and the commissioner whc orders the arrest does it as a committing magistrate, and is not a judge of the United States, nor of the United States courts. The power of the state judge to discharge persons held in cus- tody unlawfully by United States officers is exercised probably every \reek in this city, where persons under age have been enlisted in the United States army without the proper consent DECISIONS IN CRIMINAL CASES. In the matter of Heilbonn. In the matter of Ferguson, (9 /. JR. 289,) the majority of the court seemed to hold it to be a matter of discretion to grant it or not when the court was sitting in term time. This was in 1812. Even then the court would not abandon the right to issue it. In Massachusetts, the power of discharging the sol- dier was exercised as early as 1815, (11 Mass. R. 63, 67,) and it was enforced in our courts in 1847, (7 Cow. 471,) the court saying, " Any person illegally detained has a right to be dis- charged, and it is the duty of this court to restore him to his liberty." Since then there has been no hesitation to exercise the power. If it were unlawful, or even inexpedient, congress would have interfered with the exercise of this power, as it could have done in those cases by making the enlistment of minors valid unless they were discharged by the United States courts. Its silence is an acquiescence in the power of the state courts, and in the propriety of its exercise, even in a case where the powers of the executive are restrained, but restrained only so far as they are exercised against law. The revised statutes also preclude from the benefit of the writ of habeas corpus persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal juris- diction. (2 R. S. 568, 24, 22.) By the phraseology used, the judgment or decree binds the party in such case, and he can not go behind it on this writ; but that does not show that he may not go behind the commitment when a magistrate has a limited authority and exceeds it. So a prisoner may not be at liberty to go behind an indictment except for special purposes, but an indictment has an effect proprio vigore, and is not, like the warrant in this case, a mere statutory remedy, to be issued by a magistrate only on certain preliminaries being first com- plied with, and dependent on them fo v its vitality. The prisoner being unlawfully confined, imisi. be discharged, and an order must be entered accordingly. Prisons discharged. NEW YORK, DECEMBER, 1853. 44 j SUPREME COURT. New York General Term, December, 1853 Edmonds, Edwards and Mitchell, Justices. JOSEPH MORRIS vs THE PEOPLE. HESS WHEELER vs. THE SAME. The first section of the act passed 12 April 1853, (Sess. Laws of 1853 page 353,) prescribing and authorizing a general form for a record of conviction in case of vagrancy is not unconstitutional. Whether the second section of that act which authorizes a discharge before the expiration of the term, or an order jointly made by the committing magis- trate and one of the governors on the almshouse, is not unconstitutional and void as infringing upon the pardoning power vested in the governor by the constitution, act 4 sec 5. Quere? These cases came before the court on writs of certiorari issued for the purpose of reviewing the decisions of one of the justices of this court at chambers. The legal questions pre- sented sufficiently appear in the opinion of the court JV. E. Blunt, (Dist. Att'y,) for the People. Jl. D. Russell, for plaintiff. By the Court, EDMONDS, P. J. These cases are brought be- fore us on certiorari to review the action of a justice at cham- bers on writs of habeas corpus. From the returns to those writs it appeared that the prisoners had been committed to the penitentiary in the city of New York on a summary conviction, as vagrants/and that the only record of the convictions was in the following form: City and County of New York, ss: The undersigned, one of the police justices in the city of New York, hereby certifies that Joseph Morris was this clay before him on a charge of being a vagrant; that he, the justice, made diligent examination of the matter, and upon due proof found him, the said Joseph Morris, to be a vagrant within the meaning of the law in such case provided; and he, the said justice did so adjudge. Whereupon, he, the justice aforesaid, did, by warrant under his hand and VOL. I. 56 442 DECISIONS IN CRIMINAL CASES. Morris v. The People. seal, commit the said Joseph Morris, so adjudged to be a va- grant as above stated, to the penitentiary in said city, for the term of six months. In witness whereof, I, the undersigned, police justice aforesaid, have hereunto fixed my hand and seal, this 26th clay of April, in the year 1853. S. H. STUART, Police Justice. This form of the record was defended under an act which passed the legislature on the 12th of April, 1853, and was in strict conformity with that statute. That act was probably as extraordinary as any to which party and inconsiderate legisla- tion ever gave birth, and was a greater invasion of the rights of personal liberty than is to be found in our statute book; but yet, unless we can hold it to be in violation of the constitution, we are obliged to permit it to be enforced, however strongly we may feel called upon to condemn its provisions. Summary convictions are coming very much into vogue with us. In Great Britain, from whose system of jurisprudence we have borrowed them, they have extended to about 100,000 in a year, under their game, excise and police laws. But as they operate principally upon the poorer and lower classes, they are permit- ted to endure, andto become a principal instrument in keeping those classes in subjection. The enlightened judges of that country, who have for ages been distinguished for their firm defence of the liberty of the subject, easily discovered how pro- lific those convictions might be of oppression of the lower classes, and therefore they have, for a long time, adhered to a system of rules in regard to them which were calculated to, and did, afford protection against this manifest danger. That system required that a record of the conviction should be made out which should specify every act and fact on which the convic- tion was based, so that, by removing it to a higher court, the party accused might have the opportunity, which in a country of laws, ought to belong to every one, of testing the question before some tribunal, other than the oppressor himself, whether he was lawfully convicted or not. This required necessarily, in the convicting magistrate considerable labor, skill and NEW YORK, DECEMBER, 1S53. 4.13 Morris v. The People. knowledge in the business in which he was engaged, and was, to be sure, sometimes pretty onerous upon the magistrate. Still the courts adhered for the sake of personal liberty, with great strictness, to their rules. But as the British parliament, yield- ing to the same impulse which has influenced our legislature, increased the range and number of these convictions, they deemed it advisable to lighten the burden on the magist ate, and they, therefore, in some cases, adopted a general form of a record, as our act of 1853 has done. But aware that by such a form they deprive the party accused of his former remedy of review, they never authorized it without providing another mode of review, so that the accused, thus deprived of his re- medy by certiorari out of the king's bench, might still have it by an appeal, to the Quarter Sessions; and thus, while they relieved the magistrate from the labor and the necessity for knowledge formerly demanded, they did not achieve that wo.k at the expense of the liberty of the subject, or make the ma- gistrate the final judge of the correctness of his own action where personal freedom was involved. In this state there was no general form of a recoid authorized until this recent act, and there was no mode by which the accused could havp his conviction reviewed but in this court, to which the record could be removed and the action of the committing magistrate be scrutinized. During the time that I have been on the bench, I have had occasion to discharge hundreds of persons from the penitentiary, because of erroneous records of convictions So numerous were those applications becoming that I took pains i in a carefully considered opinion to collate all the law on the subject, and spread it out so plainly that the police magistrates could not mistake it. This was done in the case of The People v. Eliza Phillips, (a) The views then put forth have lately been recognized in the Court of Appeals, in Morewood v. Hollu- ter. (6) This did not reach the evil, for the magistrate? dis- r egarded the rule, sometimes finding it too much trouble and sometimes erring on purpose to give room for the. operation of a habeas corpus. I accordingly, in January, 1849, de* >K if (a) Reported at page 95. (6) 2 Selden R. 309. 444 DECISIONS IN CRIMINAL CASES. Morris t>. The People. my duty to call the attention of the grand jury to the subject, and they made a presentment, from which it appeared that of 511 records of conviction only three were valid, and that of 746 vagrants in the penitentiary 743 were unlawfully impri- soned, and were entitled to be forthwith discharged. This was a state of things sufficiently alarming to awaken attention. Accordingly, at the request of the board of supervisors, proper forms were provided for the use of the magistrates, and they were for a while adhered to. They were, however still trouble- some, for they still demanded labor, knowledge and skill, until the statute in" question interposed, rendering them all unneces- sary. Now, under that statute, there is no mode in which the decision of a magistrate, in a case of alleged vagrancy, can be reviewed. The only remedy provided is, that its second section confers on the committing magistrate and one of the governors of the almshouse the power to discharge the convict before the expiration of his term, but no where provides for a review of the action of the magistrate in the conviction itself. It may well be questioned whether this second section of the statute is not void, because of this transfer of the pardoning power from the governor of the state to one of the governors of the almshouse, but that question is not now before us. The only question here is whether the first section of the statute, depriving, as it may, the accused party of all review of a judg- ment by which any one of us may, without a trial by jury, be imprisoned for six months, is in violation of the constitution. The only provisions of that instrument at all bearing on the subject is section 2 of article 1, which enacts that " the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." But that does not affect the question before us, because that relates to the conviction, and this statute only to the review of it; because a jury trial never has been used in cases of summary convictions. The statute, therefore, stands unaffected by the constitution, but it is none the less to Be deprecated, for it already acts upon more than 2,000 of our people every year, and the number is corstantly increasing, and it may be made to act upon every one of us, male or female, JEFFERSON, DECEMBER, 1833. 445 The People v. Allen. young or old, rich or poor, high or low. The remedy, however, is riot in this court, but in the legislature. Our duty is dis- charged when we hold, as we must, that the law is not uncon. stitutional, and affirm the judgment below. Judgment affirmed. JEFFERSON OYER AND TREMINER. December, 1853. Before W F. Mien and the Justices of the Sessions. THE PEOPLE vs. JOHN H. ALLEN. On tne trial of an indictment charging the defendant with having uttered and published as true, a promissory note made by the defendant, on which the names of certain individuals appearing as endorsers were alleged to have been forged, it is a good defence, under the plea of autrefois acquit, that the defendant had before been indicted and tried for the offence of forging and counterfeiting the same endorsements and on such previous trial had been ac- quitted by the verdict of a jury upon the merits, the only controverted question on both trials being whether such endorsements were genuine. The prisoner was indicted for uttering and publishing as true, in the county of Jefferson, a note made by himself, on which the names of certain individuals were alleged to have been forged as endorsers, knowing such endorsements to be false, forged and counterfeit. The defendant interposed the plea of autrefois acquit, and on the trial it appeared that he had before been kidicted and tried in the county of Lewis for the offence of forging and counter- feiting the same endorsements, and acquitted by the verdict of a jury upon the merits. Upon the trial of the present indictment, the proof was that the body of the note and signature were in the handwriting of the prisoner ; that the last endorsement upon the note was genuine, and was made in Lewis county, at the request of the prisoner; that when the note was presented to the last endorser lor his endorsement by the prisoner, the endorsements alleged to be forged were upon the note; that the note was then trans- 446 DECISIONS IN CRIMINAL CASES. The People t>. Allen. mitted by mail by the prisoner to a bank at Watertown, Jeffer- son county, for discount, and by the bank discounted, for the benefit of the maker. The prisoner and all the parties to the note resided in the county of Lewis, where, as it appeared, the note was made and endorsed and the forgeries committed, if committed at all. Midlin Sf Bagley, for prisoner, objected; that upon the evi- dence the record of acquittal upon the former indictment was a bar to this prosecution; that, if the endorsements were in truth forged, the proof was that the forgeries were committed by Allen, in the county of Lewis, and upon the trial of the question whether they were or were not forgeries, the issue had been determined in favor of the defandant, and was conclusive as a verdict of a jury upon a question directly in issue, and that the prisoner could not be put to a second trial of the s?me question. That the only question upon both indictments was upon the genuineness of the endorsements, and that the defendant could not be twice put in jeopardy upon the same question and upon susbtantially the same evidence, by varying the form of the indictment, and charging another offence, which might have been joined in the former indictment. J. Moore, Jr. (Dis't Att'y) and W. Starbuck, for the prose- cution, cited 2 R. S. 670, 6 39; 12 Wend. R. 425; 2 R. S. 702. 30; 17 Wend. R. 386. The court sustained the objection, and directed a verdict of acquittal, upon the ground that the evidence to establish the guilt of the prisoner of the offence charged in this indictment necessarily established his guilt of the offence of forgery charged in the first indictment, which was no longer an open question, the jury upon the trial of that indictment having by their ver- dict found the endorsements genuine. That the only litigated question of fact upon both indictments was the same, and both indictments would be sustained by substantially the same evi- dence. Prisoner acquitted. MONROE, DECEMBER, 1853. 447 SUPREME COURT. Monroe General Term, December, 1853 Welles, Johnson and T. R. Strong, Justices. DAVIS vs. THE PEOPLE. Where a burglary is connected with a larceny mere possession of the stolen goods, without any other evidence of guilt, is not to be regarded as prim a facie or presumptive evidence of the burglary. But where goods have been feloniously taken by means of a burglary and they are immediately or soon thereafter found in the actual and exclusive pos- session of a person, who gives a false account, or refuses to give any account of the manner in which the goods came into his possession, proof of such possession and guilty conduct is presumptive evidence not only that he stole the goods, but that he made use of the means by which access to them was obtained. There should be some evidence of guilty conduct, besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of the larcency. This was a writ of error, brought by the defendant to review the proceedings of the court of sessions of the county of Mon- roe, upon the trial of the defendant on an indictment. The first count of the indictment was for burglary, in breaking and entering the shop of the Rochester & Syracuse Railroad Company at Rochester, by forcibly breaking an outer window of said shop, with intent to steal, and, stealing therefrom cer- tain tools, &c , the property of Daniel Penney, and other property belonging to Thomas Drake. There was also a count for larceny, and one for receiving property knowing it to have been stolen. The defendant pleaded not guilty. From the testimony of the witnesses for the people, the following facts, among others appeared on the trial : That on Sunday night, the 27th of March, 1853, the machine shop of the Rochester & Syracuse Railroad Company, situate on the railroad in the city of Rochester, was brdken open and entered by forcibly breaking an outer window of the said shop, and that there was no other way of entering the shop, except through the broken window, and that the following articles which were then in the shop and the property of the persons mentioned in the 448 DECISIONS IN CRIMINAL CASES. Davis v. The People. indictment, were taken therefrom, viz : One pea-jacket, two pair of callipers, one two foot rule, one pocket handkerchief, and one square; in all worth some $10. The district attorney then called, among other witnesses, George Bradshaw, who testified that he was a constable of the city of Rochester last March; that he heard of there being a trunk on a boat called the " Wiggins," lying in the canal near the weigh lock in said city of Rochester. That he went there on Monday or Tuesday in March, 1853, and found a trunk on the boat; that on opening the trunk he found two pairs of callipers and a square but nothing else of any value. The defendant was not there. Did not know whom the trunk belonged to. The tools were taken to the police office, and in a few days delivered to the owners, who proved them to be the same tools taken from the machine shop; and that the time they received the property was some eight or ten days after it was taken. The boat was lying in the canal about one mile or more from the railroad. The trunk had been broken open before the witness saw it. A piece of the lock was lying near the trunk. It had the appear- ance of being broken open with an axe or hammer and then nailed down. Eliza Wright testified as follows: I know the defendant John Davis. He used to come on the boat and stay all night sometimes, t Jived on the boat " Wiggins," last March. I recollect the time when Bradshaw, the constable, came on the boat for a trunk. It was on a Monday or Tuesday afternoon in March last. Three or four days before Bradshaw came, defendant told me he had a trunk that he wished to bring on the boat till he got ready to go and see his mother. The defendant brought the trunk the morning before Bradshaw found it there. It was Monday morning. I think he said he wanted to leave it, and at night he was going away with it on the cars. I did not open the trunk nor any one but Davis, to my knowledge. I think the trunk was locked when the de- fendant brought it there. I saw it after I got up in the morn- ing and not before. I did not see defendant bring it there. On the Sunday night before Bradshaw came he staid on the boat. He went to bed when the rest did, and was in bed when I got MONROE, DECEMBER, 1853. 44 (J Davis v. The People. up in the morning, which was between five and six o'clock. He slept in the cabin where we did. After he got up he said he had got his trunk and was going to see his mother. He went away about noon and I never saw him again till I saw him here at the trial. I never saw defendant do any thing with the trunk. There were two other boys staid aboard that Sun- day night. One was called Straight and the other Hughes. Hughes did not come aboard that Sunday night till about eleven o'clock or after. Sabrina Wright testified, that the defendant said three or four days before the trunk was brought to the boat, that he had a trunk that he was going to bring there, and then was going to the cars to go home. That defendant said about nine o'clock in the morning that he had got his trunk there. That she saw a trunk there in the morning This was substantially all the testimony connecting the defendant with the trunk and the sto- len property. The counsel for the prisoner then moved that the prisoner be discharged, on the ground that there was no evi- dence tending to connect the prisoner with the trunk or the articles found in it. That the trunk was not proved in the possession of the defendant. But the court decided that it was a question for the jury. To which decision of the court the counsel for the prisoner excepted. The counsel for the prisoner then moved that the defendant be discharged from the count in the indictment charging him with the crime of burglary, on the ground that if the jury should find the defendant in possession of the property stolen or a part of it, that of itself was not sufficient to convict him of the crime of burglary. But the court denied the motion, to which decision the counsel for the prisoner excepted. The court charged the jury, among other things, that in cases of larceny, after proof that property had been stolen by some one; the possession of the stolen property by a person immediately or shortly after the commission of the offence, was prima Jade evidence to charge such person with the crime, and throw the burden upon him of showing how he came to the possession of the property, or re- buttino; in some way this prima facie evidence. That in cases VOL. I. 57 450 DECISION'S IN CRIMINAL CASES. Davis t>. The People. of burglary, there was a still further presumption of law, that after the prosecution had proved that a burglary had been com- mitted by the breaking into a building and stealing property, and that the stolen property was taken by the means of the burglarious breaking, then the possession of the stolen property immediately after the commission of the crime would be pre- sumptive evidence to charge the person so in possession of the same, with the crime of burglary. In other words, that the stolen property was taken by the defendant in the manner in which it was proved to have been taken. To this charge the counsel for the prisoner excepted. The jury found the defend- ant guilty on the whole indictment. * . J. H. Grassup, for the plaintiff in error. M. S. Newton (Dis't Att'y), for the people. By the Court, JOHNSON, J. The rule that where goods have been stolen and are immediately or very soon thereafter found in the possession of a person, it is prima facie evidence that such person was guilty of the larceny, has never been doubted. It is said, however, that mere recent possession, independent of the conduct and declarations of the accused, or of his silence, is very imperfect evidence of guilt, as the apparent possession may have resulted from the malicious act of another ( 1 Starkie Ev. 513, 514.) In the case of Commonwealth v. Willard, (1 Mass. R p. 6,) where the indictment was for shop breaking and stealing goods, and a part of the goods stolen were found in the possession of the prisoner, Sedgwick, Justice, in his charge to the jury, stated the rule to be that the proof of the possession was pre- sumptive evidence not only that he stole the whole of the arti- cles taken from the shop, but also of his breaking and entering, as alleged in the indictment. But in that case, it appears that the prisoner refused to give any account of how he came by the goods. In The People v. Frazicr, (2 Wheeler's Cr. Cos. 35,) which was an indictment for burglary and larceny, it was held MONROE, DECEMBER, 1853. 45 j Davis v. The People. by the Recorder that possession of the goods was presumptive evidence of the larceny, but not of the burglary. The rule is laid down in Cowen fy Hill's Notes, 432, in accordance with the case in Massachusetts, and it is there said that it is pre- sumed the case of The People v. Frazier was decided hastily. Neither of the cases cited and they are the only ones I have been able to find where the question here involved has been passed upon appears to have been much considered, or is of any great weight as authority. It is certainly extending the rule of presumption to a great length, to make the clearest case of possession, even where the accused gives a false account, or refuses to give any account whatever, of the manner in which he came by the stolen property, evidence not only of the larceny but of the burglary also. The two crimes are not ne- cessarily connected. The larceny may be committed by one, and the burglary by another. There can be no doubt that im- mediate possession would be competent evidence to go to the jury in connection with other circumstances, to make out the charge of burglary. But that it is of itself sufficient to raise the presumption of anything beyond the larceny can not, I think, be maintained, upon authority or sound reason. Where a person is charged with the offence of larceny alone, unless the property is clearly traced to him and his possession is shown to be exclusive as well as recent, the presumption that he took it feloniously does not arise. (Btst on Presumptions, 307; 22 Law Lib. 181.) Finding property in a house to which others have access, where no other possession is shown, is not sufficient to raise the presumption against the owner or chief occupant. Other circumstances must be shown. (C. Sf H. Notes, 426, 7-) And it seems to me in cases where a burglary is connected with a larceny, mere possession of the stolen goods without any other evidence of guilt ought not to be regarded as prima facie or presumptive evidence of the burglary. I am of opinion, however, that in a case where goods have been feloniously taken by means of a burglary and they are immediately or soon theieafter found in the actual and exclusive possession of a person who gives a false account, or refuses to give any ac- 452 DECISIONS IN CRIMINAL CASES. Davis v. The People. count, of the manner in which he came to the possession, proof of such possession and guiky conduct is presumptive evi- dence not only that he stole the goods but that he made use of the means by which access to them was obtained. There should be some evidence of guilty conduct besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of the larceny. In the present case there is no evidence of any guilty conduct whatever. There is great room for doubt whether the prisoner ever had the goods in his actual custody. True, they were found in his trunk, and if it had been shown that the goods were locked up in it, and the prisoner was in possession of the key, a strong presumption would be raised that he put them there and claimed the possession. But there is nothing to connect him with the goods at all, except the fact of their being found in the trunk by the officers. The trunk was not in the prisoner's custody, but in the midship of a canal boat, in which boat other persons resided and to which any one might have access. The trunk was brought to the boat by the prisoner in the morning, as he informed the persons on the boat, and the witness by whom this is proved testifies that the trunk was locked when she saw it there, about nine o'clock in the morning. It is not shown that the prisoner opened the trunk after he first brought it there, or that he went to it for any purpose. He left the boat before or about noon. The officer who discovered the goods first saw the trunk some time in the afternoon of the same day, or the day after the prisoner left the boat. It then bore unmistakeable evidence of having been broken open by violence. The officer testifies that the lock appeared to have been broken by a ham- mer or axe, and that a portion of it was lying on the floor of the boat near the trunk and the trunk had been fastened toge- ther by nailing. Only a small portion of the goods stolen were in the trunk. It seems to me the law will scarcely presume that the prisoner broke his own trunk open, until it is shown that he had no key to it; especially when it is not in his actual possession when found in this condition, but is in a situation where others might readily do it. This is scarcely the kind of ALBANY, DECEMBER, JS53. Crozier v. The People. possession which the law contemplates, in order to raise the presumption even of a larceny. The fact that a portion of the goods were found in the pri- soner's trunk under such circumstances, is little if any stronger than it would have been had they been found in some other part of the boat. And even admitting that the jury were war- ranted in finding, as a question of fact, that the goods were found in the prisoner's possession, still I am of opinion the judge should have instructed them that possession alone of that character was not sufficient to raise the presumption that pos- session was obtained by means of a burglary committed by the prisoner. On this ground, I am of opinion the conviction and sentence should be reversed, and a new trial granted. Judgment reversed. SUPREME COURT. Albany General Term, December, 1853. Parker, Wright and Harris, Justices. JOHN K. CROZIER, pl'ff in error vs. THE PEOPLE, def 'ts in error, It is not necessary, in drawing an indictment under the act to punish seduction as a crime passed March 22, 1848, to allege mutual or valid promises of marriage. It is sufficient to aver, in the language of the act, that the prosecutrix was seduced under promise of marriage. Per PARKER, J. Nor is it necessary on the trial to prove a valid and binding promise of mar- riage. If the seduction was effected by means of a promise of marriage, though the promise was intended to be and was in fact a false pretence, and one which the seducer knew it was not in his power to perform, the offence is nevertheless within the statute. By "previous chaste character" the statute means personal chastity actual character not reputation. In the absence of proof such chastity will be presumed. But the presumption may be overcome by specific acts of lewd- ness proved affirmatively, on the part of the defendant. (a) (a) Note. From other cases reported in this volume, it will be seen there are differences of opinion upon the last two propositions. See The People v. Jll- ger, page 333, and The People v. Sojforrf, page 474. 454 DECISIONS IN CRIMINAL CASES. Crozier v. The People. The evidence contemplated by the statute in support of the testimony of the female is not confined to proof of the fact of illicit intercourse, but extend* to proof of other material facts; such as the illegitimacy of her child, the regular and 1'requent visits of the defendant, his being alone with the prose- cutrix at late hours of night, and his confessions made to others on the sub- ject of his engagement to marry her, &c. But it is not sufficient to corroborate her as to immaterial facts contained in her testimony. This was a writ of error to the court of sessions of Washing- ton county. The plaintiff in error was indicted under the act passed March 22, 1848, entitled " an act to punish seduction as a crime." The indictment contained two counts. The first count charged " that John K. Crosier, late of the town of Salem in the county of Washington, on the 8th day of June, 1849, at the said town of Salem in the county of Washington aforesaid, did unlawfully, and feloniously, under a promise of marriage, seduce and have illicit connection with Emeline J. Oderkirk, an unmarried female of previous chaste character, against the peace of the people of the state of New York and their dignity. The second count charged, that the said John K. Crozier, &c., on, c., at, &c., " did undertake and promise to marry Emeline J. Oderkirk, an unmarried female of previous chaste character; and that the said John K. Crozier did then and there unlawfully, under said promise of marriage, seduce and have illicit connection with the said Emeline J. Oderkirk, then and there being an unmarried female of previous chaste character, as aforesaid, against the peace," &c. On the trial of the indictment at the sessions, Crozier was found guilty and sentenced to imprisonment at hard laber in the Clinton state prison for the term of two years. Crozier brought a writ of error. secutrix believes it, the danger and wrong are the same. If the promise is the consideration for, or the inducement to the illicit intercourse, the offence is complete. The offender may be a married man, and the fact of his being so may be unknown at the time to the prosecutrix. It has been decided that in such a case, an action for breach of promise lies against him. (Mill-ward v. Littlewood, 1 Eng. Law and Eq. R. 408.) If the promise is made, and she, believ- ing in it, yields in consequence to his solicitations, the act is within the statute. Though infancy may be a good defence to an action for a breach of promise of marriage, (5 Cowen R. 475.) I apprehend it would not avail against a prosecution under this act. The offence is certainly of no less magnitude morally, . Crozier, page 453. (b) See The People v. Finnegan, page 147. SARATOGA, MAY, 1854. 475 Safford v. The People. but did not fully succeed; that he had tried many times before June, 1851, but only partially succeeded a few times. That she had a child by him, born in March, 1852. Her mother proved a promise of marriage by the prisoner. A witness for defendant testified, that four or five years before the trial, she saw the prisoner and prosecuting witness go into the bushes and lie down together, he laying his arm around her. Some other testimony was given, not material to the case before the court. The counsel for the prisoner, in summing up to the jury, insisted that, if the jury found from the evidence, that the first seduction was more than two years before this indictment was found, they should acquit, and asked the court so to charge; and that if prior to the sexual intercourse in June, 1851, the prose- cytrix was of unchaste character as to the defendant or any oth-er person, he was entitled, as matter of law, to be acquitted, and asked the court to so charge. The district attorney con- tended, that " previous chaste character/ 1 in the statute, meant chaste character as to other persons than the defendant; and that prior unchastity, as to the prisoner, was no defence. That if he seduced her under a promise of marriage more than two years before the indictment, and had sexual intercourse with her afterwards under a promise of marriage, the several acts were continuous and a perpetuation of the same crime and he oould not set up as a defence that he had perpetrated the same offences before the statute was passed, and that there was no evi- dence of a connection more than two years before finding the indictment. The court refused to charge on the point, whether an #ct of connection more than two years before finding the indictment could operate as a defence in law, but left the ques- tion to the jury,* and the defendant excepted. The entry of judgment was as follows: " St. Lawrence county Oyerand Terminer, October IS, 1853. The People v. Hiram Safford Indictment for seduction. The above named defendant having been heretofore (to wit, on the 21st day of June, 1853,) arraigned upon the above in- diclraent, and having pleaded not guilty thereto, and havjng 476 DECISIONS IN CRIMINAL CASES. Safford v. The People. been held to bail for his appearance at this court, and having been tried by a jury and found guilty; judgment having been moved by C. G. Myers, Esq., district attorney, court did on the 21st day of October, 1853, sentence the said defendant, Hiram Safford, to imprisonment in the Clinton state prison, at hard labor, for two years six months." (Signed by the clerk.) W. G. Paris, for the prisoner. C. J. King, for the people. By the Court. HAND, J. The objection that this cause is not properly before this court, .is not valid. The court of Oyer and Terminer gave final judgment, and that being a court of record, a writ of error on the part of the defendant was a writ of right, and took up the bill of exceptions with the transcript of the record. (2 R S. 740, 15; 736, 21; Regina v. Paty, 2 Salk. 504.) The respective offices of writs of error and of certiorari, are quite well settled. (2 Burr. Cr. 193; 2 Tidd, 1051; 1 id. 330; People v. Judges of Suffolk, 24 Wend. 553; 5 Hill, 269; 3 id. 42; 1 Ld. Raymond, 469; Chitt. Cr. L. 747; 1 Paine fy Duer, 84; 2 R. S. 736, 27; Barb. Cr. L. 341.) By the record, as certified to us, it does not appear that the court demanded of the defendant what he had to say why judg- ment should not be pronounced against him. This undoubtedly was necessary; and, it seems, it must appear by the record to have been done. (King v. Spike, 3 Salk. 358; Rex v. Geary, 2 id. 630; Buncomb's Case, 3 Mod. 263; 1 Chitt. Cr. L. 700; 4 Bl. 375; Barb. Cr. L. 330; and see Plowd. 387; Rose. Cr. Ev. 245: Rex v. Ratcliffe, 1 Wils, 150; King v. Garside, 2 A. & E. 266; 2 Toml. Diet. 295.) This not appearing upon the record was one of the causes for which the attainder of Bascomb was reversed after his death. In one of our sister states, the court seems to have considered this practice applicable only to capital cases. (West v. State, 2 New Jer. 212.) And most of the cases above cited were upon convictions for treason, but the principle is the same; and the reason stated in all the books is, SARATOGA, MAY, 1854. 477 Safford v. Th- People. that the prisoner may have a pardon to plead or he may move in arrest of judgment; and neither Chitty or Blackstone make any distinction. The former says, it is indispensably necessary even in clergyable felonies. The practice has its foundation in good sense and common justice, and the principle certainly ap- plies to all cases of felony; and this crime seems to have been placed in that grade by our statute. (2 7?. S. 702, 30; Car- penter v. Nixon, 5 Hill, 260.) On conviction for misdemeanors, and especially when tried by courts of special jurisdiction, and in which there is no power to arrest judgment, perhaps the rea- son of the rule fails. It has been said that a copy of the indict- ment, bill of exceptions and judgment of the court only, need be returned. (People v. Gray, 25 Wend. 465; 2 R. S. 740, 20; 758, 5, 6.) The case of The People v. Gray, was reversed on another point, and I can not think that the entry of judg- ment is perfect in case of felony, unless it appear that the pri- soner was present and had an opportunity to be heard against being sentenced. In this case, it does not appear that he was present during the term at which he was tried. The omission was probably from mere inadvertence in making the entry; and as the record is not removed, perhaps the court below has the power to amend, though that is not clear. (1 Chitf. Cr. L. 753; 2 Salk. 632.) But I think some of the objections at the trial were well taken The defendant requested the court to charge the jury, that if the first seduction (or connection) was more than two years before indictment found, they should acquit; and that if prior to June, 1851, the prosecutrix " was of unchaste character as to the defendant or any other person, he was entitled as matter of law" to be acquitted. The court declined to charge upon the point whether a connection between the prosecutrix and defend- ant more than two years before the indictment, was a defence, but left the question to the jury. Several things are necessary to convict under this act. (Laws of 1848, ch. 111.) There must be a promise of marriage, se- duction of and illicit connection with an unmarried female, who must have been of " previous chaste character," and the indict- 478 DECISIONS IN CRIMINAL CASES. Safford v. The People. ment must be found within two years after the commission of tte offence; and the prosecution can not be sustained by the testimony of the female seduced, unsupported by other evi- dence. In this case, the promise of marriage was proved, and proof was given tending to show carnal connection of the parties four or five years before the trial. But I find no evidence of the seduction or illicit connection within two years before the in- dictment, except that of the prosecuting witn-ess. The statute does not say there must be two witnesses, as required in case of treason. But the facts constituting the crime can not be proved by the seduced alone: she must be supported by direct evidence, or proof of circumstances, on all the material alle- gations of the indictment However, no point seems to have been taken on the trial on this branch of the case. But she must also have been " of previous chaste character." In a case arising upon another statute, " an act to punish abduction as a crime," (Laws of 1848, oh. 105,) it was said to "mean actual personal virtue; that the female must be actually chaste and pure in conduct and principle up to the time of the commission of the offence." (Carpenter v. People, 8 Barb. 60S; Welles, P.J.) The word " character" has been variously used in legal proceedings; and sometimes denotes the personal, official or spe- cial character in which a party sues, or is sued, as executor, officer, &c., but it more frequently refers to reputation or com- mon report. (1 Cow. Sf HiWs Notes, 460; 1, 768, and cases there cited; Leddy v. Tuucey, 2 Wend. 352; King v. Root, 4 id 113.) And is seldom used as synonymous with mere inclination or propensity, or even secret habit, nor as descriptive of the mere qualities of individuals, only so far as others have formed opinions from their conduct. And by the addition of this word, it would seem the legislature intended something more than mere impurity of mind; otherwise the requirement would have been simply that the female should be " previously chaste." But the act does not say previous general chaste character. This is a penal statute, creating a new offence, and the accused SARATOGA, MAY, 1854. 479 Safford v. The People. is not confined to general reputation. I am not prepared to say that one secret, solitary act of illicit intercourse, no matter how long previous, nor under what circumstances, would be such conclusive proof of unchaste character, as to prevent her being the subject of seduction under the statute, although it would render the female impure, and to a degree unchaste and immoral in fact. But repetition of the offence with different persons must, necessarily, more or less, establish a character for lewdness with some portion of the community; and that is enough for the defence, especially as she would be unchaste in fact. And the result would be the same if such intercourse was with an individual, and the fact was known to others or believed by them. So that, if the accused is not confined to general reputation, practically, the rule as above suggested and that laid down in Carpenter v. People, would probably require the same proof and produce the same result. But I think the defence is not confined to cases of actual incontinency, but may prevail upon the ground of reputation alone, and that if the jury find the female really had the repu- tation of being unchaste, the case is not within the statute. The use of the word " character," is important in this respect, and in such case she does not come within the class described in the act, although illicit intercourse, in fact, can not be proved. However, notwithstanding the phraseology of the law, if the defence relies upon her bad reputation alone, to prevent abuse, it is no more than reasonable that the proof should show prior general bad character for chastity, or at least considerable notoriety. If the illicit intercourse began four or five years before the indictment and had continued until within two years, the jury should have found for the defendant, on the question of se- duction within two years. It would be rather a loose con- struction of the statute, to hold, that a woman who had con- tinued in the practice of fornication with a man for four or five years, and up to the time she prosecutes, had been seduced within the last two years. The counsel for the prosecution, on the trial, seems to have supposed the commission of the crime 480 DECISIONS IN CRIMINAL CASES. Safford w. The People. might be charged, as it were, with a continuance for several years, or that each occasion was a first seduction. A nuisance may be stated as continuing, it seems. (Arch. Cr. PI. 36.) And in crim. con., the injury may be stated to have been com- mitted on divers days and times. But seduction and the act of illicit intercourse, under certain circumstances, complete the crime, and such a construction is hardly within the spirit of the act, which was not intended to punish illicit cohabitation, but the seduction of a virtuous female under a promise of marriage. Proof was adduced to show intercourse four or five years before trial, and from the testimony of the principal witness, it is to be feared there was very little reformation afterwards. The conduct of the defendant may have been, and probably was, cruel and dishonorable, but he must be legally convicted before he can be punished. The defendant, though a different practice formerly prevailed, (2 Russ. on Cr. 725, 6; ex parte Barker, 7 Cow. 143; and see People v. Comstock, 8 Wend. 549,) now may take exceptions, " in the same cases and manner provided by law in civil cases," (2 R. S. 736, 21,) and the better opinion seems to be, that the jury are no more judges of the law in criminal than in civil cases, except that a verdict of acquittal is conclusive. (Whart. Cr. Tr. 886, 893, and cases there cited; People v. Pine, 2 Barb. 566; Carpenter v. People, supra; Cow. Sf Hill's Notes, 150, 1.) However this may be, when requested, the judge should instruct the jury upon a question of law fairly arising in the case. (People v. Gray, 5 Wend. 289; Vallance v. King, 3 Barb. 548; 1 Burr. Pr. 456.) The judgment should be reversed. The judgment was reversed, and the prisoner ordered to be discharged. CAYT7GA, JUNE, 1854. 49 ^ SUPREME COURT Cayuga General Term, June, 1854. Welles, Selden and Johnson, Justices. THOMAS J. REED, pl'ff in error vs. THE PEOPLE def'ts in error. Two distinct offences, requiring different punishments, can not be alleged in the same count of an indictment: such an indictment is bad for duplicity and a conviction upon it will be reversed on error. Where, in the same count of an indictment, the defendant was charged with a common law nuisance and also with a violation of a regulation of a board of health, under the fourth section of the " act for the preservation of the pub- lic health," passed April 10, 1850, the count was adjudged to be double, the former offence being punishable by fine not exceeding $250, or imprisonment not exceeding one year, or both, (2 R. S. 697, $$40, 41 ; )andthe latter being punishable by fine not exceeding SLOOO or imprisonment not exceeding two years, or both. Sess. Laws of 1850, p. 692, Sec. 4.) What allegations in an indictment are sufficient to charge a common law nuisance considered. It is only where a regulation of a board of health has been made and published, that a person can be convicted, under the 4th section of the act, of a mis- demeanor, for its violation. An order of a board of health made ex parte and adjudging certain premises to be a common nuisance and directing the cleansing and purification of the same, within three days after the service of notice of such order, is not such a regulation as is contemplated by the fourth section of the statute, and a failure to comply with such order does not subject the person offending to punishment for a misdemeanor, under the section aforesaid. On the trial of an indictment for the violation of such an order, it is not com- petent for the prosecution to prove affirmative offensive acts on the part of the defendant, while engaged in removing the cause of the nu ; ance. But it is competent for the defendant on such trial, to show a bona fid* attempt on his part, to obey the order in question. On such trial, it is a defence to such indictment to prove that at the time r.f the making and service of the order, the defendant resided out of the bounds of the village corporation, in which such board of health was organized. Writ of error to the Court of Sessions of Orleans county The plaintiff in error was indicted at the Court of Oyer and Terminer held in said county in the month of September, 1852, for disobeying an order of the board of health of the village of Albion in said county of Orleans. The indictment was sent to the Court of Sessions for trial, where the defendant was tried VOL. I. 61 482 DECISIONS IX CRIMINAL CASES. Reed v. The People. and convicted in the month of April, 1854, and adjudged tc pay a fine of $800, and stand committed until the fine was paid- The indictment contained two counts, the first of which stated that on the 5th day of June, 1853, " the village of Albion, being an incorporated village, under and by virtue of the laws of the state of New York, the trustees of said village in pur- suance- of an act of said state, entitled ' an act for the preserva- tion of the public health,' passed April 10, 1850, appointed one Nelson A. Graves, Rice Warner, and John Hubbard to be and constitute a board of health in and for said village (the (hen ensuing year) and a competent physician to be the health officer thereof. That at the time aforesaid, and for a long time previous, one Thomas J. Reed was the owner and occupant of certain premises situated on the east side of Batavia street in said village and in said county of Orleans; that upon said premises so owned and occupied by the said Reed, then and for a long time previous had been and still are ditches drains and low places, filled' with standing, stagnant, filthy and unwholsome water; large quantities of animal and vegetable substances decaying; pig pens and barns containing and surrounded by manure, mud and filth; and a privy with the vault thereof full of manure, human deposits and filth; and the building part of said privy containing divers quantities of manure and filthy excrements; all of which were suffered and permitted to be and remain upon the said premises by Thomas J. Heed, he having full knowledge of the situation thereof, and well knowing that from said causes an offensive and noisome smell arose and made the air unwholesome and dangerous to the public health. That on the seventh day 01* July, 1852, the said premises being as aforesaid, the said several persons, so appointed as a board of, health, in and for the said village, and having duly qualified and become charged with the duties and vested with all the powers of boards of health, created and appointed under and by virtue of said statute, did meet together; and having examined and deliberated upon said premises so owned and occupied by the said Thomas J. Reed, as aforesaid made the order and adjudication upon and concerning the said premises, as follows, CAYUGA, JUNE, 1854. 433 Reed v. The People. that is to say: * July 7th, 1852, Albion, Orleans co., N. Y., Board of health of the village of Albion, met at the office of Curtis and Graves, in the court house in said village. Present John Hubbard, Rice Warner and N. A. Graves. Rice Warner, President. N. A. Graves, Sec'ry.' * It is adjudged by said board of health, after examination, that the premises of Thomas J. Reed on which his store is situated in said village is a common and public nuisance, and dangerous to the health and lives of the inhabitants of said village, and that the same ought to be abated. Therefore it is enacted that the filthy or stagnant water, animal or vegetable substance, in and about the drains, ditches or low places on said premises, and also the manure, fetid matter and filth on the north and east sides of the barn on said premises be removed, covered up or otherwise disposed of; and also that the pig pens be removed from said premises, and also that the manure be removed from the privy on said premises, said privy cleansed, the old vault with its contents covered up, a new vault dug therefor, and the said privy placed thereon, and a sufficient quantity of unslacked or chloride of lime be strewed upon all such places to cleanse and purify the same, and keep them in such condition. And it is further ordered that a copy of the aforesaid regulations adopted by the same board, together with a notice or order requiring said Thomas J. Reed to abate or remove said nuisance as specified in the foregoing enact- ments be served on said Reed, and that he have three days after service of said notice to abate or remove said nuisance. July 7, 1852. N. A. Graves, Rice Warner, John Hubbard, Board of Health of the Village of Albion, Orleans County. N. A. Grates, Secretary.' 484 DECISIONS IN CRIMINAL CASES. Reed v. The People. As by the record of said order and adjudication will more fully appear. That afterwards, to wit: on the tenth day of July, 1852, at the said village of Albion, the said board of health caused a copy of the aforesaid regulations adopted by said board, together with a notice or order requiring the said Thomas J. Reed to remove or abate said nuisance as specified in the aforesaid enactment to be personally served upon said Reed; that the said Thomas J. Reed having knowledge of the aforesaid order and regulations of the said board of health, it became and was the duty of the said Reed within three days after said notice and knowledge to remove the said filth and foetid matter found about said barn; to remove the said pig pen from said premises; to remove or cover up said standing and stagnant water, and cover the said places with lime, as required by said order, and to take away or cover up the said animnl and vegetable substance, being and decaying thereon as afore- said; and also to remove the manure from the said privy, and to cleanse the said privy, and to cover up the old vault to said privy with its contents, and to dig a new vault for the same, and to place the said privy thereon. But the said Thomas J. Reed, well knowing the premises, and willfully and mali- ciously intending to violate the said order and regulation of the said board of health, did not nor would within three days after said notice, nor at any other time remove the said filth and fetid matter from about the sides of said barn, nor the pig pen from said premises, nor the said standing and stagnant water, nor did he sprinkle lime on said places, nor cover up or otherwise dispose of the same, nor did he remove, cover up or otherwise dispose of said animal and vegetable substances, nor did he remove the manure from said privy or cleanse said privy, nor cover up the old vault to said privy, and the said contents thereof, or dig a new vault or place said privy thereon, but to do the same or any part of the said several things and matters as required by said order and notice, willfully and maliciously wholly neglected and refused so to do: and afterwards to wit, on the 10th day of August, 1852, the said Thomas J. Reed, having full knowledge of the said order so made by the said CAYUGA, JUNE, 1854. 435 Reed t. The People. board of health, and full knowledge of the premises as afore- said, then and there willfully and maliciously took a large quantity of the filth, excrements and contents from said old vault to said privy, and scattering the same upon the ground in and about said privy on said premises; willfully and maliciously took divers other quantities of the same into Batavia street in said village and thence in a southerly direc- tion to State street, knowingly and willfully scattering the same along said Batavia street to said State street, and from thence east along said State street, scattering the same along the said street in divers large quantities, willfully and maliciously intending thereby to make and create a noisome and direful stench, offensive and dangerous to all the good people; and the said Thomas J. Reed did thereby make and create a noisome, offensive and direful stench, by means whereof and of the said premises, divers persons became and were grievously sick and distempered in their bodies, and in great danger of losing their lives, to the great damage of the said persons, against the peace of the people of the state of New York and their dignity. There was another count in the indictment, but as the de- fendant was convicted on the first only, it is not necessary to notice the second. At the trial, after the jury were empanneled, and before any evidence was given, the defendants' counsel moved the court to quash the indictment on various grounds, which motion was denied. The counsel for the people then gave evidence of the ap- pointment and organization of the board of health, the making of the order and adjudication set forth in the first count, as above, also evidence tending to show that a copy of said order was a few days afterwards sent to the defendant, and that the same came to his hands. That at the time of making said or- der and of the service thereof upon the defendant, he resided upon his farm about a mile and a half from the said village of Albion. Also, that the defendant had failed to comply with its requirements for more than three days after the service of 486 DECISIONS IN CRIMINAL CASES. Reed v. The People. the copy of said order upon him. In the course of the trial a witness for the people was asked by the counsel for the prose- cution the following question: " Do you know any thing about the defendant's taking the contents of the privy and scattering them about the premises and the street on or about the 10th of August, 1852?" to which the defendant's counsel objected on the ground of irrelevancy and immateriality. Also, that if the defendant created a nuisance subsequent to the order he was liable to another indictment therefor, but was not liable under this. The court overruled the objection and the defendant's counsel excepted. The bill of exceptions then continues as follows: " Witness answered that on the llth of August last, about 8 o'clock P. M., he saw the said back house tipped up and the defendant standing on the edge of the vault with a pail in his hands in the attitude of dipping the contents of the vault into a wagon standing there; saw some of the contents scattered around near where the wagon stood Question by counsel for the people: Did you see it scattered along the streets? to which the defendant's counsel objected on the same grounds. The court overruled the objection and the counsel for the defendant then arid there excepted. Witness answered that he saw some of the same material in front of defendant's premises in Batavia street, two feet square where the wagon moved through the ditch. Q. Did you observe any stench from the contents on the ground and in the street? To which the defendant's counsel objected on the same grounds. The court overruled the objection and the counsel for the defendant then and there excepted, and the witness answered that he did, very bad. Norton Z. Sheldon being called and sworn as a witness for the people, testified that he resided in Albion and remembered the circumstance of defendant's removing the contents of the privy. The defendant's counsel thereupon objected to the pro- secutor showing any matter tending to prove a nuisance created by defendant in the streets of Albion subsequent to the order of the board. The court overruled the objection and the counsel for the defendant then and there excepted. The bill of ex- ceptions then states that this and several other witnesses gave CAYUGA, JUNE, 1854. 437 Reed v. The People. evidence tending to show that after the date of the said order, the contents of the said privy had been scattered through and along the streets of the village, producing an offensive smell and causing sickness to some of the inhabitants. After the prosecution had rested, the defendant introduced evidence tending to show, among other things, that the pre- mises in question were occupied by his tenants, at, before and after the making the order, and that the nuisance was created and maintained by them. That the defendant removed from a portion of said premises on or about the 17th day of June, 1852. with his family to his farm a mile and a half off from the corporation of the village of Albion, where he has since resided. A witness sworn on the part of the defendant, testified that he lived in one of the small houses on the premises in question, in Albion, in the year 1852. Question by the defendant's counsel: What direction, if any, did the defendant give you about cleaning up the premises in question in July and August last? To which the counsel for the people objected. The court sustained the objection, and the defenda t's eounsel then and there excepted. Question by the defendant's counsel: Did the defendant give you any directions about cleaning up the premises in those months? Objection and decision as above, and defendant's counsel excepted. After the evidence was closed the court charged the jury, among other things, that the defendant was not directly in- dicted for taking the contents out of the privy, and thereby making a nuisance, and could not be convicted for that alone; but the evidence upon that subject was proper to be considered by them on the question whether he violated the order of the 7th of July, and whether he did it willfully and 'perhaps as matter of aggravation for the court to consider. The defendant's counsel requested the court to charge the jury as follows: I. That if they should find under the evidence that the nuis- ance was created and maintained by other persons, and not the 438 DECISIONS IN CRIMINAL CASES. Reed . The People. defendant, at the time charged in the indictment, notwith- standing the board of health ordered him to remove it, they must find the defendant not guilty. The court refused so to charge, but then and there charged the jury in that behalf, that if they should find that other persons than the defendant con- tinued the nuisance after the order of the board of health with- out the fault of the defendant, they should find the defendant not guilty, to which charge and refusal to charge the defend- ant's counsel then and there excepted. II. That if the jury should find that the defendant at the time of making and serving the order, resided out of the corporation of the village of Albion, and that the notice or order was served on him out of said corporation, they should acquit the defend- ant. The court refused so to charge, but then and there charged the jury, that if they should find that the defendant at the time the order was made resided out of the village, and continued to reside out of said village, and had no control of said premises, they should acquit him; to which refusal and charge, the de- fendant's counsel then and there excepted. The jury convicted the defendant under the first count of the said indictment, (the court charging them that no evidence had been given under the last count, and that said last count was excluded from their consideration.) Various other questions arose in the course of the trial, and various other exceptions by the defendant's counsel were taken to rulings of the court, but they are deemed unnecessary to be here stated. H. D. Tucker, for the plaintiff in error. W. K. McJllister, for defendants in error. By the Court, WELLES, J. The judgment of the court below must be reversed, for the following reasons: I, The indictment is bad for duplicity; it charges the de- fendant with two distinct offences one, a common law nuis- ance punishable by fine not exceeding $250, or imprisonment CAYUGA, JUNE, 1854. Reed p. The People. not exceeding one year, or both such fine and imprisonment. (2 R. S. 4 ed. 88, 55, 56; 1 ed. 2 vol. 697, 40, 41.) The other, for violating the order of the board of health, involving punishment by fine not exceeding $1000, or imprisonment not exceeding two years, or both. (1 R. S. 4 ed. 853, 15; Sess. L. of J850, ch. 324, 4.) This objection is not aided by the verdict, nor the defect cured by the statute of jeo fails. ( The, People v. Wright, 9 Wend. R. 196, and authorities there cited.) It was contended on the argument by the counsel for the people, that, in truth, the count in question was not double; that all it says about the conduct of the defendant after the order of the board of health was made, in scattering the filth, &c., does not amount to a nuisance, because not alleged to have been " to the common nuisance of all the good people," &c., and jnay be treated as surplusage. The affirmative acts of the de- fendant are charged to have been done willfully, with intention to make and create a noisome and direful stench, offensive and dangerous to all the good people, and that the defendant did thereby make and create a noisome, offensive and direful stench; by means whereof and of the premises, divers persons became and were grievously sick, &c. The allegations contain the essential elements of a nuisance, and all that is wanting is the name. It is not necessary to decide whether this omission would be a fatal objection to the count, as for a nuisance, for. in the view in which we are considering the question, it does not lie with the people to raise it. If it were not so, it would follow, that if that part of the count charging a violation of the order of the board of health, was also defective in any respect, or, if the public prosecutor should attempt to set out two dis- tinct offences in one count, which could not legally be joined, and neither was sufficiently stated, by the same rule, the ob- jection of duplicity could not be made in either case. But a more substantial answer is, that in a case where one of the two offences is well, and the other, defectively stated, and a general conviction on the count, where the evidence would well war- rant the verdict in respect to the lesser crime, but in regard to VOL. I. 62 490 DECISIONS IN CRIMINAL CASES. Reed v. The People. the other, the court, at the trial, would have been justified in directing an acquittal, the party accused would be liable to be punished for an offence of which, but for the improper joinder, he would have been acquitted. II. That portion of the count upon which the defendant was convicted, which charges a violation of the order of the board of health, and upon which the court below rendered judgment is clearly bad. The third section of the " act for the pre- servation of the public health," (Sess. L. 0/1850, ch. 324,) prescribes the powers and duties of the several boards of health organized at the time of the passage of the act, in any city or village in the state, and of those constituted under the act. By subdivision three of that section, they are " to make regulations in their discretion concerning the place and mode of quarantine, the examination and purification of vessels, boats and other craft not under quarantine; the treatment of articles or persons thereof, the regulation of intercourse with infected places, the apprehension, separation and treatment of emigrants and other persons, who shall have been exposed to any infectious or con- tagious disease; the suppression and removal of nuisances, and all such other regulations as they shall think necessary and proper for the preservation of the public health. The sixth subdivision makes it their duty " to publish from time to time all such regulations as they shall have made in such manner as to secure early and full publicity thereto." The fourth section of the act is in the following words: " Every person who shall willfully violate any regulation, so made and published, by any such board of health, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be subject to fine and imprison- ment, or both, in the discretion of the court, such fine not to exceed one thousand dollars, nor such imprisonment two years." The order set forth in the first count of the indictment was not such a regulation, within the meaning of the act, as to make the disobedience of it by the defendant a misdemeanor. It was an ex parte adjudication or sentence in regard to a par- ticular locality, and requiring of the defendant the performance CAYUGA, JUNE, 1854. 49 j Reed v. The People. of a series of acts. The board of health probably had the power to adjudge and declare the premises a nuisance, and to procure it to be abated. The eighth subdivision of the fourth section gives them all needful facilities for so doing, and the fifth section of the act makes the county chargeable for all expenses except that of the compensation to the members of the board, which latter are chargeable upon the city or town. The regu- lations which the boards of health have power to make, so as to attach to the violation of them the penalties provided in the fourth section, are to be in the nature of bylaws; they are to be prescribed and published, and are to affect, generally, all per- sons within the scope of their operation. The term is to be understood in contradistinction to a judgment, sentence, decree or order, and contemplates the exercise of a power, in its cha- racter legislative rather than judicial. The requirement to publish them in such manner as to secure early and full reci- procity, shows clearly that they are of this character. The violation must not only have been willful, but committed after the regulations have been published in the manner directed. No reason can be assigned for giving eaily and full publicity to an order such as the one made by the board of health in this case; no one's conduct or action was to be affected by it, but that of the defendant. A notice was all that could be useful to him, and so the board regarded it; they directed personal notice to be served upon him after it was made, but did not order it published. It is impossible, we think, that the legis- lature could have intended to confer upon these boards of health the power to make an adjudication against an individual, preg- nant with such serious consequences as are claimed in the pre- sent case, without notice and in his absence, consequences involving, it may be, not only a heavy pecuniary penalty, but that of perpetual infamy. But assuming the order in question to have been a regulation, within the meaning of the act, a violation of it is not declared to be a misdemeanor unless committed after it has been pub- lished. There is no allegation that it was ever published This was a condition precedent, and there being no averment 492 DECISION'S IN CRIMINAL CASES. Reed v. The People. of its having been complied with by the board, is a fatal objection to the indictment. Serving personal notice on the defendant, was not giving early and full publicity to it, and until it shall be so published no misdemeanor can be predicated of its disobedience. III. There were sereral errors committed by the court below upon the trial. 1. The evidence tending to show that the defendant had been guilty of creating a nuisance by scattering the contents of the privy through the streets of the village of Albion, was improperly admitted, for the purpose of proving a violation of the order of the board of health. It did not tend to establish his guilt upon the charge of violating the order, which was manifestly the only offence of which the public prosecutor was seeking to convict the defendant. It was so stated by the court in his charge to the jury. The disobedience complained of Was the omission by the defendant to perform certain affirmative acts enjoined by the order. The evidence in question could have no tendency to establish that charge, and its effect could be only to embarrass the jury, and create a prejudice against the defendant. If it was admissible for the purpose of convict- ing the defendant of a common law nuisance which is dis claimed on the part of the people it only fortifies the objection to the indictment, of duplicity. If the evidence had been re- ceived simply to bear on the question whether the order had been willfully violated, and had been confined to that object, perhaps it would have been unobjectionable. But the judge instructed the jury that it was proper to be considered by them upon the question whether the defendant had violated the order of the seventh of July. This we think was clearly erro- neous. 2. The defendant offered evidence tending to show that in the months of July and Angnst ( 1852) he gave directions in relation to cleaning up the premises in question. This was objected to on the part of the people and excluded by the court. We think, under the circumstances, it should have been ad- mitted. No gjround of objection is stated in the bill of excep- CAYUGA, JUNE, 1S/54. 493 Reed v. The People. tions, and no specific object avowed in the offer. We can see, however, a point of view in which it might have been proper, especially if it had been followed up with other evidence, which the defendant was virtually prevented by the court from doing. It was competent, we think, for the defendant to prove, a bona fide attempt on his part to obey the order of the board of health, and although such attempt might have fallen short of a full compliance, yet it would have been competent on the question whether the failure was willful. 3. There was evidence given tending to show that the de- f< ndant removed from the village of Albion about the 17th of J me, 1852, with his family, to his farm a mile and a half off fi )m the corporation of the village of Albion, where he had si ice resided. The court was requested to charge the jury that if they should find that the defendant, at the time of the making ai d serving the order, resided out of the corporation of the village of Albion, and that the notice or order was served on him out of said corporation, they should acquit the defendant. The court refused so to charge, but charged that if they should find that the defendant, at the time the order was made, resided out of said village, and continued to reside out of said village, and had no control of said premises, they should acquit him. We think the defendant was entitled to have the jury instructed as requested, without the condition or qualification imposed by the court. This point involves the question whether a municipal corpo- ration has power, through any of its agents or subordinates, to bind by its bylaws or regulations persons not members of the body, or residents of the locality embraced by the geographical boundaries of the corporation. I entertain no doubt that per- sons, residing out of such corporate bounds, may render them- selves obnoxious to the bylaws and regulations of the corporation by coming within, and while there violating them. But I deny the right of snch a corporation to make bylaws or regulations, binding personally upon an individual not residing within its geographical bounds, and who has done no act within them after the making of the bylaw. It is not important to deter- 494 DECISIONS IN CRIMINAL CASES. Reed v. The People. mine whether this board of health was a corporation; it clearly could possess no more extensive jurisdiction in regard to per sons or territorial limits, than the corporation of the village of Albion, by whose action it was brought into existence. It should be borne in mind that the charge against the defendant in this case was, not that he had done anything, but that he had omitted to perform certain things which the order required of him. Whatever his liability in reference to this order might have been, in case he had been a resident of the village of Albion, and therefore a member of the corporation, at the time the order was made, if he was not such a resident at that time, he was not amenable to its authority, or liable to obey its in- junctions. The court below made his liability to depend upon the questions, whether he continued to reside out of the village and whether he had the control of the premises. According to this holding, a man residing in the city of New York, owning premises in the village of Albion, of which he had the control, might be sent to the state prison for the acts of third persons, done without his permission or knowledge, or for omitting to perform any act in reference to such sanitary regulations as the board of health might see fit to require of him. Such a doc- trine would be intolerable; and I am not willing to concede to any municipal corporation, or any body of their creation, a power so fraught with danger to the rights of individuals with- out the express requirement of the legislative authority. The qualification of the charge in relation to the defendant's control of the premises, was unwarranted, assuming the order to have been a valid regulation within the meaning of the act, inas- much as the offence charged and for which the conviction was had, did not consist of any affirmative act done by the defend- ant within the bounds of the corporation after the rnakiug and publication of the regulation he was charged with violating. Judgment reversed ORANGE, JULY. IS54. SUPREME COURT. Orange General Term, July, 1854 Brown, Rockwell and Dean, Justices. GEORGE LAKE, pl'ff in error vs. THE PEOPLE clefts in error Form of an indictment for murder, with counts at common law and under the statute and form of a writ of er-ror to remove a criminal case from the Oyer and Terminpr to the Supreme Court. Opinions of medical witnesses upon a case of alleged insanity, with their statements of the symptoms and evidences of insanity. Every man is presumed to be sane till the contrary be shown. The burthen of proof of insanity to overcome such presumption rests upon the accused. The nature of the criminal act, the degree of motive, scientific opinions given on the trial and the legal inferences from the conduct of the prisoner, dis- cussed in the charge to the jury. Where the question to be determined by the jury is the sanity of a person, both the acts and declarations of the person are evidence for the purpose of ascer- taining the state of mind of the actor. Where, on a trial for murder, the defence set up is insanity, evidence may be received of the act* and declarations of the accused, as well before and after, as at the time of the homicide. But it is not competent to prove the effect which the prisoner's conduct had on the mind of another person on the day before the homicide, nor the acts nor declarations of the person killed, then made, in the absence of the pris- oner. The previously expressed opinion of the person killed is not admissible evidence on the question of insanity, nor would such person, if living, be permitted to testify to such opinion. If a medical witness has heard only a part of the testimony on which the piisoner's counsel relies to establish his defence, it is erroneous to permit such witness to give his opinion as to the prisoner's sanity, where such opinion is founded on the portion of the testimony so heard by him. To make the opinions of experts admissible, they must be founded on a given state of facts, which should embrace all the facts relied upon to establish the theory claimed. Medical men are allowed to give their opinions in cases of alleged insanity, because they are supposed by their study and practice to understand the symptoms of insanity and to possess peculiar knowledge on that subject, without which the jury could not be able to decide the question correctly, but they should not be permitted to express such opinion, except on all the testimony which is relied on to establish insanity. A medical witness, examined as an expert on a question of insanity, may be asked his opinion as to a hypothetical statement of facts-, he may also be asked what are the symptoms of insanity. Whether such facts exist or such ymptoms are proved ft belongs exclusively to the jury to decide. 496 DECISIONS IN CRIMINAL CASES. Lake v. The People. Where a record of conviction of a witness, for petit larceny, is offered in evi- dence for the purpose of discrediting such witness, it is not a good ground for rejecting such evidence, that it related to a transaction which occurred more than twenty five years before, though such evidence unaccompanied by proof of subsequent bad character, is entitled to but little weight. An indictment for the crime of murder was found against the plaintiff in error in the Dutchess Oyer and Terminer in the fol- lowing words: Dutchess County, ss: The jurors of the people of. the state of New York, in and for the body of the county of Dutchess, upon their oaths and affirmations, do present that George Lake, late of the Town of La Grange, County of Dutchess, and State of New-York, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the seventh day of June, in the year one thousand eight hundred and fifty-three, with force and arms, at the town of LaGrange, in the county of Dutchess aforesaid, in and upon one Hannah Cromwell, otherwise called Hannah Lake, in the peace of God and of the said people of the state of New York, then and there being then and there feloniously, willfully and of malice aforethought, did make an assault, and that the said George Lake, with force and arms, with a certain axe, which he the said George Lake then and there held, in his hands, the said Hannah Cromwell, otherwise called Hannah Lake, in and upon the head of her the said Hannah Cromwell, otherwise called Hannah Lake, feloniously, willfully, and of malice aforethought, did strike, beat and cut, giving her the said Hannah Cromwell, otherwise called Hannah Lake, by such striking and beating and cutting, one mortal wound, in and upon the head of her said Hannah Cromwell, otherwise called Hannah Lake, and in and upon the left side of the head of her said Hannah Cromwell, otherwise called Hannah Lake, of the length of three inches and of the depth of one inch, of which said mortal wound, she, the said Hannah Cromwell, otherwise called Hannah Lake, on the said seventh day of June, in the year one thousand eight hundred and ORANGE, JULY, 1854. 497 Lake v. The People. fifty three, aforesaid, at the town and in the county aforesaid did languish, and languishing did live, until the eleventh day of the same month of June, and afterwards, to wit on the said eleventh day of June, in the year and at the place last aforesaid, the said Hannah Cromwell, otherwise called Hannah Lake, of the said mortal wound died; and so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said George Lake, the said Hannah Cromwell, otherwise called Hannah Lake, in manner and form aforesaid, feloniously, > willfully, and of malice aforethought did kill and murder, against the peace of the people of the state of New York, and their laws, and dignity, and against the form of the statute in such case made and provided. And the jurors aforesaid upon their oaths and affirmations, aforesaid, do further present that George Lake, late of the town of LaGrange, in the county of Dutchess and state of New York, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the seventh day of June in the year one thousand eight hundred and fifty-three, with force and arms, at the town of LaGrange, in the county and state aforesaid, in and upon one Hannah Cromwell, otherwise called Hannah Lake, in the peace of God and the people of the said state, then and there being, then and there feloniously, willfully, unlawfully, and from a premeditated design to effect the death of the said Hannah Cromwell, other- wise called Hannah Lake, did make an assault, and the said George Lake, with a certain axe made of iron and steel, of the value of one dollar, which he the said George Lake, in his hands then and there held, the said Hannah Cromwell, other- wise called Hannah Lake, in and upon the left side of the head of her, the said Hannah Cromwell, otherwise called Hannah Lake, just above the ear of her the said Hannah Cromwell, otherwise called Hannah Lake, then and there unlawfully, willfully, maliciously, and of his malice aforethought, did strike, thrust, beat and cut, giving to the said Hannah Crom- well, otherwise called Hannah Lake, then and there, \\ith the axe aforesaid, in and upon the left side of the head of VOL. I. 63 498 DECISIONS IN CRIMINAL CASES. Lake v. The People. her the said Hannah Cromwell, otherwise called Hannah Lake, just above the ear of her the said Hannah Cromwell, otherwise called Hannah Lake, one mortal wound, of the length of three inches, and of the depth of one inch, of which said mortal wound the said Hannah Cromwell, otherwise called Hannah Lake, from the said seventh day of June in the year last aforesaid, until the eleventh day of June, in the same year, at the town aforesaid, in the county aforesaid, did lan- guish, and languishing did live, on which said eleventh day of June in the year aforesaid, the said Hannah Cromwell, other- wise called Hannah Lake, at the town of LaGrange aforesaid, in the county aforesaid, of the said mortal wound did die; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said George Lake her the said Hannah Cromwell, otherwise called Hannah Lake, in the manner and by the means aforesaid, feloniously, willfully, unlawfully and of malice aforethought, and with a premeditated design to effect the death of the said Hannah Cromwell, otherwise called Hannah Lake, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of New York, and their laws and dignity. And the jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that George Lake late of the town of La Grange, in the county of Dutchess and state of New York, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the seventh day of June in the year one thousand eight hund- red and fifty-three, with force and arms, at the town aforesaid, in the county aforesaid, in and upon one Hannah Cromwell, otherwise called .Hannah Lake, in the peace of God and the said people then and there being, then and there, feloniously, willfully, and of his malice aforethought, did make an assault, and that the said George Lake, with a certain axe and a cer- tain sword which he the said George Lake in his hand then and there had, and held, the said Hannah Cromwell, otherwise called Hannah Lake, in and upon the head, neck, arms, legs, and body of her the said Hannah Cromwell, otherwise called ORANGE, JULY, 1854. 499 Lake v. The People. Hannah Lake, then and there feloniously, wilfully and of hi& malice aforethought, did strike, cut and thrust, giving to the said Hannah Cromwell, otherwise called Hannah Lake, then and there, with the axe and sword, aforesaid, in and upon the head, neck, arms, legs and body, of her the said Hannah Cromwell, otherwise called Hannah Lake, several mortal wounds, to wit: one mortal wound on the right side of the head of her said Hannah Cromwell, otherwise called Hannah Lake, of the depth of one inch and the length of four inches, one mortal wound on the left side of the head of her the said Hannah Cromwell, otherwise called Hannah Lake, of the length of four inches, and of the depth of one inch, one mortal wound on the neck of her the said Hannah Cromwell, other- wise called Hannah Lake, of the length of three inches, and the depth of two inches, one mortal wound on the top of the head of the said Hannah Cromwell, otherwise called Hannah Lake, of the length of three inches and of the depth of two inches of which said mortal wounds the said Hannah Crom- well, from the said seventh day of June in the year aforesaid, until the eleventh day of June in the year aforesaid, of the town aforesaid and the county aforesaid, did languish and languish- ing did live, on which said llth day of June in the year a r ore- said, the said Hannah Cromwell, at the town aforesaid, in. the county aforesaid, of the said mortal wound aforesaid, died; and the jurors aforesaid, upon their oaths aforesaid do say that the said George Lake the said Hannah Cromwell, otherwise called Hannah Lake, in manner and form aforesaid, feloniously, will- fully and of his malice aforethought, did kill and murder, contrary to the form of the statute in such case made and pro- vided and against the peace of the people of the state of New York, and their laws and dignity. And the jurors aforesaid, upon their oaths and affirmations aforesaid, do further present that George Lake, late of the town of LaGrange in the county of Dutchess and state of New York, laborer, not having the fear of God before his eyes but being moved and seduced by the instigations of the devil, on the 7th day of June, in the year 1853, with force and arms at the town 5QO DECISIONS IN CRIMINAL CASES. Lake v. The People. aforesaid in the county aforesaid, in and upon one Hannah Cromwell otherwise called Hannah Lake, in the peace of God and the people of said state then and there being, then and there feloniously, willfully, and of his malice aforethought and from a premeditated design to effect the death of said Hannah Cromwell, otherwise called Hannah Lake, did make an assault, and that the said George Lake then and there with force and arms and with certain instruments yet to the jurors aforesaid unknown which he the said George Lake then and there had and held in his hands of him the said George Lake the said Hannah Cromwell otherwise called Hannah Lake in and upon the head, face, and neck of her the said Hannah Cromwell otherwise called Hannah Lake, feloniously, willfully and of malice aforethought and from a premeditated design to effect the death of the said Hannah Cromwell, otherwise called Hannah Lake, did strike, beat, cut, then and there giving her the said Hannah Cromwell otherwise called Hannah Lake, by such striking, beating, cutting, divers mortal wounds and contusions in and upon the head, face and neck of her the said Hannah Cromwell otherwise called Hannah Lake, to wit: one mortal wound on the left side of the head of her the said Hannah Cromwell otherwise called Hannah Lake just above the ear of the length of four inches and of the depth of two inches, also one other mortal wound on the right side of the head of her the said Hannah Cromwell otherwise called Hannah Lake, just above the ear, of the length of five inches and of the depth of two inches; also one mortal wound on the top part of the head of her the said Hannah Cromwell otherwise called Hannah Lake above the wound aforesaid on the left side of the head of the said Hannah Cromwell otherwise called Hannah Lake of the length of five inches and the depth of two inches, and - divers other mortal wounds in and upon the head, face and neck of her the said Hannah Cromwell otherwise called Han- nah Lake, of which said mortal wounds and bruises the said Hannah Cromwell otherwise called Hannah Lake, from the said seventh day of June in the year aforesaid until the ; elerenth day of the same month of June, in the year aforesaid, OKANGE. JULY, 18.54. Lake v. The People. at the town aforesaid, in the county aforesaid did languish and languishing did live, on which said eleventh day of June in the year aforesaid the said Hannah Cromwell otherwise called Hannah Lake at the town and county aforesaid of the said mortal wounds and contusions aforesaid diedj and so the jurors aforesaid upon their oaths and affirmations aforesaid do say that the said George Lake the said Hannah Cromwell otherwise called Hannah Lake in manner and form aforesaid feloniously, willfully and of malice aforethought and from a premeditated design to effect the death of the said Hannah Cromwell otherwise called Hannah Lake did kill and murder contrary to the form of the statute in such case made and pro- vided and against the peace of the people of the state of New York and their laws and dignity. A plea of not guilty was interposed, and on a trial before the Dutchess Oyer and Terrniner, the plaintiff in error was con- victed and sentenced to be executed. Proceedings were subse- quently stayed and the cause was brought into this court by a writ of error and allowance in the following words: The people of the state of New York to Seward Barculo, Egbert Q. Eldridge, and Rensselaer Case, Supreme Court Jus- tice, County Judge, and Justice of the Sessions, forming the Court of Oyer and Terminer, in and for the County of Dutchess, sitting at Poughkeepsie, in said county, on the 4th Monday of September, 1853. Because in the record and proceedings, and also in the giv- ing of judgment, upon an indictment against George Lake, of the town of LaGrange, in said county, for the murder of Han- nah Cromwell, alias Hannah Lake, of said town of LaGrange, which was tried before you at said term of said court of Oyer and Terminer, manifest error has intervened to the great dam- age of the said George Lake, as by his complaint we are informed. We being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done in this behalf, do command you, that if judgment be 502 DECISIONS IN CRIMINAL CASES. Lake v. The People. thereupon given, then you send to our justices of our Supreme Court, distinctly and openly, under your seal, the record of that judgment and proceedings, upon the indictment aforesaid, with all things concerning the same, and that you cause this writ and the return thereto to be filed, forthwith, in the office of the clerk of the Supreme Court, of our said state, in the said county of Dutchess, after the service of this writ, that the record and proceedings aforesaid, being inspected, we may cause to be further done thereupon, for correcting that error, what of right, and according to the law and custom of the state of New York, ought to be done. Witness Seward Barculo Esquire, one of the justices of our said court, at Poughkeepsie, this 3d day of December, A. D. 1853. George H. Tompkins, Clerk. H. & M. HALE, Attorneys. I hereby allow the foregoing writ of error and expressly direct that the same shall operate as a stay of execution and of all proceedings on the judgment upon which said writ is brought. S. BARCULO, Justice of the Supreme Court. Dated December 3d, 1853. By the return to the writ of error, it appeared the indictment was tried at the Dutchess Circuit before Barculo, J., of the Supreme Court, assisted by Eldridge, County Judge, and Case, Justice of the Sessions, on the 26th day of September, 1853, when the following proceedings took place: The district attorney first introduced, as a witness in behalf of the people, Henry Robinson, who, being duly sworn, said that he was acquainted with the prisoner at the bar, lived 200 or 250 rods from where the prisoner formerly lived, in the town of La- Grange. On the 7th day of June last, between 10 and 11 o'clock, A. M., he saw Hannah Cromwell or Lake, coming out of the house, Lake (the prisoner) close behind her. Lake ORANGE, JULY, :s;4. Lake v. The People. whirled her round, and dashed her head towards the door, he then stepped round on the west side of the post, and took up, 1 thought it was an axe, and struck her; I heard the woman halloo "Oh George! don't kill me," and repeat it twice. This was before he struck her, I then went after help, and when we came back Hannah lay in the same spot where I saw her before. I didn't go to the house; saw her brought from the house in a wagon; couldn't tell from her appearance whether she was dead or alive; saw her again, dead, the day she was buried, four or five clays after I saw her hurt. The district attorney next put upon the stand, Dr. Samuel Dodge who testified that he was a physician, residing in Union Vale, that he saw Hannah Cromwell or Lake, about the 7th of June last, when she was injured, and he then examined her wounds, and found a fracture of the skull and several cuts in the scalp, that she was carried to a house and remained about three days and died, that the cause of her death was the wound spoken of. On his cross-examination this witness testified, that the frac- ture was about an inch or inch and a half above the ear, the brain was protruding; it might have been made with an axe; the scalp was injured. I suppose by falling; I saw the children, the youngest had one side of the head cut through and down through the lower jaw, it was not such a wound as would have been inflicted with an axe, it was too long; one child was a year and a half old, the other three years; the skull of the oldest child was broken and a piece carried away, as if with a club or bludgeon; I saw Lake three or four weeks before the occurrence; he was in the habit of treating his family as well as any other man would; he lived with the woman .as his wife, he called on me to visit her professionally as his wife; I never saw him drink, I don't know as I ever saw him unduly excited by liquor. The district attorney next called, in behalf of the people, Carpenter D. Townsend, who testified as follows: I live at LaGrange; know prisoner; have known nim by sight ten or twelve years; have not seen him very frequently; 604 DECISIONS IN CRIMINAL CASES. Lake v. The People. about as often as three or four times a year; took him in cus- tody as an officer for the offence; had him in charge the next night; talked with him there; he said he killed this woman Hannah Cromwell alias Lake; he said that she had a deed which he had given her, which he wanted her to give back to him, but she refused to do so; he said that was the reason why he killed her; he thought that if she had given up the deed she would still have been living; had a conversation w r ith him after that; he would talk with me till I had delivered him to the sheriff, he conversed freely and calmly whenever I talked to him; have seen him since in jail, but he would not talk with me; don't think that I have ever seen him at work on his place; understood him to be a clock repairer, have seen him at work at it; saw him repair a clock in 1849. Cross-examination by Mr. Hale: I asked him if he had given her a deed, he said he had; asked him if he had tried to make her give it up, he said he had; I have acknowledged to you (Mr. Hale) that prisoner said that if she had given up the pa- per he would not have killed her; prisoner appeared to make an effort to appear strange, I said he did tolerably well for a green hand; could not explain how he acted exactly, but he produced upon my mind the impression that he tried to appear strange; when he had time for reflection he would sometimes give a vague answer, but when he was pressed he would talk as usual; asked him why he had killed his children, he replied " that as he had commenced the job, he thought he would finish the breed;" he gave a detailed account of the occurrence; he said he killed the woman first; he threw her down upon the door step and killed her with an axe; he said he next took the older child and dashed it against the door steps, he thought that killed it; he did not strike it with a weapon; he killed the other with an axe; it was up stairs; he killed it with an axe and threw it out of the window: was at the house; did not see him shot; he was bleeding when arrested; I saw blood in the room where he was arrested; did not see marks of violence on any furniture; have never seen him intoxicated; when I first saw him, he was out of the house and nearly naked; he ORANGE, JULY, 1854. 595 Lake v. The People. had on a garment I supposed to be a woman's night gown; he had on no other clothes; this was about 2 o'clock in the after noon. Direct resumed I washed his wounds with water; had a conversation with Mr. Hale in his office; the conversation I had with prisoner commenced by my asking him if he had given the woman a deed of the place where he lived; he said he had; I then inquired of him whether he had tried to make her give it up. He said he had, and she refused to do so; asked him if that was the cause of his killing her. He said that it was; he further said that if she had given up the paper she would have been still living. The district attorney then offered in evidence a deed from George Lake to Hannah Cromwell, of the premises upon which they resided, dated 21st January, 1853, recorded Feb'y, 1853. It was read to the jury. George Cromwell sworn for the prosecution: I knew Han- nah Cromwell; she was my daughter; guess she was never married to George Lake; never knew they were married; if she was living she would be 24 years old the 25th of this month; she commenced to live with prisoner about 3 years ago last January; knew Lake about 4 years before he lived with Hannah; Hannah's sister lived in the same house with Lake; Hannah used to go down there to see her; Lake brought her home twice. The prosecution here rested. Levi Vincent was then sworn for the prisoner, and testified as follows: I was present at the house of the accused on the 7th of June last; Cyrus Perkins came to my house about the middle of the day, he came after me, we went to his house, we saw the prisoner in an upper room, standing before a window; he had nothing on but a woman's night gown; it had short sleeves; it came down aBout to the hips; it was while he stood there before the window flourishing a short sword; heard him say " all those that are in the right way shall not be destroyed, but them that ain't will;" he flourished his sword and said it was Gen. Washington's sword; I was about 12 rods from the house, VOL. I. 64 50(5 DECISIONS IN CRIMINAL CASES. Lake v. The People. was in the road; saw two dead bodies lying in front of the house; one was the woman he called his wife; the other was his child; do not know, but think he could see the bodies from the window where he was standing; should think he could; he laughed sometimes, sometimes sung; and sometimes he appeared to be dancing; did not see him cry; remained there at the house one hour and a half or two hours; this course continued nearly all the while; we commenced breaking up the floor about one hour after I got there; we tore up the floor with an axe; saw him pass the window; he was walking around the floor in a circle while we were breaking up the floor; the sword was pointed down most of the time, his head down too; he kept moving so, with his head down; he continued to do so until we tore up the second board in the floor, then he left; don't know where he went till he was shot; the blood was running from his arm in quite a stream; it was running from his face, arm and breast; a good deal of blood came from him; about half a pint; might have been more or less; some of the company then went up and took him out and put him on a straw bed; Ste- phen Manchester, Archibald S. Colwell, Edwin Colwell, Hub- bart Duncan, Alfred Van Black, Washington Vincent, Cyrus Perkins and Jonathan Moore were near there and a good many more; the windows were broken out, beds were thrown out cf doors, some stove pipe, some bedsteads, tables, and a rifle; the rifle appeared as if it had been struck with an axe or some sharp instrument; it was cut on the breech, and on the barrel; saw marks of an axe on the bureau and clock; they appeared as though they had been struck with a dull axe; they were pretty well broken up; had not seen Lake for a week and a half before this; then saw him pass on the road; he was driv- ing his horse; he drove much slower than I had formerly seen him do; he did not appear to notice me; he looked more wild out of his eyes and appeared more downcast than usual; when I first saw him he was turning his wagon around in the road; I spoke to him but he did not reply ; he turned his wagon twice round; he was in the act of turning round when I saw him; he looked wild; this was a few days before the tragedy; ORANGE, JULY, 1851. Lake v. The People. t live about half a mile from him; am a blacksmith, farm it sometimes; never saw but that he was kind to his family; never have seen anything but what he was kind towards his children; after he was arrested, I searched the house a good deal to find some liquor, but found none, or any fire-arms, found no powder or balls or any ammunition; his place was worth about two hundred and fifty or three hundred dollars. Cross-examination: Don't know that he was worth any other property besides his place; have known him since he was a boy; know his father; live about a mile and a half from where Lake lived; prisoner has one sister living; no brother, no mother living; did not propose to knock him on the head with a hammer because he was ugly; saw no hammer there; when I first arrived there my attention was attracted by his halooing and flourishing his sword; could see him walk around in a cir- cle; could not say what he went around to see; don't think I heard him say anything about shooting; don't recollect that he said he would kill any one who tried to arrest him; all hands appeared to be afraid to go and arrest him; saw blood run from his arm in a stream; when we were breaking through the floor he kept walking in a circle; he continued to do so; they laid him on a bed when they fetched him out; have known him from a child; the last time I saw him before was about a week and a half before the tragedy; he was working on his place; he was in a field; don't know what he was doing; he appeared to be planting corn; this was about one week and a half after I saw him in the road; I was going east at the time I saw him on the road; his wife and child were with him; this was the time I saw him turn around; I bowed to them; neither one of them spoke; he was in the act of turning around when I just saw him; he turned away around again, then passed on; he was rather reserved; he was always a person of few words: he was not always short or abrupt in conversation; have had a considerable conversation with him about his place; don't know that I ever saw him enter into extended conversation with any one; saw marks of violence before I went into the house; a piece of a chest split off and a rifle; don't know when the 508 DECISIONS IN CRIMINAL CASES. Lake o. The People. chest was split; don't know how the marks were made on th furniture in the house; he made a loud noise, heard it nearly to the house where I lived which was over half a mile; a loud, boisterous noise, like preaching; was present at an examination of the prisoner 4 or 5 weeks previous, before a magistrate; he appeared strange, his eyes looked wild and his face appeared to twitch. Polly Phillips sworn. I live a fourth of a mile from Lake; have lived in the vicinity eight years; saw prisoner the night before this tragedy; I went there to see him; it was on Mon- day between five and six P. M.; saw him and his family; he was sitting on a bureau in the northeast corner of the room; he was sitting on a bureau with his feet in a drawer. I asked him to go and fix a clock for me, but he would not notice me; his wife spoke to him and told him I carne to get him to fix a clock, but he would not notice her. I could not understand all he said; once in a while he would slap his hand and say, ** well, there and no mistake." She repeated to him many times about my coming to get him to fix a clock; so did I, but he would not pay any attention to us. He repaired clocks. When I went to go down from his room the last time, I think he said, " Poll Phillips." I observed that he laughed and cried both; put his hand up to his head and rubbed his head and kept spitting; he would raise up and press his head against the wall, as he sat on the bureau; he always treated his family well before this; he and the woman said they were r. arried and called each other man and wife; I first saw Hannal that after- noon by the road. The defendant's counsel then asked this witness, ' what was she doing when you saw her there?" To this question the counsel for the people objected and the court sustained the objection and excluded the question, to which decision of the court defendant's counsel then and there- upon duly excepted. Defendant's counsel then offered to show by this witness that the woman Hannah was then in tears. The court rejected the offer, to which rejection by thQ court defendant's counsel duly excepted. ORANGE, JULY, 1854. Lake r. The People. Defendant's counsel then offered to prove from the declarations of Hannah, the night before the alleged murder, that the con- duct of Lake had been so strange and unnatural, as to alarm the wife and family; that the wife exhibited this alarm the night before the alleged murder in complaints to the neighbors and to show what these complaints were. This evidence the court refused to admit, to which refusal defendant's counsel thereupon duly excepted. Defendant's counsel then offered to show the declarations of the wife and the expressions of alarm made use of by her the night before the alleged murder, as the effect from which the jury can reason to the cause, in the insanity of the prisoner; this offer the court rejected, unless made in prisoner's presence, and defendant's counsel thereupon duly excepted. The witness then proceeded 1o say, there were some bedclothes out of doors when I was there. Cross-examined I have known prisoner eight years; have seen him sometimes every day the last five years; he was a man of few words; I never heard him say a great deal; don't think he was blunt in his speech; have never seen him intoxicated. Catharine Johnson sworn I live at Pleasant Valley; knew Lake when he was a boy; I lived about a mile from him; saw him on the 6th of June last between 9 and 10 o'clock, A. M.; he was walking on his stoop, he was rubbing his head with his hands and making terrible shrieks; the noise was very loud and continued till I got out of hearing; could hear him over half a mile; saw him put his hands on his wife's neck, and hold his head on her neck, and cry very bitterly. I said nothing to him; was there about five or ten minutes; went by the house after that the same day; did not see him or hear any noise; have worked for him last winter when his wife was sick; never saw him do anything amiss to his family; never saw him act other- wise than kind and pleasant to his family; have been there to work perhaps a dozen times; went there at prise ner's request; was there when Hannah was confined; was there when she had her first and last child; he acted kind and tender to his family; never saw him out of the way with liquor. 510 DECISIONS IN CRIMINAL CASES. Lake v. The People. Cross-examined When I first saw him his wife was sitting on the step of the door; she appeared to sit there sewing; he was on the stoop walking backwards and forwards; he would first rub his own head and cry, then he would put his arms around her neck, with his face down her neck and cry; she did not raise up when he did so. I am not more friendly towards him than to his wife and children; have been in the house four or five times within the year past; the noise he made could be heard for half a mile; have been in the county jail a great many times. The district attorney here asked this witness the ques- tion, "Were you imprisoned in the county jail in 1827?" This question was objected to by defendant's counsel, as not being the best evidence of such imprisonment, if any there had been; this objection was overruled by the court and the question ad- mitted, to which decision of the court defendant's counsel thereupon duly excepted. Witness declined answering the ques- tion, and the court refused to compel her to answer it, to which refusal the district attorney duly excepted. Direct resumed I am fifty-one years old; saw the prisonei in jail when he was confined, for shooting at his brotherinlaw, a few weeks before this occurrence; he then walked around the room and whispered a good deal to his wife; he cried when he took his children from my arms into his; he walked around and said if it was not for his wife and children he would as lief be there as anywhere; don't know as I am related to prisoner; could not tell whether he looked when he was in jail as he he looks now. When the next witness (Dr. Varick) was called, the prison- er's counsel stated to the court that several medical witnesses were present, who desired to leave court as soon as possible, and requested the court to intimate what rule would be adopted in relation to the examination of those who had not heard all the testimony, and also in relation to the proper forms of ques- tions to be put. The court then informed the respective counsel that medical witnesses who had heard the principal facts of the case and enough of the testimony to form an opinion, might be examined ORANGE, JULY, 1854 Lake v. The People. although they had not heard all the testimony, and that the question might be put to them whether from the testimony they considered the prisoner insane when the homicide was commit- ted; but that the counsel would not be permitted to ask whe- ther if certain facts and circumstances were true it indicated insanity. Dr. Richard Jl. Varick was then sworn for the defence and testified as follows: I have heard the testimony this morning; I think it indicates a condition of insanity at the commission of the act; I doubt that he was capable of knowing what he was doing; from my examination I think there is undoubtedly derangement of the brain to a considerable degree; from what I have observed, I think he is not in a sane state of mind now. The defendant's counsel then asked this witness, " What would the fact that at the time of the killing of his family, the prisoner destroyed most of the furniture, broke out most of his windows and destroyed the window sashes indicate to your mind?" To this question the counsel for the prosecution ob- jected and the court sustained the objection and excluded the question; to which the defendant's counsel duly excepted. The defendant's counsel then asked the question, " What would the fact that the prisoner perpetrated such an outrage as is indicated in the previous question in broad day light, accom- panied by no attempt to escape or conceal the deed indicate to your mind?" To this question the counsel for the prosecution objected, and the question was excluded by the court, to which decision of the court defendant's counsel thereupon duly ex- cepted. Witness proceeded My reasons are his inattention to his counsel, his apparent indifference to his situation; wholesale murder indicates a state of insanity; have seen prisoner in jail three times; I was with other physicians; there is nothing to indicate violent passion at the time of the murder; this, with other circumstances, induces me to think him insane at the time of the offence. Cross-examined The symptoms of insanity in this man arc stupidity, indifference in matters concerning life, unsteadiness 512 DECISIONS IN CRIMINAL CASES. Lake v. The People. of the eye; I mean by stupidity, that he seems to be unaffected by appeals made to him; he don't take the interest in the pre- liminary steps to the trial that I should suppose he would; he could probably take no better course to save his life; I don't rely upon that entirely; I rely upon this as showing a continu- ation of the same disease; I think any man, who kills in this way without sufficient motive insane; a man, might kill in a momentary passion; I consider that revenge might be a sufficient motive; acquiring a large amount of property, or concealment of a previous crime. On his cross-examination, this witness was asked by the dis- trict attorney the following question: "Do you consider killing, unless with apparent motive, prima facie the act of an insane man?" To this question defendant's counsel objected, but the question was admitted by the court, to which admission defend- ant's counsel then duly excepted. Witness answered, I consider killing without some of these motives prima facie evidence of insanity; I have considered the man insane since he first came to jail; I now consider him in- sane but can not say to what extent; a person may be insane n a single subject and sane on all others and responsible for his acts; as far as I can judge he is wholly insane; a man is able to do a rational act, if he is wholly insane, and may be insane while he does that act; I do not consider Lake a mono- maniac; I am sufficiently acquainted with insanity to give an opinion whether he was insane at the commission of the act. By the Judge I get my experience mostly from books and partly from actual .experience; I have examined his physical situation as regards insanity, but found nothing especial; his struggles while going in and out of court are worth nothing of themselves. Levi Vincent recalled Prisoner was asked by Mr. Moore to come down from where he was; he made a queer reply, and laughed; he was asked the same question by some other person and made the same sort of an answer. Jonathan Moore sworn I was at Lake's house on the day of the murder; I was requested to go; got there about 1 o'clock; ORANGE, JULY, 1853. Lake v. The People. we stopped on the way to get some assistance; when I first saw him he remarked, " you are a nice Quaker;" he said he also was a Quaker and always had been; I asked him to deliver himself up; he repeated my name twice in succession in a snetring manner; he then turned around from the window; he had a sword in his hand which he kept flourishing; he had nothing but a shirt on; he occasionally called aloud, and called me by name in a sort of a muttering way; a few days previous he was on examination for attempting to shoot his brother, and he wanted me to attend, but I told him that I could be of no use; that he had better get a person to go his bail or he would be locked up; he said that was impossible, and that he did not want a bondsman; I told him I would come according to his request and attend his trial; he stated he was to be tried for shooting his brotherinlaw. Cross-examined His reply to me was, " Just so, Jonathan Moore, down m the mud;" he repeated it three times. Elmore Ji. Vincent sworn I saw the prisoner in the road with a horse and wagon about the middle of last May; when I first saw him he was walking around the horse and wagon in a circle; his wife and child were with him; he went around so per- haps twelve or fifteen times; after walking awhile so he got in and drove forward about fifty or sixty rods; he then got out, look the horse by his head and turned him around for more than ten minutes; he then let the horse stand and walked himself around the horse and wagon about eight or ten times; he then got in and drove a little further, and then got out, took his horse by the head and turned around again about as long as he did the other time; he then got in and drove; went out of sight; his wife drove; have not seen him since till to-day. Cross-examined 1 looked at him; can not say he was or was not intoxicated at that time. William Jible sworn Corroborated the evidence of E. A. Vincent. George Bostwick sworn I saw the accused on the 28th of April last; he was &n his place at work making fence; I ar- VOL. I. 65 514 DECISIONS IN CRIMINAL CASES. Lake v. The People. rested him and brought him to jail; I had a conversation when I brought him to jail about security. He said he did not shoot at his brotherinlaw, but shot it a crow; he staid at my house one night in the month of May; at about 12 o'clock at night I heard a noise as though some one was crying, and then I heard a laugh thought it was him. Cross-examined I do not know he made the noise; it came from that direction. Isaac Weeks sworn I saw prisoner about four or five days before the commission of this offence; he came to the shoe shop where I w?s at work and asked for some shoe thread; he asked for one ball of shoe thread, and then for two; we handed him two balls; he looked at them for a moment and then threw them both on the floor; he then looked at them for a moment and picked one up, paid for it, and went away; he was in the habit of coming for shoe thread, but not for quite awhile; he never acted so before. Dr. Charles H. Jindrus sworn I have examined Lake since he has been in jail; the first time I saw him was two wrecks since; he was sitting on his bed, with a testament in his hand, open; he did not appear to take much notice of us. His coun- sel told him we had come in to talk with him about his trial; asked him if he knew he was to be tried for the murder of his wife and children; he took no notice of what was said; his pulse was regular; he paid no attention to the question, what book he was reading; we undertook to take the book away, but he would not give it up; his counsel asked him if he knew what the effect of his being brought in guilty would be; it had no effect in quickening his pulse; we could perceive no emotion; we were in the cell one half or three quarters of an hour; he did not speak a word; we took the book from him by pulling it away. I was there three or four days after with Dr. Hillis; we found him standing in his ceil opposite his window; we said, George, how do you do to-day? he replied, I guess George is pretty well; his pulse was quicker; he was asked if he knew he was going to be tried for killing Hannah, arid what he had to say for himself; he said 1 e had enough to say when the time ORANGE, JULY, 1854. Lake v. The People. come; I think the expression was, " George can tell for him- self." Dr. Hillis asked him what book he was reading the last visit; he made no reply: the Doctor got the book and asked him if he thought it was a good book, and if he found consolation in it; he said the consolation was there, and it might stay there. I asked him if he knew where his children were; he said be hoped in a great deal better place than he was. This was ac- companied with a kind of laugh. Dr. Hillis asked him if he was aware of the consequences of his being brought in guilty; he took no notice of it; he was asked if he knew he must be hung; he said, " if they must hang, they must hang," with another laugh. One of us asked how he could be so jolly ou such a serious matter; he said it was a serious matter, laughing heartily; he said he did not know when he was brought here; he only knew he was here, with a peculiar kind of expression of countenance and more sober than usual. I was there again, there was very little difference between the second and third interview; he was not so talkative. When we came away one of us took him by the hand, and he commenced weeping, and while the tears were coursing down he broke out into an unna- tural laugh; this continued a few moments; when asked what was the matter, he made no reply: he hesitated to give me his hand; he reached out his hand, and said it was in a poor con- dition to take hold of, and when Dr. Hillis took hold of his hand, he commenced sobbing aloud. When I next saw him Dr. Varick was with us; he paid no attention to the question what he wanted done; he was asked if he really did kill Hannah and the children; he said with a laugh, there was more than my hands in that. I say, unhesitatingly, that he is insane; I have heard the testimony which has been given to-day; after hearing the testimony I can say that it is my opinion that he was in- sane at the time of the occurrence. Cross-examined t had formed an opinion before I heard the testimony that he was insane at the time of the occurrence; I pronounce this " homicidal mania/" I mean a disposition to destroy not only human life but everything else; as far as I am able to judge, be is wholly insane; I considered the answers 516 DECISIONS IX CRIMINAL CASES. Lake v. The People. which he gave me in jail were irrational, that is, the particular words were not always irrational, but the manner of giving them; I was never in there withont one of his counsel. His counsel said once, that we had come to see if he was insane; but not the first time; we did not talk freely in his presence; the remark about our coming to see if he was insane was made I think on the third visit; the symptoms are an inattention to what is said; a want of correct reasoning; there are peculiar expressions of the eye: I see it in Lake; a peculiar position of the head, holding it forward with a sort of blank expression of countenance; he would go from one extreme to another, laugh- ing or weeping immoderately without assignable cause; I don't think a person could feign insanity and keep it up for several hours; sleeplessness is one of the accompaniments but not ne- cessarily a symptom; insane persons are often troubled with constipation; most insane persons are not as sensitive to bodily injury as sane persons. Persons afflicted with " homicidal mania" may be sensible of right and wrong, but unable to con- trol themselves. One peculiarity which I observed in this case was when a person's nostrils are dry it is impossible to start the secretion in the nose instantly as in this case, when commencing to weep. By the Judge I noticed an odor which I have noticed about insane persons who were confined; the increase in the beats of his pulse might have been caused by his physical exertions while we were there; there is a sort of shining and at the same time an intellectual dullness in his eye; his head is in a different position from what is usual. Direct resumed I should place no reliance on the peculiar odor spoken of, only in connection with other circumstances. Dr. M. H. Ranney sworn I reside at the New York city lunatic asylum; have been there nearly seven years; have had over 3000 insane persons under my care; I have examined the prisoner twice in his cell with Dr. Brown; on entering the cell the prisoner was at the window; he was spoken to but paid no attention to us; he commenced walking backward and forward in his cell; after a time he went to the door; placed his back ORANGE. JULY, :854. Lake v. The People. against it, using sufficient force to throw it open, although some one was behind it, and attempted to rush down stairs, but he was brought back to his cell; he said it was unfair to treat a man in that manner, and said he wanted to go down stairs and see his brother-in-law below. He answered some few ques- tions, but refused to give any answers in relation to the com- mittal of the homicidal act; I could obtain but little from his conversation; there is a dullness about him and no disposition to talk, and he seemed to take but little interest in things around him; I thought he was insane or simulated insanity; I examined him this morning in relation to matters generally; he conversed passably well, and while he was answering Doctor Brown I took down his answers formally; it made no difference in his answers; the subject was farming: most of his answers to the questions were correct When we referred to the homicidal act he would not give a direct answer. I conceived there might be a hidden delusion which he was unwilling to express; from this last examination I came to the conclusion that he w r as not simulating insanity, because it would require considerable knowledge of the disease to keep up the symptoms in a con- versation; the forms commonly simulated are acute mania and stupidity; he did not simulate either of these forms: they ge- nerally overact when they simulate, but his answers were very proper except on the subject of the homicide. One can hardly distinguish insanity from the eye alone or from the expression of the face alone; have heard all the testimony; form my opinion from the testimony presented and from my examination; I re- gard it as sufficient evidence that he was insane at the time he committed the act and is insane now; if Mrs. Johnson's testi- mony was omitted or had not been given, my belief would still have been that he was insane. The reasons of my opinion are based on the eccentricities which existed previous to the act, which were the initiatory acts; from the want of an adequate motive for the killing of the children, and from his present condition. Cross-examined- The symptoms of mania after the act, weie his appearing 1 naked, his flourishing the sword which he called DECISIONS IN CRIMINAL CASES. Lake v. The People. the sword of Washington, his not attempting to escape: these were the principal causes; there is a vague expression of the eye, nothing which I can mark particularly; from the manner in which he carries his head alone, it would not seem he was insane; his answers in relation to agriculture were correct; he made no foolish answers that I can remember: he answered on all subjects except on this act; he is not insane generally; it must be a monomania, or a delusion of some kind, or a case of homicidal mania proper, which is characterized by irresistible impulse. My impression is that there is some concealed delu- sion, that is a belief in the existence of an object which does not exist; a person may be under the influence of this delusion and be capable of judging of what is right and wrong; a person might believe in spiritual knockings and yet not be insane; that may not constitute insanity; that may be a delusion and yet not an insane delusion; in an insane delusion the senses will not correct them; a delusion might influence other subjects; his actions when Mrs. Phillips was in the house were evidences of insanity; the eccentricities which existed before the act were premonitory. If I saw this man in any place and he had not committed any act, and I had not been told of his being sus- pected of simulation, I should have pronounced him insane: I have seen him laugh and weep without apparent cause. Direct resumed The circumstance of his sitting on the bu- reau and his laughing and crying, showed a nervous state, or the initiatory symptom. Dr. David T. Brown sworn I am connected with the Bloom- ingdale lunatic asylum; have had about one thousand under my charge; if the testimony is true, and taking that in connection with my examination with Dr. Ranney, I am satisfied that he was insane at the time of the homicide, and is insane now; the manner of killing, his conduct after the act, his destroying the furniture, his conversation with the officer, his subsequent taci- turnity, his general avoidance of reply in relation to the mur- der, his general deportment in his cell, are consistent with the supposition of insanity, and most of them inconsistent with his sanity. I believe him to be insane; I have seen three or four ORANGE, JULY, 1854. Lake v. The People. acts of feigned insanity ; I have no suspicion of its being feigned; they usually overact. Cross-examined His conversing freely with the officer is consistent with insanity; in his cell he answered few questions on the first days; the fact that he declined answering in relation to the homicide is consistent with sanity or insanity; there was one remark made in the cell by one of his counsel which I thought was very unlucky, as it might put him on his guard; I never saw a man who was entirely insane on every subject ex- cept an idiot; he may be rational on one subject; he is not a monomaniac; I think that some delusion exists upon his mind; that is only my supposition. A person can be sane on some subjects and insane on others; I think this delusion is something connected with his wife and children. Direct resumed The remark made by Mr. Hale left the im- pression which, if he was feigning insanity, might put him on his guard. By the Judge It is a common thing in insane asylums for an insane person to refrain from speaking of circumstances or acts which he has committed. I don't think he could simu- late insanity without imitative talent of a high order, or a long and close observation of cases of insanity; his actions in court arc most consistent with insanity. The prisoner's counsel here produced a mortgage between George Lake and Joseph Potter for $150 recorded June, 1850. Dr. William Thomas sworn I have visited the prisoner within eight or ten days; visited him twice; we could get but little out of him; he talked but very little both times; I believe I have heard all the testimony; I think he was insane before the act, at the time of the act, and at the present time; when I asked him questions he would mutter. Cross-examined I think he is insane now, from his general course of behaviour; from his refusal to talk, and resistance to any questions which have been asked him; I judge that he was insane at the time of the act from the act itself and the general testimony of the witnesses; I had not made up my mind before 520 DECISIONS IN CRIMINAL CASES. Lake r. The People. I heard the testimony; from the act itself I could not form an opinion. Egbert Carey sworn This witness corroborated the evidence of Elmore A. Vincent in relation to prisoner's strange conduct with a horse in May last. Henry Rikert, sheriff, sworn I saw prisoner when he was in jail before; don't know that I noticed anything in his con- duct peculiar, with the exception of once; then I heard him crying in his room; asked what was the matter; he made some reply, don't recollect what; told him to make himself comfortable and we would use him well; he was shedding tears; have seen him often since and have spoken to him, but he hardly ever since gave me an answer; it made no difference whether I was alone or with company; for the last two or three weeks he ap- pears more friendly; asked him one morning to give me his bone, meaning his hand: he gave me a bone which he had in his pocket and laughed as though he had done something smart; always speak to him when I go in; seldom get an answer; have always treated him kindly; have had no trouble with him; Ferguson had charge of him previous to our chaining him; have had no trouble with him since Ferguson left, except to push him in his cell when he came into the hall. Cross-examined Had no more trouble with him before Fer- guson left than since; when we put the chain on him, he went three days without eating; after that he took his meals regular; he seemed angry when we put the chain on him; sometimes he appeared irritated, and at other times laughed when we forced him to his room; don't know but he slept well. One morning when he was down stairs I spoke to him and told him he had better go back; when we took him his breakfast he asked why he would not be allowed to stay down stairs; he said he would hurt no one, and would attend to his own business if we would leave him there, but if the boys in the lower hall did not want him there he would go up: I let him stay down all that day; it was several weeks after he was committed before we chained him. Rubsrt G. Mooney sworn I have seen Lake frequently since ORANGE, JULY, ib54. 53 j Lake v. The People. he has been in jail, especially for the last six weeks; he has been rather surly, as a general thing he made no reply: I went in with Mr. Hale a number of times and he was treated as others; went in once when he appeared quite talkative; I re- member Mr. Hale asking him if he should come in and see him alone; those who were in jail huddled around us. Mr. Hale said several times that he was his counsel and wished to assist him; he made no reply. Cross-examined He never told me that some person had told him how to act; I think he has generally taken his meals regu- larly; I suppose he has slept regularly. Direct resumed I can't say whether he has slept, or whether he has eat regularly. T. C. Campbell sworn Have visited the accused five or six times; have attempted to converse with him. The first time, I went in with Dr. Barnes; have talked with him, and he answered every question; we asked him if his arm was painful; he said it was and assigned the reason: don't recollect all the questions we put to him; asked him if he knew me; he said yes; never saw him when he was mute; he always answered every question put to him in my presence; don't remember of ever seeing the man before. Here the defence was closed, when the following rebutting evidence was given in behalf of the prosecution: Alfred Van Vlack sworn Live at Union Vale; have known prisoner about six years; was present at his house on the se- venth day of June last when he was arrested; heard Jonathan Moore say to Lake, " George, I want thee to come down and give thyself up like a> man." George remarked, " Jonathan Moore, thee is a nice Quaker." Moore repeated the question he before asked, and added, if he would come down he would stand By him. George replied, " Yes, Jonathan, thee will stand by me and they all will stand by me." Lake was up stairs at a \vindow; I think I heard him say," I have committed inurderj they lay there in front of the house and the first man that touches it I will kill." Don't think he cried; he appeared to be watch- ing from one window to another j appeared to be walking VOL. I. 66 DECISIONS IX CRIMINAL CASES. Lake . The People. around; believe there were three windows in that part of the house; we went inside of the house; knocked up one of the boards in the upper floor; prisoner then walked backwards and forwards along this hole; once or twice run his sword down through; heard the report of a gun; looked up through the hole; he stood up in a leaning position. I then went in the room; he sat on the floor, his head leaning on his knee; he remarked, "Can it be possible it has come to this!" I remarked, " Yes, George, it has come to this." He was wounded; he arose and made one or two steps and fell down on the floor; he jumped up from the floor, took a circle around the room, fell partially against the wall, and let himself on the floor. I then took hold of him and with others took him out of the house. He made no resistance. He was laid on a bed; he dropped his under jaw down. I got water and washed him off; he did not get up. The next morning I remarked to him that his wife was not dead. He said, " How can that be?" I told him it was so. I think he then said, " I thought she was dead when I left her." I told him we were going to bury his children and asked him if he had any choice as to where we should put them. He said he had. Asked him where? He said he should like to have them buried where he was. He said that if he had got out he would have made a hole through some of us; that the old sword was a good one, and he could defend himself. He said he re- membered he had executed a deed to his wife, and if the papers had been left where they were this would not have taken place. The conversation about the sword was next morning after the occurrence. I noticed nothing peculiar about his eyes; at times he would talk at random: have known him for about six years. Cross-examined I think the sword was a light horse sword. The blade was about eighteen inches long: it was an old one, and I think rusty. At times on that day he made a good deal of noise; sometimes he would halloo out loud, sometimes laugh; don't remember to have seen him dance; went there between twelve and one o'clock; between fifteen and twenty persons there: he was asked the question if he had given his wife a ORANGE, JULY, 1854. Lake v. The People. deed of the place; he said he had; the remarks he niade about the deed were in answer to questions put to him; he sometimes hallooed when we talked to him; he made a hooting kind of noise; sometimes laughed loud while they were talking to him. William Van Vlack sworn for prosecution Know prisoner; knew him about fifteen years; have seen him frequently during the last year; before this occurrence the last time I saw hire, was in jail about three or four weeks before; we spoke about getting bail; I proposed it. He said if I could get a person to go his bail he would take it as a great kindness. I discovered nothing irregular about him; nothing about the eye. The next conversation I had was upon his examination for this crime; saw him at his house; then he said, " There is Squire Van Vlack, justice of the peace/' The examination was commenced in the afternoon and adjourned. After the witnesses were through I told him he might say what he wanted to without oath: he said he would tell all about it; he looked down about half a minute and then looked up and said, *' No, I shall say nothing about it; I guess the least I say about it the better it will be for me." I noticed nothing peculiar in his appearance Know Catherine Johnson. While this witness was on the stand the district attorney offered to introduce in evidence the record of conviction and imprisonment of Catherine Johnson for petit larceny in 1827. To the admission of this record defendant's counsel objected: 1. Its antiquity; 2. Want of proof of the identity of the person so convicted with the witness Catherine Johnson. This ob- jection was overruled by the court, and the record admitted in evidence, to which decision of the court defendant's counsel thereupon duly excepted. H. C. W. Watts sworn I am deputy clerk. The paper here produced was filed June 30, 1827; the paper shows that Cathe- rine Johnson was convicted of petit larceny and committed to the county jail. The district attorney then asked William Van Vlack, "Was she ever in the county jail?" To this question defendant's coun- sel objected as not being the best evidence, but the court over- LECISIONS IX CRIMINAL CASES. Lake v The People. ruled the objection and allowed the question to be asked, to which decision of the court defendant's counsel duly excepted The witness then answered, " I think I saw Catherine Johnson locked up in the county jail." Cross-examined I know nothing about Mrs. Johnson's cha- racter except what I have heard; have heard her spoken of by her neighbors within the past year. Direct resumed Her general character is not good. Cross-examined Have heard my brother and his wife speak of her general character; don't remember of any one else. I live between two and three miles from her. From what I have heard my brother and his wife say, I should not place confidence in her: can't say as I should believe her under oath. Dr. John Cooper, Jr., sworn I have attended on Lake since he has been in jail: I have seen him four or five times. I have seen him in court: have conversed with him. I think he is sane now. I have heard a portion of the evidence; probably half of it; heard part of it yesterday. The counsel for the prosecution here asked this witness, " From the testimony, was the pri- soner, in your opinion, sane or insane at the time he committed the homicide? To this question the defendant's counsel ob- jected on the ground that the witness had not heard all the testimony. The court then asked the witness the question, " Have you heard enough of the evidence to form an opinion?" This question was objected to by defendant's counsel, but was put by the court, to whih defendant's counsel duly excepted. The witness then answered, " I think I have heard enough of the testimony to believe he was not insane when he committed the act." To the admission of which answer by the court defend- ant's counsel then and thereupon duly excepted. Witness then proceeded: "The day he arrived I asked him how he was in- jured; he said he was shot - r I asked him who shot him. I forget whether he answered me or not; he said his arm pained him; I took the bandage off. The next day when I went in he did not answer questions so readily as. the day before; I asked him if he felt easier; he said he did. I think he was not insane it the ORANGE, JULY, 1854. 535 Lake v. The People. time he committed the act; the first time I saw him I thought he was sane. When I heard of the crime I thought at rirst he must be insane to commit such an act." Cross-examined I read Levi Vincent's testimony. Think I heard part of his testimony; I form my opinion from what I have heard and read; I read it from the daily press. The defendant's counsel here excepted to the testimony of this witness's opinion in regard to Lake's sanity at the time of the commission of the alleged murder, on the ground that it was partly formed from what he had read of the evidence. The counsel for the defendant then offered to ask the follow- ing questions of this witness: 1. If a man should cut open the head of his wife, (or the woman he lived with and treated as his wife,) and child two years old, in the middle of the forenoon, and beat out the brains of another child four years old at the same time, thus killing his whole family and all within his reach, would that in your judgment furnish any evidence of insanity? 2. If at the same time he should destroy his clock, bureau, chairs, and most of the other furniture in his house with an axe or other like instrument, break out all the windows in the room where he was, destroy the window sashes and throw the bed and bed clothes out of doors, would you consider that any evi- dence of insanity? 3. If he should do all this in broad day light, and make no attempt to conceal the deed or escape, but should stay by the remains of those he had killed with a murderous weapon in his hand, what would that indicate? 4. If he should be found immediately after the deed at the scene of the slaughter, with no clothing on but a short cotton garment resembling a woman's night gown, in that condition should stand by an open window directly over the bodies of one of his children and its mother, whom he had killtd, and should say when asked what he had been doing, " Go, see what I've been doing j I've been separating the black from the white," pointing to the dead bodies as he said itj what would that indicate? 526 DECISIONS IN CRIMINAL CASES. Lake . The People. 5. If a short time after this, the same day, he should be seen singing and dancing in the same room, in the same condition as to clothing, laughing boisterously and crying alternately all the while, making a great noise, and should come to the win- dow with a sword in his hand and say in a loud voice, "This is the sword of Washington, all who are in the right way shall be saved, and those who are not shall perish, or words to that effect, what would that indicate? 6. If while he was conducting himself in the manner indica- ted in these inquiries he should be shot, and after bleeding pro- fusely should appear more calm and rational, and on being arrested immediately afterwards, should confess the murder and state particularly how lie killed each member of the family, would this induce you to change your opinion? 7. If on the day of his arrest an officer in attendance upon him should ask him if he hadn't given his wife (or the woman he lived with as his wife) a deed of the homestead, (a place worth $200 or $300,) and if he didn't want her to give it up to him, and if she didn't refuse and if that wasn't the reason he killed her, and he should say it was, and should add on being asked why he killed the children, that since he'd begun the job he thought he'd finish the breed, or words to that effect, what would that be indicative of? 8. If the night before the killing, his conduct was so strange and unusual that his family became alarmed, and complained of his being crazy to the neighbors, would this circumstance tend to confirm you in your opinion? 9. If he had been seen by his neighbors on different occasions a week or two before the murder, driving his horse and wagon round in a circle without any apparent motive, what would this, taken in connection with the other circumstances, indicate? 10. If while confined in jail under indictment for murder, he should generally persist in keeping silent, refusing to commu- nicate with his counsel, though repeatedly and earnestly urged to do so, and on the few occasions that he spoke at all should talk incoherently, speak of himself in the third person, be ap- parently unconscious of his situation and unaffected by any ORANGE. JULY, 18-34. Lake v. The People. remarks on the nature of his crime or descriptive of it, laughing and crying alternately without any apparent cause, as if unable to control his feelings, what would that indicate? 11. If his general appearance and conduct at the time of the murder were such as is indicated by these inquiries, have you any doubt he was insane? 12. Have you any doubt he was so insane as not to know he was doing wrong? 13. Have you any idea he could have feigned it all? 14. If he had been feigning it, would he not have been very likely to have continued feigning, after he was shot? 15. Is not the circumstance of his appearing more calm and rational after he was shot and bled so freely, a rather conclu- sive proof that his previous conduct was unfeigned? 16. If he had a motive or supposed he had, however inade- quate, was not the fact of his shedding more blood than was necessary lo accomplish his object, in other w r ords, killing all within his reach, one of the strongest characteristics of insanity? 17. If feigned, would not his conduct in his cell be uniform? Each and every of the questions above stated, offered by the defendant's counsel to be asked of this witness, were by the court excluded, to' which decision of the court upon each and every of the questions above stated, defendant's counsel duly excepted. Witness proceeded I heard a portion of the testimony of Mrs. Phillips; I heard the testimony of his laughing and crying the night before; heard of his sitting on the bureau; alternate laughing and crying are symptoms of insanity; have been in practice nearly five years; have had some experience in treating insane persons; have had from twenty to thirty at a time under my charge at the county House for the last three years. John B. Oakley sworn I have known Lake about four yearsj saw him the day before this occurrence; he was at his house. I had some papers to serve on him. Am a constable: had pre- viously served papers on him in the same suit. Hubbard Dun- can was with me. Lake was in the upper room looking out of the window. I told him I would like to have him come down, 528 DECISIONS IN CRIMINAL CASES. Lake v. The People. as I had some business with him. He asked me what it was. I told him I had an assignment I wanted him to put his name to; he said he believed he would not put his name to any papers. I said if he would not put his name to that paper, I had ano- ther to serve on him. I then commenced to read, and he began to make a noise; I stopped reading for a moment, till he got still: he made a sort of laughing noise. I then read the paper through, and told him I had a copy to leave with him; he told me he would like to see me get to him; I then went away; the last time I saw him before that, he was in a hovel skinning a cow. This was about four weeks before I called to serve the papers. I saw him at Verbank the day after I was there the first time; I saw him once after this before I served the papers the last time. Cross-examined -He was driving; his wife was with him; she had one rein and he the other. I saw him and served the paper. He made a sort of blowing noise: he stamped with both feet. I told Duncan we might as well go away. Lake said "Yes, there are plenty of roads." He spit at me when I started to go away. Direct resumed He commenced his noise when I commenced reading; he stopped after I did and commenced again when I commenced to read Joseph Potter sworn I live at Lagrange; have known Lake ten or twelve years. I am the Joseph Potter spoken of in the mortgage in evidence; saw the prisoner in jail after this occur- rence; I had a mortgage against his real estate; also one against his personal property. I told him I wanted something done about the matter; he said I could do as I pleased. I asked him if I had not better go on and sell; he said he did not know but what I had; I told him that if I sold the whole there would be a balance, and asked him what I should do with it; he said pay his debts so far as it would go. I sold all the personal pro- perty covered by my mortgage; there yet remains due some sixty dollars. Cross-examined Was not at the prisoner's house on the day ol the murder. ORANGE, JULY, 1854. Lake v. The People. W. Vincent sworn I was at Lake's house about three o'clock on the day of the occurrence. J did not hear Lake say, " All those who are in the right shall be saved and those who are not shall perish." I sawLevi Vincent have a hammer in his hand; I heard Jonathan Moore talking with Lake; I saw Lake after he was brought in the house after he was arrested. I asked him what made him kill his wife; he said if she had given up the papers there would have been no trouble. I know Cathe- rine Johnson; I have heard her general character spoken of as bad; I don't know as I can name any one who has spoken of it. George Bostwick recalled I am an officer attending court; after we got the prisoner in his cell yesterday, he said, " You had a nice time of it, didn't you?" I told him he had not ought to have acted so; it would not help his case; he said he thought it would. After I left him he spoke to me and said he wished me good luck; he made a good deal of resistance when we were taking him to his cell and tried to trip me up. Cross-examined He tried to trip me up several times; his hands were fast; he made an effort to-day to trip me down. Dr. Samuel Dodge recalled Was in Lake's cell once since the trial; have known him several years; visited his family; noticed him in court and believe him sane; I personally know him enough to form an opinion; I think prisoner sane. The counsel for the prosecution then asked this witness whether from the testimony he regarded the prisoner sane or insane at the time of the commission of the offence? To this question defendant's counsel objected, because witness had not heard all the testimony, but the question was admitted, and defendant's counsel duly excepted. The witness then answered, " I think he has feigned insanity; think he was sane when he committed the crime; he might have been mad. Cross-examined The idea of insanity I have is an aberration of the mind. The general symptoms of insanity are different; sometimes they are still, sometimes noisy: if he had been insane at the time he committed this offence, he would tell of it now, tninking he had done his duty; if he was insane then he would talk about the crime now as much as upon other subjects. The VOL. I. 67 530 DECISIONS IN CRIMINAL CASES. Lake v. The People. ataxy of his pulse is something of a test as is an odor so pecu- liar to insane persons; this is not of itself a test. ' I don't think the fact stated in Mr. Moor's testimony an evidence of insanity, as it might be feigning. There is a difficulty in detecting feigned insanity. Defendant's counsel asked this witness the following questions: Is the fact that the prisoner is at one time silent, refusing to speak for a long time, and then becomes communicative for a while, any evidence of insanity? This question was objected to by the counsel for the prosecution, and excluded by the court, to which exclusion defendant's counsel thereupon duly excepted. Dr. John Thorn affirmed Am a physician; know Lake; saw him first at Verbank on a trial; examined him then; have seen him three times since the murder; have seen him in court; have watched him pretty closely. I think him sane; have heard all the testimony since Levi Vincent was recalled; have formed an opinion as to his insanity at the time of the tragedy. Have made up my mind that he was sane at the time he committed the act. Cross-examined Have had experience in treating insane per- sons. The appearance of the prisoner the night before the occurrence is not in my opinion a symptom of insanity. The killing of all within his power is not of itstlf a symptom of insanity; it is not a very easy matter for a man in Lake's con- dition in life to imitate insanity; think he might deceive a man of the experience of Dr. Ranney; a man remaining on the ground and conducting himself as Lake did, is not of itself an indication of insanity; have heard and read of the rifle and furniture being damaged, the window smashed out, &c. On his cross-examination, the counsel for the defendant asked this wit- ness the following question: Do sane persons kill without a motive? To this question the district attorney objected, and his objection was sustained by the court, to which defendant's counsel duly excepted. This witness was then asked by the court, " Do you think the conduct of Lake, as described by the witnesses, in evidence ORANGE, JULY, 1854. 53 j Lake c. The People. of insanity? To this question defendant's counsel objected, on the ground that this witness had not heard all the evidence a* to Lake's conduct, but the objection was overruled, and the question asked, to which defendant's counsel duly excepted. The witness then answered that he did not This witness fur- ther said, on his cross-examination, " I consider the fact of the prisoner trying to defend himself an evidence of sanity; consider the fact of his stabbing his sword through the floor an evidence of sanity." Edward Horton sworn I have seen Lake in jail; saw him play cards in there; he has done so off and on for five weeks; he can count game as well and as good as any one else; have seen him do so a great many times; he understands the game and is a pretty good player; he has beat me as often as I have beat him; this took place in his cell When he was playing he would talk about the game: he first asked if there were any cards in the jail. I told him I thought there were; he said he should like to have a game: we played seven up. I was in jail at that time; was there about five weeks. Lake was not out in the hall but a few times. Charles Harvey, James Horton, and myself were there; he would talk and laugh; never saw him cry but once, and that was when Mr. Hale and two doctors were there: never said anything to him about his trial; never heard anybody talk to him about anything but cards; don't re- collect of telling any person of this. Talked to Mr. Campbell about this subject about fifteen minutes ago. Mrs. Elizabeth Harvey sworn I have been in jail a few days past; my husband is there; I came down to see him; his name is Charles E. Harvey; I saw prisoner while I was there; I saw him playing cards with one of the other prisoners. They calli'd him Jerry; it was in a cell, but not in the one the prisoner occupies; heard Lake say something about the cards; never saw it but once; I came here a week ago; I think they were play- 'ng Saturday afternoon. Cross-examined There was something said about the cards; George said something, about the cards; I saw Lake last July; JJP did not say anything; the sheriff told me it was Lake; I 532 DECISIONS IN CRIMINAL CASES. Lake v. The People. heard other prisoners talk to him; can't recollect his replies; I have told Mr. Mooney what I have heard said to Lake; when I saw George playing cards, my husband was in the cell; I had nothing to do with the game. Jacob C. Ferguson sworn I live in Poughkeepsie; I was jailer up to the 18th of August; was jailer both times Lake was brought in; I recollect the time of Lake crying: he under- took to come out of the lower door, and I put him back up stairs; I asked him if somebody had not been putting him up to go out; he said he had been told that I had no right to keep him there; that I was only playing the fool with him; he ate pretty regular except when he got mad at us, and one time he went without eating two days; I don't know anything about his sleeping. I was there when an affidavit was read to him in relation to putting off his trial; William Wilkinson was there, and George H. Tompkins; Mr. Wilkinson read over the affidavit and he did not understand it; then Mr. Tompkins read off the affidavit; he read over a clause and asked if it was right; so he read one or two; he read another one; and George said he did not know about that, but his lawyer ought to know; the next clause he said he did not know about; after an explana- tion he assented to it; he went through the affidavit that way; he then went to the window and made his mark to it; I wrote his name and he made his mark; the clerk then administered the oath; he did sometimes refuse to talk to his counsel: the first time Mr. Wilkinson went up George did not speak to him; I told Goorgethat Mr. Wilkinson wanted to defend him and he ought to talk to him; Mr. Wilkinson went up and he talked a little to him; Mr. Wilkinson said he wanted to talk alone with him; I went out. Cross-examined I went up with Mr. Hale^ I made an effort to induce him to talk; he would hot; he went in several times and could not get him to talk; I told him Mr. Hale was assigned as his counsel; we made repeated attempts to get him .to talk but could not succeed; I think I have heard him speak to Mi. Wilkinson once before the affidavit \vas made, I think a day or two, it might have been the same day; I think Mr. Wilkinson ORANGE, JULY, ISO*. Lake v. The People. said he came to talk about the trial; Mr. Wilkinson said he did not want anything said about what he said to George. I don't recollect any reply that George made; I think he did not reply, I am not positive. Mr. Tompkins read the affidavit and ex- plained what the words meant, he said the defendant meant him; I can't recollect anything else; when Mr. Tompkins read over a portion of it he said, " is that so, George?" I think he said yes, there was one clause he said he did not know about exactly; several times he would abstain from eating; once he did not eat for four days, sometimes two or three days; I think I was a jailer until the 18th of August, I left because the sheriff and I did not exactly agree. By the Judge He stopped eating for a spell when we chained him; he went without eating once before. Cross-examined One day I asked him if he did not want his pantaloons on; I took the chains off so he could put them on, he made a dive for the door but I held him; I punished him; 1 struck him with my clenched fist in the side and on the arm; he said, don't strike me, I will behave. Dr. Peter Barnes sworn Saw prisoner the day he was brought to jail; examined him in his cell, thought he was sane; think so yet; think he is sane at the present time; did not see him from the lime he was put in jail till to-day. By the Court He seems to know what is going on; should think if he was insane he would not understand as well as he appears to. Dr. Perlee Pine sworn Saw prisoner first the day he was brought to jail, have seen him in his cell twice, examined hiru the first time with the intention of standing by him at his trial, can't call him insane now; think him sane now; when I first saw him he was asleep; when he first waked up I thought I saw something in his eye that betrayed insanity, but afterwards thought it was as usual; think he is a sane man now. I have heard. all the testimony except that given yesterday morning, and taking all the testimony and ray examination into con- sideration, I should not think he was insane at the time he committed the crime. I think he was sufficiently sane then to DECISIONS IN CRIMINAL CASES. Lake v. The People. know what he was about; have had some experience in treat- ing insane persons: have from twenty to thirty insane persons under ray charge at the county house. To this evidence defendant's counsel duly excepted, on the ground that witness had not heard all the testimony. Cross-examined The circumstances of his appearance after committing the crime are in my opinion of themselves evidence of his insanit) ; the symptoms of insanity are a deranged in- tellect; don't think the absence of the appetite is of itself a symptom of insanity; the absence of sleep is not in my opin- ion an indication of insanity; alternate laughing and crying are not in my opinion evidence of insanity; don't think the circumstance of the prisoner's flourishing his sword a symptom of insanity. Last Saturday I had a conversation with Lake all alone in his cell; he then appeared as sane as any other person. I have noticed the prisoner appears to notice as much as any one. I distinguish a sane from an insane man by his not being insane. Dr. L. H. Allen sworn Reside at Owego; have been a phy- sician since 1820: saw Lake first last Monday afternoon; ex- amined him yesterday; think it a case of simulated insanity at the present time; think so from a combination 'of circum- stances; first noticed his being removed from the court; no- ticed his appearance in his cell; his general deportment, the absence of some characteristics of acute mania. Upon these things I formed my opinion. I found a disinclination to be re- moved; the characteristic of acute mania is a disregard of self. Cross-examined: Have no extensive experience with eases of insanity; had my attention called to the subject by having a case similar to prisoner's; trial commenced the 8th of August; it was the case of Thurston; was witness for defendant. On the last trial he was acquitted on the ground of insanity; don't know as the indications of feigned insanity have been brought within any general forms. The indications of insanity are various; the symptoms of homicidal mania are an inclination or desire to commit an injury on some persons without any assignable cause; should consider the killing of one person by OilAKGE, JULY, 1504 Luke c. The People. another without any motive as priina facie evidence of insanity; it would suggest to the mind of the medical man the idea of in- sanity; one of the most reliable symptoms of insanity is watch- fulness and sleeplessness; these are difficult to be feigned and are very reliable; sometimes insane persons will refuse to eat; there is a sort of consistency in the acts of an insane person; should expect from simulated insanity a change in the conduct; should think a person feigning insanity would endeavor to ap- pear the same before the same person at different times if he could remember to do so; persons feigning insanity are very likely to overact; a person in some forms of insanity, as of a me- lancholy character, is apt to choose his victims from his friends. Direct resumed I had a conversation with the prisoner in jail yesterday; I endeavored to draw him out into a conversa- tion; sometimes he would answer me; he said he was once acquainted with Mrs. Johnson; I said " she rather slandered you, didn't she; she thought you was crazy; he replied, " she has a pretty good head on her shoulders if she would only keep it straight;" my brother was in there with me; he did not know who we were. Cross-examined Have seen the prisoner only o ice, that was yesterday. Dr. E. W. Tollman sworn Have known prisoner about 18 months; have visited professionally in his family at the con- finement of his wife; have seen him fix watches and clocks at his house; conversed with him some; he is intelligent for the name; have examined to see as to his condition; can't help but think he is sane; have heard most all the testimony; from the testimony and my knowledge of the man I think he was sane when he committed the act. Cross-examined Have seen Lake in prison four times; saw him in prison this morning; there is no satisfactory evidence to me that he was insane when he committed the act. Dr. J. Cooper, sworn Have been a practicing physician since 1807; have never examined prisoner; have seen him in court to-day, yesterday and the day before; believe him sane now, heard most o/ the evidence. 536 DECISIONS IN CRIMINAL CASES Lake v. The People. Defendant's counsel here objected to the opinion of this wit- ness, on the ground that he had not heard all the testimony, but the objection was overruled by the court, to which defend- ant's counsel then duly excepted. The witness then proceeded to state: In my judgment he was sane when he c uumitted the act, I am satisfied that when he came to prison he was not insane; have no doubt he is sane; have not seen a more intelligent eye in court; believe he knows perfectly well what he is about; his turning around the wagon is in my view rather an evidence of insanity; his tearing up the furniture is in my view a premeditated act to intimidate his wife and make her give up the property; the killing of his two children was a strange act, but having commenced the operation he probably thought he would finish. Cross-examined I consider his whole action as a feigned insanity; his actions on the road were strong indications of in- sanity; it is not often that a state of insanity comes on at once; I think the property was destroyed to induce the woman to give up the paper. The prosecution here rested. The counsel for the defendant then called Cyrus Perkins as a witness, who testified that he went to the prisoner's house at about one o'clock on the afternoon of the 7th of June. When I came in sight of the house I saw him throwing something white out of the window. I saw a chair or two and a piece of stove pipe out doors; when I first saw him he was in the upper room with his sword in his hand; I went down to the gate; called him by name and asked him what he was doing; he replied, "you see what I have been doing;" pointed down to the bodies and said "I've been separating the black from the white;" the windows and the window sashes were broken out; the clock case looked as if struck with something; the drawers were banged to pieces with something; I should judge it was a dull axe. The work bench was marked like the rest; think the windows were broken; the stove pipe was down. William Wilkinson sworn Lake, the accused never said a ORANGE, JULY, 1854. Lake v. The People. word to me neither before or after the time the affidavit was made, in reply to a question from me; he has never given me a word in answer to a question from me; I read the affidavit to him, but he made no response; am positive he did not say " yes," to a question from Mr. Tompkins. Cross-examined I brought the affidavit into court and read it as his affidavit. Afterwards, the counsel for eth defence having rested, the court charged the jury as follows: Gentlemen of the jury You will doubtless approach the examination of this case with a due sense of its importance and of the responsibility resting upon you. The prisoner at the bar is charged with the violation of a law by the provisions of which his life has become forfeited. You stand between him and that offended law. If he is innocent, you must protect him from its demands; if he is guilty, you are required by your duty and by the sacredness of your oaths, to pronounce him so and deliver him up to that just punishment which his crimes call for and the legislature have prescribed. It is frequently a difficult question in cases of homicide to determine who or what caused the death. But in the present case we are not embarrassed with any doubts on this subject. The proof is clear and undisputed both from the testimony of an eye witness and the prisoner's own declarations, that he caused the death in question. We therefore turn at once to a consideration of the defence, and in doing so we are to lay aside every prejudice, throw off every feeling of partiality or hostility, disregard every symptom of public opinion and lay aside every influence and consider- ation except such as arise fairly and legitimately from the tes- timony before us. The burthen of the defence of insanity rests upon the accused. Every man is presumed to be sane; he is supposed to know what he is about, and to intend every thing that he does, and is held responsible for his every act. VOL. I. 68 53S DECISIONS IN CRIMINAL CASES Lake r. The People. This presumption must therefore be overcome by proof esta- blishing the existence of a different state. The evidence in the present case naturally divides itself and will accordingly be considered under the following heads: 1. The nature of the act. 2. The degree of motive. 3. Scientific opinion. 4. Conduct of the prisoner. Touching the first point I have but little to say. It is con- tended that the fact of the prisoner killing the woman with whom he cohabited and his own children, is, in itself evidence of insanity. This argument evinces not only a want of know- lenge of human nature and of the springs of human action, but the grossest ignorance of the history of mankind. For, from the time Cain slew his brother, down to this day, when almost every newspaper brings tidings of a wife killed by her husband, or children by their parents, all experience shows that no ties, however strong, no relation however sacred, not even the bonds of affinity and consanguinity could withstand the wrath of an exasperated man; and indeed when carefully and closely con- sidered, the domestic relationship, so far from being a barrier against violence, invites to its commission, by the opportunity it offers and the helplessness of a portion of its inmates. Those who are constantly together have such abundant means of dis- covering the offensive traits in each other's disposition, that love not unfrequently degenerates into hatred and the intimacy of the family circle, which should Jead to peace and happiness, too often furnishes the occasion for angry irritations and colli- sions which ultimately terminate in violence and bloodshed. And when we consider in addition to this, the numerous evil minded persons, their ungoverned passions, the artificial excite- ments to which they resort, we can hardly be surprised that a very large portion of the homicides occur amongst those who are connected by the ties of family or of blood. Indeed, it is well known historically, that infanticide or the murder of one's own children is the prevalent crime in some countries, and there is too much reason to believe that it is too frequent in this. Perhaps my views may be colored by personal observation. The last case of murder tried in this court room was that of ORANGE. JULY, : Lake v. The People. a woman for poisoning her husband; the other one, tried at the same court, was that of a man for killing the child of his wife. Both of them were executed in July of last year. In June last a man was tried before me in Brooklyn for beat- ing his wife to death, and in December of the year before last, a man was tried before me in Brooklyn, who stabbed his wife, his mother and her sister, all the persons present. The wife and mother were killed on the spot; the sister, though dan- gerously wounded, survived to tell the story on the witness's stand. It was done in broad daylight, and the culprit immedi- ately walked out of the house and surrendered himself up, de- claring his readiness to suffer the penalty of his crimes. No insanity appeared in the case, and he was executed in January, 1852. To say, therefore, that a man will not kill his relations un- less he is insane, is equivalent to saying that he will not com- mit crime unless he is insane; or in other words, that there is no such thing as crime, inasmuch as its wickedness proves its innocency; it is hardly necessary to add that such a doctrine is subversive of all order and safety, and does away with the whole administration of criminal justice, and is just worthy of the source whence it originated, namely, among French infidels and German metaphysicians and transcendentalists. 2. A motive for the killing is sometimes an important if not an essential point on a trial for murder. But those are cases where the evidence of the killing is circumstantial. Then it is important to show that the prisoner had a motive, with a view to establishing that he is the person who committed the act. But in cases where, as in this, the killing is undisputed, the question of motive becomes less important. For, the mov- ing cause is often not very apparent; in very many cases of homicide there is no motive discoverable, except what arises at or near the time of the act Excited passions, or a desire for vengeance for a real or imaginary insult or wrong, not un- frequently lead to the crime. If a case should arise where it was absolutely certain that there was no motive whatever for the commission of the crime, 540 DECISIONS IN CRIMINAL CASES. Lake r. The People. il would undoubtedly tend to show insanity, for insane persons are the only ones that act without motives. But who can say there is no motive? Who can fathom the mind of the accused and ascertain that there is no hidden desire of vengeance, no envy, or avaricious passion to be gratified? There is no rule of law which determines what is an ade- quate motive, even where it is necessary to show one: One man will kill another to obtain $1,000; another may do the same for a tenth, or even a hundredth part of that sum; in each case it is adequate in one sense for the mind on which it operates. But, in truth, and in another sense, no amount is fairly adequate to induce a reasonable man to take the life of another; nothing will induce a reasonable man to commit murder; it is idle to talk therefore about an adequate motive for a reasonable man. (See 1 Beck. 794.) What motive appears in the present case? The motive said to be assigned by the prisoner himself is, the desire on his part to obtain certain papers or title, which the woman refused to deliver up. The theory of the prosecution is that there was a controversy, a bone of contention touching the title to the place, which furnished the basis of disagreement, quarrels, exaspe- ration, and finally personal violence. If this be so it would undoubtedly have a tendency to show a motive such as may be fairly supposed to have induced the act. For slight causes of contest, however unreasonable or unjust, may be made the ground work of irritations, which may be wrought up by the untoward circumstances between irascible dispositions, until one of them may reach the point of uncontrollable passion, or in other words, the killing point. It is for you to determine whether this theory of the prosecution is sustained by the evi- dence But it is contended by the defence, that even admitting a sufficient motive as to the woman, there could not be any occa- sion for destroying the children. It is undoubtedly contrary to the general course of nature for a man to murder inoffensive children, and especially when they are his own. But there is another principle recognized as pertaining also to human na ORANGE, JULY, 1854. 54 Lake v. The People. ture; and that is, that hatred for the parent is often extended to and visited upon the offspring, and the same ungovernable rage that would destroy the mother, might impel the offender also to involve her descendants in the common ruin; upon the principle that they were a part and portion of the detested mo- ther, or, as the prisoner expressed it, " as he had commenced the job, he thought he would finish the breed/' .'?. We now come to consider more directly the question of insanity at the time of the occurrence as it stands upon the scientific testimony. The determination of this question is often attended with great difficulties. The precise state of a man's mind can not be easily ascertained, and especially is it difficult to discover whe- ther alleged insanity is real or feigned. The principal evidence in such cases must, of course, be the conduct of the prisoner himself. The law however authorizes the admission of the opinion of experts, which includes medical men, and those who have par- ticular care of the insane, and therefore are supposed to be more competent to judge of such matters than ordinary men. These opinions are not always the most satisfactory. They depend for their value partly upon the skill and experience of the witness and partly upon the opportunities which he has possessed of observing the prisoner's conduct. A skillful man who has full opportunity to see the parties for a long period, can, probably, in most cases, ascertain with considerable accu- racy whether the case is real or simulated insanity; but a mere occasional observation for a few moments may leave the most learned man in doubt or even deceived. The reason of this uncertainty is, that there are no general, infallible indications of insanity. It assumes so many forms and aspects, that no general rules can be laid down for its detection. The opinions depend also for their influence, as evidence, upon the reasons which the physicians give as their foundation. For, if a witness gives you an opinion and accompanies it with a reason which in your judgment is unsound, you will be jus- tified in holding the opinion unsound. 542 DECISIONS IN CRIMINAL CASES. Lake c. The People. It is hardly necessary to add that these opinions do not carry with them any binding authority. They are mere evidence to be weighed, and are often testimony of the slightest character and weight. You perceive that the doctors differ totally in their views as to this man's testimony; and while one tells us that his refusal to talk freely about the homicide is proof of insanity, another tells us that the care and caution which he thus evinces, convinces him that it is a case of simulation. In this connection I will read an extract from an English author touching the examination of medical men, which may perhaps throw some light upon Dr. Pine's testimony. (Winslow, 7n, 76.) The same remarks are applicable to the books which are read They are not authorities in the legal acceptation of that term; they are treatises written'' by men professing to understand certain subjects, upon which they choose to write certain books. It is perhaps doubtful how much credit is due, without any evi- dence of the standing and skill of the author. That they are not all correct, is quite apparent, for the reason that they con- flict with each other, just about as much as the doctors do when they are called as witnesses. Indeed, there is no reason why we should expect those who write essays for pleasure or profit, should be confined any more strictly t^ the truth, or be found any more uniform and consistent, than if they were under the obligations of an oath. It is proper here to observe that every aberration of mind is not such an insanity as protects a prisoner from responsibility. t had occasion to examine the subject in the case of Wesley Pine, who was tried here in April, 1848, and will read a por- tion oi the charge delivered on that occasion. (2 Barb. Sup, Ct. Rep. 570, 572.) 4. The principal testimony is that arising from the prisoner's conduct, comprising his words and actions. It has been laid before you fully in all its details. The counsel on both sides have had full scope to prove all that he did or said at the time of the occurrence, as well as before and since. You will take up this evidence and examine it carefully and bring to bear upon it all ORANGi:, JULY, 1854. 543 Lake v. The People. your experience and knowledge of human nature and of the motives and sources of human actions. It seems to be conceded that up to a short time before the seventh of June, he was a man of sound mind, attended to his ordinary business, took care of his family and passed for a rational man. It is always a circumstance of some suspicion when this de- fence is set up, if it appears that no insanity existed until the time of the killing. For it will not do to allow a man to go at large and pass for a sane man in community, and be capable of dealing with his fellow men, and yet the moment he commits an outrage upon society, permit him to throw off his legal re- sponsibility, without clear and satisfactory evidence that such change is real and involuntary I will now advert briefly to the prominent features of the case without however detaining you by recapitulating the details of the testimony. 1. The first marked instance of eccentricity occurred some weeks before the seventh of June, and was seen by several witnesses: I allude to his turning around in the road at the time when he and his wife and child were riding. This is certainly unusual conduct. It is altogether out of the ordinary course and shows something wrong and irregular. Two theories are set up by the respective counsel, to which they respectively claim that this conduct conforms. The prisoner's counsel claims that it can be reconciled only with mental derangement. The prosecution on the other hand adopts the solution given by Dr. Cooper yesterday, that it was done designedly and with an intention to affect or operate upon his wife. 2. Another occurrence is spoken of by Mrs. Johnson, who tells us of his walking on the stoop on Monday, the day before the occurrence, putting his hands on his head, crying out loudly and weeping on his wife's neck; the natural inference to be drawn from such a fact alone is undoubtedly that the man was labor- ing under some violent pain or mental disorder. It is however to be observed that she was present and did not seem to care 544 DECISIONS IN CRIMINAL CASES. Lake v. The People. much about it, nor in fact to pay much attention to it. The witness describes her as sitting on the door step engaged in sewing. How is this conduct of both to be explained? How do you account for the apparent indifference of the woman? Would she have been thus unmoved if she had supposed him really insane? Or was she aware he was merely playing off a scheme upon her to frighten her or bring her into his measures on the subject of the deed or any other? It is for you to determine. It is undoubtedly a circumstance of some moment, that nearly or quite all of his eccentric movements were made in the pre- sence of his wife, and no one seems to have discovered anything extraordinary in his deportment when he was alone or absent from her. 3. His conduct on Monday afternoon, when Mrs. Phillips was present. He was then evidently much disordered; he refused to talk or answer questions, but sat on the bureau laughing or crying, talking occasionally to himself: the woman seemed then to be alarmed, but still her fears do not seem to have reached a height sufficient to induce her to seek protection from others, or shelter elsewhere. Others, however, were greatly alarmed, as they state. Mrs. Johnson hastened away, and one of the men speaks of getting over the fence to avoid him. Why did not her fears take an equally tangible shape? Was it because she was a woman of great fearlessness? or, was it because she un- derstood the matter better than the rest of them, and knew that it \sas all simulated? It is for you to say. 4. The next in order are the circumstances discovered after the killing. The prisoner was found in the second story of the house, standing at the window, the sash being broken out, with no clothes except a white night gown, flourishing a sword and calling it the sword of Washington, making a great noise, laughing, singing and dancing as one of the witnesses states. All this is clearly inconsistent with a sober, steady, well dis- posed man. But it is for you to say whether they are evidences of insanity; or do they look like an overacted attempt to appear insane? is he not rather too crazy? are not the circumstances ORANGE, JULY, 1854. 545 Lake v. The People. rather exaggerated? do they not evince rather too much prepa- ration and effort to produce effect? It is true that when a man who commits an injury flees and attempts to escape, it is strong evidence that he is guilty, that he is conscious of having done wrong, and therefore it repels the idea of irresponsible insanity. But it does not therefore follow that omitting to escape is conclusive proof of insanity. Because at this day when this sort of defence is set up so frequently, the whole community become unfortunately impressed with the notion, that this de- fence is ..o be relied on whenever a great crime has been com- mitted and all other defences fail; and it is not to be deemed matter of surprise that a man who has suffered his passions to lead him to the crime of murder would immediately begin to prepare himself for such a defence by endeavoring to sustain the character of a madman. Nor when the chances of escape by fleeing or by standing trial on such a plea are compared, is it certain that the prisoner, if sane, did not make the wisest choice. But let us look at the testimony a little more closely; it is highly important. The conduct of the prisoner immedi- ately after the killing is particularly calculated to throw light on the subject; it is not a pure question of science, it is rather a question of common sense, which the jury is supposed to possess in quite as high degree as professional gentlemen. The theory of the defence is that he was not conscious of doing wrong when he killed this woman and children, and to that extent the in- sanity must go to shield him from responsibility. Now what is the natural consequence of the doctrine? Why, if he did not know he had done wrong he would not flee, nor have any rea- son to prevent others approaching him. How does this com- pare with his deportment? Did he permit others to approach him and act as if he supposed nothing wrong had occurred? Or did he assume an attitude of defence? Was his conduct calcu- lated to intimidate and terrify those who came to arrest him? It did so, as they show. Why did he get up stairs and place himself in the window, brandish his sword, advise them to go away, speak of having fire arms and refuse to come down, ex- VOL. I. 69 546 DECISIONS IN CRIMINAL CASES. Lake . The People. cept he was influenced by a consciousness of having committed crime, and that the others had come to arrest and punish him? How is it to be explained? Can it be? It is true that the rifle was thrown away, but whether it was owing to the fact of its being useless for want of ammunition does not appear. It is contended that he was under a homicidal impulse which impelled him to kill all within his reach. But he did not rush among the crowd that surrounded the house and cut right and left as maniacs sometimes do: he seemed quite satisfied to let them alone if they would keep away from him. 5. His conduct in prison, his general taciturnity, refusing to talk to his counsel, and resistance of the officers and such facts of which there are several, have all been laid before you. The doctors have passed upon it and differ entirely as to their con- struction of the testimony; you will look into the matter and determine which are right. 6. It may be proper to advert to one or two pieces of testi- mony which, the prosecution claims, show sanity. The communication made by him to officer Townsend while in custody, and the fact spoken of by him that the prisoner conversed freely until he was consigned to jail. 7. You also have the fact that he is in the habit of playing ;ards in prison. You will consider these circumstances and say whether they ire or are not reconcilable with the theory of this defence. 8. Something has been said about the affidavit made by the prisoner to put off this cause. The matter has been spoken of, probably without intention, as if the court had exacted an un- usual thing from this man. The truth is simply this: When brought into court he would not speak nor pay any attention to the proceedings of the court. The counsel asked to have the trial put over. The court refused to put it off without the usual affidavit, for the reason that if the man was insane no trial could be had, and therefore there was no propriety in sending the case to another court and requiring the district attorney to bring all his witnesses here again: this decision brought out as we supposed it would the affidavit in questiou ORANGE, JULY, 1854. 547 Lake r. The People. Many irrelevant matters have been brought into this case "which it is hardly necessary to notice. It has been asserted by counsel that the plea of insanity haa never prevailed in any case where the prisoner has not turned out afterwards to continue insane. I do not agree with the counsel on this point; but I content myself with merely saying that it has nothing to do with the case. Much has also been said touching the supposed illegal con- viction of the colored roan Freeman. I have never seen any- thing to lead me to the conclusion that that conviction was not well founded and correct, so far as the merits and facts were concerned. It is true that Dr. Brigham and others were of the opinion that he was insane and so testified on the trial. It is also true that on a post mortem examination 18 months after the murder Dr. Brigham and other physicians were of the opinion that the brain was diseased, so as to produce insanity. But they were not unanimous on this point. I believe moreover a diseased brain in August, 1847, did not necessarily prove insanity in March, 1846. So that I do not discover any good grounds to question that the juries who decided him to be sane at the time of the murder were fully warranted in so doing. But whether that verdict was correct or not, is not material in this case. We are trying Lake and not Freeman. I wish further to add that the remarks I have made on the testimony in this case are not binding upon you; you are to decide the question of fact uninfluenced by any supposed opin- ions of the court. I have made such remarks as I considered appropriate to tfre discharge of my duty in pursuance of the laws of the land. The question of the duty of the court in such cases was submitted to the fifteen judges of England a few years ago, when they returned the following answer. (The judge here read from 1 Beck. Med. Jur. 772.) You will now lake this case to your room and carefully weigh and examine the testimony, bringing to the subject an honest and sincere desire to ascertain the truth. If the evidence satis- fies your minds that the prisoner is guilty, you must say so by 548 DECISIONS IN CRIMINAL CASES. Lake v. The People. your verdict of guilty. If however it leaves upon your minds a reasonable doubt, you must give him the benefit of the dovibt by an acquittal. To \vhich charge and every part and portion thereof defend- ant's counsel duly excepted. Defendant's counsel thereupon, and before the issue was submitted to the jury, requested the court to instruct the jury. 1. That the testimony of Washington G. Vincent and Wil- liam Van Vlack in regard to the general character of Catherine Johnson, does not impeach nor tend to impeach that witness, not being followed by testimony as to her character for truth, or her credibility under oath. 2. That the record of a conviction of Catherine Johnson for petit larceny twenty-six years ago does not affect her present credibility. 3. That the testimony of Levi Vincent, as to the declarations of Lake on the day of the killing, being uncontradicted, and he being unimpeached, is worthy of belief. 4. Ditto of Jonathan Moore. 5. That the calmness of prisoner after being shot and bleed- ing, is consistent with his previous insanity and inconsistent with his previous feigned insanity. 6. That the rational conduct of the prisoner in his cell, rational answers to questions, and card playing are no evidence of feigned insanity. 7. That the absence of any proof of hereditary insanity is no evidence of feigned insanity. But the court refused to charge as requested on each and every of the points last above stated, to which refusal, defendant's counsel tnen duly excepted. The jury found the defendant guilty. H. fy M. Hale, for- plaintiff in error I. The court erred in excluding the testimony offered in re- lation to the acts and declarations of the deceased, the night previous to the alleged murder. It is not necessary that the declarations be made at the precise time of the act in question, in order to constitute part of the res gestee. (2 Sttph. JV*. P. ORANGE, JULY, 1854. 549 Lake v. The People. 1564, and cases there cited; Ross v. Bank of Burlington, \ Aik. 43, cited 1 Cow. fy Hill's notes 594, 3d Ed. p. 215; State v. Crane, 2 Bail. (S. C.) R. 66, cited 1 Cow. & Hill's notes, 604, 3d Ed. p. 224; Stewart v. TAe Storfe, 19 0/ito, 302, cited 2 fltm. on Crimes, 750.) The conduct of the prisoner being material evidence upon the point in issue, (his sanity,) and evidence having been given of his conduct on that day any acts or declarations connected with that conduct, and calculated to explain, unfold or throw light upon it, were admissible and material evidence. (Wright v. Doe dem. Tatharn, 4 Bing. JV. C. 489, and S. C. 33 Eng. Com. L. Rep. 426; 1 Cow. & Hill's notes, notes 444, 452 and pp. 596, 604, 3d Ed. note 160 and pp. 217, 224; 1 Phil. Ev. (6th Am. Ed.) 189 and 190; 1 Starkie's Ev. pp. 47, 48, 28, 29; 1 Green. Ev. 136, note and cases cited; Roscoe's Crim. Ev. 23, note and cases cited; 2 Runs, on Crimes, 750; 2 Steph. JV. P. 1561.) II. The court erred in excluding evidence that the deceased, the night before the homicide, was in tears, and also in excluding evidence as to the expressions of alarm made use of by the de- ceased at the time. That the alarm of the deceased was proper evidence in the case is shown by the argument based upon the assumed absence of such alarm in the charge of the jury, and by the authorities last above cited. The proper way of showing this alarm was by the declarations made at the time by the person who was the subject of it. This comes within the prin- ciple laid down in Willis v. Bernard, 8 Bing. 376, and s. c. 21 Eng. Com. L. Rep. 325, and Averson v. Lord Kinnaird, 6 East 188; See also House v. Allen, 3 Esp. JV. P. C. 276, cited 2 Stcp/i. JV. P. 1562; 1 Phil. Ev. (6th Am. Ed.) p. 189; Barthdtmy v. The People, 2 Hill 257, note b, at all events it was compe- tent to show such alarm by proof that the deceased was in tears, as offered. III. The court erred in admitting the question, " were you imprisoned in the county jail in 1827?" asked the witness Catherine Johnson on her cross examination by the district attorney. (1 Green. Ev. 585, 457, note, and cases cited; The People v. Herrick, 13 J. R. 84.) 550 DECISIONS IN CRIMINAL CASES. Lake v. The People. IV. The court erred in admitting the question, " was she ever in the county jail?" asked W. Van Vlack by the district attorney. See authorities last cited. V. The court erred in receiving in evidence the record of conviction and imprisonment of Catherine Johnson in the year 1827, and in refusing to charge the jury as requested relative to the effect of said record. ( 1 Green. Ev. 587, 459; Id. 585, note 3; 1 Burr's Trial, pp. 96, 98 to 100.) VI. The court erred in admitting the opinion of Dr. John Cooper, Jr., as to prisoner's sanity at the time of the alleged murder, he not having heard all the testimony. (The People v. Thurston (Sup. Court, Gen. Term, 6th Jud. Dist.) manu- script, and cases therein cited; Ray's Med. Jur. 339.) VII. The court erred in admitting the opinion of Dr. John Cooper, Jr., as to prisoner's sanity at the time of the alleged murder, formed in part from what he had read of the evidence in a newspaper. See cases last cited. VIII. The court erred in receiving the opinion of Dr. Samuel Dodge as to prisoner's sanity at the time of the homicide. IX. The court erred in asking Dr. John Thorn the question " Do you think the conduct of Lake as described by the wit- nesses, an evidence of insanity?" he having heard only part of the testimony as to Lake's conduct, and that the least important part. X. The court erred in admitting the opinion of Dr. Per Lee Pine, as to prisoner's sanity at the time of the alleged murder, he having heard but part of the testimony. XL The court erred in admitting the opinion of Dr. John Cooper as to prisoner's sanity at the time of the alleged murder, he having heard but part of the testimony. XII. The court erred in asking Dr. John Cooper, Jr., the question, " Have you heard enough of the evidence to form an opinion?" and in admitting the answer thereto. XIII. The court erred in excluding the questions proposed 1o be asked Dr. John Cooper, Jr., on his cross-examination. (Freeman's Trial, Cayuga Oy. & Ter. p. 302, 303, 316, 317, 364, 365; Thurston' s Trial, Tioga Oy. # Ter. p. 43 j T/iePeo- ORAXGE, JULY, 18-34. -501 Lake v. The People. pie v. Thurston (Sup. Court, Gen. Term,') ^manuscript ; Com- monwealth \. Rogers, 7 Met. 500; McNaughttn's case, 10 Cl and Fin. 210, cited in 2 Green. Ev. 372, note; Wright's case, Rust, and Ry. Cr. C. 456, cited Phil. Ev. 4th Am. Ed. p. 290.) These questions were clearly admissible on the cross-examina- tion of a medical witness for the purpose of testing the sound- ness of his opinion. The 15th question should not have been excluded, as it. was not hypothetical in form, and the facts on which it was based were proved by Levi Vincent, and Alfred Van Vlack. XIV. The court erred in excluding the question proposed by deft's counsel to Dr. Samuel Dodge on his cross-examination. See authorities last cited. The question was not hypothetical in its form, and the fact therein recited, was proved by Dr. Andrus, Dr. Thompson, Henry Rikert, R. G. Mooney, J. C. Ferguson and Wm. Wilkinson. XV. The court erred in excluding the questions proposed to be asked Dr. R. A. Varick by defendant's counsel. See au- thorities last cited. The questions were neither of them hypo- thetical, the facts upon which the first was based, were proved by Levi Vincent, and by Cyrus Perkins. Those recited in the second, by Henry Robinson, Levi Vincent, and all other wit- nesses of the transaction. XVI. The question proposed by the district attorney on the cross-examination of Dr. Varick, objected to by prisoner's counsel, and admitted by the court, and that proposed by pri- soner's counsel on the cross-examination of Dr. Thorn, objected to by the district attorney, and excluded by the court, were substantially the same. The court, erred, therefore, either in admitting the former, or in excluding the latter. XVII. The court erred in charging the jury that the nature of the act was no evidence of insanity. 1. As a question of fact it should have been left to the jury without any direction of the court. 2. Whether a question of fact or law, the ruling of the court upon it was erroneous. (Shaw C. J. in Comm. v. Rogers, 7 Met. 503; 1 Beck's Med. Jnr. 789; Dean's Med Jur. 510, (Jrt.2,) 516, (Jrt. 4.); Rny's Med. Jur. 230, 231, 552 DECISIONS IN CRIMINAL CASES. Lake v. The People. 217, 219; Dr. Bngham, of the State Lunatic Asylum, Fret man^s Trial, p. 100; Dr. Varick's testimony, error book, fol's 68, 70; Dr. Allen's testimony, error book, fol. 169; Dr. Cooper, Jr's testimony, error book, fol. 124; Dr. Benedict, of the State Lunatic Asylum, Thurston's Trial, p. 34; Dr. Butler, of the Hartford Lunatic Asylum, Thurston's Trial, p. 36; Dr JVichols, of the Bloomingdale Asylum, Thurston's Trial, p. 39. ) XVIII. The court erred in assuming, in the charge, that the deceased wife was unaffected by the prisoner's conduct in her presence, and in instructing the jury that it was for them to determine the cause of such indifference, the only evidence by which they could satisfactorily decide, either upon her actual state of mind or the causes which produced it having been excluded. XIX. The court erred in undertaking to instruct the jury, as to what would or would not have been the conduct of an insane man or as to the motives or reasons that would influ- ence such a man's conduct. (Dean's Med. Jur. 516, Art. 5 and 6; Ray's Med. Jur. 230, Art. 4 and 5, 687; Dr. Brigham, Superintendent State Lunatic Asylum, Freeman's Tr. pp. 100, 101.) XX. The court erred in refusing to charge as requested, in relation to the evidence impeaching the character of Mrs. Johnson. (Gilbert v. Sheldon, 13 Barb. S. C. R. 623.) XXI. The court erred in refusing to charge as requested, it relation to the evidence of prisoner's insanity. T. C. Campbell, (Dist. Att'y,) for defendant in error. I. The charge of the court was correct on all the points wherein error is claimed by plaintiff in error. 1. In relation to the evidence of previous insanity. The propositions 5, 6, 7, then submitted to be charged are mere questions for argument to the jury. It can not be claimed they are questions of law, concerning which the presiding judge is by law bound to give instructions to the jury. 2. As to the evidence of impeach- ment of Mrs. Johnson. (1.) The case of Gilbert vs. Sheldon, ORANGE, JULY, 1854. 553 Lake v. The People. (13 Barb. 623,) on which this exception is founded, is in opposition to the plainest rules of evidence, and should be dis- regarded. (Cowen fy Hill's Notes, 768, 769, and 780; Hume v. Scott, 3 Marsh. 260; State v. Boswell, 2 Dev. 209; The Peo- ple v. Herrick, 13 John. 84; Bakeman v. Row, 18 Wen. 151; Fulton Bank v. Benedict, 1 jp/a//, 558; 1 Greenleafs Evidence, sec. 461.) (2.) The evidence was proper in itself, according to the decision in 13 Barb, as far as it went; and the only thing plaintiff in error could do, was to move to strike out the evi- dence, when it was not followed by proof whether the witness sought to be impeached would be believed on oath by the im- peaching witness. The court did not go as far, in speaking of these subjects, as it had a right legally to go. (Durkes v. Marshall, 7 Wend. 314; Gardner v. Picket, 19 Wend. 187; People v. Haynes, 14 Wend. 581; same case, 11 id. 557.) The English rule is the same. (Bar. Sf Cres. 430.) II. The ruling of the court was correct as to the reception and rejection of testimony. 1. As to the questions proposed to be put to Dr. John Cooper and others: (1.) They are merely hypothetical questions, put to gratify the curiosity of counsel. (2.) The questions are all of them double, and therefore ob- jectionable in form. (3.) They are not questions on which a scientific man could with propriety give his opinion. (4.) The matter set forth in these questions would be very proper ques- tions for argument to the jury, but can not be introduced as evidence by way of scientific opinions. The counsel for the defendant might with just as much propriety have asked if the witness believed the jury would find the prisoner guilty, and whether they ought to find him guilty. No inquiry as to par- ticular facts is proper; if anything of the kind proposed is proper, it can only be the general question, " what was the state of the prisoner's mind, from the evidence, at the time of the commission of the act]" (McNaughton's case, 10 Clark S>~ Fin. 210; 1 Greenleaf's Ev. sec. 460; Rex v. Wright, Ruts fy R. 456.) 2. The question to Dr. John Cooper, Jr. " Have you heard enough of the evidence to form an opinion?" was VOL I 70 DECISIONS IN CRIMINAL CASES. Lake v. The People. properly allowed. (1.) It was only carrying out the previous announcement of the court, which had been assented to by the respective counsel and acted upon by them. It had been as- sented to by the counsel respectively, tacitly, at the very com- mencement of calling the scientific witnesses. It had been acted apon in the following cases, on the part of the defence: Case of Dr. Varick, case of Dr. Andrus. (2.) It was proper in itself, 'hough not assented to. 3. The only true rule is to allow a scientific witness to give his opinion when he has heard enough evidence to enable him to form an opinion; and the doctrine that he must hear all the evidence, can not be sustained by ieo-al authorky nor common sense. (1.) Opinion is the mere act of the mind, and when the mind is satisfied, all has been done that can be, and additional facts proved to affect the opinion would be merely cumulative evidence. (2 ) It is utterly impossible to have a witness hear all the evidence, particularly when the witness is a practicing physician. 4. The question put to Mrs. Johnson, as to her being in the' county jail was proper. The only objection which could be raised to it could proceed only from her; and on her declining to answer, the ;ourt did not compel her. 5. The evidence offered, of the de- ^laration of the murdered woman, of what took place the day before the act, can not be received. (1.) They are not offered or claimed to be dying declarations. (2.) They are not evi- dence, legally, not being part of the res gesta, or connected with the act, (2 Russell on Crimes, 751.) (3.) The acts of Han- nah, showing she was alarmed, might have been proper, but her declarations would have been mere hearsay. III. These positions are fortified and sustained by the deci- sions of the courts of this and other countries. 1. By the rule in this state, in cases of insanity, which is as follows: " in the defence of insanity to an indictment for murder, it must be proved the person charged is laboring under such mental dis- ease as not tt> know the difference between right and wrong." (The People v. Freeman, 4 Denio, 28.) U The rule is the same at common law, and in England at this time. ORANGE, JULY, J854. 5/55 Lake v. The People. By the Court, DEAN, J. The prisoner, on the seventh of June, 1853, at LaGrange, in Dutchess county, in the day time, killed his wife, or the woman with whom he cohabited, and their two infant children, these constituting his whole family. He then, with a sword and motions and language, standing at an upper window in his house, almost entirely naked, kept the people who had gathered around for the purpose of arresting him, from accomplishing their object, until he was shot. He was soon after the occurrence indicted for murder, and at the Dutchess Oyer and Terminer, in September last, tried and con- victed. The defence, as usual, in cases of open, aggravated crime, was insanity. Whether the prisoner was or was not of sound mind at the time of the commission of the act, is a Ques- tion with which this court has now no concern. The jury passed upon it, and had there been no questions of lav/ arising upon the admission or rejection of evidence on the trial, it is very clear that their verdict could not, and should not, be dis- turbed by us. But the prisoner's counsel on the trial offered evidence which was excluded, and the district attorney was allowed to give evidence after objection on the part of the de- fence. To these various decisions of the court, exceptions were taken, and we are now away from the hurry and excitement of the trial, to pass upon these exceptions. If any one of them taken to material testimony is valid, it is our duty to grant a new trial, no matter what may have been the prisoner's crime, or what opinion we may entertain of his guilt. The safety of any system of jurisprudence depends upon the uniformity of its administration. By the one which it is our duty to administer, the vilest criminal is entitled alike with the purest citizen to the benefit of all the forms of proceeding, which the wisdom of our predecessors has established as safeguards for the protection of property, liberty and life. Without, therefore, in any way expressing an opinion upon the correctness of the verdict of the jury, I proceed to the examination of the questibns which have been raised before us on the argument of this case. There are very many of the exceptions which can not be sustained There are, however, some of them which the court 556 DECISIONS IN CRIMINAL CASES. Lake v. The People. are unanimously of opinion are well taker., and on which I shall now give the conclusion to which on examination I hav arrived j I shall also speak of two of the exceptions which I think can not be sustained. Where the question to be determined by a jury is the sanity of a person, both the acts and declarations of the person are evi- dence, for the purpose of ascertaining the state of mind of the actor. On the trial of this indictment, this rule was observed, and full latitude was given to the acts, conduct and declarations of the prisoner, both before and after the homicide. His coun- sel, however, proposed to go further, and prove the effect which the prisoner's conduct had on the mind of another person the day before the killing, not only by the acts, but by the declara- tions of the person killed, made to third persons, and in the absence of the prisoner. I can find no authority which would justify this species of evidence, and there is no reason which can sustain it. The fact to be proved is the state of the pri- soner's mind. While his declarations at the time and before and after the occurrence, are evidence, not of the res-gestce, but of ihefact to be proved the mental state of the prisoner it is very clear that the declarations of third persons can not shed a ray of light on the subject of inquiry, but will, at best, furnish the jury with only the opinion of the declarant. Had the per- son whose declarations are sought thus to be given, survived, her opinion under oath would not have been testimony. Upon what principle, then, can her statements be given in evidence, without the means, by a cross-examination, or in any other way, of testing their accuracy, or ascertaining the sincerity with which they were uttered? These declarations constitute no part of the res-gestce. They are of a day prior to the trans- action, and are claimed to be evidence, not of the fact to be proved the state of the prisoner's mind but of the feelings and emotions of the deceased; a matter which is wholly imma- terial to the issue on trial. Suppose what is sought to be pro- ven by this evidence is admitted, that deceased said she was alarmed and feared the prisoner would hurt himself, does that advance the jury a single step in their inquiry? Do not sane ORANGE, JULY, 1854. 557 Lake v The People. men frighten women? Or are all men who alarm their wives exempt from criminal liability? The mere statement of the conclusion to which this species of evidence would bring us, is a sufficient argument to show its inadmissibility. Another ground of error, which is confidently relied on by the prisoner's counsel, is the admission of a record of conviction for petit larceny more than twenty-five years old, against one of the witnesses on the trial. While I am not aware of any statute of limitations which would exclude this, I atn very certain that such testimony, not followed by proof of subsequent bad character, ought to be wholly disregarded by a jury. To give it weight and say that a person who had once been guilty of an offence which in itself does not render a witness incom- petent, is for life to be discredited, would be to declare that repentance and reformation were impossible, and at the same time take away one of the strongest motives for reform. I can not believe that any jury could have been influenced by this testimony, to discredit the witness against whom it was pro- duced. I think there was error in the rule adopted for the examina- tion of medical witnesses. Several of those who had heard only a portion of the testimony on which the prisoner's counsel relied to establish his defence were allowed to give their opinions founded upon the part of the testimony they had heard as to his sanity, Although the opinions of experts are admissible evi- dence, yet it must be on a given state of facts j and the facts on which the opinion is based must be admitted, and must be all the facts relied upon to establish the theory which it is sup- posed these facts sustain. Every witness would otherwise come to a different conclusion, and the same witness testifying on one half the facts might give as his opinion that they indicated sanity, while the other half would satisfy him of the prisoner's madness. A question in physical science will afford an illus- tration. A motion which is the result of a combination of different forces, invariably changes its direction if but one of the moving powers is withdrawn. Take away half of them, it would be reversed in its course. Experts might be called to 558 DECISIONS IN CRIMINAL CASES. Lake e. The People. prove any given motion; they might also be asked what would be the effect of certain combined forces, but in either case it is manifest that to have the opinion correct, all of the motive powers must be given. Medical men are allowed to give their opinions in cases of alleged insanity, because they are supposed by their study and practice to understand the symptoms of in- sanity and possess peculiar knowledge on this subject, while the jury whose opinion is ultimately to govern in the decision of the question, are believed to be incapable, without the aid of the experience and skill of these men, to judge correctly of mental phenomena. It is for this reason, and for this reason solely, that such testimony is admitted. It is evident, there- fore, that if medical witnesses are to tell the jury what is the state of the prisoner's mind, they must do it on all the testimony which is relied on to establish insanity. And to allow it on a part, would be as dangerous in principle as to permit a juror to sit during a part of the trial and then unite with the rest in determining the verdict. The conclusion to which the members of the court have come on this point is sustained by reason and the authority of every reported case, so far as they have come under my examination or notice. There is another question of much interest which arose on the trial of this case, on which I think an opinion should be given now. It is this: On a trial where the question of insanity arises, can a medical witness, who is examined as an expert, be asked his opinion upon a hypothetical statement of facts? I know that such has been the practice on trials of this kind, and am sur- prised to find no authority on the subject in the reports of this state. By a reference to the trial of Freeman, it will be seen that this mode of examination was adopted without objection. On the trial of this case the prisoner's counsel propounded to a medical witness, on the cross-examination, seventeen questions, all of which were excluded; some of them were perhaps objec- tionable in form, but they sufficiently raise the question for us now to settle the principle which should govern, in the admis- sion or rejection of evidence of this nature. I think it is proper to allow the witness to be asked whether a certain state of facts GRANGE, JULY, 1S54. Lake v. The People. if proved or admitted, indicate insanity; and that for the pur- pose of testing the skill of the witness or the soundness of his knowledge. On the cross-examination, the counsel may be allowed to ask even whether facts not in proof do or do not indicate insanity. The medical witness will thus not be allowed to pass upon the truth of the facts, nor make up the opinion of the jury, but give his own opinion upon a given state of facts and leave the jury to determine their truth, weigh his opinion and make their own verdict upon the whole. This is equivalent to allow- ing the professional witness to testify what are the symptoms of insanity, leaving to the jury, as should be done after learning what are the symptoms, to determine the whole question whe- ther those symptoms exist, and if so, whether they are feigned or real, and also their extent. I think, therefore, that the exceptions above indicated are well taken, and that a new trial should be granted. Judgment reversed, and new trial granted 560 DECISIONS IN CRIMINAL CASES. SUPREME COURT. Orange General Term, July 1854. Browr^ S. B. Strong and Rockwell, Justices. THE PEOPLE vs. JOHN HENDERSON. Arson is an offence against the property of another; and a person can not be- come guilty of arson in the first degree, by setting fire to his own house. To convict a person of arson in the third degree, under $ 5, 2 R. S. 667, it is necessary to allege that the house was insured against loss or damage by fire and that the offence was committed with intent to defraud the insurance company: under that section a person may be convicted of burning his own dwelling house, but it is still an offence against the property of another, the object of the crime being to defraud the insurer, who has an interest in the preservation of the property. Where an indictment for arson charged that the prisoner, in the night time, feloniously set fire to his own dwelling house, in which there were at the time divers human beings, with intent to burn the said dwelling house and with intent, thereby, to defraud the Poughkeepsie Mutual Insurance Com- pany, on demurrer, it was held that the indictment was not sufficient to bring the offence within the first degree, because it was not the dwelling house of another, and that it was not sufficient under the third degree, because it was not alleged in the indictment that the property was insured, and the indict- ment was adjudged to be bad. Error from the Orange County Oyer and Terminer. T. McKtssock, for defendant. C. H. Winfield, (Dist. Att'y,) for the people. By the Court, ROCKWELL, J. The prisoner was indicted before the Court of Oyer and Terminer of Orange County for arson. The indictment charged in substance, that the prisoner, in the night time, feloniously set fire to his own dwelling house, in which there were at the time divers human beings, with intent to burn the said dwelling house, and with intent thereby to defraud the Poughkeepsie Mutual Insurance Cam- pany. A general demurrer was put in, which was overruled by the Court of Oyer and Terminer, and the prisoner there- upon by leave of the court pleaded hot guilty and was tried, and ORANGE, JULY, 1854. 55 ^ The People. t>. Henderson. a general verdict of guilty rendered. A writ of error has been sued out in behalf of the prisoner, and the question presented under it is, Did the Court of Oyer and Terrainer err in overrul- ing the demurrer? It is contended on the part of the people that the indictment charges the crime of arson in the first degree. This is disputed on the part of the prisoner, upon the ground that a person can not become guilty of the crime in that degree by setting fire to his own house. The offence of arson, which is a felony at the common law, is defined by Lord Coke to be the voluntary and malicious burning of the house of another by day or night. (3 Inst. 66; 1 Hale, P. C. 566.) The burning of a man's own house is no felony at common law. But if a man set fire to his own house maliciously, intending thereby to burn the adjoining house, if the latter is burned it is felony; if not, it is a great misdemeanor. (1 Hale P. C. 568; 2 East, P C. 1027). Arson, as well by the statutes of this state, as by the common law, is an offence against property. It consists in destroying the property of another, through the agency of fire. In the first degree it is defined by statute as follows: "Arson in the first degree consists in willfully setting fire to, or burn- ing, in the night time, a dwelling house, in which there shall be at ihf time some human being, and every house, prison, jail or other edifice, which shall have been usually occupied by persons lodging therein at night, shall be deemed a dAvell- ing house of any person lodging therein. (2 R. S. 657, 9.) In this degree it is punishable with death, and is the only offence against property which in this state is so punishable. The peculiar characteristics of this degree of arson, which render it more atrocious than any other offence against property, are: 1. It is directed against a species of property which is more indispensable to the owner than any other, namely, his dwelling house. The design and tendency of the crime is, to deprive him of the shelter of his roof, and the security and comlort of his home. For this reason, it is held to be au VOL. I. 71 DECISIONS IX CRIMINAL CASES. The People v. Henderson. offence against the possession, and therefore the house or building, which is the subject of the crime, must be described in the indictment as the house or building of the person in pos- session, or in other words of him whose dwelling or home it is. (The People v. Van Blarcum, 2 Johns. R. 105.) 2. It is committed in the night time and while there is in the house some human being. The natural and usual conse- quences of the crime are. that the lives of the inmates of the house are imperiled, and they are driven out in the darkness of night, from the shelter and all the comforts of their home. The offence is marked with the most deliberate and atrocious malice. It is not perpetrated in the heat of passion, but coolly and stealthily, usually without any view of pecuniary gain. and the consequences are such as no mind which is not utterly hardened and d.epraved, can even contemplate with compla- cency. But still it is an offence against property. The word " arson " signifies the burning of property. If it is an offence against property, how can it be committed against a man's own property? The right of property, which is one of those fundamental rights which laws are instituted to protect, imports an absolute dominion of the owner over his property He may use it as he pleases, or destroy it if he sees fit, if he does not thereby injure another. Although it is not expressly stated, in the statutory definition of arson in the first degree, that it consists in burning the dwelling house of another, yet it is to be remembered that the offence defined is arson, which is a term having a known am' certain meaning in law, as well as in common parlance. If we call in the common law in aid of the statute, as I think we should do, we find that the word arson means, the burning of the house of another. Unless the statutory definition therefore expressly extends the offence to a man's own property, the use of the term itself restricts it to the property of others. (The People v. Yates, 15 Wend. 159.) By the express terms of the statute a person may commit arson in the third degree by burning his own house, in case th< house is insured against damage by fire, and the offence ii ORANGE, JULY, 1854. The People v. Henderson. committed with intent to prejudice the insurer. (2 R. S. 667, 5.) The indictment, in the present case, is insufficient to charge the prisoner with this degree of arson, because although it contains the allegation that the offence was committed with intent to defraud the Poughkeepsie Mutual Insurance Company, it does not contain the necessary allegation that the house was insured. (2 R. S. 667, 5.) The principle, upon which the last mentioned section of the statute is founded, is in perfect harmony with the view above suggested, that arson is an offence against property, and can not be committed where a man only burns his own house with- out thereby injuring or endangering the house or property of another. For where the house is insured and it is burned by the owner with intent to defraud the insurer, the design and tendency of the crime is to invade the right of property of such insurer. The insurer by his contract of insurance, has acquired an interest in the preservation of the house from destruction or damage by fire. Arson in the first degree is not necessarily a crime against hu- man life, or the personal safety of others. Although the endan- gering of human life is a frequent consequence of its commission, it is not one of its necessary characteristics. The offence may be complete, without the life of any human being having been put in the slightest peril. It by no means follows, that because some person is in the dwelling set fire to at the time of the commission of the offence, that the life or safety of such person is endangered. The probable danger to life is undoubtedly one of the circumstances which aggravates the offence, but it does not constitute it. The crime itself is arson, not an attempt to commit homicide, nor does it consist in doing an act likely to produce the death of another unless such act is at the same time arson, which, as has been already shown, can only consist in burning the house of another. I think the Court of Oyer and Terminer erred in overruling the demurrer. Judgment of the Oyer and Terminer reversed and judgment for defendant on demurrer. 564 DECISIONS IN CRIMINAL CASES. SUPREME COURT. Delaware General Term, July 1854. Crip pen, Shankland and Mason, Justices. THE PEOPLE vs. LEVI JOHNSON. in order to constitute the crime of receiving stolen goods, knowing them to have been stolen, the stolen- property must be received feloniously, or with intent to secrete it from the owner, or in some other way to defraud him of the property. In an indictment for such ofTence, it is not sufficient to allege that the defend, ant received the stolen property knowing it to be stolen, but it is necessary to aver that the property was so received with a felonious or fraudulent in- tent. if there be no such averment in the indictment the defendant may avail himself of the defect, by demurrer, writ of error, or motion in arrest of judgment. The defendant was tried and convicted at the Madison county Oyer and Terminer in October, 1853, and sentenced to two. years imprisonment in the state prison on an indictment for receiving stolen goods and property, with a knowledge at the time of their having been stolen. The conviction was had upon the first count of the indictment. D. Brown, for prisoner. D. L. Mitchell, for the People. Per Curiam, CRIPPEN, P. J. The act entitled " Of robbery, embezzlement and larceny, ( 2 R. S. 680, 71) provides that every person who shall buy or receive in any manner upon any consideration any personal property of any value whatsoever that shall have been feloniously taken away or stolen from any other, knowing the same to have been stolen, shall upon con- viction be punished by imprisonment, &c. The indictment does not charge that the defendant received the property feloniously, or unlawfully, or with intent to de- fraud the owner, but simply alleges that he received and had said goods and chattels which had been feloniously stolen, with a knowledge that the same had been stolen at the time he re- ceived said property; concluding to the great damage of the owner thereof, and contrary to the statute, &c. DELAWARE, JULY, IS54. The People v. Johnson. The defendant's counsel on the trial objected, and insisted that the first count of the indictment was defective and wholly insufficient to sustain a conviction, on the ground that it did not contain an averment that the defendant received said stolen property feloniously or wrongfully, or with intent to defraud the owner thereof. The court overruled the objection. It is undoubtedly true that the indictment follows and adopts the language of the statute in charging the offence. The statute declares that every person who shall buy or receive in any manner upon any consideration any property feloniously taken or stolen from another, with a knowledge of its being stolen property, upon conviction thereof shall be adjudged guilty, &c. The indictment in this case does not charge the defendant with having bought the stolen property, but with having re- ceived it, knowing at the time that it had been stolen. The statute is entirely silent as to the intent of the person who may receive and have stolen goods or property, with a knowledge at the time of receiving the same that such property had been stolen. The letter of the statute giving it a liberal construction*, seems to cover every case of receiving stolen property with a' knowledge of its having been stolen. No matter as to the purity of the motives by which the person may be actuated in receiving the property, if he has knowledge at the time, that it has been stolen, the statute, according to its strict letter, makes the act criminal and subjects the person to criminal punishment. If a person knows that another's goods have been stolen, he must not receive them into his possession for any purpose, not even to secure the same for the true owner; if he does so the statute according to its letter makes it a crime and him a criminal. No argument is necessary to establish the injustice and ab- surdity of giving such a construction to the statute. The intent of the statute must govern in giving it a proper construction. The object of the legislature manifestly was to punish persons who should receive stolen property, in aid of the thief who had committed the larceny, or who should in any L EC IS IONS IN CRIMINAL CASES. The People v. Johnson. manner aid in defrauding the owner of his property, having a knowledge at the time that the property had been stolen. In order to constitute the crime created by the statute, the stolen property must be received feloniously or with intent to secrete it from the owner, or in some other way to defraud him of such property. The intent must be criminal or unlawful, otherwise no crime can be committed; it is the intent with which the property is received that constitutes the essence of the crime; if the intent is honest and meritorious no crime can be committed. The next question arising in the case is whether the intent should or not be averred in the indictment, or in other words, is the indictment sufficient to warrant a conviction, without charging the defendant with a felonious receiving of the pro- perty, or that he wrongfully received it, or that it was received unlawfully, or to defraud the owner thereof. We deem the rule well settled, both upon authority and principle, that every fact or circumstance which is a necessary ingredient in the- offence, should be averred in the indictment. If any fact which is a material ingredient to constitute the crime is omitted in the indictment, such omission vitiates it, and the defendant may avail himself of such defect by demurrer, by writ of error, or on a motion in arrest of judgment. (JJrchbold's Criminal PI. 42, 5th edition; Barbour's Criminal Law, 320; Lee v. Clark, 2 East, 333.) Nor will the conclusion of the indictment with the words " contrary to the form of the statute," convict. (2 Hale, 170; Archbold, 51; Corny n^s Digest, Information, D. 3.) It will be found that the precedents given in Chitty & Arch- bold's Criminal Pleadings, of indictments for receiving stolen property, aver that such property was received feloniously 01 with intent to defraud the owner. We have not found a case or precedent, where the indictment has omitted to charge the defendant with having feloniously received the stolen property with a knowledge of its having been stolen. The result is that the judgment and conviction in this case must be reversed and the defendant discharged from imprisonment. Judgment reversed. ORANGE, JULY, 1854. 5gy DUTCHESS CIRCUIT. September 1854. Before Dean, Justice. i THE PEOPLE vs. FRANK MACK. A recognizance taken by a justice of the peace, for the appearance of the ac- cused to answer to a criminal charge, must require his attendance at the next criminal court having cognizance of the offence. Where a recognizance was conditioned for the appearance of the accused at the next court of Oyer and Terminer, to be held in the county in June then next, and it appeared that a court of Sessions was appointed to be held and was in fact held in the same county, on the second Monday of May of the same year, at which a grand jury was required to attend and did attend and was sworn and heard complaints, such court of Sessions having cognizance of the offence charged, the recognizance was held void and in an action upon it against the bail, judgment was given for the defendant. Where a justice of the peace was authorized to hear a complaint and take a recognizance only in the absence of the police justice residing in the same town, and in an action on a recognizance taken by such justice of the peace, it was alleged in the answer that such police justice was not absent from the town when such recognizance was taken, but no proof on that point was introduced on the trial, it was held that the legal presumption, in the absence of proof, was that the justice of the peace did not transcend his jurisdiction. The defendant was sued in the Supreme Court, on a recog- nizance entered into by him as a bail of one Smith, conditioned for his appearance to answer a criminal charge. An answer was put in, by which issue was joined, and the cause was brought to trial at the Dutchess Circuit, before Mr. Justice Dean, and was tried by the court without a jury. The ques- tions arising on the pleadings and the evidence at the trial are stated in the opinion of the court. J. C. Campbell, (Dist. Att'y,) for plaintiff. J. F. Barnard, for defendant By theCourt, DEAN, J. This is an action on a recognizance. The complaint states that on the 24th March, 1854, Henry A. Smith was brought before a justice of the peace in Poughkeep- sie on A warrant for larceny. After the usual exninination, the 558 DECISIONS IN CRIMINAL CASES. The People v. Mack. justice decided that there was probable cause to believe said Smith guilty of the offence with which he was charged, and icquired him to give bail for his appearance at the next court of Oyer and Terminer to be held in Dutchess county, to answer said charge, which court was in June, 1854. Thereupon, Smith, with the defendant as his surety, entered into a recog- nizance before the said justice in the sum of $500 for the ap- pearance of Smith at the Oyer and Terminer. Smith did not appear, the recognizance at the June Oyer and Terminer was forfeited, and an order to prosecute entered. The answer admits the facts in regard to the arrest and giving of the recognizance, but sets up as a defence that the justice of the peace who took it resided in the city of Pough- keepsie, and only had jurisdiction of the offence charged in case of the absence of the police justice, and denies that he, at the time this recognizance was taken, had any jurisdiction. It further says that a court of sessions was regularly and le- gally appointed to be held in Poughkeepsie, for the county of Dutchess, in the second Monday of May, 1854. That at said court a grand jury was required to attend and did attend, were sworn and heard complaints, and that said recognizance is void, because it did not require the attendance of the accused at the next court having cognizance of the offence. On the trial, the facts stated in the complaint were admitted, as were also the appointment and holding of the Court of Ses- sions in May, and the sitting of the grand jury at that court. No evidence was given or offered, in reference to the absence of the police justice from Poughkeepsie, at the time the recog- nizance was taken. A justice of the peace being an officer whose jurisdiction in criminal cases extends to every portion of the county, and who has general power to take a recognizance in cases where the punishment does not exceed a prescribed limit, the legal pre- sumption, in the absence of proof, is that he did not transcend his jurisdiction. The other question is one of more importance, and which I do not find decided in any case. If will be necessary therefore DUTCHESS, SEPTEMBER, 1S5-4. The People v. Mack. to examine it upon principle. In 4 Black. Com. 296, it is said the person accused, if a case is made out against him before a justice of the peace, "must either be committed to prison 01 give bail, that is, put in securities to answer the charge against him. This commitment therefore being only for safe custody, whenever bail will answer the same intention, it ought to be taken." The same author s in speaking of the nature of bail, calls it " a delivery of bailment of a person to his securities, upon their giving together with himself sufficient security for his appear ance, he being supposed to remain in their friendly custody instead of going to jail." Instead therefore of being delivered into the hands of the sheriff or keeper of the jail, the prisoner is to be kept by his bail. The custodian is only changed. But till what time is his bail to keep him? Clearly, if no different rule is established by statute or the common law, for the same time that the keeper of the jail under the commitment could keep him, until the sitting of the next court having cognizance of the offence. Then, if the grand jury fail to indict, the pri- soner is entitled to his discharge. This is the practice at com- mon law. Our statute, (2 R. S. 758, 26,) makes it the duty of the court of Oyer and Terminer and Sessions, within twenty- four hours after the discharge of the grand jury, to cause every person confined in the county prison, on a criminal charge, who shall not have been indicted, to be discharged without bail, unless satisfactory cause is shown for detaining him in custody, or for requiring him to give bail. But besides this provision, which alone should settle the question as to the time when the bail is to produce the principal, is the provision of the statute, (2 R. S. 709, 21, 22,) which authorizes the magistrate taking the examination to require the prosecutor and all the material witnesses against the prisoner, to enter into a recognizance to appear and testify at the next court having cognizance of the offence and in which the prisoner may be indicted. The only power that an officer has to bind a wit- ness to appear and testify is here contained. The absurdity of requiring the witnesses lo attend at one court and the prisoner VOL. I. 72 570 DECISIONS IN CRIMINAL CASES. The People v. Moneghan at another need only be mentioned to be understood. If we look at the power of bail over their principal, the necessity of this limitation will be apparent. They have the custody of the principal, and may take him at any time or in any place. His dwelling house is no longer his castle, but may be entered without his leave by day or by night, on week day or Sunday. The liberty of the citizen as much requires that there should be some limitation as to the time that this custody shall continue, as that the person in actual confinement should be discharged, on the failure of the grand jury to indict, at the first court after the commitment. Besides, if the officer taking bail can require the prisoner to give bail for his appearance at the next court but one, why may he not as well put it at the third or fourth court or even at a longer period? If the law does not determine to which court a prisoner shall be recognized, then it is discre- tionary with the officer taking bail, and it might become an intolerable means of oppression. I have no doubt that the common law is well settled on this subject. All the analogies of our statutes are in favor of this limitation. The defendant is therefore entitled to judgment. Judgment for defendant. SUPREME COURT. Monroe General Term, September 1854. Johnson, Welles and T. R. Strong, Justices. THE PEOPLE vs. MALACHI MONEGHAN. Since the act of 1851, entitled " an act in relation to courts of Sessions,"(&it. Law* of 1851, 825), a court of Sessions can not be held, except in pursuance of a previous order of a county judge, made under the authority of that act, and in conformity therewith, designating the times for the purpose, and published as ^therein directed: and when an indictment was found at a term not legally appointed and a plea in abatement, setting up such illegality was interposed and overruled by the Court of Sessions on demurrer, the case having been removed into the Superior Court by certiorari the conviction was reversed and the proceedings of the sessions were quaehed. MONROE, SEPTEMBER, 18J4. 57 J The People, v. Moneghan. Certiorari to the court of sessions of the county of Livingston. On the 23d March 1854, Malachi Moneghan was indicted in the Livingston county sessions for grand larceny and pleaded not guilty. The indictment and proceedings having been continued till the next term of said court, held in May 1854, the prisoner obtained leave to withdraw his plea of not guilty and pleaded in abatement to the indictment as follows: Livingston County Sessions. Malachi Moneghan ads. The People. And the said defendant in his own proper person comes and defends the force and injury, when, &c., and says that the said instrument purporting to be a bill of indictment was not found by any grand jury duly empanneled, charged and sworn, to inquire for the people of the state of New York and for the body of the county of Livingston, because he says that no term of the county court of said county for the trial of issues of fact by a jury was held on the third Monday of March, 1854, and that no court of sessions was appointed by any order of the county judge of the county of Livingston, to be held in and for the said county upon the third Monday of March, in the year of our Lord one thousand eight hundred and fifty-four, otherwise than by an order of which the follow- ing is a copy, that is to say: " At a term of the county court of the county of Livingston, held at the court house in Geneseo in said county on the third Monday of January, 1854. Present, Scott Lord, county juc-^e It is ordered that a grand jury shall be required to attend the terms of the said court to be held on the third Mondays of March and November in each year, and that no grand jury shall be required to attend at any term of this court except as aforesaid." And this he is ready to verify, &c., wherefore, because the said alleged bill of indictment was not found by any grand jury duly empanneled, charged and sworn to inquire for the people of the state of New York and for the body of the county of Livingston, the said defendant prays judgment of the said bill of indictment and that the same be quashed, c. 57 DECISIONS IN CRIMINAL CASES. The People . Moneghan. And for a further plea in this behalf, by leave of the court first had and obtained, the said defendant says that the said instrument purporting to be a bill of indictment never was pre- sented to any court of competent criminal jurisdiction by any grand jury duly empanneled, charged and sworn to inquire for the people of the state of New York and for the body of the county of Livingston, because he says that no term of the county court of said county for the trial of issues of fact by a jury, was held on the third Monday of March, 1854, and that no court of sessions was appointed by any order made or pub- lished by the county judge of the county of Livingston, to be held in and for the said county on the third Monday of March, one thousand eight hundred and fifty-four, otherwise than by an order of which the following is a copy, that is to say: At a term of the county court of the county of Livingston, held at the court house in Geneseo, in said county on the third Monday in January, 1854, present, Scott Lord, county judge. It is ordered that a grand jury shall be required to attend the term of the said court to be held on the third Mondays of March and November in each year, and that no grand jury shall be required to attend at any term of this court except as aforesaid. And this he is ready to verify. Wherefore because the said alleged bill of indictment was never presented to any court of competent criminal jurisdiction by any grand jury duly empan- neled, charged and sworn to inquire for the people of the state of New York and for the body of the county of Livingston, the said defendant prays judgment of the said bill of indictment, and that the same be quashed, &c. . MALACHI MONEGHAN. To which pleas the counsel for the people interposed the following demurrer: And the said the people of the state of New York, by James Wood, Jr., district attorney as aforesaid, come and say that the said pleas of the said defendant, and the matters therein con- tained in the manner and form as the said are above p.'oaded, MONROE, SEPTEMBER, 1854. 573 The People r. Moneghan. are not sufficient in law to quash the said bill of indictment, and that the said people are not bound by the law of the land to answer the same. Wherefore for want of a sufficient plea in this behalf, the said the people of the state of New York demand judgment, and that the said defendant may answer further to the said indictment, &c. The court of sessions overruled the plea and gave judgment in favor of the people; but directed the district attorney to bring the question raised by the pleas and demurrer, before the supreme court by certiorari, and stayed all further proceedings till the decision of the supreme court should have been ob- tained. George F. Danforth, for the prisoner. I. The proceedings of the court convened on the 3d Monday of March, were illegal, null and void. The law of 1851, was not complied with, and if, by reason of that noncompliance, it should be held that the terms previously appointed for general sessions were to be held, i* may be answered that at no time was a term appointed, of sessions for March, and also, it is in- sisted that the law of 1851 supersedes the statute under which the terms of general sessions were held. II. By rule adopted in January, 1853, (see Rules County Court,) the county judge appointed six general terms of the county court to be held on the 3d Monday of January. March, May, July, September and November of each year, and that no jury should be required to attend the terms of March, July and November. By the judiciary act, art. 5, 42, courts of ses- sions could be legally held only at the same time at which county courts for the trial of issues of fact by a jury should be held. The law of 1851, chap. 444, authorizes the county judge- to designate the terms of the sessions by order, which is to be published, and which also shall designate the terms at which a grand or petit jury shall be in attendance. This statute has never been complied with, unless the order made 3d Monday of January, 1854, be dfemed a compliance. But that order is 574 DECISIONS IX CRIMINAL CASES. The People v. Moneghan. no compliance with the statute. 1. It refers only to the county court. 2. It can not by implication embrace the ses- sions, (Bedell v. Powell, 3 Code Rep. 61,) for the courts are distinct, a. In organization, b. In jurisdiction, c. And so recognized in the constitution, and in the code sec. 9, code sub. 687. d. The order indirectly refers to the terms appointed the year before. James Wood, Jr., (Dist. Att'y,) for the people. I. The court of sessions is a creature of the constitution Sub. Division 2 of sec. 14, art. 6 of the constitution of this state provides that " The county judge with two justices of the peace to be designated according to law, may hold courts of sessions with such criminal jurisdiction as the legislature shall prescribe and perform such other duties as may be required by law." The legislature provided by law for the manner in which ** justices of the sessions " should be designated. (Ses- sion Laws of 1847, chap. 280; 40 as amended, chap. 470, 35.) In this case it appears from the record that the court of ses- sions which was held in the county of Livingston at the time this indictment was found, was held by and " before Scott Lord, Esq., county judge of said county, and Harvey J. Wood and Wm. J. Hamilton, session justices duly assigned and authorized and empowered to inquire," &c., so that the court was properly constituted, that is to say, it was composed or made up of the persons or officers that the constitution author- izes to hold courts of sessions. The legislature has also pre- scribed the criminal jurisdiction of the courts of sessions. Session Laws of 1847, chap, 280, 44, 2 Rev. Stat. 382, 4, which were the same power and jurisdiction possessed and ex- ercised by the courts of general sessions of the peace at the time of the passage of the act quoted. The court therefore had jurisdiction " to inquire " of the crime charged in the indict- ment. That brings us to the question of the appointment of the terms of the court or the times and places of holding the same, and it is submitted that if the legislature had omitted to MONROE, SEPTEMBER, 18-34. The People v. Moneghan. make provision for the appointment of the terms of the court or of the times arid places of holding the same, the court itself could by rules or otherwise have appointed them. The first provision for the time and place of holding courts of sessions is contained in 42, chap. 280, Sessions Laws of 1847: " courts of sessions except in the city and county of New York, shall be held at the time and place at which county courts for the trial of issues of fact by a jury of the same county shall be held, &c. This law has not been altered or repealed, and is supposed to be in force now. In 1851 the legislature passed an act which contains the following provision: 1. Courts of sessions, except in the city and county of New York, shall be held in the respective counties, at such times as the county judge of the county shall by order designate. And the county judge shall in such order designate at which terms of the ses- sions a grand or petit jury or both or neither, shall be required to attend; and no grand or petit jury shall be required to be drawn or summoned to attend any term of the court of sessions which shall be designated by the county judge to be held without such jury; such order shall be published in a news- paper printed in such county for four successive weeks previous to the time of holding the first term of said court under such order. (Session Laws of 1851, ch. 444; 2 Rev. Stat. 381; 1; 4 edition.') The court was held pursuant to an order made by the county judge under the authority conferred by that statute. It is submitted that the order is sufficient and a substantial compliance with the statute. II. The court was legally he d everi if there has been no order of the county judge designating the time for holding it as provided in the act last above referred to. It is not necessary for the county judge to make such order, to give the court of sessions jurisdiction. The act in question is not imperative but directory. (Smith Com. 782 to 789; see sec. 679.) III. The object of the statute which authorizes and directs the county judge to designate by order the time and place of holding the terms of the courts of session is, that all persons interested may have notice. The same rule then should be 576 DECISIONS IN CRIMINAL CASES. The People v. Moneghan. applied to this order that we should apply to test the validity and sufficiency of a notice. It is a well settled rule that if a notice which a statute or rule of court directs to be given, is sufficient to apprize the party of what is intended, so that he is not misled thereby, it will be held sufficient. If that rule is to be applied to the order complained of, it must dispose of the case, for no one was or could be misled by it, or read it with- out understanding that the " county court " named and referred to as " this court," was intended for, and referred to, the court of sessions. IV. The question raised is one purely technical, and is not entitled to any special favor from this court. It is not pre- tended that any injury has resulted to the defendant, or that his rights or liberty has in any way been jeoparded. The indictment has been fairly found and properly presented by a grand jury duly drawn, summoned, empanneled and sworn. If the demurrer is sustained, it is in effect deciding that all of the proceedings of the court of sessions, had at the term at which this indictment was found, are illegal and void It is proper to state that there were found and presented to the court at that term, by the grand jury, 28 indictments, 15 of which were for felonies. By the Court ,T. R. STRONG, J. It is provided by the con- stitution, (article 6, section 14,) that " the county judge, with two justices of the peace to be designated according to law, may hold courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and perform such 'other duties as may be required by law." The legislature by article 5, sec- tion 42, of the judiciary act, enacted that " courts of sessions, except in the city and county of New York, shall be held at the time and place at which county courts for the trial of issues of fact by a jury of the same county shall be held, and the same number of grand and petit jurors shall be drawn and summoned therefor, and attend, the same as is now required for courts of general sessions of the peace, in the same county." (Laws of 1847, 331, 2.) In 1851, the legislature passed an MONROE, SEPTEMBER, 1854. 577 The People v. Moneghan. act in these words: " courts of sessions except in the city and county of New York, shall be held in the respective counties at such times as the county judge of the county shall by order designate. And the county judge shall in such order designate at which terms of the sessions a grand or petit jury or both, or neither shall be required to attend; and no grand jury or petit jury shall be required to be drawn or summoned to attend any term of the courts of sessions which shall be designated by the county judge to be held without such jury; such order shall be published in a newspaper printed in such county, for four suc- cessive weeks previous to the time of holding the first term of said court under such order." These acts were within the con- stitutional power of the legislature; and no court of sessions could be legally held, or transact any business, before the last named act, except at the times and places regularly appointed for, and at which should be held, the terms of the county court in the same county for the trial by jury of issues of fact; nor since that act can a court of sessions be held at any other times except in pursuance of a previous order of the county judge, made under Ihe authority of that act, and in conformity therewith, designating such times for the purpose, and published as therein directed. Whether the first named act remains in force in each county, until an order be made by the worthy judge specifying the times for holding the court of sessions therein, and published according to the subsequent act, it is not necessary now to determine. The indictment in the present case was filed the 23d of March, 1854, and it is stated in the caption thereof to have been found, " at a court of sessions holden at the court house in the town of Geneseo, in and for the county of Livingston, on the third Monday of March," 1854. It is alleged in the plea of the defendant, that no term of the county court of said county for the trial of issues of fact by a jury, was held on the third Monday of March, 1854, and that no court of sessions was appointed by any order of the county judge of that county to be held at that time, otherwise than by an order of whicb a VOL. I. 7 3 578 DECISIONS IN CRIMINAL CASES. The People v. Moneghan. copy is therein given. This allegation is admitted by the de- murrer. The order is in these words: " At a term of the county court of the county of Livingston, held at the court house in Geneseo, in said county on the third Monday of January, 1854. Present, Scott Lord, county judge. It is ordered that a grand jury shall be required to attend the terms of said court to be held on the third Mondays of March and November in each year, and that no grand jury shall be required to attend at any term of this court except as aforesaid." It is contended by the counsel for the defendant, that here is no valid designation of the times for holding the courts of sessions; and I am of that opinion. No court is named, or alluded to by the language employed, be- sides the county court; it is the terms specified of that court a grand jury is required to attend; and there is nothing ambig- uous in the order. All acquainted with the organization of the judicial department of our state, and the laws relating thereto, can not fail to understand that the learned officer who made the order did not intend by it what it expresses, but de- signed to appoint two of the terms of the court of sessions; this understanding however can only be obtained by going out of the order, and looking at the fa'cts, that a county court has no power to direct the summoning of a grand jury for that court; that their attendance upon it would be useless; looking also at the aforesaid acts of the legislature; and regarding the whole of this extensive matter in connection with the order, and draw- ing an inference therefrom. An order which requires this knowledge and process to learn what was intended by it, is not a valid designation of the times for holding a court of sessions under the act of 1851. If I am right in the views expressed, all the proceedings in March in relation to the case were void; hence there was no valid indictment upon which the. defendant could be tried. The conviction must be set aside, and all proceedings of the sessions quashed. MONROE, SEPTEMBER, ,854 5-79 SUPREME COURT. Monroe General Term, September 1854. Before Johnson, Welles and T. R. Strong, Justices- THE PEOPLE vs. JAMES HENRIES. No peremptory challenges are allowable to the people in criminal cases. The statute of 1847, entitled " an act to provide for additional challenges to juors," has not changed the law in respect to challenges by the people in criminal cases. A court of sessions has not jurisdiction to try an indictment for robbery in the first degree, that offence being punishable in the state prison for life; a trial and conviction in such case are utterly void. Certiorari to the Yates county sessions. The prisoner was indicted, at the Yates Oyer and Termmer, for robbery in the first degree, and the indictment was sent to the Yates comity sessions for trial. The prisoner having pleaded not guilty, the case came on for trial before said court of sessions on the 16th of May, 1854, before Lewis, county judge and the justices of the sessions. On the trial, the clerk proceeded in the usual way to draw and caH_the jury, and before twelve jurors had been drawn and empanneled, the clerk drew and called one William A. Pelton as a juror; said Pelton answered to the call, but was peremp- torily challenged by the district attorney, who claimed the right of a peremptory challenge, to which the counsel for the prisoner objected. The court overruled the objection aud decided that the district attorney was entitled to two peremptory challenges, and that the challenge to the juror Pelton was well taken, and directed the said juror to stand aside, to which decision the counsel for the prisoner excepted. The juror thereupon stood aside, and another was drawn and empanneled in his place. The trial proceeded, and the prisoner was found guilty on the first count of the indictment, and not guilty as to the other counts. The cause having been brought before this court on a bill of exceptions, the prisoner's counsel moved for a reversal and for a new trial. E. Van Buren, for the prisoner. Ji. V. Harpending, (Dist. Att'y,) for the people. 590 DECISIONS IN CRIMINAL CASES. The People v. Henries. The public prosecutor on the trial of an indictment, is enti- tled to the same number of peremptory challenges that are al- lowed 1o parties in civil actions, because the act of April, 27, 1847, to provide for additional challenges to jurors, and the provisions of revised statutes respecting challenges to jurors are in part materia, and must be construed as if they formed parts of the statute, and were enacted at the same time. ( Wat erf or d and Whitehall Turnpike Co. v. The People, 9 Barb. 161, and the cases there cited; 2 R. S. 4th ed. 917, 13 and 16, Laws of 1847, p. 130.) By the Court, T. R. STRONG, J. By the common law of England, as modified by the statute 33 Edw. I, 4, the crown was allowed a challenge to jurors without assigning his cause of challenge until the panel was gone through; but if a full jury was not then obtained he was required to state the cause, which was to be inquired of by the court. Beyond this there was no peremptery challenge on the part of the crown. (4 Bl. Com. 353, 1 Chit. Crim. Law, 534 and cases cited.] This was the law of the colony of New York at the time of the revolution, and was adopted by this state, the people occupying the place of the crown. (Const, of 1777, 35.) On the 19th of April, 1786, an act was passed in this state, by section twenty-two of which it was provided, " that in all cases where the attorney general of this state, in behalf of this state, or he who shall in any case prosecute for the people of this state, shall challenge any juror as not indifferent, or for any other cause, he who shall make any such challenge, shall immediately assign and show the cause of such challenge, and the truth thereof shall be in- quired of and tried, in the same manner as the challenges of other parties are or ought to be inquired of and tried." (1 Greenleaf's Laws, 261.) This section must have been intended to abrogate the right of challenge without showing cause; and I think it did so. Unless such was its object, I do not perceive any reason for it, nor unless it had that effect, do I perceive that any thing was accomplished by it. It is not merely de- claratory, for it changes the common law rule by requiring MONROE, SEPTEMBER, 1854. T'.e People v. Henries. cause to be shown in all cases of challenge in behalf of the people, and immediately on the making thereof. The provision of this section was continued in the revisions of 1801 (1 Kent and Brad. 385, 25) and 1813, (1 R. L. 334, 25,) a proviso being added, that nothing in that act contained should be con- strued to take away the right of peremptory challenge in any cases where the same were then allowed by law. The purpose of this proviso is not apparent; it may have been to prevent an implication from the latter clause of the provision affecting the right to a peremptory challenge by a defendant; but whatever may have been its object, I do not think it restored to the peo- ple the right of challenge without assigning a cause or a pe- remptory challenge as it formerly existed. If the legislature had entertained such an intention, it would have been mani- fested in very different terms, and another way. The revised statutes of 1830 contain a section in relation to challenges in behalf of the people which is the only provision therein on the subject in these words: " The attorney general, or district attorney prosecuting for the people of this state, shall be enti- tled to the same challenges in behalf of this state, either to the array or to individual jurors, as are allowed to parties in civil cases, and the same proceedings shall be had thereon as in civil actions." This section is a revision of the statute of 1813 before referred to, and a substitute for it, and, in ray opinion, restricts the right of challenge in behalf of the people to the limits therein specified. In 1830, no challenge was allowable in civil cases, either at common law or by the revised statutes of that year, except for special cause shown. If the people were after that revision entitled only to the same challenges as parties in civil cases, it was necessary thai their cause of challenge should in every case be stated, and judged of by the court. In 1847, an act was passed, the first section of which is in these words: " Upon the trials of any issue or issues of fact, joined in a civil action, each party shall be entitled peremptorily to challenge two of the persons drawn as jurors for such trials." By the second section, the right of peremptorily challenging a limited number of ju- DECISIONS IN CRIMINAL CASES. The People v. Henries. rors is given to a defendant in criminal cases where it did not before exist; and by the third section it is declared that nothing in the act contained shall be deemed to prevent any challenges theretofore allowed either to the array or to individual jurors. It is claimed on the part of the people that the first section of this act, and the section of the revised statutes allowing the people the same challenges as are allowed to parties in civil cases, are in pari matcria, and must be construed as if they proved parts of the same statute, and were enacted at the same time 5 hence, that the people are in every criminal case entitled to two peremptory challenges. The rule is well established that statutes in pari materia must be construed with a refer- ence to each other, but I think it is inapplicable to this case, The statutes in question are upon entirely different subjects; the first relates to challenges in criminal cases, and refers to civil cases merely for description; the other relates to civil cases only. There is nothing in the act of 1847 indicating an inten- tion to extend the right of challenge in behalf of the people in criminal cases, nor in the revised statutes, manifesting that it was contemplated that the right of the people was to be en- larged or diminished as the right of challenge in civil cases might be varied. I am satisfied that the act of 1847 has not changed the law as it stood before, in respect to challenges by the people in criminal cases, and that no peremptory challenges by them are allowable. The views here presented and conclusions arrived at, are in conflict with those in the President, 4'C. of Waterford and Whitehall Turnpike v. The People, (9 Barb. 161,) in which one of the members of the court dissented, but they are supported by the decisions in The People v. Aichinson, reported in 7 How. Prac. Rep. 241. The latter case was in the Oyer and Terminer, but the opinion was delivered by the presiding justice a mem- ber of this court and evidently after a careful examination. In both cases the same question as in the present was involved and necessarily decided. There is another reason in this case why a new trial should be granted. The sessions had not jurisdiction to try the indict- KINGS, OCTOBER, 1S34. 593 Smith and Bunce v. The People. ment, as the punishment upon conviction might be imprison- ment for life, (a) (Laws of 1847, 332, 44; 2 R. S. 208, 5, Sub. 2, 677, 55, 678 and 57; TAe Peop/e v. Mot, 19 TTenJ. 192.) The trial and conviction are utterly void. Conviction reversed, and new trial granted. SUPREME COURT. Kings General Term, October 1854. Be- fore Dean, Brown and Strong, Justices. SMITH & BUNCE pl'ffs in error vs. THE PEOPLE def ts in error. The statute requiring a license to sell strong and spirituous liquors in small quantities, does not conflict with the 8th and 10th sections of the constitution of the United States. A state has the right, iu adopting general regulations in regard to its internal affairs, to impose restrictions on the sale of goods, and to license persons to pursue a particular business, and the exercise of such power on the part ol the state, will not be deemed an imposition of an additional duty upon im- ports, though such restrictions and license extend to imported goods, as well as to those of domestic origin. Writ of error to the Suffolk county sessions The plaintiffs in error, merchants, of the town of Huntington, in the county of Suffolk, were indicted for an alleged violation of the statute entitled " Of Excise and the Regulation of Taverns and Gro- ceries." The indictment set forth that the defendants therein, at va- rious times during the summer of 1853, at the town of Hunt- ington aforesaid, did willfully, unlawfully and wrongfully sell to divers persons strong and spirituous liquors and wines in (a) The statute authorizes a court of sessions to hear, determine and punish, according to law. all crimes and misdemeanors not punishable with death, or imprisonment in the state prison for life. Though robbery in the first degre may be punished by imprisonment for ten years, it is also punishable by im- prisonment for life. A similar construction was put upon the words liable to be punished in the People v. Van Steeubur^h, supra, 36. 584 DECISIONS IN CRIMINAL CASES. Smith and Bunce v. The People. \ quantities less than five gallons at a time, without a license therefor. The defendants were arraigned and demanded a trial, The following evidence was given for the prosecution: Richard Ji. Udall being sworn, said I reside at Islip; I am acquainted with the defendants; they are merchants in Babylon, in the town of Huntington. I purchased liquor at their store previous to the last court in September; paid for it; I don't re- member whom I bought it of, or whom I paid. Sometimes they have two, sometimes three clerks; Silas Udall is one of them. One or the other of these clerks is generally about the store; I don't know what part of the store the liquor is got from; I have got a gallon or two, or three, at a time; I would hand the clerk rny vessel and tell him what I wanted, and that is all I know about it; within years past I have had it of one or other of the defendants; but since the fifth of May last, I don't think I have. 1 suppose them to be partners; I have had liquor from the store several times since the first of May. On being cross-examined, witness said I can't say that I have purchased liquors of the defendants themselves since the fifth of May. Nathan E. Basset, another witness for the prosecution, being sworn, said I reside at Babylon; I know the defendants; I have bought liquor at their store since the fifth of May last The defendants are proprietors of the store. I have bought five gal- lons and less, at a time, and paid for it, frequently. On being cross-examined, witness said I am not positive I ever got it of the defendants themselves; I generally got it of the boys, the clerks. The Board of Excise of the town of Huntington, met at Ezra Smith's at Long Swamp, the first Monday of May last; a meeting called of the kind. I was pre- sent. The board consisted of Zopher B. Oakley, supervisor, and Platt R. Hubbs and Timothy Carll, justices, and a man by the name of Shepard. I applied for a license; the defendants also applied for one, and rising twenty others. We did not get a license. The direct examination being resumed, witness said Some- times when I have been in the store after liquor, one or the KINGS. OCTOBER, 1854. Smith and Bunce v. The People. other of the defendants would be present; sometimes 1 oth; the liquor is kept in the cellar; there is a door that leads out of the cellar into the street; I generally take the liquor oul of this door where I went in for it, and would pay the boys for it there. The defendants' counsel asked the court to charge tl e j'iry: 1. That the principal or employer is not criminally liable for the wrongful act of his clerk or apprentice; and 2. That the excise law of 1830, under which this indictment is found, is repugnant to the provisions of the eighth and tenth sections of the constitution of the United States, and therefore void. But the judge charged, that if the clerks had sold liquors {here under the authority of the defendants, and with th>:ir know- ledge, then the defendants are liable. And that the excise law is not repugnant to any provisions of the constitution of the United States, but that it is constitutional and valid. To each of which the defendants' counsel excepted, and brought a writ of error to this court. A. T. Rose, for plaintiffs in error. I. The principal, or employer, is not criminally liaMe for the wrongful or criminal acts of his clerk, agent or servant. (Pat- terson v. The State, 21 Ma. R. 571.) The act complained of, and for which the plaintiffs in error were indicted, is made a misdemeanor by statute, punishable by fine and irap/isonment. (28/i section of the statute entitled " Of Excise and the Regu- lation of Taverns and Groceries" 1 Rev. Stat. 676, 2d ed.) There was no proof that the plaintiffs in error had done or committed the act charged in the indictment II. That portion of the excise law which provides for grant- ing licenses to sell " strong and spirituous liquors and wines," is void, it being repugnant to the eighth and tenth sections of the constitution of the United States. And, as u necessary consequence, all the enactments or provisions in the said excise VOL. I. 74 586 DECISIONS IN CRIMINAL CASES. Smith and Bunce p. The People. law, connected with such licenses, or declaring the penalties and forfeitures for selling without them, are also void. ( 1 Kent's Com. 313; Brown v. The State of Maryland, 12 Wheaton's R 419.) W. Wickham, Jr., (Dist. Att'y,) for defendants in error. I. The sale of liquor by the clerks of the defendants, in their store, under their authority and with their knowledge, was a sale by the defendants themselves. (The People v. Hulbut, 4 Denio, R. 133; State v. Dow, 21 Vermont R. (6 Washburn, 484.) 1. The testimony fully warranted the jury in the con- clusion that the sale was by the immediate direction of the defendants. But if it did not, the judgment will not be re- versed for that cause. A bill of exceptions lies only to bring up exceptions taken at the trial to the decision of the court upon the evidence, or to the charge given to the jury. (The People v. Dalton, 15 Wend. R. 581; The People v. Haynes, 14 Wend. R. 546.) 2. The offence of selling spirituous liquors may be established by circumstantial evidence. (Vallance v. Everts, 3 Barb. R. 553; The People v. Hulbut, 4 Denio R. 133.) 3. All who authorize, aid or abet the commission of a misde- meanor are principal offenders. (1 Chitty's Criminal Law, 261; The People v. Irwin, 4 Denio R. 129.) II. The provisions of the statute requiring a license for sell- ing strong and spirituous liquors in small quantities, do not conflict with any provision in the constitution of the United States. (Ingersoll v. Skinner, 1 Denio R. 540; set; Pierce v. New Hampshire, fyc., 5 Howard, U. S. Reports, 504.) 1. The sum required to be paid for a license, is neither a duty, impost, or excise, within the meaning of the constitution. It does not relate to the importation or exportation of the liquor, and the amount does not at all depend upon the quantity of liquor sold or consumed. (See Nevin v. Ladut 3 Denio, 437, 444.) 2. Revenue is not the object of the license law, but it is intended as a protection against the consequences of an unlimited traffic in strong liquor. (Griffith v Wells, 3 Denio, 226 ) KINGS, OCTOBER, 1854. Smith and Bunce r. The PeopU. By the Court, S. B. STRONG, J. This is an excise case. The defendants dispute the right of a state legislature to impose a duty or tax upon persons licensed to sell spirituous liquors, on the ground that congress alone has the power to impose duties upon liquors from foreign countries. After the repeated decisions of the courts of this state, it is too late to contend that the payment of dulies upon goods imported from foreign countries operates as an absolute and incontrovertible license to sell them. If it would, it would restrict the state legislature from adopting the most necessary police regulations; a power so essential to their well being, if not to their political continuance, that it can not be inferred that the framers of our national constitution intended to abrogate it. But it is said that the power to impose duties, and the pro- vision that they shall be uniform, evince the intent to make the power exclusive of any state interference. That is so. Doubt- less no state can impose any additional duty upon the import- ation of foreign goods. Possibly no specific duty can be imposed on them when sold. The state, however, has the right to adopt general regulations in reference to its internal affairs, which shall include imported goods equally with those of do- mestic origin. Thus they can tax both together. So they can, when in their opinion the public good requires it, impose restrictions upon their vendition, as in the instances of licenses to pedlers, the imposition of duties upon goods sold at auction, and the restrictions upon the sales of medicines by apothecaries in New York city. If, in order to make the statutory provisions the more effectual, it is deemed necessary to impose a duty upon the pursuit of any particular business, that would seem to be the appropriate exercise of an essential part of a conceded power. It is not the imposition of a duty upon the importation of foreign goods, although the sale of such goods be a part of the regulated business, nor is it a du:y at all upon such goods. In the case under consideration, it is a tax.upon business, upon the vendition of spirits generally ; both those imported and those of domestic origin. It surely can be no objection to a charge for a license to pursue a particular occupation, that the grantee 588 DECISIONS IN CRIMINAL CASES. The People v. Cavanagh. may deal to some, or a considerable extent, in foreign goods on which duties have been paid. The judgment must be affirmed. SUPREME COURT. At Chambers, Brooklyn, October 7, 1854. Before Dean, Justice. THE PEOPLE vs. JOHN CAVANAGH. Upon a conviction at the Oyer and Terminer, it is not sufficient to state in the entry of judgment in the minutes, under the requirement of 2 R. S. 738, 5, that the defendant was convicted of a, felony or a misdemeanor,- but the par- ticular offence should be stated. And where a person is imprisoned under such conviction, the particular kind of offence of which he has been convicted should appear in the commitment, that it may be seen whether the punishment awarded was warranted by the offence. The penitentiary being provided by law for the imprisonment of persons convicted in the county of Kings, who shall be sentenced to imprisonment for a term not less than thirty days, it is illegal, in that county, to sentence a person so committed to imprisonment in the county jail. The prisoner who had been confined in the common jail of Kings county, was brought up on habeas corpus. The return of the sheriff and the other facts involved, are set forth in the opinion of the court, S. Sanxay, for the prisoner, claimed that he was illegally detained, on the ground that the entry of conviction and the commitment did not state the particular offence for which they haJ been convicted, misdemeanor being a general term, and not sufficiently explicit; and also that he should have been sentenced to imprisonment in the penitentiary arid not in the county jail. JR. C. Underbill, (Dist. Att'y,) for the people, contended that the court of Over and Terminer in which the prisoner had been convicted was a court of general jurisdiction, and that its judgments could not be impeached, KINGS, OCTOBER, 1354. The People v Cavanagh. After taking time for consideration, the following opinion was delivered: DEAN, J. The prisoner in this case is brought before me on a writ of habeas corpus issued to inquire into the cause of his detention. The sheriff has made a return to the writ stating that he holds him by virtue of the following commitment: At a court of Oyer and Terminer holden in and for the county of Kings, in the court house, in the city of Brooklyn, on the 12th day of September, in the year of our Lord, 1854 Present, the Honorable Wm. Rockwell, Justice, presiding; Henry A. Moore, County Judge, Nicholas Stillwell and Sam'I Stryker, Justices of the Peace. The people of the state of New York v. John Cavanagh, convicted of misdemeanor. Whereupon, it is ordered and judged by the court, that the said John Cavanagh, for the misdemeanor aforesaid, whereof he is convicted, be imprisoned in the common jail of Kings county, for the term of thirty days, and pay a fine of $250; and in default of payment of said fine, be imprisoned for a fur- ther term, not exceeding six months. A true extract from the minutes. C. A. DENIKE, Clerk. The prisoner's counsel says the return itself does not uhow a sufficient cause for detention, in this, that the offence for which he is committed does not appear in this commitmei t, and alleges by way of traverse that in Kings county a special stat- ute exists, which directs courts sentencing prisoners to impri- sonment for thirty days or more to sentence them to imprison- ment in the penitentiary. The statute is as follows: Chap. 110. Laws of New York. An act relating to the penitentiary in the county of Kings. Passed April 5, 1853 three-fifths being present. 590 DECISIONS IN CRIMINAL CASES. The People v. Cavanagh. The people of the state of New York represented in senate and assembly, do enact as follows: Sec. 1. Whenever the penitentiary in the county of Kings shall be ready for the confinement of prisoners therein, the board of supervisors of said county shall file a certificate thereof in the office of the clerk of said county, and also pub- lish a notice of the same three weeks successively in one or more newspapers published in said county. ^ Sec. 2. After the filing of said certificate and the publication of said notice, it shall be the duty of all magistrates and courts in said county to sentence all persons, who on conviction are liable, (except in capital cases,) to imprisonment for a period of not less than 30 days to confinement in said penitentiary, instead of the county jail. The necessary facts were proved to show that the prelimina- ries required had been taken by the board of supervisors, viz., the order, its filing and the publication in one or more papers for the period of three weeks. The district attorney was noti- fied of the time of the return of the writ and appeared in behalf of the people. The first question that arises is whether the commitment whereon the prisoner is held is " the final judgment or decree of any competent court of civil or criminal jurisdiction." If it is, then I have no authority to discharge him. The statute 2 R. S. 783, 5, provides that whenever a judgment upon a conviction shall be rendered in any court it shall be the duty of the clerk thereof to enter such judgment fully in his minutes, stating briefly the offence for which such conviction shall have been had. In this case it was proved that the commitment on which the prisoner was held, was a transcript of the minutes of the clerk which was the only judgment that exists. Is this a judgment? No offence is stated. It is true, that it says " for misdemeanor." This embraces a numerous class of cases, but is not the name or description of any offence. We can not from this determine for what he has been tried or con- victed, nor could this judgment, without proof, be a bar to another trial for any specific misdemeanor. The statute which KINGS, OCTOBER, 1854. 59 J The People v. Cavanagh. requires that the judgment should state the offence, means more than that it should state tc which class of offences felonies or misdemeanors it belongs, and a minute like the one proved in the case is not a judgment within its intent or letter. I see no objection, therefore, to proceeding with the examination into the cause of the prisoner's detention. He is held, the return states, on a sentence of 30 days' im- prisonment and to pay a fine of $250, or in default thereof an imprisonment of six months for a misdemeanor. Now, there are some misdemeanors for which a person convicted can not be imprisoned at all, and others in which the fine can not amount to the sum here named. Can anyone from the process or the judgment on which the sheriff holds the prisoner deter- mine whether this is a legal sentence? Opening sealed letters is a misdemeanor punishable by a fine not exceeding $100 and imprisonment not exceeding one month. Assemblages of three or more persons in public houses, disguised, is a misdemeanor punishable by imprisonment alone Winning or losing at play more than $25 within 24 hours is a misdemeanor punishable by fine alone. There are so many cases of this kind, that I can not now enu- merate them. These will furnish an example to show that from the mere statement that the prisoner has been convicted of a misdemeanor, it does not appear that the sentence in this case was one which the court was authorized to pronounce. There are felonies for which a person on conviction may be imprisoned in the county jail or state prison, and other felonies on which he may be sentenced to be executed. Now, surely it would not be enough in entering up a judgment for a capital offence to say that the prisoner was convicted of a felony. The statute, when it says the judgment shall state the offence, means that it shall specify more than the class of the offence, namely, a felony or a misdemeanor, but that it shall designate the particular offence for which he has been indicted and tried, whether it be for gaming, larceny, or murder. I conclude, therefore, that this is not a judgment. But even if it were the final judgment of a court of compe- DECISIONS IN CRIMINAL CASES. The People v. Cavanagh. tent jurisdiction, there is no reason why the prisoner should not be lischarged, if anything appears on the face of the pro- cess which shows it invalid. A judge can not on habeas corpus go back and inquire into the merits of the case, nor whether errors were committed on the trial; but if the process is set out by which the prisoner is confined, then, in the language of Judge Bronson, (5 Hill, 167, People v. Cassels,) " the officer may inquire whether in truth there be any process, and whe- ther it appears on its face to be valid. He may also inquire whether any cause has arisen since the commitment for putting an end to the imprisonment, as a pardon, reversal of the judg- ment, payment of the fine, and the like." The 'e are many cases which can not be reached by writ of error, md when the only means of obtaining a release from an illegal imprisonment is either by a motion to the court, or by a resort to this writ, which is so highly favored by law that it is made :i penal offence for an officer to refuse it. I th>nk the imprisonment is illegal for another reason. The penitentiary of Kings county is the place provided by law for the cotifinement of persons sentenced for thirty days, and I see no.gnund for leaving it discretionary with the court to elect in which place the confinement shall be, the jail or penitenti- ary. Of the merits of the conviction I know nothing, and have no concern. I am only to pass upon the legality of the impri- sonment, and being satisfied that it is illegal my duty is plain. The prisoner must be discharged. Whether the Oyer and Terminer, on entering a judgment on the conviction, may again arrest and sentence him, need not now be determined. Prisoner discharged. KINGS, NOVEMBER, 1834. 593 SUPREME COURT. At Chambers, Brooklyn, November 2, 1854. Before Dean, Justice. THE PEOPLE vs. MALONEY alias McCLUSKEY. A.t common law a dog was not the subject of larceny; but it seems the law in this respect has been changed by the Revised Statutes, which recognize dogs as property, by subjecting them to taxation, and define larceny so as to cover the taking and carrying away of all kinds of property, except the freehold and things which are parcel of it. Where a person was indicted for grand larceny, in stealing a Newfoundland dog of the value of $100. the property of R. T., and arrested on a warrant issued on such indictment, after a hearing on habeas corpus before a justice of the Supreme Court at chambers, his discharge was refused. The prisoner was brought up on a writ of habeas corpus. It appeared that he had been indicted and arrested for grand lar- ceny in stealing a dog. He claimed to be discharged on the ground that a dog was not the subject of larceny. D. H. Topping, for the prisoner. R. C. Underhill, (Dist. Att'y,) for the people. After advisement, the following opinion was delivered: DEAN, J. The prisoner was indicted at the Kings county sessions for grand larceny, in stealing a Newfoundland dog of the value of $100, the property of Richard Todd. He was then arrested on a warrant issued on the indictment, and in de- fault of bail for his appearance to answer the indictment, was committed. He is now brought before me on habeas corpus, and his discharge on his own recognizance asked for, on the ground that a dog is not property whereof a larceny can be committed. The case has been argued at length by the prisoner's coun- sel on one side, and the district attorney on the other; and strange as it may appear, when the number of dogs is con- sidered, and the value which for various purposes is put upon them, the question seems never to have been decided in this state. VOL. I. 75 DECISIONS IX CRIMINAL CASES. The People v. Maloney. It is impossible for me at the circuit, constantly engaged in the trial of causes, to examine the subject at length, but I have given to it that attention which my time would permit, and will proceed to state the conclusion to which I have arrived, and briefly the reasons which have led to it. At common law, a dog was not the subject of larceny. A reference to Roscoe's Criminal Evidence, Jlrchbold's Criminal Pleadings, and Blackstone' s Commentaries, renders this propo- sition indisputable. The rule is there stated as follows: " As to those animals which do not serve for food, and which there- fore the law holds to have no intrinsic value, as dogs of all sorts, and other animals kept for whim or pleasure, though a man may have a bare property therein, yet they are not of such estimation as that the crime of stealing them amounts to a larceny." By this it appears that not only was it no crime to steal a dog, but that a person might secretly take and carry away a whole menagerie and be entirely guiltless. The reason of the rule was, that these animals were of so base a nature that it would not do to make the taking of them a felony; at that time larceny was punishable with death, and it was undoubtedly to get clear of sacrificing a man for a dog or a bear, that the de- cision was made and followed in subsequent cases. The reason of the rule no longer exists, and on that ground alone the rule might cease to be operative. But the common law has been adopted in this state, and I do not feel disposed by judicial legislation to abrogate any part of it. If we had no statute which was in conflict with it, I should feel bound by the ancient doctrine which I have cited. But I think the Revised Statutes are inconsistent with the common law rule. By them, dogs are so far regarded as property as to be, in certain cases, the subject of taxation. The owner is made liable for the acts of his dog; thus recognizing that a dog has an owner, and consequently that the thing owned is property. For every civil purpose, not only by statute, but by the decisions of our courts, a dog is regarded as property. The owner may bring an action for any injury inflicted upon his 'lo^. If taken away he may bring ERIE, APRIL, 1825. The People v. Thayers. replevin or trover. But the statute has defined grand larceny, which is the crime whereof the prisoner is indicted. (2 R. S. 679, 63.) "Every person who shall be convicted of the felo- nious taking and carrying away the personal property of another, of the value of more than $25, shall be adjudged guilty of grand larceny." The same chapter, page 702, 33, defines the term " personal property," as meaning " goods, chattels, effects," &c. There is no term broader than chattel. Bouvier, in his Law Dictionary, says a " chattel is a term including all kinds of pro- perty, except the freehold and things which are parcel of it." If these statutes, therefore, do not clearly abrogate the com- mon lav rule, they raise so grave a question as to render it improper for me on habeas corpus to discharge the prisoner. He must give bail or be remanded, and his counsel can present the question by demurrer; by moving in arrest of judgment or otherwise, so as to bring the matter up at general term, and if necessary to the court of appeals. The bail was fixed at $250, which the prisoner obtained, and was discharged from custody. ERIE OVER AND TERMINER. April, 1825. Before Walworth, Circuit Judge, and Walden, Russell, Camp and Douglass, county Judges. THE PEOPLE vs. ISAAC THAYER AND ISRAEL THAYER, Jr. Where two or more persons, jointly indicted for murder, are tried together, only twenty peremptory challenges can be allowed to all the defendants. On a trial for murder, it appeared that the father of the defendants had been arrested and examined before a magistrate on a complaint against him for the same murder, and that on such examination one of the defendants, who was also at the same time under arrest for the murder, came forward as a volunteer witness and testified on such examination ; Held, that his state- ments, made under oath, on such examination, were admissible in evidence against him. On a trial for murder, it is competent for the public prosecutor to prove what the lefendant testified to, before a coroner's jury, at an inquest held on 596 DECISIONS IX CRIMINAL, CASES. The People v, Thayers. of the deceased, though it appears the defendant with other persons was at the time under arrest for the alleged murder, the inquiry on such inquest no' having been as to the guilt of the defendant, but being general, to ascertain, if possible, who was the murderer, (a) In criminal trials, the jury have a right to decide both as to the law and facts of the case. (6) The court is bound to decide the questions of law and to state them to the jury; but the jury have a right to disregard the decision of the court upon questions of law, especially in favor of life, if they are fully satisfied that such decision is wrong. The decision of questions of fact belongs exclusively to the jury, though it is the right, and sometimes the duty of the court to comment upon the evidence, for the purpose of present- ing such questions properly to the consideration of the jury. The mode of reasoning and drawing conclusions from facts and circumstances is the same, whether the case under consideration is a mere contest respect- ing the rights of property, or one involving the life of an individual; except that, in criminal cases, the accused must be presumed to be innocent, until the contrary is clearly established by proof which leaves no reasonable doubt on the mind. Sentence of death pronounced by WALWORTH, circuit judge, upon Nelson Thayer, Israel Thayer, Jr., and Isaac Thayer, at the Erie Oyer and Termi- ner, in April, 1825. These defendants, Isaac Thayer and Israel Thayer, Jr., were jointly indicted for the murder of John Love; and they con- sented to be tried together. The counsel for the prisoner, having challenged twenty jurors peremptorily, insisted upon the right to twenty more peremptory challenges; claiming that as there were two more persons on trial, each was entitled to the number of challenges allowed to a person indicted for a capital felony. The court decided that where two or more persons were tried together, only twenty peremptory challenges could be allowed to all the persons so tried. The father of the accused had been arrested and examined before a magistrate upon a complaint against him for the same murder. And in the course of the present trial the public pro- secutor proposed to prove what Isaac Thayer, one of the persons now on trial, testified to on that examination. The (a) Vide Hendrickson v. The People, p. 406. (b) This doctrine is controverted in the case of The People v. Finnegan, p. 147, and The People v. Croziei, p. 453. ERIE, APRIL, 1825. The People v. Thayers. counsel for the defence objected to said evidence, on the ground that Isaac Thayer was at the same time under arrest himself for the same murder. But as it appeared from the testimony of the magistrate that Isaac Thayer came forward as a volun- teer witness upon the examination of his father, and was not coerced to testify, the court held that he could not now object to the admission, as evidence against himself, of what he stated under oath upon that examination. Israel Thayer, Jr., the other prisoner on trial, had been examined before the coroner when he and his two brothers, and their father, were all under arrest for the alleged murder The public prosecutor proposed to prove, by the coroner, what this defendant swore to on that examination. This testimony being objected to, the court decided that the examinati9n of the present defendant before the coroner's inquest, not being as to his own guilt, but merely to ascertain if possible who the murderer was, if he could not answer the questions propounded to him without testifying to facts which, in connection with other circumstances, might tend to criminate himself, he should have claimed his exemption at that time. And that having answered the questions propounded to him without objection, the prosecutor had a legal right to give what this defendant then testified to in evidence against him on this trial. The substance of the facts in this case, as made out by the circum- stantial evidence upon the trial, and as they were afterwards admitted by the murderers themselves, are referred to in the sentence pronounced by the court. Walworth, circuit judge, in his charge to the jury remarked that the prisoners were charged with a very aggravated mur- der. If guilty, and the jury were satisfied of that fact, from the evidence in the case, it was a solemn and imperious duty imposed upon such jury, by the laws of their country, to pro- nounce a verdict of condemnation. On the contrary, if the jury had any reasonable doubt as to the guilt of the accused it was not only their right but also their duty to give a verdict of acquittal. He said the reports respecting the circumstances attending 593 DECISIONS IX CRIMINAL CASES. The People v. Thayers. the murder had been so extensive, that it was impossible thai the jurors should not have heard many things on the subject before they were sworn to try the accused. But it was their duly to disregard every thing they had heard on the subject, either for or against the accused, except what had been given in evidence upon this trial. He told the jury that, in criminal trials, they had a right to decide both as to the law and the facts of the case. That the court was bound, by the oaths of office of its judges, honestly and impartially to decide the ques- tions of law arising in the case and state them to the jury. But the jury had a right to disregard the decision of the court, upon questions of law, especially in favor of life, if they were fully satisfied that such decision was wrong. And that the decision upon the questions of fact in the case belonged exclu- sively to the jury; although it was the right, and sometimes the duty of the court, to comment upon the evidence for the purpose of presenting the questions of fact arising in the case, and material to a correct decision thereof, properly to the con- sideration of the jury. He said the general principles of evidence were the same in all cases. That they were those principles of correct reason from which an enlightened intellect might be convinced of the existence of a fact which was to be established, or of the non- existence of a fact which was required to be disproved. That the mode of reasoning and drawing conclusions from facts and circumstances must therefore be the same, whether the case under consideration by the jury was a mere contest respe jting the rights of property, or one involving the life of an individual; except that, in criminal cases, the accused must be presumed to be innocent, until the contrary was clearly established by proof which left no reasonable doubt in the minds of the jurors. His honor then analyzed and examined the testimony in the case at length, and presented the questions of fact necessary to a correct decision of the case to the consideration of the jury. And he then submitted the question, as to the guilt of the accused, to the jury, as one which it belonged exclusively to them to decide ERIE, APRIL. 1823. The People v. Thayers. The jury, after an absence of about one hour ? returned a verdict of guilty against both of the prisoners on trial. H. R Potter, (Dist. Att'y), Sheldon Smith and Henry Brown, for the prosecution. P. C. Love, E. Griffin and E. B. Mien, for the defendants. On the next day Nelson Thayer, the other brother, was, tried upon a separate indictment for the same murder, and was also convicted. WAL WORTH, Circuit Judge, thereupon pronounced the follow ing sentence upon the prisoners: Nelson Thayer, Israel Thayer, Jr., and Isaac Thayer: You have been indicted by the grand jury of this county, for the murder of John Love, at the town of Boston, on the loth of December last. You have respectively had fair and impartial trials, in which you have been aided by faithful and intelligent counsel. After a patient and deliberate investigation of your several cases by petit juries, they have been constrained and compelled, by their consciences and their oaths, to pronounce each and all of you guilty of a most foul and aggravated mur- der. Have you, or either of you, anything to say why the sentence of the law should not be pronounced against you? [The prisoners making no response, his honor proceeded as follows:] The feelings and emotions with which I enter upon the dis- charge of the solemn and important duty which devolves upon the court, and which I am now about to perform, are too pain- ful to be expressed. To pronounce the dreadful sentence which is to cut a fellow mortal off from society, to deprive him of existence, and to sent/ him to the bar of his Creator and his God, where his destiny must be fixed for eternity, is at all times, and under any circumstance, most painful to the court. But to be compelled, at one and the same time, to consign to 600 DECISIONS IN CRIMINAL CASES. The People t>. Thayers. the gallows three young men, who have just arrived at man- hood, standing in the relation to each other of brothers, and connected with others in the tender relations of children, bro- thers, husbands and fathers, presses upon my feelings with a weight which I can neither resist nor express. If, in the discharge of this most painful duty which can ever devolve on any court, I should, in portraying the horrid cir- cumstances of this case, make use of strong language to express the enormity of your guilt, and the deep depravity which-it indi- cates, I wish you to rest assured it is not with any intention of wounding the feelings of your relatives, nor for the purpose of adding one pang to your own afflictions which the righteous hand of an offended God is pressing so heavily upon you. But it will be for the purpose, if possible, of awakening you to a proper sense of your awful situations, and to prepare you to meet the certain and ignominious deaths which shortly await you. It is to endeavor, if possible, to soften your hearts and to produce a reformation in your feelings; that, by contrition and repentance, you may be enabled to shun a punishment infinitely more dreadful than any that can be inflicted by human laws the eternal and irretrievable ruin of your guilty souls. From the testimony which was given on the trials of your several cases, there is no room to doubt the certainty of your guilt, or the aggravated circumstances attending the perpetra- tion of the bloody deed. The man you murdered was your companion and your friend. He had loaned you money to relieve your necessities and to support some of your families. He was the lenient creditor, renewing and exchanging his judgments and his executions, from time to time, to prevent the sacrifice of your property. He was the lodger of your father, and was frequently enjoying the hospitalities of your own roofs. In the unsuspecting hour of private confidence, you decoyed him to the retired dwelling of Israel Thayer, Jr.j and there, while he was enj.oying the hospitality of the social fireside, you stole upon him unperceived you aimed the deadly musket at his head, and with the fatal axe you mangled ERIE, APRIL, 1825. The People . Thayers. and murdered your victim mingling his blood with that of your butchered swine. But your guilt and depravity did no* stop here. Scarcely had you committed his lifeless corpse to its shallow grave, before you began to collect and to riot upon the spoils of his property. To the crime of murder, you added those of theft, fraud and forgery; and repeatedly impre- cated the vengeance of Heaven upon your perjured souls. The punishment of death has been pronounced against the crime of murder, not only by the laws of all civilized nations, but also by that law which was written by the pen of inspira- tion under the dictation of the unerring wisdom of the Most High. And as God himself has prescribed the righteous penalty for this offence, so there is strong reason to believe that very few murders are committed which are not ultimately liscovered, and the wicked perpetrators thereof brought to merited punishment. Wretched and deluded men! In vain was the foul deed per- petrated under cover of the darkness of night; in vain was the mangled body of your murdered companion committed to the earth and the lonely grave concealed by rubbish; in vain was the little boy sent home to his mother, and the unsuspecting wife removed from her house, that no human eye should be near, to witness the foul and unnatural murder; in vain did you expect the snows of winter to conceal the grave until the body of your victim could be no longer known and recognized. You forgot that the eye of your God was fixed upon you the eye of that God who suffers not even a sparrow to fall without his notice. You forgot that you were in the presence of Him to whom the light of day and the da/kness of midnight are the same; that He witnessed all your movements; that He could withhold the accustomed snows from falling on the earth, or His breath could melt them when fallen, leaving the grave uncovered, thus exposing you to detection and condemnation. His vengeance has at length overtaken you. The sword of human justice trembles over you and is about to fall upon your guilty heads. You are about to take your final leave of this world, and to enter upon the untried retributions of a never VOL. I. 76 602 DECISIONS IX CRLMLNAL CASES. The People v. Thayers. ending eternity. And I beg of you not to delude yourselves with the vain hopes of pardon, which never can be realized. Your destiny for this world is fixed, and your fate is inevitable. Let me therefore entreat you, individually and collectively, by every motive temporal and eternal, to reflect upon your present situation, and the certain death that shortly awaits you. There is but one who can pardon your offences; there is a Saviour whose blood is sufficient to wash from your souls the guilty stains even of a thousand murders. Let me therefore entreat you to fly to him for that mercy and that pardon which you must not expect from mortals. When you have returned to the solitude of your prison, where you will be permitted to remain for a few short weeks, let me entreat you, by all that is still dear to you in time by all that is dreadful in the retributions of eternity that you seriously reflect upon your present situation and upon the con- duct of your past lives. Bring to your minds all the aggra- vated horrors of that dreadful night, when the soul of the mur- dered Love was sent unprepared into the presence of its God, where you must shortly meet it as an accusing spirit against you. Bring to your recollections the mortal struggles and dying groans of your murdered friend. Recollect the horror that seized you while you dragged his murdered remains to the place of concealment. Think of the situation of your aged father to whom you a^e indebted for your existence. Think of the grief of your distracted and disconsolate mother, who has nursed you in the lap of affection and watched over the tender years of your infancy; who must now go down to her grave sorrowing over the ruins, of her family. Think of the dreadful agonies, of the unnatural and desolate widowhoods, to which you have reduced the unfortunate partners of your beds and your bosoms. Think upon your poor orphan children, on whom you have entailed everlasting disgrace and infamy; and who are now to be left, fatherless, and unprotected, to the mercy of the world. And when, by such reflections as these, your hard and obdurate hearts shall become softened, let me again intreat you, before your blood-stained hands are raised in FRANKLIN, JULY, 1825. The People v. Videto. unavailing supplication before the judgment seat of Christ, that you fly for mercy to the arms of the Saviour and endeavor to seize upon the salvation of his cross. Listen now to the dreadful sentence of the law, and then farewell, forever, until the court, and you, with all this assem- bled audience, shall meet together in the general resurrection. You, and each of you are to be taken from hence to the prison from which you came, and from thence to the place of execution, and there, on the seventeenth day of June next, between the hours of twelve at noon and six o'clock in the afternoon, you are to be hanged by your necks until you are dead. And may that God whose laws you have broken, and before whose dread tribunal you must then appear, have mercy on your souls. FRANKLIN OYER AND TERMINER. July, 1825. Before Walworth, Circuit Judge, and Clark, Bates, Collins and Pierce, county Judges. THE PEOPLE vs. STEPHEN VIDETO. In criminal cases, the jury are judges both of the law and facts. They have a right to disregard the opinion of the court in a criminal case, even upoa a question of law, if they are fully satisfied that such opinion is wrong, (a) Presumptive or circumstantial evidence is admissible both in civil and criminal cases, and in prosecutions for some of the worst species of crimes, is often the most satisfactory and convincing that can bo produced. The reasons for this opinion stated in a comparison between positive and circumstantial evi- dence. The treatise entitled " The theory of presumptive proof, or an inquiry into the nature of circumstantial evidence," which is found bound up with the first American edition' of Philips' Evidence, disapproved and declared to be in opposition to the judicial decisions upon that subject; and the eleven cases published in the appendix of that work for the purpose of supporting that theory by illustration, held to be unauthenticateil and unreliable. (a) This is in accordance with the opinion expressed in the last case by the same judge, but is at variance with the law as laid down in Th People v. Finnegan, p. 147, and The People v. Crozier, p. 453. 604 DECISIONS IN CRIMINAL CASES. The People v. Videto. The nature of presumptions discussed; and violent presumptions, probable pre- sumptions, and light or rash presumptions described and illusi; ated by exam- ples, and directions given as to their application, and as to the weight that should be severally given to them. The prisoner was tried upon an indictment for the murder of Fanny Mosely, by shooting her, in February, 1825. This case depended entirely upon circumstantial evidence. Very few questions of law arose upon the trial, and it is only necessary to notice that part of the charge of the court which relates to the principles which are to govern the jury in deciding a case depending upon circumstantial evidence. The case was summed up to the jury, upon the law and the facts of the case, by A. Hascall, (Dist. Att'y,) and E. C. Gross, for the people. W. Swetland and J. Lynde, for the prisoner. By the Court, WALWORTH, J. After stating to the jury that in criminal cases they were judges both of the law and the facts, that the decision of the questions of fact belonged ex- clusively to them, and that they also had a right to disregard the opinion of the court, in a criminal case, even upon a ques- tion of law, if they were fully satisfied that such opinion was wrong, proceeded as follows: The decision of this case, gentlemen of the jury, depends altogether upon what is called presumptive or circumstantial evidence. This species of evidence is admissible, both in civil and in criminal cases, but more frequently in the latter, because it is adopted the more readily in proportion to the difficulty of establishing facts by positive testimony. In cases of murder and other crimes of the higher grades which are usually com- mitted in secret, it is frequently the only evidence which can be adduced to substantiate the fact of the commission of the crime. Philips, in his excellent treatise on the law of evidence, says that in prosecutions for some of the worst species of crimes, this kind of evidence will often be the most satisfactory FRANKLIN JULY, 605 The People v. Videto. and convincing that can be produced; and the remarks of this elementary writer have been sanctioned by the opinions of many of the most eminent judges. There can be no doubt of the truth of this observation in those cases where there are many separate circumstances, proved by several different witnesses, all tending to the same point and necessarily producing the same result. For it is a valuable maxim of the law, notwithstanding what some visionary wri- ters have said to the contrary, that " circumstances can not lie." It is true circumstances may be proved by witnesses, and those witnesses may lie. But it is also true that if a corrupt witness intends, by perjury, to convict an innocent man, such witness will be much more likely to swear positively to the fact of the commission of the crime, than to circumstances which alone may not have the desired effect to convict the object of his malice. In most cases of conviction upon presumptive proof or cir- cumstantial evidence, there are many different witnesses swear- ing to several distinct circumstances, all tending to the same result, each of which circumstances is a necessary link in the chain of evidence required to produce a conviction of the ac- cused; and there is therefore the less danger of perjury in such cases in consequence of the number of perjured witnesses which it would be necessary for the prosecution to produce to effect an unjust conviction. For if one perjured witness should swear to a fact forming only one link in a chain of circumstances, the rest of the witnesses being honest he will be in danger of de- tection from the discrepancy between his testimony and theirs; when he might have sworn positively, but falsely, tc the com- mission of the crime, by the accused, without the possibility of being contradicted. For this reason, although from the imper- fection and uncertainty which must ever exist in all human tribunals, I have no doubt that there have been cases in which innocent persons have been convicted on presumptive proofs, yet from my knowledge of criminal jurisprudence, both from reading and from observation, I have no hesitation in expressing the opinion thai, where there has been one unjust conviction 606 DECISIONS IN CRIMINAL CASES. The People t; Videto. upon circumstantial evidence alone, there have been three in- nocent persons condemned upon the positive testimony of per- jured witnesses. I speak more particularly in reference to that country from which our laws have mostly been derived. For- tunately for the people of the United States, perjury has seldom, in any shape, connected itself with prosecutions for any of the higher offences in our courts of justice. Much has been read to you, as law, during this trial, from a treatise called, " Tbe Theory of Presumptive Proof, or, an Inquiry into the nature of Circumstantial Evidence." This " theory," which is the production of an anonymous English writer, has been republished in this country, and is found bound up with the first American edition of Philips's Treatise on the Law of Evidence, and has frequently been confounded with that valuable work. But it is my duty to tell you, that the theory of this anonymous writer, which the American editor has pub- lished, and had bound up in the same volume with Philips's treatise, is not considered as law by the courts in this or any other country. It is an attempt, by a theoretical writer, to overturn the decisions of the judges of the superior courts in England, and to set up his individual opinion in opposition to the law as settled in the courts of justice both there and here. This writer has remarked very freely, and in some instances very justly, upon the case of Captain Donnellan, who though he was probably guilty of the murder of his brother-in-law, was convicted upon very slight circumstantial evidence, if his case is correctly reported. In addition to his " theory," the writer, in an appendix to his work, has collected eleven cases, for the purpose of illustrating his ideas, and to show the danger of convicting upon circumstantial evidence. These cases have been seized on with avidity, and are generally read and com- mented upon by those who are engaged in the defence of crim- inals, whether the evidence against the accused is positive or only circumstantial. In most of the cases stated in that appendix, it is said tne accused were unjustly convicted, and that it was afterwards ascertained they were innocent. But, in nearly all of those FRANKLIN, JULY, 1825. QQJ The People v. Videto. cases, the fact of the innocence of the accused depends alto- gether upon hearsay, or tradition. It is but a few years since a story was published in nearly all of the newspapers of the United States, that a man by the name of Hamilton had been condemned and executed in one of the western states, and that his innocence was afterwards clearly established, by the confession of the man who had actually committed the murder. This story, for a time, gained entire credit, and was generally believed wherever it was told. Yet, fortunately for the administration of justice, the report of his innocence was discovered to be a base fabrication, put in cir- culation by some of his surviving friends for the purpose of removing a stigma from the name of the man who had justly suffered the penalty of the law for a most wicked and aggra- vated robbery and murder. It is not improbable that some of the cases collected in his appendix, by the anonymous writer, before referred to, are cases of that description. But if they were all supported by well attested facts, they would not in the least diminish the weight which ought to be given to circum- stantial evidence. For upon examination, it will be found that most of those cases were convictions upon the positive testimony of mistaken or perjured witnesses. His honor then adverted particularly to each of the cases stated in that appendix, and observed that they only went to support the opinion he had before expressed, that there were more unjust convictions upon the positive testimony of mistaken or perjured witnesses, than from erroneous conclusions of juries in deciding upon circumstantial evidence. He then commented upon the nature of presumptic ns, which he told the jury were of three kinds: 1. Violent Presumptions. Where the facts and circumstances proved would necessarily attend the fact presented. As if your horse had been shot in the stable by a musket ball, and it was proved that a man was seen immediately before to load his gun and go into the stable; that the report of a musket was heard in the stable, and that the man immediately came out with his gun unloaded and fled. These circumstances would raise a 608 DECISIONS IN CRIMINAL CASES. The People v. Videto. violent presumption that the man shot the horse, because the loading of the gun, the report in the stable, and the gun being unloaded when he came out, are all facts which must neces- sarily attend the fact presumed ; to wit, that he shot the horse. And upon such testimony, unexplained, it would be the duty of a jury to give a verdict against him, equally as it would be if the shooting of the horse was positively sworn to by the same witness. For in either case, if the witness was to be credited, there could be no reasonable doubt of the guilt of the accused, although there was a possibility of his innocence. 2. Probable. Presumptions. Where the facts and circum- stances proved, usually attend the fact presumed. As if your horse is stolen, and shortly thereafter he is found in the pos- session of the accused, who refuses to give any explanation as to the manner in which the horse came into his possession. These circumstances raise a probable presumption that the ac- cused committed the theft. It is every day's practice to convict on such circumstantial evidence, if the transaction is unex- plained. 3. Light or Rash Presumptions. When the facts and cir- cumstances proved might probably attend the fact presumed. As if a man gave medicine to his wife, and she died shortly afterwards, it would be a light presumption of the fact that he had given her poison instead of medicine, and could not legally authorize his conviction for murder. But, he said, there are many circumstances which, taken separately, would only amount to light or rash presumptions, and as such entitled to no weight, which, if they were well proved and connected together in one case, might amount to probable or even to violent presumption of guilt. As if a wife die very suddenly, with the usual symptoms of having been poisoned. It is proved that she and her husband were on ill terms; that he had threatened her life; that he gave her liquor to drink shortly before those symptoms appeared; that he was seen to put something into the bottle of liquor; that he pur- chased arsenic the day before; that the bottle being inquired for he immediately flung away the liquor remaining therein; FRANKLIN, JULY, 1885. 699 The People, r. Videto. that he gave no satisfactory account of what had been done with the arsenic; that he caused her to be buried unusually soon after her death: that the contents of her stomach bein" * O analyzed were found to contain arsenic. Each of these circum- stances, taken by itself, and perhaps two or three of them together, would be nothing more than rash or light presump- tions of the guilt of the husband. But if all the circumstances I have enumerated were satisfactorily proved by credible wit- nesses and were left unexplained by the accused, they might, when taken together, carry irresistible conviction to the minds of the jury that he had killed his wife by poison. This is what is called a chain of circumstances. And in proportion to the number, to the strength and to the close connection of the links of which that chain is composed, must be its power to draw the minds of the jury to the conclusion of fact which it is intended to establish. As the facts and circumstances in each particular case must be in some respects necessarily peculiar and different from all others, it is very difficult to lay down general rules for the guide of jurors in such cases. One rule, however, which ought never to be departed from, is that no one should be convicted of murder upon circumstantial evidence, unless the body of the person supposed to have been murdered has been found, or there be other clear and irresistible proof that such person is actually dead. Secondly. Each circumstance should be satis- factorily established by evidence, and should not be presumed by an assumption of the fact that the accused is guilty. Third. The jury should give as much weight to each circumstance which is in favor of the accused, as they do to circumstances of the same importance against him. Fourth. If the existence of any circumstance against the accused is not established beyond all reasonable doubt, the jury, in favor of life, should reject such circumstance. Fifth. The jury should always act upon the presumption that the accused is innocent, and should endeavor, if possible, to reconcile all the circumstances of the case with that side of the question. And in such cases it is also proper that the former good character of the accused, if it VOL. L 77 DECISIONS IN CRIMINAL CASES. The People v. Videto. was good, should be taken into consideration, and given its full weight in behalf of the accused. His honor told the jury that these were the principles and rules by which they should be governed in the decision of this cause, and requested their undivided attention while he exami- ned the testimony, for the purpose of bringing the principal facts to their recollection, and to assist them in the examination of the evidence. He reminded them that the question of the prisoner's guilt or innocence was one which it belonged to them exclusively to decide, and added that if, in commenting upon the testimony, he should, .unintentionally, intimate any opinion upon that question, they must reject it, and found their verdict upon their own unbiassed convictions, arising from the testi- mony before them. He then examined the testimony in the case at length, and concluded by observing that if the jury, after a careful examination of all the circumstances, could by the assistance of their reason, reconcile the facts with the inno- cence of the prisoner, it would be their duty, as he had no doubt it would be a pleasure, to pronounce a verdict of acquittal. But if, on the contrary, after they had fully examined and rea- soned upon the testimony, they should find the dreadful truth pressing upon their minds with such irresistible force as to re- move therefrom every rational doubt of the prisoner's guilt, it would be their imperious 'duty to pronounce, as the result of their deliberations, that he was guilty of the felony, and mur- der charged in the indictment. The prisoner was convicted, and subsequently execi ted. NEW YORK, NOVEMBER, 1843. AT CHAMBERS November 3, 1842. Before Reuben H. Wai- worth, Chancellor of the state of New York. JOHN C. COLT vs. THE PEorLE. The court of Oyer and Terminer, in which a criminal case has been tried and verdict of guilty is given, ought not to delay the sentence for the purpose of having the decision reviewed by certiorari. except in cases of great doubt and difficulty ; in other cases, the defendant should be left to his writ of error. Even in capital cases, it can seldom be necessary to delay the sentence, the governor being authorized in these cases to take the opinion of the attorney general and of all the high judicial officers of the state, before he permits the execution of the sentence, and to suspend the execution of the sentence, that the case may be brought before the Supreme Court and decided on a writ of error, if he or any of these officers entertains any doubt as to the legality of the conviction. Writs of error in cases not capital, issue of course; but they do not stay the sentence, without an express order to that effect from a circuit judge, or a judge of the Supreme Court. In capital cases, no writ of error can be issued unless allowed by the chan- cellor, or one of the justices of the Supreme Court, or a circuit judge upon notice given to the attorney general, or to the district attorney of the county in which the conviction was had; and it is the duty of the officer to whom the application is made, to disallow the same, if he has no reason to doubt the legality of the conviction. Where at the Oyer and Terminer the initiatory proceedings of a trial for murder had been commenced, by calling the jurors as directed by law. and only nineteen of the jurors answered to their names, whereupon three hundred additional jurors were summoned by the sheriff under direction ol the court, and the court refused to delay the trial for two or three days, as requested by the prisoner's counsel, to enable them to examine such list of additional jurors, it was held that the question to be decided on such appli- cation was a matter of discretion, and that no exception could lie to such rcfuasl . Held, also, that the summoning of so large a number of additional jurors was a matter of sound discretion, to be exercised by the court, with a view to g5. COLUMBIA OYER AND TERMINER. January 1855. Before Parker t Justice of the Supreme Court, and the Justices of the Sessions. ^THE PEOPLE vs. GEORGE C.-ESAR. Form of an indictment for petit larceny charged as a second offence. The statute declaring a second offence of petit larceny to be punishable in the state prison, is not applicable to a case in which the first conviction took place in another state. And where a defendant pleaded guilty to an indictment charging petit larceny as a second offence, and it appeared by the indictment, that the first offence was committed and the first conviction had in the state of Massachusetts it was held that the defendant could only be punished for simple larceny. The prisoner was indicted for petit larceny, as a second offence, in the following form: State of New York, Columbia County, ss: The jurors of the people of the state of New York, in and for the body of the county of Columbia, upon their oath and affirmation do present, that at the court of common pleas begun and holden at Lenox within and for the county of Berkshire in the commonwealth of Massachusetts, on the first Monday of January in the year 1853, George Caesar was indicted for that at Richmond in the said county of Berkshire, on the seventh day of August then last past, in a certain building then and there called and being a dwelling house of one Mary Van Buren, there situate, then and there in the said building, one pair of pantaloons of the value of five dollars, the proper goods and chattels of one Charles M. Van Buren, and one cloth cap of the value of fifty cents, and one gun of the value of ten dollars, of the goods and chat- tels of one George Albert Van Buren, all in the said building, then and there being found, then and there feloniously did steal, take and carry away, against the peace of the commonwealth of Massachusetts, and contrary to the form of the statute of the said commonwealth in such case made and provided, whereupon such proceedings were had in due form of law, at the said January term of the said court, that the said George Caesar was convicted of the offence above set forth whereof he was 646 DECISIONS IN CRIMINAL CASES. The People t;. Ccesar. indicted as aforesaid, and the said court thereupon considered, ordered and adjudged that the said George Caesar, convicted of the offence aforesaid, be confined to hard labor in the house of correction, within the county of Berkshire aforesaid, for the term of eighteen months, and that he stand committed, accord- ing to said sentence, and the said George Caesar was so sen- tenced at the said term f the said court on the tenth day of January, 1853; the said court then and there at the times afore- said, having full power, jurisdiction and authority in the pre- mises. And the jurors aforesaid upon their oath and affirma- tion aforesaid, do further present that the said George Caesur, late of the town of Canaan in the county of Columbia and state of New York, being the same George Caesar who was convicted and sentenced as aforesaid of petit larceny, after the said con- viction and sentence and after having been discharged from the said conviction and sentence, to wit, on the 27th clay of Decem- ber, 1854, at the town of Canaan, in the county of Columbia and state of New York, with force and arms three cotton shirts of the value of fifty cents each, one skirt of the value of one dollar and fifty cents, one table cloth of the value of fifty cents, six pillow cases of the value of twenty-five cents, the goods, chat- tels and property of Alonzo Lockwood, then and there being found, did then and there feloniously steal, take end carry away against the form of the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity. WILLIAM A. PORTER, District Attorney. To this indictment the prisoner pleaded guilty. In deciding upon the punishment to be inflicted, it became necessary to determine whether the case came within the 9th section of 2 R. S. 699, by which, on conviction of petit larceny, after a former conviction for a like offence, a person must be sentenced to imprisonment in the state prison, or whether the prisoner could only be punished for simple petit larceny, under 1 of 2 R. S 690. COLUMBIA, JANUARY, 1835. The People. 0. Caesar. After taking time to examine the question, the presiding judge delivered the following opinion: PARKER, J. Before passing sentence in this case, it is ne- cessary to decide whether the prisoner can be punished for petit larceny as a second offence, where the first larceny was committed and the first conviction took place in the state of Massachusetts. The statute, under which the prisoner is indicted, is expressed in very general language, and is not, in terms, confined to a first conviction in this state. (2 R. S. 699, 9.) It provides that every person having been convicted of petit larceny, &c., who shall be subsequently convicted of petit larceny, &c., shall je sentenced to imprisonment in the state prison for a term not exceeding five years. Although this expression is broad enough to apply to cases where the first conviction took place in another state, yet I think no such meaning was intended by the legis- lature. Crimes are local. We have no cognizance of crimes committed in another state or country. Each state exercises exclusive jurisdiction over all cases of crime committed within its limits. In this respect the different states of the union stand in the same relation to each other as foreign states. (Com. \. Green, 17 Mass. #.514; Clark's Lessee v. Hall, 2 Harris # Me* Hen. 378; Cole's Lessees v. Cole, 1 Harris fy John. 378; 3 Hawks Rep. 393; Com. v. Knapp, 9 Pick. R. 496, 512; 2 Cow 4r Hill's Notes, 890.) And the better opinion, as drawn from these cases, seems to be that a conviction in one state of an infamous crime, does not render the person convicted incompe- tent as a witness in another state, but goes only to his credi- bility. The penal statutes of each state, therefore, must be construed as being applicable only to offences committed within its own borders, unless it appear affirmatively that the intention was otherwise. In regard to felonies, there is an express provision, but none applicable to the lesser offences. Section 10 of the statute above cited provides that every person who shall have been convicted in any of the United States, or in any district or ter 648 DECISIONS IN CRIMINAL CASES. The People v. Caesar. ritory thereof, or in any foreign country, of an offence, which, if committed within this state, would be punishable by the laws of this state by imprisonment in a state prison, shall, upon conviction for any subsequent offence committed within this state, be subject to the punishment herein prescribed upon sub- sequent convictions, in the same manner and to the same extent as if such first conviction had taken place in a court of this state. The adoption of this express provision is satisfactory evidence of its necessity; and its history shows that it was never supposed that increased punishment could be inflicted in such cases, without it. The first special legislation on this subject took place in 1823, (Sess. Laws, of 1823, p. 179, 6,) and that was only applicable to cases where the first offence, being a felony, took place in some one of the United States. At the revision, this provision was extended to territories and to foreign countries, the revisers, who recommended such extension, saying, as a reason, " wt5 are more exposed in this state to fugi- tives from Canada, than from other states." (3 R. S 3d ed. 834). The legislature, without doubt, has the power to inflict an increased punishment where the first offence took place in a foreign country, as well as where it took place in our own state, not because it has, or can give to the courts any jurisdic- tion over offences committed in a foreign state or country, but because it has full power over the offence committed here, and may mete out such punishment as the moral delinquency of the offender may seem to require. The first offence, though com- mitted beyond our jurisdiction, may furnish a good reason for punishing the second offence committed within it, to an extent commensurate with the guilty character of the culprit and suffi- cient to protect the community against further depredation. But the legislature has thought proper to authorize an in- creased punishment for a second offence, when the first offence was committed in another state, only in cases where such first offence if committed here would have been deemed a felony under our Revised Statutes, that is to say, an offence punishable in a state prison; and the first offence in this case not having HENSSELAER, MAY, 1854, 549 The People v. Robinson. been of that grade, no punishment can be inflicted for the petit larceny committed here beyond what belongs to a first convic- tion. The prisoner will therefore be punished for simple petit larceny. The prisoner was then sentenced to imprisonment at hard labor in the county jail for six months, with a view to his removal, under the statute, to the Albany penitentiary. RENSSELAER OYER AND TERMINER. May 1854. Before Justice of the Supreme Court and the Justices of the Ses sions. THE PEOPLE vs. HENRIETTA ROBINSON. It is no defence to an indictment for murder, that the prisoner was intoxicated at the time of the commission of the offence. The law holds a person re- sponsible for a criminal act, though, at the time, he was intoxicated to such an extent as to be unconscious of what he was doing.(o) Where insanity is interposed as a defence , its evidence must be established by affirmative proof, every person being presumed to be sane till the contrary is proved. The existence or want of motive to commit the crime alleged is always a legitimate subject of inquiry. The weight to which such evidence is entitled in different cases stated and discussed. The prisoner had been indicted for the murder of Timothy Lanagan by poison, and pleaded not guilty. The cause was brought to trial at the Oyer and Terminer held at Troy in the county of Rensselaer, in May, 1854. The facts of the case, as proved on the trial, are sufficiently stated in the charge to the R. J3. Lottridge, (Dist. Att'y,) and H. Hogeboom, for the People \! : -, .1 i a > i! ...,-' .- > - (a) See Rex r. Patrick, 7 Carr. & P. 145; McDonough's Case, Ryan's Med. J. 294; 1 Beck, Med. J. 627; U. S. . Drew, 5 Mason, 28. Jllittr in Peno. Com. v. Dunlap, Lewis, Cr. L. 394, 405. VOL. I. 82 650 DECISIONS IN CRIMINAL CASES. The People v. Robinson. Wm. Jl. Beach, M. I. Townsend and Job Pierson, for the pri- soner. At the close of the trial the following charge was delivered to the jury by thje presiding judge: Gentlemen of the Jury; The scene which during the week has occupied your attention with such painful interest, is at length drawing to a close. Happily, it is rare that the citizen in the discharge of the duties which he owes to the government under which he lives, is called upon to act under responsibili- ties like those which devolve upon you. It is but once, per- haps, in the course of a man's life, that he is called upon to decide the fate for life or death, of a fellow being, when, in the impressive language of the ceremony which initiated you into your office as jurors, the life of a fellow creature is given in charge to twelve men. The prerogative to determine life belongs to the source of life itself. It is the highest power that man, himself the subject of mortality, can exercise, to as- sume this prerogative and declare the life of his fellow man forfeited. This fearful responsibility rests upon you. When you entered that sacred place, you, each for himself, took a vow upon yourselves that you would render a true verdict accord- ing to the evidence, even though the effect of that verdict should be to take the life of the accused. That obligation you are now to meet; let it be so met that a peaceful conscience may attend the abiding recollections of this hour, and, what- ever may be the fate of this unhappy woman, that you may ever possess the conscious assurance that the laws under which you live and from which we all receive protection, have been faithfully upheld and impartially administered. With the policy or wisdom of the law which demands life as the penalty of crime, neither you, as a jury, nor we, as a court have anything to do. Were we sitting as legislators, it might become us to express our opinion on this subject; but placed here t as we are, to administer the law, it is our duty to RENSSELAER, MAY, 1854. 55 j The People v. Robinson. take it as we find it. The responsibility of taking human life is not upon us but upon the lawgiver. I proceed now, as briefly as I may, to invite your attention to the. questions which will demand your anxious consideration, and the prominent points of the testimony bearing upon those questions. Timothy Lanagan died on the 25th of May, 1853; he died of poison; was this poison administered by the accused? This is the first question which will require your attention. If the evidence fails to satisfy you of this fact your duty will here terminate. You will pronounce your verdict of acquittal without reference to the other questions in the case. But I have not understood the counsel for the defence as con- tending that the evidence justifies such a conclusion. The accused was in possession of the article which upon the pnst mortem examination was found in the stomach of Lanagan. Some ten days or a fortnight before, she had purchased of Mr. Ostrom, the druggist, two ounces of arsenic. About one o'clock on the day of the death she went into Lanagan's house, where she found the family, Lanagan, his wife and Catharine Lubee at dinner. She sat down, upon invitation, to eat an egg and a potatoe. Soon after, Lanagan left the table and went into the grocery in the front room of the house. The accused then proposed to Mrs. Lanagan and Miss Lubee, to use the expression of the witness herself, that they should drink beer from her. They at first declined, but being urged they at length consented. She then proposed, in order to make the beer more palatable, to put sugar in it, and requested Mrs Lanagan to procure it. Mrs. Lanagan, yielding to her request, procured from the grocery some fine white sugar in a saucer She then went back to get the beer, leaving the accused and Miss Lubee in the room. When she returned she found the accused walking the room with the saucer of sugar in her hand, and she also says she observed that she held in her thumb and finger a small white paper folded. Two glasses were provided and the beer poured out. There was not enough to fill them. The accused insisted that they should be full. Mrs. Lanagan 652 DECISIONS IN CRIMINAL CASES. The People t>. Robinson. returned to the grocery for more beer. When she went back the accused was putting the sugar into the glasses. They were filled, and Mrs. Lanagan and Miss Lubee sat down at the table to drink. Mrs. Lanagan says she observed upon the sur- face of the beer a white scum, and thinking it might be dust that had fallen upon the sugar while standing in an open box in the store, she took a tea-spoon to remove it that while in the act of doing so, the accused, who was standing by arrested her hand and took the tea-spoon from her, saying that was the best part of it and that it would do her good. At that moment Mrs. Lanagan was called to the grocery by her husband. She remained there, but her husband came and he and Miss Lubee drank the beer. He died at seven o'clock the same evening, and Miss Lubee died at four o'clock the next morning. This branch of the case depends entirely upon the testimony of Mrs. Lanagan. From the nature of the case there could be no other evidence. Had she imbibed the fatal draught instead of her husband, as was at first intended, there would have been no one left to detail the circumstances. The credibility of Mrs. Lanagan has not been questioned. If her story is to be believed, it would seem to leave no room for doubt. You can not hesitate, however painful it may be, to come to the con- clusion that it was the accused, and no one else, who adminis- tered the arsenic which produced the death of Lanagan. Assuming that your mind will be brought to this conclusion, I proceed to bring your attention to another important inquiry an inquiry which from its very nature is far more difficult. That inquiry is, whether, at the time she committed the act, the accused was in a condition to render her legally responsible for crime and this depends upon the question whether, at the time, she was in a state of mind which enabled her to know that what she did was wrong. If at the moment of mingling that cup she knew that she was doing wrong and deserved to be punished for it, then, whatever else there may be in the case, before the law she is answerable for the act as a crime. The evidence of her conduct before and after is of no importance except as it reflects light upon her condition at the fatal hour RENSSELAER. MAY, 1854. 553 The People v Robinson. when she committed the deed for which she is now before you to answer. It seems that, about the period in question, the accused had indulged very freely in the use of intoxicating drink. Mr. Ostrom says that when she was at his store on Saturday even- ing, which must have been the 21st of May, she was quite intoxicated. Mr. Brownell says that when she came to his office in the early part of May, he thought her the worse for liquor. Mr. Cox says she frequently purchased liquor at his store, sometimes taking it there, and sometimes taking it home with her. Mrs. Lanagan says that, early in the morning of the 25th of May, she came to the grocery and procured a quart of beer, which she took home with her; and as the deceased was living alone, it may be presumed that she applied it to her own personal use. At 8 o'clock she sent old Mr. Haley to borrow $2 of Mrs. Lanagan, and before he left she came herself. About eleven o'clock she was there again. It is not proved that she drank then, but she went into the room back of the grocery, where there were several men, and engaged in noisy, boisterous conversation. The fact that she was found in such a place, and in such company, furnishes some ground for the belief that she was then under the influence of liquor. Mrs. Lanagan says that perceiving the noise she went into the room and told her to go home that it was no place for her to be there among such a set of men. At one o'clock she came again, and then the poison was mingled with the beer. Shortly after she left, she sent Haley for Mrs. Lanagan to come to her house. It is the theory of the prosecution that, having failed in procuring Mrs. Lanagan to drink the poison, it was her object to get her over to her house, so that she might yet exe- cute her purpose. But of this, of course, there is no proof. About 3 o'clock she was at the grocery again and asked for beer. Mrs. Lanagan says she told her she did not need any, and declined to let her have it The answer and the conduct of Mrs. Lanagan at this time, indicate pretty strongly, I think, the condition in which she was at the timej or, at least, what Mrs. Lanagan, thought of her condition. While there, Lan- DECISIONS IN CRIMINAL CASES. The People v. Robinson. agan came home sick, and Miss Lubee had already taken to her bed. Upon this state of facts, the question presents itself whether, at the time she committed the fatal deed, the accused was in- toxicated? That she was greatly excited there is no reason to doubt. This is sufficiently evident from the fact of her having visited the grocery so frequently. That she drank freely, is, I think, also evident. Was she, then, intoxicated? It is my duty to say to you, gentlemen, that, if she was in- toxicated, even to such an extent that she was unconscious of what she was doing, still the law holds her responsible for the act. It is true to constitute the crime of murder there must be killing of a human being with a premeditated design to effect death. But this design need not be proved. Where the act is committed the law imputes the design. It proceeds upon the sensible principle that a man may reasonably be presumed to intend to do what he in fact does. Thus, if a man will draw from his pocket a pistol and deliberately shoot down a fellow man, the law, without further proof, adjudges that it was in his heart to kill him. If he would excuse himself he must show affirmatively that he had no such guilty purpose. Then, and then only, can he be exonerated from guilt. If it appear that by the inscrutable visitation of Providence the faculties of his mind had become so disordered that he was no longer capa- ble of discriminating between right and wrong in respecl to the act he has committed, then the law, in its justice, pro- nounces him innocent of the crime. But, if his derangement is voluntary; if his madness be self invited; the law will not hear him when he makes his intoxication his plea to excuse him from punishment. If, then, the accused mingled poison in the beer that was drank by Lanagan, the law charges her with a design to kill him; and though she may have been excited by drink at the time, even to such an extent as not to know what she was doing, she must answer for the consequences. Her self-inflicted insanity must not be allowed to avail her for defence. The law imputes to her still a murderous intent. REX.SSr.LAER, MAY, 1S54. The People v. Robinson. But it is urged, in behalf of the defence, that the accused was not merely intoxicated; that she was, in fact, insane. If this be so if by the visitation of God she was so bereft of reason as to be unconscious of the character of the act she was committing, there is an end of her accountability. But before you can allow this ground of defence to prevail, you must be satisfied of its existence by affirmative proof. Every person is presumed to be sane. When the contrary is asserted it must be proved. The presumption of sanity must be overcome by satisfactory countervailing evidence. Upon this branch of the case, it is your duty to examine the facts in the case with the most diligent care. And here the question of motive may well be considered. It has been urged by the counsel for defence that there could have been no possible motive for destroying the lives of Lanagan and Mrs. Lubee; and that the absence of motive furnishes a strong ground for inferring that the act must have been committed in a state of insanity. The existence or want of motive to com- mit the crime alleged is always a legitimate subject of inquiry. In cases depending upon circumstantial evidence it is sometimes of vital importance. But it is never indispensable to a con- viction that a motive for the commission of the crime should appear. The Jaw imputes malice to the act so that the very proof of the killing furnishes also presumptive evidence of malice. And yet, while the prosecution is relieved, by this legal presumption, from proving an actual motive for the com- mission of the offence, the absence of such proof is often an important consideration for the jury in determining the effect to be given to the other evidence in the case. But it is contended, on the part of the prosecution, that there is proof of a state of feeling, which, considered in con- nection with the state of mind exhibited by the accused at about the period in question, relieves the case of this objection. It appears that some time during the spring there had been a dance at Lanagan's. Though not one of the party, the accused went there and became engaged in an altercation with one Smith, and angry words and loud conversation ensued. If it (556 DECISIONS IN CRIMINAL CASES. The People v. Robinson. be true, as has been assumed throughout the trial, that the accused is of gentle birth and has once moved in the higher and more refined walks of life, what a painful illustration she presents of the rapid descent which a woman makes to the lowest depths of degradation and vice, when she once consents to take leave of virtue and innocence! Here we have this fallen woman, who is described to us as possessing high accom- plishments and lady-like manners, voluntarily mingling with the parties to a grocery dance, engaging in a brawl with one of the party, and carrying the quarrel so far as to present her revolver and threaten to shoot him. To quell the disturbance she was required to leave the house, and finally Mrs. Lanagan led her home. This occurrence seems to have stung her pride, for, one or two mornings after, we find her returning to the grocery, before Lanagan was out of bed, and she then, as Mrs. Lanagan says, commenced abusing her: saying that she was a very mean woman to keep a set of rowdies about her house to insult her when she came there. Her language was so loud and violent that Lanagan got up, and, coming into the grocery, ordered her to leave, which she refused to do, until Mrs. Lana- gan again interfered and induced her to go home. The result of this quarrel was, that she did not again return to Lanagan's for some three weeks, after which she again re- newed her visits. It is the theory of the prosecution that these occurrences left a sting rankling in the bosom of this woman, which needed but the excitement of which she was the subject on the 25th May, to arouse her to such a degree as to make her resolve upon the destruction of those who had become the subjects of her resentment. Certainly, these circumstances w r ould furnish to a sound mind but a slight motive for the com- mission of such a crime. How far they would operate upon an irascible temperament like hers, when greatly excited by stimulants, and, perhaps other vitiating causes, it is for you, gentlemen, to judge. There is another feature of this case, which may have some bearing upon the question under consideration, to which I would direct your attention. It is the manner in which the RENSSELAER, MAY, 1854. 657 The People . Robinson. deed was accomplished. We see no outburst of passion, but everything is apparently cool and orderly. First, the proposi- tion to drink the beer, and that insisted upon; then, obtaining the sugar, the arrangements to mix the poison with it, while the glasses were being filled; then the refusal of the accused herself to drink, and her efforts to prevent any of the contents of the glass from being removed. These are characteristics which may, perhaps, shed more light upon the state of this woman's mind at the time. There is another class of evidence bearing upon the question of insanity, to which you will not fail to give the attention which you think it deserves. I allude to the conversation of the accused a short time previous to the 25th of May. This evidence is found chiefly in the testimony of the young sewing girl, Mary Jane Dillon, who became acquainted with her in March previous. The testimony of Anthony Goodspeed belongs to the same class. I will not recapitulate this evidence. It can not but be fresh in your memories. There certainly must have been in the statements made to Miss Dillon, a strange commingling of truth and falsehood : the latter predominating. Whether the tales she told were the vagaries of a distempered imagination, or the inventions of her fancy, designed to amuse her youthful and newly acquired friend, it is for you to enquire. There was, too, something exceedingly strange at times in her conduct; especially when in the morning she carne in her night clothes to the residence of Miss Dillon and borrowed her dress. It will be your duty to satisfy yourselves as to the state of mind to which this conduct is to be attributed. It certainly was not strange that the accused and this young girl should be mutually pleased with each other. The accused, with an ardent temperament which demanded society, was so situated that she was compelled to live alone. She had sought companionship among those who had no tastes or sympathies with her own, and whom she regarded, probably, with con- tempt. It was a relief to her solitariness, therefore, to meet with Miss Dillon; a young, artless, imaginative girl, with whom she could at least talk. There was much, too, in the VOL. I. 83 658 DECISIONS IN CRIMINAL CASES. The People v. Robinson. air and manner and romantic stories of the accused, to please the taste for romance which this young girl seems to have possessed. She says she was pleased with her conversation, though she admits that her ear was sometimes offended by expressions both of profanity and obscenity. How far the tes- timony of this girl tends to establish the defence, is for you to consider. It is upon this testimony, supported, as it is, by some other kindred but less important evidence, that the counsel for the defence chiefly rely. The theory of the defence is, that the accused had become apprehensive that she was about to be abandoned by one who had been her friend and supporter, and that this apprehension operating on her nervous, excitable temperament with the recollection of her own former position, from which she had so sadly fallen, had unhinged her mind, and that the eccentricities which marked her conduct about the period to which our inquiries relate, were but the outbursts of incipient madness. To sustain this theory the testimony of Mr. Brownell was introduced, to whom, it seems, early in May, the accused had described her griefs and apprehensions. Thus far I have only noticed the testimony which relates to occurrences which happened before the arrest of the accused. What her conduct was afterwards is only important as it sheds light on her previous condition. Her conduct after she was committed to prison was indeed strange. How far this conduct was produced by the enormity of the charge preferred against her, and a sense of the condition in which she found herself; and how far by being suddenly deprived of the stimulants in which she had evidently been indulging so freely; or how fa; by disordered intellect; are questions which I suggest for you) consideration. In this connection, too, it will be proper tr consider the opinions of the two physicians who had the opportunity of seeing her in jail, and who say that, in their opinion, she was not rational. Such opinions are allowed to be given in evidence, not as by any means controlling your own opinions, but to be considers! by the jury, who are to give tlu:n .-,u<-h -Avi^'lit as, in their judgment, having regard to NEW YCWa, SEPTEMBER, 1SS2. The People v. The Sheriff of Westchester County. the experience and opportunities for observation which those who express the opinions have enjoyed, such opinions deserve. And now, gentlemen, I have noticed what I regard as the principal points and features of the case before us. I have not thought it fit to review at length the evidence presented, as I am sure that it is all fully within your recollection Here my duty ends and yours begins. I am conscious how imperfectly I have discharged my duty, and yet it has been my single aim to administer the law with a steady and unswerving hand. In the discharge of your duty, be faithful to your own high obligations. Deal justly with this poor, unhappy woman, whose destiny is now committed to your hands. Deal merci- fully with her, too. This is your privilege. The law allows every well-grounded doubt to avail for her acquittal. If, after a full consideration of all the facts in the case, no such doubt rests upon your minds, you must not hesitate, though it be with anguish of heart, to pronounce her guilty. But if you can, after all, say that you are not satisfied of her guilt, it will be your agreeable duty to pronounce a verdict of acquittal. The jury found the prisoner guilty. SUPREME COURT. At Chambers, New York, September, 1852. Before Edmonds, Justice. THE P^OPI E ex rel. McMAHON vs. THE SHERIFF OF WEST- CHESTER COUNTY. The intent to do bodily harm to some one out of a number of persons is ne- cessary, under the 2d subd. of sec. 5 of 2 Rev. Stat. p. 657, to constitute the crime of murder, even where the homicide is effected by an act imminently dangerous to others, evincing a depraved mind, regardless of human life. Dubitattir, whether there should not also be an intent to kill, though not aimed at any particular person. Deaths caused by the burning of a steam boat which results from the making of excessive fires for the purpose of creating excessive steam, in order to out-race another steam boat, declared not to come under the denomination of murder, but parties held to bail for manslaughter in the first degree. (3(50 DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. Where the offence was committed on navigable tide waters wholly within tht> state of New York, and the United States Courts and the State Courts as- sumed jurisdiction thereof, the former prior in point of time to the latter, it was held on a writ of habeas corpus issued to test the legality of the latter arrest, that the conflict of jurisdiction could only be avoided by setting up judgment pronounced in one of the tribunals, which, when obtained, would be a bar to the proceeding in the other. It was also held to be by no means clear that the State Courts had not juris- diction over the subject matter of the offence whereof jurisdiction had already been exercised by the United States tribunal. At all events, the question considered too important to be decided summarily on habeas corpus. The relator presented on the 24th day of August, 1852, to Mr. Justice Edmonds, his petition, verified in clue form, setting up that John F. TaHman, captain of the steam boat Henry Clay, Edward Hubbard, pilot of said vessel, James L. Jessup, cap- tain's clerk, John Germaine, engineer, Charles W. Merritt, second engineer, or oiler, James Elmendorf, second pilot, were, together with Thomas Collyer, one of the owners of said vessel, detained in the custody of the sheriff of Westchester county, under an arrest made by him in pursuance of a warrant issued by John W. Mills, county judge of Westchester county, on a complaint made before him by Edward Wells, district attorney of Westchester county, charging the said parties with murder. That such arrest was made in the city of New York, wherein the said sheriff then held them. The petitioner further alleged that prior to such arrest, to wit, on or about the fourth, seventh and eleventh days of August, 1852, the said several parties had been arrested, com- mitted and bailed in the United States Circuit Court for the southern district of New York, the said court having jurisdiction of the offence on warrants issued out of said court on complaints made before George W. Morton, a commissioner of said court, having authority to entertain the same for the selfsame offence with that complained of before the Westchester authorities. That the complaint in Westchester county, and that before the United States court in this district, were based on the same alleged guilty and felonious act. And the arrest, commitment and holding to bail in the United NEW YORK, SEPTEMBER, 1852. The People v. The Sheriff of Westchester County. States courts were anterior in point of time to the arrest under the Westchester warrant, and the United States authorities were entertaining and holding jurisdiction of said offence. The petitioner, therefore, prayed that a writ of habeas corpus might issue to the said sheriff, commanding him to bring up the said parties before Justice Edmonds, to do and receive what should then and there be considered concerning them. Annexed and referred to in this petition, were the following documents, duly certified, viz: The warrant of arrest on the charge of murder issued out of Westchester county by Judge Mills. The complaints made before the United States court in this district. The several warrants issued on said complaints by United Stales Commissioner Morton. And the bail bonds given by the several parties on their respective commitments under said warrants by the United States' court. On this petition a writ of habeas corpus in due form directed to the sheriff of Westchester county, and commanding him to bring up the said several parties before Justice Edmonds, at the City Hall of the city of New York, on the 26th day of August, 1852, was duly allowed and served in the city of New York, on the sheriff of Westchester county. And in pursuance of the said writ, the sheriff of Westchester county returned that he held the said several parties in custody under and in pursuance of the warrant issued by Judge Mills referred to, and a copy of which was annexed to Mr. McMahon's petition, upon which return it was agreed by the respective counsel for the prisoners and the district attorney of West- Chester county, that the facts set forth in Mr. McMahon's petition should be admitted to be true for the purposes of the argument on the writ of habeas corpus. The Westchester warrant and the complaints before the United States courts were referred to in detail on the argument of the habeas corpus, and they were in substance as follows: The Westchester warrant recited that Edward Wells, district attorney of Westchester county, had made a complaint before John W Mills, judge of the county of Westchester, that on the DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of West Chester County. 28th July, 1852, the steam boat Henry Clay, used and navigated on the Hudson river within the boundaries of the state of New York, for the conveyance of passengers, &c., while on her pas- sage from Albany to New York with passengers on board, took fire opposite the county of Westchester, and was run on short in the town of Yonkers, in said county, and was consumed there by fire. That at that time divers persons, whose names are given at length, or stated to be unknown, were passengers on said boat, and that said persons, excepting one John K. Sy- monds, by reason either of the shock of the collision of the said boat with the shore, were cast and thrown, or in their efforts to save themselves from destruction by fire, did cast and throw themselves into the Hudson river and were suffocated and drowned, and in consequence thereof died, and that John K. Symonds was burnt to death on board of the said boat. That John F. Tallman was captain and one of the owners of the boat, and had part of the charge thereof. That Thomas Collyer was one of the owners and had part of the charge of the boat. That James L. Jessup was second captain, or clerk, and had part of the charge thereof; likewise Edward Hubbard, who was pilot, also James Elmendorf, the second pilot. That John Ger- maine was engineer, and Charles W. Merritt second engineer, and had part of the charge thereof, and that a young man whose name was unknown was barkeeper and had part of the charge thereof. That while the said boat was navigating the Hudson river on that day, for the purpose of excelling in speed a certain other steam boat called the Armenia, used also for the convey- ance of passengers on said river, or for the purpose of increasing the speed of the Henry Clay, the said prisoners did create, or allow to be created, an undue or an unsafe quantity of steam, and in so doing did make or cause or allow to be made upon the Henry Clay, excessive fires, and did not use ordinary pru- dence in the management of the same, and although remon- strated with on account of the same by diffeient passengers on board, did not for a long time abate the same, but for a long NEW YORK, SEPTEMBER, 1852. 553 The People t>. The Sheriff of Westchester County. while continued the same, in consequence whereof and of the culpable negligence and criminal recklessness of the said Tall- man, Collyer, Jessup, Elmendorf, Hubbard, Germaine, Merritt, and of the barkeeper of the Henry Clay, the said boat did then and there take fire, and all of the deaths ensued as aforesaid. That the complainant has reason to suspect and believe that all and each of the abovenamed deceased passengers were murdered by an act perpetrated by the said Tallman, Collyer, Jessup, Elmen- dorf, Hubbard, Germaine, Merritt and the barkeeper, which act was immediately dangerous to others, and evinced a depraved mind, regardless of human life, although it was perpetrated without any premeditated design to effect the death of any par- ticular individual, and that he believes the said several prison- ers did feloniously kill and murder the said deceased persons in the manner and by the means above stated. The warrant fur- ther recited that said complaint prayed that the said several prisoners might be apprehended and held to answer the said charge, and it commanded the sheriff of Westchester county to arrest the said prisoners and bring them before John W. Mills, county judge, to be dealt with, &c. The warrant was signed by the county judge, and dated the 13th August, 1852, and was in due form. The United States complaints were as follows: Southern District of New York, ss. Michael Cavanagh, being duly sworn, deposes and says that he resides at present in this city, and was a passenger on board the steam boat Henry Clay (a vessel propelled in whole by steam) from Newburg on the twenty-eighth day of July, one thousand eight hundred and fifty-two. And this deponent further says, that Thomas Collyer, an owner, John F. Tallrnan, captain, John Germaine, engineer, James L. Jessup, clerk, and Edward Hubbard, pilot of said steam boat called the Henry Clay, being persons employed on board said steam boat, which said steam boat was propelled by steam, did at ab^ut half past three o'clock in the afternoon of Wednesday the Siuid twenty-eighth day of July, on the Hudson 664 DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. river, near Yonkers, within the southern district if New York, in the second circuit, and within the jurisdiction of the United States of America, by their misconduct, negligence or inatten- tion to their respective duties on board said steam boat, cause the death of Julia Hoy, this deponent's niece, then and there being a passenger on board said steam boat Henry Clay, and did also cause the death of A. J. Downing, Mrs. Maria Bailey, Miss Maria Bailey, Mary Ann Robinson, Elizabeth Hillman, Matilda Wadsworth, J. J. Speed, and others, who were likewise passengers on board said steam boat. Southern District of New York, ss. William A. Irvin being duly sworn, deposes and says, that he does business in the city of Pittsburgh, and was a passenger on board the steam boat Henry Clay from Albany, on the twenty-eighth instant. And this deponent further says, that by the misconduct, neg- ligence or inattention to their respective duties, of J. F. Tall- man, captain, John Germaine, engineer, James L. Jessup. clerk, Thomas Collyer, one of the owners, and Edward Hubbard, pilot of the said steam boat called the Henry Clay, which said vessel was propelled in the whole by steam, on the said twenty-eighth day of July, one thousand eight hundred and fifty-two, on the Hudson river, near Yonkers, in the southern district of New York, the lives of Stephen Allen, and others on board said steam boat, were destroyed by burning or drowning, said J. F. Tallman, John Germaine, James L. Jessup, Thomas Collyer, and Edward Hubbard, being employed on board of said steam boat called the Henry Clay. Southern District of New York, ss. Michael Cavanagh, being duly sworn, deposes and says, that he was a passenger on board the steam boat Henry Clay (a vessel propelled in whole by steam) from Albany, on the twenty-eighth day of Jury, in the year one thousand eight hundred and fifty -two, and that on that day, to wit, on the Hudson River, near Yonkers, in the southern district of New York, in the second circuit, and within the jurisdiction of the United States of America, at NEW YORK, SEPTEMBER, 1852. The People v. The Sheriff of Westchester County. about half past three o'clock in the afternoon, by the miscon- duct, negligence or inattention of James Elmcndorf, second pilot, and Charles Merritt, assistant engineer of said steam boat Henry Clay (then and there being persons employed on board said steam boat,) to their respective duties on board said steam boat, did cause the death of Julia Hoy, A. J. Downing, Mrs. Maria Bailey, Miss Maria Bailey, Matilda Wadsworth, J. J. Speed, and others on board said steam boat by burning or drowning. The Westchester complaint was based upon the second sub- division of 2d Rev. Stat. p. 746, sec. 5, 3d ed., which provides in substance: That the killing of a human being without the authority of law, by any means whatever, shall be murder when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect death of any par- ticular individual. The United States complaint was based on the 12th section of the act of congress of July 7th, 1838, which provides: That every captain, engineer, pilot or other person employed on board of any steam boat or vessel propelled in whole or in part by steam, by whose misconduct, negligence or inattention to his or their respective duties, the life or lives of any person or persons on board said vessel may be destroyed, shall be deemed guilty of manslaughter, and upon conviction thereof before any circuit court of the United States, shall be sentenced to confinement at hard labor for a period not more than ten years. The matter came on to be argued before Mr. Justice Ed- monds, on the first day of September, 1852, on the return arul facts agreed upon by the respective counsel. Dennis McMahon, Jr., appeared as counsel for the defend- ants, Tallman, Hubbard, Elmendorf, Jessup, Germaine and Merritt VOL. L 84 DECISIONS IX CRIMINAL CASES. The People v. The Sheriff of Westchester County. Charles O'Connor and F. B. Cutting, for the defendant Collyer. Edward Wells, district attorney of Westchester county, and Ralph Lockwood, for sheriff of Westchester county. D. McMahon, Jr., opened the argument for the prisoners, and after alluding to the facts, stated that the gravamen of the charge as presented in the Westchester warrant, was as follows, viz: First, The creation of an undue or an unsafe quantity oi steam for the purpose of excelling the steam boat Armenia, IP speed. Second, For the purpose of keeping up that steam, making excessive fires, and in displaying the want of ordinary pru- dence in their management, and in continuing the same against the remonstrances of passengers, whereby the vessel caught fire, and said deaths ensued. Mr. McMahon then argued and discussed the following points, viz: I The United States Court had exclusive jurisdiction of this offence of manslaughter committed by the same guilty and felonious act which the state courts complain of as murder. And the state authorities had no jurisdiction in the premises. Because 1. By the constitution, the judicial power of the United States government extended to all cases of admiralty and maritime jurisdiction. (Constitution of U. S., art. 3, sec. 2.) 2. Under the terms " admiralty and maritime," are compre- hended waters which are navigable for the purpose of commerce. (12 How., p. 443.) 3. The term also includes legislation concerning offences committed inside of high water mark. (United States v. Combs, 12 Peters, p. 72.) 4. And where Congress has enacted an offence committed on tide waters and made it cognizable in tie United States NEW YORK. SEPTEMBER, 1852. The People v The Sheriff of Westchester Ceunty. Courts, they have exclusive jurisdiction of it. (United State? v. Bevans, 3d Wheat, p. 333; Martin v. Hunter, I Wheat. 304 ) 5. The United States have, by the act of 1838, regulated navigation on board of steam boats, and created an offence for causing the death of passengers by the acts of the captain and officers, and that act renders inoperative any state legisla- tion on the same subject. (Caldwell v. St. Louis Perpetual Ins. Co., 1 La. Annual Reps. p. 85; Houston v. Moore, 5 Wheat 149; Gibbons v. Ogden, 9 Wheat, p. 562.) 6. The act of Congress in such case is the supreme law of the land. (State of Rhode Island v. State of Mass., 12 Peters, 647; The Huntress, Daveiss, 82; Bark Chusan, 2 Story, 453.) II. It can not be contended that running this boat on the shore makes the offence committed on it cognizable in the :>tate courts because of its being committed on land because, 1. The corpus delicti, viz., the gravaman of the charge as complained of in the Westchester warrant, was committed while navigating the boat on tide waters; and the consequence of that act, viz., the death of these persons, took place on tide waters, wherein they were drowned. (U. S. v. Combs, 12 Peters' Reps. p. 72, decides this question; Plummer v. Webb, 4 Mason's Reps. 383, 384; Steele v. Thacher, Ware's Reps. p. 91.) III. The death of John K. Symonds, by being burnt on the boat after it was run on the shore, can not be the support ol the jurisdiction of this Westchester proceeding because, 1. The death of John K. Symonds on the boat, and of the other passengers in tide waters, was the result of the same guilty and felonious act, which can not be separated so as to make different convictions for each death. For if the state authorities have jurisdiction of the offence of causing the death of John K. Symonds on the boat while on shore and thus con- sidered in Westchester county, and if the United States have jurisdiction of the offence of causing ths death of the other passengers who jumped in the water and were drowned the act is the same and a conviction in either would be a bar to the other because, DECISIONS IX CRIMINAL CASES. The People v. The Sheriff of Westchester County. " No man can be put in jeopardy of life and limb twice for the same offence." (JV. F. State Constitution, art. 1, sec. 6; Constitution of U. S., art. 5 of Amendments.} The word offence is synonymous with guilty and felonious act. If either have a right to entertain it, then quoad hoc the juris- diction must be considered as concurrent. 2. Then, if concurrent, inasmuch as the United States au- thorities have exercised it prior to the state authorities, this necessarily excludes the state jurisdiction. (Smith v. Mclver, 9 Wheat. 532; Ship Robert Fulton, 1 Paint's C. C. Reps. 620; Sly hoof v. Flitnatt, 1 Jlshmead, p. 171; Capt. McKenzie's Case, 1 Legal Observer, pp. 227 and 367; Slocum v. Mayberry, 2 Wheat, p 1; Gelston v. Hoyt, 3 Wheat, p. 246.) IV. If the state courts have a right to entertain jurisdiction of the offence, then we say that the facts developed in the warrant do not constitute the crime of murder because. 1. The second subdivision of section 5 of 2 revised statutes, page 746 (3d ed.), does not include this case. For that clause has reference to acts of violence imminently dangerous in themselves committed by the guilty party for the purpose of effecting possibly homicide, and certainly personal injury to somebody out of a number of persons., thus: shooting a loaded gun into a crowd; throwing poisonous matter into a frequented well or spring, or into flour or provision exposed for sale, or the like. The act itself must be imminently dangerous to somebody in general must import violence and must evince a depraved mind. The idea of murder implies action, and no degree of negligence or omission will amount to murder. This subdivision is the statutory definition of what was for- merly considered as coming within the law of murder where malice was inferred, but could not be proven expressly. In this case at bar the only acts complained of are creation of excessive fires and of excessive steam, neither of which ex vi termini imports violence or injury. The legislature must have thought so, because they classed offences arising from deaths occasioned by bursting boilers or machinery because of NEW YORK, SEPTEMBER, 18,32. The People v. The Sheriff of Westchester County. excessive steam, under the head of manslaughter in the third degree. (2 Rev. Stat., p. 75 1, sec. 16, 3d ed. ) If the reading contended for by the Westchester authorities is the law, then there was no necessity for the action of the legislature in creating this offence of manslaughter in the third degree; because there can be no reason why the legis- lature should make any between creation of undue quantity of steam and excessive fires. The bursting of boilers is not an unusual consequence upon too great a pressure of steam, and is a matter which would force itself upon the legislature for pre- vention, while the other is a novel case, and not therefore likely to be included in any statutory criminal definition. (Barbour's Cr. L. 67, 2d ed} Mr. Wells, District Attorney of Westchester County, in reply, made the following points, viz: I. The facts charged in the warrant constitute the crime of murder under our statute. (2 R. S. 657, sec. 5, subd. 2.) 1. The conduct of the defendants as detailed in the warrant, though not intended to produce death, " was imminently dan- gerous to the passengers, and evinced a depraved mind, regard- less of human life," within the meaning of that subdivision of the statute. 2. The lives of the deceased wore lost by that conduct oi the defendants. They persisted in doing an act manifestly dangerous to human life, regardless of the consequences and against the remonstrances of the passengers, and death resulted from the act. This was murder. ( 1 Russell on Crimes, 487.) 3. An express design to take life, or even to do bodily harm, is not necessary to constitute murder under this statute. Im- plied malice may still be sufficient in all cases where it would have constituted the killing murder before the revised statutes, except in the single case of an undesigned killing, while the slayer is committing a misdemeanor (Revisor's notes, 3 R. S 809, 2d ed.; People v. Rector, 19 Wend. 592: People \ Enoch, 13 Wend. 173, 174; People v. Shorter, 4 Barb. 470.) 4. The probable consequence of defendants' acts on board a 570 DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester Couuty. steam boat crowded with human beings, was the loss of lives. And the prisoners are presumed to intend the probable con- sequences of their own voluntary and willful acts. Those acts " indicated a heart regardless of social duty, and fatally bent on mischief." which is the criterion of murderous intent (Fos- ter's Crim. Law. p. 257.) II. Even if it should be held that the case is not murder, then it is submitted, that the acts of the prisoners charged in the warrant, constitute manslaughter in the first degree (2 R. J. 661, sec. 6,subd. 8.) 1. Whatever amounts to a public wrong, is indictable as a misdemeanor, ex. gra., keeping a quantity of gunpowder in a place where there is apparent danger of mischief, is a nuis- ance, and is indictable as a misdemeanor, though no injury result. (People v. Sands, 1 John. 78.) So riding, or going armed with unusual or dangerous weapons, to the terror of the people, is an offence at common law. (State v. Huntley, 3 IredeWs Reps., 4 18 ; 1 Russell on Crimes, 46 note.} The above and numerous other cases which might be put, illustrate the principle that whatever conduct is calculated to endanger public safety or to disturb public peace or quiet, is a misdemeanor. 2. The racing of steam boats with passengers on board, is a misdemeanor at common law, also by statute. ( 1 R. S. 3d ed. 863, sec. 24, laws of 1839.) The prisoners loaded their boat with passengers, they induced them to go on board and commit their lives to the care of those having charge of the boat, un- der pledge of safe transportation, and then raised an undue and unsafe quantity of steam, and in so doing, made excessive fires, and did not use ordinary prudence in the management thereof, tor the purpose of racing with a rival boat. Passengers be- came alarmed and remonstrated against it. The relators paid no attention to the remonstrances, but obstinately persevered in their conduct till the boat, overheated by an excess of badly managed steam and fire, was consumed, and nearly one hund- NEW YORK, SEPTEMBER, 1852. 57 j The People . The Sheriff of Westchester County. red lives were thereby lost. The facts are no doubt a misde- meanor. III. If the defendants are guilty of neither of the foregoing offences, it may be a question whether the case does not fall under the head of manslaughter in the third degree. (2 R. S.p. 661, sec. 13,3d ed.) 1. The voluntary killing of a human being by the act, pro- curement or culpable negligence of another, while such other is engaged in the commission of a trespass or other injury to private rights, or property, or engaged in an attempt to commit such injury, shall be deemed manslaughter in the 3d degree. 2. The conduct of the prisoners in persisting in the acts charged in the warrant after remonstrances from the passengers, was clearly an injury to their private rights. It was ac- tionable it was not damnum absquc injuria. IV. The provisions of 2 R. S. 751, sec. 19 (3d ed.), de- fining manslaughter in the fourth degree, are not limited to cases where the death is the immediate result of the crhninal act; but that section applies to all cases where the death can be clearly traced to the criminal negligence, &c., as its cause, for it is the certainty, and not the nearness of connection between the cause- and effect, that fixes responsibility. V. If the judge shall be satisfied that any criminal offence is sufficiently charged in the warrant, he should remand the prisoners to the sheriff to be by him conveyed before the officer who issued the warrant, to be dealt with according to law. 1. The existence and validity of the warrant are the only facts traversable on the return of the habeas corpus. (People v. McLeod, 1 Hill, 404; People v. Cassels, 5 Hill, 167, 168; Bennac v. People, 4 Barb. 31; 2 R. S. 663, sec. 54. 3d ed., sec. 39, original.) 2. The power to bail on this writ is confined to the case of a commitment, and does not extend to the case of a party arrested under valid process. In such a case the writ must wait until the powers of the magistrate who issued the warrant are spent. This writ does not arrest regular proceedings. (2 R S. 664, sec. 58, 59, 3d ed. and p. 794, sec. 11.) (572 DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. VI. The United States Courts have no jurisdiction of the offence charged in the warrant. I. This case is not cognizable under the grant of power to regulate commerce, for the Henry Clay was engaged in a navigation within the jurisdiction of the State of New York. ( U. S. Constitution, art. 1 sec. 8 ; Gibbons v. Ogden, 9 Wheat., 194.) II. Nor under the power to define and punish felonies on the high seas. (a.) The place where the offence was committed was not on the high seas. (1 Kent, 367 and note a.) (b.) The power to define ex vi termini, merely authorizes congress to fix and limit the definition of offences which were already felonious, and does not authorize the creation of any new felony such as is designated in the act of congress of 1838, chapter 191, section 12. ( United States v. Smith, 5 Wheat. 158.) III. The act of 1838, chapter 191, section 12, does not apply to this case. (a.) It was passed in execution of the power of congress to regulate commerce, and therefore does not govern steam boats navigating exclusively within the limits of any one state. (Fitch v. Livingston, 4 Sandford S. C. Reps. p. 507.) (b.) There is ample scope for the operation of that act by confining it to commerce with foreign nations and among the several states. IV. The place where the offence was committed is within the body of a county and in the limits of a state, and that state courts have jurisdiction of all crimes there committed. ( U. S. v. Beavins, 3. Wheat. 387; U. S. v. Grush, 5 Mason C. C. Reps. 290; 2 Story on. Constitution, sec. 1673.) (a.) The United States' courts will not exercise admiralty jurisdiction in criminal cases without a particular legislative provision in the case. (1 Kent's Corns. 363; U. S. v. Coolidge, 1 Wheat. 415.) (b.) The Crimes' Act of 1790, chapter 9, section 8, and the act of 1825, chapter 73, section 26, reserve the state juris- diction. NEW YORK, SEPTEMBER, 1852. The People v. The Sheriff of Westchester County. V. Should it be held that the jurisdiction of the national anil of the state courts over this offence is concurrent, still the United States' courts have not by any action taken by them obtained an exclusive jurisdiction over the case of the pri- soners. 1. This case is not before the United Stales court. It has as yet, no power over the prisoners, and will get none until an indictment is found. It will then, and not until then, have power to adjudge the cause. (19 Johns. 39.) 2. The recognizance given by the prisoners is only an obli- gation that they will put themselves into the power of the dis- trict court and submit to its judicial action. Till they shall ac- tually appear in that court, the court will obtain no jurisdiction over their persons; and this is necessary to make that jurisdic- tion exclusive of the action of the state courts. (Jlcts of Con- gress of 1842, chap. 188, sec. 1; Stat. at Large, vol. 5, p. 517.) VI. The proper way for the prisoners to raise the objection to the state jurisdiction, is by demurrer or by plea to the juris- diction when an indictment shall have been found against them. Ralph Lnckwood, on same side, in addition to the points raised by his associate, urged the following distinction, viz: That the charge as presented in the Westchester warrant was clearly one of murder. That conceding the crime to have been committed within the jurisdiction of the admiralty, yet as the specific offence was one of murder committed on the waters within the jurisdiction of a state (infra corpus comitatus) and as congress had not yet legislated upon any criminal act amount- ing to murder, therefore, under the authority of U. S. v. Bevans, (in 3d Wheaton's Reps. p. 336,) the case at bar was clearly without the jurisdiction of the United State courts, and the state courts had therefore, until congress so legislated, exclusive jurisdiction of the offence. The counsel then discussed at some length the further position that the charge in the Westchester warrant was something more than what was intended to be comprehended within the United States' complaint. (574 DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. The counsel illustrated this by referring to the various mean- ings of the term misconduct, used in the twelfth section of act of congress of 1838. He further insisted that the court had no right now to determine whether these parties could be con- victed of murder; that was for the jury. It was only necessary to inquire whether the offence was presented as one of murder; if so, the United States' courts had no jurisdiction. He also commented on 5th Howard, 433, and 9th Howard, 568, and maintained that the guilty and felonious act might give rise to two offences and consequently two punishments. Charles O'Conner, in reply, discussed the following points: First Point. The attempt to bring this case within the ope- ration of the second subdivision of the section defining murder, is not warranted by law or reason. (2 R. S. 657, 5, subd. 2.) 1. The offence defined in that subdivision can not be com- mitted "rf bodily harm is not intended." (Revisers' 1 Notes, 3. R. S., 809, 2d ed.- } Md. R. 283; 4 EL Com. 192.) 2. It is not pretended in the district attorney's complaint as recited in the warrant, that such harm was intended, nor has there ever been an imputation to that effect. 3. The whole section aimed at repudiating the doctrine of constructive murder except in a single case not relevant to the present inquiry, i. e., where the person causing the death was at the time engaged in the commission of a felony. (2 R. S. 657, 5, subd. 3.) Second Point. The matters charged in the complaint as recited in the warrant, do not constitute the offence of man- slaughter in any of its grades. I. In order to constitute the crime of manslaughter in the first degree, it would be necessary to show that the acts or omis- sions imputed to the relators, and which are alleged to have oc- casioned death, occurred while they were engaged in the per- petration of some crime or misdemeaner. (2 R. S. 661, 6.) 1. Although the generation of such an amount of steam " as to burst or break" the boiler or apparatus, is under certain cir- cumstances a misdemeanor, (2 R. S. 780, 27, 3d ed.) where this consequence does not ensue, no offence is committed. NEW YORK, SEPTEMBER, 18-32. 375 The People v. The Sheriff of Westchester County. 2. There is no pretence that any such consequence ensued, or that there would have been any offence against law in any- thing which was done or omitted, if no death or personal injury had occurred. II. None of the acts or omissions imputed to the prisoners bear the least resemblance to the circumstances which consti- tute manslaughter in the second or third degrees, (2 R. S. 661, 11, 12, 13, 14, 15, 16, 17,) unless such resemblance can be found in 16. III. The essence of the offence created by 16 is the creation of " such an undue quantity of steam as to burst or break the boiler or other apparatus." 1. Nothing of this kind is charged 2. Nothing of this kind could have been charged. There is no pretence for it. IV. The comprehensive provisions of 19, defining man- slaughter in the fourth degree, do not embrace the case alleged against the relators. 1. It applies only to acts or omissions which directly assail life, and by their own immediate effects produce its extinction (a.) The circulation by inadvertence of a false alarm which should cause a person to cast himself into the sea and thereby cause his own death is an illustration of this point. Hundreds of analogous illustrations might be supposed. Causa proximo, non remota spectatur. (1 East. PL Cr. 265; Col. Ins. Co. v. Lawrence, 10 Peters, 508; Peters v. Warren Insurance Co. 14 ib. 109.) (b.) The defendants are not charged with having set fire to the boat. It is said that they did not keep with due care the fire lit for a lawful purpose. It is alleged as a consequential result, that the boat took fire. If this was so, and as alleged, one dea'ch ensued from that cause only, it could not be alleged that th*; lefendants " killed" that person. Tfn ! Point. No crime or misdemeanor defined in any sta- tute )/ '.L's state or known to the common law, is shown to have been .vry.aitted by the defendants. F&urth Point. If any offence shall be deemed to be duly 67fi DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. charged in the complaint, the judge having cognizance under this writ should admit the defendants to bail. (2 R. S. 569, 68.) Fifth Point. The courts of the United States have exclusive cognizance of the offence imputed to the defendants. I. The judicial power of the United States extends " to all cases of admiralty and maritime jurisdiction. 1 ' (Const. U. S art. 3, 1; 3 Story Com. on Con. 1745.) II. Admiralty and maritime jurisdiction extends to all crimes and offences committed as well upon arms of the sea and tide waters within the limits of a particular state as upon the high seas. (United States v. Bevan, 3 Wheat. 336; Whart. Criminal Laws, 85 ) III. This grant of power to the government of the United States is not in its own nature exclusive of, but on the contrary is concurrent with the like power of legislation for the sup- pression of crime by the states. But wherever congress in cases of concurrent power acts upon and assumes to regulate the sub- ject, such exercise of the power renders it thenceforth practi- cally exclusive. It prevents future legislation over the subject of the states, and supersedes all existing state legislation in relation to it. (Jack \. Martin, 12 Wend. 311, 317; In re Kir/c, 4 Leg. Ob. Briggs' case, 16 Peters.) , IV. By the act of July, 1838, statutes at large of U. S., vol. 5, p. 306, congress has regulated this whole subject. And as a necessary consequence the relators can only be proceeded against under that act and in the courts of the United States. V. The objection to the action of the state courts is not tech- nical nor evasive. The relators are actually under prosecution in the courts of the United States, and held to answer therein. It is contrary to natural justice and to the fundamental prin- ciples of the criminal law, as well as to an express provision of our own state constitution, that two distinct punishments should be inflicted for the same offence. (2 R. S. of r801, p. 14, as to boundaries ofYonkcrs.) The court held the matter over until the 6th day of Septem- ber, 1852, when the following decision was rendered: NEW YORK, SEPTEMBER, 1852 The People v. The Sheriff cfWestchester County. EDMONDS, J. It appears on the return of the habeas cor- pus, that the prisoners were held in custody on a .warrant issued by one of our state magistrates, charging them with the crime of murder, in causing the death of certain per- sons named, and that they have already been arrested on pro- cess issued out of the United States, for the same act, on a charge of manslaughter. There are two important questions presented in this matter, one, whether the offence charged in the warrant is murder under our statute, and the other, whether, if it is, the offence is not under the law of congress cognizable by the federal courts to the exclusion of the state courts. There is another question which it may be necessary to exa- mine, and that is, whether the offence, if not murder, s not manslaughter under the state statute. The question of jurisdiction is the most material one, for if the state courts have not, under the circumstances, cognizance of the offence charged, the defendants are entitled to an abso- lute discharge from their arrest; whereas, otherwise, the ques- tion may be merely whether they shall be let to bail or nor. I begin by saying that I can not recognize the distinction taken by one of the counsel, that because congress has n )t made the offence which its statute aimed at, murder, but only manslaughter, therefore the state tribunals are at liberty to take cognizance of the matter if the state laws elevate the crime to that grade. That would be making the punishment, and not the offence, the standard of jurisdiction, and would permit the state authorities, by increasing the penalty, to obtain juris- diction over offences clearly cognizable only by the federal courts. It is the nature and quality of the act, and not the extent of the penalty or punishment, which is to be the measure of the jurisdiction. And in this fact, I must look into the warrant to see what that is. That sets forth that the steamer Henry Clay was engaged in carrying passengers on the Hudson; that on one of her trips, with certain passengers on board, she caught fire and was o7S DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. consumed, whereby the persons named in the warrant were killed. After this preliminary statement of facts, the warrant charges that the prisoners, who then had charge of the boat, " for the purpose of excelling in speed" another boat, " or for the pur- pose of increasing the speed" of their steamer, " did create or allow to be created an undue or an unsafe quantity of steam, and in so doing did make or cause or allow to be made exces- sive fires r and did not use ordinary prudence in the management of said fires," but, remonstrated with, " for a long while, con- tinued the same," in consequence whereof the boat look fire, all the deaths ensued, and it concludes that the deceased were murdered by the prisoners by an act which was " eminently dangerous to others, and evinced a depraved mind, regardless of human life, " though without any premeditated design to effect the death of any particular individual." The proceedings of the United States authorities charge that the defendants " by their misconduct, negligence or inattention to their duties on board the said steam boat did cause the death" of some of the same persons. The proceedings in the United States courts are under the law of congress, which enacts that every captain, engineer, pilot or other person employed on board any steam boat, &c., by whose misconduct, negligence or inattention to his or thei-r respective duties, the life or lives of any person or persons on board the said vessel may be destroyed, shall be deemed guilty of manslaughter. (5 United States Statutes at Large, 306, sec. 12.) The proceedings in the state courts are under the state sta- tute, which enacts that the killing of a human being without the authority of law, when perpetrated by an act imminently dangerous to others, evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder. And the question before me is, whether they are liable to be proceeded against in the state courts, or whether those courts are not ousted of their jurisdiction by that of the federal courts. NEW YORK, SEPTEMBER, 185* The People v. The Sheriff of WestchcBter County. The fact that the federal courts have already instituted pro- ceedings, and thus assumed jurisdiction, is not material on this inquiry; for it is the termination and not the commencement of proceedings in one court which may be pleaded in another. It is the judgment, and not the proceedings preliminary thereto, which is a bar to a second judgment. It is no unusual thing for proceedings to be instituted for the same cause of action in two different courts having concurrent jurisdiction, nor is it unusual, where the United States and the State courts have concurrent jurisdiction, for them to allow a judgment rendered in one to be a bar to the recovery of a judg- ment in the other. (1 Kent's Com. 399.) It is therefore unnecessary for me to dwell upon the conside- ration which was pressed on the argument, that the prisoner may be in danger of being twice convicted for the same offence, for the time to raise the objection has not yet arrived, and when it shall arrive, the several courts will be able to afford the adequate relief against what would be so flagrant a wrong. The jurisdiction of the federal authorities over the subject is claimed to rest on that clause of the constitution which gives congress the power " to regulate commerce among the several states," (art. 1, sec. 8,) and that which gives to the United States courts judicial power over " all cases of admiralty and maritime jurisdiction." (Jlrt. 3, sec. 2 ) It is well settled that until congress does exercise its power over a subject properly within its jurisdiction, the previously existing authority of the state to act upon the same subject is unaffected. It is only necessary to refer in illustration to the question of state insolvent laws, determined in Sturgiss or Crowningshield, 4 Wheat. 122. But whether in all cases when congress does take cognizance of a subject, it is to the exclusion of all state authority on it, is another question, and not perhaps quite so well settled. The rule is very well stated by the Supreme Court of this state, in the case of The United States v. Lathrop, ( 17 John. R. 9.) There it is said: " The jurisdiction of the state courts is in no instance excluded where they had a pre-existing juris- 680 DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. diction, except in those cases of- a national character, such as admiralty and maritime matters, and suits against ambassadors and other public ministers, consuls, &c., but the jurisdiction of the state courts is excluded in cases of crimes and offences cognizable under the authority of the United States, and in suits for penalties and forfeitures incurred under the laws of the United States." But this rule leaves the question open in this case, whether the offence with which these prisoners are charged is not a matter of " admiralty and maritime jurisdiction," and whether it is not cognizable under the authority of the United States," and therefore excluded from the cognizance of the State courts'? It is not easy, from the reports, to ascertain where' the dividing line is. In some cases it is very faint, and not easily definable, as in cases of collision -on tide waters and maritime contracts. (See Waring v. Clarke, 5 How. U. S. R. 441.) In other cases it is more marked, as in the case of the recla- mation of fugitive slave's, where it is held that the exercise of the power by the nation is exclusive of all interference by the state. (Prigg's Case, 36 Peters, 539.) And in others, it is in a measure apparently obliterated, as in case of imposition of taxes, and the government of the mi- litia, where both authorities have jurisdiction under certain circumstances. (Houston v. Moore, 5 Wheat. 1.) In The United States v. Bevans, (3 Wheat. 336,) it was held that the United States courts had not jurisdiction of the crime of murder, committed on board a national vessel in the harbor of Boston, because it was committed within the jurisdiction of a state, and the law of congress gave the United States courts cognizance only of " offences committed on the high seas or in any river, haven, basin or bay out of the jurisdiction of any particular state." It was also held that the cession of admi- ralty and maritime jurisdiction to the federal courts did not give them cognizance of the offence, because that could not be construed into a cession of the w r aters on which those cases arise, and the power of exclusive legislation (which is juris- NEW YORK, SEPTEMBER, 1852. The People v. The Sheriff of Westchester County. diction) is united with cession of territory, and the general jurisdiction over the place adheres to the territory as a portion of the state sovereignty not given away. In one aspect that case is like that now under my consider- ation, and decides, at all events, that the mere grant of admi- ralty and maritime jurisdiction does not exclude state authority. But there was another point in that case, and that was, that congress had not legislated as to the offence when committed within state territory. Since then congress has supplied the defect, and legislated for such a case. But still it is unsettled whether, since congress has done so, the state is excluded from all authority, and that is the precise question before me; and it is a grave one when we consider the language of the court, ''That exclusive legislation (which is jurisdiction) is united with cession of territory." There has been no cession of territory at the place where the offence charged in the case was committed; and when we con- sider that the argument urged by the prisoners here, if allowed to prevail, will necessarily deprive the state of all power of legislation on the subject of steam boats in our navigable wa- ters, the point becomes too serious to be lightly or summarily disposed of. On the other hand, it was held in Houston v. Moore, supra, that in every case in which the state tribunals should not be expressly excluded by the acts of the national legislature, they would of course take cognizance of the causes to which these acts might give birth, and that the grant of jurisdiction gene- rally was not of itself sufficient to rest an exclusive jurisdiction. Chancellor Kent ( 1 Com. 400) sums up his examination of the question in these words: "The conclusion, then, is, that in judicial matters the concurrent jurisdiction of the state tri- bunals depends altogether upon the pleasure of congress, and may be revoked and extinguished whenever they think proper, in every case in which the subject matter can constitutionally be made cognizable in the tederal courts, and that without an express provision to the contrary, the state courts will retain a VOL. L 86 DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. concurrent jurisdiction, in all cases where they had jurisdiction originally over the subject matter." Our court for the Correction of Errors in Delqfield v. State of Illinois, (2 Hill, 164,) took the same view of the question. Branson, J., in delivering ihe opinion of the court, says: " There is, I think, no instance in the whole history of the law, where the mere grant of jurisdiction to a particular court, with- out any words of exclusion, has been held to oust any other court of the powers which it before possessed." In stating his views he alludes to criminal cases, and denies that a person, who within our territory commits a crime which is cognizable in the United States courts, is thereby exempt from being pro- secuted in the state courts, and he remarks, " probably no one is prepared to carry the doctrine of exclusive jurisdiction so far." From this examination, it is by no- means certain that the state authorities have not jurisdiction although the federal authorities have claimed and exercised it. There is still another view of the case, in which it may be that the state tribunals may have jurisdiction in cases like this. Something more is necessary to convict, under the state juris- diction, than under that of the federal authorities. In the latter, any misconduct, negligence or inattention, which results in a sacrifice of life, may be enough for conviction, but under the former more must necessarily be proved, namely, some act that evinces a depraved mind, regardless of human life some act imminently dangerous, not one which may or may not harm, but one that must almost necessarily do so. And it may be well that that is an offence in respect to which congress has not legislated, so that in any view, the state authority may be untrammeled. I am not so clear that it may not be so, as to leave no doubt on my mind. From the views I have thus stated, it will be perceived that I am by no means clear that the state courts have not jurisdiction. If I was satisfied of that, the prisoners would be entitled to their discharge. But as, to say the least, it is a matter of doubt, it is my duty to hold them until the question can be determined in the proper NEW YORK, SEPTEMBER, 18-7Z. ggg The People v. The Sheriff of Westchester County. form. This result renders it necessaiy for me to examine the other question raised whether any crime against our laws is charged in the warrant, and if so, what one, so as to determine in what manner the prisoners shall be tried. That involves the question whether an unlawful killing by an act imminently dangerous and evincing a depraved mind, regardless of human life, of itself constitutes the crime of murder under our statute, and whether it is not also necessary to prove an intention to hurt some one. The revisors, in their notes to this statute, say it was not intended there should be any departure from the then existing law, except as to implied malice, and for this particular enactment they refer to Hale's Pleas of the Crown. There it is stated that the intent to do bodily harm is necessary, in such a case, to constitute murder, and that writer in illustra- tion, instances the case of a man who, knowing that people are passing along the' street, throws a stone or shoots an arrow over the house or wall with the intent to do hurt to people, and some one is thereby slain this is murder; and if it were without such intent, it is manslaughter. I am not at liberty to depart from the rule as thus stated, and it must govern me in the construction of our statute, until the court shall put a different interpretation upon it. And this view of the statute is confirmed by the fact, that the revisors recommended a pro- vision that would have made an unlawful killing murder, when perpetrated from a premeditated design to do some great bodily injury, although without a premeditated design to effect death; but the legislature refused to enact it thus implying, to my view, that a design to do great bodily harm, or an intention to kill, must attend an act imminently dangerous, &e., to make the crime murder. I at one time thought that there could be no conviction for murder under this clause of our statute, unless there was an intention to take the life of some one, though it was not necessary to prove an intent to take the life of any par- ticular individual. Therefore it was that in the case of Austin (7JV. F. Legal Observer, 117), I remarked, whether the act was murder or manslaughter under our statutes depended entirely upon the existence of an intention to kill either some DECISIONS IN CRIMINAL CASES. The People v. The Sheriff of Westchester County. particular person or generally some one of a number of persons, against whom, in a mass, the fatal act is perpetrated. There is only one homicide known to our law which becomes mur- der in the absence of an intention to effect death, and that is when the act is perpetrated by one then engaged in committing a felony. I am not yet satisfied that in this I was wrong, though it is not necessary to decide that point here. It is enough for this occasion that I deem there should be evidence at least of an intention to do some bodily harm; and that must be so or our statute must be held to punish a homicide perpe- trated without any intention to do wrong, more severely than one perpetrated by one actually engaged in the commission of a crime or misdemeanor not amounting to a felony. Under our statute the latter is manslaughter only, and it can not be that it means to treat the other as murder. Now, in this case there is no allegation of an intention to do bodily harm, but, on the contrary, the facts alleged negative that idea; and thus, as one essential element to constitute the crime of murder is wanting, the prisoners ought not to be held on that charge. They ought not, however, to be fully discharged, but may pro- perly be held for manslaughter, and, I am inclined to think, in the first degree. That is defined in our statute to be " the killing of a human being, without a design to effect death, by the act, procurement, or culpable negligence of any other, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to felony." (2 R. S. 661, sec. 6.) And it is also enacted that, if the person having charge of a steam boat navigating our waters, or the person having charge of the boiler, for the purpose of excelling any other boat in speed, or for the purpose of increasing the speed of such boat, create or allow to be created an undue or unsafe quantity of steam, they shall be guilty of a misdemeanor^ (Laws of 1839, ch. 175, 63.) Here it is alleged in the war- rant, in the very language of the statute, that the killing occurred while the prisoners were engaged in performing those very acts. So that, although the warrant calls the offence murder, that which it details is, in fact, not murder, but man- NEW YORK, SEPTEMBER, 1852. ggg The People v The Sheriff of Westchester County. slaughter. Whether it is manslaughter in the first or some other degree, depends upon some question of interpretation, which I do not feel myself now called upon to consider. It is enough for this case, that I am satisfied that the prisoners are not, under the statute, properly chargeable with the crime of murder, which is not bailable, but with an offence for which they may be let to bail. The conclusion, then, at which I have arrived is, that the absence of jurisdiction in the state courts is not so clear as to warrant the total discharge of the prison- ers j that they can not, however, be held on the charge of murder, but may be held on the charge of manslaughter; and that, as that offence is bailable, they may be admitted to bail INDEX. ACCESSORY. An accessory can not be tried before .he trial and conviction of the prin- cipal offender. Baron v. The Peo- ple, 246 2. An accessory may be indicted and tried in the county where the of- fence of the accessory was committed notwithstanding the principal offence was committed in another county, but the accessory can not be indicted and tried in the county where the principal offence was committed, unless his offence as accessory was committed there. ib ARSON. 1. It is sufficient, in an indictment for arson in the 1st degree, to describe a building, which has been usually occupied by persons lodging therein at night, as a " dwelling house," al- though it may not be a dwelling house in the ordinary and popular acceptation of that term. (2 R. S. 657, H-) People v. Orcott. ^fa 2. A person is presumed to intend the ordinary consequences of his acts; and it devolves upon a person charged with crime to rebut this presinip- tion, by evidence of a different in- t?nt. * 3. A design to produce death is not ne- cessary to constitute the offence of arson in the first degree, either at common law or under the statute. I 4. It is immaterial whether the person charged with this offence has know- ledge that the building burned has usually or at any time been occupied by persons lodging therein. ib 5. Any building is a "dwelling house" within the act defining arson in the first degree, which is in whole or in part usually occupied by persons lodging therein at night, although other parts, or the greater part, may be occupied for an entirely different purpose. ib 6. Arson is an offence against the pro- perty of another; and a person can not become guilty of arson in the first degree, by setting fire to his own house. The People v. Henderson, 560 7. To convict a person of arson in the third degree, under 5, 2 R. S. 667, it is necessary to allege that the house was insured against loss or damage by fire and that the offence was committed with intent to de- fraud the insurance company; under that section a person may be con- victed of. burning his own dwelling house, but it is still an offence against the property of another, the object of the crime being to defraud the in- surer, who has an interest in the preservation of the property, iA 388 INDEX. 8. Where an indictment for arso charged that the prisoner, in th night time, feloniously set fire to hi own dwelling house, in which ther were at the time divers human be ings, with intent to burn the sai dwelling house and with intent thereby, to defraud the Poughkeepsi Mutual Insurance Company, on de murrer, it was held that the indict ment was not sufficient to bring th offence within the first degree, be cause it was not the dwelling hous of another, and that it was not suffi cient under the third degree, be cause it was not alleged in the in dictment that the property was in sured, and the indictment was ad judged to be bad. ATTEMPT TO COMMIT CRIMES i. The power to punish by imprison- ment in a state prison, upon a convic- tionf or an attempt to commit a crime, is not limited to those cases where the imprisonment in state prison, il the crime attempted had been con- summated, must be for four years or more; but in all cases where the crime attempted may be punished four years or more in a state prison, the court may sentence the convict to imprisonment in a state prison for a time not exceeding one half of the longest time of imprisonment pre- scribed for a conviction of the offence attempted. Mackay v The People, 459 2. Where, by the statute, the impri- sonment in the state prison for a commission of the crime attempted must be for a term less than four years, the person convicted of the attempt can only be sentenced to imprisonment in a county jail, for not more than one year. ib 3. Grand larceny being punishable for a term of not more than five and not less than two years, a person con- victed of an attempt to commit grand larceny may be sentenced to impri- sonment in the state prison for two years and six months. ii B BIGAMY. On the trial of an indictment for biga- my, the confessions of the defendant, though supported by proof of co- habitation and reputation, are not sufficient to establish the first mar- riage- proof of actual marriage, either by the record or by the evidence of an eye witness, is requisite. Gaha- gan v. The People. 378 BURGLARY. 1. Where a burglary is connected with a larceny mere possession of the stolen goods, without any other evi- dence of guilt, is not to be regarded as prima facie or presumptive evi- dence of the burglary. Davis v. The People, 447 2. But where goods have been felon- iously taken by means of a burglary and they are immediately or soon thereafter found in the actual and exclusive possession of a person, who gives a false account, or refuses to give any account of the manner in which the goods came into his pos- session, proof of such possession and guilty conduct is presumptive evi- dence not only that he stole the goods, but that he made use of the means by which access to them was obtained. ib . There should be some evidence of guilty conduct, besides the bare pos- session of the stolen property, before the presumption of burglary is su- peradded to that of the larceny, ib See INDICTMENT, 4. CERTIORARI. Sec HABEAS CORPUS, 9. INDEX. 699 CHALLENGE OF JURORS. 1. A juroi may be challenged to the favor, after a challenge to the same juror, for principal cause, has been tried and overruled. Carnal v. The People, 27 2. Whe-e, after a challenge for princi- pal cause had been tried and over- ruled, a challenge to the same juror was interposed " to the favor." it was held that the form of the chal- lenge was sufficient without stating specifically the grounds of challenge. ib 3. Where, on a criminal trial, a per- son is drawn as a juror and chal- lenged to the favor and called as a witness in support of the challenge to prove a bias growing out of what he had heard or read on the subject, it is proper on his cross-examination, to ask him his opinion as to the character and extent of the supposed bias and whether he thinks it would influence him after hearing the evi- dence. The People v. Knickerbocker, 302 4. Where, on the trial of a challenge to the favor, improper evidence is received and the triors find the juror indifferent, and he is then challenged peremptorily, and it appears the prisoner had not exhausted all his peremptory challenges when the panel was completed, the prisoner can not afterwards avail himself of exceptions taken to the admission of such improper evidence before the triors. ib 5. No peremptory challenges are al- lowable to the people in criminal cases. The statute of 1847, entitled " an act to provide for additional challenges to jurors," has not changed the law in respect to chal- lenges by the people in criminal cases. The People v. Henrits, 579 6. Where two or more persons, jointly indicted for murder, are tried to- gether, only twenty peremptory challenges can be allowed to all the defendants. The People v. Thayers, 595 COMMITMENT. See CONVICTION, 2. CONVICTION. 1. Upon a conviction at the Oyer and Terminer, it is not sufficient to state in the entry of judgment in the min- utes, under the requirement of 2 R. S. 738, 5, that the defendant was convicted of a felony or a misde- meanor,- but the particular offence should be stated. The People v. Cavanagh, 588 2. And where a person is imprisoned under such conviction, the particular kind of offence of which he has been convicted should appear in the com- mitment, that it may be seen whe- ther the punishment awarded was warranted by the offence. ib 3. The penitentiary being provided by law for the imprisonment of persons convicted in the county of Kings, who shall be sentenced to imprison- ment for a term not less than thirty days, it is illegal, in that county, to sentence a person so committed tn imprisonment in the county jail. j,S See EVIDENCE 34. COURTS OF SESSIONS. 1. Courts of Sessions as organized un der the judiciary act of 1847, hav not power to grant new trials. The People v. Court of Sessiont, 369 2. Where, in a court of sessions, the defendant had been four.d guilty of arson in the third degree, and the court granted a new trial upon the merits and refused to pass sentence according to the verdict, it was held that the granting of a new trial wai a nullity and a mandamus was awarded to compel the court to pro- ceed and pass sentence. ib 1. Since the act of 1851, entitled ' an act in relation to courts of Sessions," VOL. I. 87 690 IXDEX. (Sets. Laws of 185!, 825,) a cou-t of Sessions can not be held, except in pursuance of a previous order of a county judge; made under the author- ity of that act, and in conformity therewith, designating the times for the purpose, and published as there- in directed: and when an indictment was found at a term not legally ap- pointed, and a plea in abatement setting up such illegality was inter- posed and overruled by the Court of Sessions on demurrer, the case hav- ing been removed into the Supreme Court by certiorari the conviction was reversed and the proceedings of the Sessions, were quashed . The People \ . Montghan, 070 4. A court of sessions has not jurisdic- tion to try an indictment for robbery in the first degree, that offence being punishable in the state prison for life; a trial and conviction in such case are utterly void. The People v. Henries, 579 E. ENTRY OF JUDGMENT. Upon a conviction at the Oyer and Terminer, it is not sufficient to stale in the entry of judgment in the mi- nutes, under the requirement of 2 R. R. S. 738, $ 5, that the defendant was convicted of a felony or a misde- meanor,- but the particular offence should be stated. The People v. Cavanagh, 388 EVIDENCE. 1. On trial for murder, the dying de- clarations of the deceased, that is, declarations made under the appre- hension of death, are competent evi- dence against the prisoner; but be- fore such declarations are received, it must be satisfactorily proved that the deceased, at the time of making them, was conscious of the danger and had given up all hopes of re- covery. The People v. Green. 11 2. When, by the direction of the at- tending physician, and in his pres- ence, W. informed the deceased, on the day before her death, that she could not live, whereupon the de- ceased requested the physician Jo hear a communication that she de- sired to make, and with his consent she proceeded to give a history of the conduct of the prisoner during her illness, tending to show that he had several times, during such ill- ness, administered arsenic to her, held, that such communication was admissible, as her dying declaration. ib 3. Where, on the trial of a capital case, several witnesses are to be ex- amined tc the same point, the court may, in its discretion, require all such witnesses, except the one un- der examination, to leave the room, during such examination ib 4. The possession, by a prisoner, of an unanswered letter, found in his pocket, at the time of his arrest, is not, of itself, evidence of the con- tents and it can not be read in evi- dence against him on the trial. ib 5. The maxim, qui facet, consentire videtur, is not applicable to such a case; nor is it generally applicable, except to verbal conversations, and to certain communications in writing in mercantile transactions. It can not be applied to facts stated in a letter which a party is not bound or interested to answer. ib 6. Where a party has called a witness, and proved by him a conversation had with the opposite party, the party whose conversation has been proved can not, on cross-examina- tion, prove by the witness a subse- quent conversation between the party cross-examining and the witness, which took place two or three hours after the first conversation, though such subsequent conversation was upon the same subject as the first conversation and in explanation of it '* 7. And though the party calling the witness proves the fact that there was a subsequent conversation, that does not entitle the party cross-ex amining the witness to prove what was said at such subsequent conver- sation. * INDEX. 8 As a general rule, it is not rompe tent, in support of the testimony of a witness, for the party calling him to prove that he has made declara tions out of court corresponding with his testimony in court. The excep- tions to this rule stated. The People v. Finnegan, 14 ^. And this rule is applicable to cases where an attempt is made, on a cross. examination, to throw doubts on the testimony of a witness, as well as to cases where other witness- es have been called and examined to contradict the statement of the wit- ness, ib JO It is not collateral but relevant to the m;tin issue to inquire into the motives which influence a witness in giving his testimony, and a party examining a witness in regard to them, is not bound by his answers but may contradict him. The People v. dustin, 104 11. A sufficient foundation is laid for such contradiction if the attention of the witness has been directed to the time, place and circumstances attending an alleged statement made by him, and the name of the person to whom he may have made it need not be mentioned, if it. was not necessary to enable him to know to what remark his attention was di- rected. t'6 12. The statute allowing the relative of a person killed, to recover dama- ges therefor it will be no impeach- ment of a witness, that he as fa- ther of the deceased, had attempted by negotiation to recover compen- sation from the author of the death. ib 13. A person convicted of perjury is an incompetent witness, though he has been pardoned by the governor, and the pardon purports to restore him to all his civil rights, the legis- lature having provided that such convict shall not be received as a witness till such judgment be re- versed; such is the law, though the exclusive power of pardon be vested in the governor. Houghtaling v. Kdder house, 241 691 14. Such incapacity to tektify is the result of a rule of evidence and not a punishment of the offence. t'6 15 Where a defendant proves the making of an admission by the plaintiff, the latter has a right to give evidence in explanation of the admission and to have the witness state all that was said upon the sub- ject at the time. fj 16. A person is presumed to intend the ordinary consequences of his acts: and it devolves upon a person charged with crime to rebut this presumption by evidence of a differ- ent intent. The People v. Orctttt, 17. Where, on trial for murder by poisoning, the deceased, on the thira day of her illness, said to her female attendant, that she expected to die because she was poisoned, and also expressed a similar opinion at a sub- sequent time, and at no time ex- pressed an opinion that she should recover, her declarations made after the third day of her illness, down to the time of her death, on the twelfth day of her illness, were received as evidence, although it did not appear that either of her attending physi- cians had told her she was going to die. and although it appeared that one of the physicians, notw ithstand- ing the cause of her illness, had spo- ken to her encouragingly of her prospect of recovery. The People v. Grunzig. 299 18. To entitle the prosecution, on a trial for murder, to introduce evi- dence of the dying declarations of the deceased, it must appear by the preliminary evidence, that the de- clarant knew, or believed, his injury was mortal, and that death was ra- pidly approaching. This may be shown by the expressions and con- duct of the deceased, or by other satisfactory evidence. The People v. Knickerbocker, 302 9. After the introduction of the pro- per preliminary evidence, the prose- cution is entitled to show such dying declarations, notwithstanding there may be other witnesses bv who* 69:2 INDEX. testimony the same facts might be proved, which are sought to be es- tablished by such dying declarations. ib 20. The fact that a witness admits, on his cross-examination, that he has been prosecuted and bound over, on a charge of perjury, will not author- ize the party calling the witness to give evidence of the general good character of the witness. The Peo- ple v. Gay, 308 21. A party can only give evidence of the good character of his witness, when impeaching witnesses have been first called on the other side. ib 22. By impeaching witnesses, in such case, is meant only such as have spoken to general character, or to character for truth. ib 23. On the trial of an indictment for incest, charged to have been com- mitted by a father with his daughter, the declarations of the defendant are competent evidence upon the ques- tion of consanguinity. The People v. Hariden, 344 24. On the trial of an indictment for bigamy, the confessions of the de- fendant, though supported by proof of cohabitation and reputation, are not -sufficient to establish the first marriage; proof of actual marriage, either by the record or by the evi- dence of an eyewitness, is requisite. Gahagan v. The People. 378 25. The answer of a witness on cross- examination, to an inquiry, the sub- ject of which is purely collateral to the issue, is conclusive. The People v. McGinnit, 387 28. On a criminal trial, it is no objec- tion to proving a confession of the defendant, that it was made when he was under oath, if it appear that it was free and voluntary and not made under the influence of fear or hope. The People v. Hendrickson, 406 27. What a person says, when exam- ined as a witness in a legal proceed- ing, may be used in evidence against him ; out the statements or oath of a party accused can not be given in evidence. Lewis's Cases. 6 Car. $ P. 161; David's Case, id. 177; and Owen's Case, 9 Car. $P 238; re- viewed and overruled. ib 28. Where on the trial of a party for the murder of his wife, it appeared that the prisoner had been examined as a witness before the coroner's in- quest, on the evening subsequent tc the death, and that he had not then been charged or accused of the crime, and that his statements, then made under oath, were free and voluntary, such statements were held to be pro- perly receivable in evidence against him. ib 29. Held also, that evidence of conver- sations between the prisoner and his wife, and between the prisoner and his brother-in-law, tending to show an alienation of affection on his part in regard to his wife, was ad- missible on the question of motive. ib 30. Held al so. that the will of the pri- soner's father- in-law was properly received in evidence, for the purpose of showing that the pecuniary ex- pectations, which the prisoner might have entertained by reason of his alliance with the family, had been disappointed. ib 31. The opinion of a physician upon a question not involving medical skill or science is not admissible evi- dence. Woodin v. The People, 404 32. Medical men are allowed to give their opinions in cases of alleged in- sanity, because they are supposed by their study and practice to under- stand the symptoms of insanity and to possess peculiar knowledge on that subject, without which the jury could not be able to decide the question correctly ; but they should not be per- mitted to express such opinion, ex- cept on all the testimony which is felied on to establish insanity. Lake v. The People, 49i> 33. A medical witness, examined as an expert on a question of insanity may be asked his opinion as to a hypo- INDEX. 69S thetical statement of facts: he may also be asked what are the symptoms of insanity. Whether such facts exist or such symptoms are proved it belongs exclusively to the jury to decide, ib 34. Where a record of conviction of a witness for petit larceny, is offered in evidence for the purpose of dis- crediting such witness, it is not a good ground for rejecting such evi- dence, that it related to a transaction which occurred more than twenty- five years before, though such evi- dence unaccompanied by proof of subsequent bad character, is entitled to but little weight, ib 35. The mode of reasoning and draw- ing conclusions from facts and cir- cumstances is the same, whether the case under consideration is a mere contest respecting the rights of pro- perty, or one involving the life of an individual-, except that, in crim- inal cases, the accused must be pre- sumed to be innocent, until the con- trary is clearly established by proof which leaves no reasonable doubt on the mind. The Pcoplo v . Thayers, 596 36. Presumptive or circumstantial eVi- dence is admissible both in civil and criminal cases, and in prosecutions for some of the worst species of crimes, is often the most satisfactory and convincing that can be produced. The reasons for this opinion in a comparison between positive and circumstantial evidence. The People v. Videto, 603 37. The treatise entitled/' The theory of presumptive proof, or an inquiry into the nature of circumstantial evi- dence," which is found bound up with the first American edition of Philips's Evidence, disapproved and declared to be in opposition to the judicial decisions upon that subject; and the eleven cases published in the appendix of that work for the pur- pose of supporting that theory by illustration, held to be unauthenti- cated and unreliable. ib 38. The nature of presumptions dis- cussed; and violent presumptions, probable presumptions, and light 01 rash presumptions described and il- lustrated by examples, and directions give"n as to their application, and as to the weight that should be seve- rally given to them. .16 39. Where on a trial at the Oyer and Terminer, the prisoner called as a witness a woman, by whom he pro- ved that she was living with the prisoner as his mistress and not as his wife, so as to make her a com- petent witness in his behalf, and then proved, by her, facts deemed material in the case, and no attempt was made on the part of the public prosecutor to impeach her testimony, it was held that the prisoner was not at liberty to introduce testimony to sus- tain her character for truth and ve- racity. Colt v . The People, 611 40. Where there is no evidence before the grand jury, or known to the pro- secutor, at the time of finding the indictment for murder, to show what instrument was used to produce the mortal wound, it is proper to charge in the indictment, that such wound was inflicted by some instrument to the jurors unknown; and under such an allegation, it is competent for the public prosecutor to introduce evi- dence to raise a presumption that the wound was caused by a pistol ball ; and to prove, for that purpose, that the prisoner had pistols' in his posses- sion apd that a ball, propelled by the explosion of a percussion cap, would be likely to produce such a wound; or to prove that the prisoner had such pistols, for the purpose of satisfying the jury if possible, in connection with other evidence in the case, that the prisoner had taken the ramrod from the pistol and driven it into the head of the deceased. t'A See BURGLARY. CHALLENGE TO JURORS, 3. RAPE. RECOGNIZANCE, 8. SUMMARY CONVICTION, 7, 9. EXCEPTION. . An exception is available for tb* 694 INDEX. purpose of correcting an error in the admission or rejection of evidence, in granting or refusing a nonsuit, in charging or refusing to charge the jury on a specific proposition, or in deciding any question on the trial affecting the merits; but all that re- lates to the manner of conducting the trial, to the forms of the quest- ions asked, if not objectionable in substance, and to the range allowed to counsel in their arguments, are matters of discretion, as to which a remedy for a supposed error can not be had by an exception. The People v. Finnegan, 147 2. Where the court permitted the counsel far the people to urge to the jury that they might infer from the prisoner's omission to prove a good character, that his character was bad. because the counsel for the pri- soner had stated to the jury in open- ing the defence that he had known the prisoner from his youth and knew him to be a man of fair char- acter, held, that such decision could not be reviewed on exception, the latitude to be allowed counsel in ad- dressing the jury being a matter of discretion; but that the proper way to have raised the question was by asking the court to charge, after the counsel had addressed the jury on a specific proposition as to the legal presumption, and if the court re- fused so to charge then to except to such refusal. ib 3. Where an exception is taken so in- distinctly that the court can not readily perceive the exact point of the objection, the appellate court will disregard it. Per Mitchell, J. Carnal v. The People, 272 4. In charging a jury, an expression of opinion by the judge as to the ef- fect of the evidence, leaving the jury to decide the question notwithstand- ing such expression does not furnish a valid ground of exception- aliter, if the language, which is the subject of exception, amounts to an instruc- tion as to the law applicable to the evidence in the case. The People v. Qutn, 340 5. Where the question, on the trial. I was whether the prisoner was guilty { of murder or manslaughter, and the presiding judge, in his charge to the jury, after commenting on the evidencf for the prosecution, said " Now, gentlemen, if you believe this evidence, and believe tnat the crime was committed by the defend- ant, under the circumstances as given to you by these witnesses, I see no ground to warrant you in not finding the defendant guilty of man- slaughter, but in my judgment he is then guilty of murder," it was held to amount to an instruction upon a conclusion of law: and the case properly presenting questions of fact to be passed upon by the jury, viz: whether the killing was by " pre- meditated design to effect death." or in the " heat of passion," &c., the charge was held to be erroneous and a new trial was awarded. ib 6. A bill of exceptions lies only to correct an erroneous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court. to which an exception was taken at the time. The People v. Slockham, 424 7. Exceptions may now be taken on the trial of a criminal cause, in the same cases and manner provided by law in civil cases. Safford v. The People, 474 See TRIAL, 4, 6. SEDUCTION, 3, 4, 5, 6. TRIAL, 4. FALSE PRETENCES 1. To constitute the crime of obtain- ing property by false pretences un- der the statute, two things are essen- tial, viz: a false representation as to an existing fact and a reliance upon that representation as true. Tht People v. Tompkins, 224 2. Where, from the depositions taken before the police justice, it appeared that N agreed to sell to T one hund- INDEX. 695 red shares of stock, deliverable and payable the next (lay, and on the next day, before transferring the stock, N sent for T's check and re- ceived for answer that T had sent his check to be certified and would send it to N in ten or fifteen min- utes, and relying upon this statement A" thereupon transferred the stock to T. held, that it was apparent that N's reliance was on the promise and not on the representation that the check had been sent to be certified, and that a case was not shown with- in the statute, especially as there was no proof showing that the check had not been sent to be certified, and the prisoner was discharged. ib FELONY. 1. An offence, in regard to which there is a discretion vested in the court, to punish it, either by imprisonment in the state prison or by fine, or by imprisonment in the county jail, is within the statutory definition of felony If the offender, on convic- tion, be liable to imprisonment in the state prison, he is guilty of fel- ony, though he be also liable to the infiiction'of a less severe punishment. The People v. Vansteenburgh, 39 2. A violation of the seventh section of the act, entitled "an act to pre- vent persons appearing disguised and armed," passed January 28, 1845, is a felony; and the killing of a human being by persons engaged in the vio- lation of that section, though the act be perpetrated without any design to effect death, is murder. ib o. iu all cases of felony, before the passing of sentence, the court should demand from the defendant what he has to say why judgment should not be pronounced against him; and the fact that the defendant was present and that such demand was made, ought to appear upon the record. Saffbrd v. The People. 474 FELONIOUS ASSAULT. indictment under the Revised Sta- tutes, charging the comniitt.ngof an assault and baitery with a deadly weapon, with the intent to kill, is sustained by proof of having done the act with intent to commit a felonious homicide; it is not necessary to prove an intent to murder. The People v. Shaw, 327 FOREIGN STATE. 1. The statute declaring a second of- fence of petit larceny to be punisha- ble in the state prison, is not appli- cable to a case in which the first conviction took place in another state. The People v. Caesar, 643 2. And where a defendant pleaded guilty to an indictment charging pe- tit larceny as a second offence, and it appeared by the indictment that the first offence was committed and the first conviction had in the state of Massachusetts, it was held that the defendant could only be punished foi simple larceny. 16 FORGERY. On the trial of an indictment for for- gery, alleged in the first count to have been committed by the defend- ant, by having in his possession a forged bank note, purporting to have bepn issued by a certain banking as- sociation, with intent to utter the same, and in the second count, with uttering and publishing such note, it is competent to prove by parol that there is such an institution in exist- ence doing business in this state, without introducing in evidence the articles of association under which such bank was organized. Dennit v. The People, 469 See FORMER TRIAL, 4. FORMER TRIAL. I. A trial and conviction, before a court of Special Sessions, for an as- sault and battery, are no bar to a subsequent indictment for man- 696 INDEX. slaughter, where the person assaulted dies subsequently, of the wounds caused by the blows, for inflicting which the complaint for assault and battery was made. Burnes v. The People, 162 2. A former trial is no bar, unless the first indictment was such as the ac- cused might have been convicted upon, by proof of the facts set forth in the second indictment. To con- stitute a bar the offence charged in both indictments must be identically the same in law as well as in fact. 16 3. A trial and acquittal, on an indict- ment, charging the defendant with having mixed arsenic with flour, and with having caused it to be adminis- tered to one Louisa Loveland, with intent to kill and slay her, are no bar to a subsequent indictment, charging the same defendant with the same act in mixing the arsenic, and caus- ing it to be administered to one William P. Loveland. with intent to kill anu slay him. The People v. Warren, 338 I. On the trial of an indictment charg- ing the defendant with having ut- tered and published as true, a pro- missory note made by the defendant, on which the names of certain indi- viduals appearing as endorsers were alleged to have been forged, it is a ^ood defence, under the plea of anter- jois acquit, that the defendant had before been indicted and tried for the offence of forging and counlerteiting the same endorse nents and on such previous trial had been acquitted by the verdict of a jury upon the merits, the only controverted question on both trials being whether such en- dorsements were genuine. The Peo- ple v. jlllm, 445 FUGITIVES FROM JUSTICE. . A treaty containing provisions to be executed in futuro, is in the nature of a contract, and does not become a rule for the courts until legislative action shall be had on the subject. Inrt Metzger, 108 3. The treaty with France of 1843., providing for the surrender of fugi- tives from justice, can not be exe- cuted by the president of the United States without an act of Congress. t 3. No person can be surrendered under that treaty, who is merely charged with crime before a committing ma- gistrate. He must under our law be indicted, or under the French law be mis en accusation by the chambre de mises en accusation. ib 4. The power to issue warrants for the purpose of apprehending fugi- tives from justice, under the tenth article of the treaty between the United States and Great Britain, con- cluded on the ninth day of August, 1842, and under other treaties be- tween this government and foreign governments is conferred by the act of congress of August 12, 1848. ch. 167, as well upon the judges of the several state courts, as upon the jus- tices of the supreme court and the several district courts of the United States and the commissioners ap- pointed by the courts of the United States. In re Heilbonn, 429 . Such warrant can only, be issued upon complaint made under oath or affirmation, charging some person with having committed one of the crimes enumerated and provided for in the treaty, and if the complaint be insufficient there is no jurisdic- tion to issue the warrant. ib i. Where the charge of the crime is made in the complaint in general terms, and the complaint also con- tains all the facts on which the charge is made ; and from such facts it clearly appears that no such crime has been committed, but some other offence not provided for in the treaty, the complaint itself disproves the general charge and takes away the foundation for the warrant. ib 7. Where a person had been arrested as a fugitive from justice under a warrant issued by a commissioner appointed by a court of the United States and was afterwards brought before a justice of the supreme court of this state on habeas corpus for the INDEX. 697 purpose of inquiring into the cause of bis detention with a view to ob- taining his discharge, held that it was proper for the justice to Jook behind the warrant for the purpose of ascertaining whether the complaint made was sufficient to give the com- missioner jurisdiction. \l> 8. The proper mode of reviewing a decision of a slatejudge, made in such case, is by carrying it to the Supreme Court of the state, and from thence to the Court of Appeals, and from thence to the Supreme Court of the United States, if the decision of the court of appeals be against the power claimed under the United States law. ib Where a bill was drawn by the Bank of Ireland on the Bank of England, on the 2d July, 1854, to the order of Mrs. A. Hali- day, for 13, 7s. 6d. sterling; and fter several intermediate endorse- ments, was endorsed to Chas. Mc- Intosh & Co , to order, and the bill came to Mclntosh & Co. by letter, which was surreptitiously taken possession of by Alex. Heilbonn, the prisoner, a clerk for Mclntosh & Co., who wrote the following endorse- ment on the bill: "Received for Chas. Mclntosh & Co., Alex. Heil- bonn, No. 9 Vine street, Regent street No. 73 Aldermanbury," on which the bill was paid to the pri- soner, /icW, that such endorse- ment did not amount to the crime of forgery, though it appeared that Heilbonn had no authority to en- dorse bills of exchange or to receive the amount thereof, and that the words, t% Chas. Mclntosh & Co." were an imitation of the hand writing of a member of ihe firm, the rest of the endorsement being in the un. disguised hand writing of said Heil- bonn. And held that the olfence of the prisoner belonged to a different class of crimes and was not one of those provided for in the treaty be- tween this country and Great Bri- tain. t6 FUGITIVE FROM SERVICE. .. A fugitive slave can be retaken and returned to service, only on the Vo^. I. 88 demand of his owner, or his agent or attorney. In re Kirk, 67 2. The power of legislating on the subject of fugitives from service is exclusive in the government of the United States, and it is not compe- tent for state authorities to add to, or interfere with the subject. ib 3. The statute of the state of New York (1 Rev. Stat. 6,59, $ 15), which allows the master or commandant of a vessel, in case a slave shall have concealed himself on board his ves- sel and thus escaped to this state, to recapture such fugitive, and take him before the mayor or recorder, for the purpose of obtaining a war- rant for his removal from the state, is repugnant to the constitution of the United States, and therefore void. A 4. In a proceeding on habeas corpus under the Revised Statutes, the aver- ment of a person claimed as a fugi- tive from service that he is a free- man, is a sufficient answer to the allegation by the claimant that such person is his slave and a demurrer to such answer on the ground that it is argumentative and evasive will be overruled. In re Belt, 169 5. In submitting proof of the claim to the alleged fugitive, the contem- poraneous acts of the fugitive and the claimant during he period when the relation of master and slave is said to have existed between them may be shown by the claimant, ib 6. The general rule of evidence in regard to the proof of the laws of the various states of the Union, stated in Greenleaf 's Evidence, $ 489, has not been adopted by the courts of the state of New York, and is not the rule therein, excepting so far as it is enacted by the act passed April 12, 1848, entitled " an act re- lative to the proof of the statute and common law of other states, &c. M (p. 442.) ik 7. The provision of the New Code, that no person shall be excluded as a witness by reason of his interest in the event of the action, does not extend to cases of habeas corpus, 698 INDEX. and the claimant to an alleged fugi- 3. Th material facts alleged in the live from service can not testify in behalf of bis claim. ib 8. A general understanding that the Jaws of any state tolerate slavery, does not exempt a judge from requir- ing lawful evidence thereof, and fail- ing to give such evidence the claim- ant of an alleged fugitive fails to establish the main point in his case, issue having been joined thereon, that the person was bound to him in service. ib 9. It being sufficiently proved that the alleged fugitive was bound in service to the claimant, yet, if the claimant, instead of removing him from the state without delay, has detained him in his own custody, that is a sufficient reason why the person is entitled to his discharge. There is only one case in which a fugitive slave can be kept by his master in his personal charge in this state, and that is under the law of Congress, to take him without delay before the proper authority, in order to obtain the certificate necessary for his removal from the state. When it appears that the claimant holds his slave in this state, not for the purposes contemplated in the act of Congress, but that he holds him as his slave because he owes him servi- tude, it is the duty of the judge to order him to be discharged from cus- tody, ib H HABEAS CORPUS. 1. Tht adjudication of an officer hav- ing power to issue and decide upon a writ of habeas corpus, may be set up as res adjudicata upon any sub- sequent writ of habeas corpus, and is conclusive upon the same parties, when the subject matter is the same, and there are ncr- new facts. In re De Costa. 129 2. The parties are the same, where the writ is issued on behalf of the same person, against the same re- spondent, although the relators are different. ib return, which are not denied by the party, brought up must be taken to be true. ib 4. On habeas corpus, how far the court or officer granting it, tire bound by the return, or may go behind it. The People v. Martin. Ib7 5. In criminal cases where an indict- ment has been found, he can not go behind the indictment, because there are no means of ascertaining upon what the indictment was founded. ib 6. But on a commitment before indict- ment, the whole question of guilt or innocence is open for examination on the return to the writ of habeas corpus, and the inquiry is not ne- cessarily confined to an examination of the original depositions. ib 7. In such cases, under our revised statutes, the proceedings on a habeas corpus are in the nature of an appeal from the decision of the committing magistrate. ib 8. Where, on a return to a writ of habeas corpus, it appears that the prisoner was detained by virtue of a warrant issued by a police justice, upon complaint on oath, the officer, before whom the habeas corpus is pending, has a right to go behind the warrant and inquire into the le- gality of the imprisonment. The People v. Tompkins, 224 9. Forms of writs of habeas corpus and certiorari, of tMe allowance thereof, and of the return thereto. ib See FUGITIVES FROM JUSTICE, 7. FUGITIVES FROM SERVICE, 4. JURISDICTION, 5. LARCENY, 6. HOMICIDE. 1 . Whether a homicide was justifiable under the statute is-tobe determined by the jury from their conviction whether there was reasonable i rouna INDEX 699 for the accused to apprehend great personal injury, and not from the fact that the accused did in fact en- tertain such apprehension. The Peo- ple v Austin, 154 2. Whether a homicide is excusable or not, must depend in a great measure upon the nature of the weapon used and the manner in which it was used. Killing by intentionally firing a pis- tol into a crowd can not be said to be by accident or misfortune To con- stitute murder there must be an in- tention to kill, in all cases, except where the perpetrator is at the mo- ment engaged in committing a felo- ny, ib 3. Any killing without a design to ef- fect death, unless it is justifiable or excusable, is manslaughter only, ib 4. Implied malice, constituting killing without an intention to kill, mur- der, is not recognized in our law. ib 5. Recent provocation, and the fact that the passions have hot had time to cool, do not under our statute mit- igate a killing with a design to effect death from murder to manslaughter. Such killing is murder, whether the design to effect death was formed on the instant or had previously been entertained. ib 6. The -intention to take life consti- tutes, under our statute, the main distinction between murder and man- slaughter, ib See MURDER. INCEST. 1. On the trial of an indictment for in- cest, charged to have been committed by a father with his daughter, the declarations of the defendant are com- petent evidence upon the question of consanguinity. The People V. Har- irfen, 344 2. The statute in such case is only ap- plicable to cases in which the sexual i: tercourse is by mutual consent. \t here it is accomplished by force it is punishable only as rape. >! INDICTMENT. 1. Where an indictment contains seve- ral counts charging the same offence in different forms, the prosecution will not be compelled to elect on which count they ask a conviction. Such election will be directed only when the several counts charge sep- arate and distinct offences. The People v. Jlustin. 154 2. In a criminal case, one good count is sufficient to support a general ver- dict of guilty, though the other counts in the indictment are defect- ive. The People v. Stein. 202 3. Where a verdict in a criminal case is appropriate to one or more good counts in an indictment, and can be deemed to have been passed upon and disposed of the others, the good counts are established and the verdict will stand, notwithstanding there may be bad counts in the indictment ; but if it appear that some of the counts are undisposed of by the ver- dict, the judgment rendered on such verdict will be reversed. Baron v. The People, 246 4. Where, in an indictment for burgla- ry, the building charged to hare been entered w as laid as the shop of William S. Amigh, it was held no variance that the shop was used in the business of one Winters, of whom Amigh was the agent, it appearing that Amigh hired and paid for the shop and that it was under his charge. The People v. Smith, 329 5. In an indictment for larceny, it is sufficient if goods stolen are laid as the goods and chattels of the bailee. ib 6 Thus where, in an indictment for ourglary and larceny, the property stolen was laid as the goods and chat- tels of William S. Amigh, and it ap- peared in evidence that the goods stolen belonged to one Winters, and that Amigh had the lawful custody 700 IXDF.X. of them fi'om Winters with authority to sell them ami account for the pro- ceeds, it was held no variance. ib 7. Under a plea of not guilty, a defend- ant can not avail himself of the fact that the defendant has been indicted by a wrong; name. ib S. tn a case where the sufficiency of an indictment is not involved in some decision made, or opinion advanced at the trial, ihe only mode of reach- ing a defect in the indictment is on a motion in arrest of judgment, or by a writ of error brought on the record of judgment itself. The People v. Stockham, 424 9. If an indictment for a statutory of- ferice alleges all the facts which the statute requires to constitute the offence this as a general rule is suf- ficient, ib 10. Where an indictment charged that the accused administered to one A. D., a pregnant woman, a certain medicine and drug, and used and em- ployed upon her body a certain in- strument, with intent to procure the miscarriage of the said A. D., contra formam statuti, &c., held that the facts charged were sufficient to con- stitute a misdemeanor, under the act of May 13, 1845, to prevent the procurement of abortion. ib 11. The decision in The People v. Loh- man, (2 Barb. S. C. Rep. 220,) upon this point approved and adopted, ib 12. Two distinct offences, requiring different punishments, can not be alleged in the same count of an in- dictment; such an indictment is bad for duplicity and a conviction upon it will be reversed on error. Reed v. The People, 481 13. Where, in the same count of an indictment, the defendant was charg- ed with a common law nuisance and also with a violation of a regulation of a board of health, under the fourth section of the ' ' act for the preserva- tion of the public health," passed April 10, 1840, the count was ad- judged to be double, the former of- feuce being punishable by fine not exce ding $250, or imprison nent not exceeding one year, or both, (2 R. S. 697, $$ 40. 41,) and the latter being punishable by fine not exceeding $1900 or imprisonment not exceed- ing two years, or both. Sest. Laws of 1850, p. 692, $4.) ib 14. What allegations in an indictment are sufficient to charge a common law nuisance considered. t'6 15. In an indictment for receiving sto- len goods, it is not sufficient to allege that the defendant received the stolen property knowing it to be stolen, but it is necessary to aver that the property was received with a feloni- ous or fraudulent intent. The Peo- ple v. Johnson, 564 16. If there be no such averment in the indictment, the defendant may avail himself of the defect by demurrer, writ of error, or motion in arrest of judgment. ib 17. Form of an indictment for petit larceny charged as a second offence. The People v. Caesar. 645 See ARSON, 1, 7, 8. EVIDENCE, 40. PERJURY. RECEIVING EMBEZZLED GOODS. RECEIVING STOLEN GOODS, 2, 3. SEDUCTION, 2, 6. INSANITY. 1 . Every man is presumed to be sane till the contrary is shown. The bur- then of proof of insanity to overcome such presumption rests upon the ac- cused. Lake v. The People, 495 2. Opinions of medical witnesses upon a case of alleged insanity with their statements of the symptoms and evi- dences of insanity. ib 3. Where the question to be determined by the jury is the -sanity of a person, both the acts and cVlarations of the person are evidence, for the purpose of ascertaining the state of mind of the actor. 16 INDEX. 01 i. \Vhere. on a trial for murder, the defence set up his insaniiy, evidence may be received of the acts and de- clarations of the accused as well be- fore and after as at the time of the homicide. ib 5. But it is not competent to prove the effect which the prisoner's conduct had on the mind of another person on the day before the homicide, nor the acts, nor declarations of the per- son killed, then made, in the absence of the prisoner. The previously expressed opinion of the person killed is not admissible evidence on the question of insaniiy, nor would such persons, if living, be permitted to testify to such opinion. ib 6. If a medical witness has heard only a part of the testimony on which the prisoner's counsel relies to establish his defence, it is erroneous to permit such witness to give his opinion as to the prisoner's sanity, where such opinion is founded on the portion of the testimony so heard by him. ib 7. To make the opinions of experts ad- missible, they must be founded on a given state of facts, which should embrace all the facts relied upon to establish the theory claimed. 16 3, Where insanity is interposed as a defence, its existence must be estab- lished by affirmative proof, every person being presumed to be sane till 'the contrary is proved. The People v. Robinson, 649 INTENT TO KILL. An indictment under the Revised Stat- utes charging the committing of an assault and battery with a deadly weapon, with the intent to kill, is sustained by proof of having done the act with intent to commit any feloni- ous homicide; it is not necessary to prove an intent to murder. The People v. Shaw, 327 INTOXICATION. It is no defence to an indictment for murder that the prisoner was in- to tcicated at the time of the commis- sion of the offence. The law holds a person responsible for a criminal act, though, at ihe time, he was in- toxicated to such an extent as to be unconscious of what he was doing. The People v. Robinton, 649 JURISDICTION. 1. The court of last resort in this state is the exclusive judge of its own jurisdiction, and its decision on that point can not be questioned by the court below, when directed to carry into effect a judgment of re- versal; but where the jurisdictional question has not been decided by the court of last resort, it is open to ex- amination in the court below. The People v. Clark, 360 2. A sentence inflicting corporeal punishment can not be pronounced in the absence of the defendant; but the personal presence of the defend- ant is not necessary where a fine only is interposed. ib 3. On a writ of error brought to re- verse a judgment in a capital case, the personal attendance of the de- fendant on the argument or at the decision in the appellate court, is not necessary to give such court ju- risdiction. ii 4. Where an offence was committed on navigable tide waters, wholly within the state of New York, and the United States courts and the state courts assumed jurisdiction thereof, the former prior in point of time to the latter, it was held, on a writ of habeas corpus, issued to test the legality of the latter arrest, that the conflict of jurisdiction could not be avoided by setting up judgment pronounced in one of the tribunals, which, when obtained, would be a bar to the proceeding ir. the other. The People v. Sheri/of Wettchetter, 659 6. It was also held to be by no means clear, that the state courts bad not INDEX. jurisdiction over the subject matter of the offence, whereof jurisdiction had already been exercised by the United States tribunals. At all events, the question considered too important to be decided summarily on habeas corpus. ib Set COUHT OF SESSIONS, 4. JURY. I In criminal, as well as in civil oases, except in a criminal prosecu- tion 1'or libel, it is the duty of the court to decide the questions of law and of the jury to decide the ques- tions of fact. The People, v. Finne- ga, 147 . The credibility of witnesses is ex- clusively a question for the jury, and it is not erroneous in the court to refuse to charge the jury how they ought to find, in a case resting on the credibility of witnesses. IVoodin v. The People, 404 8. It seems, that the jury are no more judges of the law in criminal than in civil cases, Saffbrd v. The Peo- ple, 474 4. In criminal trials, the jury have a right to decide both as to the law and facts of the case. The court is bound to decide the questions of law and to state them to the jury, but the jury have a right to disregard the decision cf the court upon ques- tions of law, especially in favor of life, if they are fully satisfied that such decision is wrong. The deci- sion of questions of fact belongs ex- clusively to the jury, though it is the right, and sometimes the duty of the court to comment upon the evidence, for the purpose of present- ing such questions {/roperly to the consideration of the jury. The People v Thayers, 596 5, In criminal cases, the jury are judges both of law and facts. They have a right to disregard the opinion of the court in a criminal case, even upon a question of law, if they are fully satisfied that such opinion is wrong. The People v. Videto, 603 5. The finding of the jury at th Oyer and Term'ner upon a mere question of fact, oan not be reviewed by the appellate court on a writ of error, although it appear affirma- tively that the bill of exceptions contains all the testimony given on the trial. Colt \. The People, 61 i See CHALLENGE OF JURORS. NEW TRIAL, 1, 2, 3. TRIAL/ 10, 11. K KINGS COUNTY. See CONVICTION, 3. LARCENY. 1. The finder of property who knows the owner, or has reason to believe who he is, is bound to restore it, and is guilty of larceny, if he fraudulently converts it to his own use. The People v. Swan, 9 2 Form of an indictment for petit larceny charged as a second offence. The People v. Casar, 645 3. The statute declaring a second of- fence of petit larceny to be punish- able in the state prison is not appli- cable to a case in which the first conviction took place in another state. ib 4. And where a defendant pleaded guilty to an indictment charging petit lar- ceny as a second offence and it ap- peared by the indictment that the first offence was committed and the first conviction had in the state of Massachusetts, it was held that the defendant could only be punished for simple larceny. tft 5. At common Jaw a dog was not the subject of larceny-, but it seems the law in this respect has been changed by the Revised Statutes, which recognize dogs as property, bv ub- INDEX 703 jecting them to taxation, and define larceny so as to cover the taking and carrying away of all kinds of property, except the freehold and things which are parcel of it. The People v. Maloney, 593 6. Where a person was indicted for grand larceny, in stealing a New- foundland dog of the value of $100. the property of R. T. and arrested on a warrant issued on such indict- ment, after a hearing on habeas cor- pus before a justice of the Supreme Court at Chambers, his discharge was refused. ib See EVIDENCE, 34. INDICTMENT, 5, 6, 17. LICENSE. ) The statute requiring a license to sell strong and spirituous liquors in small quantities, does not conflict with the 8th and 10th sections of the constitution '>f the United States. Smith and Bi nee v. The People, 58S 2. A siate h?. ihe right, in adopting geneal iff/ lations in regard to its internal t f& /s. to impose restrictions on the sale of goods, and to license persons to pursue a particular busi- ness, and the exercise of such power on the part of the state, will not be deemed an additional duty upon im- ports, though such restrictions and license extend to imported goods, as well as to those of domestic origin, (a) ib (a) See 8 How. U. S. R. 504. M MANSLAUGHTER. See HOMICIDE. MURDER. TRIAL. MISDEMEANOR. Set CONVICTION, 1, 2. LICENSE. NUISANCE. MISNOMER. See PLKA. MOTIVE. The existence or want of motive to commit the crime alleged is always a legitimate subject of inquiry. The weight to which such evidence is en- titled in different cases stated and discussed. The People v. Robinson, 649 See MURDER, 8. EVIDENCE, 3, 30. MURDER. 1 . On a trial for murder, the dying declarations of the deceased, that is, declarations made under the appre- hension of death, are competent evi- dence against the prisoner; but be- fore such declarations are received, it must be satisfactorily proved that the deceased, at the time of making them, was conscious of the danger and had given up all hope of recove- ry. The People v. Green, 1 1 2. Where, by the direction of the at- tending physician, and in his pre- sence, VV. informed the deceased on the day before her death, that she could not live, whereupon the de- ceased requested the physician to hear a communication that she de- sired to make, and with his consent she proceeded to give a history of the conduct of the prisoner during her illness, tending to show that he had several times, during such illness, administered arsenic to her. held that such communication was admissible, as her dying declaration. ib 3. Where, on the trial of a capital case, several witnesses are to be examined to the same point, the court may in its discretion require all such wit- nesses, except the one under exami- nation, to leave the room, during such examination. ib 4. The possession by a prisoner of an unanswered letter, found in his pock- 704 INDEX. et, at the time of his arrest, is not, of itself, evidence of the contents, and it can not be read in evidence against him on the trial. 16 5. The maxim, qui facet consentire vi- detur is not applicable to such a case, nor is it generally applicable, except to verbal conversations and to certain communications in writing in mer- cantile transactions. It can not be applied to facts stated in a letter which a party is not bound, or in- terested to answer. t"6 6. Where a party has called a witness, and proved by him a conversation had with the opposite party, the party whose conversation has been proved can not,on cross-examination, prove by the witness a subsequent conversation between the party cross- examining and the witness, which took place two or three hours after the first conversation, though such subsequent conversation was upon the same subject as the first conver- sation and in explanation of it. ib 7. And though the party calling the witness prove the fact that there was a subsequent conversation, that does not entitle the party cross-examining the witness to prove what was said at such subsequent conversation, t'6 8. What facts must be established to convict on the trial of an indictment for murder the distinction between positive and circumstantial evidence and the comparative reliability of each the reasons for proving and the character and value of dying de- clarations *ne question of motive and the cases in which the accused may avail himself of a previous good character stated and discussed in the charge. ib 9. Form of a warrant of execution (note a.) ib 10. Where on a trial for murder, it appeared that the prisoner and the deceased had been engaged in a fight or scuffle in the public highway, and the prisoner, after knocking down the deceased, took from the stone wall a large stone, and, with both hands, threw it upon the head of the de- ceased so as to break in his skull and cause his death, and the presiding judge charged the jury that if they believed the deceased came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder, under the second subdi- vision of the section defining murder, the charge was held to be erroneous and a new trial was granted. The People v. Johnson, 291 1 1 . Where the facts of a case bring it within any of the degrees of man- slaughter, it can not fall within any definition of murder. i6 12. Where death is feloniously caused in a cruel and unusual manner, and in the heat of passion, the character of the crime depends on the intent; if done without a design to effect death, it is manslaughter in the se- cond degree, if done with premedita- ted design, it is muHer under the first subdivision of the section defi- ning murder. But if done in the heat of passion, it can not, whatever may have been the design, be classed under the second subdivision of the section defining murder. Cases stated in illustration of the class supposed to be covered by the second subdi- vision of the section defining mur- der. Per BARCULO, J. t'6 13. Where, on a trial for murder by poisoning, the deceased, on the third day of her illness, said to her female attendant that she expected to die because she was poisoned, and also expressed a similar opinion at a sub- sequent time, and at no time ex- pressed an opinion that she should recover, her declarations, made after the third day of her illness down to the time of her death on the twelfth day of her illness, were received as evidence, although it did not appear that either of her attending physi- cians had told her she was going t> die, and although it appeared that one of the physicians, not under- standing the cause of her illness, had spoken to her encouragingly of her prospect of recovery. The People v. Grunzig, '299 14. To entitle the prosecution, on a trial for murder, to introduce evi- dence of the dying declarations of the deceased, it must appear by the INDEX. 705 preliminary evidence, that the de- clarant knew, or believed, his injury was mortal and that death was ra- pidly approaching. This may be shown by the expressions and con- duct of the deceased, or by other satisfactory evidence. The People v. Knickerbocker, 302 15. After the introduction of the pro- per preliminary evidence, the prose- cution is entitled to show such dying declarations, notwithstanding there may DC other witnesses by whose testimony the same facts might be proved, which are sought to be es- tablished by such dying declarations. ib 16. Under the Revised Statutes of New York, declaring the killing of a human being to he murder, when done from a " premeditated design " to effect the death of the person killed, it is erroneous to charge the jury, that the act must be murder, if the intent to kill was formed at the instant of striking the fatal blow. Sullivan v. The People, 347 19. Premeditation, as well as design, is now a necessary ingredient in making out the crime of murder, under the first clause of the section of the statute defining that offence. ib 20. Form of an indictment for mur- der, with counts at common law and under the statute and form of a writ of error to remove a criminal case from the Oyer and Terminer to the Supreme Court. Opinions of medical witnesses upon a case of alleged insanity, with their state- ments of the symptoms and evi- dences of insanity. Lake v. The People, 495 21. Every man is presumed to be sane till the contrary be shown. The burthen of proof of insanity to over- come such presumption rests upon the accused. ib 22. The nature of the criminal act, tne degree of motive, scientific opinions given on the trial and the legal inferences from the conduct of the prisoner, discussed in the charge to the jury. VOL. I. 89 23. Where the question to be deter- mined by the jury is the sanity of a person, both the acts and declara- tions of the person are evidence for the purpose of ascertaining the state of mind of the actor. ib 24. Where, on a trial for murder, the defence set up is insanity, evidence may be received of the acts and de- clarations of the accused, as well before and after, as at the time of the homicide. ib 25. But it is not competent to prove the effect which the prisoner's con- duct had on the mind of another per- son on the day before the homicide, nor the acts nor declarations of the person killed, then made, in the ab- sence of the prisoner. The previ- ously expressed opinion of the per son killed is not admissible evidence on the question of insanity, nor would such person, if living, be permitted to testify to such opinion. a 26 If a medical witness has heard only a part of the testimony on which the prisoner's counsel relies to establish his defence, it is erroneous to permit such witness to give his opinion as to the prisoner's anity, where such opinion is founded on the portion of the testimony so heard by him. ib 27. To make the opinion of experts admissible, they must be founded on a given state of facts, which should embrace all the facts relied upon to establish the theory claimed. ib 28. Where two or more persons, jointly indicted for murder, are tried together, only twenty peremptory challenges can be allowed to all the defendants. The People v. Thayert, 595 29. On a trial for murder, it appeared that the father of the defendants had been arrested and examined before a magistrate on a complaint against him for the same murder, and that on such examination one of the de- fendants, who was also at the same time under arrest for the murder, came forward as a volunteer witness and testified on such examination; 706 INDEX. Held, that his statements, made un- der oath, on such examination, were admissible in evidence against him. ft 30. On a trial for murder, it is com- petent for the public prosecutor to prove what the defendant testified to, before a coroner's jury, at an inquest held on the body of the de- ceased, though it appears the de- fendant with other persons were at the time under arrest for the alleged murder, the inquiry on such inquest not having been as to the guilt of the defendant, but being general, to ascertain, if possible, who was the murderer. ib 31. It is no defence to an indictment for murder that the prisoner was in- toxicated at the time of the commis- sion of the offence. The law holds a person responsible for a criminal act though, at the time, he was in- toxicated to such an extent as to be unconscious of what he was doing. The People v. Robinson, 649 32. The intent to do bodily harm to some one out of a number of per- sons is necessary, under the 2d subd. of sec. 5 of 2 Rev. Stat. p. 657, to constitute the crime of mur- der, even where the homicide is effected by an act imminently dan- gerous to others, evincing a depraved mind, regardless of human life. The People v. Sheriff of Wettchester, 659 22. Dubitatur, whether there should not also be. an intent to kill, though not aimed at any particular person. ib 43. Deaths caused by the burning of a steam boat which results from the making of excessive fires for the purpose of creating excessive steam, in order to out-race another steam boat, declared not to come under the denomination of murder, but parties held to bail for manslaughter in the first degree. ib See EVIDENCE. HOMICIDE. TRIAL. N NEW TRIAL. 1. On a motion for a naw trial, en th ground of the improper conduct of the jury, the affidavits of the jurors are not admissible to prove such im- proper conduct. The People v. Cor- nal, 256 2. A communication made to a jury while deliberating, by a party in whose favor the verdict is rendered will avoid the verdict: but a verdict will not be set aside because of such communication, where it is made by the losing party or by a stranger to the controversy. ib 3. Where, on a trial for murder, while the jury were consulting together upon their verdict, one of them sent the officer in charge of them to the court, to request that the statute or some book containing the law of manslaughter should be sent to them, the officer returned and informed the jury that " Judge Edmonds said they had nothing to do with manslaugh- ter," and they found the prisoner guilty of murder, on motion before the court of Oyer and Terminer for a new trial, on the ground of such communication to the jury, a new trial was denied. ib 4. Courts of Sessions, as organized under the judiciary act of 1847, have not power to grant new trials. The People v. Court of Sessions. 369 8. Where, in a court of Sessions, the defendant had been found guilty of arson in the third degree, and the court granted a new trial upon the merits, and refused to pass sentence according to the verdict, it was held that the granting of a new trial was a nullity, and a mandamus was award- ed to compel the court to proceed and pass sentence. ib 6. Semble, that a court of Oyer and Terminer has power to grant new trials. Per JOHNSON, J. t'6 7. The court of Oyer and Terminer has power to grant a new trial on the INDEX. merits, after a defendant has been convicted of felony. The People v. Morrison, 625 f>. The cases of The People v. The Judges of the Dutchess Oyer and Terminer (2 Barb. S. C. R. 282,) and the United States v. Gibert (2 Swm- nr, 19,) reviewed and disapproved. ib NUISANCE. I. It is only where a regulation of a board of health has been made and published, that a person can be con- victed, under the 4th section of the act, of a misdemeanor, for its viola- tion. Reed v. The People, 481 2. An order of a board of health made ex parte and adjudging certain pre- mises to be a common nuisance and directing the cleansing and purifica- tion of the same, within three days after the service of notice of such order, is not such a regulation as is contemplated by the fourth section of the statute, and a failure to com- ply with such order 03 not subject the person offending io punishment for a misdemeanor, under the section aforesaid. ib 2. On the trial of an indictment for the violation of such an order, it is not competent for the prosecution to prove affirmative offensive acts on the part of the defendant, while en- gaged in removing the cause of the nuisance. But it is competent for the defendant on such trial, to show a bona fide attempt on his part, to obey the order in question. ib 4. On such trial, it is a defence to such indictment to prove that at the time of the making and service of the or- der, the defendant resided out of the bounds of the village corporation, in which such board of health was or- fanized. ib See INDICTMENT, 13, 14. OYER AND TERLMNER. 1 . Semble, that a Court of Oyer and Terminer has power to grant npw trials. Per JOHNSON, J. The Peo- ple v. Court of Session*. 3M 2. The court of Oyer and Terminer has- power to grant a new trial on the merits, after a defendant has been convicted of felony. The People v. Morrison, 625 3. The question whether the court of Oyer and Terminer is a superior court of general jurisdiction dis- cussed, ib 4. The provision of the Revised Sta- tutes, (2 R. S. 204, $28,) authori- zing the Mayor, Recorder and Al- dermen of the city of New York, or two of them, to sit in the Oyer and Terminer held in that city, as a con- stituent part thereof, is not a viola- tion of Art. IV, Sec. 7, of the state constitution in force at the time of its enactment. Colt v. The People, 611 See NEW TRIAL, 8. PARDON. 1. The power conferred upon the Ex- ecutive by the constitution to grant pardons, includes the power of grant- ing a conditional pardon. The Pro- pie v. Potter, 47 2. Such condition may be banishment from the United States and on a breach of the condition ihe pardon becomes void, and the criminal may Se remanded on his original sentence. ib 3. The power to remand him can be exercised by the court in which he was convicted, or by any court of superior criminal jurisdiction. t* 708 INDEX. 4. A person convicted of perjury is an incompetent witness, though he has been pardoned by the Governor, and the pardon purports to restore him to all his civil rights, the legislature having provided that such convict shall not be received as a witness till such judgment be reversed: such is the law, though the exclusive power of pardon be vested in the governor. Hovghtaling v. gclderhouse, 241 PENITENTIARY. See CONVICTION, 3. PERJURY. 1. Form of an indictment for perjury in falsely swearing that usury was taken in discounting 1 a promissory note. The People v. Burroughs, 211 2. Where it does not appear on the face of the record, by the statement of the issue and evidence in the in-, dictmcnt, that the matter alleged to be false is material, it is sufficient to aver in the indictment that the mat- ter, in relation to which perjury is assigned, became and was material upon the trial. *& 3. Where, in a suit brought by a bank on a promissory note, the defendant had testified as a witness in behalf of the endorser, that F., who at that time was president of the bank, had taken usury in discounting the note, it was held, on a trial of the defend- ant for perjury in giving such testi- mony, that it was not necessary to set forth in the indictment that F, was acting in the transaction as an officer of said bank, or in what' par- ticular way he was connected with the transaction, but that it was suf- ficient in the indictment to allege that it became a material matter and question, &c., whether the said F. discounted said note, and whether he took usury in discounting it. and then to set forth particularly the tes- timony of the defendant on those points and the facts as they actually existed, which were inconsistent with such testimony, with the usual allegations of falsity and corrupt in- tent, ib 4. An averment in an indictment that the defendant was sworn as a witness between the bank and J. B., is sus- tained by proof that the .'efendant was sworn in a suit brought by the bank on a promissory note against V J. B., the endorser, and S. McF., and the defendarit, as 'joint -makers, the evidence of the defendant in such case being only available in behalf of the endorser. t6 5. Where, on an indictment for perjury in having sworn falsely as to the ability of the defendant to become bail for a prisoner charged with crime, the indictment charged that the perjury was committed upon an examination had after he had been previously sworn to make- true an- swers to such questions as should be put to him, touching his qualifica- tions and competency to be and be- come bail, &c., and it appeared on the trial, that after the at.swers of the defendant to certain interrogato- ries had been taken down in writing, an oath was administered to him, *' that the answers to the foregoing interrogatories by him subscribed are each and every of them true," it was held a material variance and that the proof did not support the indict- ment. Smith v. The People. 317 6. And where the indictment charged that the perjury was committed on the defendant's offer to become bail for one Thompson committed on McDonald's complaint in default of bail for $500, and the evidence show- ed the perjury to have been commit- ted on defendant's examination as bail for Thompson committed on the complaint of Sayre and others in de- fault of $3000 bail, it was also held to be a material variance and that the proof did not support the indict- ment, rt 7. A variance between an indictment for perjury on a trial before a referee and the evidence, in regard to the person before whom the referee was sworn, is immaterial. The allega- tions and proof as to the taking of an oath by the referee are superfluous , he acquired jurisdiction by the order of reference duly made. The People V. flfcGtwnw, 387 INDEX. 709 PLEA. Under a plea of not guilty, a defend- ant can not avail himself of the fact that the defendant has been indicted by a wrong name. See SEDUCTION, 1. PROPERTY. LARCENY, 1, 5, 6. R RAPE. 1 . On the trial of an indictment for rape, it is competent for the counsel for the prisoner, on the cross-exami- nation of the prosecutrix, to ask her whether the treatment complained of " was with her consent or against her will." Woodin v. The People, 464 2. Such a question is not objectionable in form, but if the objection to it had been put on that ground, and an exception taken, it would not have been available, for the form of a question, if not otherwise objection- able, is a matter of discretion with the court. ib 3. The credibility of witnesses is ex- clpsively a question for the jury, and it is not erroneous in the court to refuse to charge the jury how they ought to find, in a case resting on the credibility of witnesses, ib 4. The opinion of a physician upon a question not involving medical skill or science is not admissible evidence. a 5. Where it appeared from the testi- mony of a physician that the prose- cutrix for an alleged rape was of more than ordinary strength and health, and that the defendant was ixty years of age. the following ques- tion, put to the same witness, was held to be incompetent. u From what you know of her health and strength, in youi opinion. couJd th defendant have had carnal connection with her against her will, without resort to other means than the ex- ercise of his ordinary physical pow- ers?" Held, that this was a question in regard to which the jury could judge equally well with the witness, and did not involve medical skill or science, and was not a case for an expert. H 6. Held, also, that the question, whether in the opinion of the wit- ness a rape could be committed on a female who had borne children, and also was in ordinary health and strength, without resort to other means than the exercise of ordinary physical powers, came within the same rule and was incompetent, though the prosecutrix had previous- ly testified that, she had borne two children before the alleged rape, and that the ravishment was accom- plished by means of the superior strength of the prisoner. ib 7. Where the prosecutrix had testified, that as soon as practicable after the alleged rape she made it known and complained to her husband, and to her mother and Judge Jerome and other persons, and was corrobo- rated by the testimony of her hus- band as to the disclosures to him. and it appeared that Judge Jerome was present at the trial and was not called as a witness, it was held not to be erroneous for the court to re- fuse to charge the jury, that the cor- roborating evidence of Judge Jerome and others as to her disclosures was necessary to confirm her testimony and entitle it to full credit; and held that the court correctly charged the jury, that it was not necessary for the people to call the other persons referred to as witnesses, if the jury were satisfied that the prosecucrix or her husband had testified truly, in regard to the communications made by her. ib 8. To warrant a conviction for rape under the 2d sub. of $ 22, 2 K. S., 663, it ought to appear that there was the utmost reluctance and the utmost resistance on the part of the prosecutrix. The People v. Morri- son, 625 See INCEST, 2. 710 INDEX. RECEIVING EMBEZZLED GOODS. 1. In an indictment for having felon- iously received, certain goods and chattels which had been .embezzled, knowing them to have been embez- zled, it' is not necessary to aver that the person embezzling was the clerk or servant of the owner of the goods and chattels. The People v. Stein^ 202 2. Where several persons are indicted for feloniously receiving embezzled goods, knowing them to have been embezzled, all who are proved to have confederated in the transaction may be convicted, though the re- ceiving was at different times and places, and though all were not pre- sent, ib RECEIVING STOLEN GOODS. 1. In order to constitute the crime of receiving stolen goods, knowing them to have been stolen, the stolen property must be received felonious- ly, or with intent to secrete it from the owner, or in some other way to defraud him of the property. The People v. Johnson, 564 2. In an indictment for such offence, it is not sufficient to allege that the defendant received the stolen pro- perty knowing it to be stolen, but it is necessary to aver that the pro- perty was so received with a felon- ious or fraudulent intent. ib 3. If there be no such averment in the indictment the defendant may avail himself of the defect, by de- murrer, writ of error, or motion in arrest of judgment. ib RECOGNIZANCE. i. A recognizance taken in a court of Oyer and Terminer, for the appear- ance of a prisoner at a court of Gen- eral Sessions, to answer to a pending indictment, must be entered in the the mirutes of the court, or it will be void. Tht People v . Graham, 141 2 Such entry must contain all the sub- stantial parts of the recognizance, such as the acknowldgement of in- debtedness, the offence charged and the condition, &c. ; a mere memo- randum that a recognizance in a certain sum. was taken is not suffi- cient.' . -ib fr. 3. What was said between the clerk .and 'the bail, on the taking of a re- cognizance, can not be proved by the certificate of the clerk. ib 4. A recognizance, conditioned for the appearance of M. at the next court of Sessions, to be held at the court house in the city of H., to be tried by a jury on two indictments for forgery, is to be construed as re- quiring the appearance of M. at the next court of Sessions to be held in the city of H. and not at the next court of Sessions to be there held at which a jury shall be summoned. The People v. Derby, 392 5. And where such a recognizance was taken in January, 1851, and at a court of Sessions held in June follow- ing, M. was defaulted and his recog- nizance declared forfeited and ordered to be prosecuted, and in an action on the recognizance, it appeared that a regular term of the court of Sessions had been held at that place in March of the same year, though no jury had been summoned to attend at said March term, it was held, that no breach of the condition of the recog- nizance bad been shpwn, and judg- ment was given for the defendant. ib 6. A recognizance taken by a justice of the peace, for the appearance of the accused to answer to a criminal charge, must require his attendance at the next criminal court having cognizance of the offence. The Peo- ple v. Mack, 567 7. Where a recognizance was condi- tioned for the appearance of the ac- cused at the next court of Oyer ana Terminer, to be held in the county in June then next, and it appeared that a court of Sessions was appointed to be held, and was in fact held in the same county, on the second Monday of May of the same year, at INDEX. 711 which a grand jury was required to attend and did attend and was sworn and heard complaints, such court of Sessions having cognizance of the offence charged, the recognizance was held void, and in an action upon it against the bail, judgment was given for the defendant, ib, . Where a .justice of the peace was authorized to hear a complaint aird take a recognizance only in the ab- sence of the police justice residing in the same town, and in an action on a recognizance taken by such jus- tice of the peace, it was alleged in the answer that such police justice was not absent from the town when such recognizance was taken, but no proof on that point was introduced on the trial, it was held that the legal presumption, in the absence of proof, was that the justice of the peace did not transcend his jurisdic- tion. i& RECORD. Ste SUMMARY CONVICTION. EVIDENCE, No. 34. VAGRANCY. REFERENCE 1. An action for a divorce for adultery was, under the Code of 1851, refer- rible. The People, v. McGinnis, 387 2. It is not necessary to a valid refer- ence of an action, that the parties, or their attorneys, subscribe a writing consenting to the reference, it is suf- ficient, if an order of reference is entered with their assent in open court; that is a "written consent." ib 3. A written consent, may be waived by appearing before the referee and participating iu the proceedings on the trial. ib I, An order of the court, on motion of the defendant's attorney, that the plaintiff pay a sum of money for costs and alimony, "on condition that the defendant's attorney stipu- late with the pUintiff's attorney to refer the whole issues in the ac- tions," &c ., where the stipulation is given and the parties proceed to trial before the referee, is a sufficient re- ference of the acf ion. ib ROBBERY. 1 . A robbery may be committed by extorting personal property from the person or in the presence of the owner, by means of threats of an unfounded criminal charge, where such property is obtained through fear produced by such threats. Iht People y. McDanidx. 198 2. Where, by means of a threat to ar- rest the prosecutor, on a charge of having been guilty of the crime against nature (the charge being groundless and known to be so to the defendant.) the prosecutor, through fear of such threatened arrest, was induced to deliver to the defendant $20 and a receipt for $13 owed by the defendant to the prosecutor, and to promise to pay the defendant $20 more, held, that the defendant was guilty of robbery in the second d- gree. ib 3. It is not necessary to constitute such offence that the charge against the prosecutor should be direct or should be made in unequivocal lan- guage. It is enough if the language used was intended to communicate such a charge and was so understood at the time by the prosecutor. it SEDUCTION. 1. To an indictment for the seduction of an unmarried female, under the act of 1848, the defendant interposed a special plea, alleging that at th- time of the committing the . charged, the defendant was, and five years previous thereto had bee. a married man, having a living: wilo and family, with which wife and family he was then living, all of which at the time of the alleged pro- mise and seduction was well known to the said female; on demurrer i 712 INDEX. succ special plea, the facts thus set up were held to constitute a good defence to the prosecution, and judg- ment was given for the defendant The People v. dlger. 333 2. It is not necessary, in drawing an indictment under the act to punish seduction as a crime passed March 22, 1848, to allege mutual or valid promises of marriage. It is sufficient to aver, in the language of the act. that the prosecutrix was seduced under promise of marriage. Per PARKEB, J. Crazier v. The People. 454 3. Nor is it necessary on the trial to prove a valid and binding promise of marriage. If the seduction was effected by means of a promise of marriage, though the promise was intended to be and was in fact a false pretence, and one which the seducer knew it was not in his power to per- form, the offence is nevertheless within the statute. ib 4. By " previous chaste character" the statute means personal chastity actual character not reputation. In the absence of proof such chastity will be presumed. But the pre- gumption may be overcome by spe- cific acts of lewdness proved affirma- tively, on the part of the defendant. ib 1 6. The evidence contemplated by the statute in support of the testimony of the female is not confined to proof of the fact of illicit intercourse, but extends to proof of other material facts, such as the illegitimacy of her child, the regular and frequent visits of the defendant, his being alone with the prosecutrix at late hours of night, and his confessions made to . others on the subject of the engage- ment to marry her, &c. But it is not sufficient to corroborate her as to immaterial facts contained in her testimony. t& 6. On an indictment under the " act to punish seduction as a crime." passed in 1848, the defendant may show that the prosecutrix was not of " previous chaste character" either by proving an actual want of chastity on her part, or by showing her ge- neral bad reputation for chastity. Per HAND, J. Saflordv. The Peo- ple. 474 7. Where the illicit intercourse, be- tween the prosecutrix and the de- fendant, began four or five years be- fore the finding of the^indictment, and continued until within two years, it was held not to be a case of seduction within two years previous to the finding ef the indictment, and not to be within the statute. ib SENTENCE. 1 . The statute requiring the court to limit the time of sentence of a con- vict, so that his imprisonment in the state prison shall expire between March and November, is merely di- rectory, and a failure to comply with such requirement does not render the sentence void. Miller v. Fin- Me, 374 2. If, by inadvertence in passing sen- tence, a requirement of the statute has been overlooked, the court may correct the judgment at the same term and before the sheriff has pro- ceeded to execute it. Such correc- tion may be made by expunging or vacating the first sentence and pass- ing a new sentence. ib 3. The disqualification consequent upon a sentence by which all the civil rights of the person sentenced are suspended, commences as does the running of the time of imprison- ment, from the moment of passing sentence. ib 4. The effect of vacating a sentence and pronouncing a new sentence at the same term, is the same upon the civil rights of the defendant, as if the first judgment had been reversed on error, and the defendant had been again convicted on a second trial ib 5. Where a defendant was sentenced, so that his term of imprisonment in the state prison would expire in De- cember, and afterwards, at the same term, the sentence was vacated and a new sentence was pronounced for INDEX. 713 a shorter term, but so that it would expire in October, and the defend- ant, after the first sentence and be- fore the second sentence, executed an assignment of his book accounts to another person, it was held that such assignment was valid. ib 6. Sentence of death pronounced by Walworth, circuit judge, upon Nel- son Thayer, Israel Thayer, Jr., and Isaac Thayer, at the Erie Oyer and Terminer, in April, 1825. The People v. Thayers, 596 7. The court of Oyer and Terminer. in which a criminal case has been tried and a verdict of guilty is given, ought not to delay the sentence for the purpose of having the decision reviewed by certiorari, except in cases of great doubt and difficulty; in other cases, the defendant should be left to his writ of error. Colt v. The People, 611 8. Even in capital cases, it can sel- dom be necessary to delay the sen- tence, the governor being authorized in these cases to take the opinion of the attorney general and of all the high judicial officers of the state, before he permits the execution of the sentence, and to suspend the exe- cution of the sentence, that the case may be brought before the Supreme Court and decided on a writ of error, if he or any of these officers enter- tain any doubt as to the legality of the conviction. ib See ATTEMPT TO COMMIT CRIMES. CONVICTION, 3. FELONY, 3. JURISDICTION, 2. SUMMARY CONVICTION. 1 . The power of summarily convict- ing offenders being in derogation of the common law, must be strictly confined to the special statute from which its force is derived. The People v. Phillips, 95 <. The restrictions and regulations relative to these convictions estab- lished by the higher courts in Eng- land before the revolution, were de- VOL. I. 90 claratory of the common law, and are binding in this state, unless they have since been repealed or altered by statute. ib 3. A record must be made up in every such case as a prerequisite to commit- ment; and trespass will lie against a magistrate who commits without having so done. The reasons of iu necessity are: 1. For protection of the accused-, that he may not again be convicted of the same offence. 2. For protection of the magis- trate: a proper record being corn- elusive evidence in his favor, in cases within his jurisdiction. 3. In the absence of an appeal, the only mode by which the accused can obtain a review of the sentence is by habeas corpus or certiorari founded on the record. ib 4. Greater certainty is required in such records than in indictments, because they are taken as true against the accused; and nothing will be presumed in favor of the commitment, but the presumption will be against it. ib 5. Although there is no jury trial, proceedings must be according to the course of the common law in trials by jury. i* 6. There must be first an information or charge, and the defendant must be summoned and have an opportunity to make his defence. ib 7. The evidence in support of the charge, must be such as the common law approves, unless specially di- rected otherwise by statute. ib 6. There must be a conviction, judg- ment and execution, all according to the course of the common law. t'6 9. The record is designed to show the regularity of the proceedings, and that the sentence is supported by legal evidence; therefore, everything necessary to support a conviction must appear upon it. It must set forth: 714 IXDEX. 1. The particular circumstances constituting the offence, to show that the magistrate has conformed to the law and has not exceeded his ju- risdiction. A mere statement of the offence in the terms of the stat- ute is insufficient. 2. The plea of the defendant, whether confession or denial. 3. The names of the witnesses, to show their competency. 4. That the evidence was given in the presence of the accused, that it may appear he had the opportunity of cross-examination. 5. The whole evidence both for pro- secution and defence so far as appli- cable to the charge, to show that every material allegation was sus- tained by proof. 6. An adjudication of the guilt of the accused, which must be exact and precise, judgment for too little being as bad as for too much. ib T /* TREATY. Stt FUGITIVES FROM JUSTICE. TRIAL. 1. Held, that upon the trial of an in- dictment for murder when death has ensued, the accused can not be con- victed of a simple assault and battery though he may be of manslaughter. Burns v. The People, 182 2. Where two or more persons are jointly indicted for felony and demand separate trials, they have not a right to elect which defendant shall be tried first. The People v. Mclntyre, 371 3. The order of the trials in such case is within the control of the district attorney, subject to the direction of the court ; and as a general rule, the court should not interfere to compel the district attorney in regard to it. t'6 4. The decision of the court, refusing to direct the district attorney in such case, is not the subject of review upon exception. tf 5. On a separate trial of a defendant jointly indicted with a codefendant for felony, such defendant can not improve his codefendant as a witness in his behalf. Such codefendant is not a competent witness for the de- fendant on trial till discharged from the record by nolle protequi, acquit- tal or otherwise. ib 6. It is a matter of discretion with the court to allow the district attor- ney to try prisoners who are jointly indicted, jointly or separately, as it seems best to comport with the ad- Aancement of justice; and the court has no power to correct any error in the exercise of that discretion upon a bill of exceptions. The People v. Stockham. 424 7. That discretion may be exercised by an order made on the motion of the district attorney, as well as on that the prisoner's counsel. ib 8. Writs of error in cases not capital, issue of course; but they do not stay the sentence, without an express or- der to that effect from a circuit judge, or a judge of the Supreme Court. Colt v. The People, 611 9. In capital cases, no writ of error can be issued unless allowed by the chancellor, or one of the justices of the Supreme Court, or a circuit judge, upon notice given to the at- torney general, or to the district at- torney of the county in which the conviction was had; and it is the duty of the officer to whom the ap- plication is made, to disallow the same, if he has no reason to doubt the legality of the conviction. ib 10. Where at the Oyer and Terminer the initiatory proceedings of a tria' for murder had been commenced calling the jurors as directed by la and only nineteen of the jurors ai> swered to their names, thereupon three hundred additional jurors wera summoned by the sheriff under di- rection of the court, and the court refused to delay the triaJ for two or INDEX. 715 three days, as requested by the pri- soner's counsel, to enable them to examine such list of additional ju- rors, it was held that the question to be decided on such application was a matter of discretion, and that no exception could lie to such refu- sal. Colt v. The People. 611 II. Held, also, that the summoning of so large a number of additional ju- rors was a matter of sound discre- tion, to be exercised by the court, with a view to get a sufficient num- ber who were qualified and compe- tent, from which a full jury could be obtained; and that such discretion should be exercised, upon the know- ledge which the court possessed, of the probable effects which a report of the facts, in the public papers and otherwise might have had, in bias- ing the minds of jurors, so as to disqualify them from serving ou the trial. ib See CHALLENGE TO JURORS. VAGRANCY. The first section of the act passed 12th April,l853 (Sess. Laws of 1853, page 353), prescribing and author- izing a general form for a record of conviction in case of vagrancy is not unconstitutional. Morrit v. The P&ple, 441 Whether the second section of that act which authorizes a discharge be- fore the expiration of the term, on an order jointly made by the com- mitting magistrate and one of the governors of the almshouse, is not unconstitutional and void, as infring- ing upon the pardoning power vest- ed in the governor by the constitu- tion, act 4, sec. 5. Quere? ib w WARRANT OF EXECUTION. See MURDER, 9. WITiVESS. 1. A person convicted of perjury is an incompetent witness, though he has been pardoned by the Governor and the pardon purports to re- store him to all his civil rights, the legislature having provided that such convict shall not be received us a witness till such judgment be re- versed. Such is the law though the exclusive power to pardon be vested in the Governor. Houghtaling v. Keldcrhouse, 241 2. Such incapacity to testify is the result of a rule of evidence and not a punishment of the offence. td See EVIDENCE. WRIT OF ERROR. 1. A motion to set aside a stay of pro- ceedings and to quash a writ of error, in a capital case, may be made by the district attorney; and the pri- soner'c counsel can not avail himself of the oojection that such motion should have been made by the attor- ney general. Carnal v. The People, 262 2. A justice of the Supreme Court has power to allow a writ of error, and to make an order staying proceedings, after conviction, in a capital case, ib 3. The mode of reviewing a decision of the Oyer and Terminer, as it existed previous to the adoption of the Re- vised Statutes, compared with the present practice. ib 4. What are proper considerations on an application for an allowance of a writ of error and a stay of proceed- ings, in a capital case, by Edmonds, J. Sullivan v. The People, 347 5. In determining whether a writ of error should be allowed and a stay of proceedings granted, to enable a prisoner to review before the Su- preme Court, an exception t tken at the Oyer and Terminer on a trial for murder, it is not necessary that the justice to whom the application ii 716 INDEX. made, should arrive at the positive conclusion that the court erred on the law; it is enough that the ex- ception is not deemed frivolous, and that it involves a gravely im- portant question, in regard to which there is a conflict of authority, and which remains unsettled by the courts of this state. The People v. Hendrickson, 396 Where a coroner's inquest was held on the day following that of the alleged murder, at which the pri- soner was cJFled by the coroner as a witness, and was sworn and exam- ined by him, under oath, before the coroner's jury, having been subpoe- naed to attend for that purpose, there being some circumstances tending to show that the prisoner was then suspected of the murder, though no charge had then been made against him, and in the subsequent trial of the prisoner at the Oyer and Ter- miner, the court permitted the coun- sel for the people to give in evidence the statements made by the prisoner on such examination, it was held there was sufficient doubt of the cor- rectness of the decision to warrant the allowance of a writ of error with a stay of proceedings. ib 1. A writ of error, for the purpose of reviewing a final judgment of the court of Oyer and Terminer, is a writ of right and brings before the Supreme Court the bill of exceptions with the transcript of the record. Saffbrd v. The People, 474 See JUHISDICTION, 3 JURY, 6. TRIAL, 8, 9. END OF VOLUME ONE. QC.I 70 " University of California Library Los Angeles This book is DUE on the last date stamped below. WY0220Q5 001 166763 SH1H9NV SOI JO