(jJnnipU fCatu i>rl|nnl Sjibrara ixiTiio^^-.'^??^" University Library KFN6100.A53C87 Digest of criminal decisions of the stat 3 1924 022 784 908 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022784908 DIGEST OF CRIMIML DECISIONS OF THE STATE OF NEW-YORK. p. H. C_0 WEN, COITHSELOB AT LAW. ALBANY : W. C. LITTLE & CO., LAW BOOKSELLERS. 1869. Entered according to Act of Congreas, in the year one thousand eight hundred and Bizty-niae, By W. C. little & Co., In the Clerk's Office of the District Court of the -Northern District of New York. STBRBOTYPBD AND PRINTED BT 6. M. DAVISON, SARATOGA SPRINGS. DIGEST OP CRIMINAL DECISIONS OF THE STATE OF JSTEW YORK. Abduction. JgJ- 1. The words "previous chaste character," as used in the act of March 20, 1848, (see 3 B. S. 5th ed. 943,) to punish abduction as a crime, mean actual personal virtue in the female ; and, to sustain an indictment, it is necessary that she should have been chaste and pure in conduct and principle, up to the time of the commission of the offense, or the commencement of the acts on the part of the accused which resulted in the abduction of the female. Carpenter v. The People, 8 Barb. 603. Su- preme Court, Monroe Gf-eneral Term, May, 1850. 2. The word '•'previous," in this connection, must be understood to mean immediately previous, or to refer to a period terminating immediately previous to the com- mencement of the guilty conduct of the defendant. id. 3. Although the female has previously fallen from vir- tue, yet if she has subsequently reformed, and become chaste, she may be the subject of the offense declared in the statute. id. 4. The prostitution intended by the statute was that of the female to the lustful appetites of men, at any place 4 ABDUCTION. where prostitution of the character common at houses of ill fame, or assignation, is practised. id. 5. In order to constitute the offense created by the act of March 20, 1848, the abduction of the female must be for the purposes of her indiscriminate meretricious com- merce with men. id. 6. Such must be the case, to make her a prostitute, or her conduct prostitution, within the act. id. 7. Prostitution is uniformly defined as being the acts or practice of a female offering her body to an indiaerimi- note intercourse with men. A prostitute is a female given to indiecriminate lewdness; a strumpet. As a verb, its definition is to offer freely to a lewd use, or to indiscrimi- nate lewdness. As an adjective, it means openly devoted to lewdness ; sold to wickedness or infamous practices, id. 8. It is not every act of illicit intercourse between the sexes that amounts to prostitution. A female may live in a state of illicit carnal intercourse with a man for years, without becoming a prostitute, or her conduct prostitution, in the sense of this law, and without being amenable to any human law. id. 9. Accordingly, where it was proved that the female, when she left her home, went voluntarily, and not at the instance of the defendant, and that she had since lived and cohabited with him, and with no one else, it was held that an indictment would not lie for her abduction. id. *i86?' 10. An indictment for abduction, under section twenty-six, article one, title two, chapter one, part four, of the Eevised Statutes, (3 E. S. 5th ed. 943,) will be sus- tained, though it be alleged therein that the female was taken for the purpose of prostitution, concubinage, and marriage, instead of making the allegation in the alterna- tive in the language of 'the statute, and will be supported by proof of a taking for either of those purposes. People V. Parshall, 6 Park. Grim. Sep. 129. Supreme Oouri, Mon- roe General Term, March, 1864.. 11. An additional allegation in such indictment, charg- ABOETION. 5 ing an intent to do further acts not mentioned in the statute, will not vitiate the indictment, but will be regard- ed as surplusage. id. 12. To constitute a "taking," under the statute, there must be some positive act to get the female away from the person having the legal charge of her; mere seduction does not amount to a " taking." id. 13. To establish a purpose of prostitution, it must be shown that there was a design to introduce her to an indiscriminate criminal intercourse with men. id. 14. A purpose of concubinage will not be inferred where the defendant was a married man, living with his wife, and keeping house at the place where the offense was charged to have been committed, and when the girl was under fourteen years of age, and physically undeveloped, to the knowledge of the defendant; nor under such cir- cumstances, and without further proof, can there be any inference of a purpose of marriage. id. Aboktion. f^; 1. Under an indictment for producing an abortion of a quick- child, which, by the revised statutes, is a fehny, the prisoner may be convicted, though it turn out that the child was not quick, and the offense, therefore, a mere misdemeanor. People v. Jackson, 3 Hill, 92. Supreme Uourt, May, 1842. 2. The provision in 2 E. S. 702, § 27, has not affected the common law rule respecting the right to convict of an inferior offense, on an indictment for a superior one. (See 3 R. S., 5th ed., 940, 975.) id. 3. The English doctrine that, under an indictment for a felony, the prisoner cannot be convicted of a misde- meanor, proceeds upon peculiar reasons, which have no foundation in the criminal law of this state. id. 4. Under an indictment for murder, the prisoner may be convicted of manslaughter. So, the prisoner may be 6 ACCESSOET. convicted of simple larceny, under an indictment for bur- glary or robbery. «'^- Sr 5- Form of an indictment for manslaughter in the second degree, in procuring an abortion, under the act of 1846, chapter 22, section 1. (3 R 8., 5th ed., 940.) Oohel ■V. The People, 5 Park Orim. Bep. 348. Supreme Court, New York Greneral Term, May, 1862. 6. An indictment for manslaughter in the second degree charged the killing of the quick-child of M. A. B., by instruments used on her body, for the purpose of procur- ing an abortion. The jury found the prisoner not guilty of manslaughter in the second degree, but guilty of a misdemeanor, in employing instruments and other means "upon the person of a pregnant woman, with intent thereby to procure the miscarriage of such woman." Seld, that the verdict was defective, in not finding that the offense was committed upon the person named in the in^ dictment, and the judgment rendered thereon was, for that reason, reversed. id. ^1864.' 7. On the trial of an indictment for attempting to procure an abortion, evidence to prove that the prosecu- trix, who had been examined as a witness, for the people, had had sexual intercourse with other persons than the defendant, is inadmissible. GricMon v. The People, 6 Park. Orim. Bep. 363. Oourt of Appeals, Albany, 1864. ACCBSSOKT. •J^f; 1. An accessory, at common law, cannot be tried before the trial and conviction of the principal offender. Baron v. The People, 1 Park. Orim. Bep. 246. Supreme Oourt, Monroe General Term, June, 1851. 2. The only change in the law, in this particular, is by our statute, (2 K S. 727, § 49; 3 R. S., 5th ed., 1019,) which declares that "an accessory, before or after the fact, may be indicted, tried, convicted and punished, notwith- standing the principal felon may have been pardoned or otherwise discharged after his conviction." This statute ARREST. 7 is substantially the same as the English statute of Anne, both of which were passed to meet a rule of the old com- mon 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 principal, any more than the common law. It only allows it in cer- tain cases after the conviction of the principal felon. id. 3. An accessory may be indicted and tried in the county where the offense of the accessory was committed, not- withstanding the principal offense was committed in another county, but the accessory cannot be indicted and tried in the county where the principal offense was com- mitted, unless his offense, as accessory, was committed there. id. Abbbst. °5J- 1. A private person cannot, of his own authority, arrest a person who has been engaged in an affray or breach of the peace. Phillips v. Trull, 11 J. B. 486. Supreme Court, October, 1814. , 2. But, during the affray, any person may, without a warrant from a magistrate, restrain any of the offenders, in order to preserve the peace. id. 3. All persons whatever, who are present when a felony is committed, or a dangerous wound given, are bound to apprehend the offenders. id. *^^^' 4. The privilege of arrest does not apply to a pris- oner on a criminal charge, who has been discharged from duress of imprisonment. William Shotwell's case, 4 City Hall Recorder, 75. Before Golden, Mayor. New York, May, 1819. l^,' 5. It is not only the right, but the duty, of every citizen, without a warrant, to use all lawful means in ar- resting any one commiitting a breach of the peace. Hugh 8 AREEST. Wallace's oasBy 4 Oiti/ Sail Beeorder, 111. Before Golden, Mayor. New York, July, 1819. iS, 6. A peace officer is not bound to arrest and detain a man as. a felon, merely upon the representation made .by another that he is a thief; especially when the goods alleged to be stolen are not in his possession. John Wark's ease, 5 Qity Hall Beeorder, 4. Before Golden, Mayor. New York, January, 1820. 7. The defendant in this case, a marshal, was indicted for a misdemeanor at common law, in refusing to arrest a woman who had comnlitted a felony in stealing a coat, and for suffering and permitting her to escape ; the de- fendant well knowing that the coat was stolen. It appeared on the trial, from the testimony of J. C, that he saw, at the corner of Leonard and Orange streets, in the city of New York, a woman in possession of a coat, followed by a little girl who charged her with having stolen it. IJe took away the coat, having found in the pocket papers belonging to Dr. Kissam, and then left it at his house. The woman refused to go with the witness to the police. He met one White, on whom he called for assistance, but he referred the witness to the defendant, .then passing, as an officer, to whom he related the business, and informed him that he believed the coat had been stolen. The de- fendant told him to go to the police and get a warrant. The witness requested him to keep the woman until he returned, and left her in his charge ; but, in the absence of the witness, the defendant suffered her to escape. The court, in pronouncing their decision, said that they had no doubt but that upon a hue and cry, when property had ' been stolen, an officer was bound to arrest the offender. But in this case no such question arose. The property was not with the woman charged with the felony, at the time the witness made the request to the officer, but was left at the house of the witness, who informed the defend- ant that he believed it had been stolen. In the opinion of the court this representation did not afford sufficient AERBST. 9 evidence .to induce the defendant either to arrester detain the woman. The defendant was acquitted. id. \l^' 8. A magistrate has a right, on his own view, and without a Varrant, to arrest one or more, while engaged in committing a breach of the peace, but not after .the affray has entirely subsided. McKay, Rogers and MoManus' case, 5^ City Sail Becorder, 95. Before Jay, Beeorder. New York, July, 1820. SiS: 9. Any person has a right to arrest a felon, and bring him before the proper authority, and it is the duty of every citizen to do so ; but if A. arrests B. on a charge of passing upon him a counterfeit note, and takes her into his house, and detains her there for three-quarters of an hour, and offers to release her if she will pay him for the note, it is an assault and' battery and false imprisonment. The duty of a citizen, in such a case, would be to take her immediately to the proper authority. People v. McArdle, 1 Wheel, cases, 101. Biker, Becorder. New York, Decem- ber, 1822. fiJfg 10. A watchman has no right to arrest a female whom he suspects to be a woman of ill-fame, between 10 and 11 o'clock at night, merely for coming up to him and calling " cousin ; " but he may arrest on suspicion of felony, or actual breach of the peace. People v. Bush, 1 Wheel, cases, 137. Biker, Becorder. New York, January, 1823. fa^: 11. A manual touching of the body, or actual arrest, is not necessary to constitute an arrest and impris- onment. It is sufficient if the party be within the power of th^ officer, and submits to the arrest. Bissell v. Oold, 1 Wend. 210. Supreme Court, August, 1828. {J^J- 12. An arrest of a felon may be justified by any person, without warrant, whether there be time to obtain one or not, if a felony has in fact been committed by the person arrested. Hally v. Mix, 3 Wend. 350. Supreme Court, October, 1829. 13. K an innocent person is arrested upon suspicion, i)y 10 AKEEST. a private individual, such individual is excused if a felony in fact was committed, and there was reasonable ground to suspect the person arrested. id. 14. But if no felony be committed by any one, and a private individual arrest, without warrant, such arrest is illegal ; an officer, however, would be justified if he acted upon information from another which he had reason to rely on. id. 15. A constable may, ex officio, and without warrant, arrest a breaker of the peace, and bring him before a jus- tice. It seems, however, that this should be done within a reasonable time after the affray. Taylor v. Strong, 3 Wend. 384. Supreme Court, Oetoher, 1829. {'s^l; 16. Semhle, that a regular officer, making an arrest within his proper district, is not bound to show his process, even though demanded. Bellows v. Shannon, 2 Sill, 86. Supreme Court, October, 1841. 17. He should, however, either before or at the moment of arrest, make known in some form that he comes in his official character, and not in that of a wrongdoer; as otherwise he may be lawfully resisted. id. 18. And after the party has submitted to the arrest, the officer, if required, is bound to inform him of the substance of the warrant or process. id. 19. If an. officer, in making a forcible arrest, conceals the fact that he is acting under process, without any law- ful excuse for so doing, quere, whether he can afterward use the process for the purpose of justifying the arrest, id. {See Frost v. Thomas, 24 Wend. 418, and Arnold v. Steeves, 10 Wend. 516.) fjl": 20. A private person is permitted by law to arrest without warrant, and take before a magistrate, one who has committed a felony; but for mere misdemeanors, after their commission, an arrest can be only made upon a war- rant from a magistrate. People v. Adler, 3 Park. Orim. Bep. 249. Supreme Court, Monroe Greneral Term, December, 1856. AEEEST. 11 21. The common law rule that petit larceny is a felony has not been changed by the Revised Statutes, but remains in force. in respect to all questions controlled solely by the common law. id. fal5: 22. It is no ground, either for quashing an indict- ment or discharging the prisoner from arrest, that before the finding of the indictment, and after the issuing to the officer, by a police justice, of a warrant for his arrest, by an agreement between the officer and some person in Canada, the prisoner was forcibly brought from Canada to the line of this state and there delivered to such officer, in arrest, under the warrant. People v. Bowe, 4 Park. Qrim. Rep. 253. Superior Court of Buffalo, Before Clinton, «/., February, 1858. fj's^; 23. Any person may, without warrant, arrest an- other who has committed a felony, either at the time it is committed or subsequent thereto ; and a justice of the peace or constable, may, in virtue of his office, and with- out warrant, not only arrest a person for a felony, but also for any breach of the peace or misdemeanor less than a felony, committed in his presence. Willis v. Warren, 17 How. Prac. Bep. 100. JVew York Common Pleas, Special Term, Before Brady, J., February, 1859. 24. "Where an arrest for gambling is made by a justice of the peace and his attendants, the seizure of the gam- bling implements may rightfully and legally be retained in the custody of the law until after trial and conviction. And after conviction, not before, such implements may be destroyed, under the act of 1857. . id. Sept- 25. If a felony has actually been committed, an officer, in arresting the offender or preventing his escape, will be justified in taking his life, providing there is an absolute necessity for his doing so ; it is otherwise in case of an arrest for a misdemeanor. Oonsaddy v. The People, 5 Park. Grim. Bep. 234. Supreme Court, Orange General Term, September, 1862. 26. Where no process has been issued, a homicide can 12 AEREST. only be justified, even by an officer, by showing the actual commission of a felony, and that there was a positive ne- cessity to take life, in order to arrest or detain the felon. id. 27. It is not a defense to an officer, in such a case, to show that he had reasonable ground to believe that the deceased would otherwise accomplish an escape. id. is 28. "Where an officer arrests a person for felony, on telegraphic or other satisfactory dispatches, without warrant, it is his duty, equally as if the arrest had been made by warrant, to take the arrested party, without any unnecessary delay, before some officer who can receive such proofs as may be offered, or, if the circumstances will justify it, hold him for further examination. In the matt&r of Henry, 2'd How. Prac. Rep. 185. Supreme Court, at Oharnbers, before Bacon, J., Juris, 1865. 29. If this is not done with reasonable diligence, the party arrested can apply for a habeas corpus, calling on the officer to show cause why he is detained. And, on the return of the writ, the rule is that where the arrest is upon suspicion, and without warrant, proof must be given to show the suspicion to be well founded. If no such proof is offered, it is the duty of the officer to discharge the party. id. 30. On the return of the writ no affidavits, nor any other proof of the alleged larceny was furnished, except a telegraphifc dispatch that Henry had fled from Chicago, after having robbed his landlord of $525 in money, and letters signed by the chief of police, at Chicago, and other dispatches, the last indicating that a requisition had been obtained. Henry had been held in custody from the 25th of May to the 9th of June. In. the mean time no warrant had been issued, nor had Henry been brought before a magistrate : Held, that no proof was shown that the suspicion was well founded, and he was discharged, id. AESOK 13 Akson. JJ^J: 1. If a person be indicted for burning tbe dwelling- house of another, if it be, in fact, tbe dwelling-house of such person, tbe court will not inquire into the tenure or interest of the occupant. The People v. Van Blarcom, 2 J. B. 105. Supreme Court, November. 1806. ^°i5: 2. The prisoner, in this case, was indicted for ar- son, and it appeared upon the trial, at the oyer, that the house, alleged to have been burned, was burned in part only, and not entirely consumed. The fire and combusti- ble matter had been placed by the prisoner on the kitchen stairs, two or three of which were, in part, consumed. The family, consisting of a number of persons, were asleep at the time in the upper part of the house ; and, on being alarmed by the noise of the fire, awoke, and finally extinguished it. No other parts of the house were con- sumed. The prisoner was convicted; and the question reserved for the opinion of the Supreme Court was, whether this was a safficient burning of the dwelling-house to justify a convieton under the statute. Chief Justice Spencer, in deliv- ering the opinion of the court, said, in substance, that the expression in the act, " any inhabited dwelling-house," clearly implied that to constitute the offense contained in that sec- tion, it was necessary, not only that the house should be a dwelling-house, but that it should be inhabited at the very time it was set on fire. This construction of the statute was unavoidable from the natural import of its language, and had been adopted by this court. As to the degree of burn- ing required to consummate this offense, there could be no doubt, but that to set fire, willfully, to an inhabited dwelling-house, so that any part is ignited, or caught on fire, though it afterward be extinguished or go out of itself, is a sufficient " burning" within the statute. This doctrine is supported by the current of authorities in England and is the law of this country. Rose Butler's case, 4 City Hall Recorder, 77. Supreme Court, New Torh, 14 AESON. May, 1819, (This case is also reported in 16 Johns. Rep. 20a.) S: 3. To set fire to a jail, for the purpose of an escape, is not arson. Isaac Goiter al and Peter GrarmeVs cases, 5 City Eall Recorder, 71. Supreme Qowrt, New Torh, May, 1820. (This case is also reported in 18^ J. R. 115.) 4. Though a jail is an inhabited dwelling-house, within the meaning of the first section of the " act declaring the punishment of certain crimes," yet, for a prisoner, who may be confined in a jail, to fire it, with an intention to escc^e, is not a willful burning within the act. id. 5. To constitute such willful burning, the prisoner must set fire for the purpose of consuming the building. id. 6. Chief Justice Spencer, in delivering the opinion of the court, said : The law relating to arson is peculiar. It is true that any ignition of an inhabited dwelling-house, with an intent to consume, where the fire is either extin- guished or goes out of itself, is a sufiicient burning to constitute this crime ; and it is equally true, and so it has been decided by this court, in the case of Van Blarcum, that a jail is an inhabited dwelling-house, within the meaning of the act. Every part, therefore, of this offense has been committed by the prisoners, unless it appears, from a fair construction of the act, that, according to the facts in the case, they are not guilty of willfully burning the jail. The case stands on very peculiar grounds. It manifestly appears that it was the intention of the prisoners to burn for the purpose of effecting an escape. The at- tempt to escape is not a felony, either at common law or under the statute ; and, according to our construction of the statute, we think that it would be straining the doc- trine too far to decide that firing of a prison, by a prisoner, for the purpose of effecting his own escape, amounts to arson. ^-^^ Tsa' 7. In a case of arson, and in all cases where the punishment is severe, the proof ought to be satisfactory, and, in such cases, positive proof or strong presumptive AESON. 15 testimony, is material and indispensable. People v. Davis, 1 Wheeler's Cases, 235. Hiker, Recorder. New York, March, 1823. fIJg 8. In an indictment for arson, the house or build- ing set fire to or burned must be described as the house or building of the person in possession ; and was accord- ingly held in this case, where the building burned was alleged, in the indictment, as the building of the owner, and the proof was that at the time of the committing of ■the offense, it was in the possession of a tenant, that the accused could not be convicted. People v. Gates, 15 Wend. 159. Supreme Court, January, 1836. {J^; 9. If an offense charged in an indictment be of a local nature, whatever is stated by way of describing the place where it was committed, must be proved precisely as laid. People v. Slater, 5 Hill, 401. Supreme Court, July, 1842. 10. Accordingly, where an indictment for arson de- cribed the building as situated in the sixth ward of the city of New York, and it turned out, in evidence upon the trial, that the building was in the^/fA ward, held, that the prisoner was entitled to an acquittal. id. \^_ 11. In an indictment under 2 R. S. 698, § 3, (see K S., 5th ed., vol. 3, 983,) for attempting to commit an offense, the particular manner in which the attempt was made is immaterial, and need not be alleged. People v. Buxh, 4 Hill, 133. Supreme Court, January, 1843. 12. On the trial of an indictment under the above stat- ute, for an attempt to commit arson, it was shown that the prisoner solicited one K. to set fire to a barn, and gave him materials for the purpose; held, sufficient to warrant a conviction, though the prisoner did not mean to be present at the commission of the offense, and K. never intendfed to commit it. id. 13. Semble, that merely soliciting one to commit a felony, without any act being done, is sufficient to warrant a conviction under the statute. id. 16 ARSON. Yiil 14. A tenant who sets fire and burns a barn owned by another person, but of which such tenant is in the actual possession, cannot be convicted of arson under 2 R. S. 667, § 4. (See 3 R. S., 5th ed., 946.) People v. Smith, 3 How. Prao. Bep. 226. Supreme Court, Saratoga Creneral Term, December, 1848. 15. A mere cropper, taking land on shares, with a right to secure his crops in the barn on the premises, has no estate in the barn, nor such possession as to defeat an in- dictment against him for arson in burning such bam. id. 16. In such case it is proper to allege in the indictment that the barn burnt was the barn of the landlord. id. '^^- 17. It is sufficient, in an indictment for arson in the first 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, § 4. See 3 R. S., 5th ed., 936.) People V. Orautt, 1 Park. Crim. Rep. 252. Oneida Oyer and Terminer, June, 1851. 18. A persoji is presumed to mtend the ordinary conse- quences of his acts ; and it devolves upon a person charged with crime to rebut this presumption by evidence of a different intent. id. 19. A design to produce death is not necessary to con- stitute the offense of arson in the first degree, either at common law or under the statute. id. 20. It is immaterial whether the person charged with this offense has knowledge that the building burned has usually, or at any time, been occupied by persons lodging therein. id. {^il 21. 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. id. 22. Arson is an offense against the property of another. AESON. 17 and a person cannot become guilty of arson in the first degree by setting fire to bis own bouse. People v. Hen- derson, 1 Park. (Mm. Bep. 560. Supreme Court, Orange General Term, July, 1854. 23. To convict a person of arson iu tbe tbird degree, under section 5, 2 R. S. 667, (see R S., 5tb ed., vol. 3, 946,) it is necessary to allege that tbe bouse was insured against loss or damage by fire, and tbat tbe offense was committed witb intent to defraud tbe insurance company ; under tbat section a person may be convicted of burning bis own dwelling-bouse, but it is still an offense against tbe property of another, the object of the crime being to defraud the insurer, who has an interest in the preserva- tion of the property. id. 24. "Where an indictment for arson charged that tbe prisoner, in tbe night time, feloniously set fire to his own dwelling-bouse, in which there were at the time divers human beings, with intent to burn tbe said dwelling-house, and with intent thereby to defraud the Pougbkeepsie Mutual Insurance Company, on demurrer it was held that the indictment was not suflicient to bring the offense within the first degree, because it was not tbe dwelling- bouse of another, and it was not suflicient under the third degree, because it was not alleged in tbe indictment that the property was insured, and the indictment was adjudged to be bad. f^^; 25. To convict a person of arson in tbe second degree, under section two of article one, title three, chap- ter one, of part four of tbe Eevised Statutes, (3 R. S., 5th ed., 946,) by which it is enacted that " every person who shall willfully set fire to or burn, in the night time, any shop, warehouse, or other buildings, not being the subject of arson in the first degree, but adjoining to or within tbe curtilage of any inhabited dwelling-house, so tbat such bouse shall be endangered by such firing, shall, upon con- viction, be adjudged guilty of arsoti in the second degree;" 2 18 AESON. it is necessary to prove that the building set fire to actually touched an inhabited dwelling-house, or that it was within the curtilage thereof. Adjoining, in the section quoted, signifies actual contact. Peverally v. The People, 3 Park. Crim. Bep. 59. Supreme Court, New York General Term, February/, 1855. 26. Form of an indictment for an attempt to commit arson in the second degree, by finng a warehouse adjoin- ing to an inhabited dwelling-house. id. ^i^g 27. The defendant was indicted for the crime of arson in the first degree, in setting fire, in the night time, to an inhabited dwelling-house, the property " of Amelia Asselin," the penalty of which is death. On the trial, the proof established only the crime of arson in the third de- gree, the burning of the goods and farniture in the build- ing, with intent to prejudice the insurance company. The prisoner insisted that the indictment which he was called upon to answer did not charge him with the oflfense of which he was found guilty, and that he was virtually con- victed, therefore, without being indicted, against the expressed declaration of the constitution. The district attorney admitted that the proof, although sufficient to establish the burning of the goods, was insufficient to show that any portion of the building was burnt. He claimed, however, and the court so held, that the prisoner having been charged with a higher, might, notwithstand- ing, be convicted, not of a lesser offense, but of a lesser degree of the same offense. Roosevelt, J., said, if the stat- ute in relation to offenses " of different degrees," is in that respect constitutional, such would seem to be the inevitable result. Arson in all its grades, whatever may before have been its common law character, is now a statutory offense, and "all the common law punishments" formerly applicable to it, are expressly "prohibited." (2 R S. 701, § 17. See 3 R. S., 5th ed., 986.) It is de- clared by the statute to be an offense of four degrees : the first capital, the other three subject only to imprison- AKSON. 19 ment. The first degree, it is admitted, corresponds with the charge in the present indictment, and the third degree with the ofifense actually established. The crim'e charged was arson by statute, and the crime proved was arson by statute. The essence of the act, in either case, was the unlawful setting on fire to combustible materials, whether houses or merchandise, endangering the lives or pecuniary interests of others. So, at least, the legislature have seen fit to regard it. For, instead of creating diflferent crimes, they have divided the cases into different degrees of the same crime, declaring at the same time that " upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, (the different degrees of arson are prescribed in it,) the jury may find the accused not guilty of the offense in the degree charged in the indict- ment, and may find such accused person guilty of any degree of such offense inferior to that charged in the indict- ment, or of an attempt to commit such offense." (3 R. S. 5th ed. 989.) Our decision, therefore, is that the excep- tions taken at the trial be overruled, and that the proceed- ings be remitted to the court in which the trial was had, with directions to proceed and render judgment according to law. People v. Francis Didien, 17 Sow. Prac. Bep. 224. Supreme Court, New York Q-eneral Term, February, 1859. (This case is also reported in 4 Park. Crim. Eep. 593.) Sept. 28. Arson in the first degree, under 2 R. S. 657, 659, (3 E. S. 5th ed. 936,) may be committed by one in burning his own dwelling-house. Shephard v. The People, 19 N. Y. Bep. 537. Court of Appeals, September, 1859. 29. A dictum to the contrary in The People v. Gates, 15 Wend. 159, and the decision in People v. Henderson, 1 Parh. Crim. Bep. 560, overruled. id. , 30. Where a part of the house is occupied by a tenant habitually lodging therein at night, and the residue by the owner, the building is well described in the indictment as the dwelling-house of such tenant. id. 31. Upon the trial of one for burning his own dwelling, 20 AESON. evidence is Cotnpetent tha,t lie bad effected an inEuranee for more than its value. i^- 32. So 'also that the prisoner lived on bad terms with bis Wife who was burned with the building. id- ^f^- 33. On the ttial of an indictment, under 2 E. S. 698, § 3 ; 3 E. S. 5th ed. 983, for an attempt to commit arson, it appeared that the prisoner having prepared cam- phene and other combustibles, arid placed them in bis room, solicited McD. to use them in burning a barn of 8. D., and promised to give him a deed of land if he would do St), it was held that the proof was sufficient to warrant the conviction. McDermott v. The Peo-ple, 5 Par^. Grim. Mep. 102. Supreme Court, Monroe Creneral ietm, March, 1860. 34. Form of an indictment Tor an attempt to commit arson in the third degree. id. ffs^o*- 35. Under an indictment charging only arson in the first degree, the prisoner cannot be convicted of the third degree of arson in willfully burning goods with intent to prejudice an insurer of them. Dedien v. The People, 22 N. T. Bep. 178. Oduft of Appeals, September, 1860. 36. The statute, (2 E. S. 702, § 27; 3 E. S. 5th ed. 989,) allowing a conviction of an offense in any degree inferior to that charged in the indictment, applies only where the higher grade includes the lesser, with additional circum- stances, or some special intent, and whe^e, after rejecting the improved allegations, enough remains in the indict- ment to describe with reasonable certainty an inferior degree of the offense, according to the statutory defini- tion, id. 'iml: 37. If a person set fire to a building, and thereby an adjoining building is set fire to or burnt, he can be indicted and convicted of setting fire to the latter. Hen- nesiy V. The People, 21 How. Prac. Rep. 239. Supreme &0urt, New York Creneral Term, June, 1861. ' 38. Where the prisoner was itidicted for arson in the ABSON. 21 first degree, for feloniously setting fire in , the nigjjt Ijfme to the inhabited dwelling-house of Caroliiie Brown, N'o. 35 Goerck street, in the city of New York, and the evidepce tended to show that the prisoner set fire to hjs own store, liTo. 33 Goerck street, in which he had goods insui'e4, and that the fire communicated to the dwelling-house 'Eo.^5, adjoining, which was assumed on the trial to be inhabited, held, that the jury were authorized to disregard the cir- cumstance of the dwelling-house l?ejng inhabited, andi to find a verdict of arson in the third degree, Allen, J., dissenting. id. ^°]'; 39. Under an indiptment for arson in the fij?st degree a prisoner may be convicted of arson in the third degree, when he is proved to have set on fire a hou^e, as well as the goods in it, for the purpose of preju4icing the insurer. Freund v. The People, 5 Park. Qrim. Rep. ,198. Supreme Court, Jflew York Creneral Term, N^aveinber, 1861. Sea. 40. A prisoner may be convicted of arson in titie second d,egree, as described in 2 E. S. 667, § 2; 3 p,. S,. §th ed. 946, under a count charging that offense, if suftained by the evidence, although the facts proved would ai;ithor- ize his conviction for arson in the first degree under an indictment properly charging the higher offense. People V. Burkin, 5 Park. Grim. Mep. 243. Supreijne Court, Jeffer- son General Term, October, 1862. 41. The words, " not being the subject of arson in* the first degree," used in the statute defining arson in the sec- ond degree, (section 1,) were intended to distinguish between different degrees of the same general offense with a view to graduate the punishment, and do not create an exception which the pleader is required to negative in charging the offense of arson in the second degree. id. S|°- 42. The act, (ch. 410, of I860,) was ex post faeto, and void so far as it attempted to change the punishn^ent for arson in the first degree committed previous to , its passage. Shepherd v. The People, 25 N. T. Eep. 406. Court 22 AESON. of Appeals, December, 1862. (This case is also reported ia 24 How. Prac. Rep. 388.) 43. Whether the act is to be construed as retrospective in this respect, doubted, per Sutherland, J., the court not passing on the question. id, 44. That is an ex post facto law which increases the punishment denounced against the act when committed, or which punishes an offense in a manner in which it was not punishable when committed, irrespective of its com- parative severity, unless the new punishment is one and the same in kind as the old, but less in degree, id. ^^^[ 45. When it was proved that the prisoner gave matches to D., and hired him to set fire to the prisoner's shop, in which the prisoner had goods and chattels which were insured, and D. set the shop on fire, the prisoner not being present, but the fire was extinguished, and neither the shop nor the goods and chattels were consumed, held, that the prisoner was properly convicted of an attempt to burn the shop and goods, with intent to prejudice the insurer. Makesey v. The People, 6 Park. Crim. Rep. 114. Supreme Court, Broome General Term, May, 1867. 46. In an indictment for such an offense it is not neces- sary to state the particular manner in which the attempt was made ; and a general allegation that the prisoner and D. did feloniously and willfully set fire to and burn the prisoner's goods and chattels in the shop, which were insured, &c., is sufficient. id. 47. It was alleged in the indictment that the property was insured "by the North American Fire Insurance Company," and it was not alleged that such company was a corporation, or had the right to insure the property. Held, that the allegation was sufficient to authorize the introduction of evidence on the trial to prove the incorpo- ration, and the right to insure the property. id. 48. It was also held that D., who had been indicted jointly with the prisoner, and had pleaded guilty, was a ASSAULT AND BATTEET. 23 competent witness for the prosecution against his co- defendant, id. 49. The court charged that if the prisoner made an agreement with D. that the latter should set fire to the shop, and had given him matches with which to do the act, and told D. to set the shop oh fire, and D. did so, with intent to burn the insured goods and chattels of the prisoner, he was guilty of an attempt to burn the goods and chattels, held, that the charge was correct. id. Assault and Battery. i°So. 1- Where a person has been convicted on an indictment for assault and battery, and the attorney-gene- ral moved for judgment, but showed no circumstances attending the ofiense by which the court could judge of the degree of punishment which ought to be inflicted, a mere nominal fine was imposed. People v. Qochran, 2 Johns. Cases, 73. Supreme Court, October, 1800. //iJ: 2. On an indictment for an assault and battery, the trial will not be stayed because a civil suit is pending to recover damages for the same assault and battery, though it seems judgment, after conviction, may be stayed until -the decision of the civil suit. People v. Judges, ^c, of Crenesee, 13 J. R. 85. Supreme Court, January, 1816. ^^^^^' 3. Every schoolmaster has a right to correct his scholars with moderation, and where the correction is mild, without passion, and not exercised with any degree of severity, he is protected in law. John Morris' case, 1 City Hall Recorder, 52. Before Riker, Recorder. New York, March, 1816. 4. The father of a scholar has a right to go into the school to make inquiry relative to the truth of the repre- sentation made in regard to the punishment of his child, by the master, but he has no right to enter the school in a passion, and commit a breach of the peace ; and where the father commences the assault upon the master and is overpowered and thrown on the floor, and is suffered to 24 ASSAULT AND BATTERY. rise, and again commences a contest and beats the master, he is guilty of an assault and battery, because a man has no right to employ more force than is absolutely necessary in repelling an attack. id. fl/g] 5. An officer has no right, by virtue of a warrant issued from one of the ward courts of the city of New York, to seize a man against whom he has such warrant, in his own house, drag him down, stamp him under foot, and kick him severely, even should the person so abused happen to be intoxicated. John Bartlett's case, 1 Oity Hall Beeorder, 87. Before BadcKff, Mayor. New York, May, 1816. 6. On the trial of an indictment for assault and battery, evidence that the prosecutor is an habitual drunkard is inadmissible, although it may be shown he was drunk at the time of the affray. id. ■l^JI; 7. A man who is in peaceable possession of a tenement, though holding over after the expiration of his term, is justifiable in making use of as much force as may be necessary in repelling an attempt made by any person, without the aid of legal process, to dispossess him by force. MicMe and wife's case, 1 Oity Ball Beeorder, 96. Before BadcUff, Mayor. New York, June, 1816. 8. Though a person who has been forcibly ousted from a naked possession by the owner of the premises, cannot maintain trespass, yet in retaining such possession he has a right to repel force with force. id. {^e: 9- Where, in a quarrel or affray, a man who is a wrongdoer from the commencement makes use of a knife or other unlawful weapon, in attacking his adversary, he is guilty of an assault and battery with an intent to com- mit murder, if by the common law or the statute it would have been murder had the death of his adversary ensued by reason of such an attack. Henry O'Blenis' case, 1 City Hall Beeorder, 117. Before BadcUff, Mayor. New York July, 1816. fsfo*: 10. A citizen who, at a late hour of night, officiously ASSAULT AND BATTEEY. 25 and insolently interferes in a dispute between a watchman and a woman, in which she is not insulted, (her husband being present,) and assaults and otherwise treats such watchman with insolence, is liable to be , placed in the watch-house, and ' convicted of an assault and battery. William Farquhar and, others' cases, 1 C% Hall Meeorder, 150. Before Badcliff, Mat/or, New York, Septe^ber^ 1816. 11. A coachman in possession of a coach in which there are pistols or other instruments, adapted to the purpose of fighting a duel then in contemplatioii, who; assaults a con- stable while engaged in taking out of the coach such instruments, and wrests thepi from, his bands, knowing him to be an officer, is liable to a prosecution for an assault and battery, though the eosastable does not show any war- rant or authority ; for; piiblio oncers engaged in ■ the faith- ful discharge of their duties, in preventing a bjeach of the peace, are protected by law. Oornelius J^nsar's case, 1 Gity Hall Becorder, 150. Before Badeliff, Mayor. New York, September, 1816. SS; 12. The master of a vessel may inflict moderate correction for sufficient cause upon his seamen, but should he exceed the bounds of moderation, and be guilty of cruelty or unnecessary severity, he will be liable as a tres- passer. Brown and others v. Howmd, 14 J. B. 119. ;S'm- freme Qourt, January, 1817. fgfj- 13. B., the owner or a meeting-house, held meet- ings therein, and noises and disturbances frequently occurred to the annoyance of his hearers. To detect cer- tain lads who fired squibs or crackers in the church, the son of B., aged thirteen, stood up durjng divine service before H., one of the audience, and whispered to another boy to go and tell the sexton something concerning the squib boys. H. tapped the son of B. gently on his head with a cane, and told him not to make a noise. In a prosecution against H. for an assault and battery on the boy, it was held that H. was not guilty. Patrick Hildreih's 26 ASSAULT AND BATTEEY. ease, 2 Citi/ Hall Beeorder, 26. Before Badcliff, Mayor. New York, February, 1817. 14. One in peaceable possession has a right to make use of so much force as may be necessaiy to enable him to retain such possession or to remove an invader. Edward 0. Quin's ease, 2 City Hall Beeorder, 28. Before Badcliff, Mayor. New YorTc, February, 1817. 15. An assault and battery cannot be compounded by the parties, unless through the special interposition of the court, nor will the court consent to such compounding without the approbation and consent of the district attor- ney after indictment; and where an assault and battery, which in the judgment of the district attorney was of an infamous nature, had been thus compounded, and the costs paid to the clerk, it was held that the former officer was not precluded from bringing on the case for trial. John CHlmore's ease, 2 Qity Hall Beeorder, 29. Before Bad- cliff, Mayor. New York, February, 1817. "iJ: 16. On the trial of an assault and battery commit- ted on an officer while in the execution of the duties of his office, the prosecution should produce on the trial the process under which the officer acted, otherwise the evi- dence would show he was a trespasser, and after being ordered to leave the premises, and he refusing, the prisoner had a right to use force in putting him out of the house. Anosia Boy's ease, 2 City Hall Beeorder, 165. Before Bad- cliff, Mayor. New York, November, 1817. X^^l 17. A person who purchased a ticket for a public ball, kept by a dancing master, has no right to assault the master should he refuse him admittance into the ball room, but the holder of such ticket has a right of action against the master for the money paid and such damages as may have accrued for refusing admittance. Moses Simon's case, 3 City Hall Beeorder, 39. Before Badcliff, Mayor. New York, February, 1818. ^^^: 18. Though the judgment on which an execution has been issued be void, yet the officer is not a trespasser ASSAULT AND BATTERY. 27 while in the due discharge of his duty in executing such process, and is protected by law. William Brown and Elizabeth, Ms wife's, case, 3 Qity Hall Recorder, 56. Before Golden, Mayor. New York, April, 1818. 19. A sheriff or any other general officer, while serving process, is not bound by law to show it, though it is generally discreet to do so ; but this rule does not apply to a person having a special authority. id. 20. A woman, in the presence of her husband, cannot be guilty of an assault and battery on another with whom the husband has a controversy, for it will be presumed she is acting in conformity with his wishes, and on that principle ought to be acquitted. id. •JsTI; 21. The law raises a presumption of an intent to kill in a case where the means used by the assailant were such as, in all human probability, would have produced death, and where, had it ensued, such killing would have been murder. Henry B. Hagermana case, 3 Oity Hall Recorder, 73. Before Qolden, Mayor. New York, June, 1818. 22. But where an aggravated assault and battery was committed, under such circumstances that had death ensued it would have been murder on the part of the assailant, still, if it does not positively appear that any dangerous weapon was used, or that the means or manner employed in the commission of the offense were such as were calculated to produce death, the jury are not bound to impute to the defendant an implied intent to kill. id. 23. Where a stranger entered the dwelling-house of a citizen at night, through a window, and attempted to deceive the wife by representing himself as her husband, and proceeded to other acts which clearly indicated his intention, though these acts did not extend to actual violence, on the trial of an indictment against him, con- sisting of separate counts for a simple assault and battery, and also for the same offense with an intent to ravish, it was held that the jury could find him guilty of either 28 ASSAULT AND BATTEEY. offense, and acquit him of tbe other. James Gordon's case, 3 City Hall Becorder, .91- Before Golden, Mayor. New York,, June, 1818. ^^1: 24. In this case the defendant and his wife were indicted for an assault and battery committed on Hays, a deputy sheriff, while in the due exercise of the duties of his office. It appeared that this officer, having process against the husband^ issuing from the Supreme Court, went io company with other officers into the house of the defendant, and while executing the process was attacked and beaten by the husband in conjunction with his wife ; held, that the wife could pot be found guilty of this offense while acting in aid of her husband. Barney Booney and Margaret, his wife's, case, 3 Qity Mall Becorder, 128. Before Qolden, Mayor, New Yorh, August, 1818. flf^ 25. Where the wife commences an assault and battery, or is engaged in an affray in the presence of the husband in which he does not participate, she may be con- victed, but wken she comes in aid of her husband in an affray wherein he is engaged, she is presumed to act under his influence, and cannot be convicted. Martha Boyd, Ohristofher Waters, and John Williams' case, 3 City Ball Becorder, 134. Before Coldm, Mayor. New York, Septewh&r, 1818. 26. The keeper of a public garden or other place of public amusement, has a right to establish regulations for the place calculated to guard against disorder or . licen- tiousness ; and his guests, however exalted may be their situation in life, are bound to conform to such regulations or submit to the exercise of so much force as may be necessary on his part to expel them. Alfred S. Pell's case, 3 City Sail Becorder, 141. Before Colden, Mayor. New York, September, 1818. ^le'if ' 27. <3-. gave S. a promissory negotiable note, who, without consideration, indorsed it to W. and commenced a suit in his name by warrant before an assistant justice in New York, and, procuring a deputation on the warrant, ASSAULT AND BATTERY. 29 attempted to take G. wlio assaulted him, it was held, that a plaintiff could not legally serve his own process, and that this deputation, being an evasion of the statute, was illegal. Ohafles Croodrich's case, 4 City Ball Recorder, 46. Before Golden, Mayor. New York, March, 1819. ^B,f 28. The defendant, J. W. L., Jr., one of the turn- keys of bridewell, was indicted for an assault on, and false imprisonment of, J. A. G., one of the counselors of this court, and it was held, that when a counselor at law, being admitted by a turnkey into one of the rooms of a prison to consult- with a prisoner, his client, and at the time of admission told the turnkey that he, the counselor, should not be detained more than six minutes, notwith- standing which such turnkey having locked the door, either thtough willfulness or forgetfulness, neglected to come to and unlock the door of such room until a half hour had elapsed, and when the turnkey did come the counselor told him he had treated him like a scoundrel, and the turnkey abused the counselor with insulting lan- guage, and shook his fist in the counselor's face and pur- sued him over to his office with threats and curses, and afterward made another assault in the street upon the counselor, and where it appeared the conduct of the turn- key originated from the counselor refusing to pay the turnkey five dollars, for his admission to the room of the prisoner, an assault and false imprisonment had been com- mitted. The defendant was convicted and fined twenty- five dollars and costs. Lent's case, 4 Oity Ball Recorder, 56. Before Golden, Mdyor. New York, April, 1819. N^J- 29. When a tenant wrongfully holds over after the expiration of his term, the Mndlord may fenter peaceably and dispossess him, but he has no right, if resisted, to enter forcibly. Mary Luce's case, 4 Gtty Ball Recorder, 158. Before Golden, Mayor. New York, November, 1819. May. 30. M., the owner of a horse and gig, in company with J., whom he had invited to ride with him, drove with great speed through Broadway and knocked down a 30 ASSAULT AND BATTBEY. woman in the street; it was held that if J. assented to such immoderate driving he was responsible for the injury. William B. Jaques' case, 5 City Sail Recorder, T7. Before Colden, Mayor. New York, May, 1820. S: 31. One who, in consequence of abusive language which he uses to another, in his own house, on being attacked by him casts a glass tumbler in his face, and cuts out one of his eyes, cannot exonerate himself by alleging that the injury was the result of accident and in self- defense. When assailed he had no right to make use of more force than was necessary in repelling the attack. Martin Burke's case, 5 City Hall Recorder, 93. Before Jay, Recorder. New York, July, 1820. 32. To pursue a man with a dangerous weapon, coming so near him as that danger to his person may be reason- ably apprehended, is an assault. Faisure's ease, 5 City Hall Recorder, 85. Before Jay, .Recorder. New York, July, 1820. 33. It appeared in this case that the prisoner ran up stairs, armed himself with a fork, and taking it in a back handed manner, holding his arm across his breast, and the point of the fork presented, ready to strike a blow, advanced with a firm step toward the prosecutor, who retreated but kept his eye on the prisoner, and before the prisoner approached near enough to make a pass to stab, which the prosecutor believed was designed, he sud- denly cast a stone at him and then leaped upon him and disarmed him. id. Ps^J- 34. For an ofiicer who has taken one on an execu- tion against his body, at his own house, to permit him to go out of his sight into another room to shift his clothes, and get his bed to go to prison, is an act of humanity and is not such an escape as will justify the debtor, while on his way there, in assaulting and beating such officer. John, Turney's case, 5 City Hall Recorder, 135. Before Colden, Mayor. New York, October, 1820. 35. On an execution from the ward justice court, direct- ASSAULT AND BATTEEY. 31 ing the officer, if he find no goods, to take the body, it seems that if calling on the debtor with the execution he does not turn out goods, but says he will go to prison, the officer may legally take him there ; and it will be no jus- tification to the debtor, after having committed an assault and battery on the officer while on the way there, to allege that when the execution was served there was sufficient property to satisfy it, and therefore the arrest was illegal. If there had been property, it was the duty of the debtor to have turned it out to the officer. id YS. 36. An assistant to the board of health, in the due execution of the duties of his office, under a proclamation of the mayor of New York, prohibiting communication between that city and one where a pestilence prevails, is to be protected, and every interruption he meets with, if possible, will be punished; and where such assistant endeavored to prevent persons from violating such procla- mation, and hands were laid on him with force, it was held to be an assault and battery. Crlover and Edwards' ease, 5 City Hall Recorder, 168. Before Golden, Mayor. New York, December, 1820. M|rch. 37. The citizens of New York" city have the right of fishing in any of the waters of the bay without inter- ruption. Samuel H. Osgood's ease, 6 City Hall Recorder, 4. Before Jay, Recorder. New York, March, 1821. 38. Bedloe's Island was ceded by the State of New York to the United States, but this cession did not include any land covered by the waters of the Hudson. id. 39. Where an officer in the service of the United States at Bedloe's Island, ordered one of his soldiers to take a barge and keep certain oyster boats, engaged in oysteririg, off from the island beyond certain stakes set down adja- cent to the island, as bounds, and not to suft'er them to oyster within such stakes, and the soldier, by force, towed an oystering boat beyond the stakes, and when the oyster- man afterward came purposely within the stakes, towed the boat on shore, it was held that the officer was guilty 32 ASSAULT AND BATTERY. of an assault and battery on the oystermen in such boat. id- 40. "Where the officer who makes distress has the goods of the tenant, and the keys of an inner room for deposit^ ing them, voluntarily delivered him by such tenant, such officer afterward has a right of access to the goods, nor can the tenant legally prevent him ; and where the tenant resists such officer, after he is in possession under these circumstances, such tenant is guilty of an assault and battery on the officer, ^sra OaldbveU's ease, 6 CUy Hall Becorder, 6. Before Jay, Meeorder. New York, March, 1821. ^l' 41. A., living in a house of B., and owing him rent, purchased of C. a set of chairs and carried them home, but being unable to pay for them gave liberty to C. to take them away, and while he was so engaged, B., without giving him notice that rent was due, rudely pre- vented him from taking the chairs away, and beat him. It was held that B. was guilty of an assault and battery. Edward Louge and William Lmige's case, 6 CUy HaU Becorder, 29. Before Biker, Becorder. New York, May, 1821. S: 42. Sprinkling paint upon a person from the second story window of a house is an assault and battery. People Y. McMurr ay, 1 Wheel. Cases, 62. Biker, Becorder.- New York, November, 1822, ^'g; 43. A. has a right to come on the premises of B. to demand wages, but B. has also a right to order him off, and if he does not go has a right to use force sufficient to turn him off. People v. Osbom, 1 Whed. Oases, 97. Biker, Becorder, New York, December, 1822. 44. Any person has a right to arrest a felon and bring him before the proper authority, and it is the duty of every citizen to do so; but if A. arrests B. on a charge of passing upon him a counterfeit note, and takes her into his house and detains her there for three-quarters of an hour, and offers to release her if she will pay him for ASSAULT AND BATTERY. 33 tlie note, it is an assault and battery and false imprison- ment. The duty of a citizen, in such a case, would be to take her immediately to the proper authority. People v. MoArdle, 1 Wheel. Cases, 101. Biker, Beoorder, New Tork, December, 1822. 45. It is the duty of every man attending church to behave himself with decorum and respect ; but a rule or regulation of a church, restraining a man from going out during the service, is an infringement on natural liberty, and will not protect the officer acting under it. People v. Westenayke and Pike, 1 Wheel. Cases, 124. Biker, Beoorder. New York, December, 1822. 46. In a case of assault and battery, if the defendant has in his hands, by accident, or for some lawful purpose, a weapon when a quarrel ensues between himself and the prosecutor, he may use it to defend himself with, and the jury are to judge froin the circumstance whether the defendant committed an assault and battery. People v. Jmrnngs, 1 Wheel. Oases, 126. Biker, Becorder. New Tork, December, 1822. fjig-, 47. The authority of a master over his apprentice is personal. He cannot delegate power to his journeyman to chastise him. People v. Philips, 1 Wheel. Cases, 155. Biker, Beoorder. New Tork, January, 1823. • M*™", 43 On the trial of an indictment for assault and battery, where the alleged offense was committed on an officer who had a landlord's warrant to execute, it is a good defense to show that there was no rent due. People V. Benham, 1 Wheel. Cases, 225. Biker, Becorder. New Tork, March, 1823. 49, In the case of a warrant to arrest and detain the person, the officer would be protected by it ; but with a landlord's warrant he has no more authority than the landlord himself In the one case it was a public process, in the other a mere personal authority from the landlord, 3 34 ASSAULT AND BATTERY. who had no more right to delegate it than to distrain himself. «A 50. In an indictment for assault and battery, after the defendant is convicted, if the prosecutor states an inten- tion to commence or proceed in a civil suit, the court will suspend the sentence. People v. Pentz, 1 Wheel, Oases, 240. Biker, Becorder, New York, March, 1823. YS 51. An assault is an attempt, with force and violence, to do a corporeal hurt to another, as by striking at him, with or without a weapon, being within striking distance, or presenting a gun at him at a distance the gun will carry, or pointing a pitchfork at him, being within reach of it, or, as in this case, to attempt with violence to run against the wagon of the prosecutor with a cart. People v. Lee, 1 Wheel. Cases, 364. Biker, Recorder. New York, May, 1823. 52. Where a married woman retired to bed, fell asleep, and was awakened by a man whom she supposed to be her husband, in the very act of sexual connection, and it proved afterward not to be her husband, was it a rape or merely an assault? People v. Bastow, 1 Wheel. Cases, 378. Biker, Becorder. New York, May, 1823. Is 53. The least violence to the person of another is an assault and battery ; and this is not so much for the injury to the individual as the insult and indignity. Spit- ting in the face was not calculated to injure the person, yet it was a violent outrage and an assault and battery ; and where one strikes another with his fist or glove, if it does not appear that the blow was necessary for self- defense it is an assault and battery. People v. Powers, 1 Wheel. Cases, 405. Biker, Becorder. New York, June, 1823. \^\ 54. A parent or master has no right to punish a child or apprentice for his obedience to a subpoena or any other process of law. After he has been subpoenaed he is then under the protection of the court, which is paramount to the power of the parent. And whether he had been 1111] ASSAULT AND BATTEBY. 35 Bubpoenaed or not, if he had attended the trial, and had been examined as a witness, and returned, and was beaten for it, it would clearly be unjustifiable. People v. Sniff en, 1 Wheel. Cases, 502. Biker, Recorder. New York, July, 1823. 55. A husband has no right to beat his wife or to inflict corporeal punishment upon her, but he may defend him- self against her, and may restrain her from acts of violence toward himself or toward others. People v. Winters, 2 Park. Crim. Rep, 10. Clinton Oyer and Terminer. Before Walworth, C. J. July, 1823. 56. On the trial of an indictment for an assault and battery in resisting the jailor, the prosecutor must produce the mittimus to show that he had a legal right to detain him. People v. Muldoon, 2 Park. Crim. Rep. 13. Wash- ington Oyer and Terminer. Before Walworth, C. J. July, 1823. 57. The principles by which a jury are to be governed, on an indictment for an assault and battery with an intent to commit murder, are the same as on an indictment for murder. People v. Vinegar, 2 Park. Crim. Rep. 24. Sara- toga Oyer and Terminer. Before Walworth, C. J. July, 1823. 58. Where the prisoner was the aggressor, and com- menced the attack and made use of such weapons as were calculated to endanger life, it was held, that malice would be inferred, and that the fact that the prisoner was in the heat of passion would not mitigate the offense into a lesser crime. id. fg»|- 59. Assault and battery, with intent to commit a rape, may be proved without the testimony of the person injured. People v. Bates, 2 Park. Crim. Rep. 27. Franklin Oyer and Terminer. Before Walworth, C. J. August, 1823. 60. Where there is reason to believe that the person injured is kept out of the way by the prisoner or his friends, and the assault and battery, &e,, are proved by 36 ASSAULT AND BATTEKY. persons who heard the cries of the woman, and witnessed the transaction from a distance, the jury may infer the intent from the circumstances as proved. id. ®i|^'; 61. "When an affray is ahout taking place, and a person intermingles in it, he becomes a party to the affray and must take the consequences. He must give notice of his peaceable intention, and that his object is to suppress the affray, or he will not be justified. People v. Moore, et al., 3 Wheel. Oases, 97. Biker, Recorder. New York. Sep- tember, 1824. 62. By our constitution and laws all associations have a right to meet and celebrate their festivals, taking care not to violate the laws ; and the authority of the country will not interfere if they do not disturb the peace. id. 63. No words will justify an assault, but if the defend- ants struck in self-defense they are not guilty. To this rule there is an exception, for if two men go out to fight, and do fight, it is an assault and battery in each. id. im 64. Infants are liable in the same manner as adults for trespass and assault. Bullock v. Babcoek, 3 Wend. 391. Supreme Court, October, 1829. 65. "Where the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in damages to the sufferer. id. 66. It seems that an injury might probably be considered an unavoidable accident in the case of infants, which would not be so considered in case of adults. id. S: 67. An assault and battery cannot be compromised after conviction. People v. Bishop, 5 Wend. 111. Supreme Court, November, 1830. 68. An assault and battery, except in certain cases, may be compromised either before or after an indictment, id. (See 3 E. S. 5th ed. 1021, 1022. For forms see Barb. Crim. Law, 716.) fS 69. An indictment lies against a party who, in the exercise of the right of recaption, to repossess himself of goods taken from him under an attachment against ASSAULT AND BATTERY. 37 another person, commits a breacli of the peace by assault- ing the officer who took the goods, if the process under which the seizure was made is regular upon its face, al- though the officer who issued it had not jurisdiction of the subject-matter. People v. Oooper, 13 Wend. 379. Supreme Court, January, 1835. 70. It is not necessary in such case that proof should be given of the regularity of the proceedings preliminary to the issuing of the attachment ; and though it be affirma- tively shown that the justice had not jurisdiction, the party who commits a breach of the peace, in the exercise of the right of recaption, is punishable criminally. An action for damages, however, does not lie in such a case. id. 71. A count in an indictment in such case, charging the assault to have been made upon the officer while in the execution of the duties of his office, is good, although it does not contain averments of Jurisdiction in the officer issuing the attachment ; the suing out of the process ; the delivery to the officer, &c. The allegation of the assault on the officer, while in the execution of the duties of his office, being considered as mere matter of aggravation. id. (See R S. 5th ed. vol. 1, 750.) ^^■_ 72. On the execution of a writ of inquiry in an action of assault and battery, matter of provocation, hap- pening so long before the assault that there had been time for reflection and for the passions to cool, cannot be taken into consideration by the jury in the assessment of damages ; it is otherwise where the provocation and assault are simultaneous. For instance, had the plaintiff, in the interview between the parties, given utterance to some abuse, whether slanderous or not; had he charged the defendant, or his father, with criminal or even dishonor- able conduct, and had the defendant upon such provoca- tion assaulted the plaintiff, although the act could not have been justified, yet the provocation, being given at the time, would have been some palliation of the offense, and the jury would have been warranted in giving small, 38 ASSAULT AND BATTEEY. perhaps nominal, damages. But where provocation has been given, and time has been afforded for the passions to cool, time had for reflection, such provocation is no justi- fication or palliation for a subsequent assault and battery. Such is the law of this state, and it is believed such is the law of every well regulated society. Ellsworth v. Tkomp" son, 13 Wend. 658. Supreme Court; May, 1835. M»y; 73. An assault is an attempt with force or violence to do a corporeal injury to another ; and may consist of any act tending to such injury, accompanied with circum* stances denoting an intent, coupled with a present ability to use violence against the person. Hayg v. The People, 1 Eill, 351. Supreme Gourt, May, 1841. 74. It is not essential to constitute an assault, that there should be a direct attempt at violence, but any indirect preparation toward it, under the circumstances mentioned, such as drawing a sword or bayonet, or even laying one's hand upon his sword, would be sufficient. id. ^^^,\ 75. The fact that a person prefers a criminal charge against another, before a justice of the peace, and is a witness upon the trial of the accused, and employs counsel to conduct the trial on the part of the people, will not render him liable in an action for assault and battery and false imprisonment, for the consequences of an erroneous conviction by the justice, where there is nothing to connect him with the unlawful imprisonment of the plaintiff. Peokham v. Tomlinson, 6 Barh. 253. /Sit- prewe Qourt, Oiwego Gf-eneral Term, May, 1849. S: 76. On an indictment for an assault and battery the defendant may give evidence to show that he owned the premises on which the assault and battery was com- mitted, and that he did the acts complained of in defense of the possession of his said premises. Harrington v. The People, .6 Barh. 607. Supreme Court, Clinton General Term, July, 1849. 77. And if the assault and battery was committed in resisting persons entering the premises to open and work ASSAULT AND BATTEEY. 39 a highway, the defendant may prove that the alleged high- way was laid through his orchard of four years' growth, without his consent. ic?. fS. -78. An indictment under the revised statutes, 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 the intent to commit a felonious homicide ; it is not necessary to prove an intent to murder. People y. Shaw, I Park. Crim. Bep. 'SiT. Su- preme Court, Chenango G-eneral Term, January, 1852. ^^: 79. A boy under fourteen years of age, indicted for rape, being presumed to be physically incompetent to commit the crime, cannot be convicted of an assault and battery with an intent to commit a rape, though he may be convicted of a simple assault and battery. People v. Randolph, 2 Park. Crim. Rep. 213. Orleans Oyer and Ter- miner. Before Allen, J., May, 1855. ^S. 80. Under the thirty-fifth section of the act of: 1850, entitled "An act to authorize the formation of rail- road corporations, and to regulate the same," a conductor of a train is protected against an indictment for assault and battery, for putting out of the cars a passenger who refuses to pay his fare, if he use no unnecessary force j and where a passenger has refused to pay his fare, and the train has been stopped for the purpose of putting him out of the cars, the right of the conductor to put him out is not taken away by his then offering to pay the fare. Peo- ple V. Jillson, 3 Park. Crim. Rep. 234. Supreme Court, Urie Creneral Term, September, 1856. 81. The relations and rights of a passenger, as regards the railroad company in whose cars he travels, discussed by MuLLBTT, J. id. ?<,?S- 82. On trial of an indictment for an assault and IB 30. battery, it is a good defense that the complainant had committed petit larceny, and that the alleged assault and battery consisted in arresting him therefor, without pro- cess, and delivering him to a public officer. People v. 40 ASSAULT AJTD BATTERY. Adhr, 3 Parh. Crvih. Bep. 249. Supreme Court, Monroe General Term, Beeemher, 1856. JSr. 83. On the trial of an indictment for an assault and battery it appeared tliat the defendant was a conductor on a railroad, and that the act complained of was commit- ted in forcibly ejecting a passenger from a car before he had reached the station for which he had purchased his ticket, one ground of the defense being that the passenger had conducted himself in a violent and disorderly manner, so as seriously to disquiet the other passengers, held, that it was competent for the defendant to prove the passenger guilty of such misconduct during any part of his entire passage, it being a short one, and that it was erroneous to restrict the evidence to the last three miles of the passage. People V. Oan/l, 3 Park. Grim. Rep. 326. Supreme Court, Kings Ceneral Term, January, 1857> 84. It is erroneous to charge that a conductor on a rail- road has no authority to eject a passenger from the car for misconduct, except when it is such as to disturb the peace and safety of the other passengers. Grossly profane or indecent language may be sufficient ground for expul- sion, id. 85. When the regulation of a railroad company, as to the place of collecting tickets from the passengers on a railroad, is a reasonable one, and a passenger refuses to comply with it, it is the right of the conductor to require the passenger to leave the cars, and if he refuses to go he may be ejected without unnecessary violence. id. S: 86. In. a case of a mere affray or beating with fists it cannot be necessary for a third person to resort to fire- arms, or take life, in any case, for the purpose of protect- ing one combatant from being injured by the other. People V. Cole, 4 Park. Grim. Bep. 35. Dutchess Oyer and Terminer. Before Hmott, J. September, 1857. files': 87. Where an indictment, on allegations of certain facts, charges the defendant with " assault and battery, with intent to kill," and on the trial a general verdict is ASSAULT AND BATTERY. 41 rendered of "guilty of an assault and battery with intent to kill," the verdict is one finding a crime of assault and battery only, where the indictment omits to allege some of the means which ■ the statute names of an attempt to kill. That is, " by means of a deadly weapon, or by such other means or force as was likely to produce death." People v. Davis, 18 Mow. Prac. Bep. 134. Supreme Court, Albany General Term, September, 1858. (This case is also reported in 4 Park. Grim. Eep. 61.) ^1: 88. The principal offense charged in the indictment in this case was assault and battery with a deadly weapon, commonly called a cleaver, with intent to kill. On the trial in the court of sessions the jury found the defendant "guilty of assault and battery with intent to kill," where- upon the defendant was sentenced to the state prison for two years. O'Leary v. The People, 17 How. Prac. Rep, 316. Supreme Court, Plattsburgh General Term, May, 1859. (This case is also reported in 4 Park. Grim. Eep. 187.) 89. On writ of error and certiorari the Supreme Court held, that the verdict of the jury was a special or partial verdict — a verdict of guilty of a part of the charge con- tained in the indictment, and silent as to the residue, id. 90. An assault and battery with intent to kill is not a felony by our statutes, nor at common law. It is only felony when committed with some deadly weapon, or with some other means or force, (not charged in this indict- ment,) likely to produce death. id. 91. Therefore, the jury not having found a general verdict of guilty, nor a special verdict finding all the facts and circumstances constituting the offense charged, the judgment of the court of sessions w^as reversed. id. fjl^- 92. On the trial of a prisoner for attempting to discharge a pistol, with the intent to kill, &c., under 2 E. S. 665, § 36, (3 E. S. 5th ed. 944,) the prisoner's counsel requested the judge to charge "that the pointing of an uncocked Golfs revolver at a person is not an attempt to discharge the weapon," and the judge refused so to charge, 42 ASSAULT AND BATTERY. and charged that it was a question of fact for the jury to decide, and not a question of law for the decision of the court; held, that the ruling of the judge was erroneous, and the prisoner, having been convicted, the judgment was reversed on writ of error, and a new trial ordered. Mulligan v. The People, 5 Park. Orim. Sep. 105. Supreme Court, New York General Term, February, 1861. 93. A conviction for an attempt to discharge a pistol, under the statute referred to, cannot be had where the individual indicted proceeded no farther toward an actual discharge or shooting than to raise and point the pistol, uncocked, at the party threatened. id. 94. A threat made by the prisoner at the time would constitute no part of the attempt to discharge the pistol ; it would only be evidence of the intention of the pris- oner, id. 'S: 95. A criminal conviction for an assault cannot be sustained where no battery has been committed, and none attempted, intended or threatened, by the party accused. It is indispensable to the offense that violence to the per- son be either offered, menaced or designed. People v. Bransby, 32 K Y. Bep. 525. Qourt of Appeals, June, 1865. 96. There is no exception to this rule in the case of an indignity offered to a female^ where she is a consenting party to an act involving her own dishonor. id. 97. It is a general rule that if the prosecutor prove the defendants guilty of a criminal offense plainly charged in the indictment, they should be convicted of that offense, though other facts are stated which, if proved, would show them guilty of an offense of a different, or even of a higher grade of crime. White et al. v. The People, 32 M Y. Bep. 465. Court of Appeals, June, 1865. 98. It is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime, and any other statement not proved will not vitiate. i,ji_ 99. It seems that all the defendants who are convicted ATTEMPT TO COMMIT CEIME. 43 must have been guilty of the same oflFense, though they may have been guilty in different degrees. id. 100. In an indictment against several defendants for an assault and battery, some may be convicted of an assault and battery, and others of an assault only. id. 101. An indictment for an assault and battery upon a person to the jurors unknown is not sustained, it seems, by evidence that the name of the person assaulted -was known to the jurors finding the indictment. But such an indictment is sustained by evidence before the petit jury, disclosing the name of the person assaulted. It is the ignorance of the grand jury, and not of the petit jury, which authorizes the statement that the person is un- known, id. f^S: 102. The prisoner being tried upon an indictment, at a court of sessions, the jury found him " guilty of an assault with intent to do bodily harm." The court sen- tenced him to imprisonment in the state prison for the term of one year and ten days. Held that the verdict of the jury was in legal effect that the prisoner was guilty of simple assault ; and that the sentence being for a felony, was unauthorized. Sussey v. The People, 47 Barb. Rep. 503. Supreme Court, Albany Greneral Term, December, 1866. 103. ^e^.a&o, that the verdict being authorized and substantially regular, the record must be remitted to the coort of sessions, with instructions to that court to pro- ceed and pronounce judgment according to law, against the prisoner, for an assault. id. Attempt to Commit Crimes. Z^; 1. The power to punish by imprisonment in a state prison, upon a conviction for an attempt to commit a crime, is not limited to those cases where the imprison- ment in state prison, if the crime attempted had been consummated, 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 44 AUTEEFOIS ACQUIT. convict to imprisonment in a state prison for a time not exceeding one-half of the longest time of imprisonment prescribed for a conviction of the offense attempted. Mackay v. The People, 1 Park (Mm. Bep. 459. Supreme Court, Erie General Term, January, 1854. 2. Where by the statute the imprisonment in a state prison for a commission of the crime attempted, must be for a term less than fonr years, the person convicted of the attempt can only be sentenced to imprisonment in a county jail for not more than one year. id. 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 imprisonment in the state prison for two years and six months. w'. AtTTEBFOis AcQurr. f^; 1. A person tried and convicted on an indictment, and afterward discharged because a juror had been im- properly withdrawn, was again tried on a second indict- ment for the same offense, and pleaded autrefois acquit, in bar, it was held, as the first indictment was erroneous, the plea of a former acquittal was no bar to the second. The People V. Barrett and Ward, 1 Johns. B. -65. Supreme Court, February, 1806. *^^' 2. A former acquittal, on an indictment for a rape, on the trial of which it appeared that the act charged in the indictment as a rape was perpetrated, is a bar to a subsequent prosecution, founded on the same transaction, for an assault and battery, with an intent to commit a rape, but is no bar to a prosecution for an assault and battery. William L. Sargeant, Abraham Loeier, James Byder and James Devoe's cases, 2 City Hall Beeorder, 44. Before Badcliff, Mayor. New York, March, 1817. *f,^; 3. An acquittal by a jury on a charge of having a single counterfeit bank bill in possession, with an inten- tion of passing the same, is no bar to a prosecution against AUTREFOIS ACQUIT. 45 the prisoner so acquitted on an indictment with another for having other counterfeit bills in possession, with an intention of passing the same, though on the first trial, for the purpose of establishing the scienter, proof of the same kind is produced as on the second, and both the prisoners, with the money described in both indictments, were arrested about the same time. Simeon Van Houton and John Harvey's cases, 2 Oity Hall Recorder, 73. Before Badeliff, Mayor. New York, May, 1817. g?J; 4. A prisoner having been indicted for stealing the goods of Isaac Jenkins, and it appearing on the trial that the goods belonged to Isaac Jenkinson, was acquitted on that ground. Afterward the prisoner was indicted for stealing the same goods, belonging to Isaac Jenkinson. To this indictment the plea of autrefois acquit was inter- posed, and the public prosecutor demurred. It was held, that the demurrer was good. The offense of stealing the goods of A. is not the same felony as that of stealing the same goods, the property of B. Terence Hughes' ease, 4 (My Hall Recorder, 132. Before Qolden, Mayor. New York, October, 1819. f^- 5. In case of felony, in the court of general sessions, in 'New York, after a trial of five days the jury were kept together seventeen hours to deliberate on a verdict, and after eleven o'clock in the evening of the last day of the term, returned into court and declared there was no prob- ability of their agreeing on a verdict, and were discharged, it was held, that such discharge was a discreet and legal exercise of the powers of that court, and did not operate as an acquittal of the prisoner. Robert M. Goodwin's case, 5 City Hall Recorder, 97. Supreme Court, Albany, August, 1820. . 6. In cases, as well of felony as misdemeanor, where an absolute necessity exists for discharging a jury, the court, in its discretion, may discharge them, and the prisoner may be again brought to trial for the same offense. id. 7, That no person shall "be subject, for the same 46 AUTKEFOIS ACQUIT. offense, to be twice put in jeopardy of life or limb," is a fundamental principle of the common law, and, as such, is obligatory on all courts ; and whether that clause in the amendment to the constitution of the United States, was intended to bind the state courts, is therefore immaterial; but no man, in a legal sense, can be said to have been "put in jeopardy of life or limb," unless he has been acquitted or eonvicted by the verdict of a jury. id. ^?f; 8. To render a record of a former conviction or acquittal good evidence, it is necessary that the record should be under the seal of the court, signed by the mag- istrate before whom the cause was tried, and that it should be filed, and produced by the clerk on the trial. Citrte- niu8 Hyer's case, 6 City Hall Recorder, 30. Before Irving, First Judge. New York, May, 1821. i^: 9. On a plea o{ autrefois acquit, where the only issue is the identity of the offenses, a variance between the record of acquittal and the indictment under which the trial is had, in the number of articles charged to have been taken, and in the names of the owners of the property, will be disregarded when no proof is offered on the part of the prosecution to show that the offenses are, in fact, different. Feople v. McGowan, 17 Wend. 386. 8v/preme Court, July, 1837. 10. Evidence, as well on the part of the prosecution as on the part of the defense, is admissible as to the diversity or identity of the offenses. id. 5^°J: 11. A trial and conviction before a court of special sessions, for an assault and battery, are no bar to a subse- quent indictment for manslaughter 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, 1 Parle. Crim. Bep. 182. Supreme Court, Erie General Term, November, 1848. 12. A former trial is no bar unless the first indictment was such as the accused might have been convicted upon AUTEEFOIS ACQUIT. 47 by proof of the facts set fortli in the second indictment. To constitute a bar the offense charged in both indict- ments must be identically the same in law as well as in fact. id. ^^^'' 13. 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 Lovelandj with intent to kill and slay her, are no bar to a subsequent in^dictment 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 Mil and slay him. People v. Warren, 1 Park. Orim. Bep. 338. Allegany Oyer and Terminev, April, 1852. Before Marvin, Justice. ^IJ. 14. On the trial of a,n indictment charging the defendannt with having uttered and published as true a promissory note made by the defendant, on which the names of certain individuals appearing as indorsers were alleged to have been forged, it is a good defense, under the plea of autrefois acquit, that the defendant had before been indicted and tried for the offense of forging and counterfeiting the same indorsements, and on such pre- vious trial had been acquitted by the verdict of a jury upon the merits, the only controverted question on both trials being whether such indorsements were genuine. People V. Allen, 1 ParTe. Grim. Bep. 445. Jefferson Oyer and Terminer, December, 1853. Before Allen, J. \^i'_ 15. The question whether a former trial and con- viction for abduction are a bar to an indictment subse- quently found for murder, alleged to have been previously committed, cannot be raised and made a ground for dis- charge on habeas corpus such defense can only be made available, if at all, or the trial of the indictment for mur- der. People V. Bulloff, 3 Park. Orim. Bep. 126. Supreme Court, Tompkins Special Term, Before Balcom, J. April, 1856. ^il 16. Seld, that atrial and acquittal for larceny 48 AUTEEFOIS ACQUIT. was no bar to a subsequent conviction for embezzlement, on the same facta. People v. Mchols, 3 Park Grim. Rep. 579. Supreme Oourt, Erie general Term, November, 1857. JJJi. 17. To subject a prisoner to a second trial, where a former conviction on the indictments has been reversed, and a new trial ordered, by a court of review, on the application of the prisoner, is not a violation of the con- stitutional provision which declares that " no person shall be. subject to be twice put in jeopardy for the same offense." People v. Bulloff, 5 Park Crim. Sep. 77. 8ii- preme Oourt, Special Term. Before Knox, J. January, \SGQ. fil 18 The issue joined upon a special plea of a for- mer trials can only be tried -by a jury, the consent of the defendant cannot confer jurisdiction upon the court to try the issue without a jury. Grant v. the People, 4 Park Crim. Rep., 627. Supreme Court, Clirdon Q-eneral Term, May, 1860. \^l 19. Form of a plea of autr^ois acquit.. People v. Van Kensen, 5 Park Crim. Rep., 66. New York GreneroA Sessions. Before Mussel, City Judge. June, 1860. 20. "Where a defendant had had in his possession, at the same time, several counterfeit bank-notes purporting to have been issued by different banks, and had been tried for having had one of such counterfeit notes in his pos- session with intent to utter it, and had been acquitted, such acquittal was held to be a bar to a conviction, on a subsequent trial, on another indictment, for having had the others of such counterfeit bank-notes in his possession with intent to utter them. id. 21. On a plea of ay,trefoi8 acquit, interposed in such a case, to which the district attorney demurrred, judgment was given on the demurrer for the defendant. id. ■^S" 22. The act in relation to capital punishment, (ch. 410 of I860,) is retropective, and applies to all persons thereafter convicted, though the crime was committed be- fore the enactment of the law. Hartung v. the People, 26 New York, Sep., 167. Court of Appeals, March, 1863. AUTKEFOIS ACQUIT. 49 23. The amendment of the act of 1860 by chapter 303 of 1861, reviving the origina.1 law for the punishment of murder, does not affect a prisoner who in the meantime had obtained a final adjudication in this court, that the law existing at the time of her conviction did not autho- rize any punishment of a previous murder — ^the former law being repealed, and the substituted act being void as ex post facto. id. 24. The effect of such a judgment is equivalent to an acquittal of the charge on which she was tried ; is a good plea in bar to a second trial; and the legislature has no power to deprive her of the benefit of that defense. id. ^^\ 25. The answer to the objection raised by the spe- cial plea of the prisoner, that there is a former indictment against him fox the same offense, upon which he was aarraigned, and pleaded not guilty, and a commencement was made towards a trial by calling the name of one juror, which trial was then suspended against the consent of the prisoner, is that he was never put in jeopardy under the former indictment It was still in the discretion of the court to postpone the trial, as if it had not been commenced at alL There was no trial, conviction or acquittal — rnqthing that can be pleaded as a bar. No authority has been cited to maintain this plea, and none can be found. Ferris v. The People, 48 Barb, Bep. 17. Supreme Court, New Yorh G-eneral term, Nmiemher, 1865. "iS?' 26. To sustain the plea of a former acquittal as a defense to an indictment, it must appear that the party was "put in jeopardy" by the former trial. Qanter v. The People, 5 Abb. Pr. Bep., 21, {new series.) Court of Appeals, March, 1867. 27. A plea of an acquittal, alleging that it was " on the ground of a variance between, the indictment and the proof, the variance being that the proof failed to show " certain facts necessary to establish the offense alleged, is not sufficient, under the provisions of the Revised Statutes, 4 50 AUTEEFOIS CONVICT. as a bar to a trial and conviction upon a subsequent indictment for the Bame offense. ^"• Autrefois Convict. S' 1. To an indictment for rape, the prisoner pleaded that he had been convicted before W. B. a justice of the peace, on the oath of the prosecutrix, E. E. J. of an assault and battery upon her, and fined twenty dollars, which fine was paid by him, and that the assault and battery of which he was so convicted, . was the same assaulting, beating, ravishing and carnally knowing of the said E. R. J. charged in the indictment for rape. On demurrer to such plea, ifc was adjudged bad, on the ground that the facts set forth in it constituted no defense to the indictment for rape. People V. Saunders, A Parh. Grim. Bep. 196. Cortland Oyer and ferminre. Before Mason, J. June, 1859. 2. An acquittal upon an indictment for a felony, consti- tutes no bar to an indictment for a misdemeanor ; and an acquittal for a misdemeanor is no bar to an indictment for a felony. id. 3. To make the plea of autrefois convict or autrefois acquit a bar, it is necessary that the crime charged in both cases be precisely the same ; and in considering the identity of the offenses, it must appear by the plea that the offense charged in both cases was the same, in law and in fact. id. 4. This case does not come within the provisions of the Revised Statutes, which makes an acquittal or conviction, on a former trial for an offense, a bar to an indictment for such offense in any other degree, or for an attempt to com- mit such offense. id. 5. "Where, in a case of felony, a plea of autrefois acquit or autefois convict is interposed and overruled, there should be judgment of respondeat ouster. id. ^^J: 6. A conviction for petit larceny before a court of special sessions, is no bar to a subsequent conviction for burglary, where the prisoner is charged with breaking and entering a building with the intent of stealing therein, BAIL. 51 thougli the intent charged relates to the same larceny for which he had previously been convicted. Peoph v. McClos- hey, 5 Park. Orim. Bep. 57. Supreme Court, Onondaga Q-en- ral Term, Julg, 1860. fsm!' 7. On the trial of an indictment for having sold spirituous liquors with6ut license, on the tenth of March and tenth of April, 1860, the defendant interposed a plea autrefois convict, and, on the trial, proved by the record that he had been tried before a court of special sessions, on a charge of having, on the 16th day of April, 1857, and on the 1st of April, 1860, and on divers other days between these dates and the 9th of May, 1860, sold spirituous ■ liquors in quantities less than five gallons without license, and that he was convicted of the charge and fined five dol- lars ; it was held that the plea was not sustained, and that to make the defense available, the defendant ought to have proved by evidence, aliunde, that the offenses for which he had been convicted, were the same violations alleged in the indictment. People v. Cramer, 5 Park. Orim. Bep. 171. Supreme Court, Monroe General Term, September, 1860. fgll; 8. A prisoner against whom a vTrong judgment was pronounced upon a regular trial and conviction, cannot be subjected to another trial. Shepard v. Tlie People, 25 N. Y. Bep. 406. Court of Appeals, Decemher, 1862. 9. The plea of autrefois convict is supported by proof of a lawful trial and verdict, or confession on a sufficient in- dictment, though no judgment be given upon it. id. 10. Accordingly, when the judgment is reversed for an illegal sentence upon a conviction in which there was no error, a new trial cannot be ordered, but the prisoner must be discharged, and this though upon a motion in arrest of judgment he asked for a new trial. id. Bail. ^i^] 1. The power to bail must be incident to the power to hear and determine, and if a court may dis- 52 BAIL. charge without bail, a fortiori, it can discliarge upon bail, but where a person is charged with any crime above the degree of misdemeanor, he cannot demand bail as of course, but it rests in the sound discretion of the court, or officer. The maxim of law, that every man is to be pre- sumed innocent till he is found guilty, does not apply to questions of bail, but to the case when the accused is on trial ; on the contrary, for the purpose of securing his person to answer a direct and positive charge, made in due form, and to bring him to that trial, the court is bound to treat him as if he were guilty ; at least, they must do so until some matter be presented in his fevor, which in the exercise of their discretion, they shall judge a presumption of his innocence. People r. Goodwin,! Wheel. 'Gases, 434. Golden, Mayor. New York, February, 1820. ■^S^ 2. It is not a matter of course for the court to bail a prisoner committed on a charge of felony, above the degree of petit larceny. Robert M. Groodwin's Case, 5 City Sail Becorder, 11. Before Golden, Mayor. New YorTc, Maroh, 1820. 3. On a charge of felony, the prisoner cannot be bailed unless some matter arising either from the testimony on which such charge is founded, or from affidavit, afford- ing a presumption in favor of his innocence, be presented to the court or magistrate having power to bail. id 4. An inquisition of the coroner, for murder, was taken on the 22d day of December, 1819, and the prisoner was committed for that offense. The coroner retifrned the inqusition into the sessions, the first day of the ensuing term. On the 8th of January, in the same court, the prisoner was indicted for manslaughter, and on that day, being arraigned, pleaded not guilty, but was not ready for trial. The district attorney, having avowed his in- tention of arraigning and trying the prisoner on the inqusi- tion for murder, at the next court of oyer and terminer, did not bring on the case for trial during the February term. On the 18th day of that month, a motion was BAIL 53 made on behalf of the prisoner that he be admitted to bail for manslaughter. It was held, that there was a satisr factory cause shown on behalf of the prosecution for not trying the prisoner, and that he was not entitled to be bailed. id 5. Though in such case the coroner's inquest is im- properly on the files of the court, yet, it will be regarded, in the exercise of a sound discretion. id im. 6. One charged with manslaughter may be bailed, not as a matter of right, but resting in the sound legal discretion of the judge awarding the writ; and where the prisoner had been indicted for manslaughter and tried, and the jury disagreed, it was held to be a case in which the judge should exercise a discreet and sound discretion, and admit the defendant to bail. People v. (Goodwin, 1 Wheel. Oases, 443. Supreme Court, Spencer, Oh. J. August, 1820. isM^ 7 The general rule is, when a prisoner is found in the actual possession of stolen goods, he cannot be bailed. People V. Ferris, 1 Wheel. Oases, 19. Biker, Becorder. New York, September, 1822. °°^ 8. The court of sessions have the power to increase the bail set by the committing magistrates, eyen where no motion for adjournment is made. People v. McLane, 1 Wheel. Oases, 45. Biker, Becorder. New York, October, 1822. Is^ 9. On a motion to bail on a charge of felony, the court will not be confined to the depositions taken before the magistrate. People v. De Chraff, 1 Wheel. Oases, 141. Biker, Becorder. New York, January, 1823. f/J'g 10, In the case of assault and battery, where a new trial is awarded, the court will, if the circumstances de- mand it, increase the bail. People v. MeKinnon, 1 Wheel. Oases, 170, Biker, Becorder. New York, February, 1823. {^ 11. A prisoner arrrested by virtue of a warrant in- dorsed pursuant to 2 E. S. 707, § 5, (see 3 R. S. 5th ed., 994.) for an ofience punishable by imprisonment in the 54 BAIL. state prison, cannot be let to bail in tbe connty where tbe arrest is made, but must be taken back to tbe county in which the warrant'was issued. €larh v. Gleveland, 6 Hill, 344. Supreme Court; Jarmoury, 1844. 12. Though in such, case the prisoner be let to bail in the county where the arrest was made, and released from custody, he may nevertheless be retaken under the warrant, the act of releasing him being equivalent to suffering a voluntary escape. ^ 13. After an escape from arrest under criminal process, the officer is bound to retake the prisoner, whether the escape be voluntary or otnerwise. ^ 14. In civil cases, if the officer suffer a voluntary escape after an arrest on final process, he cannot retake the de- fendant ; though otherwise as to meawe process. Fer Qowen, J. ' id 55^: 15. In cases of felony the prisoner should not be let to bail when, upon a full and impartial preliminary examination there is good reason to believe he is guilty. Therefore provision has been made by statute, providing for bringing that examination before the officer allowing the writ of habeas corpus. People v. Madame Eestell, 3 Sow. Prac. Hep. 251. Supreme Court, at Chambers. Ed- monds,' J. New Tork, November, 1847. fsl^; 16. The power of the Supreme Court, or a justice thereof, to bail in all cases, whether upon an accusation of treason, murder, arson or any other offense, is indispu- table. People V. Van Some, 8 Barb. 158. Montgomery Oyer and Terminer, February, 1850. Paige, J. 17. The same power is also possessed by courts of oyer and terminer. id. 18. In cases of felony the prisoner cannot, as a matter of right, be admitted to bail. Whether he shall be let to bail is a question resting in the sound legal discretion of the court. id. 19. Although the general rule in cases of felony is that an indictment is to be deemed conclusive as to the guilt BAIL. 55 of the accused, and that he is not to be admitted to bail, there are several circumstances, arising after indictment, which entitle the party to bail, and which may be regarded as exceptions to the general rule. id. 20. Thus where two grand juries out of three had adjudged, upon the evidence given on behalf of the peo- ple, •that the crime committed by the prisoner was only manslaughter, and the third that it was murder, the court held that on a motion to admit the prisoner to bail he was entitled to the benefit of the presumption of law that his offense did not exceed the grade of manslaughter. And the public prosecutor, and his associate counsel, expressly consenting that the prisoner should be bailed if the court possessed the power to bail him, he was admitted to bail accordingly. id. 21. Also see note (a) to this case, where, in the "Wash- ington Oyer and Terminer, Ifovember, 1839, before Wil- lard, circuit judge, in the case of The People v. Porter, indicted for murder, the defendant was bailed under the following circumstances: The prisoner voluntarily ap- peared on the coming in of the indictment, and by his counsel offered to give bail for his appearance at the next oyer and terminer to be held in said county in June there- after. The grounds, as disclosed in several affidavits, were, a defense on the merits ; the absence of material evidence ; the feeble state of the prisoner's health, which would not endure a protracted imprisonment; and he proposed, also, to disclose the nature of his defense. The district attorney consented that the court might admit him to bail, if they had the power to bail after indictment for murder. He consented, also, that the court might look into the evidence taken before the grand, jury, and the affidavits furnished by the prisoner disclosing his defense. The court, after examining the documents submitted to them, decided that they had the power to admit to bail, and accordingly let the prisoner to bail in the sum of five 56 BAIL. thousand dollars, to appear at the next oyer and ter- miner, id. ■tS 22. On a motion to admit to bail on an indictment for murder, upon testimony taken before the coroner and the grand jury, further proof, by affidavit or oral testi- mony, on the part of the defendants, tending to show their innocence of the oflEense charged, as affecting the question of bail, cannot be allowed. People v. Baker and others, 10 How. Prac. Sep. 567. New York Oyer and Terminer. Before Oowles, J. April, 1855. 23. Previous to the revised statutes it was well settled that in capital offenses the defendant might be bailed hefore indictment, but not afterward. The reasons for the distinction were that before the indictment the court had access to the depositions and testimony on which the charge was based, and in the other case could not, because the grand jury were required to keep the testimony before it secret ; and the court, having no means of inferring 6therwise, would therefore always imply that the grand jury had not indicted on insufficient proof, and so refuse bail. id. 24. But it is provided by the revised statutes that " every grand jury may appoint one of their number to be a clerk thereof, to preserve minutes of their proceed- ings, and of the evidence given before them," &c., so that the court may now be possessed of all the evidence taken before them. The hail in capital cases, therefore, is now open to consideration to the same extent after as before indictment. (See 3 R. S. 5th ed. 1016.) id. 25. It seems to be settled by authority that the court will, in all cases, capital or otherwise, exercise its discre- tionary powers, and admit to bail when, from the testimony under which the accused is held, it is indifferent whether he is innocent or guilty — in other words, when, upon an examination of the testimony the presumption of guilt is not strong ; and it is particularly called upon to bail in BAIL. 57 all cases where the presumptions are decidedly in favor of the innocence of the accused. id. 26. On a motion to admit to bail on an indictment for murder, upon the testimony taken before the coroner and before the grand jury, the defendants will not be permit- ted to furnish further proof, either by affidavits or oral testimony, tending to establish their innocence. People V. Eyler, 2 Park. Crim. Sep. 570. New York Oyer and Terminer. Before Oowhs, J. April, ISfs. 27. The court in all cases, capital or otherwise, exercises its discretionary powers to admit to bail, when upon examination of the testimony under which the accused is held, the presumption of guilt is not strong ; and the court is particularly called upon to bail in all cases where the presumptions are decidedly in favor of the innocence of the accused. id. fsSf; 28. The act of April 2, 1850, regulating the police of the town of Watervliet, so far as it takes away from a person charged with an offense the right to give bail for his appearance at the next criminal court having jurisdic- tion, is an infringement of the right of trial by jury, and is unconstitutional and void. People v. Carroll, 3 Park. Crim. Bep. 22. Supreme Court, at Chambers. Before Parker, J. August, 1855. ^fs'; 29. If a police justice in the city of ^N'ew York willfully and intentionally take bail and discharge from custody a person committed on a criminal charge by another magistrate, without notice to the district attorney required by the act of 1846, p. 408, and without having before him the papers required by that act, he is guilty of a misdemeanor under the provisions of 2 R. S. 696 § 39. (See 3 R. S. 5th ed. 980.) People v. Bogart, 3 Park. Crim. Bep. 143. Supreme Court, New York Greneral Term, September, 1856. 30. A police justice in the city of 'Eew York acquires no jurisdiction, and has no authority to take bail and dis- charge from custody till the preliminary steps required by 58 BAIL. the act of 1846 have been duly taken, and until such steps are taken his acts in taking bail and discharging from custody are not judicial acts, and cannot be protected as such. *<^' 31. In an indictment of a police justice for such an offense, it is not necessary to prove that the act was done corruptly. The statute is violated and the penalty in- curred if the act be done intentionally. id. 32. " Straw bail " defined by the city judge in his charge to the jury. id. ^S_ 33. In cases of felony the prisoner cannot demand, as a matter of right, to be let to bail, and he should not be bailed unless the court can, upon all the facts, see that letting to bail will, in all reasonable probability, secure his forthcoming to abide the event of his trial. People v. Dixon, 4 Fark. Grim. Bep. 651. Supreme Court, at Ghanv- bers. Before Birdseye, J. November, 1856. (This case is also reported in 3 Abb. Prac. Rep. 395.) 34. When there is so strong a probability of conviction as to warrant the belief that the person accused would by flight, and at the expense of any mere pecuniary forfeit- ure, seek to evade trial and punishment, he should not be bailed. id. 35. On an application to bail, after indictment, depo- sitions taken before the committing magistrate cannot be looked into. id. 36. After indictment found, a defendant is presumed to be guilty for most purposes, except that of a fair and impartial trial before a petit jury. id. ii^j\ 37. Upon a question of bail, before indictment on a charge of murder, where the accused, having been com- mitted by the coroner, is brought before a justice of this court on habeas corpus, examinations before the coroner may and should be looked into to ascertain whether a crime has been committed, and, if so, the strength of the proofs in support of it; and if such examinations show that the crime, if any, does not exceed the grade of man- BAIL. 59 slaugliter, and a fair doubt exists whether the defendant has committed any felony, bail should be taken. People V. Beigler, 3 Park. Grim. Bep. 316. Supreme Court, at Chambers, Before Strong, J. January, 1857. ^l\ 38. The action of a committing magistrate is not final on the question of admitting to bail. People v. Cun- ningham, 3 Park. Crim. Hep. 520. Supreme Court, at Chambers. Before Peabody, J. September, 1857. 39. "Where the crime charged and the circumstances are such that a bail bond will afford reasonable assurance that the accused will appear to stand trial, it is his right that the bond should be accepted in lieu of his personal detention. id. 40. The right to detain for trial, being a restraint upon personal liberty, is limited to the necessities of society, and when other adequate security can be had, the neces- sity for personal detention does not arise, and a resort to it is not warranted by law, but is illegal, unjust and oppres- sive, id. 41. In determining whether such security would be adequate, it is necessary to consider the nature of the offense charged, the probabilities of conviction, the penalty to follow it, and the position, sex, social and family rela- tions, and pecuniary means of the accused. id. °|^ 42. Though the action of a committing magistrate or court, on the question of admitting to bail, is the sub- ject of review by an appellate jurisdiction, yet it is final as to other magistrates or courts of co-ordinate or concur- rent authority on the same question. People v. Cunning- ham, 3 Park. Crim. Bep. 531. Supreme Court, New York General Term, October, 1857. 43. Where bail had been refused by the committing magistrate, and also by the court of general sessions, in which court the indictment was pending, and a justice of the Supreme Court afterward decided, at chambers, to admit to bail, the decision of the justice was reversed, on certiorari, by the Supreme Court, sitting in general term, 60 BAIL.. on the ground that the question was res Judicata when brought before the justice of the Supreme Court. id. 44, But when bail has been refused on account of insuf- ficiency, the decision does not preclude a new application for a discharge on offering other bail. id. 45. Forms of writ of certiorari for review of decision of judge at chambers admitting to bail ; allowance of writ, and affidavit on which writ was allowed. id. fg|^: 46. Whether a prisoner in confinement, in pursu- ance of a final judgment, can be admitted to bail after an allowance of a writ of error, where there is no direction therein that the same shall operate as a stay of proceedings,, doubted by Lott, J. Bempsey v. The People, 5 Park. Crim. Rep. 85. Supreme Oourt, Kings General Term, February, 1860. fs'eS: 47. The court possesses the power to let to bail for murder even after indictment ; but they never exercise it unless after a trial and a disagreement of a jury, or in some other manner, there appears to be great doubt of a conviction ever being obtained. People v. Collins, 20 Mow. Prae. Bep. 111. New York Oyer and Terminer. B^or'e Bdkom, J. December, 1860. 48. The prisoner in this case having been legally com- mitted to jail for the crime of murder, by a regular inqui- sition of a coroner's jury, and it appearing that there was probable cause for charging him with such offense, held, that he should not he let to hail, but should be remanded to prison, there to await the action of the grand jury. id. ^Zt 49. The Eevised Statutes, {tit. 2, chap. 2, part 4,) sections seven and eight, provide, (in reference to the arrest of criminals,) that if the offense charged in the warrant be not punishable with death, or by imprisonment in a state prison, the prisoner may be let to bail by a magistrate of the county in which he is arrested. By sec- tion eleven, it is provided that " if the offense charged in the warrant be punishable with death or with imprison- ment in a state prison, the officer making the arrest shall convey the prisoner to the county where the warrant was BAIL. 61 originally issued, before some magistrate thereof, as in the next section prescribed." Section twelve provides, that persons arrested under any warrant issued for any offense, shall, where no provision is otherwise made, be brought before the magistrate who issued the warrant, or, if he be absent, or hia office vacant, before the nearest magistrate in the same county. The subsequent sections provide for an examination before such magistrate, and for letting the prisoner to bail, in case of commitment. Held that these sections of the statute prohibit equally a "justice of the Supreme Court" with a justice of the peace, from the exer- •ciae of the power of letting to bail any person arrested out of the county in which the warrant for his arrest was issued, where the crime alleged is a state prison offense, notwith- standing that section 29, of title 2, empowers justices of the Supreme Court to let to bail in all cases, while "justices of the peace" can only take bail in cases of misdemeanor, and certain specified cases of felony. People v. Ghapman, 30 How. Prac, Bep. 202. Supreme Court, Seventh District, General Term, March, 1865. 60. The latter section (29) relates only to the grade of crimes, in respect to which the several classes of magi- strates therein specified may let to bail. id. me 51' '^^^ legislature had the power, notwithstand- ing the constitution of 1846, abolishing the office of Su- preme Court commissioner, to authorize county judges to do all the acts under such constitution that could be per- formed by Supreme Court commissioners, in letting to bail persons dharged with crime prior to the adoption of that constitution. People v. Hurlbutt, 44 Barb. 126. Supreme Court, Broome General Term, July, 1865. 52. And when the legislature enacted that county judges, when not holding court, may do whatever acts judges of the court of common pleas, being of the degree of counselors of the Supreme Court and acting as Supreme Court comissioners, could do on the 12th of May, 1847, they conferred the power on county judges to let to ibail 62 BAIL. persons charged witli crime, whether indicted or not, in all cases where a justice of the Supreme Court can let to bail. id- 53. And county judges, though not counselors of the Supreme Court, may now do whatever acts Supreme Court commissioners might perform prior to the constitution of 1846. id. 54. Hence they are authorized to let criminals to bail, though the latter are indicted for crimes not cognizable by the courts of sessions of their respective counties, id. 55. And the certificate of acknowledgment of a county Ijudge is entitled to be read in evidence, or recorded in another counly, without being authenticated by the clerk of the counly of which the officer is judge ; whether such judge is or is not of the degree of counselor of law. id. 56. Where a person charged with crime is confined in a county jail, the county judge of another county is author- ized to take the acknowledgment of the execution of a recognizance by the prisoner's sureties, within the latter county, in order that the recognizance may be sent to and acknowledged by the prisoner, and he be let to bail. id. 57. As the statute only requires that recognizances in criminal cases, not taken in open court, " shall be in writing, and shall be subscribed by the parties to be bound thereby," it is only necessary that the criminal should appear before the judge, to confer jurisdiction upon such judge to let him to bail. This is all the statute requires. id. 58. The judge has authority to accept of individuals as sureties in the recognizance, though they do not person- ally appear before him. The better practice, however, is for the judge to require the person desiring to be let to bail, to bring his sureties before him ; and a judge would be justified in refusing to let a person to bail whose sure- ties do not personally come before him. Per Balcom, J. id. 59. Where an acknowledgment of the recognizance is upon it at the time the recognizance is . presented to the judge who lets the prisoner to bail, which acknowledg- BAIL. 63 ment was taken before another judge, the judge letting to bail will be deemed to have approved of such acknow- ledgment ; and his approval of what has been done is equivalent to a precedent authority, id. 60. Where a recognizance had upon it this indorsement, " Filed Feb'y 25, 1863," not signed by any one ; Held, that the presumption was that the paper was filed in the office of the clerk of the county where the prisoner was let to bail ; and upon that assumption, it became a record, id. ?sJ5: 61. Where a person is indicted for crime before his arrest, a police justice or a justice of Supreme Court has no power to let him to bail during the session of the court having jurisdiction to try the indictment; and even thee it might be considered res adjudieata if the court during its session should pass upon such an application. Bahcock't case, 2 Ahh. Prac. Bep. 204, (second series.) Swpremi Court, First District, at Chambers. Before Ingraham, J. December, 1866. 62. The court of sessions are not authorized, upon such an indictment and arrest thereon, to send the case tea police justice for examination; and an order assumingto do so does not affect the question of power to bail. id. fg^f; 63. The fact that upon a former trial for murder, the jury disagreed, is not, of itself, a controlling reason for admitting the prisoner to bail pending a second trial. The principles which govern criminal courts in allowing per- sons charged with crime to go at large on bail, stited. Cole's ease, 4 Abb. Prac. Bep. 280, (new series.) Supreme Court, Third District, Special Term. Before Hogeboom, J. August, 1868. (This case is also reported in 6 Park. Grim. Eep. 695.) 64. Where, on a first trial for murder, the jury disagreed, but there was no neglect or delay on the part of che pro- secution, in moving a second trial, and no satisfactory evidence that the prisoner was unable to bear the confine- ment, and the proofs against him upon the principal charge were of a grave character; Held, that an application to 64 BAIL. discharge Hm on bail until tlie second trial, should be denied. i. conspired with any person, whether named in the indictment or not, though there might not be suf- ficient evidence before them to convict such person if on trial, they may, nevertheless, convict D. id. 3: 21. An indictment charging a conspiracy, by cheat- ing and defrauding a person of his money, need not state the means by which the conspiracy was effected. People V. Scholtz and Scott, 2 Wheel. Gases, 617. Golden, Mayor. New York, September, 1820. °°'„ 22. A., B. and C. agreed together that A., who was not responsible, should go to D., E. and F., respectively, and fraudulently purchase goods of each of them, on credit, representing himself as a person of wealth and credit, and uniformly referring the owners of the goods, for information as to his standing and competency, to B., who, upon every such application, should falsely represent that A. was a person of wealth and credit, for the purpose 114 CONSPIRAOy, of inducing the said owners to trust A. upon his sole responsibility; and that he, after having so obtained the goods, might deposit them in the custody of B, and C, the more easily to convert them to their own use, without paying any adequate value therefor. It was held, that such an agreement is a conspiracy. Lewis, Thompson, and Turner's case, 5 City Hall Recorder, 129. Before Golden, Mayor. New York, October, 1820. JJS"' 23. For several persons to agree, and bind them- selves by a bond or covenant, to do or not to do that which, if done, or not done, would injure an individual or indi- viduals, in person, property, or reputation, is a conspiracy. Emanuel, Dunlap and Miller's case, 6 City Sail Record- er, 33. Before Riker, Recorder. New York, June, 1821. 24. It seems that any confederacy to do that which will injure an individual, is a conspiracy, though it might be just and lawful for either of the parties to such con- spiracy, individually, to meditate and accomplish such act. id. 25. On the trial of an indictment for a conspiracy against several sailor boarding-house keepers, for combin- ing and binding themselves together not to ship any sea- men at the offices of certain notaries, it was held, that any abuses which might have been practiced by such notaries in shipping seamen, furnished no defense, and could not be given in evidence. id. \^i\ 26. In a prosecution for a conspiracy, the separate acts of the accused, indicating a confederacy, shall go to the jury ; though there must be positive or circumstantial evidence sufficient to establish such confederacy. War- Tier's case, indicted with Roswell, 6 City Sail Recorder, 55. Before Riker, Recorder. New York, July, 1821. ■^?jf; 27. Where, during a negotiation between De Grass and Keys for the sale of a sloop by De Grass to Keys, Smith represented to De Grass that Keys was good, and that the title of lands described in a certain bond and mortgage about to be assigned as security for the sloop, CONSPIKACY. Ill was also good ; and this assurance appeared to have beei made by Smith bona fide, and his character was good. Or a trial against Keys and Smith for conspiracy to defrauc De Grass of the sloop, it was considered that, whatevei might be the fraud practiced by Keys, there was no eon spiracy between Keys and Smith. People y. Keys anc , Smith, 1 WJieel. Cases, 275. Biker, Becorder. New Yorh April, 1822. {^ 28. Conspiracy is an agreement or combination be tween two or more persons to do an unlawful act, or tc accomplish a purpose lawful in itself, by means that ar< criminal or unlawful. People v. Trequier and others, ] Wheel. Gases, 142. Biker, Becorder. New York, Janu ary, 1823. *^^!'' 29. If A. and B. go into the house and store o: C, and in the presence of his wife take away the property of C. and others, it is a conspiracy, although C. may b« indebted to A. and B. to a large amount, and is -in in solvent circumstances, and no prospect of the debt beinj paid. The trespass is merged in the misdemeanor. Peo pie V. Bradford and another, 1 Wheel. Cases, 219. Biker Becorder. New York, March, 1823. 30. * Where two go to a merchant and falsely represeni that one of them is an agent for the Providence packet and for which he wants supplies, and selects goods foi which cash is to be paid on delivery, and one of then afterwards brings an order for the goods from the other and obtains them without payment, and he who gave th( order indorses a forged note to the merchant in payment it was held that the jury might, from the facts and circum stances, infer a conspiracy between the two to cheat th< merchant of his goods. People v. Masher and Woods, ] Wheel. Cases, 266. Biker, Becorder, New York, March 1823. JJ^- 31. An indictment for conspiracy was, that th( defendants, intending unlawfully, by indirect means, tc cheat and defraud a certain incorporated company, (naming 116 CONSPIRACY. it,) and divers otkers unknown, of their effects, did fraudulently and unlawfully conspire together, injuriously and unjustly, by wrongful and indirect means, to cheat and defraud the company and unknown persons of their affects ; and that' in execution thereof, they did, by cer- tain undue, indirect and unlawful means, unlawfully cheat and defraud the company and unknown persons of , "divers effects. The court for the trial of impeachments and the correction of errors being equally divided on the question, whether this was a valid indictment, it was de- cided by the casting vote of the president that it was defective ; and the judgment of the Supreme Court sus- taining it was reversed. Lambert v. The People, 9 Oow. Hep. 577. Court of Errors, Deaember, 1827. 32. Where an indictment for a conspiracy does not set forth the object specifically, and show that such object is a legal crime, it should particularly set forth the means in- tended to be used by the conspirators ; and show that those means are criminal. Otherwise, it charges no crime which the law can notice. id. 33. "Where such a fraud as may be punished criminally is actually committed by several persons, in pursuance of a conspiracy between them for that purpose, the con- spiracy, as such, is not indictable, but the fraud only. Per Spencer, Senator, id. 34. Whether an indictment lies for a conspiracy to pro- duce a mere private injury which is not a legal crime, and would not affect the public nor obstruct public jus- tice ? Quere. Per Spencer, Senator. 35. An indictment charging generally that the defend- ants conspired to defraud an individual, and not show- ing the intended means by which the fraud was to be compassed, is bad. id. 36. Provisions in the new revised laws (pt. 4, ch. 1, tit. 6, §§ 8, 9, 10 ; see 3 E. S. 5th ed. 972, 1028) on the sub- , ject of conspiracy, with the reasons in their favor as CONSPIRACY. 117 rendered by the revisors. !N"ote (h) at the end of the case. id. 37. English and American cases and authorities cited, stated and commented upon in reference to the following questions : Whether a conspiracy to commit a private fraud, or a fraud upon a private individual, or any other wrong not punishable as a crime, . be indictable, and in what cases ; whether a conspiracy to commit a fraud on an insurance corporation or other corporation, for the public benefit, be indictable, the means in each case not being other than the mere act of conspiring; whether charging by indictment simply a conspiracy to cheat, without saying what kind of cheat, imports a cheat punishable criminally ; whether in charging a conspiracy to commit either a civil or criminal fraud, it be necessary to set out the means beyond the act of conspiring ; and whether a conspiracy to commit a crime shall be merged or absorbed by being carried into effect. Per Steibins^ Senator. id. 38. At common law, an indictable cheat was such only as affected the public ; such as common prudence would not guard against. The law was altered and extended, by statute, to all cheats by false pretenses. In all cases an indictment for a cheat must set out, particularly, the false token or pretense. Fer Spencer, Senator ; conceded per Stebbins, Senator. id. ^^^„\ 39. The crime of conspiracy to effect an unlawful act is perfect when the agreement to do the act is con- cluded ; no overt act is necessary to be shown. People v. Mather, 4 Wend. 229. Supreme Court, May, 1830. (This case was tried before the Revised Statutes went into effect.) 40. All who accede to a conspiracy after its formation, and while it is being executed, become conspirators, id. 41. "When a new party, with a full knowledge of the facts, concurs in the plans of the conspirators as originally formed, and comes in and aids in the execution of them, 118 CONSPIRACY. he is from that moment a fellow conspirator ; his concur- rence, without particular proof of an agreement to concur, is conclusive against him. He commits the offense when- ever he agrees to become a party to the transaction, or does any act in furtherance of the original design. id. 42. The fact of conspiring need not be proved ; if parties concur in doing the act, although they were not previously acquainted with each other, it is a conspiracy. id. 43. If the agreement be entered into in one county, and the conspirators go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of the agreement ; such oyert act of any one of the conspirators, in furtherance of the common design, is considered in law a renewal or rather continu- ance of the original agreement by all the conspirators, id. 44. The venue may be laid in the county where the agreement was entered into, or where an overt act was done by any of the conspirators in furtherance of their common design. id. 45. A conspiracy to commit a misdemeanor is not merged in the misdemeanor, the result of the conspiracy when committed ; where the crime perpetrated is of a higher grade of offense than a misdemeanor, the misdemeanor is merged in the crime. id. 46. In an indictment for a conspiracy, it is not necessary to set forth the overt acts relied on as evidence of the de- fendant's guilt, where a legal offense is charged, e. g., a conspiracy to assault and false imprison a citizen. The unlawful agreement is sufficient to convict. It is usual, but not necessary, after stating the conspiracy, to allege thatnn pursuance of it certain acts were done. id. 47. An indictment for conspiracy, charging the defend- ant to have conspired with divers persons to the jury un- known, is goodj notwithstanding that the conspirators are known to the jury, and their names might have been set forth. ' id. CONSPIRACY. 119 iS: 48. A conspiracy of journeymen workmen, of any trade or handicraft, to raise their wages, by entering into combinations to coerce journeymen and master workmen, employed in tbe same trade or business, to conform to rules established by such combination for the purpose of regulating the price of labor, and carrying such rules into effect by overt acts, is indictable as a misdemeanor ; and it was accordingly held, where journeymen shoemakers con- spired together and fixed the price of making coarse boots, and entered into a combination that if a Journeyman shoe- maker should make such boots for a compensation below the rate established, he should pay a penalty of ten dollars ; and if any master shoemaker employed a journeyman who had violated their rules, that they would refuse to work for him, and would quit his employment, and carried such combination intp effect by leaving the employment of a master workman, in whose service was a journeyman who had violated their rules, and thus compelled the master shoemaker to discharge such journeyman from his employ; that the parties thus conspiring were guilty of a misde- meanor, and punishable accordingly. People v. Fisher, 14 Wend. 9. Supreme Court, July, 1835. 49. A previous indictment, for the same offense, is no bar to a second indictment, although upon the first the defendant has been arraigned and pleaded. By our Re- vised Statutes the first indictment is superseded by the second, and liable to be quashed. Id. (See 3 E. S. 5th ed. 1018.) 5^^; 50. To constitute the offense of conspiracy, there must be a conspiracy to cheat and defraud some person of his property. Although there may have been an inten- tion to defraud, yet if the means used could not possibly have that effect, the offense is not complete. March v. The People, 7 Barb. 391. Supreme Court, Onondaga Gen- eral Term, November, 1849. 51. On an indictment against two, for a conspiracy to 120 OONSPIEACY. cheat, the judgment should be against each defendant, severally, and not against them jointly. id. S: 52. Under the Revised Statutes, an indictment in all cases of conspiracy, except to commit felony upon the person of another, or to commit arson or burglary, must contain a charge of one or more overt acts, some or ope of which must be proved upon the trial to have been done to effect the object of the conspiracy. People v. Ohase, 16 Barb. Bep. 495. Svpreme Court, Erie General Term, November-, 1853. 53. WTiere there is a conspiracy to induce a witness to suppress evidence, or give false evidence, and the con- spirators apply to him for that purpose, and persuade him to abscond, or conceal himself, such application and per- suasion are overt acts, whether they succeed with the wit- ness or not. ^ . id. 54. Thus where an indictment alleged that an indict- ment for felony was about to be preferred against one C. before the grand jury ; that S. was a material witness to prove the charge; that the defendants conspired and agreed together to induce S. to suppress her evidence, and to withdraw and conceal herself in order to prevent her being examined as a witness ; and that the defendants, in pursuance of such conspiracy, did unlawfully, willfully and ooftuptly hire, persuade, induce and procure S. to with- diraw herself out of the jurisdiction of the state, and to go away from the county of E., and to withhold her attend- ance from the grand jury ; Held, that the overt acts were sufficiently alleged. id. 55. To justify a conviction upon .such an indictment, it is sufficient to prove the making of the propositions to the witness, by the defendants, without showing that she acc^ted the same, or went away in pursuance thereof, id. *is6*' 56. An indictment for a conspiracy to cause one L. to be arrested for the crime of larceny, averred th-at^ in pursuance of the conspiracy, the defendant caused and procured one W. to appear before a police justice and CONTEMPT. 121 complain of L. for larceny, and false swearing that L. bad stolen money from her. The conspiracy was sought to be established by the act of procuring W. to make the com- plaint and falsely swear to the larceny committed. Held, that the facts did not show that "W". in so swearing com- mitted the crime of perjury, and consequently the defend- ant was not guilty of the offense of subornation of peigury ; and it followed that no felony being established, no merger of the misdemeanor in it did or could take pliace. Elkin V. The People, 28 K Y. Rep. 177. Court of Appeals, March, 1863. 57. An indictment for a conspiracy, which avers that the accused, with another person, conspiued unlawfully and maliciously, to procure a third person to be arrested for the offense of larceny, well knowing that he was not guilty of said offense, follows the statute, substantially, and contains all the needful averments to sustain a con- viction, id. Contempt. i^f*; 1. To publish any matter in a public newspaper, reflecting on the conduct of jurors or witnesses in a case, or calling in question the propriety of a judicial proceed- ing, during the pendency of such case, and while it is undetermined, is a contempt of court. In the several mat- ters of Mordecai M. Noah and Alden Spooner, 3 City Hall Becorder, 31. Before Badcliff, Mayor. New York, Feb- ruary, 1818. 2. There is no question but that the court of general sessions in the city of New York can, legally, proceed by attachment against a party guilty of a contempt, not com- mitted in the face of the court. id. 3. It seems, that where the contempt complained of was in a public newspaper, which (accompanied by an aifidavit that the defendant was the publisher) was read and filed, when the rule, to show cause why an attachment should not issue, was entered, that it is not necessary on the day 122 CONTEMPT. for stowing cause, that the public prosecutor should show that a copy of the matter alleged as a contempt was served with the copy of the rule, on the party called on to show cause. At least, an objection that a copy of such matter did not accompany the rule, is hypercritical. id. 4. But in such case, on the day for showing cause, it is the practice for the public prosecutor to proceed to' point out the matter alleged as a contempt ; and if the party charged does not show sufficient cause, or purge the con- tempt, (should it be so considered by the court,) the rule for an attachment will be ordered; on the return of which process the district attorney proceeds to file interrogatories with the clerk, to be read by him to the party on oath. But on the day for showing cause, the party, by showing sufficient cause, or purging the contempt, may have such rule discharged. id. uis': 6. To assert of, and concerning the grand jury as a body, while they are sitting, that they are incompetent to the discharge of their duty, or to make such assertions con- cerning any individual on the jury, is contemptuous ; but such assertion relative to an individual member is not such a contempt as will induce the court to proceed against the party by attachment. In the matter of Isaac A. Van Sooh, 3 City Hall Eecorder, 64. Before Colden, Mayor. New York, May, 1818. 6. The answers of the party, under oath, to whom inter- rogatories are administered, in a matter of contempt, must be relied on as true. id. fsfo^ 7. The proceedings against a party, for a contempt of court, need not be entitled until the attachment issues ; nor is it necessary that any person should be named as the complainant. In the matter of Alden Spooner, editor, &c. 5 City Hall Recorder, 109. Before Colden, Mayor. New TorJc, September, 1820. 8. To publish even defamatory matters concerning a grand juror, not impeaching his conduct or capacity as such, is not a contempt of court. id. CONTEMPT. 123 9. To support tlie proceedings against a party for an attachment to punish him for a constructive contempt in a publication, its language ought to be explained, and the contempt palpable ; for the court will not undertake to punish a party for this species of contempt, by construc- tion; especially where, on showing cause, he denies under oath any intention to commit a contempt. id., fg^", 10. The sum for the non-payment of which a commitment is ordered, need not be named in the order, but may be ascertained through a reference thereby di- rected to the proper officer ; and the officer's report, when perfected, though made after the order, is to be regarded as a part of it. The People ex. rel. Johnson v. Nevins, 1 Hill, 154. Supreme Court, January, 1841. 11. The jurisdiction of counts of record as to tla.e person, in cases of commitment for contempt, is to be intended, id. 12. A rule of a court of record that a defendant be com- mitted for contempt, need not recite the prior proceedings ; if it is such a rule as the court might legally make under any supposable state of circumstances, all jurisdictional steps and matters of regularity are to be presumed. id. 13. For defects in respect to matters of regularity, the only remedy is by motion. id. 14. Jurisdiction of the person once acquired, by arrest under an attachment for contempt, continues while the case is under examination, whether the defendant remain in actual custody or not. id. 15. Under a non-bailable attachment, it is the duty of the sheriff to hold the defendant in custody till he is dis- charged in due form, bringing him before the court on the return of the writ. id. 16. At common law a rule for commitment, made by a court of record, need not show the cause of commitment ; but the Eevised Statutes require that it should. id. 17. It is enough, however, that the cause be substan- tially stated, though without technical precision ; and the rule in this case, mentioning a previous order to pay 124 CONTEMPT. money wliicli the defendant had not complied with, suf- ficiently showed that the cause of commitment was for a contempt. id. 18. SemUe, a Supreme Court commissioner has not jurisdiction to discharge a defendant from custody, be- cause the proceedings for his commitment are informal merely. id. 19. Quere, whether he can do so, in case of commitment for an alleged contempt by a superior court, for the reason that, in his judgment, the offense charged was not a con- tempt, id. 20. The Eevised Statutes have not taken away from courts of record their common law power of committing for contempts by rule merely, without other process. id. 21. Though conceded that^ at common law, an inferior court cannot commit without a regular warrant. id. 22. The statute provision as to a precept against one disobeying an order to pay costs, was designed to furnish a mode of proceeding less circuitous than that of the com- mon law ; and either mode may be adopted at the election of the party. id. 23. The term process, as used in 2 R S. 444, § 25, in- cludes a rule or order of commitment. id. 24. The legal signification of this term, generally, dis- cussed and illustrated. Id. (See R. S. 5th edition, vol. 3, 849.) fjfj- 25. The provisions of title 13, chap. 8, part 3, of the Revised Statutes, not being inconsistent with those of the Code, fall within the exception in § 471 of the Code, and are not repealed. People v. Oompton and others, 1 Duer's Bep. 512. Superior Court, February, 1853. 26. Under that title, no person can be punished as for a contempt, unless it appears that his misconduct has tended to defeat, impair, &c. the rights or remedies of a party in a cause then depending in the court ; but when this misconduct is proved, the powers of the court are not limited to the imposition of such a fine as may be suffi- CONTEMPT. 125 cient to indemnify tlie party aggrieved, or to the impris- onment of the accused for the sole purpose of enforcing the payment of such fine, but extends to the punishment of the accused, when the misconduct is, in its nature, a " criminal contempt," , id. 27. When the niisconduct is an act of disobedience to its lawful process, if the disobedience is shown to be "willful," the court has the power and is bound to pun- ish it as a " criminal contempt." id. 28. In such cases, although no actual loss requiring an indemnity is shown, the court may impose a fine not ex- ceeding $250, and imprison the accused for a term not exceeding six months, for no other purpose than that of punishment. id. 29. Hence, to enable the .court to exercise its discre- tionary power of punishment, interrogatories which are designed to show, by the answers of the accused, the true nature and character of his misconduct, must be an- swered, id. 30. Held, therefore, that the defendants were bound to answer whether they had voted for certain resolutions, the passage of which was relied on as evidence that their disobe- ' dience to an injunction was intentional and willful. id. 31. Held, also, that in all proceedings as for a contempt in a civil action, unless the contempt is shown to be crim- inal in its nature, the court can enforce no fine beyond the costs and expenses of the relator, except as a compensa- tion for an actual loss. id. ^^^_' 32. A surrogate's court is a court of record within the meaning of the Revised Statutes relative to proceed- ings as for contempts to enforce civil remedies, &e., and it has, therefore, the same power as other courts, to punish persons guilty of contempt, and issue attachments for that purpose. But it has no power to enforce by an attach- ment against the person an order for the payment of money, if the money may be collected under an execu- tion; it has, therefore, no power to compel by such an 126 CONTEMPT. attachment the payment of money due from an executor or administrator to the estate. In the matter of J. W. Latson, 1 Drier's Eep. 696. Superior Court, at Chambers. Emmet, J. April, 1853. 33. A judge, under § 302 of the Code, has power to pun- ish, as for a contempt, all disobedience of orders made by him in "proceedings supplementary to the execution." An attachment issued by him for such contempt may, therefore, properly be made returnable before , him, at his office. In the matter of the application of Henry D. Smethurst, 4 Mow. Prac. Rep. 369. Superior Court, at Chambers, before Mason, J. 34. Although the Code gives the power of punishing disobedience of his orders to the judge, reference must be had to the Revised Statutes as to the mode in which that power is to be exercised. id. 35. Under this statute a judge, upon due proof may, in his discretion, issue an attachment in the first instance, against the party accused, to appear and answer, or he may grant an order to show cause. In either case, copies of" the affida- vits upon which the application is founded, should be served with the attachment or order. It is not necessary that the party accused should first have an opportunity of being heard upon an order to show cause before an attachment can issue. The attachment is not issued in such in- stances, for the purpose of punishment, after a final ad- judication. It is only a mode of bringing the party before the court. id. 36. "Whether the affidavits upon which an attachment is issued are sufficient to warrant its issuing, is a matter that cannot be reviewed on habeas corpus. id. P/sJ: 37. The question, upon what terms a party com- mitted for non-payment of a fine imposed upon him for a contempt may be relieved, is one for the discretion of the tribunal imposing the fine, and is not the subject of an appeal to this court. People v. Delvecchio, 18 N. Y. Rep. 352. Cowrt of Appeals, December, 1858. CONTEMPT. 127 38. So, also, of the evidence required to establish his inability to comply with the terms of the order imposing the fine. id. ^l[ 39. On a habeas corpus, in a case of commitment for a contempt, only two questions can be examined; first, as to the jurisdiction of the court or officer making the com- mitment ; and, secondly, as to the form of the commit- ment. If the jurisdiction is undoubted, and the coifl- mitment is sufficient in form, and contains the cause of the alleged contempt plainly charged therein, by some court having authority to commit for the contempt so charged, the prisoner must be remanded, and not dis- charged. The court has no power to, inquire into the justice or propriety of the commitment. People v. The Sheriff of New York, 29 Bari. Bep. 622. Supreme Court, New York General Term, May, 1859. 40. Nor can the Supreme Court review, upon certiorari, the judgment of a court ordering a commitinent for a contempt. id. fsl^: 41. Where a judgment of this court, at general term, upon proceedings on certiorari, amongst other things, ordered that the defendant, Thomas Kearney, deliver to the relators the infant children, Catharine Laffin and Mary Ann Laffin, who were adjudged to be entitled to their custody and care, and upon demand by the rela- tors, of the defendant, for the delivery up of such children, in pursuance of such judgment, and a refusal by the defendant to comply with such demand, held, on proceed- ings upon attachment against the defendant, by which it appeared that the defendant had removed the children to a foreign country pending the certiorari, that the defend- ant was in contempt, and must suffer the consequences. People v. Kearney, 21 How. Prac. Bep. 74. Supreme Court. Poughkeepsie General Term, February, 1861. PsIJ: 42. The refusal of a witness to answer a proper question before a grand jury, is punishable as a contempt under the statute, (2 E. S. p. 534, § 1; p. 735, § 14; 3 R. 128 COURTS OF SESSIONS. S. 5th ed. 841, 1027,) as committed in a proceeding upon an indictment. People ¥. Hachley, 24 N. Y. B^p. 74. Court of Appeals, December, 1861. 43. "When the refusal was reported by the grand jury- to the court, in the presence of the witness, who did not deny, but justified the same, and reiterated the refiisal, the contempt is one " in the immediate view and presence'of the court," and no affidavit or further evidence is requisite to a commitment. id. 44. The appellate court, before which the propriety of a commitment, for contempt is brought by certiorari, or even collaterally on habeas corpus, is bound to discharge the prisoner when the act charged as criminal is neces- sarily innocent or justifiable, or where it is the mere assertion of a constitutional right. id. 45. The adjudication of the court in which the alleged contempt occurred, while conclusive that the party commit- ted the act whereof he was convicted, and of its character, when that might, according to the circumstances, be meritorious or criminal, cannot establish as a contempt that which the law entitled the party to do. id. S: 46,. The Supreme Court cannot punish, as for a contempt, a disobedience of an order made by. a judge out of court, unless such order is made in an action pend- ing in the court. People v. Brennan, 45 Barh. Rep. 344. Supreme Court, New York General Term, November, 1865. 47. A judge out of court has no authority to punish, as for a contempt, a disobedience of an order made by him, in a statutory proceeding before him, unless authority so to punish is expressly confined to law. id. CouETS OF Sessions. (Chapter 339, of Session Laws of 1859, § 4, enacts as follows : " The courts of sessions of the several counties in this state shall have power to grant new trials upon the merits, or for irregularity, or on the ground of newly disr- covered evidence, in all cases tried before them.") COURTS OF SESSIONS. 129 P^SS; 1. Tlie court of general sessions, being an inferior court, has no power to grant a new trial after a verdict on the merits; and a mandamus may be awarded to compel them to give judgment on the verdict. Peopler. Sessions of Qhenango, 1 Johns. Oases, 179. Supreme Court, October, 1799. f/i^: 2. The general sessions of the city and county of New York have jurisdiction over offenses committed on Governor's Island, notwithstanding it has been ceded to the United States, and notwithstanding it has been declared in the act of cession, the place shall hereafter be subject to the jurisdiction of the United States. Peojple v. Dent, 2 fFheel. Oases, 548. Oolden, Mayor. New York, Feb- ruary, 1819. 3. A plea to exclude the jurisdiction of the sessions must show that the place was purchased by the United States ; being subject to their jurisdiction is not sufficient ; and it must appear by some act, on the part of the gov- ernment, that they intend to exercise exclusive jurisdic- tion, id. 4. Some powers of the general government are, from their nature, exclusive; there are other powers where congress h-as a right to exclude the state authority, but until they do so the jurisdiction of the state is not taken away. id. I'^l; 5. A court of general sessions may return or remit an indictment to the oyer and terminer holden in the same county, which was originally found in and remitted from the oyer and terminer. People v. Gay, 10 Wend. 509. Supreme Court, July, 1833. (See R. S., vol. 3, 5th ed. 303.) 6. A person admitted to bail is, constructively, in pris- on, his bail being his keepers. id. °°'5 7. A court of general sessions has no power to grant a new trial to a prisoner convicted of embezzlement. Peo- ple V. Dalton, 15 Wend. 582. Supreme Gourt, October, 1836. S: 8. It is no objection to the validity of a record of conviction by the genera.1 sessions, that the judge who 130 COURTS OF SESSIONS. signed it was not such whei^ the conviction took place, but received his appointment afterward. Stevens v. The People, 1 Hill, 261. Supreme Court, May, 1841. 'S. 9- Courts of sessions, as organized under the judiciary act of 1847, have not power to grant new trials. The People v. Qourt of Sessions, 1 Park. Grim. Rep. 369. Supreme Court, Cayuga general Term, June, 1852. 10. 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 awarded to compel the court to proceed and pass sentence. id. Ilsi 11- Since the act of 1851, entitled " an act in rela- tion to courts of sessions," (Sess. Laws of 1851, 825,) a court of sessions cannot be held except in pursuance of a previpus 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 therein di- rected ; 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 ses- sions, on demurrer, the case having been removed into the Supreme Court by certiorari, the conviction was reversed, and the proceedings of the sessions were quashed. People V. Moneghan, 1 Park. Grim. Hep. 570. Supreme Court, Monroe General Term, September, 1854. 12. An order made in these words: "At a term of the county court of the county of Livingston, held at the courthouse in Geneseo, in said county, on the third Mon- day 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," was helcl to be no valid designation COURTS OF SESSIONS. 131 of tlie times for holding the courts of sessions; no court being named or alluded to by the language employed, besides the County court. id. 13. A court of sessions has not jurisdiction to try an indictment for robbery in the first degree, that offense being punishable in the state prison for life ; a trial and conviction in such case are utterly void. People v. ffenries, 1 Park. (Mm. Rep. 579. Supreme Court, Monroe Q-eneral Term, September, 1854. (19 Wend. 192.) 14. (See Sess. Laws of 1865, 347, § 3, as follows : "All criminal offenses (except murder in the second degree, arson, and manslaughter in the first degree,) now pun- ished by imprisonment in the state prison for a term not less than ten years, shall hereafter be punished by impris- onment in the state prison for a term not less than five nor more than twenty years.") ?8|5; 15. On the trial of an indictment in the court of sessions, the county judge presiding at the trial cannot be sworn and examined as a witness ; he cannot act at the same time in the capacity of both judge and witness. People V. Miller, 2 Park. Grim. Rep. 197. Supreme Court, Monroe General Term, December, 1854. (It was decided, in the case of Morss v. Morss, 11 Barb. 510, that one of three referees before whom a cause is tried cannot be sworn and examined, as a witness on the trial.) JUi 16. The court of general sessions in the city of New York have authority to send to the next court of oyer and terminer in that city, any indictment found in the court of sessions, not heard and determined as fully as might have been done before the act of 1855. (That act gives power to the general sessions to hear, determine and punish cap- ital offenses, the same as the oyer and terminer, and upon conviction, providing a writ of error to review such cases before the Supreme Court and Court of Appeals.) The People V. Shephard, 19 How. Prac. Bep. 446. New York Oyer and Terminer. Before Ingrahcim, J. January, 1860. (This case also reported in 11 Abb. Prac. Bep. 59.) 132 COUETS OF SESSIONS. 17. But where the Court of Appeals have granted a new trial in a case of a capital offense, tried in the court of general sessions, on the ground alone that the verdict of the jury was contrary to evidence, and have sent it back to the general sessions for trial, the case should not, especially without any reason assigned, be sent to the oyer and terminer for such new trial; it should be had in the general sessions. id. S 18- Where a person was indicted in a court of ses-' eions for rape, with but one count in the indictment, In the usual form, and the court of sessions directed a nolle prosequi to be entered for the crime of rape, and the pris- oner was tried for an assault only, and convicted, the con- viction was reversed, and the prisoner discharged. People V. Porter, 4 Parle. Crim. Bep. 524. Supreme Oowrt, Glinton General Term, May, 1860. S: 19- Where E. and B., two acting justices of the peace, were designated as members of the court of sessions of their county for the year 1860, but when so designated were not, within the requirements of the statute, " entitled to serve as justices of the peace during such year, by vir- tue of the election under Which they were acting as such justices at the time of such designation," it was held that the right to act as justices of the sessions could not be questioned on the trial of an indictment before such court, and that it could only be inquired into on a direct pro- ceeding against them by information in the nature of a quo warranto. Nelson v. The People, 5 Parh. Orim. Rep. 39. Supreme Court, Broome General Term, November, 1860. 20. The acts of public officers, de facto, done colore officii, under an irregular election or appointment, are valid as respects the rights of third persons, and so far as concerns the public. id. •^gjj'' 21. The court of sessions has no power to arraign a defendant on, or receive a plea to, an indictment for murder. If it could do that, it must of necessity have received whatever appropriate plea the defendant chose to COURTS OF SESSIONS. 133 put in, a plea of " guilty " as well as of " not guilty." But " a plea of guilty" is tlie highest kind of conviction of which the case admits," (2 Hale, 225,) so that if the defend- ant had put in the plea of guilty, she would have been convicted in the court of sessions of the crime of murder, which is plainly beyond the jurisdiction of the court. (3 E. S. 5th ed. 302, § 5, subd. 2.) PeopU v. McQraney, 21 How. Prac. Bep. 149. Supreme: Gourt, Special Term. Before Parker, J. April, 1861. ^11: 22. An application to a court of sessions for a new ' trial, upon the merits, or for irregularity, or for newly discovered evidence, must be made before judgment. People V. Donnelly, 21 How. Prac. Bep. 406. Supreme Gourt, Brooklyn General Term, May, 1861. 'S: 23. The legislature may constitutionally designate or provide for the designation of justices of the peace to sit in the courts of sessions by any law, general or special. Nelson v. The People, 23 K Y. Bep. 293. Court of Appeals, June, 1861. 24. Accordingly held, that a court of general sessions was properly constituted, where the justices were designated by name in a special act of 1860, and were deficient as to one of the qualifications required by the general law. (Oh. 470 of 1847, § 34 ; 3 K. S. 5th ed. 296.) id. 25. Justices of the sessions are not required to take any official oath other than that which they take as justices of the peace. id. ^fj'll' 26. The court of general sessions of the city and county of !N"ew York have power to grant new tria;ls upon the merits, and on the ground of newly discovered evi- dence. The act of 1859, (Laws of 1859, ch. 339, § 4,) which grants to the courts of sessions of the several coun- ties of the state the power to grant new trials, extends to the courts of general sessions in the city and county of New York. People v. Powell, Court of General Sessions^ New York. Before Hoffman, Becorder. April, 1862. March, 27 Where the term of the court of crfineral sea. 134 COUKTS OF SESSIONS. sions of the city and county of New York is continued, under tlie provisons of the act of 1846, beyond the time prescribed by 2 R* S. 217, § 31, (3 R. S. 5th ed, 312,) by reason of the unfinished trial of a case commenced during the regular term, the court, being legally in seBsion, may proceed to pass judgment upon prisoners previously con- victed. Lowenberg v. The People, 4 Parh- Grim. Rep. 414. Supreme Court, New York General Term, March, 1863. ^1863: 28. The general sessions of New York having pro- tracted its regular period of sitting, in the trial of a cause, was lawfully in session for the purpose of passing judg- ment in another cause in which a conviction had been had prior to the commencement of the trial which prolonged the sitting. Lowenierg v. The People, 27 N. T. Hep. 336. Court of Appeals, September, 1863. 29. It seems, that the court of general sessions of the county of New York is within the statute (ch. 208 of 1859) authorizing courts of sessions in any county to continue its sitting at any term as long as may be necessary. Per Balcom, J. id. im. 30. Where a grand jury was drawn and summoned and attended and acted as such, at a term of a court of sessions, appointed by the county judge to be held at the same time as a county court, the proceedings were held to be valid, although the county judge had omitted to desig- nate in his order that a grand jury was required to attend at that term ; and a plea in abatement, setting up such omission as an objection to the validity of an indictment, was, on demurrer, overruled. People v. Cyphers, 5 Park. Grim. Bep. &QQ. Supreme Court, Broome General Term, January, 1865. 31. "When the justices elected to act as justices of the sessions, fail to appear at the time appointed for the com- mencement of a term of a court of sessions, the county judge has power to designate two other justices of the peace to act as justices of the sessions, instead of adjourn- ing over the court until the next day. id. COURTS OF SESSIONS. 135 ^mt 32. The omission of the county judge to desig- nate, under the laws of 1851, ch. 444, at what terms of the sessions a grand or petit jury shall be required to attend, does not deprive the court of its authority, as such, to im- pannel a grand jury at any of its terms. Cyphers v. The People, 31 N. Y. Bep. 373. Court of Appeals, March, 1865. 33. The law of 1851, ch. 444, is so framed that, in the absence of a designation of any terms to be held without a jury, the general provisions of law respecting the draw- ing and summoning of juries will take eflect, and will require a jury to be drawn and summoned at every term. (See Laws of 1847, ch. 280, § 42.) id. 34. Where the two justices of the sessions fail to attend the court of sessions, the county judge may call upon the J)ench two other justices ; and, subsequently, the two jus- tices of the sessions may appear and take their seats, id. ^^_' 35. The statute of 1859, ch. 208, is applicable to the general sessions of New York, by the provisions of which it may extend its term beyond the third week of the session. Ferris v. The People, 35 N. Y. Bep. 125. Court of Appeals, March, 1866. (This case is also reported in 31 How. Prac. Rep. 140.) 36. Mere irregularities, not affecting the rights of the par- ties, are to be disregarded by the appellate court, in review- ing the decisions of the general sessions of New York. id. 37. A party seeking to reverse its judgment, should allege at least a prejudicial error. id. *J|j«|>' 38. The casual and temporary absence from a seat on the bench of one of the associate justices, he still being within the court room with a quorum in actual attendance, neither breaks up the sessions of the court nor impairs the validity of its proceedings. Tuttle v. The People, 36 N. Y. Bep. 431. Court of Appeals, March, 1867. ^868^' 39. The court of general sessions of the peace, in and for the city and county of New York, is a " court of sessions" of the county of New York, within the meaning of tbfl fl,fit of 1859. rLaws of 1859. chan. 339. S 4.^ it beinar 136 COUETS OF SPECIAL SESSIONS. witlim the description of the words, " The court of sessions of any county of this state." Lanergan v. The People, 6 Park. Grim. Rep. 209. Court of Appeals, June, 1868. (This case is also reported in 5 Abb. Prac. Rep. 113, new series.) Courts ob Special Sessions. S ' !• The 4th section of the act declaring the pow:ers and duties of justices of the peace, (2 R. L. 507, 8 ; 3 R. S. 5th ed. 1000,) and creating 3^ special session for the trial of petit larceny without a jury, is not contrary to any provision in the constitution of the United States, or of this state. Murphy v. The People, 2 Cowen, 815. Supreme Court, May, 1824. \^\ 2. To render a conviction before a court of special sessions valid, it is not necessary that the court should, inform the prisoner of his right to be tried by 'a jury, or that he should expressly waive such right. People v. Q-oodwin, 5 Wend. 251. Supreme Court, July, 1830. (See 3 R. S. 5th ed. 1002, 1003.) Sa'd. 3. A court of special sessions have the power, and it is their duty, to issue a second venire for a jury to try the defendant, if the first jury are discharged because they cannot agree upon a verdict. Vanderwerker v. People, 5 Wend. 530. Supreme Cowt, October, 1830. 4. Continuing a cause over from Saturday until Monday is not keeping the court open on the sabbath, within the meaning of the statute. id. 5. Stating an offense to have been committed in the town of S., without adding the county in which the same is situate, is -sufficient to give the justices jurisdiction ; the court taking judicial cognizance of the towns created by law. id. 6. The supreme court cannot pass upon the question whether the finding by the jury, before a court of special sessions, was against or without evidence ; and, therefore, though the facts of the case be returned, they will not look into them to see whether or not the jury erred. id. OOUETS OF SPECIAL SESSIONS. 137 7. Tlie proceedings of a court of special sessions will not be reversed for the errors of the magistrate before whom the complaint was made. id. S; 8. -A. court of special sessions before whom a con- viction is had, may proceed and cause their judgment to be executed, notwithstanding notice of an intention to remove the conviction and the entering into a recogni- zance by the defendant, if a certiorari is not sued otit. People V, Yates, 5 Wend. 251. Swpreme Court, November, 1830. iS; 9- -^ conviction in a court of special sessions, foimded upon the verdict of a jury, will not be quashed on the ground that the verdict was against evidence. People V. Sou, 12 Wend. 344. Supreme Court, July, 1834. 10. It is not necessary that a defendant "in a criminal proceeding should be present in court when judgment is pronounced, except when corporeal punishment is to be inflicted. id. S. II- -^ justice of the peace is indictable for misbe- havior in his office, when he acts partially or oppressively from malicious or corrupt motives. People v. Coon, 15 Wend. 277. Supreme Court, May, 1836. 12. So an indictment lies against a justice of the peace, who, with the intent to prevent the course of law and jus- tice, discharges an offender brought before him, without requiring sufficient sureties for his appearance to an- swer, &c. id. 13. The indictment, however, in such case, must charge the magistrate to have acted from a corrupt motive, and with the intent to pervert the course of law and justice ; it is not enough to charge the act to have been done fraudulently, corruptly and in violation of duty ; the in- dictment alleging how, and in what particular the offense was committed. id. 14. So, also, it inust be directly and positively charged that the offender was discharged without taking sufficient 138 COURTS OF SPECIAL SESSIONS. , sureties, or surety, in a sufficient sum for his appearance ; it is not enough that it is alleged that the magistrate dis- charged the offender, upon his finding sureties in a small and trifling sum, to wit, $50. The offense cannot be charged argumentatively, or inferentially. id. 15. It is not necessary, iii such an indictment, to state the offense with which the party suffered to escape was charged, with the same formality and precision which would be necessary in an indictment against such offend- er ; it is enough if it be shown that he was charged with a criminal offense, and that 'the proceeding against him was not utterly void. Thus, in this case, where it was alleged that the party suffered to escape had been charged with falsely and fraudulently obtaining the signature of a certain person to a promissory note by means of cer- tain false pretenses, without particularly describing the note, or averring the signature to have been obtained with the intent to cheat or defraud, &c. It was held, that this being matter of inducement, the indictment was not objectionable in this respect. id. JJJf; 16. The right of a court of special sessions to take from the complainant a bond as security for costs, pursu- ant to 2 R. S. 597, § 20, 2d ed. (see R. S. 5th ed., vol. 3, 1004,) depends upon a previous condition, viz., an ac- quittal by legal authority, not a conventional one. Ger- mond and another v. The People ex rel. &e., 1 Hill, 343. Supreme Court, May, 1841. 17. "Where a bond of this nature was taken on the dis- charge of 8. acccused of an assault and battery, and in an action upon it the defendants pleaded that S. having demanded of the special sessions a trial by jury, three jurors appeared, who alone heard the evidence and pro- nounced S. not guilty, whereupon the justices certified, &c. ; held, that a replication alleging this form of trial to have been adopted by agreement between the people's counsel, the complainant and S., whereupon, &c. was bad, as not showing any acquittal hy the court. id. COURTS OP SPECIAL SESSION'S. 139 18. Otherwise, semble, had it appeared by the replica- tion, that after the rendition of the pretended verdict, ^^e court acted on it, and pronounced an acquittal ; for then, though the proceeding might have been erroneous, it would not have been absolutely void. id. 19. The rule that consent will not confer jurisdiction, applies as well to consent in creating a tribunal, as to con- sent in submitting a matter to a subsisting tribunal which the law has excluded from its cognizance. id. 20. The complainant in a court of special* sessions is a party, as it respects the question of costs. id. 21. Semble, that the defendant's right to a jury trial in a court of special sessions may be waived by agreement at any time before judgment, and he be tried by the jus- tices, id. Jjj^; 22. Upon a certiorari to a court of special sessions the Supreme Court, it seems, is restricted from reversing the conviction on the ground that the verdict is against the weight of evidence. But it may examine any other errors in the proceedings and judgment, which appear on the face of the return. Pulling v. The People, 8 Barh. 384. Supreme Court, May, 1850. (See Ceetiokari.) 23. Where a cause pending before a court of special sessions was submitted to the jury at two o'clock in the morning of Sunday, and the jury rendered their verdict about three o'clock ; Held that the conviction was errone- ous, and it was reversed. id. fgsi: 24. Courts of special sessions are courts of special and limited jurisdiction, deriving their powers from the statute ; and, in their proceedings, must pursue the stat- ute strictly; and it is as a court, and not as a justice of the peace, merely, that the magistrate renders judgment, and the record must show that the court was in session when it was rendered. Lattimore v. The People, 10 Mow. Prac. Bep. 336. Supreme Court, Special Term. Johnson, J. Feb- ruary, 1854. 25. Where the record showed that, on the rendition of 140 COURTS OF SPECIAL SESSION'S. the verdict of the jury before a justice of the peace hold- ing a court of special sessions, and at the request of the prisoner judgment was suspended, and the court held open until a future hour in the day at the same place ; and at the latter hour and place the justice was present, but the prisoner did not appear ; and on the next day the prisoner was taken before the justice at another place from where the court was held the previous day, and the justice then and there rendered judgment upon the ver- dict; and orflered and adjudged that the prisoner pay a fine of $15, and stand committed until such fine should be paid. Meld,^dX such judgment was a nullity, because it did not appear that there was any continuance of the court after the preceding day, by holding open, or post- ponement, or otherwise, and it was consequently ended ; and the justice had no power to revive or reorganize a court of special sessions at a subsequent period, for the purpose of renc^en'M^ judgment. id. 26. The statute confers no such power ; and the court which tries, must render the judgment, and it must be done during the continuance of the court at which the trial is had. id. 27. The provisions of the statute which allow the venire to be made returnable not more than three days from its date, applies to any venire which it becomes necessary to issue, whether it is the first, or one issued after a disagreement of the jury. (See 3 Eevised Statutes, 5th ed. 1003.) id. 28. It seems, that an adjournment of a court of special sessions, during a trial, without the assent of the prisoner, would, undter the statute, be erroneous. But the justice may keep such court open, or continue it for a given time, to enable him to render a proper judgment. id. ■^fjj'; 29. "Where a party accused of petit larceny, or assault and battery, is brought before the special sessions of the city of New York, and enters into a recognizance COURTS OF SPECIAL SESSIONS. 141 for his appearance at the general sessions, it must be regarded as an election by him, and as a recognition by the magistrate of his election, to be tried at the general seasionSf and the special sessions thereafter has no jurisdic- tion of the case. And this is so, whether the accused was informed or hot by the magistsate or clerk of special ses- sions, that it was his privilege to elect to be tried at the general sessions, as required by the act of 1855. The People V. Johnson, 19 Sow. Prac. Rep. 11. New York Oommon Pleas, Special Term. Before Daly, F. J. April, 18"60. fg"^; 30. There must be three police justices to hold a competent court of special sessions in the city of New Tork. The forty-eighth section of the act of the legis- lature Qf April 14, 1857, is, so far as it affects this question, repealed by the eighth and ninth sections of the act of April 16, 1858. And where it appeared that a conviction had taken place before two police justices only, under which the defendant was imprisoned, he was discharged on habeas corpus. People v. Divine, 5 Park. Grim. Rep. 62. Supreme Court, at Chambers. Before Sutherland, J. August, 1860. ■ ^^[.' 31. A court of special sessions, held under the act of 1857, chapter 769, section 1, (3 R. S. 5th ed. 1000,) has no jurisdiction of a charge of " malicious mischief" Wait V. Green, 5 Park. Grim. Rep. 185. Supreme Court, Dutchess General Term, July, 1861. 32. G., a justice of the peace, issued a warrant for the arrest of W., on a charge that he "did, willfully and maliciously, unhook the traces of the harness on a span of horses, and then hitched to the wagon then owned or in possession of one L." W. was arrested under the warrant, and tried before Gr. at a court of special sessions, and con- victed of the offense charged, which was recited in the warrant and in the com,mitment in the words above quoted, aijd was held in custody under the commitment until dis- charged on habeas corpus; Held, that G. acted without 142 DEPOSITIONS. jurisdiction, and was liable to an action for false imprison- ment for the arrest. id. 33. Eeld, aho, that on the trial of the action for false imprisonment, it was not competent for G. to prove that it was shown before the court of special sessions that L. was in the wagon at the time the traces were unhooked, for the purpose of establishing an assault on L., and thus showing jurisdiction in the court, there being no such offense charged in the warrant or commitment. id. 34. Under the statute, (Laws of 1860, ch. 508, § 33,) which declares that in cases of larceny, in the city of New York, by stealing, taking or carrying away from the person of another, the offender may be punished as for grand lar- ceny, although the value of the property taken shall be less than $25 ; the court of special sessions in the city of New York have no jurisdiction to try and convict oi petit larceny, or to hear or decide such a case at all. It is its duty, in such a case, to cause the complaint to be brought before the grand jury. People v. RiUy, 21 How. Prac. Rep. 451. Supreme Court, Special .Term. Before Leonard, J. July, 1861. ^1863. 35. Where a person arrested and brought before a magistrate in the city of New York, under a charge of petit larceny, presented to a magistrate a writing signed by him, in which he waived a jury and demanded to be tried before a court of special sessions, it was held that he waived thereby his right, when subsequently brought be- fore the court of special sessions, to demand a jury, and to have his case removed to the general sessions, and also his right of appeal to the general sessions under 2 R. S. 715, § 26, (3 E. S. 5th ed. 1009.) People v. RiUy, 5 Parle. Grim. Rep. 401. Supreme Court, New York General Term, Sep- tember, 1863. Depositions. ^ilgJ: 1. In suspicious cases, where an affidavit is made in the usual form of the absence of a material witnessj the DEPOSITIONS. 143 court will direct the counsel for the prisoner to join in a commission with the district attorney to take the testi- mony of such absent witness, and will allow a reasonable time for the execution of the commission ; but if he does not choose to join in such commission, they will compel him to show his absent witness is material. People v. SetticJe, 1 Wheel. Oases, 26. Biker, Recorder. New York, September, 1822. fj'jjl 2. A deposition de bene esse, relating to a criminal charge taken under the order of the general sessions pre- vious to any indictment found in that court or sent there for trial, is extra-judicial and void. Semble; per Bronson, J. The People v. Madam Bestell, alias Ann Lohman, 3 Hill, 289. Supreme Oourt, July, 1842. 3. "Witnesses cannot be examined de bene esse at the in- stance of the publie prosecutor, even after indictment; though they may be, at the instance of the defendant, id. 4. After issue joined upon an indictment, the defendant may examine witnesses residing out of the state, upon commission ; and the public prosecutor is entitled to join in the commission and name witnesses on the part of the people. id. 5. The right of taking depositions de bene esse in dvil suits, formerly existed in this state as mere matter of oourt practice, but is now sanctioned by legislative enact- ment, id. 6. There is no authority, at common law, for taking depositions in criminal cases out of court, without the consent of the defendant. id. 7. The dictum in Matthews v. Port, (Comb. 62,) that wit- nesses may be examined in criminal cases before a judge, by leave of the court, overruled. id. 8. The general rule in criminal cases is, that the wit- nesses must appear in court and be confronted by the accused party. id. 9. The only exception to this rule recognized at com- 144 DEPOSITIONS. mon law is that of dying declarations, in prosecutions for homicide. Semble. . id. 10. Depositions taken hy the coroner on holding an in- quest, the accused being absent, are not evidence against him upon the trial of an indictment. Semble. id. 11. Otherwise, as to depositions takeq before a commit- ting magistrate pursuant to 2 E. S. 708, 9, § 13, et seq., (see E. S. 5th ed., vol. 3, 995,) provided the statute has been fol- lowed, and the witness cannot be produced at the trial by reason of his death, &c. id. 12. Our statute, unlike that of Phil & Mary, authorizes the taking of these depositions in cases of misdemeanor as well as felony. id. 13. The principle on which these depositions are re- ceived in evidence, examined and discussed. id. 14. In order to render such a deposition competent evi- dence, the examination must in general be in the presence of the accused, so that he may know the precise words which the witness uses, and observe throughout his man- ner of testifying. id. 15. The cases of Bex v. Forbes, (1 Holt's K P. Eep. 597,) and Bex v. Smith, ■ (Id. 614 ; 2" Stark. Eep. 208 ; Euss. & Ey. Or. Cas. 339, 3 c. commented on and explained.) id. 16. If desired by the accused, he has a right that his counsel shall be present during the examination. id. 17. A reasonable time after the arrest should be allowed for the purpose of employing counsel, where the accused requests it ; and if the magistrate refuse this, the deposi- tion will not be evidence. id. 18. The answers of the witness should be on oath ; and hence, instead of taking the examination first and then swearing him to the truth of the statement, he should be sworn before the examination commences. id. 19. The deposition should be taken as nearly as possible in the exact words of the witness. id. 20. It is essential that the accused should have a full and fair opportunity of cross-examining; and if this be DEPOSITIONS. 145 denied him, the deposition will not be competent evi- dence, id. 21. The deposition will be invalid, moreover, if the oath administered to the witness do not extend to his answers to questions put; e. g., where it is merely to the truth of a statement previously drawn up. id. 22. The original information and depositions taken be- fore the warrant was issued, however formally drawn up, are not in themselves evidence against the accused at the trial. , id. 23. Otherwise, perhaps, if on the accused being brought in, pursuant to the warrant of arrest, the magistrate re- swear the accuser and witnesses in due form, read over the former depositions in their presence and that of the accused, and then give the latter full opportunity to cross- examine ; though as to this practice, quere. id. 24. A deposition will not, in general, be allowed to be read where it is shown that the magistrate refused to put down pertinent answers made by the witness on cross-ex- amination, even though the magistrate swear that the iden- tical answers are contained in the direct examination ; especially if the latter took place when the accused was not present, id. 25. If, however, the same question be put by the ac- cused several times, and a uniform answer returned, one insertion in the cross-examination is enough. id. 26. Where the magistrate who took the deposition swears that it was taken under the statute, it may be pre- sumed that all necessary forms were duly observed, unless the contrary be shown. id. 27. A deposition irregularly taken will not be aided by a subsequent offer on the part of the magistrate to re-ex- amine the witness, and give the accused the right of cross- examining, id. 28. If a deposition before a magistrate has been altered since its completion, so as to appear to have been taken before another tribunal — e. g., the general sessions,— it can- 146 DEPOSITIONS. riot be read in evidence ; and this, though the alteration was made bona fide, under an extra-judicial order of the sessions. id. 29. The legal effect of a legal document cannot he varied by parol evidence. id. 30. Accordingly, where a deposition was produced, which on its face purported to have been taken de bene esse in the court of general sessions ; held that it could not be varied by oral evidence, so as to give it effect as a deposition before the committing magistrate. id. ^l 31. In general, depositions taken before a commit- ti&g magistrate pursuant to 2 R S. 708, 9, § 13, et. seq., (R. S. 5th ed., vol 3, 995,) cannot be read in evidence at the trial, on the part of the people, unless it be first shown that the prosecutor is unable to procure the attendance of the witness by reason of his death, insanity, illness or col- lusion with the prisoner. Fer Nelson, Oh. J. Bebee v. Peo- ple, 5 Rill, 32. Supreme Oourt, May, 1843. 32. Where, however, on a trial before a court of special sessions, the prisoner's counsel agreed that one of the depositions thus taken might be read, provided time was allowed him to procure testimony in order to show the witness' . incompetency from defect of religious belief, and a postponement for several days accordingly took place ; held that the court having afterwards heard such testimony and decided in favor of the witness' compe- tency, the prisoner could not recede from his agreement and prevent the deposition from being read. id. 33. Otherwise, semble, had it appeared that the agree- ment was made hastily by the prisoner, or under a mis- taken notion of the law, and that no change in the course of proceeding on the part of the prosecution occurred in consequence of it. Per Nelson, Gh. J. id. , S; 34. A deposition taken conditionally in the case of a charge for a criminal offense, and before indictment, which is entitled in a court of general sessions where there is no suit or proceeding pending, and in a suit which has DISOEDEELY PEESONS. 147 not been commenced, and which throughout refers to the accused, not by their invidual names, but as defendants, cannot be read on the trial of an indictment afterward pre- ferred on that charge ; because of the rule that on such a deposition the witness could not be convicted of peijury for any false swearing. People v. Crystal, 8 Barh. 545. Supreme Court, New York General Term, May, 1850'. 35. Where the affidavit sworn to was entitled, and no suit was pending when the affidavit was made, the court held it was a nullity. id. fsls! 36. It is the modern practice of the courts to receive the affidavits of the jurors themselves in answer to a charge of irregularity or abuse, though they have generally been considered as an unreliable species of evidence. JSastwood v. The People, 3 Park. Orim. Rep. 25. Supreme Cowt, Monroe General Term, December, 1855. I Disorderly Persons. f^^i^: 1. The fact of keeping a disorderly house is estab- lished by general repatation; and where the prisoner boarded women of loose character, by the meal or week, and where she owned beds and hired them to these women for a dollar a night, and where men staid with these women, the testimony was held sufficient to convict for keeping a disorderly house. Mary Rothhone's ease, 1 City Hall Recorder, 26. Before Radcliff, Mayor. New Torh, February, 1816. ■^igPj'; 2. A public inn, where any instrument or device for gaming is used and kept as such, either by the land- lord or any other person, by his permission, however orderly the house may be in other respects, is a public nuisance at common law ; and all persons resorting to such house, for the purpose ot gambling, are, in the eye of the law, persons of ill fame. James Butler's case, 1 Oity Mall Recorder, &Q. Before Radcliff, Mayor. New York, April, 1816. ^^J^' 3. A grocery licensed in the city of New York is an inn, or tavern, and to keep a shuffle- board, and permit 148 DISOKDEELY PERSONS. ^ persons to play in such grocery, is " an offense against the people of this state by statute. ' ' Alexander Ourcadden's case, 2 Oiti/ Sail Becorder, 53. Before Bodman, Mayor. New York, April, 1817. fg^l; 4. The defendant was indicted for keeping a dis- orderly house in the seventh, and it appeared from the testi- mony of the principal witness that the house was in the fourth ward of the city; on objection taken, it was held that where the place constituted the essence of the offense, as it did in this case, it became material, and should be laid correctly. This species of offense fell within the e:«eeptions to the general rule. Michael McDonald's case, 3 City Hall Becorder, 128. Before Golden, Mayor. New York, August, 1818. fsu!" 5. On the trial of an indictment against husband and wife, for keeping a disorderly house, it is necessary for the public prosecutor to show either an active co-opera- tion on the part of the wife, with her husband or others, in producing disorder, or that it was of that peculiar nature which must have been the necessary result of such agency on her part ; otherwise she cannot be convicted. Martha Boyd and Christopher Boyd, her hushandls case, 3 City Hall Becorder, 135. Before Golden, Mayor. New York, Septemler, 1818. 6. B. hired of another an entire house, and rented seve- ral rooms therein to two other tenants, retaining the other rooms for his own use. He was indicted for keeping a disorderly hou^e, generally. It was held, that for the pur- pose of this indictment, the part occupied by him was well alleged to be his house; and that it was not neces- sary to allege that he kept certain rooms, &c. id. 7. Particular acts of disorder do not render a house a common disorderly house. id. ?8°2^ 8. To keep instruments of gambling in a house, and permit persons to play for small sums, merely suffi- cient for the use of such instruments, or for drinks, is indictable. David Lyner and Anthony Lyner's case, 5 dity DISORDERLY PERSONS. 149 Hall Beeorder, 136. Before Oolden, Mayor. New York, October, 1820. 9. The defendants were indicted for keeping a common, illtgoverned and disorderly house ; and it appeared on the trial that A. L., one of the defendants, kept a grocery on the premises, and in another part of the building kept a billiard table and other instruments of gambling, and per- mitted persons to play for small sums, sufficient to pay the charge of the owner for each game, and sometimes for drink, which was furnished by him from the grocery. The gambling did not appear to be otherwise excessive, except from the testimony of S. P., who testified that she had seen persons play there late at night, and even on Sunday. The court charged the jury that if they believed that the common practice of playing in this house was such as is disclosed in proof, it would be their duty to convict the defendant. The jury brought him in guilty, and he was fined $20' costs, and was laid under a recog- nizance of $250. id. il^i 10. In a proceeding under the statutes, relative to disorderly persons, the magistrate before whom the convic- tion takes place, has no authority, acting singly, to take a recognizance for good behavior after the record of the con- viction is filed. People v. Brown, 23 Wend. 47. Supreme Court, January, 1840. ™g°^; 11. Whether even two Justices of the peace are authorized to take the recognizance after the filing of the record, and previous to the commitment of the offender, quere. id. 12. The constitution of this state (Art. 7, § 2) relating to the right of trial by jury, &c., has no reference to pro- ceedings intended merely to prevent the commission of offenses. Duffy v. People, 1 Hill, 355. Supreme Court, May, 1841. (The constitution here referred to is the one adopted in 1822. The one adopted in 1846 contains the same matter, verbatim, as to trial by jury.) 150 DISOEDEELY PEESOITS. 13. A statute authorizing a magistrate, summarily and without jury, to convict one who has abandoned his family, of being a disorderly person, and to require from him sureties for good behavior, is not unconstitutional, id. ^^- 14. Every act done in furtherance of a misde- meanor is not the subject of indictment ; but to constitute it such, it must tend directly and immediately, if not necessarily, to the commission of the misdemeanor. Broch- way V. People, 2 Hill, 558. Supreme Court, May, 1842. 15. Hence, the renting of a house to a woman of ill fame, with the intent that it shall be kept for purposes of public prostitution, is not an offense punishable by indictment, though it be so kept afterward. id. 16. CowEN, J., dissented, holding that the lessor of a house demised and kept for such purposes might be in- dicted as the keeper of it. id. fg^l: 17. A statute authorizing a magistrate to convict one who abandons or neglects to provide for his wife, &c., of being a disorderly person, and to require sureties' for his good behavior, ^though it do not give the right of trial by jury, is nevertheless constitutional. Duffy v. The People, 6 Hill, 75. Court of Errors, December, 1843. 18. In an action on a recognizance taken in such a case, the sureties may defeat a recovery by pleading and proving, notwithstanding the conviction, that the woman alleged to have been abandoned or left unprovided for by their prin- cipal, was not in fact his wife. id. 19. Where the issue is upon that question, the convic- tion is not even prima facie evidence against the sureties. Per Walworth, Chancellor. id. ?8°4"7 20. One who demises a house with the intent that it shall be kept, and which is accordingly kept for the pur- poses of public prostitution, and who derives a profit from that mode of using the property, is punishable by indict- ment for a misdemeanor. People v. Erwin, 4 Denio, 129. Supreme Court, January, 1847. DISOEDEELY PEESONS. 151 21. The indictment should charge the defendant as the keeper of a common bawdy house in the ordinary form ; and the lessee who lives in and conducts the house may be joined with the lessor in the indictment. id. 22. The case of Brochway v. The People, (2 Hill, 558,) explained, and, so as it is opposed to the doctrine of this case, overruled. id. ^iUj*; 23. The magistrate to whom a common law certi- orari is issued, to remove proceedings before him under the act respecting disorderly persons, (1 E. S. 638,). should in his return set out in haec verba all the proceedings before him. Bennac v. The People, 4 Barb., 164. Supreme Court, iSt. Lawrence Creneral Term, September, 1848. 24. The confession spoken of in the second section of that act, on which a magistrate is authorized to convict a disorderly person, means a plea of guilty, or some acknowl- edgment tantamount thereto ; not an admission deduced by the magistrate argumentatively. id, 25. On a conviction under 1 R. S. 638, (2 E. S. 5th ed. 902,) a record of the conviction, specifying generally the nature and circumstances of the offense, must be made up by the magistrate and signed by him, and filed in the county clerk's ofiice, before the warrant of commitment can be issued. id. 26. Such warrant, however, is valid to protect the officer if it describes the offense and the conviction and sentence, although it does not recite the facts proved. id. {^^ 27. After a person has been convicted under the acts relative to disorderly persons, and committed to prison in default of sureties for good behavior, and a record of conviction has been made and signed, (though not filed,) the committing magistrate has no power, acting singly, to discharge the prisoner, or to take a recognizance for his good behavior. People v. Duffy, 5 Barb. 205. Supreme Court, New York General Term, January, 1849. 28. The final commitment of the prisoner, after the record of conviction has been made and signed, completely 152 DISOEDEKLY PERSONS. exhausts the power of the magistrate, and ousts him of jurisdiction to take a recognizance. id. \S. 29. On a complaint against a person as a disorderly- person, if the charge be sustained, a magistrate may re- quire sureties for good behavior for one year, and in default of such sureties being given may commit to jail ; but he cannot proceed to organize a court of special ses- sions, and, on conviction, punish the accused by fine and imprisonment. People v. Carroll, 3 Parle. Grim. Bep. 73. Supreme Court, Albany Creneral Term, December, 1855. 80. To warrant a conviction as a disorderly person, the pomplaint must bring the case within some of the speci- fications enumerated in the statute as constituting the offense. id. ^^^^- 31. It is no objection to an indictment for keeping a disorderly house, that it charged in the same count that it is kept as a bawdy house, a tippling house and a danc- ing house. It is not necessary, under such a count, to prove that all of such offenses were committed ; but the defend- ant should be convicted, if it is shown that either was per- mitted in such a manner and under such circumstances as to make the house disorderly and a nuisance. People v. Cady, 4 Park. Crim. Bep. 238. Superior Court of Buffalo, General Term, March, 1857. \^: 32. On a complaint against a person as a disor- derly person, for neglecting to support his wife, evidence showing that the parties had for many years lived as hus- band and wife is competent to prove the marriage. Peo- ple V. McCormack, 4 Park. Grim. Bep. 9. Supreme Court, New York Gerieral Term, June, 1857. 15^; 33. Keeping a bawdy house was an indictable of- fense at common law, and a person accused of it was entitled to a trial by jury, that right being secured by the state constitution of 1821 ; the provision of the Revised Statutes, (1 R. S. 638, § 1, and 2 E. S. 5th ed. 903,) by which keepers of bawdy houses are declared disorderly persons, and subjected to summary punishment, is uncon- DISOEDERLY PERSONS. 153 Btitutional and void. Warren v. The People 3 Park. Orim. Bep. 544. Supreme Qourt, Erie General Term, November, 1857. 34. The same constitutional provision being retained in the state constitution of 1846, a person arrested and brought before a magistrate has a right to give bail for his appearance before the next grand jury ; and where such right was denied, and the defendant subjected to sum- mary conviction before the justice, the conviction was reversed. id. 35. Where a person was arrested on a warrant issued by a justice of the peace under the Revised Statutes and chap. 86, § 14, of the Laws of 1855, which chapter is an act to amend an act to provide for the incorporation of villages, so far as relates to the village of Niagara City, in the county of Niagara, as a disorderly person, for making a noise and disturbance of the public peace, &c. in a pub- lic place, and, on being brought before such justice, pleaded guilty, and was thereupon sentenced to three months imprisonment in the county jail, and to pay a fine of $25, and afterwards removed the proceedings by cer- tiorari into the Supreme Court, and claimed a reversal of the conviction on the ground that it was an infringement of the provisions of the state constitution, securing a right of trial by jury, and declaring that no person shall be deprived of life, liberty or property without due process of law, (Const., art 1, §§ 2 and 6,) it was held that no such question could be raised on the record, the plaintiff in error having pleaded guilty, and that to have put himself in the position to raise the constitutional question, he should have pleaded not guilty, and demanded a trial by jury, or offered to give bail to appear before the next grand jury to answer to the charge, and the conviction was affirmed. Plato V. The People, 3 ParTc. Crim. Bep. 586. Supreme Court, Erie General Term, November, 1857. K; 36. ^On an indictment for keeping a disorderly home, the character of the house cannot be proved by general 154 DISOEDEELY PEESONS. reputation. No one should be convicted of any criminal offense, upon mere reputation or rumors. People y. Mauch, 24 How. Prac. Bep. 276. Supreme Court, New Torh Gene- ral Term, November, 1862. ^St 37. On the trial of an indictment for keeping a bawdy house, evidence is admissible of repeated arrests of girls at the prisoner's house upon the charge that they veere prostitutes; that the prisoner procured bail for them ; that such arrests were made at late hours in the night ; and that women before convicted as prostitutes 'were fre- quently found at his house. Harwood v. The People, 26 N. Y. Bep. 190. Court of Appeals, March, 1863. (This case is also reported in 16 Abb. Prac. Eep. 430.) S's'j. 38. Under the statutes authorizing the binding over of disorderly persons to keep the peace, the magis- trate has power to commit such a person until sureties are given. Ann Doyle's case, 19 Abb. Prac. Rep. 269. Su- preme Court, First District, at Chambers. Before Ingra^ ham, J. October, 1865. 39. The distinction between a commitment under the statutes relating to the city of New York, for disorderly conduct, and the Revised Statutes for being a disorderly person, stated. Case of the Twelve Commitments. New York, Common Pleas. Before Daly, F, J. October, 1865. 40. Disorderly persons are substantially designated, in the revised statute, as : 1st, those who abandon their wives and families ; 2d, prostitutes ; 3d, fortunetellers ; 4th, mountebanks ; 5th, common showmen ; 6th, gamblers ; and 7th, keepers of bawdy houses. id. 41. The cases under consideration are commitments for disorderly conduct, and the- questions examined and passed upon, relate exclusively to .this class of convictions. id 42. Upon a conviction for disorderly conduct, the making and filing of a record is not necessary, nor is it necessary that a commitment, in such a case, should set forth the particular act complained of. id. 43. The act of 1859 empowers the magistrate to im- DISTEIOT ATTORNEY. 155 pose a fine of not more than f 10, or to 'commit to the city prison for not more then ten days (Laws of 1859, 1129, ch. 491, § 5) does not take away the power to require security for good behavior for any period not exceeding twelve months, and commit the offender for such period in default of compliance. id. 44. The provision of the act of 1860, declaring certain acts to be disorderly conduct, (Laws of 1860, 1013, ch. 508, § 20,) does not repeal or supersede that of the act of 1833, which provides that any conduct which, in the opinion of the magistrate, tends to a breach of the peace, may be punished as disorderly conduct. id. 45. If the magistrate acted erroneously, or upon insuf- ficient evidence, the remedy is not by habeas corpus, but by certiorari. , id. District Attorney. °^ 1. The district attorney ought not to attend the grand jury for the purposes, of examining witnesses, nor for any other purpose, except to advise them upon any question which they may put to him in relation to their duty. 7 Gow. 563. Supreme Court, October, 1827. ^; 2. A district attorney is not liable to the clerk of the circuit, for fees in a criminal case tried in that court. Fairlie v. Maxwell, 1 Wend. 17. Supreme Court, May, 1828. JJj„^' 3. Their duty in relation to the collection of recog- nizances. People V. Van Eps, 4 Wend. 387. Supreme Court, May, 1830. ''^l; 4. Notice of the proceeding by habeas corpus must be given to the district attorney, pursuant to 2 R 8. 569, § 47, (see 3 R.. S. 5th ed. 888 ;) and if an order of discharge be made without such notice, it will be reversed on cer- tiorari. 27»e People v. Oassels, 5 Hill, 164. Supreme Court, May, 1843. *p^'' 5. Though a district attorney prepare an indict- ment or other paper for use in making the original draft, 156 DISTUEBANCE &o. OF MEETINGS. and do not afterward transcribe or copy it, lie is entitled to charge both for drafting and engrossing. Matter of District Attorney's fees, 6 Sill, 402, Supreme Court, April, 1844. Disturbance op Religious Meetings. J5?J; 1. Disturbing divine service is indictable at com- mon law, notwithstanding the statute declares the penalty and points out the remedy. People v. Begey, 2 Wheel. Oases, 135. Biker, Recorder. New York, November, 1823. f-^- 2. A justice of the peace, &c., under the act of 1823, in amendment of the " act for suppressing immoral- ■ ity," has a right, upon his own personal view of offenses committed against that act, to order an offender into the custody of a constable for safe keeping, without issuing a warrant, until the offender can be tried. Farrell v. War- ren, Z Wend. 25Z. Supreme Court, August, 182^. (2 R 8. 5th ed. 934.) ^11; 3. In a warrant issued under the act to suppress immorality, it is not necessary to state the circumstances which gave the magistrate jurisdiction; they may be shown, aliunde, in an action against him for false imprison- mient. Atchinson v. Spencer, 9 Wend. 62. Supreme Court, May, 1832. ^11; 4. In proceedings against a disturber of religious meetings, it is not necessary that process should actually issue. The main purpose of the 74th section is to limit the time within which proceedings must be commenced ; but; parties may voluntarily, within that time, as in any other case, appear and join issue, or confess the complaint. Foster v. Smith, 10 Wend. 377. Supreme Court, May, 1833. (The time limited by section 74, within which proceedings must be commenced of violations of articles 6, 7 and 8, is " within twenty days next after the offense committed." See 2 R. S. 5th ed. 937.) JJg' 5. A person arrested by warrant on a charge of having violated the act to prevent the disturbance of reli- DYING DEOLAKATIONS. 157 gious meetings, cannot be taken by the arresting officer before any magistrate other than the one who issued the process ; the provisions of the statute authorizing persons arrested under a warrant to be brought before the nearest magistrate, &c., it seems, apply only to cases where the accused may be required to enter into recognizance to appear at a court of criminal jurisdiction, or may be. com- mitted to jail. People v. Fuller, 17 Wend. 211. Supreme Court, May, 1837. 6. It seems, also, that where the accused is brought before the nearest magistrate, the officer making the arrest should state in his return the absence of the officer who issued the warrant. id. Dying Declarations. I'^l 1. Though the declaration of a party, (that he or she was murdered by a particular person,) made immediately after a mortal blow is inflicted, and when the party consider- ed himself, or herself, in immediate danger of death, may be received in evidence as having been made in extremis; yet where the wounded party languished for several days afterwards, and then died, it was held that such declara- tion might also be given in evidence as part of the res gestae, and that it was unnecessary for the jury to deter- mine whether the declaration was made in extremis, or not. Hugh Curry's case, 4 City Sail Recorder, 109. Before Colden, Mayor. New York, July, 1819. • ^'^^- 2. The dying declarations of a party murdered may be given in evidence, when made under full belief that he will not survive; nor should it be excluded in all cases, where there was a faint and lingering hope of a recovery by the sufferer. People v. Anderson, 2 Wheel. Cases, 390. New York Oyer and Terminer. Edwards, J. do. March, 1824. 3. A. was stabbed with a dagger in the evening, and the next morning (he being very low and could hardly speak) his affidavit was taken, wherein he stated that B. 158 DYING DEOLAEATIONS. stabbed him. He was then taken to the hospital and died in nine days. It was held the affidavit could not be read as the dying declaration of A., no evidence being offered that induced a belief that he was morally certain he would not survive. id 4. The court, and not the jury, are to decide upon the admissibility of dying declarations. id. iml 5. On a trial for murder, the dying declarations of the deceased, that is, declarations made under the appre- hension of death, are competent evidence against the prisoner; but before 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 recovery. People v. Green, 1 Parh. Orim. Rep. 11. Rensselaer Oyer and Terminer. Parker, J. July, 1845. 6. When, by the direction of the attending physician, and in his presence, W. informed the deceased on the day before her death that she could not live, whereupon the deceased requested the physician to hear a communica- tion that she desired 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. id. ?S45. 7. On a trial of an indictment for the murder of a vsdfe by her husband, the declarations of the decease'd made in extremis, as to the cause of, her death, are com- petent evidence against the prisoner. People v. Green, I Penio, 614. Supreme Court, October, 1845. 8. 8o held by the chancellor and judges, their opinions being required by the governor pursuant to the statute, on the same principle that she is allowed to testify against him where the complaint is of violence against her person. Jd. (See E. S. 5th ed., vol. 3, 936.) DYING DECLAEATIONS. ■ 159 S?J: 9. To entitle tte prosecution, on a trial for murder, to introduce evidence of the dying declarations of the de- ceased, it must appear by the preliminary evidence, that the defendant 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. People v. Knickerhocker, 1 Parle. Grim. Bep. 302. Supreme Gourt, November, 1851. 10. After the introduction of the 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. id. 11. Where, on trial for murder by poisoning, the de- ceased, on the third day of her illnesss, 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 appear 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. People v. Grunzig, 1 Park. Grim. Bep. 299. New York Oyer and Terminer, November, 1851. Udmonds, J. (ThiB case was submitted by the governor to the judges of the court of appeals, for advisement, and they sustained the rulings at the oyer. An application was afterwards made to Mr. Justice Harris for an allowance of a writ of error, which writ was denied.) S.' 12. To authorize any proof of the statements and declarations made by a person during his last illness, it is necessary to show that they were made under the appre- hension of death, and that the deceased was conscious of approaching and inevitable death ; and it is not necessary 160 EMBEZZLEMENT. that such consciousness should be uttered in express terms, but it may be inferred from the tenor of his conversations, the nature of his sufferings and his whole demeanor. Per Gierke, J. People v. Williams, 3 Park. Grim. Bep. 84. Court of Appeals, June, 1855. 13. Where a person, charged to have been murdered by poison, expressed during his last illness his opinion that he should not live, but was encouraged by his attending physician to believe that he would recover, his statements made immediately thereafter were held not to be admissi- ble evidence as dying declarations. Per Harris, J. Peo- ple V. Robinson, 2 Park. Grim. Mep. 235. Supreme Court, Albany General Term, June, 1855. Embezzlement. ?8^: 1. The prisoner was indicted for petit larceny, at common law, and for embezzling, under the statute. It appeared in evidence that the prisoner, a servant boy, who had been in the employment of S. for some time, was in- trusted by S. with a basket of cakes to sell and return the money, but did not return either the cakes, the money, or the basket. It was held that to convict him of larceny, the jury must believe that at the time his master intrusted him with the property he harbored the felonious intent to con- vert it to his own use ; and to bring the offender within the act in relation to embezzlement, the jury must be convinced that the prisoner converted the property to his own use, with intent to steal the same. John Langley's case, 4 Gity Hall Becorder, 159. Before Golden, Mayor. New York, November, 1819. '"^^l^,' 2. The act to prevent servants embezzling their masters' goods, (E. S., vol. 1, p. 413,) extends to cases only where the servant or apprentice has the custody of the goods. People v. Sheahan, 1 Wheel. Oases, 226. Biker, Be- corder. New York, March, 1823. (See 3 R. S. 5th ed. 957.) ^35; 3. A stage driver, intrusted by his employers to carry money from one place to another, is a servant, who has EMBEZZLEMENT. 161 obtained possession of property by virtue of his employment, within the meaning of the act making embezzlement of property punishable as for felonious stealing. People v. Sherman, 10 Wend. 296. Supreme Court, May, 1833. fj3°5 4. An indictment for embezzlement lies against a clerk or servant for converting to his own use the money, goods, &c. of his master or employer, as well as for convert- ing to his own use the money, goods, &c. of any other per- son which shall have come into his possession or under his care by virtue of his employment ; the words any other person, in the statute, mean any person other than he who is guilty of the embezzlement. People v. Hennessey, 15 Wend. 147. Supreme Court, January, 1836. 5. The confessions of a party, not made in open court or on examination before a magistrate, but to an indi- vidual, uncorroborated by circumstances, and without proof aliunde that a crime has been committed, will not justify a conviction. id. ^^; 6. A barkeeper in an inn, intrusted to carry letters to and from the post-office, who fraudulently converts to his own use a letter inclosing money, given to him to carry to the post-office, is guilty of embezzlement; and to convict him it is not necessary to show that he broke open the letter or fled, after the commission of the offense, or to show the dissent of his employer ; it is enough that there be a fraudulent conversion, and that being shown, a felonious intent is established. People v. Dalton, 15 Wend. 582. Supreme Court, October, 1836. °fj 7. Where a constable was employed to collect cer- tain demands without suit, if the debtors would pay, and by procuring and serving process before a justice of the peace, if they would not ; Held, that he was not a servant of the creditor within the meaning of the statute concerning embezzlement. Per Beardsley, C. J. The People v. Allen, 6 Denio, 76. Supreme Court, October, 1847. ^°y; 8. Thirty four tons of pig iron, in bars, each weigh- ing about one hundred pounds, were intrusted to a common 11 162 EMBEZZLEMENT. carrier, to transport on the canal from Albany to Buffalo. On the passage the carrier stopped his boat in the night, , and with the assistance of one of his hands, and with a felonious intent, put off from the boat one hundred bars of the iron, and then proceeded and delivered the remain- der of the iron at Buffalo ; Held, that the facts did not constitute larceny at common law, but that the carrier was guilty of embezzlement, under 2 E. S. 679, § 62. (See 3 E. S. 5th ed. 958.) People v. Nichols, 3 Park. Grim. Rep. 579. Supreme Court, Erie General Term, November, 1857. "^JS*"' 9. The separation and conversion to his own use, by a carrier, without the assent of the owner, of sundry bars of pig iron, part of a larger number which had been delivered to him for transportation and loaded upon his canal boat, is larceny and not embezzlement. Nichols v. The People, 17 N. Y. Rep. 114. Court of Appeals, March, 1858. 10. "Where the commodity, a part of which is separated by the carrier from the rest, is transferred in commerce by weight, and not by count, the severance is a trespass which determines the privity of contract, and a breaking of bulk equivalent to the opening of a bale or package, id. ^^^' 11. Where the keeper of a county poorhouse, employed for that purpose by the superintendent of the poor of the county, and holding under him, secretly sold and converted to his own use articles of food provided for the support of the county poorhouse ; Meld, that he was guilty of embezzlement within the statute, (2 E. S. 678 ; 3 E. S. 5th ed. 957,) and could be convicted of that offense, under an indictment charging that the articles etubezzled were the. property of such superintendent of the poor. Goats V. The People, 4 Park. Grim. Rep. 662. Supreme Gourt, Monroe G-eneral Term, March, 1860. 12. Counts for embezzlement and larceny may be joined in the same indictment. id. 13. It is no objection to a count for embezzlement, that it charges the embezzlement of several different articles, EVIDENCE. 163 some of them of more, and some of them of less value than $25 each. id. f^^- 14. The relation between the keeper of a county poorhouae and the superintendent who employs him, is of a public nature ; and the former cannot be deemed the agent or servant of a private person, within the statute of embezzlement. (2 E. S. 678, § 59 ; 3 R. S. 5th ed. 957.) Coats V. The People, 22 N. Y. Bep. 245. Court of Appeals, September, 1860. 15. Nor is such keeper the agent or servant of an incor- porated company within the same statute. Though the superintendents of the poor, or the sole superintendent, be a corporation, they, or he, are not an incorporated company. id. 16. The statute, it seems, by incorporated companies, intends those only which are composed of individuals associated together for private purposes. id. fg|°; 17. Upon an indictment containing nine counts for embezzlement of different grades, and others for lar- ceny, a verdict " guilty of embezzlement " is equivalent to an acquittal of the larcenies charged, and a bar to any subsequent prosecution. Guenther v. The People, 24 N. Y. Rep. 100. Cowrt of Appeals, December, 1861. 18. One of the counts for embezzlement being good, the verdict means that he is guilty of the offense as charged therein. id. Evidence. {May V)th, 1867, the legislature passed the following : Section" 1. In any trial or inquiry in any suit, action or proceeding in any court, or before any person -having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and com- 164 EVIDENCE. pellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding. § 2. Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against the other, in any criminal action or proceeding, (except to prove the fact of marriage in case of bigamy,) or in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery, (except to prove the fact of marriage,) or in any action or proceeding for or on account of crim- inal conversation. § 3. No husband or wife shall be compellable to dis- close any confidential communication made by one to the other during their marriage. The legislature. May 7th, 1869, also passed the follow- ing : Section 1. In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offenses, and in all proceed- ings in the nature of criminal proceedings in any and all courts, and before any and all officers and persons acting judicially, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness ; but the neglect or refusal of any such person to testify shall not create any presumption against him.) M|;f ■ 1. A. having been convicted of forgery, was sen- tenced to the state prison for life ; he was afterwards par- doned by the governor. The pardon contained a proviso, that it was not to be construed so as to relieve A. from the legal disabilities arising from his conviction and sen- tence, &c., but only from the imprisonment. He was after- wards offered as a witness for the people, on a trial of an indictment, and admitted to testify, although objected to as incompetent. It was held that the proviso in the pardon being incongruous, and repugnant to the pardon itself, ought to be rejected, and that the witness was competent EVIDENCE. 165 People V. Pease, 3 Johns. Cases, 333. Court of Errors, March, 1803. l^S,: 2. The confession of a prisoner must be free and vol- untary, or it cannot be given in evidence upon bis trial. And, as it appeared in tbis case, tbe officer wbo made tbe arrest, and bad tbe prisoner in bis custody, said to ber " if you do not tell all you know about tbe business, you will be put in tbe dark room and banged," it was beld to be sucb a tbreat as migbt, and probably did, influence a fear and apprebension of ber life, and destroyed tbe legality of tbe subsequent examination. People y. BanMn, 2 Wheel. Cases, 467. New York Oyer and Terminer. Van Ness, J. S^c. January, 1807. 3. A confession upon an official examination, or to otber persons, if obtained under tbe impression of bope or fear, cannot be admitted in evidence, bowever sligbt tbose im- pressions may be. id. l^^^ 4. "Wbere two persons, j ointly indicted for an assault and battery, pleaded separately, and one of, tbem being tried first, it was beld tbat tbe otber defendant was not a competent witness for bim. People v. Bill, 10 Johns. Bep. 95. Supreme Court, January, 1813. 5. A party in tbe same suit, or indictment, cannot be a witness for bis co-defendant until be bas been first acquit- ted or convicted ; and wbetber tbe defendants plead jointly or separately, makes no difference. id. {^g 6. If a man bas in bis possession and passes coun- terfeit bills, in tbe traverse of an indictment under tbe statute for baving in bis possession counterfeit bills, knowing tbem to , be sucb, it is a matter of inference to be left witb tbe jury, to be gathered from tbe whole circumstances of the case, whether be knew the bills to be bad. William Pierce's case, 1 City Hall Becorder, 2. Before Badcliff, Mayor. New York, January, 1816. 7. In the traverse of an indictment for receiving stolen goods, knowing them to be stolen, an objection doth not lie to tbe competency of tbe thief as a witness. His cred- 166 EVIDENCE. ibility only is affected ; and if he is corroborated in his testimony sufficiently, the jury is justified in finding the prisoner guilty. It seems that evidence in such a case, that the prisoner had purchased other goods of the thief, not contained in the indictment, is improper; but that a general understanding between them, to receive stolen property, is admissible. Philip McNiff's case, 1 City Hall Recorder, 8. Before Badcliff, Mayor. New York, January, 1816. ll^i 8. It is incumbent on a party, in whose possession stolen property is found, to show how or where such prop- erty was obtained, to exculpate himself from a charge of felony for stealing the same. Mary Biley's cases, 1 City Mall Becorder, 23. Before Badcliff, Mayor. New York, February, 1816. > 9. If the confession of the prisoner, made under the promise and under the expectation of favor, lead to facts which, independent of such confession, establish his guilt, such facts may be given in evidence. Charity Jackson's case, 1 City Hall Becorder, 28. Before Badcliff, Mayor. New York, February, 1816. 10. Where, on an indictment for larceny, witnesses were sworn to show that the intrinsic value of the articles stolen were less than laid in the indictment, it was held that there is no other criterion of the value of goods, ex- cept that of their value in market. William Taylor s case, 1 City Hall Recorder, 28. Before Badcliff, Mayor. New York, February, 1816. '^J^lf ' 11. On the trial of an indictment for forgery and passing counterfeit bills, the public prosecutor may pro- duce evidence that the prisoner passed spurious bills not laid in the indictment, for the purpose of establishing the scienter; but, it seems, parol testimony, relative to passing such bills, is inadmissible, unless they are produced. Christopher Helm's case, 1 City Hall Recorder, 46. Before Biker, Recorder. New York, March, 1816. 12. "Where several unimpeached, uncontradicted wit- EVIDEK'OE. 167 nesses swear, positively, that the person before the court for trial passed to them a counterfeit bill, and a variety of circumstances is introduced by the public prosecutor to establish the quo animo, the principal one of which is, that the prisoner, when arrested, denied that he knew a person in whose family he had boarded several weeks, and in whose possession a great quantity of counterfeit bank notes, and a plate for counterfeiting, had been found, th* jury is justified rather in placing implicit confidence in those witnesses who so swear to the personal identity of the prisoner, than in any witnesses introduced on behalf of the prisoner, for the purpose of establishing the fact that at the time the bill was passed the prisoner was at a different place. Lyman Rowley, alias Ryan's case, 1 City Sail Recorder, 47. Re/ore RiJcer, Recorder. New York, March, 1816. 13. On the trial of an indictment for forgery, and for having in possession counterfeit notes, evidence that the prisoner, with another, offered to pass a counterfeit bill, not laid in the indictment, is admissible for the purpose of establishing the scienter. Smith indicted with Goldsby, 1 Oity Sail Recorder, .49. Before Riker, Recorder. New York, March, 1816. ^lll' 14. On the trial of an indictment under the stat- ute for receiving stolen goods, knowing them to be such, though the thief is a competent witness, yet should his testimony in relation to such knowledge be uncorroborated by other testimony, or strong circumstances, the jury is justified in discarding his testimony, especially where he swears against a man of general good character ; and in no case can the same credence be given to such testi- mony as to that of an honest man, standing unimpeached. Jeremiah Sill's case, 1 Oity Hall Recorder, 66. Before Radcliff, Mayor. New York, April, 1816. 15. The identity of new goods, articles of merchandise, on w hich the owner has no particular mark, is sufficient- ly proved by testimony that the goods stolen were of 168 EVIDENCE. the same description, taken in connection with circum- stances confirming such identity j and should the jury believe that one of the witnesses, who testified as to the identity of the goods, was concerned in the felony, yet if the relation of such witness is supported by other testi- mony and the circumstances of the case, such testimony should not be discarded. Ferguson, Hatten and Smith's cases, 1 City Hall Recorder, 65. Before Badcliff, Mayor. New York, April, 1816. 16. A question will not be allowed to be put to a wit- ness for the purpose of impeaching his motives, for com- plaining of the prisoner; it must be shown by other testimony. James Butler's case, 1 City Sail Becorder, 66. Before Badcliff, Mayor. New York, April, 1816. ^l^[ 17. The public prosecutor has no right to produce evidence against a prisoner indicted for passing a counter- feit bill, that he was arrested in company with one who had previously been convicted of the same offense, nor that he boarded at the house of one in whose possession counterfeit money and instruments for counterfeiting had been found, (who had also been convicted of the offense,) unless he can also show that the prisoner was connected in the business of counterfeiting with those in whose company he was found ; but if the prisoner has, in his examination before the police magistrates, denied those facta, this examination becomes evidence, which the pub- lic prosecutor may rebut by other evidence. Goldsby and Coverifs cases, 1 City Hall Becorder, 81. Before Badcliff, Mayor. New York, May, 1816. 18. A prisoner, in his examination before the police magistrates, is not bound to answer any question, the an- swer to which, if true, would implicate himself; but if he submits to answer, and answers falsely, the public prose- cutor may produce evidence to disprove such examination, and it will then be taken strongly against the prisoner, id. 19. On the trial of an indictment for assault and bat- tery, evidence that the prosecutor is an habitual drunk- EVIDENCE. 169 ard is inadmissible ; although it may be shown he was drunk at the time of the affray. John Bartlett's case, 1 City Hall Becorder, 87. Before Badcliff, Mayor. New York, May, 1816. 'i8i6.' 20. Where divers pretenses, alleged to be false, are laid in the same .count in an indictment, and either of them, sufficiept within itself, is substantially proved to be false on the trial, the indictment is sufficiently supported ; nor is it necessary that every pretense so laid should be proved false. Mordecai Lazarus' case, 1 City Ball Be- corder, 89. Before Badcliff, Mayor. New York, June, 1816. 21. It is not necessary where, during the negotiation of the purchase of goods, and at the time of the delivery of a bill of lading to C. by L., and a short time previous to its re-delivery, a variety of false representations is made by L. to C, to deprive him of a vested right, the truth or falsity of which C. had no opportunity of knowing, ex- cept by such representations, that these pretenses, on the faith of which the bill of lading is obtained, should be made at the precise time of the re-delivery. And should the jury believe, from all the circumstances of the case, that L. resorted to such representations as an artifice to deprive C. of such right, they are justifiable in finding L. guilty of obtaining goods by false pretenses ; the falsity of which pretenses, or either of them, may be inferred from circumstances. id. 22. On the trial of an indictment against a man for the murder of his wife, by inflicting a wound under the left breast, with a knife, the public prosecutor cannot show that a scar, near the mortal wound, was occasioned by a stab previously made on the deceased by the prisoner, un- less he fills up the chasm elapsed, by connecting the former with the latter occasion of the wound, and show- ing, as it were, an entire continued transaction. Patrick Blake's case, 1 City Hall Becorder, 99. Before Piatt, J. New York Oyer and Terminer, June, 1816. 23. In such a case, though the public prosecutor has a 170 EVIDENCE. right to show frequent quarrels -between the prisoner and the deceased, to establish the malo animo, yet he cannot go back to a remote period and show a particular quarrel, unless he follow it up with proof of a continued difference, flowing from such quarrel. id. 24. "Where such case depends wholly on circumstantial proof, and a variety of circumstances is presented to a jury, some of which operate strongly against and others in favor of the prisoner, and, when combined and balanced in the mind, produce a doubt relative to his guilt or innocence, it is the duty of such jury to acquit the prisoner. id. iJle.' 25. The public prosecutor may show that stolen goods, not laid in the indictment, were found in the pos- session of a person on trial for a charge for receiving stolen goods, especially when it appears that those goods belonged to the same person from whom the goods laid in the indict- ment were stolen. PJiebe Jarvis' case, 1 Oity Hall Be- corder,V)5. BeforeRadcliff,Mayor. New York, July, 1816. 26. Though in a criminal prosecution the testimony of the child against the parent, or the brother against the sister, must be received, if pressed, on either side, yet a humane court ever hears such testimony with reluctance, because it is unnatural and shocks the feelings. id. 27. The husband is a competent witness, in a criminal prosecution against his wife, for committing an assault and battery upon him. MizabetJi Trenor's case, 1 City Hall Recorder, 107. Before Badcliff, Mayor. New York, July, 1816. 28. Though evidence of barbarous treatment by the hus- band before the time in which the alleged assault was made by her, is inadmissible, yet, should the jury find her guilty, the court will receive her affidavit containing the circumstances of such treatment, and mitigate her pun- ishment, id. 29. Where a man, on his arrest by the officers of the police, attempts to conceal or destroy a counterfeit bank bill which he has in his possession, and refuses to give EVIDENCE. 171 any account of himself, or to tell his name, and after- wards there is found in his portmanteau between five and six thousand dollars in counterfeit bills on different banks in the United States, on the trial of an indictment against him for having in his possession forged or counterfeit bank bills, with an intention to utter or pass the same, knowing them to be counterfeit, the above circumstances are proper evidence to be left to the jury to show such in- tention; and had it appeared, or should the jury believe, that the prisoner was a wholesale dealer in counterfeit bills and intended to sell them as such, he is not the less guilty under that section of the statute on which the indictment is founded. Bartram Galbranfs case, 1 City Hall Re- corder, 109. Before BadcUff, Mayor. New York, July, 1816. (The statute referred to, 1 vol. N. E. L. p. 406, section 9, reads as follows : " That if any person shall have in his possession, or receive from any other person, any forged or counterfeit promissory note for the payment of money, with intention to utter or pass the same, or to per- mit, cause or procure the same to be uttered or passed, with intention to defraud any person or body politic or corporate whatsoever, knowing the same to be forged, &c., being convicted &c. shall be deemed guilty of felony.) fg^; 30. On the trial of an indictment for subornation of perjury, where two witnesses on behalf of the prosecu- tion swear that the testimony given by them on the former trial was false, their wives' testimony is not ad- missible to impeach that of their husbands, either directly or collaterally on the ground that it was contrary to the sound policy of the law, and calculated to disturb and in- fringe the domestic peace. John Francis and John Jones' cases, 1 Oity Hall Recorder, 121. Before Radcliff, Mayor. New York, August, 1816. 31. In such case it is not necessary, on behalf of the prosecution, either to prove the perjury or subornation by two other witnesses ; and, although it would be unsafe to 172 EVIDEB"OE. rely solely on the testimony of witnesses who swear they committed p6rjury, yet it is the duty of the jury to exam- ine and weigh the whole circumstances of the case, and give credence to such testimony, should they find it con- firmed, id. 32. The affidavit of one of the jurors, after the verdict has been regularly entered, will not be received by the court, on a motion for a new trial, to impeach such verdict. id. 33. A counselor who swears that he knows nothing con- cerning a former cause, except what has been imparted to him in professional confidence by his client, will not be permitted to prove that a receipt adduced in such trial as evidence, purporting to bear date before such trial, was manufactured to answer the purposes of the defense, even should the counsel for the prisoner consent to admit such testimony. id. 34. It is incumbent on a prisoner who passes a false and forged check, and afterwards, when called on by the per- son defrauded, to disclose the name of the person from whom he received it, denies that he passed such check, and disclaims all knowledge of the circumstances under which it was passed, to account satisfactorily for the pos- session of such check ; nor will the general good character of such prisoner in such case be sufficient to repel the pre- sumption of his guilt, for it is only in cases where there is doubt of the prisoner's guilt that proof of general good character will avail. Isaac Vosburgh's case, 1 City Hall Recorder, 130. Before Badcliff, Mayor. New York, August, 1816. 35. "Where an illiterate man passes a counterfeited bill and the circumstances in the case, upon which the public prosecutor founds the scienter, are slight, the general good character of the prisoner will be sufficient to repel the presumption of guilt. Levi James' case, 1 City Hall Re- corder, 132. Before Badcliff, Mayor. New York, August, 1816. EVIDENCE. 173 36. The testimony of an accomplice in a felony is enti- tled to credit, if sufficiently corroborated by other testi- mony. Lewis Smith's case, 1 Oity Hall Recorder, 133. Be- fore BadcUff, Mayor. New York, August, 1816. ^^- 37. A witness is not .bound to answer a question, the answer to which/ if true, might absolutely, or have a tendency to, implicate him in a criminal transaction. Bos- well SaltonstaWs case, 1 City Ball Recorder, 134. Before Badcliff, Mayor. New York, August, 1816. Ills; 38. On the trial of an indictment for the forgery of an order for the delivery of goods, and for passing such or- der, knowing it to have been forged, the person on whom the order is drawn, and who delivered the goods, is a com- petent witness to prove the forgery, and the person whose name is forged, is a competent witness in the same case to prove circumstances calculated to establish the scienter, although he will not be allowed to testify to the fact of the forgery. This latter rule is technical, and applicable to the crime of forgery only. Custis Ooe's case, 1 City Sail Becorder, 141. Before Badcliff, Mayor. Neio York, September, 1816. 39. In a case of grand larceny, in which the prisoner, under the influence of threats, made a full confession of the felony before going to the police, and the next j day made the same confession to the police magistrates, which was reduced to writing, but the property stolen was not found ; Held, that the confession taken before the magis- trates is presumed to be made freely and voluntarily ; yet, should the jury believe that the influence of threats, pre- viously made, operated on the mind of the prisoner at the time of the confession before the magistrates, they would be justified in rejecting such confession. John Williams' case, 1 City Hall Becorder, 149. Before Badcliff, Mayor. New York, September, 1816. 40. The confession of a prisoner, taken before a magis- trate, will not be sufficient to convict him of a felony, un- less evidence is also given that a felony was committed. 174 EVIDENCE. Charles Hope's case, 1 City Hall Becorder, 150. Before Badcliff, Mayor. New York, September, 1816. Psfs 41. Where E. was indicted for willful and corrupt perjury, committed in an affidavit, sworn to for the pur- pose of removing the proceedings instituted by one of the police justices against a vagrant, then in Bridewell, into' the Supreme Court, by certiorari, and on the trial of such indictment, two unimpeached witnesses, on behalf of the prosecution, expressly swear to the falsity of a particular statement in the affidavit, which is decided by the court to be material, should the jurors conceive that such state- ment, though false, was not willful and corrupt, it will be their duty to acquit the prisoner. Bobert Elwell's case, 1 City Hall Becorder, 155. Before Badcliff, Mayor. New York, October, 1816. 42. Though, in general, a witness is not bound to crim- inate himself, yet a professed accomplice, admitted as a witness on behalf of the prosecution, is bound, on his cross-examination, to disclose fully his own turpitude in a criminal transaction, committed in connection with the person against whom he has been called to testify. Ath- erton's case, 1 City Hall Becorder, 159. Before Badcliff, Mayor. New York, October, 1816. J^^J; 43. It seems that a general understanding between two or more to rob or defraud others, withoiit reference to the particular act laid in the indictment, is sufficient to support the charge of conspiracy. John Storm's case, 1 City Hall Becorder, 169. Before Badcliff, Mayor. New York, November, 1816. 44. Such confederacy need not be expressly proved, but may be inferred by the jury, from the whole circumstances of the case. id. 45. In a prosecution against a woman for bigamy, evi- dence of barbarous treatment by the first husband, before the marriage with the second took place, is inadmissible, but will be received by the court in mitigation of her punishment ; this can be shown by the affidavit of the EVIDENCE. 175 prisoner or any other person. Nancy Walworth's case, 1 Oity Hall Becorder, 171. Before Badcliff, Mayor. New York, November, 1816. 46. When two or more are tried for a felony, in which they were jointly concerned, the statement of one against the other, contained in their separate examinations before the police magistrates, will not be received to criminate him against whom such statement is made. Jesse Hop- hins and Benjamin Gannon's case, 1 Qity Hall Recorder, 173. Before Badcliff, Mayor. New York, November, 1816. 47. Though the wife cannot be admitted as a witness either for or against her husband, yet, where the husband was on trial with another, joined with him in the same indictment, the wife was admitted as a witness in favor of him with whom the husband was so joined. Thomas Shaw and Philip Haskin's ease, 1 Oity Hall Becorder, 177. Be- fore Badcliff, Mayor. N^w York, November, 1816. fg^iJ; 48. On the trial of an indictment for murder, al- leging that the death was occasioned by means of poison administered by the prisoner, and the ground of defense on the trial is insanity, should the jurors entertain a ra- tional doubt on the question, whether the death of the child was occasioned by the poison; or should they be fully convinced, from the testimony before them, that at the time the prisoner committed the act she was insane, it will, in either case, be their duty to acquit. Diana Sel- licFs case, 1 City Hall Becorder, 185. New York Oyer and Terminer. Before Van Ness, J. December, 1816. 49. On the trial of an indictment for perjury, the exist- ence of the former cause, on the trial of which the perjury is assigned, must be proved by the record, if insisted on by the counsel for the defendant, and cannot be proved by the minutes of the court kept by the clerk. Williani, Jarvis' case, 1 Oity Hall Becorder, 191. Before Badcliff, Mayor. New York, December, 1816. 50, On the trial of an indictment for conspiracy, it is 176 EVIDENCE. not necessary to show the conspiracy by positive proof, but the jury may judge from the facts and circumstances of the case whether the defendants, or any two of them, did previously conspire, either to do the particular act laid in the indictment, or to defraud generally. John Tay- lor's case, indicted with Ward, Bogardus and Skinner, 1 City Sail Recorder, 192. Before Badcliff, Mayor. New York, December, 1816. fa'ij. 51. A witness who gives a different statement in his testimony from that which he had before given, when under oath, in relation to the same transaction, will be distrusted in the whole of his testimony. Noah M. Eaux- hurst's ease, 2 Oity Hall Becorder, 33. Before Badcliff, Mayor. New York, February, 1817. *i8i°^' 52. Where two, in concert, pass a counterfeit bill, and endeavor to escape, and in their several exam- inations give contradictory and unsatisfactory accounts of such possession, these are strong circumstances of guilt. Solomon Reynolds and JElihu Dichison, alias Champlain's case, 2 Oity Sail Becorder, 47. Before Bodman, Mayor. New York, March, 1817. ^H'"' 53. Where a man is indicted for having in his pos- session, with an intention to pass, a counterfeit bill, the pub- lic prosecutor, for the purpose of showing such intention, will be pemitted to prove that, at the time the prisoner was arrested by the police officers, he was engaged with others in coining false money. Demus D. Weaver, Isaac Chamber- lain and William Thompson's cases, 2 City Sail Becorder, 57. Before Bodfnan, Mayor. New York, April, 1817. 54. It seems, however, that the possession of a single counterfeit bill, unaccompanied by any circumstances tend- ing to show the intention of passing it, except being en- gaged in the perpetration of a different crime, will be insufficient to produce a conviction. id. 'i'sl^; 55. The written examination of a witness in a crim- inal prosecution, taken before a magistrate, cannot be read in evidence to fortify the oral testimony of such wit- EVIDENCE. 177 ness, without producing tlie magistrate before whom such examination was taken, to show under what circumstances it was taken. Isaac Boget's case, indicted with Elias Blois and Jean Baptiste Baulmery, 2 City Hall Recorder, 61. Before Badcliff, Mayor. New York, May, 1817. 56. Where a prisoner was indicted for having a single counterfeit bank bill in his possession, with an intention of passing it, afad it appeared in evidence that he had re- ceived it for the purpose of returning it to the person from whom it was said to have been received, and openly showed it, as a bad bill, though it should further appear that a large quantity of false money was found in his house in the state of New Jersey, and that he was largely con- cerned in the business of counterfeiting, it was held that the scienter was not sufficiently established to convict him. Simeon Van Houton and John Harvey's cases, 2 Gity Hall Recorder, 73. Before Badcliff, Mayor. New York, May, 1817. 57. That a large sum in counterfeit money was found in the trunk of a prisoner, not within the jurisdiction of the court, will be admitted in evidence as a circumstance to show the scienter.^ id. 58. Where two persons are equally concerned in the business of passing counterfeit money, or having it in pos- session, with the intention of passing it, though it should appear that one of the persons only had the actual posses- sion of the money at the time of the arrest ; still, on the trial of an indictment against both for having such money in possession, with intention of passing it, he who had not the actual possession was held equally guilty with the other. id. 59. Though confessions made in confidence to a divine of the Koman Catholic order, in the course of discipline, whose duty it is to receive auricular confessions according to the canons of that church, will not be received in evi- dence, yet, admissions made by a prisoner to a divine of the protestant churches, in confidence, merely as a friend 12 178 EVIDENCE. and adviser, will be received. Christian Smith's case, 2 City Hall Becorder, 77. Bichmond Oyer and Terminer. Van Ness, J. May, 1817. 60. Parol evidence of a conviction for felony is inadmis- sible, although it be proved that the clerk's office of the county had been burnt down, and the record probably destroyed, for there is higher evidence of the fact, capable of being produced, that is, the transcript delivered into the court of exchequer by the district attorney, which must be presumed to have been delivered, such being his duty as a public officer. Hilts v. Colvin, 14 J. B. 182. Supreme Court, May, 1817. 61. Whether the copy of the sentence given by the clerk to the sheriff, and delivered by him with the prisoner to the keeper of the state prison, would be higher evidence of a conviction than parol proof? Quere. id. ■'isil.' 62. Concealment, or an attempt to conceal false money, is a strong circumstance of guilt against a prisoner on the trial of an indictment against him for having coun- terfeit money in his possession, with an intention of pass- ing it. Samuel Stewart's case, 2 City Hall Becorder, 87. Before Bodman, Mayor. New York^June, 1817. ^1817! 63. In a prosecution for bigamy, the former mar- riage, in fact, must be proved. Elizabeth Steers' case, 2 City Hall Becorder, 111. Before Badeliff, Mayor. New York, July, 1817. 64. On the trial of an indictment for bigamy against S., for that on the 16th of March, 1815, she married J. S., and afterward, to wit, on the 25th day of May, 1816, married E., the said J. S. being alive, &c., it appeared by the testimony of K., a divine, that on the day first above mentioned he married a woman of the name of S. to J. S., but that he, K., did not know that S., the prisoner, was the same person he so married ; it was held that although this was sufficient evidence of a marriage de facto of the person by the name of S., and therefore that collateral evidence to identify such person might be given, yet that EVIDENCE. 179 the prosecutor should be precluded from establishing the second marriage by cohabitation, or otherwise, without first proving that S., the prisoner, was the identical person so married by K. id. 65. It seems that, in such case, even a representation or confession by S., the prisoner, to third persons, made subsequent to the time of the marriage by K. that she was the wife of J. S., is not suflacient evidence of such marriage. id. f^f 66. "Where a felony is committed within the city of New York, and the prisoner is pursued into the state of New Jersey, and apprehended without legal authority, and brought back, and is then arrested by virtue of a war- rant issuing from the police, it was held, on the trial of an indictment for the ofl'ense, that the alleged violation of the sovereignty of New Jersey would not be regarded by the court, who would not look beyond the arrest by the police. Samuel Britton's case, 2 City Mall Recorder, 119. Before Badcliff, Mayor. Neio York, August, 1817. 67. It seems that, in such case, any alleged violation of territorial rights is a matter resting between the executive of the respective states, with which the court will not interfere. id. 111?: ^8. Capacity, rather than age, is the criterion for determining whether a child of tender years (a young female of nine years of age) ought to be sworn as a witness; and where such witness was introduced, and was found, on examination, to possess sufficient intelligence, but did not understand the nature of an oath, nor the consequences of swearing false, it was held that the court might instruct such witness before administering the oath. William W. James' case, 2 City Sail Recorder, 147. Before Badcliff, Mayor. New York, September, 1817. 69. The common rules in relation to circumstantial testimony are obligatory on juries, notwithstanding the fallibility of such testimony, in extreme cases, as shown from theoretical writers; and the jury, in rendering a 180 EVIDENCE. verdict, declare the result of their conviction from the evidence: they do not swear that the facts upon which such result is founded are true. John Canton and Charles Bedding's case, 2 City Hall Becorder, 149. Before Bad- cliff, Mayor. New York, September, 1817. °8i7. '^^- Ii ^ criminal prosecution against the husband for inciting a third person to administer a certain deadly poison to his wife, with intent to murder her, it was held that the wife was a competent witness on behalf of the prosecution. Thomas Wiggins' case, 2 City Hall Becorder, 156. Be/ore Badclif, Mayor. New York, October, 1817. 71. The general rule of evidence was, that the wife could not be a witness for or against her husband ; but in case of a personal injury inflicted on her, from the neces- sity of the case, she was a competent witness. The reason of the rule applied with much greater force in a case where her life had been endangerbd by the husband, id. ^^J: 72. On the trial of an assault arid battery commit- ted on an officer while in the execution of the duties of his office, the prosecution should produce on the trial the process under which the officer acted; otherwise the evi- dence would show he was a trespasser, and after being ordered to leave the premises, and he refusing, the pris- oner had a right to use force in putting him out of the house. Anoria Bay's case, 2 City Hall Becorder, 165. Before Badcliff, Mayor. New York, November, 1817. {Ifl 73. An infant of intelligence, a lad eleven years of age, who does not understand the nature of an oath, appearing as a witness under objection, will be instructed by the court. Augustus M. Stone's case, 3 City Hall Becorder, 2. Before Badcliff, Mayor. New York, Jan- uary, 1818. 74. It seems that in contemplation of law a bank bill is not money. Money means specie, and whenever bank notes become the subject of an indictment they ought to be described as such. In the precedents of indictments for stealing bank bills this rule appears to EVIDENCE. 181 have been pursued, and there is no reason why it should be departed from. Lewis Smith's case, 3 City Hall Recorder, 4. Before Badcliff, Mayor. New York, Jan- uary, 1818. ^g'll: 75. The declarations, in extremis, of a person who could, if living, be a competent witness, are inadmissible evidence, either in a civil action or a criminal prosecution, with the single exception of cases of homicide, when the declarations of the deceased, after the mortal blow, as to the fact of the murder, is admitted. Wilson v. Boerem, 15 J. B. 286. Supreme Court, August, 1818. fifg'; 76. To convict a prisoner of a felony, it is incum- bent on the public prosecutor to show a felony has been committed. William Plunhett's case, 3 City Hall Recorder, 137. Before Golden, Mayor. New York, September, 1818. 77. Where circumstances are relied on by the public prosecutor to establish the commission of a felony by the prisoner, they must be such as are reconcilable with his guilt only, and are utterly inconsistent with his inno- cence. . id. 78. On the trial of an indictment at common law for the forgery of an instrument, the public prosecutor will be allowed to recur to extrinsic evidence to explain and show the meaning and intent of such instrument. John Grant and Christian Hopper s cases, 3 City Hall Recorder, 142. Before Golden, Mayor. New York, September, 1818. 79. Though on the trial of an indictment for passing a forged check, it is not sufficient, generally, for the public prosecutor to show that the prisoner merely passed it, without showing in him a knowledge that it was forged, yet, in such case, very slight circumstances are sufficient to establish the scienter. Anthony V. Bartow's cases, 3 City ■Hall Recorder, 143. Before Golden, Mai/or. New York, September, 1818. Of,'- 80. On the trial of an indictment for passing coun- terfeit money, for the purpose of establishing the scienter, the public prosecutor will be permitted to show that the 182 EVIDENCE. prisoner, previous to the time laid in the indictment, passed other counterfeit bills ; but should it appear that these bills were passed at a time remote from the others, and no circumstance is produced on behalf of the prosecution tending to establish the scienter in relation to the principal offense, the jury may acquit the prisoner, especially if he is supported by testimony of good character. Dennis Dougherty's case, 3 Oity Hall Becorder, 148. Before Col- den, Mayor. New York, October, 1818. 81. Where, in such case, no connection appears between the offense laid in the indictment and that produced to establish the scienter, and the offenses appear distinct, however strong may be the evidence of the scienter applied to the accessory offense, the jury will not be justified in finding the prisoner guilty of the principal offense. Other- wise, a man might be convicted of a crime not charged in the indictment. id. 82. Though the public prosecutor . cannot introduce other "witnesses/or the purpose of discrediting a witness on behalf of the prosecution, yet he is not precluded from contradicting facts previously sworn to by his own witness. George Brown's cases, 3 City Hall Becorder, 151. Before Colden, Mayor. New York, October, 1818. 83. Where the district attorney introduced a witness who, if her testimony is to be believed, completely excul- pates the prisoner ; the witness, according to the estab- lished rules of evidence, cannot be impeached on the part of the prosecution ; for a party, by calling on a witness, professedly holds such witness forth to the world as entitled to full credence : still the jury, whose exclusive province it is to determine on the credit to be given to the relation of a witness, are not, therefore, bound to believe her testi- mony, id. 84. Where, on the trial of an indictment for larceny, the owner of the goods does not appear, the prisoner will be allowed to show that immediately after the felony was alleged to have been committed, the owner acquitted him EVIDENCE. 183 from blame, and alleged that he was satisfied, having foutid the goods about his own person. George Kelly's case, 3 City Hall Recorder, 153. Before Qolden, Mayor. New York, October, 1818. fsls! 85. Where bank bills, alleged to be stolen, are par- ticularly specified in an indictment, as they must be, it is in- cumbent on the public prosecutor to show that some or one of them thus specified was stolen, and that they were received as good money and believed at the time of their reception to be so. Peter Dame's case, 4 City Hall Re- corder, 32. Before Golden, Mayor. New York, February, 1819. ■^JfJ' 86. On the trial of a case for obtaining goods by false pretenses, the proof should correspond with the indict- ment ; and where the prisoner was charged in the indict- ment with obtaining on the first day of December $15.41, the money of L., by falsely pretending to him that a cer- tain check for $23.41, on the Mechanics' Bank, purporting to have been drawn by one Samuel S. Sherman, toas good, being drawn by a man in Connecticut of good credit; and that the check would be paid at the bank, and it appearing from the testimony that, previous to the time laid in the indictment, the prisoner engaged a pair of boots of the wit- ness, a clerk of L., for f8; and after they were finished and delivered, the prisoner said that he would give a check on the bank ; and at that time he did not show any check, but promised to call as he went to court ; and the witness not receiving his pay called several times and sent for it, but to no purpose ; and, about the 1st of December, the prisoner came to the store and told the witness if he could change a check for $23.41 he, the prisoner, would pay for the boots ; and the witness changed the check and carried it to the bank, but no person by the name of the drawer had an account there, and payment was refused ; Held, this proof did not support the indictment, and the prisoner was acquitted. William A. Coffey's cases, 4 City Hall Recorder, 52. Before Colden, Mayor. New York, April, 1819. 184 EVIDENCE. 87. In a case of forgery, it is not necessary that the wit- ness who is produced to prove the handwriting of another should have seen him write. It is sufficient if he swear he has corresponded, by writing, with the party, and be- lieves it to be his handwriting — or, if the witness be an officer of a bank, and swear he had often seen his bank- book, and was in the habit of receiving his checks and paying them in the ordinary course of business, this is equivalent to the evidence of handwriting by means of foreign correspondence. id. 88. On the trial of an indictment for uttering a forged check, hnowing it to he forged, the public prosecutor, for the purpose of showing the scienter, will be allowed to prove that the prisoner had passed a check, not laid in the indictment, purporting to be drawn by a person who had no account at the bank on which such check was drawn. id. 89. To sustain an idictment for forging and having in possession counterfeit bank bills, with an intention to ut- ter them, it is necessary for the public prosecutor either to produce the bills laid in the indictment, on the trial, or to identify them with sufficient certainty. Elizabeth Con- ner's case, 4 City Hall Recorder, 62. Before Colden, Mayor. New York, April, 1819. ml.' 90- Three were indicted for conspiring to obtain by unlawful and indirect means a large sum of money from a bank. One of them, who had charge of the money when obtained, (as was alleged in the indictment,) was arrested on a capias, in a suit brought by the- bank for the recovery of the money, at the house of one of the officers of the bank. At this house the defendant, by his own choice, remained several days ; and in the mean time such officer, assuring him that the object of the bank was to convict the other two, .promised him that if he would make a frank and full disclosure of all the circumstances impli- cating them, that he should be made a state's evidence against them. Under the influence of this promise, as the EVIDENCE. 185 officer believed, a confession was made, which was reduced to writing by a third person. Though it appeared that immediately previous to the time of the confession no promise was made to the defendant, and that immedi- ately afterwards he declared it was made freely and vol- untarily and from a sense of duty, it was held that such confession could not be received in evidence. John W. Thorn, Valentine N. Livingston and Henry D. Tracy's case, 4 City Hall Recorder, 81. Before Golden, Mayor. New York, June, 1819. 91. It is immaterial whether the person making a prom- ise of favor, which influences a confession, be concerned in the administration of public justice or not ; and it is equally immaterial whether such confession was made with reference to, or in the progress of, a criminal prosecution ; the only question to be decided, was the confession made under a promise of favor. id. 92. "Where stolen property is returned to the owner, after the owner has advertised his loss and offered a re- ward for its recovery, by a person who, at the time, gives an account of his possession, it was held that such account might be received in evidence as part of the res gestae. John Atwood's case, 4 City Hall Becorder. 91. Before Golden, Mayor. New York, June, 1819. 93. In a case wholly depending on circumstances, they must be such as are consistent with guilt only, and incon- sistent with innocence. id. 1819." 94. On the trial of an indictment for forging and passing counterfeit notes on a bank out of the state, the existence of the bank and the forgery may be proved, without producing the charter of incorporation, or the officers of the bank. Daniel Sarles' case, 4 City Hall Re- corder, 107. Before Golden, Mayor. New York, Julg, 1819. 95. Though the declaration of a party, (that he or she was murdered by a particular person,) made immediately after a mortal blow is inflicted, and when the party con- eidered himself, or herself, in immediate danger of death, 186 EVIDENCE. may be received in evidence as having been made in extremis, yet, where the wounded party languished for several days afterward and then died, it was held that such declaration njight also be given in evidence as part of the res gestae; and that it was unnecessary for the jury to determine whether the declaration was made in extre- mis, or not. Hugh Ourry's case, 4 City Hall Recorder, 109. Before Golden, Mayor. New Yorh, July, 1819. S 96- Where a witness, on behalf of the prisoner, on trial for the forgery of a promissory note against the witness, declared that such note was in his own hand- writing, the court would not, on the suggestion of the district attorney, permit the witness to write a similar instrument and submit it, with that alleged to be a forgery, to the inspection of the jury, though this course was con- sented to on behalf of the prisoner. Gilbert B. HutcMns' case, 4 Gity Mall Recorder, 119. Before Golden, Mayor. New York, September, 1819. 97. The jury cannot determine whether an instrument is a forgery or not, from mere comparison of handwriting, especially where they have higher evidence. id. fgfj, 98. To prove that bank bills, received as good money by the prosecutor, were stolen by the prisoner, is sufficient, without otherwise showing that they were of value. Terence Hughes' case, 4 City Hall Recorder, 132. Before Golden, Mayor. New York, October, 1819. 99. Where an oral confession, in the first instance, has been made under the influence of promise of favor, and afterward an examination of the prisoner,, in the usual manner, takes place in the police, being a reiteration of the first confession, it shall be left to the jury to determ- ine from the circumstances whether the promises contin- ued their influence on his mind until his examination in the police; and if so, it is to be rejected. Peter Bower- han et al. case, 4 City Hall Recorder, 136. Before Golden, Mayor. New York, October, 1819. 100. Where the magistrate before whom a prisoner is EVIDENCE. 187 brought professes to take his examination according to statute, parol testimony shall not be admitted of what he said on examination ; but a. confession made before a magistrate, not reduced to writing, is good evidence, and the magistrate is a competent witness. John Collins' case, 4 Qity Hall Becorder, 139. Before Colden, Mayor. New York, October, 1819. 101. If property is stolen, and but a part is found in possession of a prisoner, this shall be sufficient to charge him with the possession of the whole, should the jury believe that it must have been stolen at the same time. id. 102. The confession of a prisoner who is charged, with another, with the commission of a felony, can neither be received as evidence against the other, nor in his favor. John Brandon, alias John Brown, and Elizabeth Griffith's case, 4 Oity Hall Becorder, 140. Before Colden, Mayor. New York, October, 1819. 103. Though the wife who aids, abets and assists the husband in the commission of a felony, is presumed to act under his control, and is not to be charged as a felon ; yet a mistress who, perhaps, in fact, is more under the control of the man than his wife, is not thus sheltered. id. JJ'jj- 104. Evidence of any false pretenses made by the defendant, after the goods were obtained, is inadmissible for the purpose of proving the charge of obtaining goods by false pretenses. Abraham Collins' case, 4 City Mall Becorder, 143. Before Golden, Mayor. New York, No- vember, 1819. 105. The proof of the negations, in an indictment for this offense, if but slight, is sufficient to throw the burden of proof on the side of the defendant. id. 106. In a prosecution for obtaining goods by false pre- tenses, the public prosecutor cannot, for the purpose of establishing the scienter, show that the defendant, for the purpose of obtaining goods, made the same pretenses set forth in the indictment to a person not named therein, id. 107. What has been done or omitted by a former grand 188 EVIDENCE. jury, in relation to a complaint for the offense with which a defendant stands charged, and is on trial, cannot he received in evidence. Thomas Gillespie and others' case, A City Hall Recorder, 154. Before Golden,, Mayor. 'New Torh, November, 1819. 108. The defendant cannot give in evidence his good character, on the trial of an indictment for an assault and battery ; as this offense does not necessarily involve moral turpitude; it having been repeatedly so decided in this court. id. 109. The possession of stolen property, where the pris- oner can show that he was but an accessory after the fact, in case of felony, shall not be sufficient to convict him of the principal offense ; but if, in accounting for such pos- session, he gives false and inconsistent statements, these will operate to destroy the presumption which otherwise would be in his favor, as much as they would in the attempt to show that the property came into his possession honestly. John. Ball Jr.'s case, 4 City Mall Recorder, 157. Before Golden, Mayor. New York, November, 1819. 110. Evidence that the prisoner passed other counter- feit bills, not laid in the indictment, for the purpose of establishing the scienter, is inadmissible unless such bills are produced. Lewis Smith's case, 4 City Mall Recorder, 166. Before Golden, Mayor. New York, November, 1819. 111. D., in the month of July, 1818, was tried on an in- dictment for passing two counterfeit bills on the Mechanics' Bank, and on the trial, for the purpose of establishing the scienter, the district attorney introduced testimony that a year previous to that trial he passed other counterfeit bills, and strong circumstances were adduced to show that the prisoner knew the last mentioned bills were counterfeit. He was, however, acquitted. On the trial of an indict- ment against him, in the month of December, 1819, for passing other counterfeit bills, it was held that the district attorney might introduce testimony that the prisoner passed not only the bills, for the passing of which he had EVIDENCE. 189 formerly been tried and acquitted, but also those passed previously, for the 'purpose of showing that he knew them to be counterfeit. Dennis Dougherty's case, 4 City Hall Recorder, 167. Before Oolden, Mayor. New York, Noverr^ her, 1819. 112. The defei|dant, a grocer, was indicted for a misde- meanor at common law, in selling by false weights and measures, and it appeared in evidence on the trial that the first parcels, alleged to have been sold short of their true weight, were carried from the city of ]!Tew York to Westchester county, and weighed by the prosecutor and his wife with a pair of steelyards, and the other parcel in P.'s store ; .held, in a prosecution for selling by weights and measures, it is incumbent on the prosecutor to show that the articles sold by the defendant, alleged to be short of weight or measure, were weighed or measured by the standard weight or measure, or, that the steelyards or P.'s weights were of the standard weight. William W. Winan's case, 4 City Hall Recorder, 176. Before Golden, Mayor. New York, November, 1819. fj^^; 113. A voluntary confession in the case of a mis- demeanor, reduced to writing before a magistrate, though not a confession authorized to be taken by him under the statute, as in a felony, may be read in evidence. Robert W. Steel's case, 5 City Hall Recorder, 5. Before Golden, Mayor. New York, February, 1820. (See 3 E. S. 5th ed. 996.) 114. "Where the complaint of the prosecutor was reduced to writing in the police, and the confession of the prisoner followed, stating that "the charge in the foregoing affidavit is trute,"- and further '■'■that he obtained goods by false pre- tenses from several persons" not named in the indictment, it was held that such confession, so referring to an affidavit which neither was nor could be given in evidence, should have no influence with the jury. id. Ml™**' 115. Professional men are properly called as wit- nesses to state facts and opinions within the scope of their 190 EVIDENCE. profession; but not to give their opinion on things, of which the jurors themselves can as well judge. Rohert M. Goodwin's case, 5 Qity Hall Recorder, 11. Before Colden, Mayor. New York, March, 1820. ^^: 116. The mere fact of passing a single counterfeit bill, not accompanied with circumstances from which a deduction can be fairly drawn that the prisoner knew it to be bad, is insufficient to produce a conviction. Maria B. Tinger's case, 5 Oity Hall Recorder, 74. Before Colden, Mayor. New York, May, 1820. 117. "Where a prisoner is tried the second time for passing counterfeit money, the particular circumstances, upon which the former prosecution was foundcfd, may be given in evidence. id. 118. It seems, however, that where a prisoner has been acquitted from such charge, that the jury ought not, on the second trial, to lay great stress on the circumstances of the former trial ; and the court will not go so far as to admit the former examination of the prisoner to be read. id. moV 119- Where the prisoner, on passing false paper, alleges it to be that of a particular person in a particular street in a city,' if on the trial it appears that such a person resides in that street, some evidence should be produced by the public prosecutor, to show the signature not to be that of such person ; but if no such person resides there, some evidence should be produced of the fact. William Riley's case, 5 Oity Hall Recorder, 87. Before Colden, Mayor. New York, June, 1820. ^j"Jj; 120. The testimony of an approver, if corroborated by the declarations of the prisoner, is entitled to belief McDowell and Farrel's case, 5 City Hall Recorder, 94. Before Jay, Recorder. New York, July, 1820. flfo^- 121. To constitute the possession of counterfeit money, it need not be found on the person ; it is sufficient if it be under the control of the prisoner ; and this may be inferred from the circumstances. Elizabeth Connor's EVIDENCE. 191 case, 5 City Hall Mecorder, 115. Before Golden, Mayor. New York, /September, 1820. fsIS: 122. Evidence of the declarations of the prisoner, that he called a woman, whom he introduces as a witness in his behalf, his wife, and that he lived with her as such, will be sufficient to disqualify her as such witness ; but a written instrument between a man and woman, by which they agree to live together as man and wife, as long as they can agree, does not constitute a marriage, and cohab- itation under such an agreement is abominable. Arunah Randall's case, 5 Gity Hall Recorder, 141. New York Oyer and Terminer. Before Van Ness, J. December, 1820. 123. A confession made under the influence of threats, or promises of favor, is not to be received ; but the fact of finding goods, in consequence of such confession and by the showing of the prisoner, is good evidence, that being a fact independent of such confession. Berthina Tucker's case, 5 Gity Hall Recorder, 164. Before Golden, Mayor. New York, December, 1820. 124. The admission of testimony at any stage in a crim- inal case, rests in the sound discretion of the court ; and where the testimony had closed on both sides, and the counsel for the prisoner, in his remarks to the jury, insisted on an acquittal, because the district attorney had not proved that the property belonged to the persons mention- ed in the indictment ; it was held, that he might recall and examine the principal witness in the case to that point, inasmuch as this omission, during his previous examina- tion, was the result of mistake. id. Jg»"i; 125. Declarations made by the prisoner at the time an offense is committed, may be given in evidence in his favor, as part of the res gestae, but not those made subse- quently. Tellesphore Rebetaille's cases, 5 Gify Hall Re- corder, 171. Before Golden, Mayor. New York, January, 1821. 126. The magistrate before whom an examination is 192 EVIDENCE. taken, is a competent witness to testify to acts done by the prisoner before him, but not to declarations forming part of such examination. id 127. Where a prisoner, in his examination before a magistrate for a specific offense, discloses matters material to the prosecution on the trial of an indictment for another offense, it was held that such examination might be read oil the trial of each indictment. id. 128. Examinations of prisoners before a magistrate stand on the same footing, in courts of justice, as their declara- tions reduced to writing before any individual would, id. 129. "Whatever is reduced to writing before a magistrate,, and forms part of the • examination of the prisoner, is not the subject of parol testimony. James McKenna's case, 5 Oity Hall Recorder, VIA. Before Colden, Mayor. New York, Janua^ry, 1821. 130. To convict of grand larceny, the jury must be satis- fied, from the evidence, that the prisoner stole property to the amount of more than twenty-five dollars, set forth in one and the same count in the indictment; and they can- not take part of that sum contained in one count and add it to part in another count, where they find the amount of the property stolen in each count to be less. id. 131. A bill on a particular bank, alleged in the indict- ment to be counterfeit, cannot be proved to be so by a witness who testifies merely from its general appearance, without knowing even the names of the president and cashier of the bank. Anthony Silkworth's case, 5 Oity Hall Recorder, 176. Be/ore Colden, Mayor. New York, January, 1821. 132. To prove a bank note to be counterfeit, it was in- cumbent on the public prosecutor to produce some person who knew the handwriting of the president and cashier, or had been in the habit of corresponding with them, or of receiving or returning their notes. id. 133. If the circumstances under which a felony is com- mitted by an infant, between seven and fourteen years of EVIDENCE. 193 age, indicate that lie was conscious he was doing wrong while stealing, this is tantamount to evidence of his capa- city. And proof of this may be given either by extrinsic testimony, or it may arise from the circumstances of the case. Stage, Relief, Mills and 'Rohiins' case, 5 City Sail Recorder, 178. Before Golden, Mayor. New Yorh, Jan- uary, 1821. 134. Where a confession is made in the police, subse- quent to one extorted, it should be left to the jury to determine whether the prior influenced the latter confes- sion ; and, if it did, it is to be rejected. id. 135. The rule is, that where stolen property is found in the possession of a person, such person is bound to account for such possession satisfactorily, or he is to be considered as the thief. But that general rule has this qualification ; he is bound to account satisfactorily for such possession, if, from the circumstances of the case, it is belived that it is in his power, or that he is in a situation to do so. Sohert Sale's case, 5 City Hall Recorder, 178. Before Colden, Mayor. New York, January, 1821. 136. The admission of one called as a witness, that he had been convicted of a felony, does not render him incom- petent ; but it affects his credibility. He cannot be ren- dered incompetent without producing the record of his conviction. Yet, upon such admission, the jury ought not to place any confidence in his testimony, unless corrobo- rated. Eliza Orr's case, 5 Qity Hall Recorder, 181. Be-, fore Colden, Mayor. New Yorh, January, 1821. ^11: 137. "Where one was indicted for passing a forged bond in the city and county of New York, and it appear- ed that the instrument was first put into the hands of a person on Staten Island by the prisoner, for money lent and advanced ; but that afterwards, while both the parties were in New York city, more money was advanced on the strength of the instrument, to the prisoner, who then said that it was a good bond, it was held, that this was a sufficient passing in the city and county of New York. 13 194 EVIDENCE. William Qotohed's case, 6 Oiiy Hall Recorder, 25. Before Biker, Recorder. New York, May, 1821. 138. To render a record of a former conviction or ac- quittal good evidence, it was necessary that it should he under the seal of the court, signed hy the magistrate be- fore vs^hom the cause was tried ; and that it should be filed, and produced by the clerk, on the trial. Curtenius Ryer's case, &, City Hall Recorder, 30. Before Irving, First Judge. New York, May, 1821. S' 139. On the trial of an indictment for a conspiracy against several sailor boarding-house keepers, for combin- ing and binding themselves together not to ship any sea- men at the offices of certain notaries ; it was held, that any abuses which might have been practiced by such no- taries in shipping seamen, furnished no defense, and could not be given in evidence. Emanuel, Dunlap and Miller's case, 6 Oity Hall Recorder, 33. Before Riker, RecorSer. New York, June, 1821. 140. In a conspiracy, accumulative testimony may be introduced. Horace Hitchcock and William Hitchcock's case, 6 City Hall Recorder, 43. Before Riker, Recorder. June, 1821. 141. A. and B. were indicted for conspiring to defraud C. of his goods ; and on the trial, the public prosecutor, for the purpose of showing the quo animo, oflFered to prove that the defendants obtained the goods of D., E. and F., separately, by similar tneans to those laid in the indict- ment; it was held that such testimony was proper. Evi- dence of this desci'iption was as competent in this case, for the purpose stated by the district attorney, as in a case of forgery' and counterfeiting. id. 142. Counsel have a right to put a question to a witness, but the witness had a corresponding right of refusing, and the witness must necessarily judge himself whether the answer to any inquiry would tend to criminate or degrade him. Charles Carnaghan's case, 6 City Hall Recorder, 45. Before Riker, Recorder. New York, June, 1821. EVIDENCE. . 195 \^l; 143. In a prosecution for a conspiracy, the sepa- rate acts of the accused, indicating a confederacy, shall go to the jury ; though there must be positive or circumstan- tial evidence sufficient to establish such confederacy. Warner's case, indicted with Bosioell, 6 City Hall Re- corder, 55. Before Biker, Recorder. New York, July, 1821. ^8^7: 144. Confessions made under the influence of favor are not to be received ; but confessions afterwards made to others, not in the presence of him who promised favor, are good evidence. Milligan and Welchman's case, 6 Gity Sail Recorder, 69. Be/ore Biker, Becorder, Irving, First Judge, and Allen, Mayor. New York, November, 1821. 145. On the trial of a prisoner, charged with uttering and having in his possession; with the intention of utter- ing, a particular bill, before the district attorney can pro- duce evidence that the accused had in his possession and uttered counterfeit bills not laid in the indictment, it is in- cumbent on him to show that the prisoner actually passed, or had in his possession, the bill laid in the indictment. Ubenezer Jones' case, 6 City Hall Becorder, 86. Be/ore Biker, Becorder. New York, November, 1821. Psi;: 146. The possession of stolen goods, where the prisoner does not account for such possession, raises but a presumption of guilt, which may be rebutted by circum- • stances. Daniel Bell's case, 6 City Hall Becorder, 96. Be- fore Biker, Becorder. New York, December, 1821. 147. The declaration of the wife, or any other person, in the presence of the prisoner, not contradicted by him, is good evidence. id. ■ 148. On the trial of an indictment for receiving stolen goods, knowing them to be stolen, it seems that the coun- sel for the prosecution will not be permitted, for the pur- pose of establishing the scienter, to show that stolen goods, not laid in the indictment, were found in the house of the prisoner. Every case of receiving stolen goods depends 196 EVIDENCE. on its own intrinsic circumstances. This crime differs from passing counterfeit money: it is a specific offense, and must depend on its own peculiar circumstances, id. 149. On the trial of an indictment for passing counter- feit money, where it appears that the prisoner, in negotia- ting with the prosecutor in purchasing an article for which he afterwards passed the counterfeit money, told him he had not the money, but if he could get \i of a friend he would make the purchase, and then went into a house and returned with a counterfeit bill, which he passed to the prosecutor, and stating, in his examination at the police, that he got the five dollar bill, passed by him on the prosecutor, of one Z., who promised him one dollar for passing it, and that Z. had, at the time, counterfeit bills in his possession, which were offered him at 25 per cent ; but he would not receive them for fear of getting into diffi- culty, and that he had seen persons apply to Z. to purchase counterfeit bills ; it was held that it was proper evidence, on the part of the prosecution, for the purpose of establish- ing the scienter, to show that, about the same time this pur- chase took place, two men, one of whom was Z., were ar- rested in the same house, engaged in counterfeiting two shilling pieces; and that on being searched, counterfeit bank bills were found in their possession. Ebenezer Jones' case, 6 City Hall Recorder, 99. Before Biker, Recorder. New York, Becemher, 1821. Kw: 150. In larceny of the wearing apparel of the wife, she is the best evidence the case admits of, althousrh the property belongs to the husband. The motion for dis- charge was not pressed, as the wife testified that her hus- •band had been absent in Russia for more than a year. People V. Williams, 1 Wheel. Gases, 18. Riker, Recorder. New York, September, 1*822. 151. In suspicious cases, the jury should acquit. They must have satisfactory proof. People v. 0' Bryan, 1 Wheel. Oases, 21. Riker, Recorder. New York, September, 1822. 152. On an indictment for having in possession coun- EVIDENCE. 197 terfeit money, with intention to pass it, the fact of posses- sion must be proved by positive testimony ; the intention to pass it may be proved from circumstances. People v. Gardner, 1 Wheel. Cases, 23. Biker, Becorder. New York, September, 1822. 153. On a trial for larceny, where the stolen property is found in the poss,eBsion of the prisoner, and he is unable or refuses to give a satisfactory account how he came in possession of it, and proves no good character, it is always taken as evidence of his guilt. People v. Preston, 1 Wheel. Cases, 41. Biker, Becorder. New York, September, 1822. ?8^ 154. The counsel for the defendant may ask the prosecutor any proper question to show a variance between his examination taken before a magistrate, and his evidence before the jury ; but he has no right to r^ad his examina^ tion for that purpose. People v. Watts, 1 Wheel. Cases, 52. Biker, Becorder. New York, October, 1822. 155. In the examination of a prisoner, his confession ought to appear in his own words ; but if it appear in the form of question and answer, it is no good ground why the examination should not be read upon his trial. People v. Smith, 1 Wheel. Cases, 54. Biker, Beeorder. New York, October, 1822. 5J»J 156. Upon an indictment for an assault and battery committed upon an officer executing a warrant, if it ap- pears the officer was first stricken, the court will not travel . out of the record to inquire whether the warrant was " bar- barously executed." The inquiry would be proper to fix the penalty on conviction. People v. Ferran, 1 Wheel. Cases, 61. Biker, Beporder. New York, November, 1822. 157. Less confidence is to be placed in the testimony of a prosecutor, than an impartial .witness. People v. McMurray, 1 Wheel. Cases, 62.. Biker, Becorder. New York, November, 1822. 158. In cases of doubt, character is essential ; but where the charge is proved, it cannot avail. People v. Kirby, 1 198 EVIDENCE. Wheel. Cases, 64. Biker, Recorder. New York, November, 1822. 159. To make the examination of a prisoner evidence upon his trial, it should be made without any menace or terror held out to him, or any species of undue influence used ; it must be free and voluntary. It must not be in- duced by the flattery of hope or the fear of torture. And where the justice in a conversation with the wife of the pris- oner said to her, " if what she had told him was true, it would be better for her husband to confess." Held the examination could not be read. People v. Bohertson and another, 1 Wheel. Gases, 66. Biker, Becorder. Neiv York, November, 1822. 160. "Where a prisoner is charged with an attempt to commit a rape, and in order to prove that fact, one cir- cumstance relied on is that the prisoner infected the girl with a venereal disease, the examination of the prisoner by a physician cannot be given in evidence until the fact of the diseased state of the girl is first shown. People v. Flinn, 1 Wheel. Cases, 74. Biker, Becorder. New York, November, 1822. fj^: 161. The credibility of a witness is a proper sub- ject for the consideration of the jury. They are to de- cide what degree of credit ought to attach to the testimony of any man. People v. Osborn, 1 Wheel. Oases, 97. Biker, Becorder. New York, December, 1822. 162. Where property has been stolen, the jury may con- vict upon the confession, on the examination of the pris- oner only; but it is desirable to have other testimony where it can be had. People v. McFall, 1 Wheel. Cases, 107. Biker, Becorder. New York, December, 1822. 163. The belief of, a witness, on a charge of bigamy, to the identity of a person who is conscientious of swearing positive, is sufficient ; it is equivalent to saying he is the same person. People v. John Whigham, alias John Wig- gins, 1 Wheel. Cases, 115. Biker, Recorder. New York, December, 1822. EVIDENCE. 199 • 164. The principle, that a marriage in fact must be proved, in a prosecution for bigamy, means nothing more than proof of the marriage, as contradistinguished from cohabitation, reputation, acknowledgment of parties, re- ception, &c. id. 165. Where there is no evidence before the jury but the. testimony of the prosecutor and the examination of the prisoner, the court will leave it to the jury to decide which is entitled to the most credit, and they will decide accordingly. People v. Banhin, 1 Wheel. Cases, 120. Riker, Recorder. New York, December, 1822. 166. If an officer has a process against a person, on which he is arrested, and there are cross indictments of assault and battery growing out of the arrest, evidence of that person's conduct to other bflScers, on being arrested, cannot be admitted. People v. Finn, 1 Wheel. Cases, 128. Riker, Recorder. New York, December, 1822. isS. 167. On a charge of receiving stolen goods, know- ing, they were stolen, it is not competent for the district attorney to prove that the house of the prisoner was the resort of felons, who came there to dispose of stolen goods. People V. Pierpont, 1 Wheel. Cases, 139. Biker, Recorder. New York, January, 1823. 168. On the trial of an indictment for false pretenses, in olbtaining from the captain of a vessel certain goods belong- ing to the firm of T. & T., stating that he had been sent by them for the property, and one of the partners was intro- duced as a witness, who testified he did not send for them by the prisoner, and he thought it probable his partner was out of the city at the time, but could not say with certainty, it was held such evidence was prima facie suf- ficient to convict the prisoner; and the onus probandi was thrown upon the accused to prove, by the other partner, he was sent for the goods by him. People v. Tilton, 2 Wheel. Gases, 251. Biker, Becorder. New York, January, 1823. f/J^: 169., To convict a person of hating counterfeit 200 EVIDENCE. notes in his possession, with the intention to utter them, it must be proved that he had the notes in his possession ; that he knew them to be forgeries, and that he had them in his possession, knowing they were forgeries, with intent to pass them. People v. Haggerty, 1 Wheel. Cases, 195. Biker, Becorder. New York, February, 1823. ^la^t 170. The crime of foi'ging and passing a forged note is to be made out from all the facts of the case ; and it is improper to ask a witness if he believed the defend- ant passed the note with intent to defraud, for it was call- ing for the opinion of the witness when the intent was to be ascertained from all the circumstances of the case. People V. BeChraff, 1 Wheel. Cases, 203. Biker, Becorder. New York, March, 1823. 171. In a case, of arson, and in all cases where the pun- ishment is severe, the proof ought to be satisfactory, and in such cases positive proof, or strong presumptive testi- mony, is material and indispensable. People v. Davis, 1 Wheel. Oases, 235. Biker, Becorder. New York, March, 1823. 172. A witness for the prosecution is not bound to answer a question totally irrelevant; but if he does answer, the opposite counsel may call testimony to contra- dict him. People v. Pentz, 1 Wheel. Cases, 240. Biker, Becorder. New York, March, 1823. ■^ggl' 173. The party calling a witness to character is confined to the question, " What is the general character of the prisoner?" The opposite party may interrogate as to particular facts upon which his opinion of character was founded, if he choose, but the party calling him could not. People v. Clark, 1 Wheel. Cases, 292. Biker, Becorder. New York, April, 1823. ^iS 174. The free and voluntary confession of a pris- oner was, at common law, allowed to be given in evidence to the jury on his trial ; the statute relating to examin- ations had nothing to do with the voluntary confession of a prisoner: hif confession might be given in evidence EVIDENCE. 201 against Mm before the statute was made ; and where no promises or threats appear to have been held out to him to induce a confession at the time it was made, it was a free and .voluntary confession. People v. McCollister, 1 Wheel. Cases, 392. Biker, Recorder. New York, June^ 1823. 175. "Where a trunk was found at the house of the pris- oner's brother, where he boarded, and after it was brought to the police office the prisoner xirew an order for money, which it contained, and which was found in it, such a recognition of the property would allow the trunk and contents to be given in evidence to the jury. id 176. On the trial of an indictment for forging and utter- ing bank notes, the evidence of passing other forged bills of the same description, or showing the same in posses- sion of the prisoner, and notice to produce them, may be given in evidence to prove the scienter, if such bills be produced in court ; that evidence to the same effect may be given by parol, if it be proved that such notes be de- stroyed; that the like evidence may be given by parol, if it be shown that such notes be in the prisoner's posses- sion, giving him notice to produce them ; that it is inad- missible to give in evidence other notes of a different denomination unless such notes be produced to the court, and even if such notes were produced it is doubted if they could be legally received to prove the scienter; and wheth- er, if it could be shown that the prisoner passed other notes of a different denomination, which he afterwards admitted to be forged, and which were destroyed, proof could be given of that fact : Quere ? People v. Lagrille, 1 Wheel. Cases, 412. Biker, Becorder. New York, June, 1823. 177. In a case of highway robbery, where the penalty is so severe, the uncorroborated testimony of a young ac- complice, fifteen years of age, to the identity of the pris- oner, under the general rule, adopted by this court, was not sufficient, although the jury had a right to convict on 202 EVIDENCE. that testimony. People v. Beeder et al., 1 Wheel. Cases, 418. Biker, Becorder. New York, June, 1823. S: 178. Where the wife of a witness is charged in the same indictment, with the prisoner, of the crime of forgery ; on the trial of the prisoner, the wife not having been taken, the husband cannot be examined, because a husband could not, in a criminal case, be a" witness against his wife, nor can he be a witness in such a case even after the entry of a nolle prosequi in her favor upon the record, for she is still liable to be arrested and tried; but had she been tried and acquitted, her husband might have been sworn as a witness against the prisoner. People v. Golbern and Weir, 1 Wheel. Cases, 479. Biker, Becorder. New York, July, 1823. 179. Where, on a trial for burglary, the articles of prop- erty alleged to have been burglariously stolen were found in the possession of M., an alleged accomplice of the pris- oner, and were brought to the prosecutor, and identified by him, proof of the confession of the prisoner that he and M. went to the house of the prosecutor together, and that the prisoner waited without while M. entered the house through the window and stole the articles, and that they then went away together, is sufficient evidence of the identity of the articles and of the guilt of the prisoner. People V. Boujet, 2 Park. Crim. Bep. 11. Clinton Oyer and Terminer. Before Walworth, 0. J. July, 1823. 180. A prisoner cannot be convicted on an indictment for blasphemy, on his mere confession made out of court that he had made use of the words charged in the indict- ment ; the prosecutor must also show that an offense had been committed, or that blasphemous words had actually been uttered. People v. Porter, 2 Park. Crim. Bep. 14. Washington Oyer and Terminer. Be/ore Walworth, C. J. July, 1823. 181. On the trial of an indictment for forgery, where the witnesses disagree as to the genuineness of the signa- ture, comparison of hands is admissible, and the prisoner EVIDENCE. 203 may prove, by a cashier of a bank or others who are in the habit of examining signatures with a view to detect for- geries, that the instrument alleged to be forged is not a simulated hand. People v. Hewitt, 2 Park. Crim. Sep. 20. Saratoga Oyer and Terminer. Be/ore Walworth, 0. J. July, 1823. f^g: 182. On a charge of forgery of bank notes the best evidence must be given, and if witnesses could be pro- cured who could testify that they had seen the parties write, whose names had been forged, or had corresponded with them, they must be produced ; in the absence of such testimony the court thought that the evidence of brokers and others well acquainted with bank notes, particularly of the banks whose notes had been forged, would be suf- ficient. People V. Badger, 1 Wheel. Cases, 543. Biker, Becorder. New York, August, 1823. 183. On the trial of an indictment, the counsel for the prosecution has the right to introduce in evidence the ex- amination of the prisoner, taken before the committing magistrate, although it appeared by such examination that no confessions were made by the prisoner, and that he refused to answer or to give any account of the transaction in question. Pedple v. Banker, 2 Park. Crim. Bep. 26. Franklin Oyer and Terminer. Before Walworth, C. J. August, 1823. ^2J 184. On an indictment for a conspiracy, evidence may be admitted of other acts indicative of criminal col- lusion with other persons, to show the animo or scienter of the defendants in relation to the charge in the indict- ment People V. Bleecker et al., 2 Wheel. Oases, 256. Biker, Becorder. New York, November, 1823. 185. On an indictment for a conspiracy, the examination of a prisoner implicating others cannot be read upon the trial ; it is the mere confession of the individual under examination, and ought not to be admitted to convict another. id. °|^; 186. On an indictment for grand larceny of the 204 EYIDENOE. goods of a firm, evidence may be given of the ctristian name of one of the firm, after the counsel for the prisoner summed up, and this to forward the end of public justice. People V. Jackson et al., 2 Wheel. Cases, 253. Biker, Re- corder. New York, 1823. 187. On the trial of an indictment, it is competent for the public prosecutor to prove, by parol, what the prisoner testified to on a complaint made by him before a magis- trate against a third person. People v. Burns, 2 Park. Crim. Bep. 34. Oneida Oyer and Terminer. Before Wal- worth, G. J. December, 1823. 188 "Where it appeared that such complaint was made, and evidence given by the prisoner against others con- cerned in the commission of the crime, on the advice of his stepfather to go to the magistrate and make a com- plaint against others concerned, and that he would be admitted as "state's evidencie," it was held the evidence ought not to be excluded on the ground of admissions obtained by inducements. This is an entirely difierent case from those in which inducements are held out by the prosecutor or by the officers of justice, to the prisoner, for the purpose of obtaining confessions of his guilt. id. fS 189- On an indictment for petit larceny, where the examination of the prisoner, taken before the^ committing magistrate, was offered by the prosecution in evidence, and objected to on the ground that it was not taken according to law, it was held that it was necessary to produce the magistrate who took it, or his clerk, to prove the objection groundless. People' v. Bobinson, 2 Wheel. Gases, 240. Biker, Becorder. New York, January, 1824. "^S*"' 190. It is no objection to reading the examination of a prisoner at his trial, (who denies it to be free and voluntary,) on the ground that he was taken out of prison to the dead body of the person he was charged to have murdered, and was requested by the officer to touch the body, and did so; and from thence was taken to the examining magistrate in excessive perturbation of mind, EVIDENCE. 205 and there confessed all the particulars of the murder. People V. Johnson, 2 Wheel. Cases, 361. New York Oyer and Terminer. Edwards, J., &c. March, 1824. 191. Parol evidence of facts disclosed by third persons in the presence of the prisoner, and assented to by him, cannot be given in evidence if it appears vthat the prisoner was at the time under examination ; it should make part of the examination itself. id. 192. The dying declarations of a party murdered may be given in evidence, when made under a full belief that he will not survive; nor should it be excluded in all cases where there was a faint and lingering hope of a recovery by the sufferer. People v. Ander80J^, 2 Wheel. Oases, 390. New York Oyer and Terminer. Edwards, J., &c. March, 1824. 193. A, was stabbed with a dagger in the evening, and the next morning (he being very low and could hardly speak) his affidavit was taken, wherein he stated that B. stabbed him. He was then taken to the hospital, and died in nine days. It was held the affidavit could not be read as the dying declaration of A., no evidence being offered that induced a belief that he was morally certain he would not survive. id. 194. The court, and not the jury, are to decide upon the admissibility of dying declarations. id. ^gJI' 195. The mode of reasoning and drawing conclu- sions from facts and circumstances, is the same whether the case under consideration is a mere contest respecting the rights of property, or one involving the life of an in- dividual ; 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. People v. Thayer, 1 Park. Grim. Pep. 596. Erie Oyer and Terminer. Walworth, G. J. April, 1825. \fk 196. Presumptive or circumstantial evidence is ad- missible both in civil and criminal cases, and, in prosecu- tions for some of the worst species of crimes, it is often 206 EVIDENCE. the most satisfactory and convincing that can be pro- duced. The reasons for this opinion, in a comparison be- tween positive and circumstantial evidence. People v. Videto, 1 Park. Grim. Rep. 603. Franklin Oyer and Ter- miner. Walworth, O. J. July, 1825. 197. 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' 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 illus- tration, held to be unauthenticated and unreliable. id. 198. The nature of presumptions discussed ; and violent presumptions, probable presumptions, and light or rash presumptions, described and illustrated by examples, and directions given as to their application, and as to the weight that should be severally given to them. id. ^5^1; 199. A person whose name has been forged is a competent witness, on the trial of an indictment, to prove the forgery. This' is the uniform practice, and its propriety cannot now be drawn in question. There is no sound reason for sustaining the old rule. People v. Dean, 6 Oowen, 21. Supreme Oourt, August, 1826. "fjl^; 200. Where the charge was of swearing false be- fore arbitrators, and the submission appeared to have been by bonds ; held that they must be produced, and the submission could not be shown by parol. Bulloch v. Koon, 9 Oowen, 30. Supreme Oourt, May, 1828. 201. In such a case, as on an indictment for perjury, enough must be shown to give the court, or magistrate administering the oath, jurisdiction. Enough must be proved, also, to show the materiality of the testimony, id. \l^l 202. A witness who has preferred a complaint for felony, and who, on the prisoner's being brought before the magistrate, was examined, and his examination re- duced .to writing, is not bound, when testifying on the EVIDENCE. 207 trial, to answer as to the evidence given by him on making his complaint and on his examination before the magis- trate, Billinger v. People, 8 Wend. 595. Supreme Court, January, 1832. 203. It seems, also, that a witness is not bound to an- swer as to matters reduced to writing by himself, or by another subscribed by him, until after the writing' has been produced and read or shown to him. id. 204. An examination of a witness, taken on a prisoner being brought before a magistrate, is not admissible in evideiice until duly proved by competent testimony, that it is the same as when sworn to. id. JJU;- 205. Evidence that a witness has on previous occa- sions given the same relation of facts, to which he testifies when examined on the trial of a cause, is admissible where . the witness is impeached either by adverse testimony or upon cross-examination, or even upon direct examination, as where he admits that he was an accomplicein the crime of which he proves another to have been guilty^ People V. Vane, 12 Wend; 78. Supreme Court, May, 1834. 206. Where the evidence against a party charged with a criminal offense is given by a suspected or impeached witness, an accomplice by his own confession, and the ac- cused offers no proof of good character, the omission to do so is a strong presumption of guilt, which may be prop- erly taken into consideration by the jury. id. IS*"'. 207. Admissions made to a clergyman may be re- ceived in evidence in a criminal case, if not made to him in Yidsprofessional character, in the course of discipline en- joined by his church. People v. Gates, 13 Wend. 311. Supreme Court, January, 1835. \^[ 208. It is not competent in a criminal case to give evidence of the had character of the prisoner, when no evi- dence in support of his character has been adduced by him : so held, where, on the trial of an indictment for hav- ing counterfeit bank bills with the intent to pass them, the confession of the prisoner that he had been a convict 208 EVIDENCE. in a state prison was given in evidence on the part of the prosecution. People v. White, 14 Wend. 111. Supreme Court, July, 1835. 209. It is a matter of discretion with the court before whom a trial is had, whether they will or will not compel counsel to disclose what they expect to prove by a witness before he is examined. Where the case is one of delicacy and importance, and the evidence is nicely balanced, and the scale is likely to be affected by slight circumstances, courts are vigilant in preventing any extraneous or irrele- vant matter from being brought before the jury. In such cases counsel will be required to state the ftubstance of what they expect to prove, in order that, if irrelevant or improper, the evidence may not be given. When the lines of the case are more broadly marked less caution is necessary, as the rights of the parties may be sufficiently protected by the court deciding upon the competency or relevancy of the evidence as it falls from the witness, id. 210. Where a court of oyer and terminer were asked to direct the district attorney to state what he expected to prove by a witness who was about to relate a conversation with the prisoner ; which request was overruled, and the witness stated the prisoner's confession, that he had been the inmate of a state prison, the Supreme Court held that this was precisely one of those cases in which the request of the prisoner's counsel should have been gi-anted. id. ™»|; 211. Where the testimony ofawitness is impeached, his examination, taken by a magistrate on the institution of a prosecution for a criminal offense against another person, maybe read in evidence to support his testimony; it may also be read to invalidate the testimony of the magistrate, in the account given by him of the facts testi- fied to by the witness on such examination. People v. John Moore, 15 Wend. 419. Supreme Court, May^ 1836. 212. An examination of a witness, sworn to have been taken pursuant to the statute, will be presumed to have been read to or by the witness before it was signed by EVIDENCE. 209 him, althougli the magistrate does not recollect that it was so read ; the examination of a prisoner must be proved to have been read to him. id 213. A party may impeach a witness, although he has cross-examinedhim, unless on such eross-examinatioa he has attempted to establish a matter wholly disconnected with the direct examination; as to such matter he makes him his own witness, and cannot subsequently discredit him. id. 214. Where a witness, after leaving the stand, declares that what he has testified to was a sheer fabrication, such declaration may be given in evidence to impeach his credi- bility, id. Pa^, 215. Evidence of confessions alone, unsupported by corroborating facts and circumstances, is not sufficient to convict ; there must be proof aliunde of the corpus de- licti, although such proof need not be conclusive. People V. Badgley, 16 Wend. 53. Supreme Court, October, 18361 pg37. 216. Evidence will be admitted to impeach the credibility of a witness, showing he did not believe in a Supreme Being, who will punish false swearing. People V. McGanen, 17 Wend. 460. Supreme Court, October, 1837. l^l 217. On the trial of a person charged with the crime of rape, or an assault with an intent, &c., the inquiry may be made of the prosecutrix whether she hadprevious connection with other men ; and it seems that she,, in such case, is not privileged from answering. People v. Ahhot, 19 Wend. 192. Supreme Court, January, 1838. 218. The prosecutrix may be shown to be in fact a common prostitute ; so also a previous voluntary connec- tion between her and the prisoner maybe proved; and evidence may be given of particular acts and associations indicating on her part a want of chastity. id. 219. It seems also, that the general character of the pros- ecutrix as a common prostitute may be shown ; • and that the _prisoner is not restricted to proof of her general char- acter for truth and veracity, but may give evidence of her general moral character. *c?. 11 210 EVIDENCE. 220. The same rules of evidence are applicable to a trial for an indictment for a simple assault and battery on a female, followed with carnal knowledge. id. 221. The magistrate before whom the complaint was made cannot be called, to state what the prosecutrix tes- tified to before him as to her having had previous con- nection with other men, if the inquiry is not made for the purpose of showing a discrepancy in the testimony of the prosecutrix. id. 222. When the present character of a witness for truth and veracity is slightly impeached, evidence of bad char- acter in that respect in years past is admissible. id. ^^1: 223. On an indictment against two for felony, and on a separate trial of one of the defendants before the arraignment of the other, on the motion of the prose- cutor, the defendant not arraigned is not a competent wit- ness for the other, notwithstanding the statute securing in such case a separate trial. People v. Williams, 19 Wend. 377. Supreme Court, May, 1838. S; 224. Where the general moral character of a wit- ness is impeached, whether by witnesses called for that purpose or on his own cross-examination, it is competent for the party calling on him to adduce testimony, in sup- port of his character, for truth and veracity, so that the jury may pass upon his credibility. People v. Hector, 19 Wend. 569. Jul^/, 1838. 225. The mere contradiction of a witness afibrds no ground for calling testimony in support of his charac- ter, id. 226. On a trial for murder, where it appeared that the deceased sought to gain admittance into a house of ill fame by violence, and against the will of the keeper thereof, who made an attack upon the aggressor, and death ensued, it was held that testimony that threats had been made a week previous to the assault, by persons who had broken into the houBe, that they would return some other night and break in again, might be received EVIDENCE. 211 and submitted to tlie consideration of the jury, under the instruction of the court, although it seems that for the rejection of such evidence, where it was not shown that the deceased was of the party who made the threats, a new trial would not be granted. id. 227. A witness is not obliged to answer, when his answer will subject him to a penalty, or will tend to degrade his moral character; the practice of compelling an answer in the latter case seems, however, by the mod- ern cases, to be gaining ground. id. 228. Where a witness is sought to be impeached on a cross-examination, his answer, if favorable to himself, is conclusive against the party; but if he makes disclosures showing his moral turpitude, it is destroying to his char- acter, and therefore takes away his credit with the •jury. id. 229. It seems that proof of the good character of sub- scribing witnesses to a will, who are dead, and to whom fraud is imputed in the procuring or execution of the will, is admissible to repel the imputation ; but it seems that this rule would not be extended in respect to other instruments. id. 230. The examination of a witness taken on the arrest of a criminal is admissible in evidence in support of his testimony, where the witness is sought to be impeached on the ground of inconsistent relations of the matter in question. id. 231. The opinions of witnesses as to the improbability of a blow having been given from which death ensued, judging from the relative positions of the parties, as stated by witnesses, are not admissible in evidence ; the jury must draw their own conclusions from the facts stated. id. 232. The refusal to recall a witness to restate his testi- mony, after a cause has been summed up and the jury charged, is a matter of discretion appertaining to the 212 _ EVIDENCE. court before whom the trial is had, with the exercise of which a court of review will not interfere. id. 233. The question put to an impeaching witness may be, whether he knows the general character of the former witness, and from such Icnowledge would believ* him on oath; though the narrower form of inquiry — "what is his character for truth and veracity" — is preferable, as being more direct ; and in either case the witness may be required to declare whether the character, as known to him, is so very bad that, in his opinion, the witness is utterly unworthy of credit on oath. id. i^fg'; 234. On a charge of uttering and publishing, a promissory note with the names of several persons upon it as indorsers, all which indorsements are alleged to be forged, it is not neoessaiy for the purpose of sustaining the indictment to prove all the indorsements to be for- geries; it is enough that one or more are shown to be forgeries. People v. Rathhun, 21 Wend. 509. Supreme CouH, October, 1839. 235. It is competent, in support of a prosecution, to prove that the prisoner advised an accomplice to break jail and make his escape. id. 236. Evidence that the prisoner refused to escape and go beyond the reach of the process of this state, after being apprised of the charge brought against him, al- though he was advised to do so, and it was entirely prac- ticable to have made his escape, is inadmissible. id. ^^ll 237. • On the trial of an indictment of an accessory before the fact, a certified copy of the original minutes of the court in which the principal was tried and convicted, is proper evidence of such conviction, if entered in the manner, and approved as directed by the statute on the subject, where it appears that no record of conviction has* been signed and filed ; so it seems the original minutes thus entered and approved are evidence. People v. Gray, 25 Wend. 465. Supreme Oourt, May, 1841. 238. But the rough minutes or original entries made by EVIDENCE. 213 the clerk-, during the session of a court, not inspected and approved as directed by the statute, are not evidence, id. 239. Evidence showing an error or mistake in the ap- proved minutes of the court, is inadmissible. id. fifa 240. Where, upon the trial of an indictment, a material witness for the prisoner, on his cross-examination by the counsel for the prosecution, admitted that he had been complained of and bound over upon a charge of passing counterfeit money ; held, that in answer,' the pris- oner was entitled to give evidence of the witness' good character for truth. Carter v. People, 2 Hill, 317. Su- preme Court, January, 1842. ^^ 241. Where the state of mind, sentiment or dis- position of a person, at a given period, become pertinent topics of inquiry, his declarations and conversations, being part of the res gestce, may be resorted to. Bartholmy and De Bouillon v. The People, 2 Mill, 248. Supreme Court, March, 1842. \f^' 242. Where a witness is sought to be impeached on the ground of his bad character, and the persons called for that purpose testify that they are acquainted with his general character, they may then be asked whether, from such general character, they would believe the witness on oath ; and this, though they expressly disclaim all knowl- edge of the witness' character for truth and veracity. Johnson v. The People, 3 HUl, 178. Svpreme Court, July, 1842. 243. In general, a party will not be allowed to give evi- dence of his witness' good character, until after it has been attacked by witnesses on the other side. Per Bronson, J. The People v. Mulse, 3 Eill, 309. Supreme Cowrt, July, •1842. 244. Where, however, the party against whom a wit- ness is called draws out from him on cross-examination extrinsic facts going to impeach his general character, evidence of good character may be given in reply. id. 214 EVIDENCE. 245. The case of a woman swearing to a rape committed on lier, forms no exception to the general rule. id. 246. On the trial of an indictment for a rape alleged to have been cominitted on board a vessel, the prisoner attempted to discredit the testimony of the complainant, 1. By showing, on her cross-examination, that her story was improbable in itself; 2. By disproving some of the facts to which she testified ; 3. By evidence that her con- duct, while on board the vessel and afterwards, was incon- sistent with the idea of the offense having been committed ; and 4. By calling witnesses to show that the account which she had given of the matter out of court, did not corre- spond with her statements under oath. Held, that this was not an attack upon the complainant's general character, and, therefore, evidence of her good character was inad- missible in reply. id. 247. Cowen, J., dissented; holding that evidence of the complainant's contradictory statements out of court affected her general character; and consequently that evidence of good character was admissible. id. 248. On the trial of an indictment for larceny, it ap- peared that the owner of the goods, on the prisoner's expressing contrition for the offense, promised not to prosecute him ; but the officer, whom they soon met, told them the matter could not be settled, and immediately arrested the prisoner. Meld, that the prisoner's confessions, made afterwards, were admissible in evidence against him, notwithstanding the previous promise of the owner. Ward V. The People, 3 Hill, 395. Supreme Court, July, 1842. 249. The prisoner's confession was made after he had been distinctly apprised by the officer that the offense could not be settled, and when he knew that the law must' take its course. The confession cannot, therefore, be said to have been made under the influence of previous induce- ments, id. f^l 250. In a criminal case the public prosecutor will not be allowed to use the testimony given by a witness at EVIDENCE. 215 a former trial of the same indictment, though he be absent from the state. People v. Newman, 5 Hill, 295. Supreme Court, May, 1843. 251. Quere, whether even the death of the witness will authorize a resort to his former testimony by the public prosecutor. id. 252. Though the pardon of one convicted of felony will in general restore his competency as a witness, yet the conviction may still be used to affect his credit. Per Bronson, J. Baiim v. Clause, 5 Hill, 196. Supreme Court, May, 1843. 253. Petit larceny is not a, felony within the meaning of 2 K S. 701, § 23, (see 3 R S. 5th ed. 988,) and conse- quently a conviction for that offense does not render the offender an incompetent witness ; though it may be used by way of impeaching his credit. Carpenter v. Nixon, 5 Hill, 260. Supreme Court, May, 1843. 254. The case of Ward v. The People, (3 Hill, 395,) commented on. id. 1843. 255. The production by a corporate body of its act of incorporation, and proof of user under it, afford pre- sumptive evidence of a full compliance with all the pre- ■ requisites of the statute essential to give operation and effect to its several provisions and conditions. People v. Beigler, Lalor's Supplement, 133. Supreme Court, 1843. 256. Where it appeared on the trial of a prisoner for arson in setting fire to his own dwelling, for the purpose of charging an insurance company with the loss, that the prisoner, immediately after the fire, consulted with and employed a lawyer to draw up the necessary papers for obtaining the insurance money, that he then stated his loss, that a notice was spoken of, and that the notice of loss served on the company the day after the fire, with the name of the prisoner subscribed, was in the lawyer's hand- writing ; Held, that this evidence of the employment of the lawyer to give the notice of loss was sufficient to war- rant the judge in admitting the notice, and submitting to 216 EVIDENCE. the jury the question of the lawyer's authority to give such notice, id. S: 257. Where, on a trial at the oyer and terminer, the prisoner called as a witness a woman, by whom he proved that she was living with the prisoner as his mistress and not as his wife, so as to make her a competent 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 sustain her character for truth and veracity. Colt v. The People, 1 Parle. Grim. Rep. 611. At Chambers, November, 1842. Walworth, Chancellor. 258. "Where there is no evidence before the grand jury, or known to the prosecutor at the time of finding the in- dictment 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 instru- ment to the jurors unknown ; and under such an allega- tion, it is competent for the public prosecutor to introduce evidence 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 possession, and that a ball, pro- pelled 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. id. S; 259. Upon the trial, of an indictment for rape, the declarations of the injured female, made immediately after the alleged offense, are not admissible evidence for the prosecution to prove the offense committed ; and the rule is the same, though it appear that she is incompetent to testify on account of immature age, idiocy, or other mental defect. People v. McQee, 1 Denio, 19. Supreme Oourt, May, 1845. \ EVIDENCE. 217 260. Such declarations are only competent where the party injured has. given evidence as a witness, and then only on the question of her credibility. id. 261. "Where the injured person is of sufficient age and of competent though weak understanding, but is unable to talk, andean communicate and receive ideas only by signs, she may yet be sworn as a witness and examined through the medium of a person who can understand her, who is to be sworn to interpret between her and the court and jury. id. 262. Upon the trial of an indictment, an accomplice in the commission of the offense is a compertent witness for the prosecution ; and the testimony of a witness thus situated will, if the jury are fully convinced of its truth, warrant the conviction of the defendant, though it be un- corroborated by other testimony. People v. Oostello, 1 De- nio, 83. Supreme Court, May, 1845. 263. The uncorroborated testimony of an accomplice should be received with great caution, and the court should always so advise the jury ; but they are not to be instructed that in point of law a conviction cannot be had upon such testimony. id. 264. The prosecution i^/not entitled, upon the trial of an indictment, to give in evidence an anonymous letter, writ- ten by a stranger, though a witness for the prosecution had spoken of it on the direct examination, and had been cross- examined concerning the circumstanees under which it was received, by the defendants' counsel, its contents not having been disclosed on such examination. id. J^lJ' 265. A party is not entitled to ask the opinion of a professional witness upon any question except one of skill or science. People v. Bodine, 1 Denio, 281. Supreme Cowt, July, 1845. 266. Where, upon the trial of an indictment for murder, a witness for the prosecution who resided in the same house with the prisoner was examined as to her declara- tions and conduct for several successive days subsequfnt 218 EVIDENCE. to the murder, and in the course of such examination related his own occupation and conduct during that time, which had no apparent bearing upon the question in issue, and the prisoner's counsel objected to all evidence of the independent conduct of the witness during that time, which objection was overruled, and the witness continued to give an account of his own conduct in connection with the prisoner's acts and declarations ; but. the bill of excep- tions, instead of detailing the whole of the witness' testi- mony, was confined to what he said respecting himself: Meld, that the objection was too broad, and could not be sustained ; that it should have specified' the particular acts of the witness, which were objected to by the prisoner and ' insisted upon by the prosecution ; or the whole of the wit- ness' testimony should have been given, to enable the court to judge what particular parts were objectionable. id. 267. Although a witness who has given testimony is privileged from answering whether he has not, on a former occasion, sworn differently, neither the court nor a party can object where the witness does not; and where, upon such a question being put, the court without any objection by the witness excluded it, it was held erroneous. id. 268. "Where, on the trial of afi indictment for murder, the evidence was circumstantial, and the judge instructed the jury that fair character was important to the prisoner, and that they were to inquire " why it was she had given no evidence of her "general character :" Held, that such in- struction suggested the inference that her character was bad, and was erroneous. id. 269. Where no evidence of general character has been given, the subject of character is not on^e for the consider- ation of the jury. Per Beardsley, J. id. 270. Where, on a trial for murder, there was evidence that a murder had been committed, and that the house in which the dead body was had been subsequently set on fire, under such circumstances' as to raise a suspicion that the same was done by the perpetrator of the murder EVIDENCE. 219 to conceal that offense, and the /evidence left it doubtful whether the prisoner was in the vicinity of the house when the fire was set, and the court charged the jury that if the prisoner might have been at the scene of the fire " the onus was cast upon her to get rid of the suspicion which thus attached to-her," and that she was bound to show where she was at the time of the fire : Meld erroneous. id. 271. Proof by comparison of hands, i. e., the juxtapo- sition of two writings, in order to ascertain whether both were written by the same person, is inadmissible. People v. Spooner, 1 Denio, 343. Supreme Court, July, 1845. 272. A witness who was a clerk in chancery, and who testified that he had been accustomed to examine signa- tures, as to their being genuine, is not entitled to give an opinion as a person skilled in detecting forgeries, whether a signature is genuine or imitated. id. 273. It seems that the rule sometimes allowed to prevail, admitting experts to give an opinion whether a signature is genuine or imitated, is not well established upon author- ity, and that such testimony is incompetent. Per Bran- son, 0. J. id. 274. On a trial for murder, the dying declarations of the deceased, that is, declarations made under the appre- hension of death, are competent evidence against the prisoner; but before 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 recovery. People v. Green, 1 Park. Grim. Rep. 11. Rensselaer Oyer and Terminer. Parlcer, Circuit Judge, &c. July, 1845. 275. "When by the direction of the attending physician, and in his presence, W. informed the deceased, on the day before her death, that she could not live, whereupon the deceased requested the physician to hear a communication that she desired to make, and with his consent she pro- ceeded to give a history of the conduct of the prisoner during her illness, tending to show that he had several 220 EVIDENCE. times during such illness administered arsenic to her, held, that such communication was admissible as her dying declaration. id, 276. Where, on the trial of a capital case, several wit- nesses are to be examined to the same point, the court may, in its discretion, require all such witnesses, except the one under examination, to leave the room during such examination. id. 277. 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 contents, and it cannot be read in evidence against him on the trial. id. 278. The maxim, qui tacet, consentire videtur, is not applicable to such a case; nor is it generally applicable except to verbal conversations, and to certain communi- cations in writing in mercantile transactions. It cannot be applied to facts stated in a letter which a party is not bound or interested to answer. id. 279. 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 cannot, on cross- examination, prove by the witness a subsequent conversa- tion between the party cross examining and the witness, which took place two or three hours after the first conver- sation, though such subsequent conversation was upon the same subject as the first conversation, and in explanation of it. id. 280. And though the party calling the witness proves 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, -id. I'^Js'; 281. That a witness for the prosecution iii a crim- inal case has contributed funds to carry it on, goes only to his credibility. People v, Ourmingham, 1 Denio, 524' Supreme Court, October, 1845. 282, On the trial of an indictment containing a single count for one offense of assault and battery and resisting EVIDENCE. 221 an officer in the execution of process, the prosecution, after proving an assault and one act of resistance, cannot give evidence of a similar offense committed at another time. People v. Eopson, 1 Denia, 574. Swpreme Court, October, 1845. 283. Where there, is a question of intent, or of guilty knowledge, proof of other acts of a similar nature with those constituting the principal charge, with a view to establish such intent or knowledge, are sometimes admis- sible. Per Bronson, 0. J. id. 284. On the trial of an indictment for resisting a con- stable while engaged in executing process against the defendant's property, the defendant is not entitled to show that the officer had not taken the oath of office, or given the security required by law ; it being sufficient, in such a case, that the party was an officer de facto. id. 285. It seems the rule would be otherwise in a private action brought by the officer for the assault. id. 286. It clearly would be where he sues for fees or sets up a title to property by virtue of his office. This can only be done by one who is an officer de Jure, as well as de facto. Per Branson, G. J. id. 287. On the trial of an indictment for the murder of a wife by her husband, the declarations of the deceased made in extremis, as to the cause of her death, are compe- tent evidence against the prisoner. People v. Green, 1 Denio, 614. Supreme Court, October, 1845. 288. So held by the chancellor and judges, their opin- ions being required by the governor, pursuant to the statute, on the same principle that she is allowed to testify against him where the complaint is of violence to her person. (See E. S. 5th ed., vol. 3, 936.) id. ll^,- 289. The finding of a jury upon & preliminary issue, to the effect that the prisoner was then sane, cannot be taken into consideration upon the question of insanity set up as a defense upon the trial of the indictment. 222 EVIDENCE. Freeman v. The People, 4 Denio, 9. Supreme Court, Jan- uary, 1847. 290. And where the court, on the trial of the indict- ment, refused to permit evidence to be given that the prisoner was insane at any time after the finding of the verdict upon the preliminary issue, and excluded the opin- ions of medical witnesses, formed from an observation of the prisoner after that time, as to his insanity when the offense was committed, such ruling was held errone- ous, id. 291. "Where a, prisoner was tried for murder four months after the crime was alleged to have been committed; held, that it was competent for the prisoner to prove by professional witnesses that he was insane at the time of the trial, with a view to establish the defense of insanity when the act was done. id. 292. Where, on the trial of an indictment for selling liquor without a license, which charged five offenses, in separate counts, the defendant, in order to limit the proof to a single count, offered to show by one of the grand jury that only one offense was sworn to before that body ; held that the evidence was inadmissible. People v. Sulbuf, 4 Denio, 133. Supreme Qourt, January, 1847. 293. An indictment is a record, and cannot be impeached by plea or evidence upon the trial. id. 294. It is competent for the prosecutor of an indictment for selling liquor without a license, to prove that the de- fendant kept a bar with bottles in it. id. 295. The acts or declarations of a supposed agent or joint conspirator cannot be received in evidence, until proof has been first given to establish the agency or com- bination. People v. Parish, 4 Denio, 153. Supreme Court, January, 1847. 296. In such cases, the order of producing the evidence is not a matter of discretion. Semble. Per Branson, C J. id. 297. Therefore, where the prosecution seeks to prove EVIDElJfCE. 223 fiilse pretenses made to the prosecutor by a third person, by the procurement of the defendant, it must be first shown that the defendant instigated such person to make them. Per Bronson, O. J. id. 298. An error committed by the admission 8f incom- petent evidence in a court of record against an objection by the opposite party, is cured, and an exception thereto rendered nugatory, by a subsequent direction to the jury to disregard such evidence. id. 299. The rule is otherwise in justices' courts, for special reasons applicable to those courts. Per Bronson, G. J. id. 300. Where an indictment for cheating by false pre- tenses, alleged that the defendant had falsely represented one Miner, of the town of Pike, to be responsible for a sum of money, and the public prosecutor was allowed, to ask a witness examined on his part this question, though objected to as leading: "Had Miner absconded from Pike in July, 1842 ? " Held, that the question was im- proper for the reason stated in the objection., id. ^Jf' 301. On a prosecution for larceny in stealing bank bills of another state, the prosecution must show the exist- ence of the banks, and the genuineness of the bills. Johnson v. The People, 4 Denio, 364. Supreme Court, May, 1847. 302. Evidence that the prisoner had passed the stolen bills as genuine would have been sufficient. Semble. Per Beardsley, J. id. 303. Evidence that bills of the same kind had been received and passed away in the ordinary course of busi- ness, as a part of the currency of the country, would be presumptive evidence of the existence of the bank and of the- genuineness of the notes. Per Beardshy, J. id. 304. But the fact that a witness for the prosecution had exchanged the bills alleged to have been stolen, giving other money for them after the larceny, but who did not speak of any former knowledge of such bills, or express 224 EVIDENCE. any belief as to their genuineness, is no evidence upon that point, though it appeared that he was a broker. id. 306. It is always competent for a party to show the relations which exist between a witness of his adversary and the farty against, as well as the one fpr whom he is called. Starlcg v. The People, 5 Denio, 106. Supreme Court, October, 1847. 306. So the party against whom a witness is called is entitled to prove his declarations indicative of hostile feel- ings toward himself. id. 307. Accordingly held that a defendant, on the trial of an indictment, might prove that a witness for the prose- cution had said of a particular locality, that it would be a good place in which to kill the defendant, though the remark was made before the time of the commission of the alleged offense, and the witness to whom the declara- tion was imputed, on his cross-examination, had denied having made it, id. 308. A; party is not entitled to give evidence of the general good character of his own witness, unless the character of the witness has been attacked by witnesses ' on the other side. id. 309. And it is not enough to warrant proof of good character, that the witness has been discredited by proof contradicting portions of his testimony, and by evidence that he had made declarations hostile to the party against whom he was called, and in his testimony had denied the making such statements. id. 310. A party has a right to impeach the general charac- ter of a witness of his adversary, though the testimony which such witness had given related solely to the gene- ral character of another witness. id. ^^j^ 311. It is not competent for a party to discredit a witness called and examined by him, by asking whether he had not made statements upon another occasion contra^ dictory to the testimony which he had given. The People V. Safford, 5 Denio, 112. Supreme Court, October, 1847. EVIDENCE. 225 312, Accordingly, where tlie plrosecution, on the trial of an indictment for selling liquor without license, called and examined a witness to prove a sale of liquor by the defendant to him, but which witness failed to prove an act of selling, and the counsel for the prosecution then asked him what he had sworn on the subject before the grand jury ; held that the question was incompetent and inadmissible. id ^\ 313. As a general rule it is not competent, in sup- port of the testimony of a witness, for the party calling hintj to prove that he has made declarations out of court corresponding with his testimony in court. The People v. Finnegan,! Park. Orim. Bep. 147. Supreme Court, Albany General Term, May, 1848. 314. The exceptions to this rule, as now established in this state, are when the witness is charged with giving his testimony under the influence of some motive prompt- ing 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 contradiction, tend- ing 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 eff'ect and operation, arising from a change of circumstances, could have been foreseen. id, 315. And this general 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. id, ''**■ 316. It is not collateral but relevant to the main issue to inquire into the motives which influence a wit- ness in giving his testimony, and a party examining a wit- ness in regard to them is not bound by his answers, but may contradict him. People v. Austin, 1 Park. 15 226 EVIDENCE. Bep. lo'4. New Yorh Oyer and Terminer, 1848. Ed^ monds, Justice. 317. A sufficient foundation is laid for such contradic- tion 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 ^e 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. id. 318. The statute allows the relative of a person killed to recover damages therefor, and it will be no impea;chment of a witness that he, as father of the deceased, had at- tempted, by negotiation, to recover compensation from the author of the death. id. \m: 319. Where the cross-examination of the principal witness for the people was conducted in a manner tending to impair her credibility, and to show that the prosecution was the result of a conspiracy in which she was con- cerned; held, that it was competent to sustain the witness by showing that another person, to whom the facts had become professionally known, wrote .to the public authori- ties, and was the cause of the prosecution being instituted. Lohman v. The People, 1 Comstock, 380. Court of Appeals, June, 1848. 320. The deposition of a witness taken in a criminal case, pursuant to the statute relating to certain offenses committed in the city of ISfew York, (Stat, of 1844, p. 476, § 11,) may be read in evidence on the trial of the indictment, on proof that the witness is a non-resident of the city at the time of the trial, and was so when the deposition was taken. Barron v. The People, 1 Comstock, 386. Court of Appeals, June, 1848. 321. "Where, however, the only proof preliminary to reading the deposition, was the evidence of a person em- ployed by the district attorney to serve subpoenas, who testified that a subpoena was issued to him for the witness whose deposition was offered to be read ; that he called at EVIDENCE. 227 two of the hotels in the city, where, as he was informed by the district attorney, the witness stopped when he was in the city ; that he inquired of the bar-keeper at each of those places, and was informed that the witness was not at either of those places, and did not live in New York to their knowledge ; that he cound not find the witness in the city, and did not know where he resided ; held insuf- ficient to authorize the deposition to be read. id. ■JJlJ: 322. The ofiense of selling spirituous liquors, in violation of the excise laws, may be established by cir- cumstantial evidence ; and the fact that the defendant kept liquor in his grocercy store to sell, is competent evidence for that purpose in an action against him to recover the penalty. Vallance v. Evarts, 3 Barh. 653. Supreme Court, Jefferson Q-eneral Term, July, 1848. 323. And where a witness was asked the question: "Did the defendant keep liquors of different kinds in his grocery to sell ? " and, on objection, the court sustained the objection; held, that the judge erred in so holding, and a new trial was granted. id. 324. The like kind of evidence is constantly received upon trials, even for capital offenses. id. S: 325. The rule which imposes upon a party the obligation of producing evidence which will contradict or explain circumstantial evidence against him, requires him to do so only when he is pressed by circumstantial proof, and has it in his power to destroy its apparent force. People v. Mc Whorter, 4 Barb. 438. Supreme Court, Otsego Creneral Term, November, 1848. 326. Before the absence of evidence can affect a party accused, it must appear that there is evidence that would elucidate the matter in dispute, and that it is peculiarly within the knowledge of such party. Then if he is pressed by the force of circumstantial evidence, and does not produce the evidence within his power, it may afford a strong presumption against him. id. 327. A party accused is not bound, in order to avoid a 228 EVIDENCE. presumption against him arising from circumstantial evi- dence, to produce as witnesses persons who may, by possi- bility, have knowledge on the subject. He >need only produce those who are proved to have been so circum- stanced as to justify the conclusion that they must have knowledge which, if divulged, would throw light on the subject. id. f/4§; 328. Where the admissions of a prisoner are ob- jected to as having been obtained by improper induce- ments, the proper question is, whether the inducement held out to the prisoner was calculated to make his confes- sion an untrue one. People v. Smith, 3 How, Prac. Bep. 226. Supreme Qourt, Saratoga General Term, December, 1848. 329. The general rule of evidence in regard to the prorof of the laws of the various states of the union, stated in Greenleaf 's Evidence, section 489, has not been adopted by ttie 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., (ch. 442.) In re Belt, 1 Park. Grim. Bep. 169. New York Special Term, December, 1848. Before Edmonds, J. 330. The provisions 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 cannot testify in behalf of his claim. id. l^ll' 331. On an indictment for assault and battery, the defendant may give evidence to Show that he owned the premises on which the assault and battery was committed, and that he did the acts complained of in defense of the possession of his said premises. Harrington v. The People, 6 Barb. 607. Supreme Court, Clinton General Term, July, 1849. 332. And if the assault and battery was committed in resisting persons entering, upon the premises to open and EVIDElSrCE. 229 work a highway, the defendant may prove that the alleged highway was laid through his orchard of four years growth, without his consent. id. 333. Parol evidence is inadmissible for the purpose of divesting the title of the owners of real estate. Accord- ingly, where a particular place, claimed to be a public highway, had never been opened or worked, or used as a highway, it was held that it could not be proved a high- way by parol. ' id. 334. Under an indictment for maliciously cutting and girdling certain fruit trees, described in the indictment as the property of one B., it is sufficient proof of the owner- ship of the property to show that the premises on which the trees stood were in the possession and occupation of B. at the time of committing the offense. People v. Horr, 7 Barb, 9. Supreme Court, Jefferson General Term, July, 1849. 335. And evidence that B. was not the sole owner of the premises in question, but was only one of several joint owners who held the legal title in common, will not amount to a variance between the indictment and the proof, id. ^^^_ 336. Where a defendant by a subsequent deposition expressly contradicts and falsifies a former one made by him, and in such subsequent deposition expressly admits and alleges that the former one was intentionally false at. the time it was made ; or in such subsequent deposition testifies to such other facts and circumstances as to render the corrupt motive apparent, and negative the probability of mistake in regard to the first, he may be properly con- victed upon an indictment charging the first deposition to be false, without any other proof than that of the two depositions. Selden, J., dissented. People v. Burden, 9 Barh. 467. Supreme Court, Monroe General Term, Sep- tember, 1850. 337. A trial and conviction upon such an indictment would be a complete bar to any further or other prosecu- 230 EVIDENCE. tion for the same perjury, in whichever deposition it may in fact have been committed. Selden, J., dissented, id. 338. Where, upon the trial of an indictment, no proof is given as to the general character of the defendant, the law assumes that it is of ordinary fairness. Achley v. The People, 9 Barb. 609. Supreme Court, Monroe Q-eneral Term, September, 1850. 339. A prisoner on trial may show what his reputation is, and then the question is open to the prosecution, and for the jury to determine, like other controverted facts. But if the prisoner chooses to give no evidence on the subject, the jury are not at liberty to indulge in conjec- ture that his character is bad, in order to infer that he is guilty of the particular crime charged. id. ^{_ 340. 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. HougJitalihg v. Kelder- house, 1 Fark. Grim. Bep. 241. Supreme Court, Albany General Term, May, 1851. 341. Such incapacity to testify is the result of a rule of evidence, and not a punishment of the offense. id. 342. Where the defendant proves the making of an ad- mission by the plaintiff, the latter has a right to give evi- dence in explanation of the admission, and to have the witness state all that was said upon the subject at the timCi id. ■',"8^5; 343. 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 different intent. People v. Orcutt, 1 ParTc. CHm. Bep. 252. Oneida Oyer and Terminer, June, 1851. W. F. Allen, J. SsJ: 344. Where, on trial for murder by poisoning, the EVIDENCE. 231 accused, 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 sipiilar opinion at a subse- quent 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 appear 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. People v. Grunzig, 1 Park. Grim. Hep. 299. New York Oyer and. Terminer, November, 1851. Edmonds, J. (This case was submittfed by the governor to the judges of the court of appeals, for advisement, and they sustained the ruling at the oyer. An application was afterwards made to Mr. Justice Harris for an allowance of a writ of error, which writ was denied.) 345. To entitle the prosecution, on a trial for murder, to introduce evidence of the dying declarations of the de- ceased, it must appear by the preliminary evidence that the defendant 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. People v. Knickerbocker, 1 Park. Crim. Bep. 302. Supreme Court, Erie General Term, November, 1851. 346. 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, id. ?a5i; 347. 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 authorize the party calling the witness to give evidence of the general good character 232 EVIDENCE. of the witness. People v. Gay, 1 Park. Grim. Sep., 308. Supreme OovH, Albany Q-eneral Term, December, 1851. 348. A party can only give evidence of the good char- acter of his witness, when impeaching witnesses have been first called on the other side. id. 349. By impeaching witnesses, in such case, is meant only such as have spoken to general character, or to char- acter for truth. id. fffii 350. 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 evidence upon the question of consanguinity. People v. Hariden, 1 Pa/rk. Grim. Pep. 344. Steuben Oyer and Ter- miner, May, 1852. ■ Strong^, J. i& 351. On the trial of an indictment for murder, a witness called in behalf of the prisoner testified, on the cross-examination, that the prisoner became attached to a lady while she was staying at the house of his father, and that she became pregnant at that time and during her stay there, it was held incompetent for the prosecution to prove further by the witness that the witness knew the prisoner was charged with the seduction, and that the witness heard of it within a few days after the young lady left ; and where such evidence had been admitted at the oyer and terminer, a new trial was granted. People v. Thurston, 2 Park, Grim. Pep. 49. Supreme Court, Dela- ware General Term, July, 1852. ?852. 352. A party is not permitted to give evidence of the good character of his witness, unless evidence has been given on the other side either upon direct or cross- examination tending to impeach his general character. People v. Gay, 3 Seld. Pep. 378. Court of Appeals, Octo- tober, 1852, 353. Evidence that the witness has been committed for trial upon a charge of perjury, is not an impeachment which will warrant the introduction of sustaining witnesses. EVIDENCE. 233 Th« presumption is that the witness is innocent. Buggies, Oh. J., and Welles, J., dissenting. id. 354. The cases of The People v. Rector (19 Wend. 569) and Qarter v. The People (2 Hill, 317) overruled, and The People V. Hulse (3 Hill, 309) approved. id. fjl^; 355. Tools with which a burglary is supposed to have been committed may be exhibited to the jury, in con- nection with evidence tending to show them to have b^en used in its commission, and to connect them with the pris- oner. People V. Lamed, 3 Seld. Bep. 445. Court of Ap- peals, December, 1852. Tmb; 356. 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 estab- lish the first marriage ; proof of actual marriage, either by the record or by the evidence of an eye witness, is requi- site. Oahagan v. The People, 1 Park. Orim. Bep. 378. Su- preme Court, Albany General Term, February, 1853. "sS"' 357. The answer of a witness on cross-examina- tion to an inquiry, the subject of which is purely collateral to the issue, is conclusive. People v. McQirmis, 1 Pa/fh. Crim. Bep. 387. Supreme Court, Monroe General Term, March, 1853. P^'a 358. Where one of two defendants, jointly indicted for felony, is separately tried in accordance with his own demand, his co-defendant is not a competent witness in his fg^vor. Mclntyre v. The People, 5 Seld. Bep. 38. Court of Appeals, October, 1853. fjl" 359. 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 volun- tary, and not made under the influence of fear or hope. People v. Hendrickson, 1 Park. Orim. Bep. 406. Supreme Court, Albany General Term, December, 1853. (This case is also reported in 8 How. Prac. Rep. 404.) 360. What a person says, when examined as a witness in a legal proceeding, may be used in evidence against 234 EVIDENCE; him; but the statements or oath of a party accused cannot be given in evidence. id. 361. 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 sub- sequent 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. id. 362. Meld, also, that evidence of conversations between the prisoner and his brother-in-law, tending to show an alienation of affection on his part in regard to his wife, was admissible on the question of motive, id. 363-. 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 pris- oner might have entertained by reason of his alliance with the family, had been disappointed. id. "iss?' 364. The opinion of a physician upon a question not involving medical skill or science is not admissible evidence. Woodin v. The People, 1 Parh. Grim. Rep. 464. Supreme Court, Monroe General Term, March, 1854. Mti: 365. Upon a trial for murder, statements made by the prisoner, as a witness at the coroner's inquest upon the body of the deceased, before the witness had been charged with the murder, and before- it was ascertained that mur- der had been committed, are admissible in evidence against him. Selden and Allen, J J., dissented. Hend/rickson v. The People, 10 N. Y. Bep. 13. Court of Appeals, April, 1854. 366. Upon the trial of a man for the murder of his wife, it is proper for the prosecutor to show that the father of the deceased had so disposed of his estate by will as to disappoint the expectations of the prisoner. Gardiner, Ch. e/., and Selden, J., dissented. id. SJ; 367. The existence or want of motive to commit EVIDENCE. 235 the crime alleged is' always a legitimate subject of inquiry. The weight which such evidence is entitled to, in different cases, stated and discussed. People v. Bohinson, 1 Parle. Grim. Bep, 649. Rensselaer Oyer and Terminer. Before Harris, J. May, 1854. 368. Where, on an indictment for forgery under 2 R. S. 761, § 36, (see 3 R. S. 5th ed. 952,) the intent charged is to defraud the bank by which the counterfeit bills pur- ported to have been issued, it is competent for the prose- cutor, on the trial, to prove by parol evidence the existence of the bank and the fact of its issuing bills, without pro- ducing an authenticated copy of its charter. The rule of evidence is the same, whether the intent charged be to de- fraud the bank or to defraud a third person. People v. Oliadwick, 2 Park. Grim. Bep. 163. Supreme Gourt, Tioga General Term, May, 1854. mt'. 369. Medical men are allowed to give their opin- ions in cases of alleged insanity, because they are sup- posed by their study and practice to understand the symptoms of insanity and to possess peculiar knowledge on the 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 testi- mony which is relied on to establish insanity. Lake v. The People, 1 Park. Grim. Bep. 495. Supreme Gourt, Orange General Term, July, 1854. 370, A medical witness, examined as an expert on a question of insanity, may be asked his opinion as to hypo- 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. id, 371. Where a record of conviction for petit larceny is offered in evidence, 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, unaccom- 236 EVIDENCE. paeied by proof of subsequent bad character, is entitled to but little weight. id. fsai 372. Where two are jointly indicted, one is not admissible as a witness, either for or against the other, until he has been first acquitted or convicted ; and where one co-defendant in an indictment had been examined on the trial, without being previously discharged from the record, a new trial was ordered. People v. Donnelly, 1 Abh. Prac. Bep. 459. Swpr&me Cowt, New York General Term, February, 1855. '"iBsf' 373. Where, on the arrest of a prisoner, he made confessions to the officer, admitting his guilt, the officer having made no promises and no threats, such confessions were held competent evidence, although it appeared that the prisoner was very much frightened, and seemed much terrified at the time they were made, and although the statements of the prisoner were made partly in English, and partly in German, and the witness called to prove the confessions did not understand what was said in German. Per JDenio, J. People v. Thorns, 3 Park. Crim. Bep. 256. Court of Appeals, March, 1855. 374. It is not competent for a medical witness, who has not heard all the testimony tending to show the mental condition of a person, to give an opinion founded on the portion heard by him as to his sanity. People v. Lake, 2 Kernan's Bep. 358. Qourt of Appeals, March, 1855. 375. Even where such a witness has heard, all the testi- mony, his opinion founded thereon, upon the general question of sanity or insanity, is not competent evidence. He should merely give an opinion as to what the facts, proved or claimed to be proved, indicate as to the mental condition of the party. Per Hand, J. id. 376. The opinion of a physician, who has personal knowledge of the conduct and habits of a person, is com- petent evidence as to the sanity of such person. Per Hand, J. id. 377. On the cross-examination of a miedical witness, EVIDENCE. 237 who has testified that in his opinion the prisoner was sane, it is eoinpetent to inquire whether, in his opinion, speci- fied facts, claimed to be proved, indicate insanity. id. 378. All the judges concurred in the first and last propositions decided in this case; on the others they expressed no opinion. id. S: 379. On a trial for an assault and battery before a court of special sessions, a former trial and sentence can- not be given in evidence under the plea of not guilty. jPeople v. Benjamin, 2 Park. Grim. Hep. 201. Supreme Court, Albany General Term, May, 1855. 380. Under a plea of not guilty, the defendant can only give in evidence what negatives the allegations in the in- dictment or complaint, and matters of excuse or justifioa- tion. Where a defendant wishes to avail himself of a form- er trial and judgment, he must plead autrefois acquit or autrefois convict, as the case may be. If, after joining of issue, any thing occurred which might be available as a defense, the defendant could only avail himself of it by a subsequent plea, and by presenting a new issue for triaL id. 381. A conviction before a court of special sessions must be proved by the record of conviction or a duly cer- tified copy thereof, if a record has been filed; and second- ary evidence of a conviction cannot be received, unless it is shown that no record of conviction has been filed, id. \^Pl' 382. Where a person, charged to have been mur- dered by poison, expressed, during his last illness, his opinion that he should not live, but was encouraged by his attending physician to believe that he would recover, his statements made ■ immediately thereafter were held not to be admissible evidence as dying declarations. Per Harris, J. People v. Mobinson, 2 Park. Grim. Hep. 235. Supreme Court, Albany General Term, June, 1855. 383. Very soon after drinking the supposed poison, the deceased was asked how he felt " after that glass of beer." S'eld, that his answer, "that he did not feel comfortable," 238 EVIDENCE. wag competent evidence, though made in the absence of the prisoner. Per Mourris, J. id. 384. Where it appeared that a third person had drank v/ith the deceased, at the same time he was supposed to have been poisoned, of the same beverage, and adminis- tered by the same person, and had died soon afterwards, the court permitted evidence to be given that arsenic was found in the stomach of such person, and that she died from the effects of that poison. Per Harris, J. id. 385. When it is necessary, on the trial of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible in evidence, as part of the res gestce, for the purpose of showing its true character ; but to render such declaration competent, the act with which it is connected should be pertinent to the issue ; for when the act is, in its own nature, irrelevant, and when the declaration is, per se, incompetent, the union of the two will not render the declaration admissi- ble. People V. Williams, 3 Park. Crim. Hep. 84. Court of Appeals, June, 1855. 386. Where, on the trial of A. W. for the alleged mur- der of his wife by poison, it appeared that he lived apart from his wife, and in the same town, and that his wife left her residence on Saturday evening before her death, and returned home at five o'clock the next morning, sick, and continued ill till she died, the symptoms being the same as in cases of poisoning ; held, that it was not competent to prove what the deceased said when she left home on Saturday evening, as to where she was going ; and where such evidence was admitted, and it was proved that she said she was going with clothing for her husband, and the prisoner was convicted, it was held erroneous, and the judgment was reversed. id. 387. Where it was claimed by the prosecution that arsenic had been administered to the deceased, in a bowl in which there had been tea and toast, which had been fed EVIDENCE. 239 to her from the' bowl by the prisoner, during her last- ill- ness, and there was evidence tending to identify the bowl as the same one delivered to the physician who had analyzed the contents at the request of the prosecution; held, that it was competent for the prosecution, at the trial, to prove by the physician the condition and contents of the bowl, and the analysis made by him of the contents, though the identification of the bowl by the witness was not positive, it being a question for the jury to decide whether the bowl was identified to their satisfaction, id. 388. On such trial it is proper, on the question of mo- tive, to prove that the wife had, some time previous to the alleged poisoning, entered a complaint against her hus- band, the prisoner, as a disorderly person, on the ground that he had abandoned his wife, and that the prisoner was arrested on such complaint, and gave a recognizance, with surety, on which he had been required to pay, and had paid to the magistrate, weekly, the sum of two dollars for the support of his wife. id. 389. Where a paper claimed to be such a recognizance was produced in court, which purported to be signed by the prisoner and his surety, and to have been taken before a. police justice, but had never been filed, and there was no evidence of its execution, except what might be in- ferred from the testimony of an agent of the almshouse, who produced it, that weekly payments of two dollars had been made on it by the prisoner; held, that there was not sufiicient proof of .its execution to allow it to be* read in evidence. Per Hand and Mitchell, JJ^ id. 390. Where an inquiry into the condition of a person's health is material, any account given by such person relative to his health is evidence of complaints and symp- toms ; but it is not evidence to charge any other person as the cause of those sufi"erings. Per Gierke, J. id. 391. To authorize any proof of the statements and declarations made by a person during his last illness, it is necessary to show that they were made under the appre- 240 EVIDENCE. hension of death, and that the deceased was conscious of approaching and inevitable death ; and it is not necessary that such consciousness should be uttered in express terms, but it may be inferred from the tenor of his conversation, the nature of his sufferings, and his whole demeanor. Per Gierke^ J. id. 392. Symptoms of poisoning by arsenic, as described by witnesses and proved by a physician. id. •393. Mode of conducting a post mortem examination in such a case, as described by a physician. id. \^: 394. On a trial fot^Urglary, it is no valid objection to evidence tending to characterize the burglarious intent of the acts charged, that the circumstances offered to be proved Would, upon the trial of another and distinct ofiensej tend to convict the prisoner of such latter charge ; but the intent with Which the prisoner entered may be determined by proof of circumstances tending to show a felony committed in an adjoining store. O^home v. The People, 2 Park. Grim. Bep. 583. Supreme Court, Essex (rerieral Term, July, 1855. ^Ifs'; 395. On a trial of an indictment for burglary, it is not suflScient to prove that the goods of the prosecutor, alleged to have been burglariously taken from his barn, were carried away from the barn in the night by the defesndant, and were subsequently found in his possession, but the prosecutor must also prove that the barn was broken open and the goods stolen. Such facts should be proved by the testimony of the person in the immediate possession of the barn and the goods, or a satisfactory excuse should be given why he is not called as a witness. People V. Ganiff, 2 Park. Grim. Bep. 586. Supreme Court, St. Lawrence Q-eneral Term, September, 1855. fs^J; 396. "Where, on the trial of several defendants on an indictment for a riot, it appeared that a secret society had been organized for the purpose of repressing the class or sect to which the defendants belonged, it was held to be competent to require a witness, who had been called EVIDENCE. 241 and had testified on the part of the prosecution, to answer on his cross-examination whethej he was a member of such secret society. People v. Christie, 2 Park. Grim. Rep. 579. Supreme Court, New York General Terrriy November, 1855. {This case is also reported in 2 Abb. Prac. Eep. 256.) fsi: 397. "Where incompetent evidence haS been re- ceived without objection, under a misapprehension, on both sides, as to the facts on which its admissibility depended, a tnotion to strike out such evidence may be made at any subsequent stage of the trial, when facts shall have been proved which render it incompetent. People V. McMahon, 2 Park. Griin. Rep. 663. Supreme Court, Albany General Term, December, 1855. 398. On the trial of a party for the murder of his wife, where it appeared that the prisoner was examined as a witness before the coroner's inquest, and that he had been previously arrested for the murder by a constable, without warrant, and was under arrest at the time of his exam- ination as a witness, though the fact of his arrest was not known to the coroner but was a separate and independent proceeding, it was held competent to prove what the pris- oner testified to before the coroner's jury. id. 399. Evidence given under such circumstances will be deemed voluntary, because the witness has the right to refuse to ansWet- any question tending to criminate him- self, id. 400. It is the modern practice of the courts to receive the affidavits of the jurors themselves in answer to a charge SDf irregularity or abuse, though they have generally been considered as unreliable species of evidence. JSastwood v. The People, 3 Park. Grim. Rep. 25. Supreme Court, Mon- roe General Tetm, December, 1855. 401. On the trial of an indictinent for murder, alleged to have been committed by a blow inflicted by the pris- oner with a club in a sudden affray, it is admissible to prove that the prisoner was intoxicated at the time of the 16 242 EVIDENCE. transaction, and, for the purpose of establishing that fact, a witness who was present at the time, and was well ac- quainted with the prisoner, after describing the appearance and conduct of the prisoner, may be permitted to give his opinion as to the fact whether or not the prisoner was in- toxicated, id. 402. On a trial before a court of special sessions, a party cannot object that an answer to the question asked may involve the witness in a criminal prosecution. Such an objection can only be made by the witness. Nor can a witness claim such a privilege where the answer is neces- sary to a full understanding of the facts already voluntarily stated by the witness, although the answer may tend to criminate the witness. People v. Carroll, Z Parle. Grim. Bep. 73. Supreme Court, Albany Q-eneral Term, December, 1855. 403. If a witness has testified to a part of a transaction or of a series of transactions which implicate the accused, the latter has a right to show, by a cross-examination of the samie witness, that the criminality was on the part of the witness and not of the accused. id. ^sm.' 404. The presumption of dereliction, applicable to lost inanimate chattels, does ilot apply to stray domestic animals, as to which there is always supposed to be an ani- mus revertendi. People v. Kaatz, 3 Park. Crim. Rep. 129. Supreme Court, Dutchess General Term, April, 1856. 405. When, on a criminal trial, the court was asked by the prisoner's counsel to charge, " that the case being one of circumstantial evidence, the jury must acquit, unless the circumstances exclude every other reasonable hypothesis except that of the prisoner's guilt," and the court refused so to charge, it was held that no error was committed, it appearing that the case was not one of circumstantial evi- dence alone, but that there was also direct and positive evidence against the prisoner. id^ '\m. 406. When a brother-.in-law of the deceased was called to show that, fi.ve months after the alleged murder, he saw and examined a body which was found, apd was EVIDENCE. 243 claimed to be the body of the deceased, and proceeded to testify to several points of resemblance between the body found and the person charged to have been murdered, and ■ was then asked by the counsel for the prosecution whether, in his opinion, it was the body of the person alleged to have been murdered ; it was held, that the question was incompetent, and it was the province of the jury and not of the witness, to draw the conclusion from the points of resemblance and to decide upon the identity of the body found — it appearing that the body found had been much decomposed and changed, and that all the remaining points of resemblance had been stated by the witness to the jury. People v. Wilson, 3 Parh. Qrim. Rep. 199. WeBtchester Oyer and Terminer. Before Strong, J. June, 1856. fsM*' 407. On the trial of a police justice of the city of INew York for having willfully taken bail of and dis- charged from custody a person committed on a charge of larceny by another magistrate, without notice given to the district attorney, as required by the Session Laws of 1846, p. 408, it is competent for the prosecution to prove that, after such bail had b&en taken, search was made for the surety in the recognizance at the place of his alleged residence, and at other places, and that he could not be found. People v. Bogart, 3 Parh. Grim. Rep. 143. >8'm- preme Court, New York General Term, September, 1856. fg|°; 408. Error in excluding evidence is cured where subsequently the party excepting is permitted to prove, without objection, the fact sought to be established. Bar- ringer V. People, 14 N. T. Rep. 593. Court of Appeals, December, 1856. 409. In a criminal prosecution, what is sufficient evi- dence that a larceny had been committed, considered. • id. 410. On a question whether a person was intoxicated, it is competent to ask a witness who saw and observed him on the occasion referred to, whether, in his judgment, he was then under the influence of intoxicating liquor, JPeo- 244 EVIDENCE. pic V. Eastivood, 14 N. T. Bep. 562, Court of Appeals, T>ecember, 1836. 411. Tbe question does not Call for an answer in vio- lation of the general rule which excludes the opinions of ■witnesses. The inquiry was not intended to bring out an opinion, but to lead the witness to answer to a fact which he saw. If the opinion of the witness had been asked as to facts, not within his own observation, the objection would have been good ; as to such facts, opinions can be given generally only as to matters of science or art, and by meti of the particular science or art. If the question had been (as it mi^ht have been) direct, " What was the con- dition of the prisoner as to sobriety at that time ?" it ptobably would have been answered (as it had been be- fore by other witnesses) without objection. It did not Ibecofne incompetent by adding the words, " in your judg- ment," while the judgment was restricted to what the witness saw. Whether a person is drunk or sober, or how far he was affected by intoxication, is bettet determ- ined by the direct answer of those who have seen him than by their description of his conduct. id. 412. That a prisoner charged with the crime of murder was intoxicated at the time he caused the death, may be material to explain his conduct at and prior to the time, and also, in reference to the design with which the act was perpetrated. For one to drink, that he may drown his conscience and the better nerve himself to commit a crime, is to aggravate his offense ; but if one has lost his senses, and become insane, he has ceased to be accounta- ble to the criminal law, whether the loss of intellect was caused by misfortune or his own imprudence in the use of intoxicating liquors, or by any willful act of his own. The loss of intellect takes a-way the faculty of possessing that " design" which is an essential part of the offense of murder. So if any other condition of the man deprives him of the power of knowing what he does, or of enter- taining a design in acting, he cannot commit aoy offense EVIDENCE. 245 of which design is an essential. If he willfully brought himself into that condition, he may be morally accounta- ble for all his acts while thus degraded ; but to make him liable to. the criminal law, his offense must be brought within the defiajition of that law. id. 413. WherC) on the trial of an indictment for obtaining money by false pretenses, it appeared that certain bills, purporting to ha 7. Where a treaty contains a provision importing a con* 316 EXTRADITION. tract that its terms shall, at some future period, be ratified and confirmed, such treaty does not execute itself; but it must be executed by an act of congress, before it can be- come a rule for the decision of the courts. id. 8. Where the treaty is a contract to be performed in /uttiro, the courts have no power, except under the statute ; and if the provisions of the statute are not clearly com- plied with, they have no power at all in the matter, id. 9. The treaty of 1843, between the United States and France, cannot, in any sense, be held to execute itself It was not intended to act in prcesenti. It was a contract between the two nations, to be executed only in futwo; and stipulated for future legislation. "Without such legis- lation the courts have no power to act, in executing the treaty. id. 10. Although that treaty may be regarded as executing itself, so far as to establish the right of the French govern- ment to the surrender of a criminal, legislation is required to- enforce the delivery, and secure the subsequent pos- session of the fugitive. id. 11. And the want of such legislative sanction is not mere matter of form. It is a substantial right ; and in- volves too deeply the liberty of the citizen to be dispensed with. id. 12. In cases of this nature, state magistrates have no original authority. id. 13. E"or has a district judge of the United States, at chambers, any power to aid in carrying a treaty into eft'ect ; in the absence of any provision of the constitution, of the treaty, or of the statute conferring the power upon officers of that description. id. 14. The mandate of the president of the United States commanding the marshal to surrender a prisoner to the diplomatic agents of a foreign government, under the pro- visions of a treaty, is not conclusive. Upon a writ of HABEAS CORPUS, the legality of the foundation on which such mandate rests may be inquired into. id. EXTEADITION. 317 15. Where a treaty was drawn up in the French as well as in the English language, and both parts were originals, and were intended by the parties to be identical, but the French counterpart varied from the English in certain particulars ; held, that if both parts could without violence be made to agree, that construction ought to prevail which would establish a conformity between the two parts, id. 16. A prisoner who has been merely charged or accused, before a magistrate in France authorized to arrest, is not a party accused — mis en accusation — within the meaning of the treaty of 1843, between the United States and France. And he cannot be demanded by the French government, nor surrendered by the American, by the terms of that treaty. id. 17. The president cannot execute the power of extradi- tion, under that treaty, without both legislative and judi- cial sanction, previously obtained. id. falS: 18. 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 9th 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. In re Heilhonn, 1 Park. Grim. Bep. 429. Supreme Court, at Chambers. New York, December, 1853. 19. 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 insuf- ficient there is no jurisdiction to issue the warrant. id. 20. Where the charge of the crime is made in the com- plaint in general terms, and the complaint also contains all the facts on which the charge is made, and from such 318 EXTRADITION. facts it clearly appears that no such crime has been com- mitted, but some other offense not provided for in the treaty, the complaint itself disproves the general charge and takes away the foundation for the warrant. id. 21. Where a person has been arrested as a fugitive from justice under a warrant issued by a commissioner ap- pointed by a court of the United States, and was after- wards brought before a justice of the Supreme Court of this state on 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 justice to look behind the warrant, for the purpose of ascertaining whether the complaint made was sufficient to give the commissioner jurisdiction. id. 22. 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 Ap- peals, 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. id. 23. 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. Halliday, for ^43,7s.6d. sterling; and after several intermediate indorsements, was indorsed to Chas. Mcintosh & Co. to order, and the bill came to Mcintosh & Co. by letter, which was surreptitiously taken possession of by Alex. Heilbonn, the prisoner, a clerk for Mcintosh & Co., who wrote the following indorsement on the bill : "Eeceived for Chas. Mcintosh & Co. Alex. Heilbonn, No. 9 Vine street. Regent street, No. 73 Aldermanbury," on which the bill was paid to the prisoner, held that such indorsement did not amount to the crime of forgery, though it appeared that Heilbonn had no authority to indorse bills of exchange or to receive the amount thereof, and that the words, " Chas. Mcintosh & Co." were an im- itation of the handwriting of a member of the firm, the EXTKADITION. 319 rest of the indorsement being in the undisguiBed hand- writing of said Heilbonn. And held, that the offense of the prisoner belonged to a different class of crimes, and was not one of those provided for in the treaty between this country and Great Britain, id. 'ms. 24. In order to give the governor of a state juris- diction to issue his warrant for the rendition, under the constitution of the United States, of a fugitive from jus- tice of another state, the fugitive must be demanded by the executive of the latter state, a copy of the indictment or affidavit before a magistrate charging the offense must be produced, and such copy must be certified as authentic by the executive. An affidavit sworn before a justice of the peace, and a certificate of the secretary of state that he is such officer, and that his attestation is in due form, is not sufficient in this respect. Soloman's case, 1 Abb. Prac. Bep. 347, new series. Before Bussell, City Judge. New York, Jime, 1866. 25. The constitution of the United States provides that a person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. (Const. U. S., art. 4, § 2.) id. (The legislature of this state, in 1839, chap. 350, gave authority to magistrates to arrest, examine and commit a fugitive from justice, for a reasonable time, to await the warrant of the governor, issued according to the act of con- gress. 3K. S. 5th ed. 998.) 26. By the act of congress, Feb. 12th, 1793, (1 Brightly's Digest Laws U. S. 293,) it is enacted : " "Whenever the executive authority of any state in the union, or of either of the territories, shall demand any person as a fugitive from justice of the executive authority of any such state or territory to which s.uch person shall have fled, and shall, moreover, produce the copy of an indictment found, or an 320 FALSE PRETENSES. affidavit made, before any magistrate of any state or terri- tory as aforesaid, charging the person so demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory froin whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive ; and to cause the fugitive to be delivered to such agent, when he shall appear." id. 27. This act is summary in its effect, and must be strictly complied with; otherwise a warrant issued under it would be absolutely void. id. False Pretenses. ^l[ 1. A false pretense must relate to an existing fact, any representation as to what will or will not happen can- not be considered as a false pretense. This makes the distinction between a false representation and a false pre- tense. So if a man obtain goods by promising to pay cash for them, or to pay for them at a future time, or gives his note for them, with assurances that it will be paid at its maturity, when, at the same time, he does not intend to pay ; these are false promises, because there is no pretense that any fact exists ; there is no representa- tion as to what is then untrue. People v. Conger, 1 Wheel. Oases, 448. Golden, Mayor. New Torh, May, 1813. 2. As a general rule, there must be a false representation by words written or spoken by the accused, or by some one for him, to which he gives his assent ; a mere false show, or appearance, however specious or successful it may be, will not support a prosecution under the statute, id. 3. A false pretense must not only be a misrepresenta- tion as to an existing fact, but it must be a willful mis- representation, or, in other words, the party must Mow FALSE PEETENSES. 321 that he is making a false representation, and it mtist be so alleged in the indictment or else it will be bad ; and if the defendant on his trial can show that what was imputed to him as a false pretense, was a misrepresentation made through mistake or misinformation, he would undoubtedly be exonerated. id. 4. The false pretense must be one to which a jury may believe the person defrauded might and actually did give credit, and it does not follow that every mere naked and im- probable lie, or that every false assertion, however absurd or irrational, or however it may be contradicted by con- temporaneous circumstances or appearances, will be suffi- cient to support an indictment under the statute; the pretense must be such to which persons of ordinary cau- tion might give credit. id. 5. It must be alleged in the indictment, and it must ap- pear on the trial, that credit was given to the false pre- tense, and that by it the person defrauded was induced to part with his property. If credit was given independently of the false pretense, or if the property was obtained by any other inducement, then the indictment cannot be sup- ported, id. ^"Jf: 6. A person who obtains goods under pretense that he lived with, and was employed by A. B., who sent hini for them, is indictable for obtaining goods by false pre- tenses, under the statute. (Sess. 36, ch. 29, § 13, K E. L. 410.) People v. Johnson, 12 J. B. 292. Supreme Court, August, 1815. 7. Where the credit is obtained by means of the false pretense, the case comes within the statute. id. 8. The statute introduced a new rule of law, the com- mon law extending only to cheats, effected by means of any false token, having the semblance of public authority, or in any manner touching the public interest. id. ll'^l 9. An indictment cannot be supported for obtain- ing goods under false pretenses, in case where a contract is mnde between the vendor and vendee for the payment 21 322 FALSE PEETENSES. of cash on the delivery, although the vendee, at the time the contract is made, makes a false representation to the vendor in relation to his name and occupation, and, with- out paying the cash, procures a cartman, loads the goods and deposits them at the store of a third person, the vendor still continuing with the goods and claiming them as his own. In such a. case, the right of property is not divested. John Ring's case, 1 Oity Hall Becorder, 7. Before Badcliff, Mayor. New York, January, 1816. fjfj; 10. "Where A. falsely pretends to B. that he had procured for B. a hill of exchange on a foreign country of C, in whose possession it was ready to be delivered ; and B., in full confidence that A. had the bill in his pos- sjsssion procure from C, pays to A. a sum of money in payment for the bill, under the expectation that the bill would be simultaneously delivered ; A. is guilty of ob- taining that money by false pretenses. Joseph Decoata's case, 1 Oity Hall Becorder, 83. Be/ore BadcUff, Mayor. New York, May, 1816. mT.' 11- Where L. purchased goods of M. through the intervention of C, a broker, and for payment executed a promissory note to C, who indorsed to M., who received it expressly under the agreement and in confidence that Ij. should assign and deliver an invoice or bill of lading for a cargo of goods, in a distant port, of which he was the owner and consignee, to C. as security for the payment of such note, which bill of lading C. should hold as a trustee, and should L. deliver the bill of lading to C. without a regular transfer, and afterwards, by false pre- tenses, procure its redelivery to himself, for the purpose of proceeding to such distant port, and converting the proceeds of the cargo to his own use, which were intended to be applied to the payment of the said note; 0. has such an interest in the bill of lading as will support an indict- ment under the statute against L. for obtaining goods by false pretenses from C. Mordecai Lazarus' case, 1 Oity FALSE PKETENSES. 323 Aall Becorder, 89. Before Badcliff, Mayor. New York, June, 1816. 12. An equitable right or interest is embraced within the words " or other effects whatsoever," contained in that statute. (1 vol. IJT. E. L., p. 410, sec. 13.) id. 13. It is not necessary, in a case of the nature above described, where, during the negotiation for the purchase of the goodSj and at the time of the delivery of the bill of lading to C. by L., and a short time previous to its re- delivery, a variety of false representations is made by L. jto C. to deprive him of a vested right, the truth or falsity of which C. had no opportunity of knowing, except by such representations, that these pretenses, on the faith of which the bill, of lading is obtained, should be made at the precise time of the redelivery. And should the jury believe, from all the circumstances of the case, that L. resorted to such representations as an artifice to deprive C. of such right, they are justifiable in finding L. guilty of obtaining goods by false pretenses; the falsity of which pretenses, or either of them, may be inferred from cir- cumstances, id. (The statute referred to reads : " That every person who shall hereafter be convicted of knowingly and designedly, by false pretense, obtaining from any other person, any money, goods, or chattels, or other effects whatsoever, with intent to cheat or defraud any person, &c., shall be pun- ished by fine and imprisonment, or either," &c.) Jg^Jf 14. If a man, by falsely representing himself to be in a particular situation, obtain thereby money or goods, which without such representation he would have been unable to obtain, he is guilty of obtaining the money or goods by false pretenses. Henry Langstaff, alias John Green, Joseph Heath and Peter Johnson's cases, 1 Qity Hall Becorder, 116. Before Badcliff, Mayor. New York, July, 1816. ui«: 15- G- advanced to L. a sum of money, relying on the representations of L. that he had a large sum due for 324 FALSE PEETENSES. prize money, and afterwards advanced other sums to L., for which, together with the sum before advanced, L, drew divers checks, in his own name, on a bank, repre- senting that he had money deposited there, which would be paid to C. on demand ; it was held, that notwithstand- ing L. had no money in the bank, he was not guilty of obtaining that money by false pretenses under the statute. George Lynch' s case, 1 City Hall Recorder, 138. Before BadcUff, Mayor. New York, September, 1816. 16. "Where a man makes use of a false token, or . any deceit or artifice, calculated to gain credit beyond his own assertion, or his act predicated on his own responsibility, and by such means obtains money or goods, this offense falls within the statute, and the defendant is liable to its penalty; but where the defendant merely makes use of his own name, and draws his own check on a bank, where in truth he had no money, as a security for money then already advanced, and further sums are advanced on the promise to give further checks; although this is a fraud for which the defendant is answerable in a civil action, his offense does not fall with the provisions of the stat- ute, id. 17. Though a pretense may be resorted to for the pur- pose of obtaining possession of goods, yet, to bring the offense within the statute, it is necessary that full reliance should be placed on such pretense by him from whom the possession is obtained, and that the delivery of the goods should be fully consummated. John Lucre and Joseph Markford's case, 1 City Hall Becorder, 140. Before Bad- cliff, Mayor. New York, September, 1816. fJi's, 18. Where P. represented to L. that she lived with N"., and that she would take an article which L. had for sale home to E"., her mistress, and shortly return such article, or the money, and afterwards she returned neither; and it appeared that at the time P. made such represent- ations she did not live with E". ; it was held, such false representations did not fall within the statute against FALSE PRETENSES. 325 obtaining goods by false pretenses, for this was not a false representation against which ordinary prudence could not guard. Had the prisoner made use of any artifice or cir; cumvention, whereby she had obtained the property on the credit of N., then her offense would have come within the statute ; but it appeared that by a resort to falsehood, merely, the prisoner obtained the property on her own credit. Dinah Perry's case, 1 City Hall Recorder, 164. Before RadcUff, Mayor. New York, October, 1816. Jli'J; 19. A stranger availing himself of knowledge pre- viously obtained, touching the private dealings of two individuals, who, taking advantage of such knowledge, artfully founds a plausible story thereon, which he relates to one of them, by means of which he is induced to part with his money, is guilty of obtaining that money by false pretenses. James Smith's case, 3 City Hall Recorder, 3. Be/ore RadcUff, Mayor. New York, January, 1818. Jj*- 20. A. had dealings to a considerable amount with a bank for several years, and was usually in the habit, when he deposited money with the receiving teller, and drew a sum out by check, to pass from his desk to that officer in the bank who recteived the checks and paid the money, with his bank-book in his hand, which he exhib- ited for the purpose of showing that his account was good at the bank; and sometimes such officer, on receiv- ing A.'s check, would observe to him, in a delicate man- ner, " I suppose you have deposited sufficient to answer this check," to which A. would answer in the affirmative, and exhibit his book as evidence of the fact. On the day laid in the indictment, A. went, as usual, to the desk of the receiving teller and deposited $1209, and from thence, with his book in his hand, passed to the officer who paid out money, and exhibited his own check for $5450, and also his book. The money was paid, and no question, at that time, was asked him. On a subsequent examination it was found that the checks of A., presented and paid on the same day, exclusive of the $5450, amounted to 326 FALSE PEETENSES. $6500, and that he had overdrawn the bank to the amount of $10,722.93 on that day. It was held that A. was not guilty of obtaining money by fal»e pretenses, either at common law or under the statute. Daniel K. Allen's case, 3 City Hall Becorder, 118. Before Qolden, Mayor. New York, July, 1818. 21. An allegation by speech is necessary to constitute a false pretense. id. i?|i'; 22. Where a man, at the time he obtains goods at a store, alleges that if one of the two boys who sold him the goods will go with him to a certain place he would pay for the property ; and on the way represents that they were purchased for a rich lady, who would pay, &c; should he go off with the property and convert it to his own use, he is liable to a conviction for larceny, should the jury be- lieve that, at the time he acquired possession, he intended wrongfully to deprive the owner of his goods ; but, in such case, the prisoner would not be liable to an indictment for obtaining goods by false pretenses ; the false representar tions not having induced a delivery of the goods. John O'Terre's case, 3 City Hall Becorder, 154 Before Colden, Mayor. New Yorh, October, 1818. 23. To obtain a gun from the wife, in the absence of her husband, by falsely representing to her that the hus- band authorized its delivery for the purpose of repairing it, and the gun was obtained by means of this pretense, and afterwards converted by the prisoner to his own use, it was held that the prisoner could be convicted under the statute for obtaining goods by false pretenses. Mi B. Motifs case, 3 City Hall Becorder, 155. Before , Colden, Mayor. New York, October, 1818. ^mt 24. "Where a man of genteel appearance falsely represented himself as a wholesale dealer in Broadway, and that one of his country customers had sent to him an order for certain goods, which goods, by means of such representations, he fraudulently obtained; or where he falsely represented that he resided in that part of Broad- FALSE PRETENSES, 327 "way inliabited by people of opulence, and by that repre- sentation obtained the goods ; it was held that these were false pretenses^ within the statute. Solomon Valentine's case, 4 City Hall Recorder, 33. Before Golden, Mayor. Neva York, March, 1819. \l^l- 25. To sustain an indictment for obtaining money or goods hy false pretenses, it is incumbent on the public prosecutor to show that the false pretense, laid in the in- dictment, was the sole inducement to. the parting with the money or goods. William Davis" case, 4 Oity Hall Be- corder, 61. Before Golden, Mai/or. New York, April, 1819. ^J; 26. No false pretense, made after the delivery of goods, can support an indictment for obtaining such goods by false pretenses. James Gonger's case, 4c. City Hall Be- corder, 65. Before Golden, Mayor. New York, May, 1819. 27. The false pretenses must be predicated on some mat- ter or thing pretended then to be in existence, but which in truth was not. id. 28. An indictment for this offense should contain a fall, explicit and categorical denial of the truth of the pretense or pretenses charged. id. 29. The false pretenses charged in the indictment should be denominated as such, and not as a false represent- ation, id. 30. An indictment which alleged that the defendant pretended that he was a man of wealth and credit — and, in a subsequent part, contained an explicit averment that he was not — is thus far sufl&cient; but where the indictment further alleged that the prosecutor, trusting to the prom- ises and assurances of the defendant, and being deceived hy Ms false pretenses, delivered the goods, it was held insuf- ficient, id. JJ°J; 31. The indictment should allege that the false pretense ot pretenses charged was, or were, the induce- ment to the delivery of the goods. id. 32. Whether the false pretenses charged in the indictment 328 FALSE PEETENSES. wereof a nature calculated to deceive the party, and induce him to part with his property, is a question of fact for the jury. Afiraham Collins' case, 4 City Mall Recorder, 143. Before Golden, Mayor. New York, November, 1819. 33. The false pretense or pretenses charged, must be the inducement to the parting with the property. id. 34. Though a civil suit might not lie against a man who had represented an article in his possession, and sold or exchanged by him, to be of a quality different from what it was, either for a fraud or on the warranty, still, a pros- ecution for obtaining goods by false pretenses may be sustained, in a case where a false representation is made relative to the quality, in conjunction with other false representations, not predicated on the article, should the jury believe that such false pretenses induced the deliv- ery of the prosecutor's goods. id. 35. Evidence of any false pretense made by the de- fendant, after the goods were obtained, is inadmissible, for the purpose of proving the charge of obtaining goods by false pretenses. id. 36. The proof of the negations, in an indictment for this offense, if but slight, is sufBlcient to throw the burden of proof on the side of the defendant. id. 37. In a prosecution for obtaining goods by false pre- tenses, the public prosecutor cannot, for the purpose of establishing the scienter, show that the defendant, for the purpose of obtaining the goods, made the same pretenses set forth in the indictment to a person not named therein, id. 38. Though a man who has no funds in a bank gives his check, and receives the money for it, yet if, before the time the money is received, he makes no false representa- tion that the money to meet the check was in such bank, a prosecution against him for obtaining the money by false pretenses cannot be maintained. John Stuyvesant's case, 4 City Hall Recorder, 156. Before Golden, Mayor. New York, November, 1819. FALSE PEETENSES. • 329 39. A false representation made after the property has been obtained, is not a false pretense, within the statute, id. fs'j^; • 40. Though the false pretense charged must be the sole inducement to the parting with the goods, yet every accidental circumstance which, in conjunction with • the false pretense, influenced the delivery, need not be alleged. Robert W. Steel's case, 5 City Hall Becorder, 5. Before Golden, Mayor. New York, February, 1820. 41. Where one by a false pretense obtained property, in which he succeeded with the greater facility by reason of his being recognized by the prosecutor as having been in his store before, it was held, that this was but a circum- stance incidental to the delivery, and not such an induce- ment as required to be noticed in the indictment. id. ■^^; -42. W., the owner of goods, on going to a foreign port, left them in charge of T., a clerk, from whom they were obtained by false pretenses, and the indictment alleged that the prisoner so obtained them with an intent to de- fraud T. It was held, that the indictment, in that respect, might be maintained. Benjamin Pindar's case, 5 Oity Rail Becorder, 74 Before Golden, Mayor. New York, May, 1820. fj'j",- 43. For a man falsely to pretend that he is cap- tain of a vessel from a foreign port; just arrived, and, by that means, to obtain -goods, is a false pretense within the act. Samuel Smith's case, 5 Oity Hall Becorder, 180. Be- fore Golden, Mayor. New York, January, 1821. {l^ 4A. On the trial of an indictment for false pretenses, in obtaining from the captain of a vessel certain goods belonging to the firm of S. & T., stating that he had been sent by them for the property, and one of the partners was introduced as a witness, who testified he did not send for them by the prisoner, and he thought it probable his partner was out of the city at the time, but could not say with certainty, it was held, such evidence was prima facie sufficient to convict the prisoner; and the onus probandi was thrown upon the accused to prove by the other, part- S30 * FALSE PRETENSES. ner he was sent for the goods by him. People v. Tilton, 2 Wheel. Oases, 251. Biker, Recorder. New Tork, Jari' uary, 1823. ^mt 45. If, after effecting insurance on certain articles against their loss by fire, the defendant shall willfully and corruptly affirm as to the loss of an article not destroyed; and on presenting such affirmation, (one being required by the rules of the company,) shall receive from its offi- cers the amount of such article, by means of such affirma- tion, he is guilty, under the act, of obtaining that amount by false pretenses. People v. Byrd, 1 Wheel. Cases, 242. Hiker, Recorder. 'New York, March, 1823. fsl^: 46. Where the defendant falsely stated that he was a grocer, and that he resided at a particular place ; held a false pretense, under the statute, and not a mere naked falsehood. People v. Dcdton, 2 Wheel. Cases, 161. Riker, Recorder. New York, December, 1823. 47. The question whether a pretense was such an one as might have been guarded against by ordinary prudence, is a question exclusively for the jury; except where it is manifestly such an one as could not, by possibility, deceive a man of common sagacity ; in which latter case, it seems, the court will arrest the judgment. id. 48. The false preteiises set forth in the indictment must be the sole inducement to the parting with the goods ; and if it appears that any act or declaration of the prisoner, forming part of the res gestce, and not set out in the. indict- ment, formed part of the inducement, the prisoner is en- titled to an acquittal. id. ifa^: 49. "Where it appeared the prisoner came into a store and told the keeper that a customer of the store had senUhim for goo'ds, and in consequence of such falsehood uttered by the prisoner, the storekeeper delivered him the goods, it was held, that where a person obtains goods under a false pretense, which pretense is the inducement for part- ing with the property, such a case falls within the statute for punishing the obtaining of goods by false pretenses, and FALSE PEETENSES. 331 is not larceny. People v. French, 2 Wheel Gases, 259. Biker, Recorder. New York, January, 1824. 'S: '50. The obtaining of an indorsement to a promissory note by false pretense and with a fraudulent intent, and which the party obtaining it has actually used for his own benefit, is within the spirit of the act rendering punishable the obtaining by false pretense money, goods or chattels or other effects ; the words other effects, in our statute, are equivalent to the words or other valuable thing, in the Brit- ish act. People v. Stone, 9 Wend. 182. Supreme Court, May, 1832. (See 3 R. S. 5th ed. 956.) 51. Whether a note or indorsement, of 'which no use has been made, can be considered either money, goods, chattels, other effects, or valuable thing ? Quere. id. 52. By the Revised Statutes, the obtaining by false pre- tense the signature of a person to a written instrument, is classed with the obtaining of money by false pretenses, id. S 53. The statute against obtaining goods by false pretenses, extends to every ease where the party has ob- tained money or goods by falsely representing himself to be in a situation in which he is not, or by falsely represent- ing any occurrence that has not happened, and to which representation persons of ordinary caution may give credit. People V. Haynes, 11 Wend. 557. Supreme Court, May, 1833. 54. In an indictment for obtaining goods by false pre- tenses, all the false pretenses relied on to support the in- dictment and to convict the accused, must be specifically negatived; but to authorize a conviction, it is not neces- sary to prove all the pretenses laid in the indictment to be false, unless all are material to constitute the offense charged. id. 55. Where one or more of the pretenses are proved to be false, and the pretense or pretenses thus proved to be false are sufficient per se to constitute the offense, the accused will be convicted, notwithstanding that the public prosecutor fails in proving to be false other pretenses 332 FALSE PEETENSES. alleged in the indictineiit ; such other pretenses will id such case be regarded as surplusage. id. 56. It is not necessary to a conviction, that the pretenses proved to be false should be the sole or only inducement to the credit or delivery of the property ; it is enough if they had so material an effect in procuring the credit or induc- ing a delivery of the property, that, without their influence upon the mind of the party defrauded, he would not have given the credit or parted with the property. id. 57. Where, after goods were bought of a mercantile firm, put up in a box directed to the purchaser at his resi- dence, and by his direction sent on board of a steamboat, the vendors having become alarmed as to the credit of the purchaser, determined to reclaim the goods, and told the purchaser they could not deliver them, as they had heard that he had had a note protested ; and the purchaser there- upon made representations as to his pecuniary situation, which induced the vendors to deliver to him the receipt for the goods given by the master of the steamboat, to give him an invoice of the goods, and to take his note for the purchase money ; it was held, on an indictment against the purchaser for obtaining the goods by false pretenses, that the transmission of the goods to the steamboat pre- vious to the representations of the purchaser alleged in the indictment as false pretenses, was not such a delivery of them as to disprove the allegation in the indictment that they were delivered to the purchaser upon the faith of the false pretenses. id. °ll\ 58. In an indictment under the statute for obtain- ing by false pretenses the signature of a person to a written instrument, it is not necessary to charge loss or prejudice to have been sustained by the prosecutor ; the offense is complete when the signature is obtained by false pretenses, with intent to cheat or defraud; and it is not essential that actual loss or injury should be Sustained. People v. Genung, 11 Wend. 18. Supreme Court, October, 1833. 59. A party charged with having obtained the signature FALSE PRETENSES. 333 of a person to a note, by false pretenses, is not at liberty to introduce his own books of account to show the state of accounts between him and the prosecutor, unless ac- companied by proof aliunde of the real situation of the accounts. id. 60. Evidence that the prosecutor of a criminal charge had offered to leave court and not appear as a witness against the party charged, in casehe would settle with him the subject matter of the charge, is not admissible. id. Psl^. 61. On an indictment for obtaining by false pre- tenses the signature of a party to a promissory note, where the pretense was that the prisoner had money in the hands of a third person, absent at the time, it was held that it was not 'material to prove the amount represented to be the identical sum stated in the indictment; that it was enough if it was sufficient to meet the payment of the note which the party was induced to sign.. People v. Her- rick, 13 Wend. 87. Supreme Court, October, 1834 62. It is competent for a party whose signature has been fraudulently obtained, to state the reasons why he did not confide in the personal responsibility of the accused. id. 63. If the accused attempts to show his ability to pay, the proof must be limited to the time when the signature was obtained. id. 64. A false representation authorizes the inference of an intent to defraud. id. 65. It is not necessary to a conviction, that the false pretenses should be the sole inducement to the signing of the note; if they have a controlling influence in inducing the signature it is enough, although minor considerations operate upon the mind of the party. id. 66. "Where the signature to a note has been obtained by false pretenses, and the party defrauded has been obliged to pay the note, the indictment may charge the sum paid to have been obtained by false pretenses, without setting forth the obtaining of the signature. id. Jifj 67. An indictment for obtaining goods or the $ig- 334 FALSE PEETENSES. nature of a party to a written instrument, by false pre^ tenses, &e., must contain all the material facts and circum- stances which the public prosecutor will be bound to prove, to produce a conviction ; it must show upon its face that the offense charged has been committed, or, in the language of Lord Mansfield, it must be an intelligible story, so explicit as to support itself. People v. Gates, 13 Wend. 311. Supreme Court, January, 1835. 68. "Where the treasurer of a religious corporation pre- sented to the president thereof a bond for the payment of money, purporting on its face to be made in pur- suance of a resolution of the consistory of the church, and obtained his signature thereto, and the treasurer was indicted under the statute punishing the obtaining of sig- natures to written instruments by false pretenses, kc, it was held that it was not enough to allege in the indictment the presentment, of the bond to which the signature was obtained, calling it a false writing; that by color thereof the signature was obtained ; that the president believed it to be a true instrument, and also believed that its making and presenting had been authorized by the consistory of the church, although it was charged that the treasurer knew it to be a false writing, and that the issuing thereof was not authorized by the consistory ; and that he, in fact, had no warrant or authority for the making of the bond or the obtaining of the signature. And it was further held, that the material facts and circumstances appertain- ing to the transaction should have been averred with due certainty, so as to show how the presentation of the bond operated to effect the fraud. id. 69. Although the facts and circumstances are such as fully to establish the offense, they are not admissible in evidence, if omtWeci to be set forth in the indictment; and it was accordingly held, in this case, that evidence that the defendant was treasurer of the corporation, that it was his duty to prepare such bonds and notes for signature as the corporation had resolved to execute, and to present them to . FALSE PEETENSES. 335 the president for signature, and tliat the president never did execute such instruments but upon the representation of the treasurer that they were duly authorized by the cor- poration, or by a majority of the members of the board, was inadmissible, because not averred in the indict- ment. . id. 70. Had it been alleged in the indictment that, in the ordinary course of the business of the corporation, such instruments were executed upon the representation of the treasurer that they were duly authorized, it seems that the evidence of the president that he never executed such instruments unless such representation was made, would have been held competent, although he had no distinct recollection of the particular transaction under inquiry. Such evidence, in itself, would not, however, be enough to convict, but would be admissible as a link in a chain of circumstances. id. 71. A writing in the form of a bond, neither having the signature, or purporting to have the signature of any person attached to it, is not a false writing, within the meaning of the statute. To constitute it such, it must be some instrument, letter, or other writing false in fact, but purporting to have been signed by some person, and to be his act, and go framed as to have more weight and influ- ence in effecting the fraud of obtaining a signature to a written instrument, or goods, &c., than the mere naked assertion of the party defrauding. id. 72. Proof that a party from whom a note was obtained by false pretenses, has been subjected to a suit, or to the payment of the money specified in the note, is inadmissi- ble, unless there be a count for obtaining money by false pretenses. id. 73. Admissions made to a clergyman may be received in evidence in a criminal case, if not made to him in his professional character, va. the course of discipline enjoined hy his church. id. Si; 74. "Where a purchase of merchandise is made. 336 FALSE PEETENSES. • the goods selected, put in a box, and the name of the purchaser and his place of residence marked thereon, and the box containing the goods sent by the vendor and put on board of a steamboat designated by the purchaser to be forwarded to his residence, the sale is complete, and the goods become the property of the purchaser. People v. Haynes, 14 Wend. 546. Court of Errors, December, 1835. 75. And where, after such delivery, the vendor, on re- ceiving information inducing him to suspect the solvency of the purchaser, expressed an intention to reclaim the goods, and the purchaser thereupon made representations in respect to his ability to pay, by means of which the vendor abandoned his intention ; and the purchaser was then indicted, charged with the offense of having obtained the goods hy false pretenses, the representations made by him being alleged as false pretenses ; it was held, that the sale being complete before the representations were made, the defendant could not be considered guilty of the crime charged against him. id. 76. The offense consists in intentionally audi fraudulently inducing the owner to part with his goods or other things of value, either by a willful falsehood or by the offender's assuming a character he does not sustain, or by represmit- ing himself to be in a situation which he knows he does not occupy. (Chancellor's opinion.) , id. 77. The words other false pretenses in the statute, con- sidered in connection with the other terms used, and the circumstances under which the statute (30 Geo. 2) was passed, upon which ours was founded, mean not a hare naJced lie, unaccompanied with any artful contrivance fitted to deceive, although intentionally and fraudulently told, with the purpose of obtaining the property of an- other ; but they mean an artfully contrived story which would naturally have effect upon the mind of the person addressed, equivalent to a false token or false writing— an ingenious contrivance, an unusual artifice, against which common sagacity and the exercise of ordinary FALSE PEETENSES. 337 caution is not a sufficient guard. (Senator Tracy's opin- ion.) id. {^^' 78. An indictment will not lie for obtaining money by false pretenses, where tbe money is parted with as a charitable donation, although the pretenses moving to the gift are false and fraudulent. People v. dough, 17 Wend. 351. Supreme Court, July, 1837. (The legislature in 1851 enacted that section 53, the one construed by the court in this case, shall apply " to every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property or valuable thing, for any alleged chari- table or benevolent purpose whatever." See 8 K. S. 5th ed. 956.) g|: 79. To bring a case within the statute punishing the obtaining of the signature of a person to a written in- strument by false pretences, the instrument must be of such a character as that it may work a prejudice to the property of the person affixing the signature, or of some other person. People v. Q-alloway, 17 Wend. 540. Supreme Court, October, 1837. 80. A deed of lands by a wife, conveying real estate belonging to her in her own right, executed by her with her husband, at the solicitation of the husband, under the pretense that it was a deed of lands belonging to him, but not acknowledged by the wife in the mode prescribed by law for passing the estate of a feme covert, is not such an instrument as is contemplated in the statute. id. ^l 81. On an indictment against two for felony, (in this case for obtaining money by false pretenses,) and a separate trial of one of the defendants before the arraign- ment of the other on the motion of the prosecutor, the defendant not arraigned is not a competent witness for the other, notwithstanding the statute securing in such 23 338 FALSE PEETENSES. cases a separate trial. PeopZe v. Williams, 19 Wend. 377. Supreme Oov/rt, May, 1838. UI41.' 82. An indictment lies for obtaining goods hy false pretenses, T^^here a party represents himself to be the owner of property which does not belong to him, and thus fraud- ulently induces the owner to sell the goods to him on credit. People V. Kendall, 25 Wend. 399. Supreme Court, May, 1841. 83. Although a minbr, within the age of twenty-one years, cannot be made responsible civiliter for goods thus obtained, he may be proceeded against criminaliter, under the statute, in respect to obtaining goods by false pre- tenses, id. 84. A person is thus privileged in a degree when under the age of fourteen ; for then he is presumed to be doli incapax, and the prosecutor must show, affirmatively, to the court and jury, that his understanding has reached to sufficient maturity and strength to distinguish between good and evil. The evidence of malice will supply age. id. ^jJl; 85. A false representation tending merely to induce one to pay a debt previously due from him, is not within the statute against obtaining property by false pretense, though payment be thereby obtained. People v. Thomas, 3 Mill, 169. Supreme Court, July, 1842. 86. Accordingly, where an indictment charged that T., who held a promissory note against J., which was due, called for payment, and with intent to defraud J., falsely represented the note to have been lost or burned Tip, whereby the latter was induced to pay it ; held insufficient to spstain a conviction, as not showing any legal injury re- sulting to J., nor an intent on the part of T. to work such injury. ' id. 87. So, semble, even had the indictment contained the additional fact that T., after obtaining payment of the note, negotiated it to another for value without notice of its hav- ing been paid ; especially, if there was no averment that T. designed negotiating it when hemadethe representation, id. ^^ 88. A representation, though false, is not within FALSE PRETENSES. 339 the statute against obtaining property, &c., by false pre- tenses, unless calculated to mislead persons of ordinary prudence and caution. People v. Williams, 4 Hill, 9. Su- preme Court, October, 1842. 89. Accordingly, where an indictment charged the de- fendant with obtaining V.'s signature to a deed of lands, by falsely pretending that G., who held a bond and mort- gage against V., was about to sue him on the bond, fore- close the mortgage, &c., and that Gr. had so told the defendant ; held that the pretenses set forth were not suf- ficient to warrant a conviction, id. l^i 90. To sustain a criminal prosecution for obtaining the signature of one to a mortgage by false pretenses, the mere fact of the instrument having been signed is not enough ; a delivery must also be shown. Per Nelson, Oh. J. Fenton v. People, 4 Hill, 126. Supreme Gov/rt, Jan. 1843. 91. If the indictment, in such case, pursue the words of the statute by charging that the defendant unlawfully, &c. obtained the signature, it will be sufficient, though it do not aver a delivery in terms. id. 92. The indictment need not describe the premises covered by the mortgage. ' id. 93. The case of The People v. Wright, (9 "Wend. 193,) commented on and explained. id. ^w. 94. In an indictment for obtaining the signature of.a person to a written instrument by false pretenses, it need only appear that the instrument, on its face, is one calculated to prejudice the party who has signed it, though on the facts stated in the indictment it would be void for fraud. People v. Orissie, 4 Denio, 525. Supreme Court, May, 1847. 95. An indictment alleging that the defendants falsely pretended to a third person that a drove of sheep, which they offered to sell him, were free from disease and foot ail, and that & certain lameness, ap'parent in some of them, was owing to an accidental injury, by means of which they obtained a certain sum of money on the sale of said 840 EALSE PRETENSES. sheep to said person, with proper qualifying words, and an averment negativing the facts represented, is good under the statute against cheating by false pretenses, id. iffs'. 96. A. was indicted in the city of New York for ob- taining money from a firm of commission merchants in that city, by exhibiting to them a fictitious receipt signed by a forwarder in Ohio, falsely acknowledging the deliveiy to him of a quantity of produce for the use of and suhgect to the order of the firm. The defendant pleaded that he was a natural born citizen of Ohio, had always resided there, and had never been within the state of New York ; that the receipt was drawn and signed in Ohio, and the offense was committed by the receipt being presented to the firm in New York by an innocent agent of the defendant, em- ployed by him while he was a resident of and actually within the state of Ohio ; held that the plea was bad, and that the defendant was properly indicted in the city of New York. Adams v. The People, 1 Gomst. 173. Court of Appeals, January, 1848. 97. Where an off'ense is committed within this state by means of an innocent agent, the employer is guilty as a principal, though he did no act in this state, and was, at the time the off'ense was committed, in another state, id. 98. In such case the courts of this state have jurisdic- tion of the offense, and if the offender comes within the limits of the state, they have also jurisdiction of his per- son, and he may be arrested and brought to trial. id. 99. Where an offense is committed within this state, whether the offender be at the time within the state, or be without the state and pepetrates the crime by means of an innocent agent, it is no answer to an indictment that the offender owes allegiance to another state or sover- eignty, id. "185?: 100. Where, in an indictment for false pretense in obtaining the signature of the prosecutor to a deed, the indictment did not allege that the grantor in the deed owned or claimed any title to the lands conveyed thereby; FALSE PEETENSES. 341 and the description of such lands was in the most general terms, as certain lands' in the state of Texas and United States of America ; and the date of the deed was nowhere averred, so that it would be impossible to identify the in- strument ; and it did not appear that the deed would tend to the hurt or prejudice of the prosecutor ; it was held, in the absence of any averment that the deed could not be more particularly described, that the indictment was de- fective. Dord V. People, 9 Barh. 671. Swpreme Court, New York General Term, June, 1851. fal"!; 101. To constitute 'the crime of obtaining property by false pretenses under the statute, two things are essen- tial, viz : a false representation as to an existing fact, and a reliance upon that representation as true. People v. Tompkins, 1 Pa^k. Qrim.Bep. 224. AtOhambers, Before Edmonds, J. February, 1851. 102. Where, from the depositions taken before the po- lice justice, it appeared that 1>I". agreed to sell to T. one hun- dred 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 statement, K". there- upon transferred the stock to T. ; held, that it was appa- rent that IsT.'s reliance was on the promise and not on the representation that the check had been sent to be certi- fied, 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. id. \X: 103. In an indictment for obtaining property by false pretenses, it is sufficient to allege that the property was delivered to and obtained by the defendant by means of the false pretenses particularly stated and negatived, without setting forth whether the property was so obtained by a sale or bailment, or otherwise ; and on the trial, under such an indictment, it is competent to prove in what man- . 342 FALSE PEETENSES. ner the property was obtained, whether by sale or bail- ment, or in any other way. Skiff v. The People, 2 Park. Orim. Rep. 1,39. Supreme Court, Albany General Term, September, 1853. 104. "Where, in such case, the indictment charged the pretense of owning two pieces of land in the town of Easton, in the county of "Washington, designated them as the " home farm" or place, and the "Van Schaack farm," the description was held to be sufficiently definite. id. 105. "Where the property was obtained on credit, and the person parting with the property was to receive a note payable at a bank, on which he could get the money, it was held to be competent for the public prosecutor to prove that the note was not paid, though the fact that the note was not paid was not alleged in the indictment, id. 106. It is not necessary to negative all the pretenses in an indictment for such an offense, nor to prove all that are negatived to be false. id. 107. Whether the prosecutor used, ordinary prudence and diligence, in inquiring into the truth of the pretenses, and whether the pretenses were sufficient to deceive, are questions of fact for the jury. id. 108. "Where it appeared that the false* pretenses were made, and the property obtained by them was delivered in the county of "Washington, that was held to be the proper county for the trial of the offense, though it 'ap- peared that by agreement of the parties the note given for the property was not made and delivered till a subsequent time and in a different county. id. ?854: 109' ^^ t^'s t"^l of an indictment for obtaining an indorsement of a note by false pretenses, it is proper for the prosecutor to state, as a witness, what influence the representations of the defendant had upon him, by way of inducing him to indorse the note. People v. Miller, 2 Park. Orim. Hep. 197. Supreme Court, Monroe General Term, December, 1854.- 110. "Where,* on such a trial, it had been charged in the FALSE PRETENSES. 348 iadictment, and was proved on the trial, that the defend- ant obtained the indorsement by representing, among other things, that all his last year's debts had been set- tled and paid, it was held, that such representations could not be shown to be false, by proving a specific indebtedness existing at the time, unless the existence of such specific indebtedness had been alleged in the indictment. fglJ: 111. Where, on the trial of an indictment for ob- taining property by false pretenses, it appeared that certain bills, purporting to have been issued by a foreign bank, had been transferred under certain representations alleged to be false, and the material questions to be decided were, whether there was any such bank in existence, and whether it was solvent, it was held not to be competent to prove by a broker that, in his opinion, bills of that description never had any value, the broker not having shown any knowledge on the subject, except that he had been for twelve years a money broker, had bought and sold bank bills, and in April or May previous had been offered, and had refused to take, bills of the description in question. The People v. Chandler, 4 Park. Grim. Rep. 236. Superior Court of Buffalo, General Term, Becemher, 1856. ■J^JI' 112. An indorsement of a negotiable promissory note is a signature to a written instrument, within the meaning of 2 E. S. 677J § 53; 3 R S. 6th ed. 956; and obtaining such an indorsement by false tokens or pretenses, is punishable under that statute. .People v. Chapman, 4 Park. Grim. Rep. 56. Supreme Court, Cayuga General Term, June, 1858. 113. Where, in an indictment for obtaining an indorse- ment of a note by false pretenses, the note was set forth at length, and it thus appeared to have been made by the defendant, and payable to the order of the prosecutor, and there was no averment that the indorsement was made for the accommodation of the defendant, it was held that the indictment was defective for want of such averment, the presumption being, on the face of the note alone, that 344 FALSE PRETENSES. it was the property of the prosecutor at the time of hiS indorsement. This case distinguished from that of Fenton V. The People, (4 Hill, 126.) id. ^iit 114. The prisoner in this case having been in- dicted for obtaining money by false and fraudulent pre- tenses, in selling a false passage ticket from New York to Bremen, and it appearing in evidence, sufficient to submit the question to the jury, that the prisoner was acting in concert with another person, who acted as his clerk, and who carried on the negotiation, and consummated the sale with the applicant, in the German language, in the pres- ence and hearing of the prisoner, although it was not shown that the prisoner understood the German language ; •held, no error in the court, in charging the jury, to say that il; was not necessary, in making out false pretenses, that the words alone should be used ; the pretenses might be gathered from the acts as well as the words. A false- hood could be acted as effectively, in many instances, as it could be spoken. Fowler v. The People, 18 How. Prac. Bep. 493. Supreme Court, New York General Term, March, 1860. 115. It is not necessary, on an indictment for obtaining money on false pretenses, to prove all the false pretenses or representations alleged in the indictment. If any ma- terial portion of them, is proved it is sufficient. id. 116. Form of an indictment for obtaining the signature to a check, money contracts and other valuable things, by false pretenses. People v. Sully, 5 Parh. Grim. Rep. \43,. Superior Court of Buffalo, General Term, March, 1860. . 117. It is an offense within the statute against false pre- tenses, to effect a sale of a mortgage on real estate by falsely, willfully and designedly, representing and pretend- ing, with intent to cheat and defraud, that it is the first lien on the mortgaged premises, and thereby obtain money or other valuable things from the purchaser. id. 118. The sfktutory offense is complete when a person is FALSE PRETENSES. 345 induced to put his signature to a written instrument, or to part with his property, by a false pretense or represent- ation as to an existing fact, willfully and designedly made for the purpose of obtaining such signature or property, with the intent to cheat and defraud him ; and it is not necessary that the pretense or representation should be such that common prudence or ordinary care could have guarded against it, or that it should be accompanied by an " artful contrivance." It is sufficient if it be such that, if true, it would naturally, and, according to the motives which influence an honest mind, lead directly to the result alleged. id. 119. It is sufficient if the pretense be proved in sub- stance and effect. The precise words need not be used, and the pretense may be proved by the conduct and acts of the prisoner in connection with his statements. id. 120. It is not material to the question of jurisdiction where the pretenses were made. The obtaining of the signature or property by means of them, with intent to cheat and defraud, completes the crime and determines the place of trial. • id. 121. It is not essential to convict, under the statute, that actual loss or injury should be sustained. id. 0|5: 122. The statute (ch. 138 of 1853) "to punish gross frauds and suppress mock auctions," extends to no other frauds than such as were indictable at common law, except mock auctions. Banney v. The People, 22 N. Y. Bep. 413. Court of Appeals, December, 1860. 123. The obtaining of money by means of a represent- ation that the prisoner could give employment to the party defrauded, at a stipulated compensation in a certain locality, and cheating him into a contract for services to be rendered in another locality, is not indictable at com- mon law, or under the statute of false pretenses. id. ^l 124. Form of an indictment for obtaining money by false pretenses. People v. Smith, 5 Park. Orim. Bep. 490, Supreme Court, New York General Te^m, May, 1863. 346 FALSE PKETENSES. 125. It is no defense to a charge of obtaining money by false pretenses, that the person from whom the money was obtained by the prisoner was at the time indebted to the prisoner to an amount equal to the sum obtained by the false representation, and that it was the intention of the prisoner to apply such money on such debt. Suther- land, J., dissented. id. '^^t] 126. The indictment charged the obtaining of two hundred and fifty dollars from R, by means of a false pretense. The proof showed that the prisoner, who had induced R. to enlist, had in his hands three hundred dol- lars, which he told K belonged to him for his bounty money, and paid R. fifty dollars out of it, and on a false pretense obtained an assignment to the prisoner of the thre^ hundred dollars bounty money, upon which assign- ment the prisoner received the bounty money from the proper officer on the next day. Meld, that it was not erro- neous for the recorder to charge "that if,- at the time R. executed the assignment of his claim upon the county for three hundred dollars bounty, the prisoner had in his pos- session the amount of money mentioned in the indictment, and it was considered by both parties to belong to R., and the prisoner would have paid it over to R., except for the consent of E. that he might retain it, that was just as much an obtaining of the two hundred and fifty dollars, mentioned in the indictment, as if he had paid it over to R. and received it back from him." People v. Cooke, 6 Parh. Orim. Sep. 31. Supreme Court,- New York General Term, May, 1864. 127. In an indictment for having obtained money by false pretenses, it was charged that the prisoner falsely represented that he was a captain in the Sixth l^ew York Cavalry. Held, that the fact was a material one, and one by which a person of ordinary prudence might have been influenced, it .appearing that the money obtained by the pretenses was bounty money, ■ and that the person ftom FELONY. 347 whom the money was obtained expected to serve in a military company to be commanded by the prisoner, id. 128. Form of an indictment for obtaining bounty money by false pretenses. id, 129. Charge of the recorder explaining the rules of law applicable to such cases. id. Felony. fgg 1. A prisoner tried for felony, must be present on the taking of the verdict. People v. Perkins, 1 Wend. 91. Supreme Court, August, 1828. (See 3 E. S. 5th ed. 1027.) S; 2. In general, where an indictment charges several felonies in distinct counts, the court at the trial have a dis- cretion as to compelling the district attorney to elect under which count he will proceed. People v. Baker, 3 Sill, 159. Supreme Court, July, 1842. fff^ 3. An offense, in regard to which there is a discre- tion vested in the court to punish it, either by imprison- ment 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 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. Peo- ple V. Van Steenburgh, 1 Park. Crim. Rep. 39. Delaware Oyer and Terminer, September, 1845. Before Parker, J. 4. A violation of the seventh section of the act, enti- tled " An act to prevent persons appearing disguised and armed," passed January 28, 1845, is a felony; and the killing of a human being by persons engaged in the viola- tion of that section, though the act be perpetrated without any design to effect death, is murder. id. (Van Steenburgh was found guilty of murder, and the- court sentenced him to be hung. A full record of the case was, by the presiding judge, sent to the governor, who submitted the papers, for advisement, to the justices of the Supreme Court of the state, and • they concurred in the 348 FELONY. correctness of the decisions of the legal questions .which arose on the trial.) S' 5. In all cases of felony, before the passing of sen- tence, 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 no such demand was made, ought to appear upon the record. Safford v. The People, 1 Parle. Crim. Bep. 474. 'Superior Court, Saratoga General Term, May, 1854. S. 6. Receiving on storage for hire, or purchasing, grain by false weights, in the business of a warehouseman and merchant, was a misdemeanor at common law ; the offense being now made a felony by statute, the misde- meanor is merged in the felony. People v. Fish, 4. Park. Crim. Bep. 206. Supreme Court of Buffalo, General Term, October, 1854. fsl^: 7. A private person is permitted by law to arrest without warrant and take before a magistrate one who has committed a felony ; but for mere misdemeanor, after their commission, an arrest can only be made upon a warrant from a magistrate. People v. Adler, 3 Park. Crim. Bep. 249. Supreme Court, Monroe General Term, December, 1856. 8. The common law rule that petit larceny is a felony, has not been changed by the Revised Statutes, but remains in force in respect to all questions controlled solely by the common law. id. S 9- T^® judgment record, upon a conviction for fel- ony, need not state the constant presence of the prisoner during the trial. Stephens v. The People, 19 N. T. Bep. 549. Court of Appeals, September, 1859. is.' 10. Form of an indictment for feloniously remov- ing the dead body of a human being from the grave, for the purpose of dissection or sale, with a count for feloni- ously receiving a dead body, knowing it to have been felo- niously disinterred. (3 R. S. 5th ed. 968, §§ 13 and 14.) People V. Graves, 5 Park. Crim. Bep. 134. Supreme Court, Cayuga General Term, June, 1860 FELONY. 349 11. On the trial of such indictment, where the question of the identity of the body disinterred is submitted to the jury, it is not erroneous for the court to charge that it would be just as good to identify a foot or a hand as the whole person. id. fjIS: 12. A felony may be committed through the in- strumentality of an agent without the presence of the prin- cipal, when the agent is an innocent party; but if the person employed is guilty, he is the principal in the felony, and his employer is only an accessory. Wixson v. The People, 5 Park. Orim. Rep. 119. Supreme Court, Monroe Creneral Term, December, 1860. 13. So a felony may be committed by a person con- structively present, though not actually present ; but to be constructively present, he must be of the party and do some act in execution of the common design, or be near enough to the scene of operations to assist in carrying it out, or to aid those who are immediately engaged in it to escape, should necessity require. id. 186?!' 14. If a felony has actually been committed, an officer, in arresting the offender or preventing his escape, will be justified in taking his life, providing there is an absolute necessity for his doing so ; it is otherwise in case of an arrest for a misdemeanor. Conraddy v. The People, 5 Park. Crim. Rep. 234. Supreme Court, Orange General Term, September, 1862. 15. Where no process has been issued, a homicide can only be justified, even by an officer, by showing the actual commission of a felony, and that there was a positive necessity to take life in order to arrest or detain the felon, id. 16. It is not a defense to an officer, in such a case, to show that he had reasonable ground to believe that the deceased had been guilty of felony, and that he had also rea- sonable ground to believe that the deceased would other- wise accomplish an escape, id. fglJ 17. Procuring the intoxication of a sailor with the 350 FELONY. design of getting him on shipboard without his consent, and taking him on board in that condition, is kidnapping, under our statute, (2 E. 8. p. 664, § 28 ; 3 R. S. 5th ed. 943 ;) and it is immaterial whether the offender did the acts, or any of them, in person, or caused them to be done. Hadden v. The People, 25 N. T. Rep. 173. Court of Ap- peals, December, 1862. 18. "Where the intent and expectation is that the seaman will be carried out of the state, the offense is complete, although the ship be not, in fact, destined to leave the state. id. 19. Parol evidence is admissible of the destination of the ship, though the witness giving it state that he had cleared her at the custom-house, and the clearance was in writing. id. J5°J; 20. All who confederate together for the commis- sion of a felony, and are present aiding and assisting' in its perpetration, are, in judgment of law, equally guilty of the felony committed. Oarrington v. The People, 6 Parle. Grim. Rep. 336. Supreme Court, Urie General Term, No- vember, 1865. ^S'. 21. The prisoner was indicted, tried and convicted, in the New York general sessions, of assaulting and shoot- ing at Mrs. Baily with intent to kill her. The proof on the trial showed that the prisoner shot at Thomas J. Baily, intending to kill him only, and not Mrs. Baily. The ball missed Baily, and, passing beyond, hit his wife. The prisoner's counsel requested the court to charge the jury "that, if the prisoner pointed and fired a pistol at Baily alone, with intent to kill him or do him bodily harm, the prisoner cannot be convicted of shooting Mrs. Baily." The court refused so to charge. The prisoner was indicted under the statute. (2 R. S. 665 ; 3 R. S. 5th ed. 944.) To convict him, it must be proved that he violated one of its provisions. Shooting at Baily, with intent to kill him, and hitting Mrs. Baily by mere mistake, does not prove him guilty of shooting at her with intent to kill her. It is FOEaEET. 351 clear, however, that the prisoner, under this indictment, could have been convicted of the comnaon law offense of feloniously or unlawfully firing or striking at one and hit- ting another. The request of the prisoner was, in sub- stance, to charge that the prisoner could not be convicted of any offense for shooting Mrs. B. The request was too broad, and the court therefore committed no error in re- fusing , such charge. Hollywood v. The People, 40 N. T. Bep. 55, (3 Keyes.) Court of Appeals, June, 1866. F0B«BRT. ' woil !• Forging the following order : " Sir, the bearer, Mr. Richardson, being our particular friend, having occa- sion to proceed from New Tork to Philadelphia, we have requested him to call on you, desiring you to accept his draft on us on demand for fifteen dollars. Tour. compli- ance .will much oblige, sir, your humble servants. Gibbs & Ohanning," is not forging an order for the payment of money, within the statute. People v. Thompson, 2 John. Oases, 342. Supreme Court, July, 1801. Jjj»; 2. On an indictment for forging a cheok drawn in the name of a copartnership firm, on the President and Directors of the Manhattan Company, it was held that it was not necessary to set out the names of all the partners who composed the copartnership, or the banking com- pany. The People v. Curling, 1 J. B. 320. Supreme Court, May, 1806. J^°J; 3. Forging a paper in the following words : " Mr. Seward, sir, let the bearer trade 13 dollars and 25 cents, and you will oblige yours," &c., was held to be forging an order for the delivery of goods, within the statute. The People V. Shaw, 5 J. B. 236. Supreme Court, November, 1809. 4. Forging a paper as follows : " Due Jacob Finch, one dollar, on settlement this day," &c., is forging a note for the payment of money, within the statute. The People v. Mnch, 5 J. B. 237. Supreme Court, November, 1809. 352 FOKGERY fsi?: 5. Since the act of the 30th session, ch. 173, § 1, it is not felony, in this state, to utter and publish a forged note of the bank of another state, for the payment of a sum less than one dollar ; nor is a person possessing such a note, with intent to utter, it, indictable under the act of the 31st session, ch. 155, § 7. The People v. Wilson, 6 J. B. 320. Supreme Court, August, 1810. f??s. 6. An indictment for the forgery of a ten dollar bill will lie, where a genuine one dollar bill is altered to a ten. If a man passes such bill, there must, nevertheless, be suf- ficient testimony produced to convince the jury, either that he committed the forgery, or passed the bill knowing it to be forged. 8uch''knowledge may be derived from circumstances. Joseph Rhodes' case, 1 City Hall Recorder, 1. Before Radcliff, Mayor. New York, January, 1816. 7. If a man has in his possession and passes counterfeit bills, in the traverse of an indictment under the statute for having in his possession counterfeit bills, knowing them to be such, it is a matter of inference to be left with the jury, to be gathered from the whole circumstances of the case, whether he knew the bills to be bad. William Pierce's case, 1 Oity Hall Recorder, 2. Before Radcliff., Mayor. New York, January, 1816. Psfj 8. The forgery of a note, not payable in money, is merely a misdemeanor at common law. Atherton's case, 1 Qity Mall Recorder, 159. Before Radcliff, Mayor. New Yorjc, October, 1816. "fs'i"?' 9- To pass a false and forged check, payable in notes current at the several banks in the city of N'ew York, is not a forgery at common law, or within the stat- ute against forgery and counterfeiting. Robert Wade's case, 2 City Hall Recorder, 46. Before Rodman, Mayor. New York, March, 1817. 10. Where two, in concert, pass a counterfeit bill, and endeavor to escape, and in their several examinations give contradictory and unsatisfactory accounts of such posses- sion, these are strong circumstances of guilt. Solomon FOEaERY. 353 Reynolds and Elihu Dickinson, alias Ohamplwin's case, 2 City Hall Becorder, 47. Before Bodman, Mayor. New York, March, 1817. \^^f- 11. The forgery of an order for the delivery of goods, against a person who, by reason of a legal disa- bility, would not have been liable on such order, had it in truth been genuine, is within the statute. Joseph Heath's case, 2 City Sail Becorder, 54. Before Bodman, Mayor. New York, April, 1817. ^a^?; 12. "Where a prisoner was indicted for having a single counterfeit bank bill in his possession, with an in- tention of passing it, and it appeared in evidence that he had received it for the purpose of returning it to the per- son from whom it was said to have been received, and openly showed it as a bad bill, though it should further appear that a large quantity of false money was found in his house, in the state of 'Sew Jersey, and that he was largely concerned in the business of counterfeiting, it was held that the scienter was not sufficiently established to convict him. Simeon Van Houghton and John Harvey's cases, 2 Oity Hall Becorder, 73. Before Badcliff, Mayor. New York, May, 1817. 13. That a large sum in counterfeit money was found in the trunk of a prisoner, not within the jurisdiction of the court, will be admitted in evidence as a circumstance to show the scienter. id. 14 Where two persons are equally concerned in the business of passing counterfeit money, or having in pos- session, with an intention of passing it, though it should appear that one of the persons' only had the actual posses- sion of the money at the time of the arrest; still, on the trial of an indictment against both for having such money in possession, with an intention of passing it, he who h^id not the actual possession was held equally guilty with the other. id. •'™?: 15. To have a counterfeit bill in possession, pro- fessedly with an intention of selling it as counterfeit, is 23 ' 354 FORGERY. contrary to the express provisions of the statute, and 'in such case the intention is to permit, cause or procure such hill to he uttered and passed. David Mose^ case, 2 City Hall Recorder, 84. Before Badcliff, Mayor. New York, June, 1817. 16. Concealment, or an attempt to conceal false money, is a strong circumstance of guilt against a prisoner on the trial of an indictment against him for having counterfeit money in his possession, with an intention of passing it. Samuel Stewart's case, 2 Oity Hall Recorder, 87. Before Rodman, Mayor. New York, June, 1817. gfj. 17. Forging an order in these words: "Pay to John Low, or bearer, 1500 dollars in E". Myers' bills, or yours," is not within the act to prevent forgery, it not being an order for the payment of money, or the delivery of goods. People v. Farrington, 14 John. R. 348. Su- preme Court, October, 1817. 18. An instrument in writing, directing or requesting the payment of a specific sum in the bills of an individual, is neither an order for the payment of money, nor delivery of goods, within the statute. (Vol. 1 R. L. p. 405, § 1.) Daniel Farrington' s case, 2 City Hall Recorder, 155. Su- preme Court, October, 1817. •^g[j'' 19. The corporation of 'Sqw York authorized John Pintard, their agent, to issue bills, and he did so in this form : " The corporation of New York promise to pay the bearer seventy-five cents, on demand. Ifew York, Dec. 26, 1814," and signed them with his own name. It was held that such were not promissory notes for the payment of money, within the statute "to prevent forgery and counterfeiting." John Conner's case, 3 City Hall Recorder, 59. Before Colden, Mayor. New York, April, 1818. ^^l' 20. A master in chancery is not authorized by the statute relative to deeds to take the acknowledgment of a deed for land not within the state. Peter Faulkner's FOEGERY. 355 case, 3 City Hall Recorder, 65. Before Riher, Recorder. Mw York, May, 1818. 21. The instrument upon which an indictment for forgery is predicated, if created by statute, must be con- formable ,to its provisions ; and where the defendant was charged with the forgery of an acknowledgment to a deed of lands lying without this state, and the acknowledgment did not state that the officer taking the same knew the witness who swore that he saw the grantor execute the deed, it was held that the defendant should be acquit- ted, id. ^^l[ 22. To support an indictment for the forgefy of an order for the payment of money, under the statute, it is unnecessary that the name of a person in existence should be forged, if it appeared it was passed for the pur- pose of defrauding the bank ; nor is it necessary in an indictment at common law, for the forgery of an instru- ment purporting to be a receipt, that the name of the person against whom the instrument is alleged to be forged should be spelled right; for if the jury believe that his was the name intended, and that the prisoner had a crim- inal intent, either in the forgery or passing of such instru- ment, it will be their duty to convict him. John Grrant and Christian Hopper's cases, 3 City Hall Recorder, 142. Before Oolden, Mayor. Nev) York, September, 1818. 23. On the trial of an indictment at common law, for the forgery of an instrument, the public prosecutor will be allowed to recur to extrinsic evidence to explain and show the meaning and intent of such instrument. id. 24. Though on the trial of an indictment for passing a forged check it is not sufficient, generally, for the pub- lic prosecutor to show that the prisoner merely passed it, without showing in him a knowledge that it was forged, yet, in such case, very slight circumstances are sufficient to establish the scienter. Anthony V. Bartow's cases, 3 City Hall Recorder, 143. Before Golden, Mayor. New York, September, 1818. 356 FOEGERT. pg^l. 25. On the trial of an indictment for passing coun- terfeit money, for the purpose of establishing the scienter, the public prosecutor will be permitted to show that the prisoner, previous to the time laid in the indictment, passed other counterfeit bills ; but should it appear that these bills were passed at a time remote from the others, and no circumstance is produced on behalf of the prose- cution tending to establish the scienter in relation to the principal offense, the jury may acquit the prisoner, es- pecially if he is supported by testimony of good character. Ifennis Dougherty's case, 3 City Hall Be.corder, 148. Before GolSen, Mnyor. New York, October, 1818. 26. Where, in such case, no connection appears between the ofense laid in the indictment and that produced to establish the scienter, and the offenses appear distinct, however strong may be the evidence of the scienter applied to the accessory qffense, the jury will not be justified in finding the prisoner guilty of the principal offense ; other- wise a man might be convicted of a crime not charged in the inicdtment. id. "^it 27. The possession of a die, or other instrument for coining counterfeit Spanish dollars, with an indent to coin such money, is a misdemeanor at common law. John Btirke Mv/rphy's case, 4 Gity Mall Becorder, 42i. Before Colden, Mayor. New Tork, March, 1819. \lf^: 28. To sustain an indictment for forging and hav- ing in possession counterfeit bank bills with an intention to utter tiiem, it is necessary for the public prosecutor either to produce the bills laid in the indictment, on the trial, or to identify them with sufficient certainty. Eliza- beth Qoimer's case, 4 Qity Hall Recorder, 62. Before Golden, Mayor. New York, April, 1819. ^5: 29. A paper, purporting to be a power of attorney, authorizing the receipt of a pension due from the govern- ment to a wonnded seaman, not under seal, though forged, is not an instrument upon which an indictment for forgery under the statute can be predicated. John Gr. Scholte, FOEGERY. 357 indicted with Daniel Scott, 4 City Sail Becorder, 163. Be- fore Golden, Mayor, New York, November, 1819. 30. An indictment for feloniously forging an instrument which, is' not the subject of a forgery under the statute, cannot be sustained at common law. id. 31. During the trial a felony cannot be modified into a misdemeanor. id, fe. 32. Though a man may have been deceived in re-- ceiving a counterfeit bill, having paid for it the full consid- eration, yet, if he has afterwards reasonable grownda for believing it to be counterfeit and passes it, he subjects himself to the punishment prescribed by law for passing counterfeit money, knowing it to be counterfeit. James Qallaher and James McMroy's cases, 5 OityHall Becorder, 1. Before Colden, Mayor. New York, January, 1820. » 33. It is not necessary in such cases for the public prose- cutor to show that the prisoner knew, to an absolute cer- tainty, that the bill so passed was a counterfeit. id. 34. M., who had been deceived by a counterfeit bill, passed it to A., in New York, who gave him a draft on a house in Philadelphia, but shortly afterwards, discovering the bill to be counterfeit, directed his Philadelphia corre- spondent to withhold payment, and when M. called pay- ment was refused, whereupon M. commenced a suit for the recovery of the money, and on the trial A. produced ample testimony, establishing the bill so passed was a counterfeit, and a verdict was rendered in his favor. M. afterwards obtained possession of the bill, showed it to several persons, some of whom told him it was good and others that it was bad. G., at the instance of M. and in consideration of five dollars, to be spent between them, passed the same bill ; it was held, that the result of that suit furnished reasonable grounds for M. and G. to believe the bill counterfeit ; but as G. was a volunteer in the pass- ing of the bill, and M. had been originally deceived and had lost the amount, the jury convicted G. but ac- quitted M. id. 358 FOKGERY. 35. Where a man who had reasonable grounds for believ- ing a note bad, carried it to another and told him he wanted to know if it could be discounted, and left it for examin- ation, this is not a passing with intent to defraud. id. S: 36. The mere fact of passing a single counterfeit bill, not accompanied with circumstances, from which a distinction can be fairly drawn, that the prisoner knew it •to be bad, is insufficient to produce a conviction. Maria B. Tinger's cases, 5 City Hall Recorder, 74. Before Golden, Mayor. New York, May, 1820. 37. "Where a prisoner is tried the second time for pass- ing counterfeit money, the particular circumstances, upon which the former prosecution was founded, may be given in evidence. id. 38. It seems, however, that where a prisoner has been acquitted fronl such charge, that the jury ought not on the second trial to lay great stress on the circumstances of the former trial ; and the court will not go so far as to admit the former examination of the prisoner to be read. id. is 39. To constitute forgery, it is not necessary that the name of any person in existence should be forged ; for that the making a false paper and signing it with a fictitious name, with a felonious intent, was a forgery. William Riley's case, 5 City Hall Recorder, 87. Before Golden, Mayor. New York, June, 1820. 40. Where the prisoner, on passing false paper, alleges it to be that of a particular person in a particular street in a city, if "on the trial it appears that such a person re- sides in that street, some evidence should be produced by the public prosecutor to show the signature not to be that of such person ; but if no such person resides there, some evidence should be produced of the fact. id^ ^8^5; 41. Forgery of a deed within this state, for lands lying in the Missouri territory, or in another state, is an offense indictable and punishable under the acts to prevent forger}', and declaring the punishment of crimes. Peoplt V.Flanders, 18 J. R. 164. Supreme Court, August, 1820. FORGERY. 359 42. It is a general rule, that in an indictment for forgery tlie instrument forged should be described particularly. But if it is in the hands of the defendant, or. lost or de- stroyed by him, the indictment may show this excuse, and set forth the instrument in general terms, if it contain enough to show the offense. id. ^lUo'- 43. To constitute the possession of counterfeit money, it need not be found on the person ; it is sufficient if it be under the control of the prisoner; and this may be inferred from the circumstances. Elizabeth Oonnor's case, 5 City Hall Recorder, 115. Before Golden,, Mayor. New York, September, 1820. \l^l 44. A bill, alleged to be counterfeit, was set forth as a bill on a particular bank ; but, on the face of the bill, a joint promise was set forth, commencing with the words, "We promise to pay," &c,, to A. B., "at the bank," &c., and purporting to be signed by persons, as president and cashier, who were not, in fact, the officers of the bank ; and, for aught that appeared, mere fictitious persons ; it was held, that in such a shape the prosecution could not be maintained. It is true, that if ,a man fraudulently passes a false instrument, signed with the names of persons not in existence, he may be indicted and punished ; but then the indictment should square with the offense. An,- thony SilTcworth's case, 5 City Hall Recorder, 176. Before Golden, Mayor. New York, January, 1821. 45. Where a quantity of counterfeit bills is found in the possession of a man at one time, he cannot be sub- jected to more than one prosecution for counterfeiting, passing and having them in possession, with an intent to pass them, as this is but one offense. As well might a prisoner who should steal fifty several articles, at the same time, amounting in value to more than $25 each, be tried on fifty separate indictments. There is no difference in principle between the' cases. Loms Lampier's case, 5 City Hall Recorder, 179. Before Golden, Mayor. New York, January, 1821. 360 FOKGERT. %"]!■ 46. A note of the Montreal Bank, which contains a promise to pay A. B. or bearer $20, " out of the joint futids of the association," is the subject of an indictment under the first and ninth sections of " an act to prevent fol'gery and counterfeiting," (1 R. S. p. 404,) for it is a note passing from fhe hands of one person to another, and the circulation not prohibited by law. Eester Knapp's case, 6 Oity Hall Recorder, 18. Before Miker, Recorder. New York, April, 1821. 47. A counterfeit note of a particular bank, for the payment of a specific sum to A. or bearer, out of the joint funds thereof, according to the articles of the association, is the subject of a prosecution for passing and having it in possession, with an intention of passing, knowing it to be counterfeit, though at the time of passing it the bank be insolven't. Oharles Marshal's case, 6 Oity Mall Recorder, 23. Before Riker, Recorder. New York, April, 1821. JJlf; 48. To constitute forgery, it is immaterial whether the name forged be fictitious or not; it is sufficient if it be such a false instrument as a forgery can be predicated upon. William Gotobed's case, 6 City Hall Recorder, 25. Before Riker, Recorder. New York, May, 1821. 49. It seems that a letter between the christian and sur- name, forms no part of the name ; and where the name forged and set forth in the indictment was John Wardell, and it appeared in proof that a person wrote his name John N. Wardell, it was held that the jury might infer, from all the circumstances in the case, that he was the man whose name was forged. Further, that there was no variance between the indictment and the proof. id. 50. Where one was indicted for passing a forged bond in the city and county of New York, and it appeared that the instrument was first put into the hands of a person on Staten Island, by the prisoner, for money lent and ad- vanced, but that afterwards, while both the parties were in New York city, more money was advanced on the strength of the instrument to the prisoner, who then said that it FORGERY. 361 was a good bond, it was held that this was a sufficient passing in the city and county of New York. id. 51. To write an instrument fraudulently, over the sig- nature of another, which, if true, would be to his preju- dice, without his knowledge, is a forgery. John Martine's case, 6 City Sail Recorder, 27. Before Biker, Becorder. New York, May, 1821. ^ S; 52. Where one suspected at the police of being engaged in counterfeiting, for the purpose of taking away the odium, or for any other corrupt motive, puts in the possession of another person counterfeit money, and im- mediately conveys intelligence to the police, in conse- quence of which the person thus possessed of such coun- terfeit money is arrested and found in possession of it ; it was held that the jury might infer, from the circumstances, that the person so delivering the counterfeit money to the other, had it in his or her possession at a time anterior, with an intention of passing it. Hannah Conner's case, 6 City Sail Becorder, 51. Before Biker, Becorder. New York, July, 1821. 53. To constitute forgery, it is not essential that the handwriting should resemble his whose name is forged. Peter M. Dobb's case, 6 City Sail Becorder, 61. Before Biker, Becorder. New York, 1821. 54. The person whose name to an order for the de- livery of goods is forged, should have a right to order their delivery ; for it seems a mere request in writing, to deliver an article over which the drawer has no control, is not an order for the delivery of goods, and to make such instrument falsely is not forgery, id. 55. Thename.of the person to whom an order for the delivery of goods is sent should be given, and the article ordered should be described with certainty. id. 56. The order in this case, which was alleged to be forged, was in these words: "Please to let the bearer have a coUour red and white and oblige your frien. David Martling." id. 362 FOKGERY. ?82L 57. Though a counterfeit coin be very unskillfuUy executed, still the offense is complete, if such coin be so far finished, and in such a state that it is calculated to de- ceive; and w.hether it is or not, is a question of fact for the jury. Quin and Regan's case, 6 Oity Hall Recorder, 63. Before Riker, Recorder. New York, October, 1821. 58. In such case, to establish the scienter, the public prosecutor will be permitted to show that counterfeit bank notes were found in possession of the prisoner. id. Y^^\ 59. On the trial of a prisoner, charged with utter- ing and having in his possession, with the intention of uttering, a particular bill, before the district attorney can produce evidence that the accused had in his possession and uttered counterfeit bills not laid in the indictment, it is incumbent on him to show that the prisoner actually passed, or had in his possession, the bill laid in the in- dictment. Ubenezer Jones' case, 6 City Hall Recorder, 86. Be/ore Riker, Recorder. New York, November, 1821. fg|°: 60. On the trial of an indictment for passing coun- terfeit money, where it appears that the prisoner, in nego- tiating with the prosecutor in purchasing an article for which he afterwards passed the counterfeit money, told him he had not the money, but that if he could get it of a friend he would make the purchase, and then went into a house and returned with a counterfeit bill, which he passed to the prosecutor, and stating in his examination at the police that he got the five dollar bill passed by him on the prosecutor, of one Gr., who promised him $1 for passing it, and that G. had, at the time, counterfeit bills in his possession, which were offered to him at 25 per cent ; but he would not receive them for fear of getting .into dif- ficulty, and that he had seen persons apply to G. to pur- chase counterfeit bills; it was held, that it was proper evidence, on the part of the prosecution, for the purpose of establishing the scienter, to show that about the same time this purchase took place, two men, one of whom was G., were arrested in the same house, engaged in coin- FOEGERY. 363 ing counterfeit two shilling pieces ; and that, on being searched, counterfeit bank bills were found in their pos- session. Ebeneztr Jones' case, 6 City Hall Recorder, 99. Before Hiker, Recorder. New York, December, 1821. fg 61. An enactment, in the first count, charged the prisoner, substantially, with having forged and altered a bill of exchange, bearing date at Montreal, Canada, with intent to defraud the president, directors and company of the Montreal Bank, S. G., K. G., and other persons to the jury unknown. In another count he was charged with having passed the same bill, with intent to defraud the same bank, by its appropriate name, as above, S. G., R. G., N". P., S. "W". and J. S., and other persons to the jurors unknown ; and, in another count, he was charged with having passed the same bill, with intent to defraud P. W. and S., (a firm,) and K P., S. "W". and J. S., and the forgery, alteration and passing were alleged in the indictment to have taken place in the city of l^ew York. It was held, 1st. That if the jury believed the bill to have been altered in Canada, they ought to acquit the prisoner of the forgery and alteration. 2d. If they believed he passed the bill in New York, they ought to convict him for passing it ; and, 3d. That there was sufficient certainty in the indictment relative to those whom he intended to defraud. Jacob 8. Reddington's case, 6 City Hall Recorder, 107. Before Riker, Recorder. New York, January, 1822. f^- 62. If A. comes into the store of B., and in the presence of himself and a number of clerks, passes upon B. a counterfeit note, and B. puts the note into his drawer, where all his clerks have access, without putting a private mark upon it, A. cannot be convicted of uttering the note, because of the uncertainty of its being the same note passed upon B. People v. Lewis, 1 Wheel. Gases, 181. Riker, Recorder. New York, February, 1823. 63. On an indictment for passing counterfeit notes, upon a question whether a note passed by the prisoner to a third person has been destroyed by him, or whether the note 364 FOKGEEY, was counterfeit, is a proper subject for thie consideration of a jury. People v. Warner, 1 Wheel Cases, 186. Biker, Recorder. New York, Fehrua/ry, 1823. ^li^: 64'. The crime of forging and passing a forged note,' is to be made out from all the facts of the case ; and it is improper to ask a witness if he believed the defendant passed the note with inteat to defraud, for it was calling for the opinion of the witness where the intent was to be ascertained from all the circumstances of the case. Peo- ple V. De Graff, 1 Wheel. Oases, 203. Biker, Becorder. New York, March, 1823. S 65. On the trial of an indictment for forgery, where the witnesses disagree as to the genuineness of the signa- ture, comparison of hands is admissible, and the prisoner may prove by the cashier of a bank or others, who are in the habit of examining signatures with a view to detect forgeries, tbat the instrument alleged to be forged is not a simulated hand. People v. Mewett, 2 Park. Grim. Bep. 20. Saratoga Oyer and Terminer. Before Walworth, C. J. July, 1823. fs^; 66. Torging a receipt for a note of hand, which when paid will be in full, &c., does not come within the provision of the act "to prevent forging and counterfeit- ing," passed April 2, 1813, but it is a misdemeanor at com- mon law. The People v. Hoag, 2 Park. Crim. Bep. 36. Oneida Oyer and Terminer. Before Walworth, G.J. Decem- ber, 1828. fl^; 67. Dates, sums and times of payment may be omitted, and parol evidence given of the contents. That the instrument forged was in possession of the party at the time he uttered and published it, is prima facie evidence that it continues under his control at the time of the trial. People V. Kingsley, 2 Gowen, 522. Supreme Court, Febru- ary, 1824. fsSf; 68. Certain coal being consigned to P., of ¥ew York, arrived there, and was claimed by another by the name of P., who resided in the same city; but was not FOEaERY. 365 tlie true assignee ; and he, knowing this, obtained an ad- vance of money, on indorsing the permit for the delivery of the coal, with his own proper name ; held that this was forgery, and not the merely obtaining goods upon false pretenses. People v. Peacock, 6 Oowen, 72. Supreme Court, August, 1826. fm 69. "Where an order for the delivery of goods was accepted and paid, and returned to the drawer, and the date of it subsequently altered by him ; such alteration was holden not to be forgery at common law, although manifestly done with a fraudulent intent. People v. Fitch, 1 Wend. 198. Supreme Court, August, 1828. (See 3 R. S. 5th ed. 951.) 70, To constitute forgery in such case, the act must have a tendency to effectuate the intended fraud. id. 71. An order satisfied by the delivery of the goods, in the hands of the drawer, in legal acceptation is no instru- ment, and an alteration of its date is no false making ; it is what it purports to be. id. S: 72. The forgery of a writing purporting to contain a mere naked promise to pay a sum of money in labor, expressing no consideration, and being connected with no consideration by an averment in the indictment, is not an indictable crime. People v. Shall, 9 Cowen, 778. Supreme Court, November, 1829. 73. Forging any instrument or writing which it appears on the face of the indictment would have been void, if gen- uine, is not an indietable crime. id. JJJJ' 74. Where a person for a series of years forged the name of his friend as th« indorser of his notes and bills, with the knowledge of his friend, who, although judgments were obtained and executions issued against him in suits on such forged indorsements, never dis- avowed such acts until the person committing the forge- ries had absconded and fled from justice, it was held, in a case where the indorser was saed and suffered a default, and iattempted no defense until after the escape of the 366 FOEGEEY. maker of the notes, that proof of these facts was admissible in evidence, and that from it the jury might imply an au- thority from the indorser to the maker thus to use his name. Weed and Weed v. Carpenter, 4 Wevd. 219. 8u- preme Court, May, 1830. & 75. Where a party is charged vii^ forging or coun- terfeiting a checlc on a hank, it is sufficient in the indict- ment to allege that he falsely made, forged and counter- feited a certain chech, with the intention to defraud, &c., setting forth the check in Ticec verba, with the name of the drawer as appearing upon it ; and it is not necessary to allege, in the words of the statute, that it was an instru- ment or writing, being or purporting to be the act of another, by which a pecuniary demand or obligation is or purports to be created, &c., or by which rights or property are or purport to be transferred, &c., or in any manner affected, bound, or in any way injured in his person or property. People V. Bynders, 12 Wend. 425. Supreme Court, October, 1834. 76. It would be well in point of form, in such case, to charge in the indictment that the accused forged a certain instrument or writing, purporting to be the act of the party whose name is subscribed to it, by which a pecuniary demand or obligation is or purports to be created, and then to set forth the instrument or writing in hacverba. id. 77. An indictment under the Revised Statutes is not vitiated by pursuing the forms under the old statute, in charging that the prisoner made, forged and counter- feited, and caused or procured to be falsely made, forged and counterfeited, and willingly acted and assisted in the false making, &c. ; the latter charges being mere surplus- age, id. 78. An indictment for forging a check on a bank in the name of A. B. is not superseded by an indictment subse- quently found, charging the same party with personating A. B., and in such assumed character receiving a sum of money, although the money be alleged to have been re- rOEGERY. 367 ceived from the same individual alleged in the first indict- ment to have been defrauded by means of the check, and the amount thereof corresponds with the sum received by means of the check. id. 79. Offenses, though differing from each other and varying in the punishments authorized to be inflicted for their perpetration, may be included in the same in- dictment, and the accused tried upon the several charges at the same time, provided that the offenses be of the same character, and differ only in degree — as, for instance, the forging of an intrument, and the uttering and publishing it, knowing it to be false^ id. ^^' 80. An indictment, trial and acquittal for the for- gery of a certificate of deposit of money in a bank, is no bar to a subsequent indictment for an attempt to obtain money from anothor bank, by color of a forged letter in- closing the certificate of deposit, and desiring the amount to be transmitted to the writer of the letter. People v. Ward, 15 Wend. 231. Supreme Court, May, 1836, °|^ 81. In an indictment tor forging a promissory note, if the note be lost or destroyed, it is sufficient to set forth the substance thereof, alleging the loss or destruction of the instrument. People v. Badgley, 16 Wend. 53. ;8'm- preme Court, October, 1836. 82. The indictment will be sustained, although it does not allege that the note purported to be signed by the per- son whose name was forged ; if it set forth the purport of the note, giving the name of the maker as part of the description, it is sufficient. id. 83. Although in the indictment the note is described as made on the day of May, and the proof is that the forged note was dated on a particular day, a conviction will be sustained notwithstanding the variance, when a satisfactory reason for the omission of a more particular description is given in the indictment. id. 84. Where a forged note is passed to a sheriff by a debtor against whom the sheriff has execution, and the 368 FORGERY. question is submitted tO' a jury to determine whether the note was given for "ease and favor," and the transaction consequently void within the statute, and they convict the defendant charged with the forgery, the conviction will be held good. id.^ S 85. On an indictment here against a prisoner for having in his possession, with intent to pass, forged hank notes, purporting to have been issued by a banking cor- poration of a state other than that of New York, it is not necessary to show that there is in fact such a corporation in existence ; at all events, proof of the most general char- acter of its existence is sufficient. The People v. Davis, 21 Wend. 309. Supreme Court, July, 1839. 86. Where the direct charge rests for its proof upon the testimony of accomplices, such proof is sufficient to convict, if it be corroborated by the evidence of credible witnesses, although such evidence has only an indirect tendency to es- tablish the commission of the particular offense charged; as where the testimony of the accomplices fixes upon the pris- oner the charge of having in his possession counterfeit bills with the intent to pass, and the proof by the unimpeached witness shows that the prisoner was possessed of a press and plates used in making counterfeit impressions of bank bills. The confirmation of the accomplices must, how- ever, be of some fact or facts, which go to fix the guilt of the accused. id. 87. An indictment for forgery is good, if in it be set forth the instrument or writing alleged to have been forged, averring it to have been falsely made, with the intent to injure or defraud some person or body corporate, provided the instrument be such as on its face to show that the rights or property of such person or body corporate may thereby be injured or effected,; it is not necessary that the facts and circumstances of the case showing the intent should be specially set forth in the indictment; it is enough that they be given in evidence on the trial. Peo- ple V. Steams, 21 Wend. 409. Supreme Court, July, 1839. FORGEKY. 369 88. It was accordingly held in this case, in whicli the de- fendant was indicted for forging an instrument purporting to be a request from the cashier of a bank in. Kentucky to the cashier of a bank in New York, to deliver to engravers the plates of the bank for the purpose of having new im- pressions taken, that it was not necessary to allege either that there was such a bank in Kentucky, or that the person who purported to be the writer of the request was cashier thereof and had authority to make such request, or that there were stich plates in existence and in the possession or under the control of the cashier to whom the writing was addressed ; all this being matter of evidence, and not necessary to' be set forth in the indictment. id. 89. Extrinsic facts are necessary to be stated, only when the operation of the instrument upon the rights or prop- erty of another is not manifest or probable from the face of the writing. id. 90. It was further, held, that it was not necessary to aver in the indictment that the bank of Kentucky was a corpo- ration duly created ; that it was enough to allege that the instrument set forth was falsely made, with the intent to injure and defraud the bank ; and that under such allega- tion an exemplification of the act of incorporation was admissible in evidence. id. 91. The ease of The People v. Wright (9 "Wend. 193) examined and commented upon. id. °^l- 92. The uttering and publishing a promissory note with forged indorsements upon it, is an offense within the statute against forgery, although the passing of the note is accompanied with communications which would exoner- ate the indorsers if the indorsements were genuine ; if by possibility the indorsers may be injured, the crime is per- petrated. People V. Bathbun, 21 Wend. 509, Supreme Court, October, 1839. 93. The crime of uttering and publishing is not com- plete, until the paper is transferred and comes to the hands or possession of some person other than the felon, his 24 370 FOEGEEY. agent or servant ; thus, where a note or forged indorse- ments is sent by the felon per mail from one cownty to an individual in another coimty, for the purpose of obtain- ing credit upon it, the crime is not consummated until the note is received by the person to whom it was sent ; and the 'proper place of trial is the county to which the note was sent. . id. ^11: 94. To constitute the offense of forgery, in coun- terfeiting the notes of a bank, it is not- necessary that such bank as the notes purport to have been issued by, should have a legal existence ; it is enough that the notes purport to have been issued by a corporation or company duly authorized to issue notes. People v. Peahody, 25 Wend. 472. Supreme Court, May, 1841. . 95. Where, however, the intent is charged to have been to defraud the bank purporting to have issued the notes, the bank must be shown to be a real bodyj capable of being defrauded. In the case of an association under the gen- eral hanking law, it is enough for that purpose to prove the articles of association. ' id. 96. It was not important to prove that the bank had commenced business ; it is enough that it was in a con- dition in which it utiight be prejudiced by this act of the prisoner. id. ^^l\ 97. After notice of executing a writ of inquiry was served upon an attorney, he altered the figures indicating the day appointed for executing the writ, in order to make the notice apparently irregular, and with intent to defraud ; held not a forgery, either under the statute or at common law. The People v. Gady, 6 Mill, 490. Supreme Court, May, 1844. ^l; 98. A written instrument, to be the subject of indictment for forgery, must be valid, if genuine, for the purpose intended. If void or invalid on its face, and it cannot be made good by averment, the crime of forgery cannot be predicated upon it. People v. Sarrison, 8 Barh. 560. Supreme Court, Oswego General Term, May, 1850. FORGEBY. 371 99. Accordingly held, that an indictment would not lie for' forging a certificate of acknowledgment of a deed, which certificate did not state that the grantor acknowl- edged the execution of the conveyance. id, ■'i"a"5^; 100. An indictment for forgery lies for making and issuing a false instrument in the name of another, requesting persons to whom goods have been sent by the owner to deliver them to the defendant; the latter having induced the owner so to send the goods, by falsely repre- senting that he was directed by those to whom the goods were sent, to buy the same for theni. Harris v. The Peo- ple, 9 Barb. 664. Supreme Court, New York General Term, June, 1851. ^^; 101. On the .trial of an indictment for forgery, alleged in the first count to have been committed by tlie defendant, by having in his possession a forged bank note purporting to have been issued by a certain banking association, 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 insti- tution in existence, doing business in this state, without introducing in evidence the articles of association under which such bank was organized. Dennis v. The People, 1 Park. Grim. Bep. 469. Supreme Court, Oswego Q-eneral Term, April, 1854. fglJ; 102. Where, in an indictment for forgery under 2 E. S. 761, § 36 ; 3 R. S. 5th ed. 952, the intent charged is to defraud the bank by which the counterfeit bills pur- ported to have been issued, it is competent for the public prosecutor, on the trial, to prove by parol evidence the existence of the bank and the fact of its issuing bills, without producing an authenticated copy of its charter. The rule of evidence is the same, whether the intent charged be to defraud the bank or to defraud a third person. People v. Chadwick, 2 Park. Grim. Bep, 163. Supreme Court, Tioga Q-eneral Term, May, 1854. Pg^j^- 103. " I have bought of Earnhardt Krummer two 872 FOEGERY. frocks for $7. Ask your employers for the money, and let hini have it." (Signed) "Mrs. "Williams." B. K was indicted for forging this instrument, and for uttering it to Samuel Williams' Jr., (a son of Samuel Williams,) as the act of his mother. Held, that the instrument, in connec- tion with the intrinsic facts, was within the statute of forgery, and that an acquittal on the indictment, on the merits, was a bar to a subsequent indictment for obtaining the money from S. W. Jr., by the false pretense that the instrunaent was true. People v. Krummer, 4 Park. Crim. Hep. 217. Superior Court of Buffalo, Greneral Term, De- cember, 1854. 104. To constitute forgery of an instrument or writing, it is not necessary that the party in w;hose name it purports to be made should have the legal capacity to. make it, nor that the person to. whom it is directed should be bound to act upon it if genuine, or have a remedy over. It is the felonious making and uttering of a false instrument as true in fact, which constitutes the crime. id. 105. The same rule of pleading applies to criminal and civil cases, that the pai-ty committing the first fault shall have judgment rendered against him. id. 106. Therefore, in the case stated of the indictment for false pretenses, where the people demurred to the defend- ant's plea of a former acquittal, and it appeared that the indictment averred the money obtained to be the money of Samuel Williams, (the father,) but did not aver a bal- ance due the son for wages, or show otherwise how it was his money ; held bad, and that, irrespective of the ques- tion of the sufficiency of the . plea, the defendant was entitled to judgment. id. ""lass!"' 107. On the trial of a person charged with having in his, possession an altered and forged bank bill, with intent to pass the same as true, it is not competent for the prosecution to prove that, on searching the prisoner's wife, immediately after his arrest, there were found in her pockets parts of bank bills, apparently cut for the purpose FOEaEEY. 373' of making similar alterations, there being no evidence of any concert between the prisoner and his wife, or that ■ they were mutually engaged in altering bank biljs, or that either of them had any knowledge of the facts proved against the other; and where such evidence had been received, and the prisoner was convicted, the judgment was reversed. People v. Thorns, 3 Park. Crim. Bep. 256. Court of Appeals, March, 1855. 108. Form of an indictment for having in possession an altered and forged bank bill, with intent to pass the same, the bill purporting to have been issued by a bank in another state. id. "S' 109- It seems that it is a forgery for a person not the payee of a bill of exchange, but bearing the same name, to indorse and transfer it, knowing that he is not the person intended as the payee. Graves v. American Exchange Bank, 17 N. Y. Bep. 205. Qourt of Appeals, March, 1858. 'fs'^l; 110. It is no defense to an indictment for forgery, in which the prisoner was charged, under 2 R S. 672, § 30 ; 3 E. S. 5th ed. 950, with having made and engraved a plate in the form and similitude of a promissory note issued by an incorporated bank, without the authority of such bank, that the lettering and vignettes of such plate were diiferent from those of the genuine plate. Pictures, ornaments and devices, form no part of the contract impressed upon the plate. Exact similitude is not re- quired, even in the operative words of the instrument; it is enough that there be a sufficient resemblance, in con- nection with the other evidence, to satisfy the jury that thfi plate was intended to be used in striking off false bills, to be imposed on the public as true. People v. Osmer, 4 Park. Crim. Bep. 242. Superior Court of Buffalo, Criminal Term. Before Clinton, J. May, 1858. Jfj", 111. Bank notes wholly printed or engraved, are the subjects of forgery, and counterfeits of them, wholly printed or emgraved, made with the intent to defraud, aro 374 FOEGEET. forgeries, within the 33d section of 2 R. S. 673 ; 3 R. 8. 5th ed. 951. People v. Bhoner, 4 Fark. Orim. Bep. 166. Supreme Court, at Chambers. Before Sutherland, J. Jan- uary, 1859. 112. The prisoner was charged, under section 33 of 2 E. S. 673 ; 3 R. S. 5th ed. 951, with forging notes of the "Austrian National Bank," and under section 36 of 2 R. S. 674 ; 3 R. S. 5th ed. 952, with having such forged notes in his possession, with intent to utter them. It appeared that the notes of the "Austrian National Bank," including the signature of the "cashier director," were wholly printed or struck from an engraved plate, and the coun- terfeits found in the possession of tlie prisoner were evi- dently made in a similar manner. ILeld, that such bank notes were covered by the word "instrument," in section 33 referred to, though no part of them was written, and that the offense of counterfeiting them was forgery* under the statute. id. JJfj;- 113. A communication made to an attorney at law, by a person seeking professional advice or assistance, to enable him to forge a contract, is not privileged, and the attorney who was called as a witness can be required to disclose it. People v. Blakeley, 4 Park. Crim. Bep. 176. Supreme Court, Chenango General Term, May, 1859. ^iJjj; 114. On the trial of an indictment for uttering counterfeit bills or notes, it is not competent for the prosecution to prove the subsequent uttering by the pris- oner of other forged bills or notes, unless it oe shown that, they were of the same manufacture as those charged in the indictment, or are in some way connected with the offense charged. Dibble v. The People, 4 Park. Crim. Bep. 199. Supreme Court, Otsego General Term, July, 1859. SiS; 115. Form of an indictment for forgery in the first degree, charged to have been committed after a previous conviction for a felony. Vincent v. The People, 5 Park. Crim. Bep. 88. Supreme Court, New York General Term, FOKGERY. 375 December, 1860. (This case is also reported in 15 Abb. Prac. Eep. 234.) 116. In an indictment for forging a certificate of ac- knowledgment of a mortgage, it is necessary to allege that the officer whose act it purports to be was duly authorized to makp such certificate, and the omission to make such allegation is not supplied by setting forth the certificate in hcec verba, if the venue or name of the county is omit- ted in the certificate purported to have been made by a commissioner of deeds. id. 117. When the authority of the officer depends on local- ity, it must appear that he acted within the territorial limits prescribed by the statute ; and if this does not ap- pear upon the face of the certificate, the setting forth of the certificate in the indictment will not supply the omis- sion of a general allegation of authority. id. jJS7; 118. "Where, in an indictment for forgery, the coun- terfeit note, which it is charged the prisoner had in his possession, is set forth in hcBc verba, it is unnecessary to allege, in addition, that the note purported to be the act of another. Wilson v. The People, 5 Park. Grim. Rep. 179. Supreme Court, New York Q-eneral Term, November, 1861. 119. On the trial of an indictment for forgery, the^coun- terfeit note offered in evidence had upon its face the words, " Countersigned and registered in the bank department," and the signature of the register, "A. D. Ward." No such certificate or signature appeared on the note set forth in the indictment. It was held to be no variance, as the certificate of the register is no part of the note, and the note without the certificate of the register, if genuine and actually issued by the bank, would have bound the bank, and would have been the subject of forgery. id. fj'j^; 120. An order for the delivery of goods, though not on its face addressed to any person, is the subject of for- gery. It is sufficient if the order is of such a character that a person can, by the use of it, be deprived of property. 376 FORGERY. People Y. NoaJees, 5 Park. Crim. Sep. 291. Supreme Court, New York General Term, February, 1862j 121. "Where, in an indictment for forging an order, it was ch,a,rged that the prisoner's intent was to defraud the " Meriden Cutlery Company, and divers other persons to the jury unknown," it was held not^to be erroneous for the court to refuse to charge the jury that the Meriden Cutlery Company could not be regarded as the subject of fraud. id. 122. ISor was it erroneous in the court, to refuse to charge the jury that if the grand jury knew, at the finding of the indictment, whom the prisoner intended to defraud, he could not be convicted of an intent to defraud persons unknown, where no evidence whatever had been given to show that the grand jury had any knowledge of that kind. id. JJfJ' 123. On the trial of an indictment for having in possession a counterfeit bank note, with the intention of passing it, it is no defense that the bank note is not set forth in the indictment, and that no reason for omitting to set it forth is assigned in the indictment. Tomlinson v. The People, 5 Park. Orim. Rep. 313. Supreme Court, Neio York General Term, May, 1862. 124. Form of an indictment for forgery in passing a counterfeit bank, bill after a previous conviction for a sim- ilar offense. Cantor v. The People, 5 Park. Crim: Rep. 217. Supreme Court, New York General Term, May, 1862. 125. On the trial of an indictment for forgery in passing a couriterfeit bill, it had been proved, without objection, that aftei: the prisoner and B., his compaiiion, had been arrested and brought to the station house,, a boy came in and produced a roll of sixteen counterfeit bank bills, which he said B. threw away when in the company of the pris- oner, while they were in custody on their way to the station house. Afterward the public prosecutor offered to put such counterfeit bank bills in evidence, but the evidence was objected to by the prisoner's counsel : Held, that it FOKGEEY. 377 was still time to object to the introduction of the bills in evidence, notwithstanding the hearsay evidence of the boy had been received without objection; and the counterfeit bills having been received in evidence and the prisoner found guilty, the conviction was reversed and a new trial ordered. id. 126. Form of an indictment for forgery in the third de- gree, in forging and uttering a bank check. Clements v. The People, 5 Park. Crim. Bep. 337. Supreme Court, New York Greneral Term, May, 1862. 127. An indictment which charges the uttering of a forged bank check will not be sustained by proof, on trial, of the uttering of a check, on the face of which was a forged certificate, purporting to be signed by an officer of the bank on which the check was drawn, though the check with the certificate on its face be set forth, in hcec verba, in the indictment. id. 128. The words, "certified by Sparks, Bank J. C," written on the face of a check drawn on the Bank of Jer- sey City, constitute no part of the check, and proof of the forgery of such a certificate will not support a charge of forging a check. id. P^l; 129. The making a counterfeit order for the de- livery of property, in the name of a third person, is forgery under our statute, (2 E. S. 673, § 33 ; 3 R. S. 5th ed. 951,) though the paper be not addressed to any one. Noakes v. The People, 25 N. Y. Bep. 380. Court of Appeals, Decem- ber, 1862. 130. The distinction between our statute and the En- glish, in this respect, stated, per Davis, J. id. 131. The Meriden Cutlery Company is a sufficient desig- nation of the body, partnership or persons, intended to be defrauded. It appearing on the trial that a company did business under that name, and was defrauded, it is imma- terial whether it was or was not incorporated, or what was its constitution. It is enough to show an existing body of persons capable of being defrauded. id. 378 FOEGERY. • 132. A refusal to instruct the jury to disregard the charge that the prisoner intended to defraud persons unknown, for variance from the evidence, is right where there is no evidence on the trial as to what the grand jury knew on .the subject. id. '^S!'' 133. To convict one charged with uttering a counterfeit bank check, set out in the indictment and pur- porting to have been certified by some person purporting to be connected with the bank on which the check was drawn, it is suflBicient to prove that the words of certifica- tion were false, and that no person of the name signed to the certificate was connected with the bank, without showing that the signature of the drawees was a forgery. People V. Clements, 26 N. Y. Bep. 193. Court of Appeals, March, 1863. 134. A certified check on a bank is an instrument which, as an entirety, comes within the statute of forgery ; and where evidence, received without objection, shows that any material part of it was forged, e. g., the certifi- cate, it is immaterial that the indictment does not specify that the forgery was of the certification, and not of the check itself. id. 135. The indictment need not aver that the paper is, in the words of the statute, "an order for the payment of money, or any instrument by which a pecuniary demand is created." id. 136. Bex V. Hoswell, (6 Carr. & Pa. 48,) distinguished on the diversity between our statute and the British, id. *i868.''' ' 137. Forgery may be committed, under the stat- ute, as well by making a material alteration, erasure, insertion or addition to a true instrument, although only in a letter or figure, as by the entire false making of an instrument. The People v. Orahdm, 6 Park. Crim. Bep. 135. /Superior Court of Buffalo, General Term, March, 1868. 138. Where the agent of a foreign in|urance company, called "The Traveler's Insurance Company," held in his FOKGEEY. 3Y9 • hands policies of insurance executed by tKe officers of the company, and which, by the terms thereof, insured the owner from date against personal injuries caused by acci- dent, and which such agent was authorized to issue and give validity to, by stamping upon the face of the policy, in a blank left for that purpose, the words "Gen'l E. R. Ticket Office, J. Graham, Buffalo," together with the date of the issue, and such agent, on the 14th day of Ifovem- ber, 1866, with the intention to defraud such company, stamped on one of the policies in his hands the words, "Gen'l K. R. Ticket Office, November 13, 1866, J. Gra- ham, Buffalo," and delivered it to one Warner, for the purpose of having it enforced against said company, as having been issued to one Hunt, who had been killed on a railroad on said 13th day of ifovember, 1866, it was held that such agent was guilty of forgery. id. 139. Where, in an indictment for forgery, it was averred that the instrument altered purported to be the act of another, to wit, of " The Traveler's Insurance Company, of Hartford, Connecticut," and that the intent was to defraud " The Traveler's Insurance Company, of Hartford, Connecticut, which was then and there a corporation duly organized," &c., with no other averment of the name of the corporation, it was held to be a sufficient description of the corporation named " The Traveler's Insurance Company," and that the other words, viz., " of Hartford, " Connecticut," wei-e to be taken not to be a part of the corporate name, but only a description of the place where the corporation was located. • id. fa^g^- 140. An indictment charging the forgery of a deed is sufficient, without a formal allegation of the seal- ing. Tie word/' deed," ex vi termini, imports an instru- ment under seal. Paige v. The People, 6 Parh. Grim, Rep. 683. Court of Appeals, September, 1868. 141. An averment that the party charged, uttered the forged instrument, by causing the deed to be recorded in 380 FEAUD. the office of the county clerk as genuine and true, is a sufficient averment of uttering the forged instrument, id. 142. An averment of uttering, by setting up the same as genuine and true, in a complaint in an action in the Supreme Court, in which the party indicted was plaintiff, &c., and the parties intended to be defrauded were defend- ants, is a sufficient averment of uttering. id. Fkaud. ^?J: 1. To constitute a cheat or fraud an indictable offense, at common law, it must be such a fraud as would affect the public; such a deception as common prudence cannot guard against; as by using false weights or meas- ures, or false tokens, or where there is a conspiracy to cheat. People v. Babcock, 7 J. B. 201. Supreme Court, November, 1810. 2. Where A. had a judgment against B., and B. came to A. and said he would settle by paying money in part, and giving a note for the residue, and A. drew a receipt in full, in discharge of the judgment, and B. got posses- sion of the receipt without paying the money, or giving the note; and the indictment charged him with having obtained the receipt falsely, fraudulently and deceitfully, and under false acts and colors, and under pretense that he had the money in his pocket and would pay it immedi- ately, and give his note for the residue, it was held that there was no false token, but only a false assertion, and that an indictment would not lie. " id. pgff 3. A court of special sessions of the peace has juris- diction of cheats. People v. Miller, 14 J. M. 371. Supreme Court, October, 1817. 4. A fraud, to be indictable at common law, must be one affecting the public, and such as common prudence is not sufficient to guard against ; as the use of false weights and measures, or false tokens, or where there has been a conspiracy to cheat. id. 5. Where a person got possession of a promissory note, FEAUD. 381 by pretending that he wished to look at it^ and then car- ried it away, and refused to deliver it to the holder, it was held that this was merely a private fraud, and not punish- able criminally. id. W20,' 6. Where an indictment at common law alleged a fraud of a private nature, committed by an attorney, though not in that capacity, it was held that the indictment could not be maintained. Greorge W. Niven's case, 5 City Ball Becorder, 79. New York Oyer and Terminer. Before Yates, J. June, 1820. °i;: 7. At common law, an indictable cheat was such only as affected the public; such as common prudence could not guard against. The law was altered and ex- tended, by statute, to all cheats by false pretenses. In all cases, an indictment for a cheat must set out, particularly, the false token or pretense. Lambert v. People, 9 Qowen, 578. Qourt.of Errors, December, 1827. (See 3 R. S. 5th ed. 973. ^l; 8. A fraud, to be indictable at common law, must be such as affects the public or is calculated to defraud num- bers, and which ordinary care and caution cannot guard against; as the use oi false weights and measures, defraud- ing another under /aZse tokens or by a conspiracy to cheat. People V. Stone, 9 . Wend. 182. Supreme Court, May, 1832. 9. Where the fraud at common law is charged to have been effected by means of a false token, the token must be such as indicates a general intention to defraud; a mere privy token, or counterfeit letters in other men's names, seem not to come within the meaning of the term false .token as used at common law. id. fs**?; 10. What constitutes the offense of fraudulently producing an infant, falsely pretending it to have been born of parents whose child would be entitled to enherit property, with the intent of intercepting the estate, as described in 2 Revised Statutes, 676, (3 R. S. 5th ed. 955,) discussed, on deciding to admit a person accused of such felony to bail in the sum of |5000.. People v. Cunning- 382 GRAND JURY. ham, 3 Park. Crim. Rep. 520. Supreme Court, at Cham- hers. Before Peahody, J. September, 1857. Grand Jury. ?8°4- !• It is good cause of exception to a grand juror, that he has formed and expressed an opinion as to the guilt of a party whose case probably will be presented to the consideration of the grand inquest ; so also a grand juror having evinced feelings of hostility toward such a party is good cause of exception. But these exceptions must be taken before the indictment is found, and previous •to the jury being empanneled and sworn, and will not after- wards be heard. People v. Jewett, 3 Wend. 214. Supreme Court, October, 1829. (See 3 R. S. 5th ed. 1016.) Jll'^ 2. A challenge to the array will not be allowed on the ground. that, in the selection of grand jurors, all per- sons belonging to a particular fraternity or association were excluded, if those who were returned are unexceptionable, and possess qualifications required by statute. id. 3. Grand jurors being sworn to secrecy, what takes place before them cannot, generally, be disclosed. The People V. Hulhut, 4 Denio, 133. Supreme Court, January, 1847. 4. Besides the exception to this rule by the statute au- thorizing grand jurors to be examined in prosecutions for perjury, and to show that a witness has contradicted on the trial what he had sworn to before the grand jury, (2 R. S. 724, § 31 ; see 3 R. S. 5th ed. 1016,) a grand juror may be asked who was the prosecutor of a particular in- dictment. Per Bronson, Ch. J. _ id. 5. But a grand juror cannot be called to impeach the conduct of the grand jury ; as, for example, to show that an indictment presented by them was found without testi- mony, or upon insufficient testimony. id. '^^l 6. After an issue has been joined, upon an indict- ment, on a plea of not guilty, and a petit jury has been empanneled, and the case on the part of the people has been gone through with, it is too late for the defendant to raise GRAND JUEY. 383 the objection of informality in the organization of the grand jury. People v. Oriffin, 2 Barh. 427. Supreme Court, Cayuga General Term, January, 1848. (See 3 R. S. 5th ed. 1016.) fsli: 7. It seems that the issuing of precept is necessary to give validity to the acts of the grand jury, and that, after verdict, the prisoner may, on error, avail himself of the objection that no precept had been issued for summoning the grand jury. Fer Pratt, J. McGuire v. The People, 2 Parh. Orim. Bep. 148. Supreme Court, Onondaga Gen- eral Term, December, 1853. ^^f 8. The iesimony given before a grand jury, which is always ex parte, should be sufficient in degree to convict, or show the defendant guilty, if unexplained ; upon less testimony than this, the grand jury should never find a bill. People v. Baker and others, 10 How. Prac. Bep. 567. New York Oyer and Terminer. Before Cowles, J. April, ' 1855. 9. A grand jury has full power to make inquiry and to present by indictment all persons charged with crime, whether such persons are or are not under arrest and ex- amination before any of the magistrates of the county. People V. Hyler, 2 Park. Crim. Bep. 566. New York Oyer and Terminer. Before Cowles, J. April, 1855. 10. Where a coroner's jury find that a murder has been committed, and the coroner binds over the witnesses to appear at the next criminal court at which an indict- ment can be found, it is the duty of the grand jury to pro- ceed at once to act upon the case without reference to the facts, whether the accused is in custody or whether he ia then under pxainination before the coroner. id. il. A grand jury ought not to find an indictment un- less the testimony against the accused, ex parte, and unex- plained, is sufficient to convict. The People v. Eyler, 2 Park. Crim. Bep. 570. New York Oyer and Terminer. Be- fore Cowles, J. April, 1855. S' 12. After verdict, it is too late to object for the 384 GEAND JURY. first time that no precept was issued by the district attor- nej'^ to the sheriff, requiring him, among other things, to summon a grand jury, under 2 R. S. 206, § 27, (see 3 R. S. 5th ed. 298,) it appearing that the grand jury was regu- larly drawn and summoned according to the requirements of the statute. People v. Robinson, 2 Park Crim. Rep. 236. Supreme Court, Albany Greneral Term, June, 1855. fess: 13. It is not a sufficient reason for quashing an in- dictment, that the list of persons from which the grand jury which found it was drawn, contained, as originally prepared by the board of supervisors, the names of only two hundred and ninety-nine persons, instead of three hundred as required by the statute. People v. Harriott, 3 Park. Crim. Rep. 112. Chenango Oyer and Terminer. Be- fore Shankland, J. February, 1856. •^gjl' 14. The provisions of the Revised Statutes, relative to the primary examination of persons accused of crimes, do not limit the right of the people, through their officers, to institute accusations before the grand jury ; and it is no defense to an indictment that, previous to the com- plaint before the grand jury, there had been no prelim- inary proceedings before a magistrate. French et al. v. The People, 3 Parle. Crim. Rep. 114. Supreme Court, Dutchess General Term, April, 1856. fglJ; 15. An objection that the indictment appeared on its face to have been presented by twenty-four grand jurors, is not available on error, where the defendants pleaded to the indictment, and proceeded to trial without objection in the court below. Conkey v. Tlie people, 5 Park. Crim. Rep. 31. Court of Appeals, December, 1860. 16. If more than twenty-three are sworn and sit upon the grand jury, the defendant, in an indictment found by them, may, if that fact appears upon the caption of the indictment, bring error in law. If it does not appear there, then he may bring error in fact. id. HABEAS CORPUS. 385 Habeas Corpus. ^Pg* 1. Where a cause is removed by a habeas corpus from an inferior court, the plaintiff need not proceed until the bail is put in, and if he does, and a procedendo be awarded for want of bail, no costs will be allowed the plaintiff. Murray v. Smith, 1 Johns. Cases, 185. Supreme Court, April, 1799. J^J; 2. A habeas corpus to bring up a person, stated to be a soldier enlisted in the army of the United States, was refused. Case of Eusted, a soldier, 1 Johns. Cases, 136. Supreme Court, July, 1799. fg^; 3. The mother of a bastard child is entitled to its custody ; but if it appear that the child is abused, the court will interfere in behalf of the child, and direct it to be placed elsewhere. The People v. Landt, 2 J. M. 375. Su- preme Court, August, 1807. fa^; 4. If a prisoner confined in the county prison on a conviction of petit larceny break prison, it is a felony, for which he may be sentenced to imprisonment in the state prison for a period not exceeding fourteen years. People V. Duell, 3 J. R. 449. Supreme Court, August, 1808. tm. 5. Where a sheriff returned to a writ of habeas corpus, that he held the prisoner by virtue of an order of the court of chancery, which order referred to a former writ of attachment, setting forth the grounds of commit- ment, and from which the prisoner had been discharged by a judge of this court, in vacation, on another habeas corpus, and the sheriff also returned the attachment and proceedings prior to the last order of commitment : it was held that the sheriff" could not return the true cause of caption, without also stating the original attachment and subsequent orders, and that the whole return might be re- ceived and examined by the court. In the case of Yates, 4 J. B. 317. Supreme Court, August, 1809. 6. A discharge of a prisoner, committed by an order of the court of chancery, by a judge of this court, in vacation, 25 386 HABEAS CORPUS. on habeas corpus, is not conclusive, either on the court of chancery or this court ; and the prisoner may, after such discharge, be again committed fbr the same cause. id. fjf„; 7. The penalty given by the fifth section of the habeas corpus act is imposed on individuals acting minis- terially out of court, and does not apply to the acts of a court done of record. Yates v. Lansing, 5 J. B. 282. Sitr- preme Court, February, 1810. 8. Though a judge in vacation, who refuses to allow a writ of habeas corpus, is liable to an action on the statute, as the allowance by him in vacation is not a judicial act ; yet the jjidges of the Supreme Court, sitting as a court, in term time, may, in their discretion, refuse a habeas corpus. id. 9. A writ of error lies on a judgment of the Supreme Court on a habeas corpus. Yates v. The People, 6 J. B. 337. Court of Errors, February, 1810. 10. A judge of the Supreme Court, in vacation, has the same power, under the habeas corpus act, which the court itself possesses at common law, except in cases of treason or felony. id. 11. If a judge, in vacation, discharge a prisoner brought before him by habeas corpus, such discharge, whether erroneous or not, is final and conclusive ; and the party cannot be again imprisoned for the same cause, unless by order of the court in which he is recognized to appear, or other court having jurisdiction of the cause. id. 12. Where a judg'e*, in vacation, discharged a person, on habeas corpus, committed by the court of chancery for mal- practice and contempt, it was held that the chancellor could not recommit the party for the same cause. id. 13. Where the court of chancery commits a person for an offense against the statute and also for contempt, a judge in vacation, or the Supreme Court in term time, may discharge the prisoner on habeas corpus. id. 14. And it seems he may be discharged on habeas corpus, if committed for a contempt ojily. id. HABEAS COKPUS. 387 15. A prisoner may be discliarged on habeas corpus, though the conviction or judgment on which he has been committed remains in full force. id. \^^; 16. Where a master in chancery was committed by an order of the court, which stated that A. B., while he was master, filed a bill to which he subscribed the name of C. D., one of the solicitors of the court, with- out his knowledge or consent, &c., "contrary to the statute in such case made and provided, and in willful violation of his duty as master, and in contempt of the court, and the said A. B. was ordered to be committed to gaol under the further order of the court." This was held to be a legal commitment for a contempt, the words " con- trary to the statute," &c., being surplusage; and that a judge of the Supreme Court could not, on habeas corpus, discharge the person so ■ committed, from his imprison- ment. Yates V. Lansing, 9 J. B. 395. Court of Errors, April, 1811. ^"if; 17. "Where an infant, who was bound an appren- tice, being brought up on habeas corpus, the court refused to order the infant to be delivered to the father, there be- ing no evidence of any improper restraint on the part of the master, but gave the infant leave to go where he pleased. In the matter of the McDowles, 8 J. B. 328. Su- preme Court, August, 1811. fg"}!; 18. The allowance of a writ of habeas corpus in term time, is matter of sound legal discretion. In the matter of Ferguson, a United States soldier, 9 J. B. 239. Supreme Court, August, 1812. 19. Where it appeared, on application for the allowance of the writ oi habeas corpus in term, that the party was a soldier in the army of the United States, enlisted by one of the officers of the United States, this court refused to allow the writ, it being a matter arising under or by color of the authority of the United States, and a judge of the Supreme Court of the United States, or the district court of the United States, having clear and unquestionable ju- 388 HABEAS CORPUS. risdiction in the matter, and could afford the party requi- site relief. id. 20. "Whether the state court has jurisdiction to allow a habeas corpus in such a case ? Dubitatur. id. ^1: 21. A habeas corpus, allowed by a commissioner ap- pointed by act, sess. 33, ch. 144, was issued, directed to I. C, commander of the navy of the United States, on Lake On- tario, and to M. L., commanding the troops of the United States at Sacket's Harbor, and to each and every subordin- ate officer under the said commanders, or either of them, commanding them to bring the body of Samuel Stacy, Jr., &c., immediately, &c., together with the cause, &e. The following return was indorsed on the writ : " I, Morgan Lewis, general of division in the army of the United States, do return to the within writ, that the within named Sam- uel Stacy, Jr., is not in my custody." This was held to be an evasive and insufficient return ; and that the officer, to excuse himself from producing the body of the prisoner, ought to have returned that he was not in his custody, possession or power; and it appearing from affidavits that the party was, in fact, in the custody of a subordinate offi- cer, acting under the command of General M. Lewis, and that the writ was intentionally eluded and disregarded, the court ordered an attachment immediately against General Lewis for a contempt. Matter of Stacy, 10 J. R. 228. Supreme Court, August, 1813. 1814. 22'. "Where the prisoner is a private, duly enlisted in the United States army, and before his enlistment was indebted to three several persons in small sums, neither of which amounted to twenty dollars, but in the aggregate exceeded that sum, and after his enlistment he was induced to give his note to each of those three persons for the sums he respectively owed them, which notes were pur- chased by one Shepard, and being negotiable, Shepard consolidated them in one suit, and in this suit the prisoner is now in custody ; held, upon a strict application of legal principles, the relation of debtor and creditor did not ex- HABEAS CORPUS. 389 ist between tlie parties until after enlistment, and, there- fore, the prisoner comes within the operation of the act of congress, which declares " that no non-commissioned officer, musician or private shall be arrested, or subject to arrest, or be taken in execution for any debt under the sum of twenty dollars contracted before enlistment, nor for any debt contracted after enlistment," and must be discharged from imprisonment. In the matter of Amasa Boode, 2 Wheel. Gases, 541. Yates, Becorder. Albany, 1814. ^"{f: 23. On a habeas corpus, for the body of a person committed for a definite period, under the act relating to disorderly persons, usually termed the vagrant act, the grounds of the commitment may be inquired into on the the return of the writ, and the party admitted to bail. In the matter of Goodline, 1 Wheel. Cases, 428. Biker, Be- corder. New York, August, 1815. "iSwI"' 24. The return to a habeas corpus is not conclu- sive, but the facts may be traversed and inquired into, and where one was brought before the court, claimed by the return to the writ to be a runaway slave, the court decided that it was its duty to inquire into the fact whether he was a slave or not, and whether the person who had ar- rested him was the legal agent of the master for that pur- pose. In the matter of Stephen, a mulatto man and slave, 1 Wheel. Oases, 323. Biker, Becorder. New York, March, 1816. fs^f; 25. Where a habeas corpus is directed to a private person to bring up an infant, the court "are bound, ex debito JustiticB, to set the infant free from improper restraint ; but whether they shall direct it to be delivered over to any particular person, rests in their discretion, under the cir- cumstances of the case ; and that, although the person making the application be the father of the infant. Mat- ter of Waldron, 13 J. B. 418. Supreme Court, August, 1816. 26. Where an infant was in custody of its grandfather, and it appeared that it would be more for the benefit of the infant to remain with its grandfather than to be put 390 HABEAS C0EPU9. under the care of its father, and no improper restraint was shown, the court refused to direct the infant to he deliv- ered to the father. id. me. 27. A prisoner, committed to Bridewell hy one of the police magistrates, under the vagrant act, applied to the recorder of the city of New York, and obtained a cer- tiorari to remove the proceedings into the Supreme Court, and before the matter was brought to a hearing, he was brought before the chancellor on a habeas corpus, and a motion was made for his discharge ; it was held that the chancellor had no jurisdiction over the subject matter, and no power either under the habeas corpus act, or at com- mon law, to discharge the prisoner, for the magistrate had power under that act to commit the prisoner on convic- tion, and therefore the prisoner is, in the language of the habeas corpus act, "a person convict, or in execution by legal process." In the matter of Thomas Goodhue, 1 City Sail Recorder, 153. Court of Chancery. Before Kent, Chan- cellor. New York, October, 1816. 28. The certiorari, thus obtained, did not supersede or affect the conviction, so as to entitle the prisoner to a dis- charge, id. 29. After the commitment of a prisoner to Bridewell, as a fugitive from another state, and a reasonable time had elapsed, during which the executive of that state might have made a demand for his delivery, according to the constitution of the United States, but no demand appeared to have been made ;" on being bi'ought before the chancel- lor on a habeas corpus, the prisoner was discharged. id. ml!' 30. The writ of habeas corpus, instead of the copy, should be served on the party who is required to make the return. Inthe matter of Jane Wilion,AGity Hall Recorder, 47. Before Colden, Mayor, New York, April, 1819. 31. The officer before whom the writ is returned is au- thorized to examine into the facts contained in the return to such writ, and into the cause of such confinement and HABEAS COKPUS. 391 restraint, and thereupon either discharge, or bail, or re- mand the party so brought, as the case shall require, id. ^8^: 32. It is the law and usage of nations to deliver up , offenders, charged with felony or other high crimes, and who have fled from the country in which the crimes were committed, into a foreign and friendly jurisdiction. In the matter of Washburn, 3 Wheel. Gases, 473. Be/ore Kent, Chancellor. New York, August, 1819. 33. And it is the duty of the civil magistrate to commit such fugitive from justice, to the end, that a reasonable time may be aftbrded for the government here to deliver him up, or for the foreign government to make the appli- cation to the proper authorities here for his surrender. But if no such application is made, the prisoner will be entitled to his discharge. id. 34. The evidence to detain such fugitive from justice, for the purpose of surrendering him to his government, must be such as would be sufficient to commit the party for trial, if the crime had been perpetrated here. id. 35. The 27th article of the treaty of 1795, between the United States and Great Britain, was merely declaratory of the law of nations on this subject; and since the expi- ration of that treaty, the principles of the general law of nations remain obligatory on the two nations. id. 36. Therefore the chancellor or judge, in vacation, has jurisdiction to examine a prisoner before him on habeas corpus, who has been taken in custody on a Charge of theft or felony, committed in Canada, or a foreign state, from which he has fled ; and if sufficient evidence appears against him to remand him, or if there is not sufficient proof to justify his detention, to discharge him. id. tsao: 37. One charged with manslaughter may be bailed, not as a matter of right, but resting in the sound legal dis- cretion of the judge awarding the writ ; and where the prisoner has been indicted for manslaughter and tried, and the jury disagreed, it was held to be a case in which the judge should exercise a discreet and sound discretion, and 392 HABEAS CORPUS. admit the defendant to bail. People v. Q-oodwin, 1 Wheel. Cases, 443. Supreme Court, August, 1820. Spencer, Ch. J. ?alo. 38. Though this court has power, at common law, to relieve against all illegal imprisonments, in civil or criminal cases, yet a habeas corpus is not the proper remedy for a defendant imprisoned on a ca. sa. irregularly issued before a previous/, fa., according to the provisions of the act, (Sess. 36, ch. 50, § 7 ;) but the party may be discharged on motion and affidavit for that purpose. Uni- ted States V. Jenkins, 18 John. B. 305. Supreme Court, October, 1820. ts'g: 39. Where a special session found S. guilty of petit larceny, and sentenced him to imprisonment for thirty days, and imposed a fine of fifteen dollars ; and also ad- judged that unless the fine should be paid, he should be imprisoned for the term of four months ; held, that the sentence was good for thirty days, but void for four months. Matter of Sweatman, 1 Cowen, 144. Supreme Court, August, 1823. I ?825. ^' T'^^ Supreme Court, having the same powers in relation to bail as the English K. B., may let persons charged with criminal offenses to bail in all cases what- soever. Ex parte Tayloe, 5 Gowen, 39. Supreme Court, October, 1825. 41. Upon the return of a habeas corpus ad subjiciendum, with the body of a prisoner against whom a coroner's inquest have found an inquisition of murder or man- slaughter, the court are not concluded by the finding, but will look into the depositions to see whether a crime has been committed, its nature, and the strength of proof by which the accusation was supported. - id. 42. Though the crime appear to be but manslaughter, it is not of course to allow bail. id. 43. But if the guilt or innocence of the prisoner appear to be indifferent, he may be bailed. id. 44. Though the warrant of commitment be defective, the court will not discharge the prisoner finally for that HABEAS CORPUS. 393 reason ; but if a crime be made out upon tbe depositions, the course is to discharge pro forma; but remand upon a special rule. Form thereof. id. 45. If there be no reasonable doubt of the guilt of a prisoner charged with committing a felony, he ought not to b6 bailed, even by the Supreme Court. id. Psl^, 46. A habeas corpus, under the authority of this state, runs at West Point. Matter of Carlton, 7 Gowen, 471. Supreme Court, Octoher, 1827. 47. To take away the jurisdiction of the state courts on habeas corpus, within state territory ceded to the TJnited States, such jurisdiction must be expressly surrendered by the state. ■ id. 48. The enlistment of a minor, without consent of his parent or guardian, into the army of the United States, is void ; and he may be discharged by state authority. id. 49. Any person illegally detained has a right to be dis- charged on habeas corpus. id. 60. Where there are two causes of imprisonment, one good and the other invalid, the court may, on habeas corpus, discharge as to the invalid cause ; remanding the prisoner as to the other. Ex parte Badgley, 7 Cowen, 472. Supreme Court, October, 1827. ™3|' 51. On habeas corpus, a court or judge before whom is brought a prisoner arrested as a fugitive from Justice, by a warrant from the executive of one state, on the requisition of the executive of another state, under the constitution and laws of the United States, will not inquire as to the probable guilt of the accused; the only inquiry is whether the warrant on which he is arrested states that the fugitive has been demanded by the execu- tive of the state from which he is alleged to have fled, and that a copy of the indictment, or an affidavit, charging him with having committed treason, felony, or other crime, certified by the executive demanding him as authentic, have been presented. In the matter of Clark, 9 Wend. 212. Supreme Court, May, 1832. (See 3 R. S. 5th ed. 998.) 394 HABEAS COEPUS. 52. An offi^nse made indictable by statute is a crime:, within the meaning of the constitution and law of con- gress on this subject. id. 53. When this proceeding is had under the comity of nations, it seems that an offender would be delivered up only when charged with crimes of great atrocity, or deeply affecting the public safety. id. 54. The provisions of the Revised Statutes are inappli- cable to the case of a fugitive from justice, demanded under the act of congress. id. 55. In a case of this kind, where a prisoner is remanded, the court will not grant a stay of proceedings on the prose- cution of a wnt of error. ' id. ' lals!' 56. "Where property is burglariously stolen in one county, and the offender is apprehended and committed for such offense to the jail of another county, if he is in- dicted in the county where the property was stolen, the court will, on the application of the district attorney of that county, award a habeas corpus to bring up the pris- oner, so that he may be delivered to the sheriff of the county within wMch the property was stolen, and there tried. People v. Mason & Mason, 9 Wend. 505. Supreme Court, April, 1833. 57. In such a case, the sheriff of the county where the prisoner is confined, is authorized, on the production of a bench warrant, issued by a judge of the county court where the prisoner was indicted, duly indorsed by a justice of his own county, to deliver the prisoner to the sheriff' of the county where the propei'ty was stolen. (See 3 R. S. 5th ed. 1020.) id. \^\ 58. Notice of the suing out of a habeas corpus, to relieve a party from imprisonment, must be given to the party interested in continuing the imprisonment, although the latter do not reside in the county where the former is imprisoned, or where the proceeding is had for a habeas corpus; it must be given without reference to residence. HABEAS CORPUS. 395 People V. Pelham, 14 Wend. 48. Supreme Court, July, 1835. fs'ss: 59. The father is entitled to the custody of his infant children, and where differences exist between the parents, the right of the father is preferred to that of the mother; but he may forfeit it by misconduct; may be controlled in the exercise of his parental power, and under certain circumstances the care and custody of the children may be committed to the mother. People v. Ghegary, 18 Wend. 637. Supreme Court, December, 1836. 60. Where a habeas corpus is sued out on the applica- tion of a mother, in respect to the care and custody of her minor children, on the coming in of the return, denials of material facts set forth in the return, and new allegations' in support of the application will be received, provided the same be made under oath; but in such ease the father will be allowed to give further evidence on his part. id. 61. In cases of this kind, in the exercise of its discre- tion, the wishes of the children will be consulted by the court. id. fjf,^' 62. The father is the natural guardian of his infant children, and in the absence of ill usage, grossly immoral principles, or habits, or want of ability to provide for his children, is entitled to their custody, care and education; and cannot at common law be controlled by the courts in the exercise of his paternal rights, except as above, or for an abuse of the trust confided to him by law. People v. , 19 Wend. 16. Supreme Court, Sep- tember, 1837. 63. By statute, this court, on the application of the mother, where a husband and wife live in a state of sepa- ration without being divorced, may award the charge and custody of such children to the mother. id. 64. It seems, however, that this power will be exercised only in cases of a separation of husband and wife by Judicial decree or by mutual consent; and not where the 896 HABEAS COEPUS. wife, of her own accord, without justifiable cause, with- draws herself from the protection of the husband. id. 65. It also seems that a separation without consent will not be approved except where a divorce, a vinculo matri- moni, or a mensa et thoro, would be decreed by a court of chancery. id. ?stS: 66. As a general rule, a father is entitled to the custody of his minor children; but when the parents live apart, under a voluntary separation, and the father has left an infant child in the custody of its mother, such custody will not be transferred to the father by the process of habeas corpus, when the infant is of a tender age, and of a delicate and sickly habit, peculiarly requiring a mother's care and attention ; and especially the officer will not cause an order for such transfer to be made, where the qualifica- tions of the father for the proper discharge of the personal offices are not equal to those of the mother. Mercein v. People, ex relatione Barry, 25 Wend. 64. Court of Errors, December, 1840. 67. An adjudication of a court of record, or of an officer having authority to act in the matter on the question of the custody of an infant child, brought up on habeas cor- pus, may be pleaded as res adjudicata, and is conclusive upon the same parties in all future controversies relating to the same state of facts. id. 68. "Whether it can be objected to a plea of res judicata, that in a return to a habeas corpus the whole record of the proceedings urged as a former adjudication, are not set forth, quere. id. 69. Whether an agreement by which an infant is left by a father with a mother is a, valid instrument, and will justify a court in refusing to make an order to transfer the custody of the child to the father, quere. id. 70. "Whether a certiorari to a commissioner to remove proceedings had before him in reference to the custody of a minor child be a mere common law certiorari, limiting the power of the Supreme Court to questions appearing HABEAS Corpus. 397 upon the record independent of the evidence, or whether the court may look into the merits, and if they reverse the order below, may proceed and pronounce such judgment as ought to have been pronounced by the court below, quere. id. 71. Whether our court of chancery has power to restrain a father, who is a foreigner, from removing from this state a child born here, the issue of a mother a citizen of this country, without her consent, quere. . id. 1841. 72. In a proceeding to compel an attorney of this court to pay over money collected for his client, a rule was entered which recited the filing of interrogatories, together with the fact of the defendant having answered; and then, after referring it to the clerk forthwith to ascer- tain and report the costs, &c., and the amount directed by a previous order in the same matter to be paid by the de- fendant, went on to fine him in the amount so to be reported, and ordered that he be committed to the custody of the sheriff until that sum, as well as the costs and expenses of the commitment, were paid; held, that the report having been filed the next day, a certified copy thereof, and of the said rule, were sufficient to authorize the sheriff to arrest and imprison the defendant; and a discharge from the imprisonment, granted by a Supreme Court commissioner, was reversed. People ex rel. Johnson V. Nevins, 1 Hill, 154. Supreme Court, January, 1841. 73. Semhle, had there been in this case no actual entry of the proceedings prior to the defendant's arrest, the imprisonment would have been lawful, and the entry might have been made afterwards. id. mi". 74. Notwithstanding the alterations in the act rela- tive to the writ of habeas corpus ad subjiciendum, allowing the facts set forth in the return to be denied, and new alle- gations to be made, and requiring the court or officer issuing the writ to dispose of the party as the justice of the case may require, the law in respect to the duty of the court or officer to look behind the indictment^ as to the 398 HABEAS COEPUS. ■guilt or innocence of the party, is not cnanged; they could not do so previous to the amendment, nor can they now. The want of jurisdiction may now be shown by proofs aliunde, and it seems that matter arising since the commitment may also be shown — such as a reversal of a judgment, a pardon, or a compliance with the terms of - the sentence under which the party was committed. People V. McLeod, 25 Wend. 483. Supreme Court, July, 1841. 75. A sheriff's return of commitment, to a writ of ha- beas corpus, should be construed liberally. id. 76. One duly committed upon a regular indictment for. murder, cannot be dishcarged upon habeas corpus, by proving his innocence merely, however clear the proof may be; but must abide a trial by jury. People v. Alexander McLeod, 1 Hill, 3T7. Supreme Court, July, 1841. 77. The protection of the English habeas corpus act (31 Car. 2, c. 2,) against unlawful imprisonment, went no" far- ther than the enlargement of the prisoner on bail, if the offense were bailable. id. 78. The provision in the Eevised Statutes, (2 K S. 471, § 50, 2d ed ; see 3 E. S. 5th ed. 889,) allowing a party on habeas corpus to deny the truth of the return, and allege mat- ters showing that he is entitled to be discharged, &c., was not intended to give him the right of summary trial as to the question of guilt or innocence ; but merely to enable him, by evidence aliunde the return, to dispute the fact of his being detained on th'e process or proceeding set forth, or to impeach it for lack of jurisdiction, or, semhh, to show by some subsequent event, (e. g. a pardon, reversal of judg- ment, &c.,) it has ceased to be lawful cause of deten- tion, id. 79. Mere evidence of innocence cannot be used on habeas corpus as an argument for letting the prisoner to bail, if the application is after indictment found. ' id. 80. And even where the application to bail is before in- dictment, the right of inquiry as to guilt or innocence is HABEAS COEPUS. 399 limited to the depositions or proofs on whicli the commit- ment was ordered. 81. Semble, that under the statute 31 Car. 2, c. 2, where the warrant of arrest or commitment contained a specific charge of an offense not bailable, the prisoner on habeas corpus was not entitled to any relief whatever. id. '^, 82. It is no objection to the relator's right to pro- ceed on a habeas corpus ad subjiciendum, that the costs of a former habeas corpus in the same matter remain unpaid. The People ex rel. Barry v. Mercein, 3 Sill, 399. Supreme Oourt, July, 1842. 83. The rule is the same in this respect, whether the proceeding in which the objection is taken be regarded as at common law or under the statute. Per Oowen, J. id. 84. "Where a wife who had voluntarily deserted her husband, lived with M., her father, and with his counte- nance and consent, withheld from her husband the custody of one of their children ; held that a habeas corpus lay against M. to inquire into the cause of the detention, he being a party to the wrong. id. 85. In respect to a civil inquiry, the law regards all who participate in and promote it as principal wrongdoers, and severally responsible to the person whose rights are in- vaded. Per Cowen, J. id. 86. Whether a proceeding by habeas corpus, under 2 R. S. 563 et seq., (see 3 E. S. 5th ed. 883,) may ordinarily be instituted without the privity of the prisoner or person detained. Quere. id. 87. A father, whose infant child is illegally detained from him, may properly apply for a habeas corpus in his own right, without the privity of the child. id. 88. The decision of a judge on habeas corpus, refusing to transfer the custody of an infant child from its mother to its father, is at most only conclusive in respect to facts and circumstances -then existing, and not as to such as arise afterwards. id. ' 89. Accordingly, where the decision was made in March, 400 HABEAS COKPUS. 1841, and about a year and six months afterwards, the father instituted another proceeding of a like character, alleging as a new and material circumstance the advanced age of the child, &c. ; held that hie claim was not barred. Nelson, Ch. J., dissented. id. 90. The doctrine of res judicata, as applicable to cases where the subject matter is constantly changing by lapse of time and other causes, discussed and illustrated. Fer Qowen, J. - id. 91. Origin and history of the writ of habeas corpus ad subjiciendum. Appendix, 3 Hill, note (J), 647 to 649 92. General nature and character of the writ. id. 649 93. Subject matter of the writ and application, id. 649 to 651. 94. Judicial duty in respect to the proceeding, as con- tradistinguished from jiower or jurisdiction, id. 651 95. What courts or magistrates may act upon the writ. id. 652. 96. Jurisdiction to grant the writ — how acquired. id. 652 to 654 97. "Who may have the writ. id. 654 98. Obligation to grant the writ. id. 655 99. Form of petition, and how verified. 'id. 655 100. To whom to be presented. id. 652, 655 101. Writ may sometimes issue without petition, id. 655 102. Fixing compensation for bringing up the pris- oner, id. 655 103. Form of the writ and seal. id. 655 104. To whom writ may be directed, and against whom it lies. id. 649, 650, 655 105. Day and place of return. id. 656 106. Who may serve the writ. id. 656 107. Manner of service. id. 656 108. Duty to make return to writ, &c. id. 656, 657 109. Notice of proceeding, id. 657 110. Amendment of the writ. id. 657 111. Eeturn, when sufficient. id. 657 HABEAS CORPUS. 401 112. Amendment of return. id. 657 113. Length of time allowed for the hearing — custody of prisoner in the mean time. id. 658 114. Staying proceedings upon the writ till the costs of a former proceeding in the same matter be paid. id. 658 115. Proceedings on return being admitted. id. 658 116. Eight of denying and controverting return, id. 658 117. How far § 50 of 2 R S. 471, 2d ed. (see 3 E. S. 5th ed. 889) departs from the common law. id. 658 to 660 118. Imprisonment under process — void on its face — ju- risdiction, id. 661 119. Imprisonment under process — void for want of jurisdiction as to subject matter, person or process. id. 661, 662 120. Imprisonment under process — ^void because of other jurisdictional defects. id. 662 121. Imprisonment under civil process. id. 662 122. Imprisonment under process, irregular or errone- ous merely. id. 662 to 666 123. Process valid — arrest or detention illegal, id. 666 124. Process void in a criminal case — not always a ground for discharge. id. 666, 667 125. Bailing the prisoner. id. 667 126. Bailing in cases of misdemeanor. id. 667 127. Bailing or discharging in cases of felony, before indictment — extent of inquiry. id. 667, 668 128. Bailing or discharging in cases of felony, after in- die ment — extent of inquiry. id. 668 to 671 129. Bailing or discharging in cases of felony, before indictment — depositions how estimated. id. 672 to 674 130. Bailing after conviction. id. 674 131. Bailing after sentence. id. 674 132. IJTotice o^ and number of bail. id. 674 133. Eemanding the prisoner. id. 675 134. Eecommitment for the same cause. id. 675 135. How far a decision on habeas corpus shall conclude the parties. id. 675, 676. 26 402 HABEAS COEPUS. 136. The habeas corpus act applies to all writs of habeas corpus. id. 676 137. Certiorari, at the prisoner's election. id. 676 138. Decision upon habeas corpus or certiorari, how re- ceived, id. 676 "5^°,?: 139. On a proceeding before an officer by habeas corpus to obtain the discharge of a soldier, the latter is not a competent witness to support the application. Per Oow- en, J. The United States v. Wyngall, 5 Eill, 16. Supreme Court, May, 1843. 140. A certiorari, however, to reverse the proceedings does not bring under review the evidence given before the officer, nor any question as to its competency. id. 141. The judgment or decision of a court or officer having competent jurisdiction, cannot be received on habeas corpus ad subjiciendum; but if the decision be erroneous, the remedy is by certiorari or writ of error. The People v. Oassels, 5 Sill, 164. Supreme Court, May, 1843. 142. Accordingly, where the return to a habeas corpus showed that the person sought to be relieved was detained under a commitment by a magistrate for contempt, as a witness, in refusing to answer questions relating to a crim- inal complaint ; held that the officer before whom the writ was returnable had no right to inquire into the truth of the facts adjudged by the committing magistrate, nor whether the questions put to the witness were proper, nor whether he was privileged from answering. id. 143. The officer, however, may inquire whether the pro- cess of commitment be valid on its face, and also whether any cause has arisen since the commitment for putting an end to the imprisonment. Per Bronson, J. id. 144. The officer may also inquire whether the commit- ting magistrate had jurisdiction ; and this, notwithstand- ing a recital of the necessary jurisdictional facts in the commitment. id. 145. "Where the return shows that the party is re- HABEAS COKPUS. 403 straiaed of his liberty withotit the authority of legal pro- cess — e. g., by a parent, husband, master or guardian — ^the truth' of all the matters returned is open to investigation. Per Bronson, J. id. 146. "Where a witness was committed by a justice for re- fusing to answer questions put with a. view of eliciting facts on which to found a criminal Varrant of arrest, the party accused not being in the county where the justice resided, and the oflEense itself committed elsewhere ; held, that the justice acted without jurisdiction, and that the witness was entitled to be discharged on habeas corpus, id. 147. In such case, however, notice of the proceeding by habeas corpus must be given to the district attorney, pur- suant to 2 R. S. 569, § 47, (see 3 R. S. 5th ed. 888 ;) and if an order of discharge be made without such notice, it will be reversed on certiorari. id. ■Yg%- 148. An order discharging a prisoner from custody, made by a commissioner or other officer on habeas corpus, is valid until reversed, provided the case be within his ju- risdiction ; but if he has not jurisdiction, the order may be treated as a nullity. Spaulding v. The People ex rel. BackuSy 7 Hill, 301. Oourt of Errors, December, 1843. \^'^\ 149. A motion for a habeas corpus, for the purpose of awarding the custody and care of children to one pa- rent, is addressed to the discretion of the court, and a full disclosure of all the facts and circumstances in relation to the ability of both parents will be required, before allowing the writ to bring the children into court. People ex rel. Mary Manley v. James ManUy, 2 How. Prac. Rep. 61. Supreme Oourt, February,' 1846. JJi'f' 150. The adjudication of an officer having power to issue and decide upon a writ of habeas corpus, may be set up as res adjudicata upon any subsequent writ of habeas corpus, and is conclusive upon the same parties, when th© subject matter is the samte, and there are no new facts. In re Be Costa, 1 Park. Grim. Bep. 129. .At Ghamlers. New York, July, 1847. Before Edwards, J. 404 HABEAS CORPUS. 151. The parties are the same, where the writ is issued on behalf of the same person against the same respondent, although the relators are diiferent. id. 152. The material facts alleged in the return brought up, which are not denied by the party, must be taken to be true. id. ' 1847." 153. A county judge of the degree of counselor, has the same power to allow a writ of haheaa corpus to bring up a prisoner confined in jail, as a justice of the Su- preme Court at chambers. People ex rel. Jabez Bentley v. Samuel Hanna, 3 How. Prac. Rep, 39. Supreme Court, at Chambers. Before Harris, J. August, 1847. Also see id. 32. Willard, J. JI^J: 154. Upon a writ' of habeas corpus, the court can- not look beyond the colorable authority of the judge who issued the warrant on which the defendant was impris- oned. It cannot inquire into the technicalities, nor the strict regularity of the proceedings before that officer. In the matter of Prime and others, 1 Barb. 340. Supreme Court, New York General Term, November, 1847. 155. The writ of habeas corpus is not intended to review the regularity of the proceedings, in any case, but rather to restore to his liberty the citizen who is imprisoned with- out the color of law. id. 156. Upon a writ of habeas corpus, the court will merely look into the sheriff's return containing the warrant by virtue of which he detains the relator, and into the affida- vits upon which the warrant was issued, so far as to see that the officer issuing the warrant had colorable jurisdic- tion, id. 157. And if the court finds that the officer had jurisdic- tion of the process, and assumed to take proof upon the issuing of the same, which proof he adjudged to be suf- ficient, it will not review his adjudication upon that ques- tion ; nor undertake to say whether he erred in adjudging the proof to be sufficient. id. 158. If the covert finds that the warrant under which the HABEAS CORPUS. 405 relator is imprisoned is prima facie sufficient to justify the imprisonment, and if, on looking beyond the warrant, and examining the affidavit upon which the same was issued, it is satisfied that there was at least colorable proof before the officer issuing the warrant, on which he might exercise his judgment in awarding the process, that is as far as the court will go upon a writ of habeas corpus. And where these facts appear, it will not discharge the person imprisoned. id. 159. The general provisions of the habeas corpus act show that it was not intended as a writ of review, to cor- rect the errors of inferior tribunals. id. 160. It seems that nothing is properly before the court, upon the return of a habeas corpus, except the warrant on which the relator is imprisoned. If that is regular on its face, and if the sheriff would be protected in an action of trespass, it is sufficient ; and the relator cannot be dis- charged. Per Murlbut, J. id. 161. The mandate of the president of the United States, commanding the marshal to surrender a prisoner to the diplomatic agents of a foreign government, under the pro- visions of a treaty, is not conclusive. Upon a writ of habeas corpus, the legality of the foundation on -^hich such mandate rests may be inquired into. In the matter of Metzger, 1 Barb. 248. Supreme Court. Before Edmonds, J. November, 1847. ll^ 162. On a writ of habeas corpus, bringing up the question as to the custody of children, the court acts for them, and in their behalf, to see that they are under no improper restraint ; and it will interfere, so far as to per- mit them to go where they please, when they are old enough to understand their own wishes, and those wishes lead to no improper custody. The People ex rel. E. Fowler v. W. H. Pillow, 1 Sandford's Superior Court Rep. 672. At Chambers. Before Sandford, J. January, 1848. 163. "While the contest is between the father and a master to whom the children have been indentured, the 406 HABEAS COEPUS. latter may have a habeas corpus to bring up the children, when in their father's custody; and if it appear that the indentures are valid, or that the father has covenanted so that he cannot contest their validity, the court will restore the children to the master if they wish to return to him. If they prefer to remain with the father, they will be remanded to his custody. id. 164. It is no answer to such proceedings, by habeas cor- pus, that the father obtained the custody of his children by a writ of de homine replegiando. id. ^"il: 165. Where the warrant on which a prisoner has been arrested was issued by a person who was acting as a police justice de facto, under color of an election, in pursu- ance of an act of the legislature, this is sufficient, on habeas corpus, to justify the court in determining whether the prisoner is rightfully held in confinement, without going into the inquiry whether the magistrate was a police jus- tice dejure. Per Edmonds, J. Matter of Walker, 3 Barb. 162. Supreme Court, New York . General Term, May, 1848. 166. Although the writ of habeas corpus may sometimes, with propriety, be used as a writ of error, yet it seems it cannot be converted into a quo warranto, in order to determine a question of usurpation of office. Per Ed~ m,onds, J. id. \'^: 167. On the return by a public officer, to a habeas corpus, stating that he detains the party by virtue of pro- cess, the existence and validity of the process are the only facts upon which issue can be taken. Bennac v. The Peo- ple, 4 Barb. 31. Supreme Court, Clinton General Term, June, 1848. 168. The sufficiency of the evidence on which the pro- cess issued cannot be inquired into on the return to a ha- beas corpus. id. 169. If the justice convicts upon insufficient evidence, the remedy of the party injured, if any, is not by habeas corpus, and the conviction cannot be attacked but by a HABEAS COKPUS. 407 direct proceeding, such as a writ of error, certiorari, mo- tion to quash, &c., according to the nature of the case. id. 170. If the warrant contains enough on its face to pro- tect the magistrate by whom it was issued, the prisoner is not to be discharged on habeas corpus. id. 171. If the warrant is void, the prisoner should be dis- charged, id. ^^^\ 172. On habeas corpus, how far the court or officer granting it is bound by the return, or may go behind it. People V. Martin, 1 Park. Qrim. Bep. 187. At Chambers. Before Edmonds, J. New York, November, 1848. 173. In criminal cases, where an indictment has been found, he cannot go behind the indictment, because there are no means of ascertaining upon what the indictment was founded. id. 174. 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 depositions. id. 175. In such cases, under our Revised Statutes, the pro- ceedings on a habeas corpus are in the nature of an appeal from the decision of the committing magistrate. id. Ya",!; 176. The office of a writ of habeas corpus is to in- quire into the ground upon which any person is restrained of his liberty, and when it is found that the restraint is illegal, to deliver him therefrom. People v. Kling, 6 Barb. 366. Supreme Court, Albany Qeneral Term, May, 1849. 177. In the case of a child too young to be capable of determining for itself, the court or officer assumes to de- termine for it, and in doing so, the welfare of the child is chiefly, if not exclusively, to be had in view. id. 178. Upon habeas corpus to determine as to the custody of an infant, all the court is bound to do, ex debito Justitice, is to set the infant free from improper restraint. Whether it will deliver it over to anybody is left to its discretion, id. 179. And whether the court or officer exercise that dis- 408 HABEAS COEPUS. cretion wisely, or not, is a question which cannot be re- viewed upon certiorari. id. 180. "While the court is bound to give such direction, in relation to the custody of the child, as in its conscience it believes will be most for its interest ; it is also bound, I think, other things being equal, to prefer the claim of the parent, as against third persons, and the father as against the mother. id. fsl*: 181. 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 legal- ity of the imprisonment. People v. Tompkins, 1 Park. Grim. Rep. 224. At Chambers. Before Edmonds, J. Feb- ruary, 1851. 182. Forms of writ of habeas corpus and certiorari of the allowance thereof, and of the return thereto. id. ^l 183. A judge of the superior court, in allowing a ha- beas corpus, and in his proceedings under it, can only exer- cise the powers which were conferred by statute upon a Su- preme Court commissioner. He is, therefore, not clothed with the discretionary powers of ajudge in equity, in relation to the disposition and custody of infants. The People v. Bose Porter, 1 Duer's Rep. 709. Superior Court, at Cham-- bers. Before JDuer, J. May, 1853. 184. A petition for a habeas corpus, addressed to a judge of the superior court, can be founded only upon the pro- visions of the general habeas corpus act; hence the judge can act only in the cases which the statute enumerates, and can make no other final order or determination than that which the statute prescribes. id. 185. The reported cases in England are inapplicable. In all of those, the habeas corpus was a common law, not the statutory writ. id. 186. Distinctions between a common law and statutory HABEAS CORPUS. 409 Imbeas corpus, stated and explained. Critical examination of the adjudged cases in England and in this state. id. 187. Conclusions from this examination : — 1. That the basis of the common law, as well as the statutory writ, is an illegal imprisonment or restraint, and, consequently, when the restraint is disproved the jurisdiction ceases. 2. That when the restraint is adjudged to be illegal, the only order that can properly be made, is to discharge the person imprisoned or restrained. And lastly : That the exceptions of infants, of such tender years as to be inca- pable of making a choice, is more apparent than real, id, 188. The Habeas Corpus Act, in its revised form, is greatly enlarged in its provisions, and improved in its de- tails ; but its sole basis still is, an illegal imprisonment or restraint, and the only authority an officer has acting under it, is to discharge, bail or remand the person on whose behalf the habeas carpus is issued. id. 189. It appearing, in this case, that the child, on whose behalf the writ was issued, was not restrained of her lib- erty, held, that the judge could only declare that she was at liberty to go where she pleased, and could make no order for her delivery to her father. id. Ila 190- -^ prisoner committed'on a criminal charge is entitled to the allowance of a writ of habeas corpus as a matter of right, unless he was committed or detained by virtue of the final judgment of a competent tribunal. People V. Mayer, 16 Barb. Bep. 362. Supreme Court, Al- bany General Term, September, 1853. 191. Whether he was so committed, or is so detained, is a question which the officer to Avhom the writ is pre- sented for allowance is required to decide, in order to determine whether, or not, the writ shall be allowed. And his decision that the prisoner is not entitled to the writ, is a proper subject of review in the Supreme Court, upon certiorari. id. 192. Although it may be the duty of a committing mag- istrate, in the city of Albany, to try the prisoner, upon his 410 HABEAS COEPUS. requesting it, the court of special sessions, as established in that city by laws of 1849, is not deprived of jurisdic- tion; and that jurisdiction having been exercised in a law- ful manner, and the defendant imprisoned by virtue of the final judgment of such. court of sessions, he is not enti- tled to the allowance of a writ of habeas corpus to inquire into the cause of his imprisonment. id. ^i^, 193. In determining the question as to the care and custody of a child, in a contest between the surviving mother and the grand parents respecting such care and custody, the interest of the child should be the governing motive with the court ; and whenever that is ^.scertained, judgment should be pronounced accordingly, irrespective of all other considerations. People v. Wilcox, 22 Bari. Bep. 178. Supreme Court, at Chambers. Before Mason, J. September, 1854. 194. Other things being equal, the. mother of a female child, whose father is dead, is the most proper person to be intrusted with her nurture, care and custody. id. 195. An appointment of a guardian, made by a surrogate, is to be deemed valid until reversed. It cannot be assailed in a collateral way, by proceedings upon habeas corpus, id 196. The statute is irnperative that upon an application being made to the surrogate, for the appointment of a guardian of an infant, the surrogate shall assign a day for the hearing. But if he determines that notice to the relatives need not be given, he may assign the day on which the application is presented. And where there is nothing to show that this was not done, it will be pre- sumed that the surrogate assigned the day of the applica- tion "for the hearing. id. 197. The statute confers a discretion upon the surro- gate, in respect to requiring notice to be given to the relatives of a minor, residing in the county, of an appli- cation for the appointment of a guardian. id. 198. While a child is in the custody of its general guar- dian, duly appointed by the surrogate,, it cannot be deemed HABEAS COEPUS. 411 Under illegal imprisonment or restraint, merely from the guardian's refusal to deliver such child to its mother, id. 199. Upon a statute writ of habeas corpus, the powers of the officer are confined to the determination of the question whether there is an illegal restraint, and if so, to the removal of the restraint. And in the case of an infant too young to make a choice, the officer must see that the infant is delivered to its legal custodian. To this extent the writ may be executed by a commissioner at cham- bers, id. 200. A justice of the Supreme Court, upon a statutory writ of habeas corpus, returnable before him at chambers, possesses no other powers than such as are possessed by a Supreme Court commissioner, under the statute. He cannot therefore exercise that species of jurisdiction which belongs exclusively to a court of equity. id. 201. But upon a -petition addressed to the Supreme Court in equity, and presented to a justice of the court at chambers, out of term, such justice has power to enter- tain the proceedings, and to make an order that the care and custody of an infant child be committed to its mother, and that such child be delivered over by its general guar- dian to the mother, to remain with her until the further order of the court. id. 202. .A court of equity possesses a controlling and su- perintending power over all guardians, whether testa- mentary or appointed by the surrogate. And it will exercise that power by taking the ward from the guardian, and delivering it to its mother, or some other person, whenever the interest of the ward requires it. id. °^\ 203. The detention of a defendant under an alleged defective judgment may be inquired into on habeas cor- pus, and if the defect is apparent on the face of the pro- cess of commitment, the defendant will be discharged. In the matter of the application of John Qavanaugh, 10 How. Prac. Bep. 27. Supreme Court, at Chambers. Before J)6an, J. October, 1854. 412 HABEAS CORPUS. 204. Where a statute directs the courts sentencing pris- oners for thirty days or more, to sentence them to the penitentiary, a sentence and commitment to the common jail of the county for thirty days is illegal ; and this ques- tion may be decided on habeas corpus. id. S' 205. Error committed by a criminal court having jurisdiction of the offense, and of the person of the pris- oner, cannot be re-examined on habeas corpus; whether the error occurred at the trial, or is alleged to exist in the judgment rendered, the only remedy is by certiorari or writ of error. People v. Oavanaugh, 2 Park. Crim. Sep. 650. Supreme Court, Kings General Term, July, 1855. 206. Though, in such cases, matters anterior to the judgment cannot be re-examined on habeas corpus,, yet the ofiScer may discharge for reasons arising subsequent to the judgment, such as the expiration of the term of imprisonment, the payment of the fine imposed, a reversal of the judgment or an executive pardon. id. 207. Where the imprisonment is under process valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burthen of proving its invalidity by showing a want of jurisdiction. id. 208. Error,, irregularity, or want of form, is no ground for discharging on habeas corpus, nor is any defect which may be amended or remedied by further entry, or by motion. id. 209. Where, on habeas corpus, it becomes material to know of what particular misdemeanor the prisoner was convicted, in order to determine whether the commitment was legal, resort may be had to the record, if one has been made up and filed, and if not, to the indictment upon which he was tried and convicted, and to which the entry in the minutes refers. id. 210. It forms no ground for a discharge on habeas corpus that the court of oyer and terminer erred in sentencing a prisoner convicted of a misdemeanor, to imprisonment in the county jail, instead of the penitentiary. id. HABEAS COEPUS. 413 211. Forma of writ of certiorari to remove decision on habeas corpus, and of return thereto, including petition for habeas corpus^ return and traverse, and decision. id. ■^g^jl' 212. The question whether a former trial and conviction for abduction are a bar to an indictment sub- sequently found for murder alleged to have been previously committed, cannot be raised and made a ground for dis- charge on habeas corpus. Such defense can only be made available, if at all, on the trial of the indictment for mur- der. People V. Buloff, 3 Park. Grim. Mep. 126. Supreme Court, Tompkins Special Term. Before Balcom, J. April, 1856. ffs"^ 213. Upon a question of bail before indictment on a charge of murder, where th^ accused, having been com- mitted by the coroner, is brought before a justice of this court on habeas corpus, examinations before the coroner may and should be looked into, to ascertain whether a crime has been committed, and if so, the strength of the proofs in support of it ; and if such examinations show that the crime, if any, does not exceed the grade of man- slaughter, and a fair doubt exists whether the defendant has committed any felony,- bail should be taken. People v. Beigler, 3 Park. Orim. Rep. 316. Supreme Court, at Chambers. Before Strong, J. January, 1857. W57.' 214. It is not the province of a writ of habeas cor- pus to review errors in an adjudication of an inferior tri- bunal, nor the sufficiency of evidence before it; it is only to ascertain whether there was jurisdiction to pronounce the sentence of commitment, and whether the commitment is in due form. People v. McCormaek, 4 Park. Crim. Bep. 9. Supreme Court, New York General Term, June, 1857. 215. Forms of a writ of certiorari to review, before the general term, proceedings on habeas corpus before judge at chambers, of affidavit on which it was allowed, and of return thereto. id. 216. Also forms of habeas corpus and certiorari issued 414 HABEAS CORPUS. by judge at chambers, and of petitions on which they were allowed and returps thereto. " id. 217. The general doctrine that the right of the father to the custody of his minor children is paramount to that of the mother, is well settled. People v. Humphrey, 24 Barb. Bep. 521. Supreme Qowrt, Cayuga General Term, June, 1857. 218. He may forfeit that right by misconduct, or lose it by disqualification, and it may be suspended by reason of the tender age of the child, and its welfare requiring that it be with its mother. But a strong case must exist, to warrant the depriving him of this right, even for a limited period. id. 219. Where the wife has separated from her husband without any sufficient excuse, she ought not to have the custody of her child, unless the health and present condi- tion of the child imperatively require it. id. 220. The Revised Statutes (2 R. S. 148, 149, §§ 1, 2 ; 3 R. 8. 5th ed, 241) do not confer upon county judges any authority to entertain proceedings by habeas corpus, in behalf of a wife, living in a state of separation from her husband, respecting the custody of a minor child. The Supreme court alone — not a justice of that court nor a county judge — is invested with the power given by those sections. id. 221. Nor does the 86th section of 2 R. S. 575, (3 R. S. 5th ed. 894,) which declares that the several provisions con- tained in the title relating to writs of habeas corpus shall be construed to apply, so far as they may be applicable, and except when otherwise provided, to every writ of ha- beas corpus authorized to be issued by any statute of this state, extend the power specially granted to the Supreme Court by 2 R. 8. 148, §§ 1, 2, (3 R. S. 5th ed. 241,) to the county judge. id. 222. Under the provisions of the Revised Statutes au- thorizing the removal of proceedings had before any offi- cer into the Supreme Court by certiorari, (2 R. S. 563, HABEAS CORPUS. 415 § 69 ; 3 E. S. 5tli ed. 883,) the court has authority to ex- amine and correct any erroneous decision of the officer upon a question of law. id. ^^i 223. A conviction for misdemeanor, before a court of special sessions, cannot be reviewed on a return to a writ oi habeas corpiis. People v. Shea, 3 Fark. Orim. Bep. 562. Supreme Court, Onondaga General Term, October, 1857. 224. Where it appears, by a return to a writ of haieas corpus, that the prisoner in whose behalf it was sued out is detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, it is the duty of the officer before whom the writ is returned forthwith to remand the prisoner. id. 225. A statute conferring upon an officer the powers of a justice of the Supreme Court, confers only those powers which a justice of the Supreme Court holds in his capacity as such, not those devolved upon him as supreme court commissioner. Booley's case. Supreme Court, Kings General Term, October, 1857. 226. The city judge of Brooklyn has no power to issue a writ of habeas corpus running into another county, without proof that there is in such county no officer authorized to grant the writ. id. ^^^[ 227. By the common law, a father has the para- mount right to the custody and control of his minor chil- dren, and to superintend their nurture and education. The same rule exists in this state. People v. Olmstead, 27 Barb. Bep. 9. Supreme Court, Special Term. Be/ore Birdseye, J. November, 1857. 228. But this superior legal right of the father is subject to the control of a court of equity in two cases : 1. "When the father has abused or forfeited the right by cruelty or misconduct toward the child, or his character is such, or he has been guilty of such conduct, that the welfare, either physical or moral, of the child requires that such, child shall be removed from the father. 2. When the father 410 HABEAS COEPUS. and mother are living separate from each other, under such circumstances as would warrant the court in granting a divorce a mensa et thoro, and the welfare of the child requires that it should reside with the mother. . id. 229. "Where a separation between the parents has taken place, without any fault on the part of the husband, upon whose character there is no imputation ; and there is no objection made to his fitness for the proper discharge of his parental duties ; and the evidence does not show any- ground on which a court of equity could decree a separa^ tion of his wife from him, for any cruelty, unkind treat- ment or neglect, the custody of the child will be given to him. id. 230. When the mother has been at fault in the occur- rences preceding the separation, she should not be re- warded for her faults by the interposition of the court. If she breaks up the household and departs from her hus- band's house wrongfully, whether it be done of her own purpose, or from weakly yielding to the evil influences of others, she is not to be allowed to take with her the chil- dren of the union. id. fjl"; 231. An action on the custom, against an innkeeper, for the loss of the baggage of his guest, is founded on tort. It is not for " injuring or for wrongfully taking, detaining or converting personal property;" but the gist of the ac- tion is tortious negligence in keeping the property. People v. Willett, 26 Barh. Sep. 78. Supreme Court, Special Term. Be/ore Peabody, J. JDecember, 1857. 232. In such an action a defendant may be held to bail under the Code, (§ 179, sub. 1,) when he "is not a resi- dent of the state or is about to remove therefrom," it being " on a cause of action not arising on contract." When he has not been arrested before judgment, an execution can- not properly be issued against his body (Code, § 288) on the judgment, without an order of the court. id. 233. Such a judgment does not show a case for arrest, HABEAS COEPUS. 417 inasmucli as it does not show the non-residence of the de- fendant, or his intent to depart the state. id. 234. The regularity and propriety of such an arrest may be inquired into on habeas corpus. id. 235. A defendant so imprisoned should be discharged on habeas corpus, if it appears that the process on which he is detained has been issued in a case not allowed by law, or where the process is not authorized by any judg- ment, order or decree of any court, nor by any provision of law. id. ^^,[ 236. On a habeas corpus in a case of commitment for a contempt, only two questions can be examined; Jlrst, as to the jurisdiction of the court or officer making the commitment ; and secondly, as to the form of the com- mitment. If the jurisdiction is undoubted, and the com- mitment is sufficient in form, and contains the cause of the alleged contempt plainly charged therein, by some court having authority to commit for the contempt so charged, the prisoner must be remanded and the writ dis- charged. The court has no power to inquire into the jus- tice or propriety of the commitment. People v. The Sheriff of New Yorh, 29 Barb. Bepi. 622. Supreme Court, New York General Term, May, 1859. 237. Nor can the Supreme Court review, upon certiorari, the judgment of a court ordering a commitment for a con- tempt, id. N°J; 238. On return to a writ of habeas corpus, issued to inquire into the cause of detention, after commitment by a magistrate, and before indictment, additional proof may be received by the judge for the purpose of enabling him to decide upon the legality of the detention. People V. Richardson, 4 Park. Orim. Rep. 656. Supreme Court, at Chambers. Before Ingraham, J. November, 1859. (This case is also reported in 9 Abb. Prac. Eep. 393, and 18 How. Prac. Eep. 92.) PjIJ; 239. Upon an application by habeas corpus and certiorari, for the discharge of a defendant from arrest, 27 418 HABEAS COEPUS. the court must determine tlie case upon the testimony taken iefore the committing magistrate, and if, upon that testi- mony, there is want of probable cause, it is the duty of the court to discharge the defendant. The People, &c., v. Stanley & Stewart, 18 How. Prac. Rep. 179. ' Supreme Court, New Yorh Special Term. Before James, J. De- cember, 1859. JS. 240. The question of a prisoner's guilt or inno- cence of a crime for which he is indicted, can in no case be decided on an application for a discharge on habeas corpus. People v. Buloff, 5 Park. Orim. Rep. 77. Su- preme Court, Cayuga Special Term. Before Knox, J. January, 1860. 241. The presumption of innocence to which a prisoner is entitled on a trial before a jury, is not applicable to proceedings on habeas corpus. id. 242. The provisions of the Revised Statutes, under which a prisoner is declared to be entitled to his discharge, if not brought to trial before the end of the next term of the court, unless satisfactory cause be shown by the dis- trict attorney, (3 R. S. 5th ed. 1029, 1030,) are not a " statute of limitations ;" a failure to comply with them would be a mere irregularity, and would not entitle a prisoner to be discharged on a writ of habeas corpus, id. 243. Nor is it a sufficient cause for discharge on habeas corpus, that the prisoner was not present in court when the trial of the indictment was postponed till the next term of the court, though it was the right of the prisoner to be present. id. ■^Je";!' 244. A justice of the Supreme Court has no power on habeas corpus, or otherwise, to let a defendant to bail after his arrest on a bench warrant, and before he has been taken to the county where he has been indicted, such county not being the residence of the justice before whom the application is made. In the matter of Gorsline, 21 How. Prac. Rep. 85. Supreme Court, Special Term. Before Bonney, J. April, 1860. HABEAS CORPUS. 419 ^l' 245. Where a child has been duly surrendered by its father and natural guardian to the Brooklyn Industrial School Association and Home for Destitute Children, pur- suant to the charter of that association, by an instrument in writing signed by the father, such surrender will not be suspended and rendered inoperative and void, by an order subsequently made by the surrogate, appointing an indi- vidual the general guardian of the infant. People v. Kearney, 31 Barb. Rep. 430. Supreme ■Gourt, Dutchess General Term, May, 1860. 246. The fifty-eighth section of the habeas corpus act, (2 E. S. 568; 3 R S. 5th ed. 888,) which provides that, though the commitment was irregular, the judge may require bail in a bailable case if the prisoner appear to be guilty of the offense charged, was designed only to pre- vent the escape of a guilty person through a technical irregularity, and is not applicable to a case where two inquests have been held, and on the first a verdict of suicide was rendered, and on the second, which was unau- thorized, the jury found that the deceased was killed by the prisoner. People y. Budge, 4 Park. Qrim. Bep. 519. Supreme Court, at Ohambers. Before Bacon, J. May, 1860. fj^; 247. Where, on the return to a writ of habeas corpus, the imprisonment was justified under a commitment in due form, by which it appeared that the prisoner had been regularly tried and convicted of petit larceny before a court of special sessions, held by three police justices, it was held to be competent for the prisoner's counsel to prove, by evidence aliunde, that only two of the police justices were, in fact, present when the prisoner was ar- raigned and pleaded, and when he was tried and sentenced, for the purpose of showing that the proceedings before the court of special sessions were coram non j'udice and void. People v. Divine, 5 Park. Crim. Bep. 62. Supreme Court, at Chambers. Before Sutherland, J. August, 1860. 420 HABEAS CORPUS. (This case is also reported in 11 Abb. Prac. Eep. 90, and in 21 How. Prac. Rep. 30.) f/sS: 248. A coroner can only examine a prisoner in the same manner that a justice of the p.eace would in a like case, and is not authorized to examine witnesses either against the prisoner or for Mm, when he is apprehended by virtue of process issued subsequent to the finding of the inqui- sition by the jury, or is in custody of the coroner without process at the time the same is found. People v. Collins, 20 How. Prac. Bep. 111. New York Oyer and Terminer. Before Balcom, J. December, 1860. (This case is also reported in 11 Abb. Prac. Rep. 406.) 249. That is, the coroner has no power to take testi- mony to establish the innocence of the prisoner, and then discharge him contrary to the finding of the jury. id. 250. The inquisition, though taken in the absence of the prisoner, and upon the testimony of witnesses, he could not cross-examine, settles the question of his guilt, so far as it concerns the coroner, until the grand jury passes upon the case. id 251. The legislature never intended that the prisoner should be confronted with the people's witnesses, before the coroner, nor that he should have the privilege of there pro- ducing witnesses in his own behalf. id. f^{ 252. An application by a prisoner indicted and im- prisoned for an offense not triable in a court of sessions, to be discharged, on the ground that he has not been brought to trial within the time prescribed by part 4, chap. 3, title 5, sec. 31 of the Revised Statutes, may be made to any court having jurisdiction to issue a writ of habeas cor- pus. The right to discharge in such a case is not limited to the court of oyer and terminer. People v. Jeffords, 5 Park. Grim. Bep. 518. Supreme Court, New York Special Term. Before Leonard, J. February, 1861. 253. It is the right of the prisoner to demand and have a speedy trial. It is his right to have his trial at the next term of the court, after that at which the indictment shall HABEAS COEPUS. 421 be found, unless there has been a postponement at his instance. If he is not then brought to trial, he is entitled to be discharged, unless the district attorney show satis- factory cause for detaining him until the next setting of the court. id. 254. Where such an application was made to the Su- preme Court' at special term, in a case where the prisoner was indicted for murder, and it was shown by the public prosecutor that a special court of oyer and terminer had been ordered by the governor, to be held in the county within a few days thereafter, before which it was his inten- tion to try the prisoner, it was held that the cause assigned was a satisfactory one, under the thirty second section of 2 R. S. 737 ; 3 R. S. 5th ed. 1030, and the court ordered the prisoner to be detained in custody, and adjourned over the matter to a day after the sitting of the oyer and term- iner, with leave to renew the application at that time if, in the meantime, the indictment should not be brought to trial. id. \m: 255. A wife, while living in a state of voluntary separation from her husband, has no rights in respect to the care and custody of her children, under the act of March 20, 1860, concerning the rights and liabilities of husband and wife, which can be enforced by habeas corpus, or in any other way. People v. Brooks. 35 Barh. Bep. 85. 8vr •preme Court, Onondaga Q-eneral Term, April, 1861. 256. "Whatever rights she has, are secured to her by the provisions of the Revised Statutes relating to parents and children. (2 R. S. 148, §§ 1, 2, 3 ; 3 R. 8. 5th ed. 241.) id. 257. Whether a wife's claim to the care and custody of her child be under the Revised Statutes, or under the act of 1860, evidence as to the causes of her separation from her husband, and as to the relative merits and demerits of the parties, with a view to the exercise of a sound discre- tion by the court, should be received, on the return of a habeas corpus sued out by her. Mullen, J. dissented, id. ^l; 258. On habeas corpus this court cannot inquire 422 HABEAS COEPUS. into the merits of an order of commitment for contempt, but only whether the court had Jurisdiction to make the order, and whether a contempt is specially and plainly charged in the commitment. People v. Kelly, 21 How. Prac. Rep. 54. Supreme Court, New York General Term, May, 1861. 259. It is within the power and the duty of state courts or Judges to give a detained party enlisted under the laws of the United States the benefit of a habeas corpus; and upon evidence, to discharge him from such enlistment. In the matter of Dohhs, a minor.- 21 How. Prac. Pep. 68. Superior Court. Before Hoffman, J. 1861. 260. Although the act of, congress of the United States, of September, 1850, § 5, directs "that it' shall be the duty of the secretary, of war to order the discharge of any soldier of the army of the United States who, at the time of his. enlistment, was under the age of twenty-one years, upon evidence being produced to him that such enlistment was without the consent of his parent or guar- dian," it must be considered merely as a concurrent power, conferred upon such officer, with the state courts. id. 261. The minor must have a parent or guardian whose authority was recognized as valid by the law of the place, who had authority to consent or forbid, and to whom the recruiting officer might have applied within the United States for his assent in writing to the proposed enlistment, to authorize his discharge on that ground. id. Pjji 262. To authorize an application for a writ of ha- beas corpus to an officer residing in a county adjoining that in which the prisoner is detained, under 2 B,. S. 563, (3 E.. S. 5th ed. 883,) it must be shown that there is no officer of competent jurisdiction within the county of the detention, or if any reside there, that he is absent or is in- capable of acting, or has refused to grant the writ. It is not sufficient for the applicant to state generally in his affidavit that he could find np such officer. People v. Burtnett, 5 Park. Crim. Rep. 113. Superior Court, at HABEAS COEPUS. 423 Chambers. New York, October, 1861. Before Hoffman, J. (This case is also reported in 13 Abb. Prac. Eep. 8.) 263. Where the application was made to an officer in an adjoining county, on the sixteenth of the month, on the ground that the county judge of the county ijti which the prisoner was detained was absent from the county, and the affidavit showing the fact of his absence was made on the thirteenth of the same month, it was held to be in- sufficient, and that an affidavit of a later date should be produced, showing that the county judge had not returned in the interim,. id. 264. Where there has been a previous decision on ha- beas corpus before another officer, on the same facts, the motion will be deemed res judicata; if such previous de- cision was wrong, the only mode of correcting it is by cer- tiorari, id. fslJ: 265. The appellate court, before which the pro- priety of a commitment for contempt is brought by certio- rari, or even collaterally on habeas corpus, is bound to discharge the prisoner where the act charged as criminal is necessarily innocent or justifiable, or where it is the mere assertion of a constitutional right. People v. Mack- ley, 24 N. Y. Hep. 74. Court of Appeals, December, 1861. 266. The adjudication of the court in which the alleged contempt occurred, while conclusive that the party com- mitted the act whereof he was convicted, and of its char- acter, when that might, according to the circumstances, be meritorious or criminal, cannot establish as a contempt that which the law entitled the party to do. id. isei 267. .Where a proceeding upon habeas corpus is had before a judge as an officer, and not as a court, a writ of certiorari to review the proceedings, is properly di- rected to him. People v. Kelly, 35 Barb. Bep. 444. Su- preme Court, Schenectady General Term, January, 1862. 268. The writ of certiorari, in such a case, is properly allowed by a justice of the Supreme Court, id. 424 HABEAS COEPUS. 269. And it is regular to make the writ returnable at a general term. id. 270. But it is improper to make the writ returnable in a different district from that in which the proceedings on the habeas corpus were had. id. 271. One who is imprisoned on execution is unlawfully detained if there be no judgment, or if the judgment be one on which an execution against the person cannot issue by law. id. 272. Upon a writ of habeas corpus, the officer has a right to inquire into the validity of the process under which the relator is imprisoned, notwithstanding it appears to have been issued on the judgment or decree of a court of com- petent jurisdiction. id. 273. In such a case the question is not one of mere irreg- ularity in the process. It is whether the process is author- ized by the judgment of the court, or by any provision of law. id. f|p?- 274. The act of the legislature of March 20, 1860, constituting every married woman the joint guardian of her children, with her husband, did not limit the guardian- ship of the wife to the period of coverture, but in case of the death of the husband the power survived to the wife, and the husband could not deprive her of the right by ap- pointing a testamentary guardian. People v. Boice, 39 Barb. Rep. 307. Supreme Court, Albany General Term, September, 1862. 275. The legislature, by the act of April 10, 1862, amending the act of March 20, 1860, and repealing the above provision thereof, did not intend to restore the power given to the father, by the Revised Statutes, of ap- pointing a testamentary guardian, or to infringe materially upon the mother's right to the custody of her children, in case she survived her husband. id. pg^j-. 276. The enlistment of a recruit, under eighteen years of age, in the naval service of the United States, with- out the consent of his parents or guardian, is not binding HABEAS COKPUS. 425 or obligatory, although he took an oath, when he enlisted, that he was twenty-one years of age. The oath can only be conclusive against the recruit, and not against others claiming a legal right to his services. In the matter of Webb, 24 Sow. Prac. Rip. 247. Supreme Court, Special Term. Before Brown J. October, 1862. "fs^al 277. The city judge of the city of K"ew York has no power to issue a writ of habeas corpus. Under the statute of this stat^, the issuing of such writ is a ministe- rial and not a judicial act. People v. Nash, 5 Park. Grim. Bep. 473. Supreme Court, New York General Term, May, 1863. (This case is also reported in 16 Abb. Prac. Rep. 281, and in 25 How. Prac. Rep. 30.) 278. Form of proceedings to remove a decision by the city judge, on habeas corpus, into the Supreme Court for review on a certiorari sued out in behalf of the people, id. IfS 279. The act of congress of March 3, 1863, author- izing a suspension of the writ of habeas corpus, was obvi- ously aimed at "state or political prisoners," and was designed to enable the president to arrest and detain as prisoners, persons charged with, or suspected of, some offense against the government — persons deemed danger- ous to the government — and to suspend the privilege of ,the writ of habeas corpus as to all such persons. But the statute had no reference to enlisted soldiers of our army not accused of any crime ; and was not designed to prevent their discharge, on habeas corpus, if illegally held as sol- diers. People V. Gaul, 44 Barb. Bep. 98. Supreme Court, Special Term. Before Peckham, J. May, 1865. fjls: 280. A person arrested and detained upon an order from the war office at Washington, by authority of the president, directing " Robert Martin to be transferred to General Hooker for trial,".will be discharged on habeas corpus, where from the return it appears that he is charged with the offense of arson in the night time, in the city of New York, in November, 1864, and also with being at that time within the federal lines as a spy ; he being at 426 HABEAS COKPUS. the time an officer in the confederate army, but disguising his rank and character in the dress of a citizen. In the matter of Martin, 31 How. Prac. Rep. 228. Supreme Court, at Chambers. Before Leonard, J. December, 1865. 281. By the restoration oi peace, and the writ of habeas corpus, the military law and rule has become, as before the war, subordinate to the civil. id. 282. Arson is not a crime for which a prisoner can be tried by military court or commission, without a disregard of the provisions of the constitutions of both the state and the general government, securing a trial by jury. id. 283. There is no case where any person has ever been held or tried as a spy who was not taken before he had re- turned from the territory held by his enemy, or who was not brought to trial and punishment during the existence of the war. id. 284. The prisoner, in this case, was not taken in the act of committing the offense charged against him of being a spy. He had returned within the lines of the confederate forces, or had otherwise escaped, so that he was not arrest- ed till after the confederate armies had surrendered, been disbanded and sent t6 their homes, with the promise that they should not be further disturbed if they remained there and engaged in peaceful pursuits. id. Ys^s: 285. The city judge of the city of New York has power to allow a habeas corpus. The city judge of the city of New York, by the act creating his office, was clothed with all the judicial powers vested by law in the recorder of the city. It is claimed under the authority of Tates V. Lansing, (5 John. 282,) that the act of allowing such writ is ministerial, and not judicial, and this decision has been followed by this court in Matter of Nash, (16 Abb. Prac. Eep. 281,) and that therefore the city judge had no power to allow the writ, being only possessed of the judicial powers of the recorder. The case of Tates v. Lansing did not arise under the present statutes in relar tion to habeas corpus. Under the present statute, it may HABEAS COEPUS. 427 well be questioned if tlie allowance of the writ of habeas corpus is a ministerial act. But whether the allowance of the writ is ministerial or judicial, the city judge has power to allow the writ ; but he may refuse to do so. It is discre- tionary with him whether he allows it or not ; the remedy is not by mandamus. The writ of mandamus, when ad- dressed to a judicial ofl&cer, or to a court, can only order the officer or court to decide upon the matter before it, but there is no power to direct him how to decide. People V. Mussel, 1 Abb. Prac. Pep. 230, new series. Supreme Court, First District, Q-eneral Term, May, 1866. •'S: 286. In order to give the governor of a state juris- diction to issue his warrant for the rendition, under the constitution of the United States, of a fugitive from justice of another state, the fugitive must be demarided by the executive of the latter state, a copy of the indictment or affidavit before a magistrate, charging the oftense, must be produced, and such copy must be certified as authentic by the executive. An affidavit sworn before a justice of the peace, and a certificate of the secretary of state that he is such officer, and that his attestation is in due form, is not sufficient in this respect. Soloman's case, 1 Abb. Prac. Pep. 347, new series. Before Pussell, City Judge. New Yorh, June, 1866. 287. The constitution of the United States provides that a person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. (Constitution U. S., art. 4, § 2.) id. (The legislature of this state, in 1839, (ch. 3.50,) gave authority to magistrates to arrest, examine and commit a fugitive from justice, for a reasonable time, to await the warrant of the governor, issued according to the act of congress.. See 3 E. S. 5th ed. 998.) 288. By the act of congress, Feb. 12th, 1793, (1 Bright- 428 HABEAS C0EPU8. ly's Digest Laws TJ. S. 293,) it is enacted : " Whenever the executive authority of any state in the union, or of either of the territories, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indict- ment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, aijd notice of the arrest be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive ; and to cause the fugitive to be delivered to such agent when he shall appear." id. 289. This act is summary in its eft'ect, and must be strictly complied with; otherwise, a warrant issued under it would be absolutely void. id. \l^^: 290. A city judge of the city of E"ew York has no authority to issue writs of habeas corpus, he having no jurisdiction in habeas corpus proceedings. Nash v. The People, 36 N. T. Hep. 607. Court of Appeals, June, 1867. (This case is also reported in 33 How. Prac. Eep. 384.) ^mt 291. Under the acts of congress of February 13, 1862, and March 3, 1865, the oath of a soldier, on enlist- ing, that his age is above eighteen years, makes the enlistment binding and valid, and the officers of the gov- ernment and the courts have no power to discharge, in such a case, upon the ground that the soldier was under age, and had enlisted without consent of parent or guar- dian. Nor does it affect the validity of enlistment, in such a case, that the recruit was at the time an indentured HOMICIDE. 429 apprentice. Bielly's case, 2 Abb. Prac. Bep. 334, new series. New York Common Fleas, /Special Term. Before Daly, F. J. March, 1867. 292. A state court has not power, upon habeas corpus, to inquire into the validity of an enlistment in the army of the United States. Since the validity of the enlistment depends upon the construction of the acts of congress, the application should be to the judicial tribunals of the United States. id. Homicide. \^l' 1, Murder is defined to be the killing of a person with malice aforethought, either express or implied. Posi- tive proof, or very satisfactory circumstantial evidence, is necessary to convict a prisoner of this crime. Circum- stantial evidence has the same operation in capital eases as those of an inferior grade. Feople v. Blake, 1 Wheel. Cas. 272. New York Oyer and Terminer. Before Piatt, J. June, 1816. °=j°; 2. On an indictment for murder by poison, before the jury could convict, they must believe the prisoner committed the act, with malice aforethought. That in such cases it was not necessary to show any motive for the commission of the deed; that killing by poison always implied malice, and if the jury were of the opinion, from the evidence before them, that she administered the poison as charged upon her, the law would imply the malicious intent, however great the provocation might have been, because the act itself evinced a settled and deliberate purpose to murder. People v. Sellick, 1 Wheel. Chses, 269. New York Oyer and Terminer. Before Van Ness, J. December, 1816. (This case is also reported in 1 City Hall Recorder, 185.) 3. On the trial of an indictment for murder, alleging that the death was occasioned by means of poison adminis- tered by the prisoner, and the ground of defense on the trial is insanity, should the jurors entertain a rational 430 HOMICIDE. doubt on the question, whether the death of the child wag occasioned by the poison ; or should they be fully con- vinced, from the testimony before them, that at the time the prisoner committed the act she was insane, it will, in either case, be their duty to acquit. id. ^sl?: 4. It is murder for a man, with malice afore- thought, to discharge a loaded musket at another, by means of which death ensues, though the deceased was, at the time, committing a trespass on the prisoner. Chris- tian Smith's case, 2 Oity Hall Becorder, 77. Richmond Oyer and Terminer. Before Van Ness, J. May, 1817. 5. Where, however, in such case, there appeared to have been a violent quarrel for a number of years, and frequent law suits between the prisoner and the deceased, neighbors to each other, in which the latter appeared rather to be the aggressor ; and the deceased is found by the prisoner, before daylight, in his inclosure, committing a trespass on him, and the circumstances are sufficient to induce the belief that the prisoner, when he left his house with a gun, or other deadly weapon, had no particular malice towards the deceased, and in discharging the gun, during or after a violent struggle, was actuated rather by a momentary frenzy than by malice aforethought; the jury, judging of the law for themselves, acquitted the prisoner. id. '^^^\ 6. On the trial of an indictment against the mother for the murder of her infant, it was held that evi- dence of the concealment of the child, by her, soon after its birth, unaccompanied by positive testimony that the child was born alive, was insufficient to produce a con- viction. Clarissa Davis' case, 3 Oity Hall Becorder, 45. New York Oyer and Terminer. Before Van Ness, J. July, 1817. 7. In this case, Dr. Cunningham, a surgeon, who was called to examine the child, testified that its flesh was firm, and the general appearance of the body indicated that it was born alive, and that was the opinion of the HOMICIDE. 431 witness, yet the judge charged the jury that it was in- cumbent on the public prosecutor to show that the child was born alive and killed by the mother. The legal pre- sumption is that it was born dead. id. 8. On the trial of an indictment for the murder of a wife, where the evidence is merely circumstantial, and from an impure source, it is the safer course to acquit. John McDonald's case, 3 City Hall Becorder, 46. Before Baddiff, Mayor. New York, July, 1817. JJ^J; 9. In a sudden affray between V., a stout, athletic man, and S., much his inferior in strength, in which it appeared that V. was rather the aggressor, after a struggle between them on the ground both rose, and a mob having collected, a heavy stone is cast at V., which fractured his skull and ultimately deprived him of life ; that such stone was cast by S. is not otherwise pVoved on the trial than by hjs examination taken in the police, which states that " after S. had cleared himself, he picked up a stone and told V. that if he did not let him alone he would hurt him. Upon which V. came at him again, and he then threw the stone and knocked him down, but hurt him more than he expected." On the trial of an indictment against S. for manslaughter, it was held that this was excusable homicide. George Stanton's case, 2 City Hall Becorder, 164. Before Baddiff, Mayor. New York, November, 1817. 10. Where, in such case, it is proved by a skillful sur- geon that after the accident he performed the operation of trepanning on V., who had every rational prospect of recovering, but in divers fits of delirium he tore open his wounds, by which death was induced, hut that such de- lirium was the result of such blow on the head, it was held that it was well laid in the indictment, and proved that the death was occasioned by such blow. id. ofg'- 11. If. P. brought into the grocery store of M. a basket, which M. suspected to be stolen from a cart near the store, and he therefore thrust the supposed thief from the store, who turned upon M. to force his way back. K. P., 432 HOMICIDE. a bystander, interfered, and, while N. P. and M. were strug- gling near the grocery door, seized hold of If. P. to pull him back, saying that .he would not suffer him to carry into the store stolen property. At this stage of the affray the owner of the basket came and claimed it, whereupon BT. P. either dropped it, or delivered it to the owner, when the struggle ceased, and the parties were entirely separated. In a short time afterwards N. P. struck R, P. a violent blow on his left shoulder, who asked him the reason of giving the blow, but made no resistance. N". P. still ad- vanced on R. P. and struck him another blow en or under his left ear, who fell backwards, the back of his head striking the pavement, by means of which he died in about two hours. It was held that this was manslaughter. Neil Patterson's case, 3 Cit^ Hall Becorder, 145. Before Colden, Mayor. New York, October, 1818. l^il' 12. Where the prisoner, either in a fit of anger or intoxication, or both, threw a teapot at his wife, or struck her with it, by reason of which she died, this was held to be a felonious homicide. Hugh Gurry's case, 4 City Hall Becorder, 109. Before Golden, Mayor. New York, July, 1819. ^iS!"" 13- If one be killed, even accidentally, through the instrumentality of another, engaged in an unlawful act, the killing amounts to manslaughter. Bobert M. Goodwin's case, 5 Oity Hall Becorder, 11. Before Golden, Mayor. New York, March, 1820. (This case is also re- reported in 1 "Wheel. Cases, 254.) 14. Gr., in the street, pointed with his cane, containing a dagger, at S. as he approached, and said, " There is a scoundrel and a coward ;" and, as S. passed, continued to point the cane, and repeated the same words. S. passed a few steps, and returned to Gr., saying to him, " Will you repeat what you said?" Q-. replied, "I will." S., with his fist, immediately struck Gr. a blow on his breast, who struck S. over the head with a cane, the sheath part of which flew partly off. G. then took the dagger part of the blade. HOMICIDE. 433 and with the handle of the weapon followed his blow on the head of S., who retreated and fell. S., in the affVajj was mortally wounded, the dagger having passed through his heart. E"o person saw G. stab S., though several per- sons saw the affray. Gr. was indicted for manslaughter ; and the indictment alleged the means of the death to be, that G., with a certain drawn dagger, held in his right hand, struck and pierced S., giving him one mortal wound, &c. It was held, 1. That whether, by accident and without the intention of Or., S. fell on the dagger, while entangled in his clothes, or while held in the hand of G., or whether the wound was inflicted intentionally, by a thrust, G. was guilty of manslaughter. 2. That the in- dictment was supported, should the jury believe that the wound was the result of a fall on the weapon, through the instrumentality of G. 3. That G., during the affray, was engaged in an unlawful act. id. isM.' 15. Every killing of a human being is supposed to be felonious, and it lay upon the party charged with the crime to prove it not so, and where the instrument used is such an one as might reasonably be presumed to cause death, and the force applied was such as was likely to pro- duce that result, the books all agree it is murder ; and the suddenness of the affray will not avail the prisoner, where the force used by him was violent and the weapon a deadly one. The People v. Tuhi, 2 Wheel Oases, 242. Oneida County Oyer and Terminer. Thompson, J. June, 1820. 16. Where it appeared by the testimony that the de- ceased was entirely unarmed and had risen from his seat for the purpose of chastising the prisoner, and the pris- oner had seized an axe and struck the deceased, in the manner it appeared by the evidence he did, it would be murder ; the weapon being unlawful, and the use of it, as related, evidence of malice. id. PsIJ- 17. For an officer with an execution, merely to call on a debtor with it and take no inventory, is no levy on 28 434 HOMICIDE. the goods ; and if he afterwards break open the door to seize the goods, he becomes a trespasser. Arunah Ba/rs- dall's case, 5 Oity Hall Recorder, 141. New York Oyer and Terminer. Before Van Ness, J. December, 1820. 18. Where a dangerous wound has been inflicted, and the wrongdoer secures his door against a peace officer who comes to arrest him for inflicting such wound, it is the duty of the officer, before breaking open the door for that purpose, to demand admittance ; for if he does not, a breach and entry will render him a trespasser, but of the lowest grade. id. 19. Where a wound has been inflicted, any one, without warrant, has a right to arrest the ofi'ender. id. 20. One who has inflicted a dangerous wound on an- other with a dangerous weapon, and driven him from his house, and secured the door ; and, shortly afterwards, a peace officer with others came, and without demanding admittance, broke open the door, to arrest the offender, who refused to submit, and struck such officer a mortal blow, of which he died ;. it was held, that if at the time the prisoner harbored the felonious intent of killing, he was guilty of murder ; but, that if he was actuated merely with an intent of defending his own house from invasion, and actually believed he had a right to do so, though this idea was erroneous, he was guilty of manslaughter only. id. 21. Forcing the door of defendant's house to get pos- session of property, by Slawson and Griffin, was unlawful, even if a levy and an inventory had been made and left in the hands of the prisoner. People v. Randall, 1 Wheel. Oases, 258. New York Oyer and Terminer. Van Ness, J. December, 1820. 22. That after Slawson and Griffin had broken open the door, in the manner before stated, the prisoner had not only a right to order them out in the peremptory manner he did, but also to use a reasonable force to turn them out. id. 23. That the conduct of Slawson and Griffin could fur- HOMICIDE. 435 nish no justification for the violent assault upon Slawson ; he was retreating, and had retreated to the door, and no danger to the person or property -of the prisoner could have been reasonably apprehended at the time the wound was given. id. 24. That Disbrow, or any private citizen, after a dan- gerous wound is given, had a right to arrest the assailant without a warrant, to prevent his escape from justice, id. 25. That under the circumstances of this case, neither Disbrow nor any other person had a right, either with or without a warrant, to force open the outer door, without a personal demand and refusal. id. 26. Yet after such forcing the door and eptry into the house, if the deceased had been engaged taking off his coat, and the prisoner had come down while he was in the act, and inflicted the mortal wound, he could not be con- sidered as acting in defense of his person o| his property, and would, beyond all doubt, have been guilty of mur- der, id. 27. That if the jury believed the prisoner was frequently admonished to surrender ; that the deceased, at the time the mortal wound was given, was taking off his coat ; that the axe was laid down ; that there was time to reflect; that if, at the time, he was actuated by a murderous intent, not- withstanding the house was illegally entered, it would be murder. id. fgl^; 28. "Where two agree to fight, and death ensues, the survivor is guilty of manslaughter. John BeaVa case, 6 City Sail Becorder, 59. Before Biker, Becorder. New York, February, 1821. 29. Where one dies shortly after receiving violent blows and kicks sufficient to occasion death, it shall be assigned to that cause, though no discoloration of the skin be proved. id. fgjj- 30. Where two agree to fight, and during the affray death ensues, though not intended, the survivor is guilty of manslaughter. Boberf M. Goodwin's case, 6 City Hall 436 HOMICIDE. Beaorder, 9. Circuit Oouri. Before Piatt, J. New York, April, 1821. 31. It is not an assault to point a cane at one in deri- sion in the street, for the purpose of insulting him, but without an intention of striking him. id. 32. If one be killed, even accidentally, through the instrumentality of another, engaged in an unlawful act, the killing amounts to manslaughter. id. 33. G., in the street, pointed with his cane, containing a dagger, at S., as he approached, and said, "There is a scoundrel and a coward;" and, as S. passed, continued to point the cane, and repeated the same words. S. passed a few steps and returned to Gr., saying to him, "Will you repeat what you said?" G. replied, "I will." S., with his fist, immediately struct G. a blow on his breast, who struck S. over the head with the cane, the sheath part of which flew pjartly off. G. then took the dagger by the blade, and with the handle of the weapon followed his blow on the head of S., who retreated and fell. S., in the affray, was mortally wounded, the dagger having passed through his heart. No person saw G. stab S., though sev- eral persons saw the affray. G. was indicted for man- slaughter; and the indictment alleged the means of the death to be, that G., with a certain drawn dagger, held in Ms right hand, struck and pierced S., giving him one mortal wound, &c. It was held, 1. That whether, by accident and without the intention of G., S. fell on the dagger, while entangled in his clothes as he fell, or while held in the hand of G., or whether the wound was inflicted intentionally by a thrust, G. was guilty of manslaughter. 2. That the indictment was supported, should the jury be- lieve that the wound was the result of a fall on the wea- pon, through the instrumentality of G. 3. That G., during the affray, was engaged in an unlawful act. id. 34. In such base it was held, that the pointing of the cane and uttering the abusive words on the part, of G. amounted to a challenge to fight, and the return of S. was HOMICIDE. 437 an acceptance of such challenge, and an agreement to fight ; and that if death had not ensued, both G. and S., being unlawfully engaged, would have been indictable for a breach of the peace ; and that S. struck G. first, is imma- terial, id. \m. 35. "Where a person carelessly discharged a gun loaded with ball into the highway, when it was quite dark, and thereby unintentionally killed a person who was pass- ing, and whom he did not see, such killing was man- slaughter at common law. People v. Fuller, 2 Park. Grim. Rep. 16. Warren Oyer and Terminer. Before Walworth, 0, J. July, 1823. fa^; 36. Every willful and intentional taking of life of a human being without a justifiable cause, is murder at common law, if done with deliberation and not in the heat of passion, and legal malice is always implied in such cases. People V. Kirhy, 2 Park. Grim. Rep. 28. St. Lawrence Oyer and Terminer. Before Walworth, 0. J. August, 1823. 37. It is not necessary to prove express malice or ill will against the person killed; thus, when children were drowned to prevent their coming to want, it was held that the law would imply malice from the illegality of the act. id. ^|g: 38. The court left it to the jury to say, under the circumstances of the case, whether the crime charged upon the prisoner was murder or manslaughter, or justifiable homicide ; and held, that if the jury were of opinion that the prisoner committed the act while the deceased was in criminal intercourse with his wife, it would not be murder, •nor even manslaughter, but would be justifiable homicide SG defendendo, and the wife's consent would be of no avail to increase or extenuate the crime, if in the husband's presence. People v. Byan^ 2 Wheel. Gases, 4,1. New York Oyer and Terminer. Before Udwards, Circuit Judge, &c. September, 1823. 39. Meeting together, by concert, with weapons likely to produce death, and with such indications of violence as 438 HOMICIDE. would lead to reasonable apprehensions of fatal conse- quences, and proceeding to attack the deceased, which attack results in his death, all are guilty of murder. People V. Garretson et al., 2 Wheel. Cases, 347. New Yorh Oyer and Terminer. JEdwards, J. September, 1823. 40. "Where the attack is not made, however, in pursu- ance of the original design, but on a new provocation, the killing may be manslaughter or murder, according to cir- cumstances, and it is in such case the duty of the jury to refer it to the new provocation, unless it clearly appears to have been on the antecedent grudge. id. 41. How far the obligation to fly exists, or how long it should continue before homicide can be regarded as ex- cusable, depends on the suddenness and violence of the attack, the imminence of the danger, and the age, strength and sex of the parties. id. ^^^; 42. Where two or more persons, jointly indicted for murder, are tried together, only twenty peremptory challenges can be allowed to all the defendants. People v. Thayers, 1 Parle. Qrim. Eep. 595. Urie Oyer and Terminer. Before Walworth, J. April, 1825. 43. 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 mur- der, 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 statements, made under oath, on such examination, were admissible in evidence against him. ,id. ■ 44. On a trial for murder, it is competent 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 defendant with other persons were at the time under arrest for the aJlleged murder, the inquiry on such inquest not having been as to the guilt HOMICIDE. 439 of the defendant, but being general, to ascertain, if possi-' ble, wbo was the murderer. id. S: 45. The crime of an accessory before the fact to a murder is murder, and is not barred by the statute of lim- itations. People V. Mather, 4 Wend. 229. Supreme Court, May, 1830. fjlJ: 46. Under the provisions of the Bevised Statutes relative to homicide, the indictment for murder may be in the common law form, charging the offense to have been committed /eZom'oMsZy, willfully and of malice aforethought, instead of charging it to have been perpetrated from a pre- meditated design, to effect the death of the person killed ; but the accused cannot be convicted on such an indictment, of a, felonious homicide with malice aforethought, unless the evidence be such as to bring the case within that statutory definition of murder. People v. Enoch, 13 Wend. 159. Supreme Court, December, 1834. 47. The principal object of these provisions of the Re- vised Statutes was to restore the common law of murder as it anciently existed, by discriminating between a felo- nious hilling with malice aforethought, and a felonious kill- ing without such malice, and thus restrict certain cases to the grade of manslaughter, which heretofore were held to be murder. id. 48. It seems, however, that under these provisions many cases will hereafter be deemed murder, which, previous to the revision, fell under the grade of manslaughter. id. 49. Where the offense is created by statute, or the stat- ute declares a common law offense, committed under peculiar circumstances not necessarily included in the original offense, punishable in a different manner from what it would be punished without such circumstances; or where the nature of the common law offense is changed by statute "from a lower to a higher grade, as where a misdemeanor is declared a felony, the indictment must be drawn in reference to the provisions of the statute, and conclude contra formam statuti; but where the statute is 440, HOMICIDE. •only decla/natory of what was previously an offense at common law, without addiny to or altering the punishment, the indictment need not conclude contra formam,kc. id. 50. "Where the execution of the sentence of a convict is respited by the governor, for the purpose of having the conviction reviewed by an appellate court, it is the duty of the sheriff to execute the sentence of the court on the day to which the execution is respited, unless the judg- ment be reversed or annulled, or a further respite be granted ; and it is not necessary, in such case, that the convict be previously brought into court by habeas cor- pus, id. fs"Jf; 51. On a trial of an indictment for murder, where there is no pretense that the prisoner killed the deceased while engaged in a riot or other misdemeanor, not amount- ing to a felony, by misadventure, but the death ensued in consequence of an intentional violence upon the person of the deceased, whether the prisoner designed to kill or not, he is not entitled to have the jury instructed that they cannot convict of murder, if they should come to the conclusion that the mortal wound was inflicted in committing, or attempting to commit an offense, which, of itself, is less than a felony. People v. Hector, 19 Wend. 569. ' Supreme Court, July, 1838. 52. Homicide, occasioned by committing or attempting to commit a misdemeanor, though murder at the common law, is by the Revised Statutes reduced to manslaughter in the first degree. id. fj"',, 53. An indictment for murder at the common law, viz., charging the act to have been done with malice aforethought, is not vitiated by the addition of the words, that the act was done from a premeditated design to effect the death of the deceased; such latter words may be rejected as surplusage. People v. White, 22 Wend. 167., Supreme Court, October, 1839. 54. An entry indorsed on an inquisition of murder taken by a coroner, purporting to be the examination of HOMICIDE. ' 441 witnesses, will not be recognized as duly taken under the statute if it have not a jurat or certificate of the coroner, that the witnesses were sworn, and it be not shown to be in the handwriting of the coroner, or taken uaider his direction, and that the witnesses were in fact sworn, and that their testimony is stated truly. id. 55. It seems that depositions taken in pencil, instead of being properly written out, would not be considered as taken in compliance with the statute. id. 56. The fact that a judge in his charge to a jury in a criminal case, after alluding to the influence of proof of good character in a doubtful case, called the attention of the jury to the want of such proof in the case before them, is no cause for granting a new trial, where in other respects the charge is unexceptionable. -id. ui4o: 57. Where, in an indictment for murder, the crime is charged to have been committed with a premeditated design to effect the death of the person killed, the pre- meditated design or express malice must be proved, or the prisoner cannot be convicted, although the act be also charged to have been done with malice aforethought ; the description of the character of the crime, viz., its perpe- tration with a premeditated design, cannot be rejected as surplusage. People v. White, 24 Wend. 520. Court of Errors, December, 1840. 58. Where a judge, in his charge on the trial of .a crim- inal case, 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, it was held that he had erred, and a new trial was granted. id. Jjjj' 59. An alien, in whatever manner he may have entered our territory, is amenable criminally for offenses committed here. The People v. Alexander McLeod, 1 Hill, 377. Supreme Court, July, 1841. 60. The right of using violence, in self defense, only arises where one is forcibly assailed. id. 442 * HOMICIDE. . 61. To excuse homicide in self defense, the act must not be premeditated. id. 62. The right of resorting to force, upon the principle of self defense, does not arise while the apprehended mischief exists in machination only; nor does it continue so as to autljorize violence by way of retaliation or revenge for a past injury. id. 63. A subject of Great. Britain, who, under directions froin the local authorities of Canada, commits homicide in this state, in time of peace, may be prosecuted in our courts as a murderer, even though his sovereign subse- quently approve his conduct, by avowing the directions under which he did it as a lawful act of government, id. 64. Where a citizen of Canada had been arrested for a crime committed in this state, which his sovereign subset quently approves, the jurisdiction of our courts in respect' to him is not superseded by the fact that the whole mat- ter hak become the subject of diplomatic negotiation be- tween the United States and Great Britain. id. 65. Wltether an actual exertion of the treaty-making power as between the two nations, could deprive our courts of jurisdiction in such case, quere. id. 66. The rule in England that, in cases of hostile inva- sion by private persons, the common law courts can take no jurisdiction, rests on a distribution of judicial power unknown to our law. id. \m. 67. Under an indictment for murder, containing a count charging the crime to have been committed by striking and cutting the deceased' with a hatchet, and an- other count, charging it to have been committed by striking and cutting him with an instrument to the jurors, &c., unknown ; held, competent for the public prosecutor to prove that the killing was by the discharge of a pistol. People V. Colt, 3 Hill, 432. Supreme Court, July, 1842. (See note a in this case.) fs^/s. 68. In a prosecution for murder, the defendant may be convicted, though it turn out that the mortal wound HOMICIDE. 443 was given with a different weapon from tlie one mentioned in the indictment. Fer Bronson, J. People v. Townsend and others, 3 Hill, 479. Supreme Court, October, 1842. 'lals! 69. On a trial for murder, the dying declarations of the deceased — that is, declarations made under the ap- prehension of death — are competent evidence against the prisoner ; but before such delarations 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 recovery. People v. Green, 1 Park. Grim. Hep. 11. Rensselaer Oyer and Terminer. Before Parker, J. July, 1845. 70. "Where, by the direction of the attending physician, and in his presence, W. informed the deceased on the day before her death that she could not live, whereupon the deceased requested the physician to hear a communication that she desired to make, and with his consent she pro- ceeded 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 adnaissible, as her dying declaration. id. 71. Where, on the trial of a capital case, several wit- nesses are to be examined to the same point, the court may in its discretion require all such witnesses, except the one under examination, to leave the room during such examination. id. 72. The possession by a prisoner of an unanswered let- ter found in his pocket at the time of his arrest, is not, of itself, evidei^ce of the contents, and it cannot be read in evidence against him on the trial. id. 73. The maxim qiid tacef consentire videtur is not appli- cable to such a case, nor is it generally applicable, except to verbal conversations and to certain communications in writing in mercantile transactions. It cannot be applied to facts stated in a letter which a party is not bound or interested to answer. id. 444 HOMICIDE. 74. "Where a party has called a witness, and proved by hina a conversation had with the opposite party, the party whose conversation has been proved cannot, on crpss- examination, prove by the witness a subsequent conversa- tion between the party cross-examining and the witness, which took place two or three hours after the first con- versation, though such subsequent conversation was upon the same subject as the first conversation and in explana- tion of it. id. 75. And though the party calling the witness to 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, id. 76. "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 cljiar- acter and value of dying declarations — the question of 'motive — and the cases in which the accused may avail himself of a previous good character — stated and discussed in the charge. id. 77. Form of a warrant of execution, note (o) to this case. id. 1848. 73_ "W'iiether a homicide was justifiable under the statute is to be determined by the jury from their convic- tion whether there was reasonable ground for the accused to appreheind great personal injury, and not from the fact that the accused did in fact entertain such apprehension. People V. Austin, 1 Park. Crim. Rep. 154. New York Oyer and Terminer. Before Edmonds, J. 1848. 79. Whether a homicide is excusable or not, must de- pend in a great measure upon the nature of the weapon used and the manner in which it was used. Killing by intentially firing a pistol into a crowd cannot be said to be accident or misfortune. To constitute murder there must be an intention to kill, in all cases, except where the HOMICIDE. 445 perpetrator is at the moment engaged in comrnitting a felony. id. 80. Any killing without a design to effect death, unless it is justifiable or excusable, is manslaughter only. id. 81. Implied malice, constituting killing, murder, with- out an intention to kill, is not recognized in our law. id. 82. Recent provocation, and the fact that the passions have not had time to cool, do not, under our statute, miti- gate 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. id. 83. The intention to take life constitutes, under our statute, the main distinction between murder and man- slaughter, id.' fs5J; 84. Where, upon the trial of an indictment for murder, the prisoner attempts to justify the homicide on the ground that it was committed in self defense, he must show tcithe satisfaction of the jury, that he was in immi- nent danger either of death or some great bodily harm. It is not sufficient that the accused believed that it was necessary to take the life of his assailant, in order to pro- tect himself from some great personal injury. People v. Shorter, 4 Barh. 460. Supreme Court, Erie General Term, November, 1848. Mullet, J., dissenting. 85. A homicide is not justifiable as having been done in self defence, unless there was, first, a reasonable ground to apprehend a design on the part of the person killed, to commit a felony or to do some great personal injury ; and secondly, there was imminent danger of such apprehended design being accomplished. That is, it must appear that there was imminent danger that a felony would in fact be committed, or that some great personal injury would be inflicted, unless the assailant was arrested by death. Mul- let, J; dissenting. id. 86. Where a party, on his trial upon his indictment for murder, makes no proof of a necessity to take the life of 446 HOMICIDE. the person killed, or of au attempt to decline or discon- tinue the combat, or of an inability to do so, he has no right to ask the court to charge the jury that although the prisoner was mistaken in believing there was reasonable ground to apprehenend a design on the part of the de- ceased to do him some great personal injury, and that there was imminent danger of such' design being accom- plished, yet that he was justified in killing the deceased if he believed himself to be in such danger. Per Mul- let, J. , id. 87. The prisoner, in such a case, has no right to ask the opinion of the judge upon a mere hypothetical propo- sition, id. ^11: 88. One who is without fault himself, when at- "tacked by another, may kill his assailant, if the circum- stances be such as to furnish reasonable ground for apprehending a design to take away his life or do him some great bodily harm, and there is also reasonable ground for believing the danger imminent that such design will be accomplished, although it may afterwards turn out that the appearances were false, and there was in fact no such design nor any danger that it would be accomplished. The Revised Statutes (2 R. S. 660, § 3, sub. 2 ; 3 R. S. 5th ed. 939) have not changed the law on this subject. Shorter V. The People, 2 N. T. Bep. 193. Court of Appeals, May, 1849. 89. But this principle will not justify one in returning blows with a dangerous weapon when he is struck with the naked hand, and there is no reason to apprehend a design to do him great bodily harm. id. 90. Nor will it justify homicide when the combat can be avoided, or where, after it is commenced, the party can withdraw from it in safety before he kills his adversary, id. 91. The accused must decide at his peril upon the force of the circumstances in which he is placed, for that is a matter which will be subject to judicial review. id. gjfi', 92. "Where, on a trial for murder, it appeared that the HOMICIDE. 447 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, near by, a large stone, and, with both hands, threw it upon the head of the defendant so as to break in his skull and caused 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 defining mur- der, the charge was held to be erroneous and a new trial granted. People v. Johnson, 1 Fork. Crim. Rep. 291. ;S^m- preme Court, Kings General Term,. October, 1851. 93. Where the facts of a case bring it within any of the degrees of manslaughter, it cannot fall within any defini- tion of murder. id. 94. 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 de- sign to effect death, it is manslaughter in the second de- gree ; if done with premeditated design, it is murder under the first subdivision of the section defining murder. But if done in the heat of passion, it cannot, whatever may have been the design, be classed under the second subdivision of the section defining murder. Cases stated, in illustra- tion of the class supposed to be covered by the second subdivision of the section defining murder. Per Bar- Gulo, J. id. ^^i' 95. 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 pois- oned, 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, was received as evidence, although it did not appear that either of her attending physicians had 448 HOMICIDE. told lier she was going to die, and althougli it appeared that one of the physicians, not understanding the cause of her illness, had spoken to her encouragingly of her prospect of recovery. People v. Ghrv/nzig, 1 Parh. Grim. Hep. 299. New York Oyer and Terminer. Edmonds, J. November, 1851. 96. To entitle the prosecution, on a trial for murder, to introduce evidence of the dying declarations of the de- ceased, it must appear by the preliminary evidence that the declarent 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. People v. Knickerbocker, 1 Park. Grim. Rep. 302. Supreme Qourt, Erie General Term, November, 1851. 97. After the introduction of the preliminary evidence the prosecution is entitled to show such dying declar- ations, 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, id. 98. The dying declarations are received as evidence in the cause, and if there are living witnesses who can give evidence touching the same facts, they may be called and examined, and the tjehole evidence may be submitted to the jury for their consideration. id. ^ii 99. Under the Revised Statutes of E"ew York, de- claring 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 must be murder, if the intent to kill was formed at the instant of striking the fatal blow. Sullivan v. The People, 1 Park. Grim. Bep. 347. Supreme Court, New York General Term, May, 1852. 100. Premeditation, as well as design, is now a neces- sary ingredient in making out the crime of murder, under the first clause of the section of the statute defining that oftense. HOMICIDE. 449 S; 101. On tKe trial of an indictment for murder, a witness called in behalf of the prisoner testified, on the cross examination, that the prisoner became attached to a lady while she was staying at the house of his father, and that she became pregnant at the time and during her stay there ; and it was held incompetent for the prosecution to prove further by the witness, that the witness knew the prisoner was charged with the seduction, and that the wit- ness heard of it within a few days after the young lady left ; and where such evidence had been admitted at the oyer and terminer, a new trial was granted. People v. Thurstpn, 2 Park. Orim. Bep. 49. Supreme Court. Dela- ware General Term, July, 1852. ^il^; 102. The intent to do bodily harm to some one out of a number of persons is necessary, under the second subdivision of sec. 5 of 2 E. S. 657, to constitute the crime of murder, even where the homicide is effected by an act imminently dangerous to others, evincing a de- praved mind, regardless of human life. People v. Sheriff' of Westchester, 1 Park. Grim. Bep. 659. At Chambers. Be/ore Edmonds, J. New York, September', 1852. 103. DuMtatur, whether there should not also be an intent to kill, though not aimed at any particular per- son, id. 104. Deaths caused by the burning of a steamboat, which results from the making of excessive fires for the purpose of creating excessive steam, in order to outrace another steamboat, declared not to come under the de- nomination of murder, but parties held to bail for man- slaughter in the first degree, id. fj'j'j 105. In cases of homicide, where there is an inten- tion to take life, the offense is murder. The degree of deliberation is not different, under the Revised Statutes, from that required by the common law. It makes no difference whether the design be formed at the instant of striking the fatal blow, or months before. It is enough that the intention precedes the act, although that follows 29 450 HOMICIDE. instantly. People v. Clark, 3 Seld. Rep. 385. Court of Appeals, October, 1852. 106. The intentional killing of a human being, without provocation and not in sudden combat, is murder, although done in the heat of passion. People v. Sullivan, 3 Seld. Bep. 396. Court of Appeals, October, 1852. 107. Where one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack if in his power to do so, and the right of attack for the purpose of defense does not arise until he has done every thing in his power to avoid its necessity. id. 108. Where, after a mutual combat has been for the moment terminated, and a fatal blow is then struck, the question to be determined is, whether there had been suf- ficient time for the excited passion of the prisoner "to cool, and not whether in point of fact he did not remain in a state of anger. id. '"iSf' 109- The second subdivision of section 5, title 1, chap. 1, part 4 of the Kevised Statutes, (2 R. S. 657; 3 K. S. 5th ed.'935,) which declares the killing of a human being to be murder, &c., " 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 individual," does not embrace the case of killing by an unprovoked and cruel beating, where there was no intention to take life. Darsy v. The People, 2 Park. Orim. Bep. 606. Court of Appeals, March, 1854. (This case is also re- ported in 10 N. Y. Rep. 120.) 110. The language of that subdivision is not applicable to the case of homicide resulting from a direct assault by one person upon another. id. 111.- The dicta in The People v. Enoch, (13 Wend. 159 ;) The People v. Sector, (19 Wend. 596,) and The People v. White, (24 Wend. 520,) by which a contrary opinion was expressed, disapproved, id. HOMICIDE. 451 ^g'i' 112. Upon a trial for murder, statements made by the prisoner, as a witness at the coroner's inquest upon the body of the deceased, before the witness had been charged with the murder, and before it was ascertained that a murder had been committed, are admissible in evidence agkinst him. Selden and Allen, JJ., dissented. Hendrichson v. The People, 10 N. Y. Bep. 13. Court of Appeals, April, 1854. 113. Upon the trial of a man for the murder of his wife, it is proper for the prosecutor to show that the father of the deceased had so disposed of his estate by will as to disappoint the expectations of the prisoner. Gardiner, Ch. J., and Selden, J., dissented. id. ^f: 114. It is no defense to an indictment for murder that the fJrisoner was intoxicated at the time of the com- mission of the offense. The law holds a person respon- sible for a criminal act, though at the time he was intoxi- cated to such an extent as to be unconscious of what he was doing. People v. Bohinson, 1 ParTc. Grim. Bep. 649. Bensselaer Oyer and Terminer. Before Harris, Justice. May, 1854. iS: 115. Form of an indictment for murder, 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 term- iner to the Supreme Court. Opinions of medical witnesses upon a case of alleged insanity, with their statements of the symptoms and evidence of insanity. Lake v. The Peo- ple, 1 Park. Grim. Bep. 495. Supreme Gourt, Orange Gen- eral Term, July, 1854. 116. Every man is presumed to be sane till the con- trary be shown. The burthen of proof to overcome such presumption rests upon the accused. id. 117. The nature of the criminal act, the degree of mo- tive, scientific opinions given on the trial and the legal inferences from the conduct of the prisoner, discussed in the charge to the jury. id. 118. "Where the question to be determined by the jury 452 HOMICIDE. is the sanity of a person, both the acts and declarations of the person are evidence for the purpose of ascertaining the Bta.te of mind of the actor. id, 119. Where, on a trial for murder, the defense set up is insanity, evidence may be received of the acts and declara- tions of the accused, as well before and after, as at the time of the homicide. id. 120. 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 declara- tions of the person 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 insanity, nor would such person, if living, be permitted to testify to such opinion. id. 121. If a medical witness has heard only a part of the tes- timony on which the prisoner's counsel relies to establish his defense, 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. id. 122. 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, id. •^Jg'^' 123. On a motion to admit to bail, on an indict- ment for murder, upon the testimony taken before the coroner and before the grand jury, the defendant wiU not be permitted to furnish proof, either by affidavits or oral testimony tending to establish their innocence. People v. JETyler, 2 Park. Orim. Bep. 570. Ifew York Oyer and Term- iner. Be/ore Oowles, J. April, 1855. 124. On the trial of the prisoner for the murder of his wife, it having been proved that he killed her by stamping upon her, the court charged the jury that the crime was murder, if the prisoner intended to take the life of his wife ; but that if he intended only to wound and bruise her, HOMICIDE. 453 it was manslaugliter in the second degree. People v. Ham- mill, 2 Park. Orim. Rep. 223. New York Oyer and Term- iner. Before Oowles, J. April, 1855. 125. The court further charged, that,' if the prisoner designed to take the life of the deceased, it made no dif- ference as to the offense, whether he was drunk or sober at the time. id. 126. That though intoxication does not excuse crime, yet that the jury might take into consideration the fact of intoxication, so far as it would aid them in determining with what intent the act was done. id. wsl.' 127. A case cannot be brought within the first sub- division of the statute defining murder, (2 E. S. 657, § 7; 3 K. S. 5th ed. 935,) unless there be a premeditated de- sign, in fact, to effect the death of the person killed, or of some other human being. Per Parker, J. People v. Bob- inson, 2 Park. Crim. Bep. 235. Supreme Court, Albany General Term, June, 1855. 128. Form of an indictment for murder by poisoning, with counts at common law and under the statute. id. 129. Where, on the trial of an indictment for murder by poisotiing, the judge charged the jury, " that if the pris- oner was intoxicated to such an extent that she was uncon- scious of what she was doing, still the law holds her respon- sible for the act," but it appeared from other parts of the charge, that the judge intended to speak, and that the jury must have understood him as speaking, only with reference to a state of mental excitement or madness, the immediate consequence of indulgence in strong drink, and not of a state of insensibility, held that the charge was not erroneous. id. 130. Held, also, that even though the expression excepted to could not be regarded as modified and explained by other parts of the charge, and might be considered erro- neous as an abstract and separate proposition, yet that it furnished no ground for granting a new trial, it appearing plainly that it had no applicability to the case, there being 454 HOMICIDE. no fact or circumstance to warrant an inference that the accused was, at the time of the commission of the act, in a state of unconsciousness or insensibility from intoxica- tion. • id. 131. "Where a person, charged to have been murdered by poison, expressed during his last illness his opinion that he should not live, but was encouraged by his attend- ing physician to believe that he would recover, his state- ments made immediately thereafter were held not to be admissible evidence as dying declarations. Per Har- ris, J. id. 132. Very soon after drinking the supposed poison, the deceased was asked how he felt "after that glass of beer," held that hia answer, "that he did not feel comfortable," was competent evidence, though made in the absence of the prisoner. Per Harris, J. id. 133. Where it appeared that a third person had drank with the deceased at the same time he was supposed to have been poisoned, of the same beverage and adminis- tered by the same person, and had died soon afterwards, the court permitted evidence to be given that arsenic was found in the stomach of such person, and that she died from the effects of that poison. Per Harris, J. id. 134. Symptoms of poisoning by arsenic described by physicians, with their opinions on the subject of insanity, set forth in the indictment. id. "Is! 135. In civil cases and cases of misdemeanor, if the jury separate, either with or without the leave of the court, it will not vitiate the verdict, without additional evidence of irregularity or abuse ; but in criminal cases of a higher grade, and especially in capital cases, such a separation, for however short a time, will be fatal to a verdict against the prisoner, unless it be shown affirma- tively on the part of the prosecution, by the clearest evi- dence, and beyond a reasonable. doubt, that no injury could have occurred in consequence of the separation. Hast^ HOMICIDE. 455 wood V. The People, 3 Park. Grim. Hep. 25. Supreme Court, Monroe General Term, December, 1855. 136. If, after a cause has been submitted in a capital case, a jury receive any kind of evidence whicb can have the most remote bearing on the case, it will be fatal to their verdict. id. 137. When, in a capital case, . after the testimony was closed, several of the members of the jury, while walk- ing out for exercise, by leave of the court and in charge of an officer, visited and examined the place where the homicide occurred, and in regard to which the witnesses had testified, it was held to be a sufficient reason for grant- ing a new trial. id. 138. On the trial of a party for the murder of his wife, where it appeared that the prisoner was examined as a witness before the coroner's inquest, and that he had been previously arrested for the murder by a constable, without warrant, and was under arrest at the time of his examin- ation as a witness, though the fact of his arrest was not known to the coroner, but was a separate proceeding, it was held competent to prove what the prisoner testified to before the coroner's jury. People v. McMahon, 2 Park. Grim. Pep. 663. Supreme Gourt, Albany General Term, December, 1855. 'S: 139. Ordinarily there can be no conviction for murder until the body of the deceased is discovered; held, that the circumstances of this case formed no excep- tion to the rule. People v. Wilson, 3 Park. Grim. Bep. 199. Westchester Oyer and Terminer, June, 1856. Be/ore Strong, J. ^g? • 140. Under an indictment for manslaughter in the common law form, the accused may be convicted of man- slaughter as defined in the Eevised Statutes, in any de- gree, according to the evidence. People v. Butler, 3 Park. Grim. Bep. 377. Supreme Gourt, Dutchess General Term, April, 1857. 141 . In order to bring a case within the definition of 456 HOMICIDE. manslaugliter in the first degree^ as defined in the Revised Statutes, it is necessary to show that the accused was committing, or attempting to commit, some other offense than that of intentional violence upon the person killed, id, 142. "Where, on the trial of an indictment in the com- mon law form, for manslaughter, the court charged the jury that if they were satisfied from the evidence that the deceased had come to her death by reason of blows or injuries inflicted upon her by the defendant, not in any self defense, nor otherwise excusably or justifiably, they should find the defendant guilty of manslaughter in the first degree, the charge was held to be erroneous, and the conviction reversed. id. ^^,\ 143. Where, on the trial of a prisoner for the murder of his wife, the homicide was shown to have taken place on the 8th day of July, 1856, evidence on the part of the prosecution, given by a witness who resided next door to the prisoner, from the autumn of 1855r till the last week of May, 1856, showing that during all that time the prisoner had frequently had difficulty and quar- reled with his wife, was held to be admissible, as showing an alienation of affection, and as authorizing an inference, in the absence of other evidence, that the same state of feeling continued to exist after the witness ceased to have an opportunity of observing it. McOann v. The People, 3 Park. Crim. Rep. 2T2.. Supreme Court, Albany General Term, May, 1857. 144. Held, also, that upon the question of motive it was competent for the prosecution to prove that, in No- vember, 1855, the deceased made a complaint against the defendant for assault and battery, upon which he waa arrested and an examination was had, and the defendant was held to bail. id. 145. The prosecution was also permitted to prove that the deceased had deposited money in the savings bank in the fall of 1855, and again in June, 1856, and that a bank book was issued to her in her own name, and left with HOMICIDE. 457 her sister at Newburgb, and that the defendant complained that he had no money, and that his wife had taken the money and put it in bank, and that she had the bank book, on the ground that such evidence tended to show both the existence and the source of the ill-feeling of the defendant towards his wife. id. 146. Direct evidence is not, in all cases, indispensable for the purpose of proving the corpus delicti, on a trial for murder. Balcom, J., dissenting. People v. Ruloff, 3 Park. Orim. Rep. 401. Supreme Court, Tioga General Term, May, 1857. , 147. The dictum of Lord Hale, in 2 Hale's P. C. 290, in which a contrary opinion is expressed, discussed and dis- approved, id. 148. Where, on a trial for murder, there is no direct evidence of the corpus delicti, and it is evident that none can be adduced, the corpus delicti may be proved by cir- cumstantial evidence, when it is so strong and intense as to produce the full certainty of death ; but the death can be inferred in such case only from such strong and un- equivocal circumstances as render it morally certain, and leave no ground for reasonable doubt. Balcom, J., dis- senting, id. 149. The cases bearing on this point reviewed, and the rules and principles of circumstantial evidence dis- cussed, id. 150. On the trial of an indictment for murder, the law, in its clemency, presumes the entire innocence of the pris- oner ; and the government, before it has a right to ask for a conviction, is bound not only to prove the alleged mur- der, but is required also to establish by evidence the guilt of the prisoner beyond a reasonable doubt. Per Ma- son, J. id. 151. The corpus delicti is made up of two things : First, the fact that a human being has been killed ; and secondly, the existence of criminal and human agency as to the cause of the death. Per Mason,, J. id. 458 HOMICIDE. 152. In proving tte confessions of a prisoner, it is re- quired that all the confessions be taken together, as well that which makes for the prisoner as that which makes against him ; but it is not necessary to adopt the whole confession, where other evidence in the case proves part of the confession to be untrue. Per Mason, J. id. 153. Confessions of a prisoner are a doubtful species of evidence, and should be received with great caution. Per Mason, J. id. 154. 1^0 man can be convicted of a criminal offense upon his own confession alone. When a crime has been committed, confessions are competent evidence in the case ; but alone, are not sufficient. Per Mason, J. id. 155. Charge of Judge Mason, on the trial at the circuit, of an indictment for murder. id. 156. On the trial of the prisoner, for the murder of Dr. Burdell, the prosecution was permitted to prove what the prisoner had said of the deceased at the time of her illness, more than a year previous to the death of the deceased, for the purpose of showing the relations existing between the prisoner and the deceased. People v. Cunningham, 6 Park. Qrim. Hep. 398. New York Oyer and Terminer, May, 1857. Before Davies, J. 157. And after it had been proved that the prisoner had been delivered of a dead child at the time of such illness, the prosecution was allowed to prove that the prisoner said at the time that Dr. Burdell was the father of the child. id. 158. The prosecution was also permitted to prove that the prisoner had said, a little before the time of the alleged murder, that Dr. B. was jealous of her and E., because he looked through the keyhole and saw what he did not like. id. 159. It was held also to be competent to prove the fact, on the part of the prosecution, that a few days previous to the alleged murder. Dr. Burdell, who owned the house in which the prisoner was then living, had agreed to rent it HOMICIDE. 459 to Mrs. S., thougli the prisoner was not present at the making of the agreement. • id. 160. On the trial of an indictment for murder, after the prosecution has rested the case, the defense has no right to require the court to direct that the prosecution call and examine other witnesses. It rests solely with the prosecu- tion to determine what witnesses shall be called to sustain the indictment. id. 161. Charge of the court on a trial for murder, where the case rests entirely on circumstantial evidence. id. ®i|gj; 162. To justify the taking of life in self defense, it is necessary that the prisoner himself should have been attack- ed ; that he should have reasonable ground to suppose that the object of the attack was to kill him or to do him great bodily harm ; that he should have been unable to with- draw himself from such imminent danger, and therefore should have been compelled to kill his assailant to protect himself against his attack. People v. Cole, 4 Park. Crim. Rep. 35. Dutchess Oyer and Terminer, September, 1857. Before Emott, J. 163. A person is not responsible for a mistake which he makes in self defense, in supposing a deadly design which does not exist. But he must be actually assailed, and he must show reasonable ground for supposing that his only recource was to kill his assailant. id. 164. To a certain extent a person must be his own judge in such a case ; and if he act honestly and upon reasonable ground, he will not be held accountable for a mistake made under such excitement and in great apparent per- sonal danger to himself. id. 165. "Where the prisoner justifies on the ground that the act was committed " necessarily in lawfully keeping and preserving the peace," as where he interferes to pre- vent A. taking the life of B., and to that end kills A., he must show, to establish a defense, not that he had reason- able ground to believe the act necessary, but that it was 460 HOMICIDE. actually necessary, and that he had no other way to pre- vent the commission of a felony. id. 166. In the case of a mere affray or beating with fists, it cannot be necessary for either person to resort to fire- arms, or to take life in any case, for the purpose of pro- tecting one combatant from being injured by the other, id. 167. If life be unnecessarily taken by a third person in- terfering between two combatants, for the purpose of pre- serving the peace, in protecting one against the other, the offense is manslaughter. id. ^^i 168. "Where, on the trial of an indictment for man- slaughter, alleged to have been committed in causing death by effecting an abortion, it was shown that the defendant had said to A. A., who was on her way to see Mrs. L., then stated to be pregnant, that he would effect an abortion upon Mrs. L. for $25, and it appeared that A. A. went immediately to the residence of Mrs. L. ; held, that it was not erroneous to permit the prosecution to prove the fact that a conversation on the subject took place between A. A. and Mrs. L., without stating the details of the con- versation, though the defendant was not present. Sunt v. The People, 3 Park. Crim. Eep. 569. Supreme Court, New York General Term, November, 1857. 169. And inasmuch as it further appeared that Mrs. L. returned with A. A. immediately to the place of the de- fendant, where the defendant operated on Mrs. L. and produced the abortion, and it appeared satisfactorily that the defendant had intended that what he said should be communicated by A. A. to Mrs. L., though it was not au- thorized in express terms; held, further, that it would have been competent to prove that A. A. communicated to Mrs. L. what the defendant had said on the subject, and to give the details of such communication. Per Gierke, J. id., 170. A witness, called and examined on behalf of the defendant, having testified, without objection from the district attorney, to a conversation she had with the de- HOMICIDE. 461 ceased, Mrs. L„ a day or two before her death, daring which the deceased informed the witness that her illness was caused by miscarriage, and that the miscarriage had been brought about by natural causes ; held, that though such evidence would have been inadmissible if objected to, yet, having been received, it was competent for the district attorney to meet it by proof that the deceased was out of her mind when she made such declarations. id. 171. Form of an indictment for manslaughter in the second degree, for causing death by effecting an abortion, with a count for misdemeanor in using an instrument with intent to procure a miscarriage. id. ^im!' 172. In England and in this country the law is that if a man voluntarily makes himself drunk, it is no excuse for any crime he may commit while he is so ; but it does not follow because drunkenness is no excuse for crime, that it is not in some cases, where the question of guilt or innocence is one of intent, or where the degree of the crime on the same facts depends on the specific in- tent, a material circumstance in determining whether any crime had been committed, or the degree of crime which had been comm,itted. Rogers v. The People, 15 Sow. Prac. Bep. 557. Supreme Court, Q-eneral Term, March, 1858. 173. The prisoner, in this case, was indicted and tried for murder. The proof showed that the meeting in the street between the prisoner and the deceased, on the occa- sion when the prisoner stabbed the deceased with a knife and killed him, was not premeditated. There was no evidence, nor even a pretense, that the prisoner knew the deceased, or had ever seen him before ; there was nothing other than what took place on the occasion, to show that the prisoner, when he struck the fatal blow, intended to kill the deceased ; and all the witnesses agreed in saying that, at the -time of the occurrence, the prisoner was excited by drink, and some of them said he was very drunk. • id. VJ4i. On the trial the judge charged the jury that, under 462 HOMICIDE. the old law, intoxication was an aggravation of crime ; but that intoxication never excused crime, unless it was of the degree to deprive the offender of his reasoning faculties. id. 175. The counsel for the prisoner substantially requested the court to charge the jury, that they had a right to take the intoxication of the prisoner into consideration with the other circumstances of the case, in determining the intent; and that if they found that there was no intention to com- mit the crime of murder, the jury should find a verdict of manslaughter. The court refused so to charge, and the prisoner's counsel excepted. i id. 176. Held, that the right of the prisoner to have the circumstance of his intoxication fairly submitted to the jury on the question of intent, or whether he was guilty of manslaughter or murder, was as clear and as well estab- lished by law as the principle that voluntary drunkenness is no excuse for crime. The principles are consistent with each other. id. iS 177.. On the trial of an indictment for murder, evi- dence on the part of the prosecution of a fact tending to prove a motive for the commission of the homicide, ought to be received, although the fact thus offered to be proved amounts itself to a distinct felony. Stout v. The People, 4 Park. Orim. Pep. 132. Supreme Court, at Chambers. Before Strong, J. October, 1858. Pall: 178. To warrant a conviction of murder there must be direct proof either of the death, as by the finding and identification of the corpse, or of criminal violence ade- quate to produce death, and exerted in such a manner as to account for the disappearance of the body. Ruloff v. The People, 18 N. Y. Bep. 179. Court of Appeals, Decem- ber, 1858. 179. The corpus delicti, in murder, has two compo- nents — death as the result, and the criminal agency of an- other as the means. It is only where there is direct proof HOMICIDE. • 463 of one, that tlie other can be established by circumstantial evidence. id. 180. The rule of Lord Hale, (2 P. C. 290,) forbidding a conviction of murder or manslaughter, unless the fact be proved to be done or at least the body found dead, com- mented upon and affirmed. id. ll^l 181. Form of an indictment for murder by poison- ing against M. H. as principal, and "W". E. as accessory before the'fact, with counts at common law and under the statute. People v. Hartung, 4 Park. Crim. Bep. 256. Albany Oyer and Terminer. Before Harris, J. January, 1859. 182. Circumstantial evidences of guilt on trial of an in- dictment for murder by poisoning. id. 183. Appearances of stomach and intestines, on post mortem examination, in case of poisoning, described, with opinions of scientific men on the subject. id. 184. Charge of the presiding judge on a trial at the oyer and terminer, in a case of alleged murder by pois- oning, id. 185. It is a reprehensible irregularity for a jury, after they have retired, to deliberate on their verdict on a trial for murder, to take the opinion of the constable in attendance, on the question whether the jury could bring in a verdict of manslaughter, and to send for the Eevised Statutes and examine their provisions in relation to the crimes of mur- der and manslaughter. id. 186. Such an irregularity is sufficient to vitiate a ver- dict of "guilty," unless it appears beyond all reasonable doubt that no injury has resulted from it to the pris- oner, id. 187. The evidence of jurors is not to be allowed for the purpose of impeaching or in any way impairing the effect of their verdict. id. 188. It seems there is no rule which prevents the con- stable, sworn to attend the jury, from being present in the 464 HOMICIDE. jury-room during the deliberations and discussions of the jury, though the practice is disapproved. id. ^S. 189. On a trial for a murder, it is compent for the court, without the consent either of the people or the pris- oner, to permit a separation of the jury during the pro- gress of the trial. Stevens v. The People, 4 FarJc. Orim. Bep. 396. Supreme Court, New York General Term, May, 1859. Ism*: 190. The judgment record upon a cofiviction for felony need not state the constant presence of the pris- oner during the trial. Stevens v. The People, 19 N. Y. Bep. 549. Court of Appeals, September, 1859. 191. It is not error in law in a capital trial, for the judge, with the assent of the prisoner, to permit the jupy to sepa- rate from time to time before the charge is given to them, and they retire to deliberate upon their verdict. id. 192. To constitute the offense of murder, under the first subdivision of the fifth section of the statute, entitled "Of crimes punishable with death," (2 K. S. 657; 3 E. S. 5th ed. 935,) an actual intention to kill must in all cases be proved. "Without such an intention the act can be no more than manslaughter. Wilson v. The People, 4 Parle. Crim. Bep. 619. Supreme Court, Albany General Term, September, 1859. 193. Such intention may be inferred from the circum- stances under which the violence was inflicted, and some- times from the act itself; but the onus of establishing it rests upon the prosecution. id. 194. The "heaf»of passion" mentioned in the statutory definition of manslaughter, affords the intended protec- tion to the accused, whether it was produced by acts or words, if the provocation was such as was naturally cal- culated to produce it. id. im. 195. The heat of passion, where there is a design to effect death by a dangerous weapon, is no excuse in law or palliation of the act, although not premeditated, and not directed against any particular individual, but HOMICIDE. ■ 465 evinces a depraved mind, and a reckless disregard of human life. The People v. Sanchez, 18 How. Prac. Bep. 72. Sujareme Court, New York General Term, October, 1859. S 196. The statute declaring a homicide to be excu- sable " when committed upon a sudden combat, without any undue advantage being taken, and without any dan- gerous weapon being used, and not done in a cruel or unusual manner," is not applicable to a case where the deceased was killed by the prisoner in a fight with fists, and in which the fight was arranged by the prisoner or his friends with his adversary some hours before the fight took place. People v. Lannan, 4 Park. Grim. Bep. 514. New York Oyer and Terminer, January, 1860. Before Ingraham, J. 197. Where, in an indictment for murder, it was charged that the death was caused by beating and striking, and the evidence showed that it was probably caused by inju- ries to the side of the deceased, occasioned by his falling upon a mound of earth when engaged in a personal com- bat with the prisoner, the prisoner was acquitted by the jury under the advice of the court. id. fjf„- 198. Where, on a trial for murder, the cotfrt, in charging the jury, submitted to them to decide whether the prisoner was guilty of murder or manslaughter, or whether the act in question was justifiable homicide, and after an absence of twenty-four hours, the jury, not having agreed, returned into court and asked for farther instruc- tions on the law, when the court further charged the jury that if they believed the witnesses the case was clearly within one of the degrees of manslaughter, and it was for the jury to say which degree, such further charge was held to be erroneous, as withdrawing from the jury the decision of questions of fact. Pfomer v. The People, 4 Park. Grim. Bep. 558. Supreme Court, New York General Term, Feb- ruary, 1860. 199. In such a case it is purely a question of fact for the 30 466 HOMICIDE. jury to determine whether the prisoner, at the time he slew the deceased, had reasonable ground to believe his own life to be in danger from the deceased. id. 200. On a trial for murder, where the death occurred in a personal encounter, and the defense is that the killing was justifiable, on the ground that the prisoner, at the time he slew the deceased, had reasonable ground to be- lieve his own life to be in danger, whether it is competent for the prisoner to prove the violent and ruffianly character and habits of the deceased, and whether such character and habits must be brought to the knowledge of the pris- oner, discussed by counsel, with a full collection of the American authorities on these questions. id. ^^^' 201. Although particularity is required in an indictment for murder, yet where it is apparent that the allegations are substantially sufficient, a clerical mistake will be disregarded. People v. Shay, 18 Sow. Prac. Hep. 538. Supreme Court, New York General Term, March, 1860. f^^ 202. The act in relation to capital punishment, (ch. 410 of I860,) in so far as it attempts to subject to the new punishments of death and previous imprisonment at hard labor, persons already under conviction for murder, is ex post facto and void. Hartung v. The People, 22 N. T. Bep. 95. September, 1860. 203. It seems that any law changing the punishment for offenses committed before its passage, is ex post facto and void under the constitution, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline or penal administration as its primary object. id. 204. It seems, though all the provisions for inflicting death as the punishment of murder are repealed by the act of 1860, that it is the intention of the act to retain such punishment. id. 205. In what manner death is to be inflicted, and HOMICIDE, 467 whether the mode is in the discretion of the court, the sheriff or the governor. Quere. id. 206. The repeal of a law irnposing a penalty, though it takes place after conviction, arrests the judgment; and when the repeal is after judgment, the judgment is to be reversed upon writ of error. id. 207. Upon appeal under the Code, however, it seems that the judgment of the subordinate tribunal is not to be reversed unless it was erroneous when pronounced, upon the law as it then stood. Per Denio, J. id. 208. In an indictment for murder, the place of the mortal wound is sufficiently indicated by the allegation that it was "upon the body." Sanchez v. The People, 22 N. T. Hep. 147. Court of Appeals, September, 1860. 209. This, it seems, means the trunk, in contradistinc- tion from the head or limbs ; but whether it does or not, it is a matter of mere form, and immaterial. id. fgIS: 210. Evidence of appearances on post mortem ex- amination of symptoms of poisoning, opinions of phy- sicians as to such symptoms, and as to the effect of arsenic administered by injection into the rectum, testimony of the chemist and his method of analysis, and of the tests employed, and other evidence, where the defendtot was charged with having committed homicide by administering arsenic to the deceased, her step-daughter, during her sickness, by injection into the rectum, and note, with refer- ences, to cases of that character. People v. McCraney, 6 Park. Grim. Rep. 49. Otsego Oyer and Terminer, De- cember, 1860. Before Mason, J. fjfj; 211. The provisions of the act of April 14, 1860, entitled "An act in relation to capital punishments and to provide for the more certain punishment of the crime of murder," so far as they apply to offenses committed be- fore the act took effect, are ex post facto, and, therefore, unconstitutional and void. Kuckler v. The People, 5 Park. Crim. Bep. 212, Supreme Court, Erie General Term, Pebruary, 1862. 468 HOMICIDE. 212. Where a conviction had taken place under that act, for an offense committed before the act took effect, and sentence had been pronounced by the court of oyer and terminer in pursuance of the provisions of the act, no bill of exceptions having been returned with the record, and the only error committed having been in the giving of, judgment, it was held, on reversing the judgment, that this court had no power to order a new trial, but that the prisoner inust be discharged. ' id. 213. To grant a new trial, in such a case, would be a violation of the constitutional provision which protects the prisoner from "being twice put in jeopardy for the same offense," and, on the second trial, the plea of autre- fois convict would be a good defense. id. ""5 214. Porm of an indictment for manslaughter in the second degree in procuring an abortion, under the act of 1846, chapter 22, § 1 ; 3 E. S. 5th ed. 940. Cobel v. The People, 5 Park. Grim. Hep. 348. Supreme Court, New York General Term, May, 1862. 215. An indictment for manslaughter in the second de- . gree charged the killing of the quick child of M. A. B., by instruments used on her body, for the purpose of pro- curing an abortion. The jury found the prisoner not guilty of manslaughter in the second degree, but guilty of a misdemeanor in employing instruments and other means upon " the person of a pregnant woman, vrith intent thereby to procure the miscarriage of such woman." Meld that the verdict was defective in not finding that the offense was committed upon the person named in the in- dictment, and the judgment rendered thereon was, for that reason, reversed. id. YS: 216. Charge of the recorder in a case of murder, tried under the act of 1860, discriminating between and defining murder in the first degree and murder in the second degree, and commenting upon the rules applicable to each. Jefferds v. People, 5 Park. Grim. Rep. 322. Su- preme Court, New York General Term, November, 1862. HOMICIDE 469 217. To justify a conviction on circumstantial evidence, the facts and circumstances must be such as to exclude every other hypothesis than that of the guilt of the ac- cused.' id. 218. Discussion, by the recorder, of the evidence bear- ing upon the question of motive for the commission of the act. id. 219. The rules of law which render the confessions of a prisoner inadmissible as evidence when obtained under promises of favor, stated and explained by the recorder, id. 220. Sentence of the prisoner, pronounced by the re- corder, on conviction of murder in the first degree. id. 221. On the trial for murder, evidence of threats, made by the prisoner two years before the alleged murder, was admitted. On review it was held that such evidence was admissible, and that lapse of time was no objection to its competency ; and it was also held that evidence afterwards given on the trial, showing that, after the threats had been made, friendly feelings were restored between the parties, did not render the previous evidence of threats incompe- tent, but made only an additional fact for the considera- tion of the jury in determining the weight to be given to them. id. 222. Where a capital case has been tried at the general sessions of 'Hew York, the Supreme Court has power, on writ of error, under the act of 1855, chapter 337, § 3, to order a new trial, when it shall be satisfied the verdict was against law, or against the weight of evidence, or that justice requires a new trial, " whether any exception shall have been taken or not, in the court below." id. J»"3 223. Section. 25 of title 1, ch. 1, part 4 of the Re- vised Statutes, (2 R. S. 659 ; 3 R. S. 5th ed. 938,) which provides that " the punishment of death shall in all cases be inflicted by hanging the convict by the neck until he oe dead," was only declaratory of the common law as it existed at the time of the enactment ; and the repeal of that section by the act of 1860, ch. 410, left the common 470 HOMICIDE. law mode of inflicting punishment of death by hanging, in full force and eflfect. Dcme v. Tlie People, 5 Parle. Grim. Rep. 364 Supreme Court, Broome General Term, Janu- ary, 1863. 224. For a murder committed in December, 1860, the prisoner was indicted in February, 1861, and tried in April, 1862, and found guilty, and the court gave judgment that the prisoner " suffer the punishment of death prescribed by law for murder in the first degree, and that he be im- prisoned in the state prison at Auburn until such punish- ment be inflicted." On error the judgment was affirmed, id. 225. Held, also, that the judgment was not defective in omitting to sentence the prisoner to confinement at hard labor. A sentence to confinement in a state prison is necessarily a sentence of imprisonment at hard labor, the statute having prescribed that mode of punishment. The general statutes in relation to state prisons in this state regulate this matter. Hard labor is the rule of such pris- ons in this state ; solitary confinement is a mode of disci- pline. The sentence of imprisonment in a state prison is a sentence to hard labor, as thus understood. id. 226. It is only in the case of convictions in the court of general sessions of the city of Ifew York, brought up by writ of error, that the appellate court may grant a new trial without any exception having been taken in the court below. Since the amendment of the act of 1855 by the act of 1858, no such power exists in cases of conviction in the courts of oyer and terminer. id. 227. On a trial in 1862 for a murder alleged to have been committed in December, 1860, the judge, among other things in his charge to the jury, said, " that the gov- ernor had refused to issue any warrant for execution under the statute ; that he had been advised by the Court of Ap- peals, in the present state of the law, that it was inexpedient to do so," and afterwards said to the jury, " that they had nothing to do with the question of punishment which fol- lowed their verdict of conviction of murder; that that HOMICIDE. 471 belonged to the law, and not to them to decide ;" to which an exception was taken ; held that no error was commit- ted available to the prisoner. id. fs^e^; 228. On a trial for murder, the court charged the the jury that if they found that the prisoner was justified in defending himself, and carried that protection further than was necessary for his defense, then he was guilty of manslaughter in some one of the four degrees. This being unexplained by any other part of the charge, was held to be erroneous, inasmuch as it denied to the prisoner the right the law gave him to slay his assailant, if he was at- tacked under such circumstances as furnished him reason- able ground for apprehending a design to take his life, or to do him some great personal injury. UM v. The People, 5 Park. Orim. Rep. 410. Supreme Court, New Yorh Gen- eral Term, February, 1863. ^^t' 229. Charge of the recorder of the city of New York, in a case of murder committed after the passing of the act of 1860, stating the rules by which the jurors were to discriminate between murder in the first and second degrees, and manslaughter in the third and fourth degrees, and explaining the law of excusable and justifiable homi- cide. Lowenherg v. The People, 5 Park. Orim. Rep. 414. Supreme Court, New Yorh Q-eneral Term, March, 1863. 230. To convict of murder in the first degree, under the act of 1860, it is suflicient if premeditation and delibera- tion came into existence, with the intent to kill, on the instant of striking the blow by which the death was caused. id. 231. The prisoner was tried and convicted before the court of general sessions of New York, in December, 1861, for having murdered Samuel Hoffman in November, 1861, and was, found guilty of murder in the first degree, and, on the fourth day of January, 1862, was sentenced to suffer the punishment of death on Friday, the twentieth day of February, 1863, and to be confined at hard labor in the state prison until such punishment of death should be 472 HOMICIDE. inflicted. On error to this court the judgement was affirmed. Justice Ingraham dissenting. id. 232. H., having been convicted of murder, and been sentenced in March, 1859, to be executed, this court re- versed the judgment, because the legislature had 'subse- quently (in 1860) enacted a statute which forbade the execution of sentences of that character, and had required that such convict should be imprisoned for one year, and then executed, if the governor should issue his warrant for that purpose ; the court considering the provision for imprisonment in the same case to be an ex post facto law^ and holding it to be void. Held, that H. could not be again tried and convicted for the same murder. That the reversal of the judgment against her, proceeding as it did upon the absence of any law for the punishment of her offense, had effectually exempted her from being again tried and sentenced for the murder charged in the indict- ment, as it shielded her from the execution of the sentence already pronounced ; and was equivalent to an acquittal upon that charge. Eartung v. The People, 28 N. Y. Bep. 400. Cowt of Appeals, March, 1863. 233. Held, also, that the effect of the act of 1860, " in relation to capital punishment," &c., was to forbid, from the time of its passage, the infliction of the penalty of. death, simply, and unconnected with any other punish- ment, in any case, and to substitute for such penalty the year's imprisonment, and then the putting to death of the offender, in some form, if the governor shall so determine That the substitute might have the full effect intended as to future offenses, but could have no operation in respect to those already committed. id. 234. Held,further,th.&til[iQ act of April 17, 1861, (chap. 303,) " in relation to cases of murder," &c., repealing the act of 1860, and restoring the previous statutes, did not affect the case of H. ; the judgment reversing and annul- ling her conviction having been previously pronounced, and being res adjudicata between the people and her. id. HOMICIDE. • 473 235. It was also held, tliat the award of a new trial by this court, on reversing the previous judgment, was im- providently entered, the prisoner being entitled to her discharge, as the facts involved were contained in the record. ' id. ^IJa'; 236. The act in relation to capital punishment (ch. 410 of 1860) did not abolish the penalty of death for murder in the first degree. Lowenherg v. The People, 27 N. Y. Rep. 336. Court of Appeals, September, 1863. 237. It seems that the mode of execution by hanging was established by the common law, and, not having been abrogated by that statute, was the legal method of execu- tion while such act was in force, notwithstanding its re- peal of the Revised Statutes prescribing that punishment. Per Balcom, J. id. 238. Upon a conviction under the act of 1860, the court could not fix the day of execution. id. 239. The proper form of sentence under the act of 186(X indicated. Per Balcom, J. id. 240. Where the court of general sessions improperly sentenced the prisoner to be executed on a fixed.day, that being the only error in the proceedings, and the Supreme Court, after the day fixed for execution had passed, affirmed the judgment, without fixing a new day for execution, held, that the erroneous part of the sentence being void, and having become, by the lapse of time, incapable of any operation, the error was cured. id. °|5: 241. To constitute the crime of murder, the malice or design need not be proved. When the act is committed the law imputes a design. It proceeds from the rule that a man is presumed to intend to do what he really does. Therefore, if a man strike a blow with a deadly weapon, which necessarily or reasonably results in death, the law .will impute to him the design to destroy life ; and this, too, whether he be drunk or sober. Kenney v. The People, 27 How. Prac. Pep. 202. Supreme Court, BrooMyn Gen- eral Term, December, 1863. 474 • HOMICIDE. 242. Neither can the crime of murder be reduced to manslaughter by showing that the perpetrator was drunk, when the same offense, if committed by a sober man, would be murder. id. "SSu' 243. The plaintiff in error was tried and convicted of the crime of murder, committed after the passage of the act of April 17, 1861, (Laws of 1861, chap. 303,) and prior to the passage of the act of April 12, 1862, (Laws of 1862, chap. 197,) the indictment being found, and the trial and conviction had, subsequent to the passage of the last mentioned act. The court sentenced the prisoner to the punishment of death by hanging, on a day specified, without requiring any warrant to be previously issued by the governor for that purpose. Held, that as the offense was committed while the act of 1860, " in relation to capi- tal punishment and for the more certain punishment of the crime of murder," (Laws of 1860, chap. 410,) was in full operation, the judgment should have been the one prescribed by that act, and that the Supreme Court should have reversed the judgment which was actually given. Batzky v. The People, 29 N. Y. Bep. 124. Court of Ap- peals, March, 1864. (This case is also reported in 28 How. Prac. Rep. 112.) 244. Held, also, that a wrong judgment having been pronounced, although the trial and conviction were regu- lar, the prisoner could not be subjected to another trial, and would be entitled to his discharge, but for the ample authority conferred upon this court by the act of 1863 — Laws of 1863, chap. 226 — (upon the ground that the con- viction had been legal and regular, and that the error, if any, was in the sentence,) to remit the record to the oyer and terminer with directions to pronounce the judgment prescribed by the act of 1860. id. f^; 245. Form of an indictment for manslaughter. People V. Holmes, 6 Park. Crim. Rep. 25. Supreme Court, New York General Term, May, 1864. 246. On the trial of an indictment for murder, after it HOMICIDE. 475 had been proved that on Monday, the 30th of November, 1863, the prisoner came to a house of ill fame where the deceased was staying, broke open the door of her room, threw her upon the floor and stabbed her with a knife a great many times, of which wounds she died a few days after, it was held to be competent, on the part of the prosecution, to prove that, on the night of the day previous to the stabbing, the prisoner came to the house where the homicide occurred, and asked the deceased to go out with him away from the house, and that she refused; that the prisoner then struck her and bit her hand, and she still refused to go ; that the prisoner then went out and brought in an officer, and said that she had -stolen his watch, and that the officer then took both to the. station house and kept them locked up there all night ; that they were next morning let out, and the deceased went back to bed, when the prisoner made the attack' on her which resulted in the homicide, such evidence being proper for the, pur- pose of showing deliberation and malice. Walters v. The People, 6 Park. Grim. Bep. 15. Supreme Court, New York General Term, May, 1864. 247. In an indictment for murder, where the true name of the deceased is charged in the indictment, and proved on the trial, there is no variance, though it also appears that the deceased went by another name ; and where the name charged in the indictment is not the true name, yet if it is proved that the deceased was called by the name charged, it is sufficient, and there is no variance. id. 248. On the question of premeditation and malice, the court charged the jury that if the prisoner went to the house with the intent to kill the deceased, or if he went there without intending to kill her, but at the time he got hold of her and pulled her out of bed, a minute before the blow was struck, he conceived the intent to take her life, then he was guilty of murder ; held, that the charge was not erroneous. id. ^iX' 249, On the trial of an indictment for murder, the 476 HOMICIDE. defense interposed was insanity. The judge charged "that a man is not insane who knows right from wrong; who knows the act he is committing is a violation of law, and wrong in itself." Held, on review, that the charge was not erroneous. Willis v. The People, 5 Park. Orim. Rep. 621. Supreme Court, Albany General Term, Septem- ber, 1864. 250. Charge of Mr. Justice Peckham on a trial for murder. id. 251. "Where there has been a conviction in a court of oyer and terminer, and judgment has been stayed, the proceedings may be removed into the Supreme Court for review by certiorari ; 'where there has been a conviction and judgment, the- proceedings can be removed into the Supreme Court for review, only by writ of error. id. 252. The Supreme Court has no jurisdiction to enter- tain a motion for a new trial, on the ground of an irregu- larity which does not appear upon the record ; but after a writ of error has been returned, and not before, affida- vits may be read upon the argument to correct an error arising out of an irregularity prejudicial to the rights of the prisoner, which does not appear on the record, and where he has no other legal mode of redress. Per In- galls, J. id. 253. But a conviction will not be set aside and a new trial granted, where it is apparent that no injury resulted to the prisoner from the alleged irregularity. id. 254. A writ having been brought, and a return made after conviction and sentence in a capital case, affidavits were presented tending to show that S., one of the jurors, who had agreed to the verdict of guilty, had, before the trial, expressed the opinion that the prisoner was guilty and ought to suffer death; and that such expression of opinion was unknown to the prisoner and his counsel at the time of the trial. In opposition, the affidavit of the juror was read, denying fully and explicitly that he had ever formed or expressed any opinion, and other affidavits HOMICIDE. 477 •were read in corroboration. Upon a full examination of the affidavit, it was held that there was no ground for complaint on the part of the prisoner, and the applica- tions were denied and the judgment affirmed. id. S: 255. All who confederate together for the commis- sion of a felony, and are present aiding and assisting in its perpetration, are, in judgment of law, equally guilty of the felony committed. Oarrington v. The People, 6 Park, Grim. Bep. 336. Supreme Oowrt, Erie General Term, November, 1865. . 256. Where, on a trial for murder, there was some evi- dence tending to show that the prisoner had combined and agreed with others to commit a burglary, and to take the life of any person attempting to prevent the commis- sion of the crime or to arrest them, and that one of the number, other than the prisoner, shot a policeman who was attempting to arrest them, it was held not to be erro- neous for the court to refuse to charge "that there was no evidence in the case which would authorize a conviction," it being for the jury, and not for the court, to decide upon the sufficiency of the proof of guilt. id. 257. On a trial for murder, it is not erroneous for the court to charge the jury that they have a right to take into consideration all the evidence of the case, showing the acts and conduct of the prisoner previous to the com- mission of the alleged offense, as well as the testimony of the witnesses speaking directly to his character, for the purpose of determining what his character was. id. l^^ 258. A charge that a design to take life constitutes murder in the first degree, is not the statutory definition of murder in the first degree ; and the judge should in- struct the jury that it requires a premeditated design to convict of that offense. Morgan, J. People v. Lamb, 39 N. Y. Bep. 360, 2 Keyes. Court of Appeals, January, 1866. ^1866: 259. Where a person is convicted upon undisputed evidence of a capital offense, and an indispensable ele- 478 HOMICIDE. ment to constitute such crime is wanting, there being no proof in the case of its existence, the Supreme Court will reverse, on writ of error, although no valid exception was taken to any decision made at the trial, or to the charge of the court. McGann v. The People, 6 Park. Crim. Bep. 629. Supreme Oowt, Albany General Term, September, 1866. 260. The prisoner was convicted of murder. The evi- dence showed the homicide . was committed by stabbing the deceased with a knife, in immediate retaliation for insulting words and a violent blow struck the prisoner by the deceased. Held, that in the absence of premeditated design, which was clearly wanting, the conviction was unauthorized, and judgment was reversed. id. ?855. 261. When prisoners are jointly indicted, and they elect to have separate trials, it has always been allowed to the district attorney to determine which of them he will first put upon his trial. It is purely a matter of discretion with him, and his discretion will not be interfered with by the court ; and a refusal thus to interfere forms no ground of exception. Patterson v. The People, 46 Barb. Bep. 625. Supreme Court, Onondaga Qeneral Term, Octo- ber, 1.866. 262. On the trial of a criminal ease, the prisoner cannot be examined as a witness for himself ; nor can one jointly indicted with him be examined as a witness in his behalf. id. 263. The common law rule always excluded co-defend- ants from testifying for each other ; and the relaxation of the rule, as to such parties, and in respect to the defendant himself, effected by section 399 of the Code, applies only to civil actions. id. 264. Every man must be held accountable for the con- sequences of his acts consciously and deliberately per- formed, unless he can show that he is in that condition which stamps him, as an irresponsible being. id. 265. Accordingly held, that an offer to show the mental HOMICIDE. 479 grade and capacity of the prisoner, whicli offer was made not for the purpose of proving him to be non compos mentis, but to show the measure of his intellectual capacity, was rightly rejected. id. 266. The provision of the Kevised Statutes, relative to justifiable homicide, as justly interpreted in the case of Shorter v. The People, (2 N. Y. Eep. 193,) is, that one who is without fault himself, when attacked by another, may kill his assailant, if the circumstances be such as to fur- nish reasonable ground for apprehending a design to take his hfe, or to do him some great personal injury, and there is imminent danger that such design will be accomplished ; and this, is so, although it may afterwards turn out that the appearances were false, and there was in fact no such design,. and no danger of its accomplishment. id. 267. On a trial for murder, the jury were told that they were to find the prisoner guilty beyond a reasonable doubt ; that the question for them to meet (the killing having been established beyond controversy) was whether it was a justi- fiable homicide, and if they so found, their verdict must be one of acquittal. That if the prisoner had reason to believe that the deceased meant to take his life, or commit some great violence upon him, he had a right to resort to violence, and even to take life. That they were to inquire whether the circumstances, conduct and acts of the deceased were such as would fairly and reasonably in- duce such belief, and if they were, the prisoner was justi- fied in acting upon those appearances, whether they were real or feigned. That the inquiry was, whether the jury were satisfied that the prisoner, when he fired the gun, had reason to believe, under the circumstances then trans- piring before him, that the deceased had a revolver and was going to shoot him. Held, that the charge presented to the jury the rule which justifies the taking of human life in self defense, in the most favorable aspect for the prisoner, and gave him the fullest benefit of the rule pre- scribed by the statute as interpreted by the courts. id. 480 HOMICIDE. 268. The judge was requested to charge that if the pris- oner did really, and in good faith, apprehend such design and danger as above stated, then the jury should acquit, though the fact turned out to be that the prisoner was mis- taken, and that no such design, or danger, did in truth exist. The judge refused to charge, in the form requested, " that if the prisoner did really, and in good faith, appre- hend,"' &c., remarking that that turned entirely upon the operation of the prisoner's own mind, without regard to whether he had reason thus to believe. Held, that the in- troduction or omission of the words objected to by the judge, did not really vary the legal proposition which was clearly put in the charge and substantially repeated in the language of the judge in responding to the request ; and that such refusal .to charge was not a ground, of error, id. 269. The judge was also requested to charge the jury that if they believed the prisoner ■Was a private soldier, and saw his superior officer unlawfully resisted in the per- formance of his duty, and believed that he was ordered to fire, and did so in obedience to what he supposed a law- ful command, then they should acquit. This was declined. Held, that there being no testimony going to establish any such condition of things as would warrant such a command, even if the officer had power to give it, nor evi- dence to show that at the time the homicide was perpe- trated the officer was being resisted in the performance of any duty, the proposition was a mere abstraction, unwar- ranted by any facts appearing on the trial, and the instruc- tion was therefore properly refused. id. 270. Where a remark of a judge, in refusing to charge as requested, though erroneous, does no harm, because it was a mere abstraction, having nothing to do with the matter in hand, it will afford no ground for reversing the judgment, or granting a new trial. id. 271. The rule on this subject is the same in criminal as in civil cases. id. 272. "Where, on a trial for murder, the killing is proved HOMICIDE. 481 and conceded, and there is no doubt as to the identity of the prisoner, it is for him, in making out a justification for the act, to satisfy the jury, beyond reasonable doubt, that he did apprehend, and had reason to apprehend, that he was in imminent danger of his life, or of the infliction of some great personal injury. id. 273. It would be reversing the whole order of the trial, and the burden of the proof, if it devolved upon the people not only to prove the killing, but to negative any possible defense • that the statute or common law affords to an alleged offender charged with crime. Per Bacon, P. J. id. 274. The judge was requested to charge the jury that if they, upon the evidence, entertained a reasonable doubt as to whether or not the prisoner had reason to apprehend personal injury, they should acquit. The judge declined to put the proposition in that form, stating the rule to be that the jury were to be satisfied, beyond a reasonable doubt, that the prisoner had reasonable ground to believe himself in danger, held not erroneous. id. S: 275. Charge of the court to the jury in a case of murder, explaining the character and weight and applica- tion of different kinds of evidence, the law of murder and manslaughter, and the duties of the jury. Gardiner v. The People, 6 Park. Orim. ^ep. 155. Supreme Court, Broome General Term, November, 1866. 1367. 276. On a trial for murder, the prisoner has no right to ask the court to charge the jury that they may infer from the presence of intoxication, the absence of premeditation. O'Brien v. The People, 48 Barb. Hep. 274. Supreme Oowrt, New York General Term, January, 1867. 277. A charge that, " if there be sufficient deliberation to form a design to take life, and to put that design into ex- ecution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at the instant of striking the fatal blow, or whether it be contemplated for months," is a very sufficient defini- 31 482 HOMICIDE. tion of murder in the first degree, when occurring with premeditation. id. fs^e?;: 278. A general verdict, in a criminal case, is equiv- alent to a special verdict finding all the facts which are well pleaded in the indictment. Fitzgerald v. The People, 49 JBarb. Bep. 122. Supreme Court, Dutchess General Term, May, 1867. 279. Where, upon an indictment charging the prisoner with having committed the crime of murder in the first degree, the jury find a general verdict, the court is justi- fied in pronouncing a judgment sentencing him to be hung. id. 280. A common law indictment for murder is good and sufiicient in form, to charge the statutory definition of the crinie; i. e., the premeditated design to effect the death of the person killed, which the statute makes an indispensable ingredient of the crime, is comprehended in the averment of a willful and felonious killing with malice afore^ thought. id. •^"s'Jf: 281. On the trial of an indictment for murder, it appeared that the meeting of the accused and the deceased was casual, they having had no previous acquaintance; that the accused, taking offense at some trifling remarks made by the deceased, in passing him in the street, near midnight, stabbed the deceased with a knife, which re- sulted in immediate death. Seld that the killing, though groundless, and probably without any intent to take life, was "by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any design to effect the death of any particular individual ;" and that the evidence would have justified a verdict of murder in the first degree ; but if that crime was not established, it was clearly manslaughter . in the third or fourth degree. That if not one of these offenses, there was no crime committed, within the defini- tions of the statutes. People y. Skeehan, 49 Barb. Rep. 217. Supreme Court, New York General Term, June, 1867. HOMICIDE. 483 282. Held, also, that the offense was not within the defi- nition of murder in the second degree, and the jury ought not to have been instructed that there was evidence upon which they could be permitted to find such a verdict, id. ^^j] 283. Premeditation proves a malicious intention, when applied to a homicide ; and when the killing occurs with an intent to effect death, however instantaneously the intent is formed prior to the commission of the deed, the crime is murder. Lanergan v. The People, 50 Barb. Sep. 266. Supreme Court, New York General Term, November, 1867. 284. Under the law as it existed prior to 1860, the pen- alty of that crime was death. Since the act of 1862, such killing is murder in the first' degree, and the penalty is the same. The word " premeditated " is in the same connection in the old and in the present statute, and must have the same meaning and construction. id. 285. It was the intention of the legislature, by the act of 1862, dividing the crime of murder into two degrees, (Laws of 1862, ch. 197, § 5,) to embrace killing, without premed- itation or design, by a person in the commission of a felony other than arson in the first degree, within the definition of murder in the second degree. id. 286. A construction which should obliterate the last " or " occurring in section 5 of the act, would remove the obscurity now existing, and give an express affirmative definition to murder in the second degree, and be in har- mony with the intention of the legislature. Per Leonard, P. J. id. 287. Sutherland, J., in dissenting from this construction of the 5th section, says the last " or " in that section should read "and." Compare that section with section fourth. The killing, without premeditated design, in the commission of a felony, is not excepted in the last sentence of ,the fifth section, but is made murder in the second, de- gree, by it. id. 288. Requests to charge which assume that an intent to 484 HOMICIDE. kill, formed at tlie time of the commission of the act, will not be evidence of premeditation, are not consistent with the rule of law on that sulg'ect ; and the judge is not bound so to charge. id. 289. An indictment for murder charged the prisoner with killing the deceased, in the first count, with a knife ; in the second, with an axe ; and in the third, by beating and choking. Held, that there was no error in the judge refusing to require the public prosecutor to elect between the three counts in the indictment. id. fS. 290. By the statute of 1862, the law of murder was altered in two respects only, viz : First, by the Re- vised Statutes the killing was murder, ""When perpe- trated without any design to effect death, by a person engaged in the commission of a felony." By the statute of 1862, this was only murder " when perpetrated in commit- ting the crime of arson in the first degree." Second, the crime of murder in the second degree was created, and that offense consists in a killing, without a design to effect death, by a person engaged in the commission of any felony. Fitzgerald v. The People, 37 N. T. Bep. 113. Court of Appeals, January, 1868. 291. It is the duty of the judge, at the trial, to explain to the jury the law of murder in its different degrees, and the law of manslaughter, and of the jury to render such verdict as shall be required by the evidence. Unless there is some objection in the record, it is assumed that this is done, and that the verdict is in accordance with the evi dence. id. 292. The case of The People v. Enoch, (3 Wend. 159,) cited and approved. id. •'i^s?!: 293. An intent to kill, formed on the instant of the killing, is within the meaning of the word " premedi- tated," under the act of 1862, amending the law of mur- der, as well as under the Revised Statutes. Lanergavi v. The People, 6 Parle. Grim. Bep. 209. Court of Appeals, June, 1868. INDECENT EXPOSUEE. 485 294. Drunkenness is no excuse for crime, and a person ■who is voluntarily in that condition is responsible for the consequences of his acts. id. 295. Evidence of intoxication is admissible on trials for murder, because it may tend to cast light upon the acts, observations or circumstances attending the killing ; but intoxication must result in a fixed mental disease, of some continuance or duration, before it will have the effect to , relieve from responsibility for crime. id. 296. Concealment is evidence of malice, and tends to establish a premeditated design to commit the deed. id. Inbecbnt Exposure. fifs. 1. On the trial of an indictment for a misdemeanor in exposing the bodies of the defendants, naked and un- covered, to the public view, the intent with which the act was done is a material ingredient in the offense, and is a question of fact, for the consideration of the jury, under all the circumstances of the case. Miller v. The People, 5 Barb. 203. Supreme Court, New York General Term, January, 1849. 2. It is for the jury to find whether there has been an intentional, wanton and indecent exposure of the persons of the defendants, at such a time and place, and in such a manner, as to offend against public decency. And a charge which withdraws that question from the consideration of the jury, as a question of fact, is erroneous. id. Indictment. O'j'ri 1. Where a person has been convicted on an in- dictment for an assault and battery, and the attorney general moved for judgment, but showed no circumstances attending the offense by which the court could judge of the degree of punishment which ought to be inflicted, a mere nominal fine was imposed. The People v. Cochran, 2 Johns. Cases, 73. Supreme Court, October, 1800. %'i'; 2. The court of general sessions of the peace has 486 INDICTMENT. power to discharge a jury, without the consent of the prisoner, on an . indictment for a misdemeanor. People V. Benton, 2 Johns. Cases, ^75. Supreme Court, April, 1801. {Kent, J., in this case, decided that an inspector of election could be indicted and punished at common law, upon the ground that every willful neglect of a public trust affecting the community, is an offense at common law.) 3. Where a jury could not agree on a verdict, after being out all night and part of a day, and the court of sessions discharged them- without the consent of the party, the discharge was held to be proper, and the prisoner was again arraigned on the indictment for the same offense, id. ■'i^^i'. 4. A. and B. were indicted for a conspiracy to defraud C. B. was acquitted, and the jury being unable to agree on a verdict whether A. was guilty or not, the court, against the consent of A.> ordered a juror to be withdrawn, and the jury discharged. It was held that the court may, in their discretion, in a criminal case, dis- charge a jury who are unable to agree on a verdict, against the consent of the prisoner, who may be brought to trial a second time for the same offense. People v. Oloott, 2 Johns. Cases, 301. ' Supreme Court, July, 1801. °802. 5- Where an indictment was found at the general sessions of the peace of the county in which the defend- ant was convicted at the oyer and terminer, and the in- dictment was removed into this court, with a caption stating that the grand jury were sworn and charged, omitting the words "then and there," on motion in arrest of judgment, the omission of the words was held fatal, and the judgment arrested.' P-eople v. Guernsey, 3 Johns. Cases, 265. Supreme Court, October, 1802. ^Jii"3 6. In an indictment for forging a bill of exchange or bank bill, it is not necessary to insert the marks, letters or figures used in the margin of the bill, for ornaments or the more easy detection of forgeries, as such marks or INDICTMENT. 487 ciphers form no part of the bill. The People v. Franklin, 3 Johns. Oases, 299. Supreme Court, January, 1803. f^l: 7. Indictments for a second offense, where the punishment is increased, must set forth the record of the former conviction. People v. Young, 1 Qaines' B. 37. Supreme Court, May, 1803. fgjf; 8. An indictment against an attorney for extorting more than his legal fees, must state the sum due, and the specific excess. People v. Buss, 1 Oaines' B. 131. Su- preme Court, August, 1803. Ysos.' 9. If a record of an indictment he lost, the court will grant leave to file one nunc pro tunc. People v^ JBur- dich & Case, 3 Caines' B. 104. Supreme Court, May, 1805. J5°J: 10. Where an indictment stated that the prisoner, with force and arms, to wit, with knives, hatchets, &c., made an assault upon E. G. with intent to commit murder upon him, and did then and there cut, beat, strike, wound and ill treat the said E. G-., to his damage, &;c., and against the peace, &c., it was held to be sufficient. It is enough to state, with the usual precision, the facts necessary to constitute an assault and battery, and aver the intent with which it was made. The People v. Petit, 3 J. B. 511. Supreme Court, November, 1808. ^^^' 11. A person indicted for forging "an order for the payment of money," is not entitled to a peremptory challenge, it being an oflense punishable only by imprison- ment for years. People v. Howell, 4 J. B. 296. Supreme Court, May, 1809. 12. In all cases where a right of peremptory challenge does not exist, two or more persons may be indicted and tried jointly or separately, at the discretion of the court, id. 13. Wh^her two persons indicted for a capital offense, and entitled to a peremptory challenge, can be tried together against their consent. id. 14. Where a jury was sworn and impanneled, to try a prisoner on several indictments, after giving a verdict of not guilty on the first indictment, they separated and 488 INDICTMENT. went to a tavern, and then returned into court, when the prisoner was tried by the same jury on the other indict- ments, the proceedings as to the other indictments were .held irregular; but whether the prisoner is to be dis- charged, or a new trial granted : Quere. The People v. Meany, 4 J. JR. 294. Supreme Court, May, 1809. ^ifs] 15. Where A. was indicted for aiding and assist- ing to escape from jail one P. M., committed " on suspi- cion of having been accessory to the breaking the house of 8., with the intent to commit a felony," it was held that the defendant was. not indictable under the statute, (Sess. 24, ch. 58, §§ 12, 13,) because P. M., the prisoner, was not committed under any distinct and certain charge oi felony. People v. Washburn, 10 J. H. 160. /Supreme Court, May, 1813. 16. It must be alleged in an indictment for false pre- tenses, and it must appear on the trial, that credit was given to the false pretenses, and that by it the person defrauded was induced to part with his property. K credit was given independently of the false pretense, or if. the property was obtained by any other inducement, then the indictment cannot be supported. The People v. Conger, 1 Wheel. Cases, 448. Golden, Mayor. New York, May, 1813. . fs"^; 17. A person confined in jail who attempts to escape by breaking the prison, in consequence of which a fellow prisoner confined for felony escapes from the jail, is guilty of an offense within the 20th section of the stat- ute, (Sess. 36, ch. 29, 1 N. E. L. 412,) and may be pun- ished with imprisonment in the state prison. People v. Rose, 12 J. B. 339. Supreme Court, August, 1815. llil 18. An indictment for the forgery of » ten dollar bill will lie, where a genuine one dollar bill is altered to a ten. Joseph Rhodes' case, 1 City Hall Recorder, 1. Before Badcliff, Mayor. New York, January, 1816. 19. "Where one of two partners dies, leaving a will, and before tils executors proceed to the execution of their INDICTMENT. 489 trust, and before any distribution of the property of the testator is made, a part of the partnership property is stolen from the possession of the survivor ; an allegation ■in an indictment for larceny, that the property stolen be- longed to the survivor, and the executors of the deceased, without naming the executors, is sufficiently laid, James Jtidgway's case, 1 City Hall Becorder, 3. Before RadcUff, Mayor. New York, January, 1816. 20. An indictment cannot be supported for obtaining goods under false pretenses, in case where a contract is made between the vendor and vendee for the payment of cash on the delivery, although the vendee, at the time the contract is made, makes a false representation to the vendor in relation to his name and occupation, and, with- out paying the cash, procures a cartman, loads the goods and deposits them at the store of a third person, the vendor still continuing with the goods and claiming them as his own. In such a case the right of property is not diverted. John, Ring's case, 1 City Mall Recorder, 7. Before Radcliff, Mayor. New York, Janua/ry, 1816. " 21. In an indictment for grand larceny, the ownership may be laid in him who hath a qualified property in the goods, , Frederick Williams' case, 1 City Hall Recorder, 29. Before Radcliff, Mayor. New York, January, 1816. f^i^: 22. An indictment for larceny cannot be supported for stealing bills or notes not payable in money. Feter Linnenden's case, 1 City Mall Recorder, 30. Before Rad- cUff, Mayor. New York, February, 1816. (See 3 R. S. 5th ed, 958.) "m?" 23, In the traverse of an indictment for burglary, which also contains a count for grand larceny, in stealing goods at the time the burglary was committed, should the goods stolen be found in possession of the prisoner, with- out his giving any account of his acquiring such possess- ion, but should the prisoner, nevertheless, produce some testimony which renders the commission of the burglary in the least doubtful, it is the safer course to acquit him 490 INDICTMENT. of the burglary and find him guilty of the grand larceny. Edward Latham's case, 1 City Hall Becorder, 45. Before Biker, Becorder. New York, March, 1816. 24. If A. own a tenement and hire it to B,, in which a burglary is committed, can an indictment for that offense be maintained, which states the burglary was committed in the house of B ? Quere. id. Isisl' 25. Where the case of two persons for grand lar- ceny has been presented to the grand jury, and the names of both are indorsed oa the back of the indictment, and also the words " a true bill," as if both were actually indicted, and the prisoners, bn being arraigned, plead not guilty; on the trial of such indictment, after the jury is sworn in the common mode to try both the prisoners, should it be discovered that the name of one of the pris- oners has been omitted, by mistake, in the body of the indictment, it is a matter of discretion with the jury to acquit the prisoner not named from the charge, or to pass no verdict whatever in his case, or to return the spe- cial facts, and in either mode they may adopt, to leave the legal result for the decision of the court; and the prisoner not named in the body of the indictment is a competent witness in favor of the other. Edward Van Orden and James Stewart's cases, 1 City Hall Becorder, 62. Before Biker, Becorder. New York, April, 1816. 26. In a case where a man steals goods, in one county of the state, and is arrested in another with the goods in his possession, he may be indicted and tried in the latter place ; the continuance of the trespass and felony amounts to a new taking and carrying away, in any county, wherever he may be found in possession of the goods. John Paine' s case, 1 City Hall Becorder, 64. Before Biker, Becorder. New York', April, 1816. ^1816.' 27. where divers pretenses, alleged to be false, are laid in the same count in an indictment, and either of them, sufficient within itself, is substantially proved to be false on the trial, the indictment is sufficiently supported ; INDICTMENT. 491 nor is it necessary that every pretense so laid should be proved false. Mordecai Lazerus' case, 1 Oity Hall Be- corder, 89. Before Badcliff, Mayor. New York, Jwne, 1816. fg^: 28. On the trial of an indictment for the forgery of a check on a bank, and for uttering and passing such check, knowing it to be forged, where, from the general tenor of the whole check, it appears uncertain whether the name of the person to whom the money in the check is payable, is Banker, Barker or . Bunker, and in those counts in the indictment, on which the public prosecutor relies, a fac simile or imitation of the name of the payee is attempted to be made ; on an objection to these counts, on the ground of a variance between the name in the check and that in the indictment, it was held by the court to be no variance, and mere matter of opinion and specu- lation, Isaac Voshurgh's case, 1 City Hall Becorder, 130. Before Badcliff, Mayor. New York, August, 1816. 29. The arresting of judgment after conviction, on an indictment for a felony, is not a bar to a second indict- ment for the same offense, although the second indictment is precisely similar to the first. People v. Oasborus, 13 J. B. 351. Supreme Court, August, 1816. ^^: 30. It seems that a general understanding between two or more, to rob or defraud others, without reference to the particular act laid in the indictment, is sufficient to support the charge of conspiracy. John Storm's case, 1 City Ball Becorder, 169. Before Badcliff, Mayor. Neio York, November, 1816. 31. Two or more prisoners, jointly indicted for the for- gery of bank paper, and passing the same, knowing it to be forged, are not entitled to a separate trial as a matter of right; but the court, for special reasons shown, will order a separate trial as a matter of favor. (But see 3 E. S. 5th ed. 1028.) Thomas Shaw and Philip HasMn's case, 1 City Ball Becorder, 177. Before Badcliff, Mayor. New York, November, 1816. 492 INDICTMENT. 32. It seems that where the wife is a material witness in favor of one indicted with her husband, the court will grant a separate trial. id. fg^i^: 33. On the trial of an indictment for manslaughter, stating the offense to have been committed in the ninth ward of the city and county of New York, and it appeared that the offense, if any, was committed in another county, held that the court of general sessions of the city and county of New York had no jurisdiction. Oaleh Griswold's case, 1 Oity Mall Recorder, 181. Before Badcliff, Mayor. New York, December, 1816. 34. In such case, where the jury acquit the defendant, the court will suspend his discharge until an application can be made to some magistrate having authority, to re- cognize the defendant to appear at the next court of oyer and terminer to be held in the county where the crime was committed. id. fj^i^: 35. An indictment, at common law, cannot be maintained for a mere trespass. Peter Nelson's case, 2 City Hall Recorder, 30. Before Badcliff, Mayor. New York, February, 1817. 36. It seems that, in an indictment, a count for highway robbery includes, within itself, grand or petit larceny, or assault and battery. Lawrence Plato and others' cases, 2 Oity Hall Recorder, 31. Before Badcliff, Mayor. New York, February, 1817. 37. A grand larceny cannot be divided into several lar- cenies ; and where a prisoner stole several articles at the same time, the property of different persons, and several indictments were found by the grand jury, the court directed the public prosecutor to select one of the indict- ments for trial, and to enter a nolle prosequi on the others. Jacob Sh'ourt's case, 2 Oity Hall Becorder, 37. Before Bad- cliff, Mayor. New York, February, 1817. ""fs™,^' 38. In an indictment for burglary, the ownership of goods belonging to A. and B., severally, may be stated as belonging, in the aggregate, to A. and B. without a INDICTMENT. 493 separation of interests, Abraham Van Biper's case, 2 C% Hall Becorder, 45. Before Badcliffy Mayor. New York, March, 1817. 39. It seems that the breaking and entering a house in the night time, feloniously, is the gist of this offense, rather than the consummation of the intent. id. 40. A conspiracy to obtain goods by false pretenses, cannot be supported against a defendant, on the ground, merely, that in his examination in the police he alleged that a man living with the person in whose name the goods had been fraudulently obtained by the defendant, had told the defendant to go and obtain such goods. Joseph Heath's case, 2 City Hall Becorder, 54. Before Bodman, Mayor. New York, March, 1817. 41. That which, in an examination of a prisoner, appears to be a mere excuse, framed by him for his conduct in a fraudulent transaction, can never support a material alle- gation in an indictment, which requires positive proof, id. ^^^\ 42. On the trial of an indictment for stealing a hog, it appeared that at the time the felony was committed, the animal was dead and partly dressed ; held, that the description in the indictment was sufficient, as the com- mon acceptation of the name of property governs the description in an indictment. Daniel Beed, John Lenning- ton and Bobert Beed's case, 2 City Hall Becorder, 168. Before Badcliff, Mayor. New York, November, 1817. ff,"j; 43. An indictment which alleged that by means of divers false pretenses, specifically stated, the defendant obtained ten dollars in money of the prosecutor, is not sup- ported by proof that he was deprived by such false pre- tenses of a bank bill of ten dollars, for a bank bill, in contemplation of law, is not money ; money means specie, and whenever bank notes become the subject of indict- ment, they ought to be described as such. In the pre- cedents of indictments for stealing bank bills this rule appears to have been pursued, and there is no reason why it should be departed from. Lewis Smith's case. 494 INDICTMENT. 3 City Hall Recorder, 4. Before Radcliff, Mayor. New York, January, 1818.. 44. An indictment alleged that S., pretending to C. that he, S., had the sum of twenty-five dollars, in five dol- lar bills, in his pocket-book, which bills would not pass without a discount, and intending to cheat and defraud C. of his money, delivered the said pocket-book to him ; and that C. thereupon, at the request of S., loaned him ten dollars, supposing and believing that the sum of twen- ty-five dollars was in the pocket-book, whereas, in truth and in fact, no money was therein. It was held that this indictment, on its face, did not contain an offense against which ordinary prudence could not guard, for a man of ordinary prudence would have opened the pocket-book and examined it to ascertain whether the money was there, before parting with his property on any security he sup- posed was contained in the pocket-book ; an^ that it was not supported by the proof that S., immediately before the delivery of the pocket-book, counted out one hundred dol- lars in bank bills, on a Philadelphia bank, in presence of C, and, by a sleight of hand maneuver, slipped the money into his coat sleeve, unseen by C, who supposed that S. returned the money to the pocket-book ; although an arti- fice of that nature is within the statute, yet it should be ex- plicitly stated in the indictment. id. fg^i^; 45. An indictrnent ibr a conspiracy should allege that some specific act, of a criminal nature, was agreed to be performed by the conspirators, or that they agreed to accomplish some lawful purpose by criminal means ; oth- erwise such indictment cannot be maintained. Charles Cromwell and Richard Meld' s case, 3 City Hall Recorder, 34. Before Radcliff, Mayor. February, 1818. 46. In an indictment for a conspiracy, it was alleged, in substance, that C. and F. conspired to cheat 0. and S. of their goods by means of this : • that C. should represent to 0. and S. that he was in solvent circumstances, and able to pay his debts, and also, that H. and F. would indorse INDICTMENT. 495 his note for the goods ; and that, by reason of such repre- sentation, 0. and S. parted with their goods on a credit. On a demurrer, it was held that this indictment could not be maintained. id. 47. The only material allegations in the indictment are, that C. represented himself as being solvent, and that PI. and F. would be his indorsers, on which the credit was given. It is not alleged that H. or F. had any agency in the negotiation with 0. and S., or made any representa- tion to them to induce them to give the credit to C. 0. and S. acted on the word of C. alone, and chose to put con- fidence -in what he said; and all he said was that he was solvent and would give an indorser. No artifice or circumvention was used, and nothing was done out of the ordinary course of business and against which common prudence could not guard. It was in the power of O. and S. to inquire for themselves as to the credit of C, and also to ascertain whether H. and F. would be his indorsers, and it was also in their power to keep them- selves completely secure, by retaining the possession of the goods until the note with the indorsement was furnished. When goods are sold for cash or for notes, the delivery of the goods and the payment of the money, or furnishing the notes, are legally to be considered as covenant acts ; and if, from the confidence placed in a purchaser, or from courtesy, the goods are delivered without the money or notes, a non-compliance with the contract cannot after- wards be converted into a criminal oflense. id. 48. In an indictment for burglary, the offense was stated to have been committed in the tenth ward of the city of New York, and the evidence on the trial was, that the locus in quo was in the sixth ward. Held, that the indict- ment for that offense was defective : the place is the very essence of the offense, and is material. John Qarny's case, 3 Oity Hall Becorder, 44. Before Badcliff, Mayor. New York, February, 1818. '^11' 49. In a case where the prisoner was convicted on 496 INDICTMENT. an indictment for petit larceny, where tlie property stolen was described as an unmade pair of trowsers ; it was held, under objection, that the 'common acceptation of prop- erty, among artisans dealing in the article described, was sufficient ; that the terms unmade and unfinished were synonymous. Charles Moon's case, 3 City Rail Becorder, 92. Before Golden, Mayor. New York, June, 1818. 50. The oath assigned as perjury, in an indictment, was that the defendant " saw M. Q. and M. F. hand a trunk through a window in the rear of the house of J. N. G. on the same night it had been stolen, and that he saw the same trunk handed to J. N. G. through the said window, and that he saw the said J. N. Q. place the same in the smokehouse." On the trial of this indictment, it appeared that on the former trial the defendant swore that he saw a man on the back stoop, (whom he afterwards recognized to be J. N. G-.,) and two women at the window, hand him out something about a foot and a half long, which looked like a trunk. Though this was the subject matter of the former trial, and was frequently referred to during its progress, it was held) that the variance between the oath set forth in the indictment and the proof, was fatal. Beuben Bider's case, 3 Oity Hall Becorder, 93. Before Golden, Mayor. New York, June, 1818. fj'JI; 51. The defendant was indicted for keeping a dis- orderly house in the seventh, and it appeared from the tes- timony of the principal witness, that the house was in the fourth ward of the city ; on objection taken it was held, that where the place constituted the essence of the offense, as it did in this case, it became material, and should be laid cor- rectly. This species of offense fell within the exceptions to the general rule. Michael McDonald's case, 3 Gity Sail Be- corder, 128. Before Golden, Mayor. New York,Aug.,1818. Ills! 52. B. hired of another an entire house, and rented several rooms therein to two other tenants, retaining the other rooms for his own use. He was indicted /or keeping a disorderly house, generally. It was held, that for the IHDICTMENT. 497 purpose of this indictment, the part occupied by him was well alleged to be his house; and that it was not necessary to allege that he kept certain rooms, &c. Martha Boyd and Christopher Boyd's case, 3 City Hall Becorder, 135. Before Golden, Mayor. New York, September, 1818. 53. To support an indictment for the forgery of an order for the payment of money under the statute, it is unneces- sary that the name of a person in existence should be forged, if it appeared it was passed for the purpose of defrauding the bank ; nor is it necessary, in an indictment at common law, for the forgery of an instrument purporting to be a receipt, that the name of the person against whom the instru- ment is alleged to be forged, should be spellied right; for if the jury believe that his was the name intended, and that the prisoner had a criminal intent, either in the for- gery or passing of such instrument, it will be their duty to convict him. John Grant and Christian Hopper's cases, 3 City Hall Becorder, 142. Before Golden, Mayor. New Yorh, September, 1818. Pjfg 54. Though the son be under the age of twenty- one years, yet, if he work for himself, and purchase goods which are afterwards, and while in his possession, stolen, they must be laid in the indictment as his property, and not that of his father. William Wyne's case, 3 City Hall Becorder, 192. Before Golden, Mayor. New York, Octo- ber, 1818. \na.' 55. On the trial of a case for obtaining goods by false pretenses, the proof should correspond with the in- dictment ; and where the prisoner was charged in the indictment with obtaining, on the let day of December, fifteen dollars and forty-one cents, the money of L., by falsely pretending to him that a certain check for twenty- three dollars and forty-one cents, on the Mechanics' Bank, purporting to have been drawn by one Sainuel B. Sher- man, was good, being drawn by a man in Connecticut, of good credit, and that the check would be paid at the bank; and it appearing from the testimony that, previous to the 32 498 INDICTMENT. time laid in the indictment, the prisoner engaged a pair of boots of the witness, a clerk of L., for eight dollars; and, after they were finished and delivered, the prisoner said that he would give a check on the bank. At that time he did not show any check, but promised to call as he went to court. The witness, not receiving his pay, called sev- eral times and sent for it, but to no purpose. About the 1st December, the prisoner came to the store and told the witness if he could change a check for twenty-three dollars and forty-one cents, he, the prisoner, would pay for the boots. The witness changed the check and carried it to the bank, but no person by the name of the drawer had an account there, and payment was refused ; held, this proof did not support the indictment, and the prisoner was acquitted. William. A. Ooffey's case, 4 Gity Hall Re- corder, 52. Before Golden, Mayor. New York, April, 1819. f^l: 56. To set forth a merchant's bill of parcels, with the usual abbreviations, in an indictment for obtaining the goods contained in such bill, by false pretenses, is insufficient. James Ganger's case, 4 Gity Hall Recorder, 65. Before Golden, Mayor. New York, May, 1819. 57. No false pretense, made after the delivery of goods, can support an ' indictment for obtaining such goods by false pretenses. id. 58. The false pretenses must be predicated on some mat- ter or thing pretended then to be in existence, but which, in truth, was not. id. 59. An indictment for this offense should contain a full, explicit and categorical denial of the truth of the pretense or pretenses charged. id. 60. The false pretense charged in the indictment should be denominated as such, and not as a false represent- ation, id. 61. An indictment, which alleged that the defendant pretended that he was a man of wealth and credit, and, in a subsequent part, contained an explicit averment that INDICTMENT. 499 he was not, is thus far sufficient ; but where the indictment further alleged that the prosecutor, trusting to the prom- ises and assurances of the defendant, and, being deceived by his false pretenses, delivered the goods, it was held insufficient. id. 62. The indictment should allege that the false pretense or pretenses charged was or were the inducement to the delivery of the goods. id. 63. Where an indictment alleged that the defendant falsely pretended that a mortgage, assigned by him to the prosecutor, was good security for the amount of certain goods obtained of him by the defendant, and averred that it was of no value, it was held incumbent on the public prosecutor to show clearly that the mortgage was worthless. William Shotwell's case, 4 City Hall Recorder, 75. Before Golden, Mayor. New York, May, 1819. 64. In such case it is sufficient to set forth the substance of the mortgage in the indictment. id. ?8°i^. 65. Though, in a case of perjury, it must appear from the matter spread on the face of the indictment that the oath was material, in the subject of inquiry, yet it is not necessary that it should be expressly averred in the indict- ment that such oath was material. Charles Tomlinson's case, 4 City Hall Recorder, 125. Before Golden, Mayor. New York, October, 1819. 66. Where an indictment alleged that the prisoner swore " that he was then the owner of the house number 106 Mulberry street," and proceeded by way of innuendo, thus, (meaning a certain house of that number in Mul- berry street, in the city of New York aforesaid;) it was held, that those words in the innuendo, designating the city, were but explanatory, and did not extend or enlarge the meaning of the matter preceding. And it was further held, that the averment of the falsity of that oath, in the indictment, " that he was not the owner of the house 106 Mulberry street," without the words, " in the city of New York," was sufficient. id. 500 INDICTMENT. 67. A prisoner, having been indicted for stealing the goods of Isaac Jenhins, and it appearing on the trial that the goods belonged to Isaac Jenhinson, was acquitted on that ground. Afterwards the prisoner was indicted for stealing the same goods, belonging to Isaac Jenkinson. To this indictment the plea of autrefois acquit was inter- posed, and the public prosecutor demurred. It was held that the demurrer was good. The offense of stealing the goods of A. is not the same felony as that of stealing the same goods, the property of B. Terence Hughes' case, 4 City Hall Recorder, 132. Before Golden, Mayor. New York, October, 1819. 68. A count, in an indictment for stealing a promissory note, is nugatory, unless it conclude against the form of the statute. id. 69. In an indictment, containing several counts, for grand larceny, the prisoner cannot be convicted of that offense, unless it appears on the face of the indictment, and in proof that he stole more than $25, laid in one of those counts. id. 70. Though there are articles of separation between husband and wife, yet the ownership of goods stolen from her must be laid in him. Henry Dixon's case, 4 Oity Hall Beeorder, 142. Before Golden, Mayor. New Yorh, October, 1819. JJ^J; 71. , An indictment iov feloniously forging an instru- ment which is not the subject of a forgery under the stat- ute, cannot be sustained at common law. John G. Scholtz, indicted with Daniel Scott, 4 Gity Hall Beeorder, 163. Be- fore Golden, Mayor. New York, November, 1819. 72. During a trial, a felony cannot be modified into a misdemeanor. id. ff2°„- 73, Property having been assigned for the benefit of creditors, and sent by the debtor, as agent for the assignees, to auction for sale, was stolen, and in the in- dictment the ownership was laid in the debtor; it was held that the ownership ought to have been laid in the INDICTMENT. 501 assignees. William W. Veitch's case, 5 City Hall Becord- er, 4. Be/ore Oolden, Mayor. New York, January, 1820. fsao; 74. Though the false pretense charged must be the sole inducement to the parting with the goods, yet every accidental circumstance which, in conjunction with the false pretense, influenced the delivery, need not be alleged. Robert W. Steel's case, 5 City Hall Recorder, 5. Before Golden, Mayor. New York, February, 1820. 75. Where one, by a false pretense, obtained property in which he succeeded with the greater facility by reason of his being recognized by the prosecutor as having been in his store before, it was held that this was but a circum- stance incidental to the delivery, and not such an induce- ment as required to be noticed in the indictment. id. "fU: 76. W., the owner of the goods, on going to a for- eign port, left them in charge of T., a clerk, from whom they were obtained by false pretenses, and the indictment alleged that the prisoner so obtained them with an intent to defraud T. It was held .that the indictment, in that re- spect, might be maintained. Benjamin Pindar's case, 5 City Hall Recorder, 74. Be/ore Oolden, Mayor. New York, May, 1820. 77. An indictment alleged that the prisoner had in his possession a die, made of iron and steel, with an intent to coin counterfeit money; but the die was made of zinc and antimony ; it was held that this indictment could not be maintained. John I. Borsett's case, 5 City Hall Re- corder, 77. Before Colden, Mayor. New York, May, 1820. \m.' 78. "Where an indictment at common law alleged a fraud of a private nature, committed by an attorney, though not in that capacity, it was held that the indict- ment could not be maintained. Q-eorge W. Niven's case, 5 City Hall Recorder, 79. New York Oyer and Terminer, June, 1820. Before Yates, J. 79. This indictment, in effect, stated that an attorney advised his client to confess a judgment to save his prop- erty from othet claims, and after such judgment had been 502 INDICTMENT. confessed by the client in favor of such attorney and others, and entered up by him, that he caused the property to be sold on the execution, and bid off for his own benefit, at an inadequate sum ; and that he kept the property and converted it to his own use. It was held, that such charge was insufficient to support a criminal prosecution, and that the act constituting the gravamen of the charge was not done by the attorney in his official capacity. id. 80. An indictment alleged, that a bond was conditioned for the payment of |657; but the condition was for the payment of that sum with interest; it was held that this variance was fatal. id. fj^;' 81. Where an indictment for felony alleged the offense to have been committed on a day subsequent to that on which indictment tvas found, it was held that a juror might be withdrawn and the jury discharged, without consent, and the prisoner be brought to trial for the same offense on another indictment. Johnson and Gonzales' case, 5 City Hall Recorder, 103. Before Colden, Mayor. New Yorh, August, 1820. 82. The time stated in an indictment is not material nor traversable ; but if an impossible day be laid, it will be a fatal defect. id. ^i^: 83. The term conspiracy, of itself, implies ille- gality ; and, though usual, it is unnecessary to allege in an indictment for that offense that the conspirators unlaw- fully conspired. Scholtz's case, indicted with Daniel L^ Scott, 5 City Sail Recorder, 112. Before Colden, Mayor. New Yorh, September, 1820. 84. An indictment for conspiring to cheat and defraud an individual of his money or goods, may be maintained, though the means by which the conspiracy was to be effected be not alleged. id. 85. An allegation in such indictment that the defend- ants did conspire, &c., " to cheat, defraud, and from him obtain $200," is sufficiently explicit to charge them with conspiring "to cheat and defraud" the person whose INDICTMENT. 503 name ia the indictment is the antecedent to the word him; this pronoun being understood immediately after the governing verbs "to cheat and defraud." id. 86. An indictment charging a conspiracy, by cheating and defrauding a person of his money, need not state the means by which the conspiracy was effected. People v. Scholtz & Scott, 2 Wheel. Cases, 617. Golden, Mayor. New York, September, 1820. faSJ-. 87. On an indictment containing two counts, each alleging that an assault and battery was committed by four persons, the jury may find the whole guilty, though it may appear in proof that three of them only were en- gaged together at the same time in committing such offense ; and that one of them, at another time, commit- ted the offense on the same person as the others did ; and, in such case, the three must be found guilty on one count, and the fourth acquitted on that, but convicted on the other count. John Balhie, Divine Balbie and Sally Gall's case, 5 City Hall Recorder, 135. Before Golden, Mayor. New York, October, 1820. 88. In such case the court will not permit a verdict of acquittal to be rendered in favor of the fourth, that he may be admitted as a witness for the others. id. fglS; 89. In burglary, the ownership must be laid in the indictment in him who has an interest in the premises broken, either as owner or occupant. Smith, Taylor and McMurray's case, 5 Gity Mall Recorder, 167. Before Golden, Mayor. New York, December, 1820. J^°_ 90. A bill alleged to be counterfeit was set forth in the indictment as a bill on a particular bank ; but on the face of the bill a joint promise was set forth, commencing with the words "we promise to pay," &c., to A. B., "at the bank," &c., and purporting to be signed by persons, as president and cashier, who were not, in fact, the officers of that bank; and, for aught that appeared, were fictitious persons ; it was held that in such a shape the prosecution could not be maintained. Anthony Silkworth's case, 5 504 INDICTMENT. City Hall Recorder, 176. Before Golden, Mayor. New York, January, 1821. 91. It was true that if a man fraudulently passes a false instrument, signed with names of persons not in existence, he may be indicted and punished ; but then the indictment should square with the offense. id. f^l: 92. It seems that a letter between the christian and surname forms no part of the name ; and where the name forged, and set forth in the indictment, was John War- dell, and it appeared in proof that a person wrote his name John N. War dell, it was held that the jury might infer, from all the circumstances in the case, that he was • the man whose name was forged. Further, that there was no variance between the indictment and the proof. William Goiobed's case, 6 City Mall Recorder, 25. Before Biker, Recorder. New York, May, 1821. l^ll' 93. A large quantity of heavy property in a ship was sold by one having charge of it ; and the understand- ing between the vendor and vendee was, that when the property was delivered the payment should be made. The property was discharged from the vessel, as prepara- tory to delivery, and put on the wharf, and while there a part was stolen ; it was held that the ownership of the property was properly laid in the vendor. David Bar- trom's case, 6 City Sail Recorder, 56. Before Riker, Re- corder. New York, July, 1821. fs7i: 94. Semble, the time of committing an offense laid in an indictment is, in general, wholly immaterial, and any other time may be proved. People v. Van Santvoord, 9 Gowen, 655. Supreme Court, August, 1821. 95. Though an indictment lay the time so long before the indictment is found that the crime appears to be barred by the statute of limitations, this is no ground for arrest- ing judgment. id. ?8°2';. 96. There is no misjoinder in an indictment, the first count of which alleges that the prisoner counter- feited silver coin current in this state, and the second INDICTMENT. 505 count, that lie had in his possession the same coin with an intent to utter it; though the punishment for the offense specified in the first count be imprisonment in the state prison for life; and the punishment for the offense specified in the second count be imprisonment in the state prison for a term not exceeding seven years ; but it seems that the public prosecutor will be put to his election upon which of the counts he will proceed. Quin and Regan's case, 6 Qity Hall Recorder, 63. Before Riker, Recorder. New York, October, 1821. 5^5^; 97. In expounding an act we are *to take its title, preamble and enacting clause, or clauses, in connection, and judge from the whole what its meaning is. Milligan and Welchman's case, 6 City Hall Recorder, 69. Be/ore Riker, Recorder, Irving, First Judge, and Allen, Mayor. New York, November, 1821. 98. The words of an act, in effect, were that if any clerk, by virtue of such employment, shall take, secrete, embezzle or make way with money, notes, &c., he shall be guilty of felony; and in an indictment under the act, one was charged with having feloniously taken, secreted, embezzled and made way with, &c. ; held, that the words of the act were -sufficiently pursued, and that there was no variance. id. 99. An indictment alleged, in effect, that a prisoner was employed and intrusted by the president and direct- ors of a bank, as a clerk, to receive money, bonds, bills, notes, &c., and embezzled it, &c. It appeared in proof that the prisoner, at the time of the alleged embezzle- ment, was acting as such clerk, having previously given a bond to the president and directors for the faithful per- formance of his duties ; that according to the custom of the bank it was one of the incidental duties of the cashier, in the management of its internal affairs, to make any change he deemed necessary in the employments among the clerks, and that the prisoner was employed by the cashier, and acted with the assent of the board ; but with- 506 INDICTMENT. out any formal corporate act done by them — Held, Ist, that the prisoner was a clerk'; and 2d, that he was em- ployed and intrusted by the bank. id. "slJ: 100. An indictment for perjury alleged that the oath (in the taking of which the perjury was assigned) was taken by the prisoner, when sworn as a witness in a cer- tain cause tried before certain justices of the marine court, named in the indictment, and a jury ; and it appeared on the trial of the indictment that the cause was tried by the justices, and not by a Jury; it was held, that this was a fatal variance between the indictment and the proof. Williain Hitchcock's case, 6 City Hall Recorder, 100. Be- fore Riher, Recorder. New York, December, 1821. ig'a 101. An indictment, in the first count, charged the prisoner, substantially, with having forged and altered a bill of exchange, bearing date at Montreal, Canada, with intent to defraud the president, directors and company of the Montreal Bank, S. G., R. Q-., and other persons to the jurors unknown. In another count he was charged with passing the same bill, with intent to defraud the same bank, by its appropriate name as above, and S. Gr., R. G., N. P., S. "W". and J. S., and other persons to the jurors un- known ; and, in another count, he was charged with having passed the same bill, with the intent to defraud P. W. and S., (a firm,) and N. P., S. W. and J. S., and the forgery, alteration and passing were alleged in the indictment to have taken place in the city of New York. It was held, 1st, that if the jury believed the bill to have been altered in Canada, they ought to acquit the prisoner of ihe forgery and alteration. 2d, if they believed he passed the bill in New York, they ought to convict him for passing it. And 3d, that there was sufficient certainty in the indictment relative to those whom he intended to defraud. Jacob S. Reddington's case, 6 Oity Hall Recorder, 107. Before RiheV, Recorder. New York, January, 1822. fsll: 102. An indictment charged the prisoner with having in his possession, with intent to utter and publish, INDICTMENT. 507 and also witli actually passing a $10 note of the Bank of Middletown, in the state of Connecticut, to Mr. Josiah Smith. The prisoner took an exception to the indictment, that the district attorney, in setting out the note, had mis- stated it, to wit, in the caishier's name. The name upon the note appeared to be " Tim," and a flourish, being evidently intended as an abreviation for "Timothy;" but in the indictment it appeared to be " Tim," the dot or mark over the " i " was left out. The court left it to the jury to say whether there was a variance between the note and indictment, as they were judges of the law and the fact. The verdict of the jury was, not guilty, on a defect in the indictment. People v. Quackenboss, 1 Wheel. Oases, 92. Biker, Recorder. New York, December, 1822. JgJ-. 103. "Where there is but one count in an indict- ment, charging A., B. and C. with receiving stolen goods, knowing them to be stolen ; and the evidence is, that A. received some of them, at a certain time, it is incompe- tent for the district attorney to prove the reception of the other part of the goods by B. and C. at another time. People v. Green and others, 1 Wheel. Cases, 152. Biker, Becorder. New York, January, 1823. 104. If one tells another to steal the goods of some third person, without specifying what particular kind of goods, he is not guilty of larceny, nor can he be proceeded against either as principal or accessory ; but if the particular kind of goods be specified, it would be felony. id. 105. Where, in an indictment for assault and battery, the prosecutor's name appeared as " Defoor," when it was "Delfou," held a fatal variance. People v. Phillips, 1 Wheel. Uases, 155. Biker, Becorder. New York, January, 1823. fall; 106. In larceny of goods of partners, a contingent interest in the goods stolen, by one of the partners, is not sufficient to lay them as the goods of the partners, but siiould be laid in the indictment as the sole property of the partner who has the legal interest in them. People v. Bo- 508 mCIOTMENT. maine, 1 Wheel. Cases, 369. Biker, Recorder. New York, May, 1823. ■}?J|: 107. In alleging the commission of perjury, the day laid in the indictment is not material, and the offense may be proved to have been committed on any other day before or after the time laid. People v. Hoag, 2 Park. Crim. Rep. 9. Clinton Oyer and Terminer, July, 1823. Before Walworth, C. J. (This language seems to be rather broad, for surely no offense will be allowed by the courts to be proved after the day on which the indictment is found.) 108. In setting out the proceedings of a court of inferior or limited jurisdiction, the indictment should always state enough to show that such court had jurisdiction of the ease. People v. Cook, 2 Park. Crim. Rep. 12. Warren Oyer and Terminer, July, 1823. Before Walworth, C. J. 109. This was an indictment for a second offense of petit larceny. The indictment was defective, because it did not show that the offense was committed within the county where the court was holden, or that the accused requested a trial by the justices, or that he refused to give bail, with- out which the special sessions' had no jurisdiction of the cause. id. J^^: 110. Disturbing divine service is indictable at com- mon law, notwithstanding the statute declares the penalty and points out the remedy. People v. Degey, 2 Wheel. Gases, 135. Riker, Recorder. New York, November, 1823. fsl^: 111. "Where the defendant falsely stated that he was a grocer, and that he resided at a particular place ; held a false pretense under the statute, and not a mere naked falsehood. People v. Dalton, 2 Wheel. Cases, 161, Riker, Recorder. New York, December, 1823. 112. The question whether a pretense was such an one as might have been guarded against by ordinary prudence, is a question exclusively for the jury; except where it is manifestly such an one as could not, by possibility, deceive a man of common sagacity ; in which latter case, it seems, ihe court will arrest the judgment. id. INDICTMENT. 509 113. The false pretense set forth in the indictment must be the sole inducement to the parting with the goods ; and if it appears that any act or declaration of the prisoner, forming part of the res gestae, and not set out in the indict- ment, formed part of the inducement, the prisoner is entitled to an acquittal. id. fsl^: 114. It is a general rule, that in an indictment for forgery, the instrument forged should be described par- ticularly. People V. Kingsley, 2 Oowen, 522. Supreme Court, February, 1824. 115. But if in the hands of the defendant, or lost or "de- stroyed by him, the indictment may show this excuse, and set forth the instrument in general terms, if it contain enough to show the offense. id. 116. Dates, sums and times of payment may be omit- ted, id. 117. And parol evidence given of the contents. id. ""il'jJl"' 118. Where separate and distinct felonies are charged in , different counts in the same indictment, the court have a discretion to compel the prosecuting attorney to elect the counts he intends to rely upon ; but the court will not interfere unless the prisoner is embarrassed in his plea or challenges, in consequence of the separate felonies charged in one indictment. People v. Johnson, 2 Wheel. Cases, 361. If^ew York Oyer and Terminer, March, 1824. Udwards, J., &c. 119. Alleging in the several counts of an indictment that the prisoner feloniously killed A., B., C, D., E. and F., when the person who was charged to have been mur- dered was called by each of these names, is not such a case as will embarrass the prisoner in his pleas or chal- lenges, or in which the court will interfere. id. ^J^I' 120. "Where an indictment charged T. with keeping a disorderly house and tavern, and it was proved on the trial that T. and A., who were copartners, kept the house, it was held that the indictment would lie, and that" they might be severally charged, and the indictment was sus- 510 INDICTMENT. tained by proving it was kept by the accused and another. People V. Thurston, 2 Wheel Oasfis, 518. Be/ore Lef- ferts, J. Kings County, April, 1824. S: 121. An indictment lies for maliciously, wickedly and willfully killing a cow, the property of another. Peo- ple V. Smith, 5 Cowen, 528. Supreme Court, October, 1825. 122. Acts injurious to private persons, which tend to excite violent resentment, and thus produce a disturbance of the peace, are indictable. id. ^11' 123. An indictment lies for a conspiracy to de- fraud an individual of his property. Lambert v. People, 7 Cowen, 166. Supreme Court, May, 1827. 124. Form of the indictment. id. 125. It may be in very general terms, as to the descrip- tion of the offense, its objects, and the persons con- cerned, id. 126. A judgment record in the oyer and terminer, on an indictment transmitted there from the sessions, ad- judged good upon various exceptions of form. id. 127. Semble, that no rule or order need be entered in the sessions, to send up the indictment. id. ^^f 128. The cojirts take judicial notice of the civil di- visions of the state into towns, &c., by statute. People v. Breese, 7 Cowen, 429. Supreme Court, August, 1827. 129. Therefore, where an indictment described the de- fendants as late of U., in the county of Oneida ; and then laid the offense at F., in said county, F. being, in truth, in the county of H. ; held, that this was equivalent to lay- ing the offense in the latter county — F. being a town cre- ated by public statute. id, °3°^ 130. An indictment for a conspiracy to defraud in- dividuals of private property, must set forth the means agreed upon by the conspirators. See this ease in con- nection with Lambert v. People, (7 Cowen, 166.) People V. Eckford, 7 Cowen, 535. Supreme Court, October, 1827. 131. It is in the discretion of the court to quash an in- dictment for insufficiency, or put the party to a motion in INDICTMENT. 511 arrest ; and where the question is doubtful, they will put him to the latter. Otherwise, where it is clear. id. 132. As where the question is settled by the Court of Errors in another cause. id. 133. Manner in which the court "will inform themselves as to the ground of decision in the Court of Errors. id. 134. Quashing an indictment as to one of several de- fendants, quashes it as to all. id. ^^- 135. Every indictment must contain a gertain de- scription of the crime, and a statement of the facts, by which it is constituted. An indictment for common bar- ratry is an exception, and a bill of particulars is required. "Why indictments of common scolds, houses of ill fame, common nuisances, &c., are exceptions. Per Spencer, Senator. Lambert v. People, 9 Cowen, 578. Court of Er- rors, Becemher, 1827. °°j^. 136. A judgment in a criminal case cannot be ar- rested for a variance between the indictment and the proof. People y. Onondaga General Sessions, 1 Wend. 296. Supreme, Court, October, 1828. °829. 137. Where there are two counts in an indictment for a misdemeanor, one good and the other bad, and the defendant is convicted, the indictment will not be quashed on demurrer, nor the judgment arrested or reversed for that cause. Kane v. People, 3 Wend. 363. Supreme Court, October, 1829. °^i 138. "Where, by an act of incorporation of a turn- pike road and bridge company, it was made the duty of the president and directors to keep the road in repair, and the neglect to do so was declared a misdemeanor in the presi- dent and individual directors for the time being, it was held, that an individual director might be indicted for such neglect, either separately or jointly with his co-directors, and, on conviction, might be punished separately, although the board of directors consisted of seven members, and the concurrence of a majority was necessary to the doing of a 512 INDICTMENT. corporate act. Kane v. People, 8 Wend. 203. Court of Er- rors, December, 1831. 139. When the road is out of repair, prima facie, all the directors are liable ; those, however, who have done their duty, and were prevented from complying with the act by the omission of others to do their duty, may show the facts of the case in exoneration of themselves. id. 140. Under such an act, the offense is set forth with suf- ficient certainty, by reciting the substance of the statute imposing the duty, averring the company to he in existence as a body corporate, and that they have erected gates and exacted toll, without formally alleging the road to have been made and completed, and adding that the defendant was a director, that he had notice of the road being out of repair, and had been guilty of neglect of duty in the prem- ises, id. 141. Although two statutes are set forth in the indict- ment, it is not necessary to allege the offense to have beeix committed contra formam statutoram, where it is wholly created by one of the statutes, and the second merely makes some alteration in the first, without affecting the offense. id. 142. A count in an indictment charging a party with neglect of duty as a director of a road and bridge company, after the company had been formed into two distinct com- panies, viz., a road and bridge company, is bad; but if there be also a count charging him as a director of the road company, and there be a general verdict of guilty, judg- ment may be rendered upon th« last count ; the law in criminal cases varying from civil cases in this partic- ular, id. 143. It cannot be objected in error, that two or more offenses of the same nature, upon which the same or sim- ilar judgment may be given, are contained in different counts of the same indictment ; nor can such objection be urged either on demurrer or in arrest. id. 144. In cases ot felony, where two or more distinct and IWDIOTMENT. 513 separate offenses are contained in the same indictment, it may be quashed, or the -prosecutor compelled to elect upon which charge he will proceed ; hut such election will not be required to be made where several counts are inserted in an indictment solely for the purpose of meeting the evi- dence as it may transpire on the trial, the charges being substantially for the same offense. In cases of misdemeanor, however, punishable by fine and imprisonment, the prose- cutor may join several distinct offenses in the same indict- ment, and try them at the same time. id. 145. The fact that a corporation, incorporated as a road and bridge company, was by a subsequent act of the legis- lature permitted to form itself into two distinct companies, one designated as a turnpike road company and the other a bridge company, was held not to exonerate the officers of the road company from the penalties imposed by the orig- inal act, it being manifest that the legislature did not intend to relieve them from their liabilities. id. 146. Nor does an act of the legislature, permitting a turnpike road company to abandon a part of their road, discharge the directors from a penalty incurred in refer- ence to such part of the road previous to the act author- izing the abandonment. id. 147. Where a party convicted of an offense is subject to two distinct and independent punishments, it cannot be alleged for error, by the defendant, that one only of the punishments to which he was liable is adjudged against him ; the prosecutor may complain of such omission, but not the party convicted. id. 148. A judgment that a defendant pay a fine and an award of process for the recovery thereof, according to the course and practice of the court, is good, although it be not added that the defendant stand committed until the fine be paid ; it is enough if, there be an award of process to carry into effect the sentence of the court. id. 149. It seems, that where, on a conviction, a fine is im- 33 514 INDICTMENT. posed, either a levari facias or capias ad satisfaciendum may issue for its collection. id. S: 150. For offenses greater than misdemeanors, a new- trial cannot be granted, whether the accused be acquitted or convicted. People v. Comstoch, 8 Wend. 549. Supreme Court, January, 1832. (See 3 E. S. 5th ed. 1033.) 151. In misdemeanors, it seems, a new trial may be granted where the defendant has been improperly comnc^ec?, but not where he has been acquitted. id. 152. In an indictment iov perjury against a person voting at an election, an averment that he has sworn ly and he- fore the hoard of inspectors, is a sufficient averment that the oath was administered by the board : it seems, it would be enough to allege that he took the oath hefore the board, they being duly authorized to administer it. Camphell v. People, 8 Wend. 636. Supreme Court, January, 1832. 153. It is not necessary in such case to set forth the whole oath taken by the elector ; it is enough to set out the part of it in which the perjury is alleged to have been committed — as where the prisoner is accused of having falsely sworn to his citizenship — only that part of the oath which relates to his being a citizen need be set forth. id. 154. It must appear on the face of the indictment that the matter alleged to be false was material ; but such ma- teriality need not be expressly averred, when it evidently appears on the record. id. 155. Where, by an act of the legislature, certain oaths are prescribed, and false swearing in taking them is de- clared perjury, and by a subsequent act the opginal act is amended and the forms of the oath altered, false swearing under the amendment is perjury, although it be not so expressly declared in the amended act., id. S: 156. A previous indictment for the same offense is no bar to a second indictment, although upon the first the defendant has been arraigned and pleaded. By our Re- vised Statutes the first indictment is superseded by the mCIOTMENT. 515 second, and liable to be quashed. People v. Fisher, 14 Wend. •9. Supreme Court, July, 1835. (See 3 R. S. 5th ed. 1018.) 'isk 157. After a conviction, an indictment will not be quashed on the ground that, during the pendency of the trial, a second indictment for the same offense was found by the grand jury. People v. Monroe Oyer and Terminer, 20 Wend. 108. Supreme Court, July, 1838. 158. The mere finding of a second indictment is not, pei* se, a supersedeas to the first indictment ; a motion to quash must be made, and made too before the trial on the first indictment has commenced ; at all events, before the cause is submitted to the jury. Ordinarily, a motion to quash must be made previous to plea pleaded, or any evidence given in the case. ' id. S. 159. It seems, that the uttering here of a counterfeit foreign bank bill, the circulation of which is made illegal by. statute, would be deemed an ofiense within the statute, if laid to have been passed with the intent to defraud the hank; though the indictment would be bad, if laid to have been passed with the intent to defraud the receiver of the bill. People v. Bathbun, 21 Wend. 509. Supreme Cowrt, October, 1839. 160. On the trial of an indictment, as well as of a civil action, it is competent for the judge to express to the jury his opinion upon the weight of the evidence, provided that such opinion be not expressed in the form of a direction as matter of law; whilst what is said is merely advisory, the charge will not be reviewed. id. ^11; 161. An indictment against commissioners of high- ways for not repairing a bridge is defective, unless it aver that the defendants had funds or other means to defray the expense of the repairs. The People v. Adsit and others, Commissioners of Highways, &c., 2 Hill, 619. Supreme Court, May, 1842. f^l- 162. Where an indictment for larceny charged the ofifenseto have been committed in a vessel in \h& first ward of the city of I^Tew York, and it appeared on the trial that 516 INDICTMENT. it was lying in the river at a wharf in the third ward ; held not a material variance. People v. Honeyman, 3 Denio, 121. . Supreme Court, May, 1845. 163. Where a defendant was indicted for passing and having in his possession, with intent to pass, forged and counterfeited bank notes, and with intent to defraud the Bank of Warsaw, which was an association formed accord- ing to the provisions of the general banking law, and an ob- jection that no such corporation or artificial person existed, was taken on the trial and overruled, it was held on error, the fact appearing by a bill of exceptions, that the con- viction was erroneous; and the judgment was reversed. De Bow v. The People, 1 Denio, 9. Supreme Court, May, 1845. 164. Several misdemeanors may be joined in the same indictment, and a conviction for all may take place at the same time, and the prosecution cannot be compelled to select a single offense among those charged, and proceed for that alone. People v. Costello, 1 Denio, 83. Supreme Court, May, 1845, ^; 165. An indictment for selling lottery tickets must describe the lottery as one set on foot for the purpose of disposing of property, according to the terms of § 27, 1 E.. S. 665. People v. Payne, 3 Denio, 88. Supreme Court, May, 1846. (See 2 R. S. 5th ed. 929.) 166. It is generally, but not always sufficient, in an in- dictment for a misdemeanor created by statute, to describe the offense in the words of the statute. People v. Taylor, 3 Denio, 91. Supreme Court, May, 1846. 167. In an indictment for setting on foot a lottery, con- trary to 1 E. S. 665, § 27, (see 2 R S. 5th ed. 929,) it is essential to specify the purpose for which the lottery was made, that being a part of the statute description of the offense. id. 168. But a general statement of the purpose for which the lottery was made is not enough. Some further de- scription must be given, where it is practicable to do so. id. INDICTMENT. 517 169. Sucli a degree of certainty is necessary in tlie de- scription of the offense, as that the defendant may not be indicted for one thing and tried for another ; that he may know what crime he is called upon to answer ; that the jury may deliver an intelligible verdict; that the court may render the proper judgment; and that the defendant may with proper averments plead the judgment in bar of another prosecution for the same offense. id. 170. But if a particular fact which is matter of descrip- tion and not vital to the accusation cannot be ascertained, the indictment will be good if it state that such fact is unknown to the grand jury. id. 171. Accordingly held, that a count in an indictment which stated that the defendant unlawfully, &c., did set on foot a certain lottery for the purpose of exposing certain money to abide the drawing of such lottery, he being unau- thorized, &c., without other matter of description, was bad. id. 172. And a count in a similar form, with an additional averment that the name of the lottery was unknown to the grand jury, was held bad. id. 173. But a count in the same form, with an averment that a more particular description of the lottery was un- known to the grand jury, was held sufficient. id. 174. The amount of the lottery is not necessary in de- termining the nature or degree of the offense, but only in fixing the amount of the fine ; and where such amount cannot be ascertained, the sum of $2500 is prescribed as a limit beyond which the court cannot impose a fine. id. 175. Therefore, an indictment for setting on foot an illegal lottery need not state the amount for which such lottery was made, or that such amount could not be ascer- tained, id. 176. An indictment for selling lottery tickets need not set out the tickets sold. People v. Taylor, 3 Denio, 99. Supreme Court, May, 1846. 177. It is not necessary in such an indictment to give 518 INDICTMENT. the names of tlie persons to whom the tickets were sold, it being alleged that their names were unknown to the jurors, id. 178. The keeping of a common gaming house is indict- able at common law, on account of its tendency to bring together disorderly persons, to promote immorality and to lead to breaches of the peace. Per Bronson, G. J. Peo- ple V. Jackson, 3 Denio, 101. Supreme Court, May, 1846. 179. But an indictment only alleging that the defendant kept a common gaming house, ;without stating what was transacted there, would not, it seems, be sufficient. Per Bronson, Q. J. id. 180. The keeping of a room or place for the sale of tickets in lotteries not authorized by law, is not indict- able, id. 181. And where an indictment charged the defendent with keeping a certain common gaming house, in which he sold and furnished tickets in lotteries unauthorized by law to divers persons, it was held not to set forth an in- dictable offense. . id. •'iJ'^J: 182. If it appear by the advertisement set forth in hose verba, in an indictment for publishing an account of a lottery, that it was made for the purpose of disposing of money or property, the indictment will be sufficient, although the object of the lottery is not otherwise averred. People V. Charles, 3 Denio, 212. Supreme Court, July, 1846. 183. Publishing in this state an account of a lottery to be drawn in another state or country, is indictable under the statute, 1 R. S. 665, § 28, (see 2 R. S. 5th ed. 929,) though the lottery be lawful in the place where it is drawn, and its tickets cannot legally be sold or be adver- tised for sale in this state. id. f^f 184. An indictment for burglary in the third degree need not state that the offense was committed in the day- time. Butler V. The People, 4 Denio, 68. Supreme Court, January, 1847. INDICTMENT. 519 185. An indictment may be set aside, on motion, for having been found by less than the legal number of grand jurors. Per Bronson, 0. J. The People v. Eulbut, 4 Denio, 133. Supreme Court, January, 1847. 186. Whether an indictment can be set aside, or amend- ed on a motion, for having been found without evidence, or upon insufficient evidence, quere. Per Bronson, 0. J. id, 187. An indictment for false pretenses need not state all the property which the defendant obtained by the false pretenses set forth. People v. Parish, 4 Denio, 153, Su- preme Court, January, 1847. 188. On the trial of an indictment for selling without a license, the prosecution can only give evidence of as many distinct offenses as there are counts in the indict- ment. Hodgman v. The People, 4 Denio, 235. Supreme Court, January, 1847. 189. A count for selling liquor during the year that the act of 1845 was in force, which, besides charging that the defendant had sold without a license, averred that the electors of the town had voted no license, is sustainable under the provisions of the Revised Statutes, notwith- standing the additional averment. id. ?s°4^, 190. An indictment upon a statute must state all the facts and circumstances which constitute the statute offense, so as to bring the accused perfectly within the pro- visions of the statute. People v. Allen, 5 Denio, 76. Su- preme Court, October, 1847. 191. Therefore an indictment for embezzlement under the statute concerning that offense, (2 R. S. 678, § 59 ; see 3 R. S. 5th ed. 957,) must aver that the defendent was a clerJs or servant of some person, (or an officer or agent of a corporation,) and that the property he is charged with embezzling, came to his possession or under his care by virtue of such employment. id. 192. A count charging that the defendant received the property as the agent of an individual, is bad. 193. So, also, it is bad if it state that the defendant re- 520 INDICTMENT. ceived the property as the agent of an individual named, though the count afterwards proceeds to aver that it came to the defendant's possession and under his care as such servant as aforesaid, and that while he was such servant he converted it. The construction being, that such servant meant such a servant as an agent may be. id. \^l 194.' "Where the indictment charged the defendant with publishing an account of an illegal lottery, and set forth in hcec verba the lottery scheme, which showed that the prizes consisted of sums of money ; held good, although it was not otherwise averred that the lottery was set on foot for the purpose of disposing of money, land, &c. Charles v. The People, 1 Comstock, 180. Court of Appeals, January, 1848. 195. In an indictment for felony, under the act of March 4, 1846, relative to abortions, the intent to destroy the child must be alleged. People v. Lehman, 2 Barb. 216. Supreme Court, New York Greneral Term, Jammry, 1848. 196,. Where a particular intent, accompanying an act, is requisite to constitute a crime, such an intent should be averred in the indictment. id. 197. Where a defendant is convicted of a misdemeanor, and that offense is sufficiently charged in the indictment, the conviction will be sustained, if otherwise valid, not- withstanding there is an allegation in the indictment of facts characterizing a higher crime. id. 198. The strictness with which indictments were form- erly construed has been considerably relaxed. Per Strong, P. J. id. 199. Mere surplusage, in an indictment, will not vitiate, so long as it is not contradictory. id. 200. Where an indictment charges that the accused administered to a pregnant woman some drug, and in another count that she employed some instrument, with intent thereby to procure a miscarriage of the patient — which is all that the second section of the act of May 13, 1845, to prevent the procurement of abortion, requires to INDICTMENT. 521 constitute a misdemeanor — and then goes on to allege that the patient was quick with child ; and that the death of such child was effected, and characterizes the act of the defendant as felonious, these allegations do not contradict the charge for a misdemeanor; nor do they contain a valid charge of felony, which will merge the misdemeanor ; because there is no allegation of an intent 'to destroy the child. id. 201. "Where threatening letters are written and mailed in one county, and directed to and received by the person to whom they were addressed in another county, the in- dictment for sending such letters should be found in the latter county. People v. Griffin, 2 Barh. A21. Supreme Court, Cayuga General Term, January, 1848. 202. The statute against sending threatening letters, with the view of extorting money, &c., was intended to embrace only cases where the intent is to obtain that which, in justice and equity, the writer of the letter is not entitled to receive. It does not extend to cases where the person threatened actually owes the writer of the letter the sum claimed by him. id. 203. To support an indictment under that statute, the end as well as the means employed to obtain it must be wrongful and unlawful. id. ^l 204. Where an indictment has been found at the general sessions, for an offense triable in that court, and the cause is subsequently removed into the oyer and term- iner, by an order of a circuit judge, the oyer and terminer has power to order the indictment to be sent back to the general sessions for the trial ; and this, without notice to the accused. People v. The General Sessions of New York, 3 Barb. 144. Supreme Court, Kings General Term, May, 1848. 205. And the general sessions has the power to try such indictment. id. 206. The court of oyer and terminer has a discretion to 522 INDICTMENT. refuse to try such indictments as, in the opinion of the court, may not he proper to be tried therein. id. 207. An indictment charging that the defendant, "with force and arms, unlawfully, willfully and maliciously did break in pieces and destroy two windows in the dwelling- house of M. C, to the great damage of the said M. C, and against the peace," &c., does not set forth an offense indict- able by the laws of this state. Kilpatrick v. The People, 5 Denio, 277. Supreme Court, May, 1848. (But see 3 R S. 5th ed. 981 ; or Session Laws of 1853, ch. 573, § 1.) 208. An act which would otherwise be only a private trespass, does not become indictable, by being charged to be done with force and arms. id. 209. Nor by being alleged to have been committed ma- liciously, or without claim of right, or without any motive of gain. id. 210. Whether, if the breaking of the windows in this case had been charged to. have been done secretly, or in the night time, the act would have been indictable. Quere. Per Beardsley , C. J. id. 211. The cases in which indictments have been sus- tained for malicious killing or wounding domestic animals, depend upon features peculiar to such offenses, as the de- pravity of mind, and the cruelty of disposition, which such acts evince. id. i8«. 212. Where an indictment contains several' counts charging the same offense in different forms, the prosecu- tion will not be compelled to elect on which count they ask a conviction. Such election will be directed only when the sev'eral counts charge separate and distinct offenses. People V. Austin, 1 Park. Crim. Rep. 154. New York Oyer and Terminer, 1848. Before Edmonds, J. ^iSJI; 213. Mere surplusage in an indictment will not vitiate, and therefore where an indictment alleges facta which constitute a misdemeanor, it will be good for that offense, although it state other facts which go to consti- tute a felony, provided all the facts alleged fall short of a INDICTMENT. 523 charge of felony in consequence of some pther facts essen- tial to that charge, e. g., the intent of the party accused not being averred. Lohman v. The People, 1 Gomstock, 379. Court of Appeals, June, 1848. 214. By statute, (Laws of 1845, ch. 260, § 2,) it is a mis- demeanor to administer drugs, &c., to a pregnant female with intent to produce a miscarriage; and by statute, (Laws of 1846, ch. 22, , § 1,) it is manslaughter to use the same means with intent to destroy the child, in case the death of such child be thereby produced. The indictment charged all the facts necessary to constitute the crime of manslaugh- ter, except the intent with which the acts were done, and in its conclusion it characterized the crime as manslaughter ; but the only intent charged was an intent to produce a mis- carriage : Held, that the indictment was fatally defective for the felony, but good for the misdemeanor, and that the accused was properly convicted for the latter offense, id. ^^X'. 215.. If an indictment for perjury, committed by the defendant upon an examination under oath, as to his sufficiency as a surety for another, in a bond executed under the 4th subdivision of the 10th section of the "act to abolish imprisonment for debt," &c., after a conviction of the debtor, and an order for his commitment under that act, it is not necessary to set forth facts sufficient to show that the officer who entertained the proceedings had juris- diction to administer the oath. People v. Tredway, 3 Barh. 470. Supreme Court, Jefferson General Term, July, 1848. fg^f; 216. An indictment for obtaining property by false pretenses, need not allege that the property was of any particular value. People v. Stetson, 4 Barh. 151. Supreme Court, Livingston General Term, August, 1848. 217. The statute relative to obtaining money, &c., by false tokens or pretenses, was not designed to protect any but innocent persons, nor those who appear to have been in any degree particeps criminis with the offender. It is an essential ingredient of the offense, that the party al- leged to have been defrauded should have believed the 524 INDICTMENT. false representations to' be true ; otherwise he cannot claim he was influenced by them. If, in parting with his prop- erty, &c., he was himself guilty of a crime, he is not within the protection of the statute. Per Welles, J. id. 218. It is a well. settled and rational rule that the false pretenses, in order to sustain an indictment, must be such that, if true, they would naturally and according to the usual operation of motives upon the minds of persons of or- dinary prudence, produce the alleged results ; or, in other words, that the act done by the person defrauded must be such as the apparent exigency of the case would directly induce an honest and ordinarily prudent person to do, if the pretenses were true. Per Maynard, P. J. id. 219. Accordingly held, on demurrer, that an indictment for obtaining a watch from a person, upon the false repre- sentation that the defendant was a constable, and had a warrant against such person, issued by a justice of the peace, for the crime of rape, and that he would settle the same if the person defrauded would give the defendant the watch, could not be sustained. id. I^J: 220. The act to prevent raffling and lotteries, was intended to prohibit the sale of lottery tickets in this state, . whether the lottery was established here or elsewhere. And an indictment under the statute, for vending lottery tickets, need not allege that the lottery was established in this state. People v. Warner, A Barb. 314. Supreme Court, Onondaga General Term, November, 1848. 221. An indictment for vending a lottery ticket need not expressly aver, that the ticket was of a lottery established or set on foot for the purpose of disposing of real estate, goods, money, or things in action. id. 222. The character and description of the lottery need not form the subject of an express averment. It is suffi- cient if it appear argumentatively, in the indictment ; especially after verdict. id. 223. Argumentative pleading is a mere formal defect, INDICTMENT. 525 whicli is aided by verdict, and is good on general de- murrer, id. f^l[ 224. An indictmentfound on a penal statute, should state the precise words of that part of the statute defining the offense; it is settled law, that equivalent words are insufficient. People v. Van Pelt, 4 JIow. Prac. Bep. 36. Kings County Oyer and Terminer, December, 1848. Be- fore Strong, J., &c. 225. Held, that an indictment found under the act of May 14, 1845, for selling by retail, any intoxicating or spiritous liquors or wines, &c., could not be supported un- der the 15th section of the act of 1830, prohibiting the sale of any strong or spirituous liquors or wines, in any quan- tity less than five gallons at a time, without a license, id. 226. "Where a penal statute is repealed, the penalty is gone, though the repeal takes place while the prosecution for it is pending. id. 227. It is not sufficient, in an indictment for larceny, to describe the property stolen as " sixty dollars in bank bills current money, of the value of sixty dollars;" or " bank bills being current money of the state of New York, of the val- ue of sixty dollars." The number of bills stolen should be stated. Lord v. The People, 2 Park. Grim. Bep. 37. Su- preme Court, Albany Q-eneral Term, December, 1848. {Ill 228. On the trial of an indictment for a misde- meanor, in exposing the bodies of the defendants, naked and uncovered, to the public view, the intent with which the act was done is a material ingredient in the offense, ajid is a question of fact, for the consideration of the jury, under all the circumstances of the case. Miller v. People, 5 Barb. 203. Supreme Court, N. Y. General Term, Jan. 1849. 229. It is for the jury to find, whether there has been an intentional, wanton and indecent exposure of the per- sons of the defendants, at such a time and place, and in such a manner, as to offend against public decency. And a charge which withdraws that question from the consid- eration of the jury, as a question of fact, is erroneous, id. 526 INDICTMENT. Js",'^.' 230. Under an indictment for maliciously cutting and girdling certain fruit trees, described in the indict- ment as the property of one B., it is sufficient proof of the ownership of the property, to show that the premises on which the trees stood were in the possession and occupa- tion of B. at the time of committing the offense. People V. Sorr, 7 Barb. 9. Supreme Court, Jefferson General Term, July, 1849. 231. And evidence that B. was not the sole owner of the premises in question, but was only one of several joint owners who held the legal title in common, vnll not amount to a variance between the indictment and the proof id. JJ4J: 232. An indictment for a conspiracy to cheat and defraud, must set forth the particular means intended to be used by the conspirators, to compass the alleged fraud. March v. The People, 7 Barb. 391. Supreme Court, Onon- daga Gfeneral Term, November, 1849. 233. An indictment will lie against commissioners of excise, for willfully and corruptly granting a license to a person to sell spirituous liquors, as an innkeeper, knowing that he is not a man of good moral character, nor a per- son of sufficient ability to keep a tavern ; that he^ has not the necessary accommodations to entertain travelers, and that a tavern is not absolutely necessary at the place where he proposes to keep a tavern. People v. Norton, 7 Barb. 477. Supreme Court, Special Term, November, 1849. Be- fore Willard, J. 234. Justices, in granting or refusing licenses under the excise law, do not act solely as judicial officers. They have, indeed, a discretion to exercise which the Supreme Court will not control by mandamus, but their duties are so plainly defined, that if they willfully disregard them, they are liable to an indictment. id. fg'j^: 235. The practice of finding two or more indict- ments for different degrees of the samie offense, or for dif- ferent offenses founded on the same matter, disapproved, as a general rule. People v. Van Home, 8 Barb. 158, Mont- INDICTMENT. 527 gomery Oyer and Terminer, , Feiruary, 1850. Before Paige, J. ^l^o'. 236. On the trial of an indictment for abduction, it is erroneous to charge the jury that they are to judge in regard to the meaning of the term "prostitution," as used in the act of March 20, 1848, (see 3 E. S. 5th ed. 943.) Carpenter v. The People, 8 Barb. 603. Supreme Court, Monroe General Term, May, 1850. 287. The idea, which has become somewhat current in some places, that in criminal cases the jury are the judges of the law as well as the facts, is erroneous, not being founded upon principle or supported by authority. Courts of record are constituted the sole judges of the law in all cases that come before them. id. 238. "What degree of certainty and precision are neces- sary in an indictment. Briggs v. The People, 8 Barh. 547; Supreme Court, New York General Term, May, 1850. 239. Where an indictment for sending a threatening let- ter with a view of extorting money, alleged the sending of the letter by the defendant, to one A., "with intent to extort and gain from him, the said A., a large sum of money," &c. Held that these words sufficiently implied that it was the property of A., which the defendant was aiming at ; and that the addition of the words " belonging to the said A.," was unnecessary. id. 240. Held, also, that the omission of these words was such a formal defect as, under the statute, (2 R. S. 728 ; 3 R. S. 5th ed. 1020,) could be disregarded, inasmuch as it did not in any respect tend to the predjudice of the de- fendant, id. 241. A charge of an intent to extort and gain money from A., necessarily implies that it was A.'s property, id. ^^^; 242. An indictment for grand larceny, in stealing bank notes, alleged that the defendant feloniously stole, took and carried away ten promissory notes, called bank notes, issued by the Chickopee Bank, for the payment of; divers sums of money, amounting in the whole to the sum 528 INDICTMENT. of |50, and of the value of |50, ten promissory notes called bank notes, issued by the Agawam Bank, &c., of the goods, chattels and property of one B. M. Held, on motion in arrest of judgment, that the indictment was sufficient. People V. Jackson, 8 Barl. 637. Supreme Court, Monroe General Term, June, 1850. 243. Held, also, that it was of no consequence whether the banks were organized within the bounds, and under the laws of this state, or were banks of other states or' countries, so far as the allegations in the indictment were concerned; the names of the banks being mentioned by way of description of the property stolen. • id. 244. In an indictment for stealing bank notes, it is suf- ficient to describe them in the same manner as other things which have an intrinsic value, by any description applica^ ble to them as chattels. id. 245. The property stolen must be described with cer- tainty to a common intent. By which, is to be understood such certainty as will enable the jury to say whether the chattel proved to have been stolen is the same with that upon which the indictment is founded, and as will show judicially to the court that it could have been the subject matter of the oftense charged. id. ^I^J; 246. 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. People v. Stein, 1 Park. Grim. Rep. 202. Supreme Court, Albany General Term, September, 1850. 247. "Where a defendant, by a subsequent deposition, expressly contradicts and falsifies a former one made by him, and in such subseqilent deposition expressly admits and alleges that the former one was intentionally false at the time it was made ; or, in such subsequent deposition, testifies to such other facts and circumstances as to render the corrupt motive apparent, and negative the probability of mistake in regard to the first, he may be properly con- victed upon an indictment charging the first deposition to INDICTMENT. 529 be false, without any other proof than that of the two depositions ; and a trial and conviction upon such an in- dictment would be a complete bar to any further or other prosecution for the same perjury, in whichever deposition it may in fact have been committed. Selden, J., dissented. People V. Burden, 9 Barb. 467. Supreme Court, Monroe Cfeneral Term, September, 1850. ^S: 248. An indictment for forgery lies for making and issuing a false instrument in the name of another, request- ing persons to whom goods have been sent by the owner, to deliver them to the defendant; the latter having in- duced the owner so to send the goods, by falsely repre- senting that he was directed by those to whom the goods were sent, to buy the same for them. Harris v. The People, 9 Barb. 664. Supreme Court, New York General Term, June, 1851. 249. And it is sufficient to allege in the indictment, that the forgery was with intent to defraud the persons to whom the goods were sent, and to whom the order was directed. id. 250. An indictment for obtaining, by false pretenses, the signature of a person to a deed of real estate, should aver that the prosecutor owned, or had some interest in the lands described in the deed, or that the deed contained covenants rendering him liable to an action, BordY. The People, 9 Barb. 671. Supreme Court, New Yorh General Term, June, 1851. 251. And the deed should be so described that it may be identified by the record, in case the defendant is sub- sequently indicted for the same ofliense. id. 252. Where such an indictment did not allege that the grantor in the deed owned or claimed any title to the lands conveyed thereby ; and the description of such lands was in the most general terms, as, certain lands in the state of Texas and United States of America; and the date of the deed was nowhere averred, so that it would be impossible to identify the instrument ; and it did not appear that the 34 530 INDICTMENT. deed would tend to the hurt or prejudice of the prosecutor ; it was held — in the absence of any averment that the deed could not be more particularly described — that the indict- ment was defective. id. 253. "Where a verdict in a criminal case is approj)riate 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. Baron v. The People, 1 Park. Crim. Pep. 246. Supreme Court, Monroe General Term, June, 1851. fg|^; 254. An indictment for the second offense of petit larceny, should state facts showing that the court before which the first conviction was had, possessed jurisdiction of the person charged and of the offense. But where, in- stead of such statement of facts, the indictment contained only an allegation that the person before whom the con- viction was had, had full power and authority to hold such court, and to try and convict the prisoner for such offense ; held, that the defect was one of form, and could not be made available on writ of error to reverse the convic- tion, no objection having been made to the indictment in the court below. People v. Powers, 2 Selden's Rep. 50. Court of Appeals, December, 1851. 255. The indictment in this case, in order to show a conviction of the prisoner for the first offense, in due form, should have, preliminary to the statement of his trial and conviction, stated the charge made against him before the jifstice and in what form, the proceedings had before him upon it and the issuing the process thereon, his arrest and being brought before the justice ; showing thereby that there was a charge of petit larceny made in due form against him, and legal process issued for his arrest thereon ; that he was arrested, brought before the justice and elect- INDICTMENT. 531 ed to be tried for the offense charged before the justice, pursuant to the provisions of the statute in such cases. Such allegations would have shown jurisdiction in the jus- tice of the subject matter and of the person of the prisoner. Instead of them, the indictment alleges, in general terms only, that the court, before which the prisoner was tried and convicted, then and there had competent power and authority to try and convict him for such offense. id. l^l 256. "Where, in an indictment for burglary, the building charged to have been entered 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 under his charge. People v. Smith, 1 Park. Grim. Bep. 329. Oolumhia Oyer and Terminer, January, 1852. Before Parker, J. 257. In an indictment for larceny, it is sufficient if the goods stolen are laid as the goods and chattels of the bailee, id. 258. 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 Wiriters, 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. id. 259. Under a plea of not guilty, a defendant cannot avail himself of the fact that the defendant has been indicted by a wrong name. id. \f^^' 260. After pleading not guilty to an indictment for njurder, and before the impanneling of a jury, an ob- jection was made in behalf of the prisoner, that the cap- tion of the indictment erroneously described Israel S. Hoyt, one of the justices who held the court at which the indictment was found, as "one of the justices of the peace in and for the county of Tioga," and that by the constitu- tion and laws of this state a justice of the peace was a town 532 INDICTMENT. and not a county officer, but the objection was overruled by tbe oyer and terminer. People r. Thurston, 2 FarJe. Grim. Bep. 49. Supreme Court, Delaware General Term, July, 1852. Psfi 261. An indictment cannot be found in the county of New York for an offense committed on board of a steamboat close to the Long Island shore, in Suffolk county, upon a trip from the city of New York to Nor- wich, in- the state of Connecticut. Manly v. The People, 3 8eld. Bep. 295. Court of Appeals, October, 1852. 262. The construction of the statute in the case of ThePeo- jole V. JBulse, (3 Hill, 309,) commented on and approved, id. 263. Where an indictment contains a ein^e count for stealing in the city of New York, it will not be sustained by evidence that the goods were stolen elsewhere and brought there. Semhle. id. IsssV 264. In an indictment for obtaining property by false pretenses, it is sufficient to allege that the property was delivered to and obtained by the defendant, by means of the false pretenses particularly stated and negatived, without setting forth whether the property was so obtained by sale or bailment, or otherwise ; and pn the trial under such an indictment, it is competent to prove in what man- ner the property was obtained, whether by sale or bailment, or in any other way. Skiff v. The People, 2 Park. Crim. Bep. 139. Supreme Court, Albany General Term, Septem- ber, 1853. 265. Where, in such case, the indictment charged the pretense of owning two pieces of land in the town of Easton, in the county of Washington, designating them as the "home farm" or place, and the "Van Schaack farm," the description was held to be sufficiently defi- nite, id. 266. It is not necessary to negative all the pretenses in an indictment for such an offense, nor to prove all that are negative to be false. id. 267. In a case where the sufficiency of an indict- Oct, 1863, INDICTMENT. 533 ment is not involved in Bome 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 People v. Stockham, 1 Park. Orim. Pep. 423. iSii- preme Court, Onondaga General Term, October, 1853. 268. If an indictment for a statutory offense alleges all thQ facts which the statute requires to constitute the offense, this, as a general rule, is sufficient. id, 269. Where an indictment charged that the accused ad- ministered 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 miscar- riage of the said A. D., contra formam statuti, &c., held, that the facts charged were sufficient to constitute a mis- demeanor, under the act of May 13, 1845, to prevent the procurement of abortion. id. 270. The decision in The People v. Lohman (2 Barb. 220) upon this point, approved and adopted. id. JJ^J 271. Under the Revised Statutes an indictment, in all cases of conspiracy, except to commit felony upon the person of another, or to commit arson or burglary, must contain a charge of one or more overt acts, some or one of which must be proved upon the trial to have been done to effect the object of the conspiracy. People v. Chase, 16 Barh. Pep. 495. Supreme Court, JErie General Term, November, 1853. 272. Where an indictment for conspiracy alleged that an indictment for felony was about to be preferred against one C. before the grand jury ; that 8. was a material wit- ness to prove the charge ; that the defendants conspired and agreed together to induce S. to suppress her evidence, and to withdraw and conceal herself, in order to prevent her being examined as a witness ; and that the defend- ants, in pursuance of such conspiracy, did unlawfully, willfully and corruptly hire, persuade, induce and procure S. to withdraw herself out of the jurisdiction of the state, 534 INDICTMENT. and to go away from the county of E., and to withhold her attendance from th6 grand jury : Held, that the oyert acts were sufficiently alleged. id. 273. To justify a conviction upon such an indictment, it is sufficient to prove the making of the propositions to the witness by the defendants, without showing that she accepted the same, or went away in pursuance thereof id. i™!.' 274. Two distinct offenses, requiring different pun- ishments, cannot 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. Beed v. The People, 1 Park. Grim. Bep. 481. Supreme Court, Oayuga General Term, June, 1854. 275. "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 public health," passed April 10, 1840, the count was adjudged to be double; the former offense being pun- ishable by fine not exceeding $250, or imprisonment not exceeding one year, or both, (2 R. S. 697, §§ 40, 41 ; 3 R. S. 5th ed. 980,) and the latter being punishable by fine not exceeding f 1000, or imprisonment not exceeding two years, or both. id. (See Sess. Laws of 1850, 692, § 4; or 2 R. S. 5th ed. 54) 276. What allegations" in an indictment are sufficient to charge a common law nuisance, considered. id. ISM? 277. In an indictment for receiving stolen 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 felonious or fraudulent intent. People v. Johnson, 1 Park. Grim. Bep. 564. Supreme Court, Delaware General Term, July, 1854. 278. K 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. id. ?K4. 279. Receiving on storage for hire, or purchasing INDICTMENT. 535 graiu by false weights, in tlie business of a warehouseman and merchant, was a misdemeanor at common law ; the offense being now made a felony by statute, the misde- meanor is merged in the felony. People v. Fish, 4 Park. Grim, Rep. 206. Superior Court of Buffalo, General' Term, October, 1854. 280. In such case an indictment is bad, on demurrer, which does not charge defendant's acts and intents to have been felonious. id. 281. It is also bad, where it charges the intent to deceive and defraud " diyers citizens of the state," but omits to name them, or to aver that they were to the jurors un- known, id. 282. Whether it is necessary that the caption of the in- dictment should state that " the jurors were sworn, &c., for the people of the state of New York and thfe body of the county of Erie," instead of " for the body of the county of Erie," merely. Quere. id. 283. Form of demurrer book, on demurrer to indict- ment, id. PjIJ: 284. It is no objection to an indictment, that it was found while an investigation of the charge was pending before the committing magistrate. People v. Morton, 4 Park. Grim. Bep. 222. Superior Gourt of Buffalo, Gen- eral Term, Decemher, 1834. IKS. 285. Eorm of an indictment for petit larceny, charged as a second offense. People v. Ceasar, 1 Park. Grim. Bep. 645. Qolumbia Oyer qnd Terminer, January, 1855. Before Parker, J. 286. Where a defendant pleaded guilty to an indictment charging petit larceny as a second offense, and it appeared by the indictment that the first offense 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, id. fs^s^: 287. An indictment should be quashed, when it , clearly appears by affidavit that it was found by the grand 536 INDICTMENT. jury without adequate evidence to support it. People V. Bestenhlatt, 1 Abh. Prac. Bep. 268. New York Court of G-eneral Sessions, February, 1855. Before Stuart, J, 288. Form of an indictment for an attempt to commit arson in the second degree, by firing a warehouse adjoining to an inhabited dwelling-house. Peverelly v. The People, 3 Park. Qrim. Bep. 59. Supreme Court, New York General Term, February, 1855. ^^^^' 289. Form of an indictment for having in possess- ion an altered and forged bank bill, with intent to pass the same, the bill purporting to have been issued by a bank in another state. People v. Thoms, 3 Park. Crim. Bep. 256. Court of Appeals, March, 1855. 290. Where the indictment charged the sale of " strong and spirituous liquors " without license, and among other liquors, "one pint of strong beer," and the proof, without further explanation, was that the defendant sold " Dutch beer," it was held that the variance was immaterial. People V. Wheelock, 3 Park. Crim. Bep. 9. Supreme Court, Mon- roe General Term, March, 1855. ^^[ 291. The word " ravish " is necessary in charging the oflfense in an indictment for rape, audits omission will, after conviction, be ground for reversal on error. Gougle- mann v. The People, 3 Park. Crim. Bep. 15. Supreme Court, New York General Term, May, 1855. S' 292. Form of an indictment for murder by poison, and of a certificate of a justice of the Supreme Court allow- ing a writ of error and staying proceedings. People v. Williams, 3 Park. Crim. Bep. 84. Court of Appeals, June, 1855. ^^; 293. Form of an indictment for a violation of the 15th and 16th sections of the statute, entitled " Of excise and the regulations of taverns and groceries," (1 K S. 854,) of the special pleas to the same, and of demurrer and join- der. French v. The People, 3 Park. Crim. Bep. 114. Su- preme Court, Dutchess General Term, April, 1856. 294. In an indictment against a constable for not June, 13S6. INDICTMENT. 537 executing a warrant, it is necessary to show by averments that the justice who issued the warrant had jurisdiction. People V. Weston, 4 Park. Orim. Rep. 226. Superior Court of Buffalo, General Term, June, 1856. 295. It is not sufficient that the warrant set forth in the indictment recites all the facts necessary to confer the authority to issue it. It must be alleged in the indict- ment that those facts are true. id. 296. In pleading the judgments and proceedings of in- ferior courts of special and limited jurisdiction, a general averment of jurisdiction is not sufficient, but the facts on which it depends must be averred. id. S; 297. In charging, in an indictment, a statutory offense, it is not necessary to follow the precise language of the statute, but words of equivalent import are sufficient. Thompson v. The People, 3 Park. Crim. Rep. 208. Supreme Court, Delaware General Term, July, 1856. 298. An indictment for burglary in the second degree, charging the felonious breaking and entering of the house of E. B. P., with intent, &c., was adjudged sufficient, on writ of error, it being held that the word "house," in its primary and common acceptation, meant a "dwelling- house." id. 299. After conviction and sentence, it is too late to question the indictment, if it contain the substance of the offense, so that the defendant have intelligible notice of the charge made against him. id. S 300. Form of an indictment against a justice of the peace for a misdemeanor, in willfully admitting a prisoner to bail, in the city of New York, without notice to the district attorney, in a case in which the defendant was not the committing magistrate. People v. Bogart, 3 Park. Crim. Rep. 143. Supreme Court, New York General Term, September, 1856. fslj; 301. In an indictment for uttering and circulating as money foreign bank bills, and for receiving such bills with intent to circulate them, coijtrary to the provisions 538 INDICTMENT. of section 2 of the act of May 7, 1839, as amended April 13, 1853, it is not sufficient to describe the defendants as officers of a bank or banking association, and then simply to charge they did the acts complained of. It is necessary to allege a violation of the statute by the bank or associa- tion, and that the defendants acted as such officers in doing the acts in question. As individuals, the defend- ants are not liable, unless they are " authorized to carry ■ on the business of banking in this state;" and where the intent is to charge them as such, the allegation bringing them within section 2 of the act of 1853, should be made in the indictment. People v. Williams, 4 Park. Grim. Sep. 249. Superior Court of Buffalo, Criminal Term, December, 1856. Before Clinton, J. imi 302. It is sufficient, in an indictment for petit lar- ceny, charged as a second offense, to aver, generally, that the court of special sessions, before which the defendant was convicted, had full and competent power and author- ity in the premises, without setting forth the particular facts showing jurisdiction. People v. Golden, 3 Park. Grim. Bep. 330. Supreme Court, Broome General Term, January, 1857. 303. An omission in such indictment to state the facts which show jurisdiction, is only a formal defect, which is cured by the statute of jeofails, and is not available on demurrer. id. fg'j^; 304. In an indictment under the first section of chap. 109, of the Laws of 1854, entitled " An act for the protection of gas light companies," it is not sufficient to charge the act complained of in the words of the stat- ute. People V. Wilber, 4 Park. Grim. Bep. 19. Genesee Sessions, February, 1857. Before Brown, County J. 305. The relations of the party, whom it is alleged the defendant intended to defraud, to the means by which the fraud is sought to be perpetrated, must be alleged, so that the court can judicially see that the act complained of is calculated, as well as intended, to defraud ; and where an INDIOTMENT. 539 indictment alleged, in the words of the statute, that the defendant connected certain pipes, &c. &c., with intent to defraud a gas company, and contained no allegation that the company supplied the gas consumed at the burners ; held that the indictment was defective. id. 306. Whether the bare mention of the name of a gas company in an indictment, necessarily implies an allega- tion of its corporate existence. Qvsre. id. 307. The general rules of pleading, and the exceptions , thereto, as applicable to an indictment under this statute, and what such an indictment should contain, discussed and stated. id. '^^ss?' 308. It is no objection to an indictment for keep- ing a disorderly house, that it is charged in the same count that it is kept as a bawdy house, a tippling house and a dancing house. People v. Casey, 4 Park. Grim. Rep. 238. Superior Court of Buffalo, General Term, March, 1857. ■*gj'; 309. Form of an indictment for perjury, alleged to have been committed in a proceeding to obtain the natu- ralization of an alien in a county court. People v. Sioeet- man, 3 Park. Crim. Rep. 358. Supreme Court, Jefferson General Term, April, 1857. 310. Under an indictment for manslaughter, in the common law form, the accused may be convicted of man- slaughter, as defined in the Revised Statutes, in any degree, according to the evidence. People v. Butler, 3 Park. Crim. Rep. oTJ. Supreme Court, Dutchess General Term, April, 1857. M|^. 311. Form of an indictment for tape. People v. Jackson, 3 Park. Crim, Rep. 391. Supreme Court, Kings General Term, May, 1857. 312. Form of an indictment for the murder of an infant child, whose name and the manner of whose death were unknown, with counts in various forms to meet the cir- cumstantial evidence on which the prosecution relied to prove the corpus delicti. People v. Ruloff, 3 Park. Crim. 540 INDICTMENT. Bep. 401. Supreme Oowrt, Tioga General Term, May, 1857. ^isSI; 313. Form of an indictment for feloniously re- ceiving and having stolen property, with counts charging some of the defendants as accessories. Wills et al. v. The People, 3 Park. Orim. Bep. 473. Supreme Court, New TorJc Creneral Term, June, 1857. 314. Form of an indictment for peijury, committed in a civil action, tried before a justice of the peace. People V. McKinney, 3 Park. Grim. Bep. 510. Supreme Gourt, Saratoga General Term, June, 1857. \l^^_ 315. It is no objection to an indictment for selling spirituous liquors without license, to be drank on the premises of the person selling, against the provisions of the act of April, 1857, that the act is charged to have been done " without having obtained a license therefor as a tav- ernkeeper, or without being in any way authorized to sell the same as aforesaid." People v. Gilkinson, 4 Park. Crim. Bep. 26. Dutchess Oyer and Terminer. Before Emott, J. September, 1857. 316. The word " or," instead of " and," is fatal in an indictment only where it renders the statement of the offense uncertain. id. 317. If one count in an indictment be good, it will sus- tain a judgment, though the other counts be defective, id. 318. Where, in an indictment for selling liquors with- out license, the acts were charged to have been com- mitted " on the first day of August, 1857, and on divers other days and times between that day and the day of finding the indictment, to wit, the first day of July, 1857," and the count was demurred to on the ground that the offense was thus alleged to have been committed after the finding of the indictment, it was held that all the con- tinuando might be rejected, and the demurrer was over- ruled, id. 319. Form of an indictment for selling spirituous liquors INDICTMENT. 541 without license, against the provisions of the act of April 16, 1857. id. fj^s'j. 320. On the trial of an indictment for burglary, it appeared that the building in question was owned by G. ; that there were several apartments in the house, all of which were occupied by tenants, the outer or hall door being common to all the occupants ; and of these apart- ments, the one alleged to have been broken and entered was occupied by W. ; held, that the apartment alleged to have been broken and entered, was properly laid in the indictment as the dwelling-house of W". People v. Bush, 3 Parle. Grim. Bep. 552. Supreme Court, Kings General Term, October, 1857. 321. In an indictment for robbery in the first degree, (2 E. S. 677, § 55; 3 E. S. 5th ed. 956,) the defendant was charged with having feloniously assaulted J. D., on, &c., at, &c., and then and there feloniously putting him in fear and danger of his life, and then and there feloniously and violently stealing, taking and carrying away from his per- son and against his will, certain money of the said J. D., to wit, current bank bills of the value of fifteen dollars, and silver coin of the value of three dollars, of the goods and chattels of the said J. J)., against, &c., and it was held sufficient, without setting forth the number and denomi- nation of the bank bills, and the amount secured thereby and remaining unsatisfied thereon, or the number and description of the pieces of silver coin. People v. Loop, 3 Park. Grim. Bep. 559. Supreme Court, Tompkins Gen- eral Term, October, 1857. JJ'^^: 322. Form of an indictment for manslaughter in the second degree, for causing death by effecting an abor- tion, with a count for a misdemeanor in using an instru- ment with intent to procure a miscarriage. Sunt v. The People, 3 Park. Grim. Bep. 569. Supreme Court, New York General Term, Novernber, 1857. fgl"; 323. It is no valid objection to an indictment for a violation of the twenty- first section of the " act to sup- 542 INDICTMENT. press intemperance, and regulate the sale of intoxicating liquors," passed April 16tli, 1857, that the defendant had not been first arrested and taken before a magistrate. People V. Page, 3 Park. Grim. Bep. 600. Supreme Court, New York Creneral Term, December, 1857. 324. Aprisoner may be convicted of burglary or larceny in any county into which he carries the goods stolen by means of burglary. In the indictment for simple larceny, it is suffi- cient to allege the taking to have been in the county where the indictment is found ; but it seems that an indictment for the burglary, in a county other than that where the bur- glarious entry was made, must set out the facts specially to bring it within the statute. (2 R. S. 727, § 50 ; 3 R. S. 5th 1019.) PeopU V. Easkins, 16 N. T. Bep. 344. Court of Appeals, December, 1857. S\ 325. Where an indictment for selling unwholesome beef, charged that the defendant sold the beef in question to divers citizens " as good and wholesome beef and food," it was held to be a sufficient averment that it was sold to such citizens, to be eaten by them. Mason, J., dissenting. Goodrich v. The People, 3 Park. Grim. Bep. 622. Supreme Court, Broome General Term, January, 1858. 326. And it is no defect in such an indictment that the persons are not named to whom the beef was sold, if it is alleged in the indictment that such persons were "to the jurors unknown." • id. 327. Nor is it necessary to allege, in such an indictment, that the defendant intended to injure the health of the per- sons who ate the beef, or that it did injure their health, id. 328. What is a sufficient averment of time and place in such an indictment. id. "i^ll: 329. Form of an indictment for assault and battery committed on an officer while engaged in the execution of his office, with a count for riotously and routously resisting the execution of process, and a count for resisting the exe- cution of a search warrant under the act of 1845, (ch. 69, INDICTMENT. 543 § 17.) People V. Eolcomh, 3 Park. Grim. Bep. 656. Supreme Court, Clinton General Term, May, 1858. (Section 17 is as follows : Every person who shall re- sist or enter into a combination with any person or per- sons, to resist the execution of process, shall be guilt;y of a misdemeanor, and be punished by imprisonment in the county jail for a term not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment, in the discretion of the court.) ^S: 330. Where, in an indictment for obtaining an in- dorsement to a note by false pretenses, the note was set forth at length, and it thus appeared to have been made by the defendant and made payable to the order of the prosecutor, and there was no averment that the indorse- ment was made for the accommodation of the defendant, it was held that the indictment was defective for want of such averment, the presumption being on the face of the note alone that it was the property of the prosecutor at the time ot the indorsement. People v. Chapman, A Park. Crim. Bep. 56. Supreme Court, Cayuga General Term, June, 1858. 331. This case distinguished from Penton v. The People, (4 Hill, 126.) id. ^lUs': 332. Where an indictment, on allegations of cer- tain facts, charges the defendant with " assault and bat- tery, with intent to kill," and on the trial a general verdict is rendered of " guilty of an assault and battery, with in- tent to kill," the verdict is one finding a crime of assault and battery only, where the indictment omits to allege some of the means which the statute names of an intent to kill ; that is, " by means of a deadly weapon, or by such other means or force as was likely to produce death." People v. Davis, 18 How. Prac. Bep. 134. Supreme Court, Albany General Term, September, 1858. (This case is also reported in 4 Park. Crim. Rep. 61.) ^°l 333. Where a count in an indictment against the mayor, aldermen and councilmen of the city of New York, 544 INDICTMENT. charged that the defendants " did violate and evade the provisions" of such amended charter, "by voting for and passing a resolution in due form, directing the comptroller to lease" certain real estate of the corporation to the Eo- man Catholic Orphan Asylum for more than ten years, the count was adjudged bad, as not charging any offense under the statute passed in 1857, chapter 446. People v. Wood, 4 Park. Orim. Rep. 144. New York Oyer and Term iner, November, 1858. Before Mullin, J. fjlJ: 334. Where, in an indictment for burglary, with intent to commit a larceny, the larceny itself is insuffi- ciently charged, the prisoner may still be convicted of the burglary alone, if the evidence is sufficient to establish the intent charged. People v. Marks, 4 Park. Grim. Rep. 153. Supreme Court, New York General Term, December, 1858. ^fs", 335. Form of an indictment for murder by poison- ing, against M. H. as principal, and "W. E. as accessory before the fact, with counts at conimon law and under the statute. People v. Hartung, 4 Park. Orim. Rep. 256. Albany Oyer and Terminer, January, 1859. Before Har- ris, J. fli^sl 336. Form of an indictment for arson in the first degree. Bidieu v. The People., 4 Park. Grim. Rep. 593. Supreme Gourt, New York General Term, i^eftrwar^, 1859. 337. Under an indictment tor arson in the first degree, the defendant may be convicted of arson in the third de- gree, where the offense proved on the trial is the burning of goods, wares, merchandise or other chattels, insured against loss or damage by fire, with intent to prejudice the insurer. id. 338. The application to such a case of the statutory pro- vision, (2 E. 8. 702, § 27; 3 E. S. 5th ed. 989,) which allows a conviction for any degree of the offense inferior to that charged in the indictment, is not a violation of the sixth section of the state constitution, which declares that no person shall be held to answer for a capital or other- INDICTMENT. 545 wise infamous crime, unless on presentation or indictment of a grand jury. ^*5^: 339. Form of an indictment for an assault and bat- tery committed witli a deadly weapon, with intent to kill, with a count charging the intent to maime. O'Leary v. The People, 4 Park. Orim. Rep. 187. Supreme Gourt, Clin- ton General Term, May, 1859. fljPj^- 340. Where, on demurrer to an indictment for lar- ceny in stealing a dog, it was stipulated that the indictment should be considered as alleging that the dog in question had been retained and made tame and domestic, and that the defendant, knowing it to be such, feloniously took and carried it away ; held that the stipulation should be dis- regarded in deciding the demurrer. People v. Campbell, 4 Park. Crim. Pep. 386. New York Creneral Sessions, September Term, 1859. Before Bussel, City Judge. 341. "Where a part of the house is occupied by a ten- ant habitually lodging therein at night, and the residue by the owner, the building is well described in the indict- ment as the dwelling-house of such tenant. Shepard v. The People, 19 N. Y. Bep. 537. Court of Appeals, September, 1859. 342. An indictment for selling unwholesome provisions sufficiently avers a sale for consumption as food for man, by stating that the prisoner sold to divers citizens beef as wholesome food, well knowing the same to be diseased, unwholesome and not fit to be eaten. Goodrich v. The People, 19 N. Y. Bep. 574. Court of Appeals, September, 1859. °?J: 343. An averment in an indictment, describing a mortal wound made by a sword " in and upon the body," is not defective because it does not specify the part of the body in which the wound was inflicted ; nor is it de- fective in stating only one wound instead of two. Such objections are matters of form which, under the statute, may be disregarded as not tending to the prejudice of the defendant. Besides, they are objections which may be 35 546 INDICTMENT. taken before, but not after verdict — the law on this point being the same in criminal as in civil cases. People v. Sanchez, 18 Mow. Prac. Pep. 72. Supreme Court, New York G-eneral Term, October, 1859. (This case is also re- ported in 4 Park. Crim. Eep. 535.) l^i 344. In an indictment for murder, it was charged " that the said M. 8., a certain knife, which he, the said M. S., in his right hand then and there had and held, him, the said J. L., in and upon the forehead, then and there willfully and feloniously and of his malice afore- thought, did beat, strike, stab, cut and wound, giving unto the said J. L., then and there, with the knife aforesaid, in and upon the forehead of him, the said J. L., one mor- tal wound," &c. &c. It was held, on error, that the cleri- cal omission of the word "with," before the words "a certain knife," did not vitiate the indictment, the offense being sufficiently charged in other clauses of the indict- ment. Shay V. The People, 4 Park. Crim. Pep. 353. >S'm- preme Court, New York General Term, February, 1860. (This case is also reported in 18 How. Prac. Eep. 61.) *ia6?' 345. Form of an indictment against husband and wife, for the embezzlement and larceny of property charged to belong to A. C, as superintendent of the poor of the county. Coats v. The People, 4 Park. Crim. Bep. 662. Supreme Court, Monroe General Term, March, 1860. 346. An indictment for embezzlement and larceny was found against "W". S. C. and M. C, his wife, and, on mo- tion, in bahalf of M. C, the court quashed the indictment as to her; held, that quashing the indictment as to M. C. did not discharge it, and was no reason for quashing it as to W. S. C, but that he could be tried under the indict- ment as if originally indicted alone. id. 347. It is no reason, for quashing an indictment for the embezzlement and larceny of articles of food provided for the support of a county poorhouse, that they are charged in the indictment as the property of the superin- tendent of the poor of the county. As superintendent of INDICTMENT. 547 the poor he was an incorporated company within the meaning of the statute, and the defendant being his agent was the agent of an incorporated company. id. ^11: 348. Form of an indictment for the statutory of- fense of seduction under promise of marriage. Q-rant v. The People, 4 Farh. Crim. Rep. 527. Supreme Gourt, Clinton General Term, May, 1860. "i™?.' 349. Form of an indictment for feloniously re- moving the dead body of a human being from the grave for the purpose of dissection or sale, with a count for feloni- ously receiving a dead body, knowing it to have been feloniously disinterred. People v. Graves, 5 Park. Crim. Rep. 134. Supreme Court, Cayuga General Term, June, 1860. 350. It is not a valid objection to a count in an indict- ment that it refers to material matters alleged in a pre- vious count, instead of repeating the allegation. id. 351. All that is necessary to the validity of an indict- ment is, that it enables a defendant to prepare for his de- fense, and to plead the judgment in bar of a second prosecution. id. 352. When a verdict, defective in form, is brought in by a jury, it is not erroneous for the court to direct the jury to retire again to say under which count they find the prisoner guilty. id. 353. Where, on the trial of an indictment, the jury bring into court a verdict defective in form, it is compe- tent for the court, before they have separated, to send them out again to consider the case further, and to agree on a verdict in due form, though- the informal verdict may have been received and entered in the clerk's minutes, and the jury may have made the usual response, assent- ing to it when the entry by the clerk was read over to them. id. S|p«; 354. In an indictment for murder, the place of the mortal wound is sufficiently indicated by the allegation 548 INDICTMENT. that it was " upon the hody." Sanchez v. The People, 22 N. Y. Bep. 147. Court of Appeals, September, 1860. 355. This, it seems, means the trunk, in contradistinction from the head or limbs ; but whether it does or not, it is a matter of mere form, and immaterial. id. 356. An indictment for murder is sufficient, although, by a clerical omission of the word "with," the offense, in strictness of grammar, may appear to be charged against the knife, and not against the prisoner. Shay v. The Peo- ple, 22 iV. T. Pep. 317. Court of Appeals, September, 1860. S 357. The public prosecutor may insert several counts in the same indictment, alleging the offense distinctly and separately, in various ways to meet the evidence, and the court will not compel an election between them on the trial. Nelson v. The People, 5 Park. Orim. Rep. 39. Su- preme Court, Broome General Term, November, 1860. 358. "When the jury render an imperfect verdict, the court may refuse to receive it, and direct them to retire and correct it, and may afterwards receive the corrected ver- dict, id. falS; 359. An objection that the indictment appeared on its face to have been presented by twenty-four grand jurors, is not available on error, where, the defendants pleaded to the indictment, and proceeded to trial without objection in the court below. Conkey & Harrington v. The People, 5 Park. Grim. Bep. 31. Court of Appeals, December, 1860. 360. The indictment contained three counts: first, against both defendants for rape ; second, against C. for rape, and H. for assisting him in committing it; third, against both prisoners for assault and battery, with intent to commit a rape. The jury returned the following ver- dict: "they find the prisoners at the bar guilty of the offense charged in the indictment." It was held to be equiv- alent to a general verdict of guilty, and that upon it the court might properly pass judgment against the defend- ants on the count charging the highest grade of crime, id. INDICTMENT. 549 ^il\ 361. Form of an indictment for the crime against nature. Lamberton v. The People, 5 ParJc. Crim. Rep. 200. Supreme Qourt, Dutchess General Term, May, 1861. 362. The allegation that the defendant " had a venereal affair," is not indispensable in an indictment for the crime against nature. The omission may be supplied by an alle- gation of " carnal knowledge," or some other equivalent allegation. id- 363. An indictment under the act of March 23, 1860, prohibiting the sale of passenger tickets, except as therein mentioned, must state the 'port or place from which the ticket purports to entitle the person to a passage. Enright V. The People, 21 How. Prac. Rep. 383. Supreme Court, New York General Term, May, 1861. '■^l' 364. If a person set fire to a building, and thereby an adjoining building is set fire to or burnt, he can be in- dicted and convicted of setting fire to the latter. Hen- nessey V. Tlie People, 21 How. Prac. Rep. 239. Supreme Court, New York General Term, June, 1861. 365. "Where the prisoner was indicted for arson in the first degree, for feloniously setting fire in the night time to the inhabited dwelling-house of Caroline Brown, No. 35 Groerck street, in the city of New York, and the evi- dence tended to show that the prisoner set fire to his own store, No. 33 Goerck street, in which he had goods insured, and that the fire communicated to the dwelling-house No. 35, adjoining, which was assumed on the trial to be inhab- ited. Held, that the jury were authorized to disregard the circumstance of the dwelling-house h^mg inhabited, and to find a verdict of arson in the third degree. Allen, J. dis- senting, id. 366. An indictment for forgery, which alleges that the defendant falsely made, forged and counterfeited an in- strument within the description of the statute, and in which the instrument so alleged to be forged, is set out in verbis issis, contains a sufficient description of the circum- stances, within the statute. So held, where the instrument 550 INDICTMENT. was a deed, purporting to be signed by the defendant and his wife. Eolmes v. The People, 15 Abb. Prac. Rep. 154. Supreme Court, First District, General Term, June, 1861. Ilsi: 367. In an indictment against a railroad company for an unlawful and willful neglect to erect and maintain fences on the sides of the road, it is necessary to aver that it was the duty of the corporation to erect and maintain such fences. People v. The New York Central Railroad Company, 5 Park. Grim. Rep. 195. Supreme Court, Erie General Term, September, 1861. 5^°J; 368. Though two or more persons jointly indicted cannot be convicted of a joint offense, when their offenses are proved to have been separate, yet they may be con- victed of their separate offenses as if separate indictments had been found. Chatterton v. The People, 15 Abh. Prac. Rep. 147. Supreme Court, First District, General Term, November, 1861. 369. Proof that each of two persons indicted for jointly receiving stolen goods, received them in the absence of the other, is not conclusive evidence that they were not jointly engaged in the crime. id. 370. An indictment charging the defendant with having unlawfully, unjustly, and for the sake of wicked gain, feloniously received goods, knowing them to have been stolen, is good. So held, after verdict. id. fjl": 371. Upon an indictment containing nine counts for embezzlement of different grades, and others for lar- ceny, a verdict "guilty of embezzlement" is equivalent to an acquittal of the larcenies charged, and a bar to any sub- sequent prosecution. Guenther v. The People, 24 N. Y. Rep. 100. Court of Appeals, December, 1861. 372. One of the counts for embezzlement being good, the verdict means that he is guilty of the offense charged therein. id. 373. An entry by order of the court, after the jury was discharged, in amendment of the verdict as first recorded, INDICTMENT. 551 that " the jury find the prisoner not guilty of the larceny charged," is unwarranted and nugatory. id. fsl^- 374. In an indictment for willfully cutting wood or timber upon lands of another, under 2 E. S. 693, § 15, as amended by the laws of 1851, eh. 182, (3 R. S. 5th ed. 973,) it is necessary to describe the lot or close upon which the trespass was committed ; and where this was omitted, the indictment was quashed. People v. Caspenger, 5 Park. Orim. Bep. 228. Broome Oyer and Terminer, February, 1862. Before Balcom, J. ^iset 375. Form of an indictment for seduction under a promise of marriage. People v. Kenyon, 5 Park. Crim. Bep. 254. Supreme Court, Monroe Q-eneral Term, March, 1862. ^l 376. Form of an indictment for bigamy. Hayes v. The People, 5 Park. Crim. Bep. 325. Supreme Court, New York General Term, May, 1862. 377. Form of an indictment for forgery in the third de- gree, in forging and uttering a bank check. Clements v. The People, 5 Park. Crim. Bep. 337. Supreme Court, New York General Term, May, 1862. 378. Form of an indictment for manslaughter in the second degree, in procuring an abortion under the act of 1846, chap. 22, § 1 ; 3 R. S. 5th ed. -94. Cobel v. The People, 5 Park. Crim. Bep. 348. Supreme Court, New York Gen- eral Term, May, 1862. fara!' 379. The amendment ofthe Revised Statutes, (Laws of 1860, ch. 271, p. 474,) as to the time within which in- dictments must be found, applies to offenses committed before its passage, if no indictment had been found ; and where the defendant was indicted in May, 1862, for false pretenses, alleged to have been made in 1850, and during the interim he had been living in the state of California, on pleading the statute of limitations, the plea was held good, and judgment rendered for the defendant. People V. Boe, 5 Park. Crim. Bep. 231. Montgomery Oyer and Terminer, September, 1862. Before Bosekrans, J. (In 552 INDICTMENT. 1860, the legislature amended the Revised Statutes — 3 R. S. 5th ed. § 37, 1017— by inserting the words " United States" in the place of " State.") 185^ 380. Where, on an indictment for misdemeanor, it appears that the offense consists of a series of acts, and a part of the series is a complete misdemeanor, there can be no merger in a felony, and the conviction for a misde- meanor -will be sustained, although the evidence may show the commission of an act of felony. Elkin, v. The People, 24 How. Prac. Bep. 272. Supreme Court, New York Gen- eral Term, October, 1862. 381. But where, on such indictment, the act which is the gist of the indictment is a single act, and the evidence shows the commission of a felony, the misdemeanor may be merged in the felony. id. ^°5j 382. Where an indictment, charging burglary in the first degree, complies with all the requisites of the stat- ute in describing the offense, except that it omits to state the mode of entry into the premises, (by forcibly bursting or breaking the wall or outer door, window, &c.,) it ib fatally defective, and the defect is not cured by verdict. People v. Fellinger, 24 How. Prac. Bep. 341. Supreme Court, New York General Term, November, 1862. 383. Where the allegations in the indictment charged only burglary in the second degree, the jury have no right to find the prisoner guilty of burglary in the first degree, because evidence was furnished sufficient for that pur- pose, id. fsl^; 384. An indictment charging, in the same count, an assault to have been committed " with intent to do bodily harm," and also " with intent to kill," being of- fenses against distinct statutes, saved fi'om the objection of duplicity by its not charging the assault " to do bodily harm," to have been " without justifiable or excusable cause." Dawson v. The People,25 N. Y. Bep. 399. Court of Appeals, December, 1862. 385. This qualification, being in the enacting clause of INDICTMENT. 553 tlie statute, must, it seems, be negatived to make a good iudictment under it ; and the charge of an intent to do bodily harm is surplusage, which does not vitiate a count fully charging an offense under another statute. id. 386. After judgment, an allegation in the caption of an indictment that it was found by " a grand jury of good and lawful men," is to be deemed good, though not stating the names nor the number of the jurors. The ob- jection must be taken by motion to quash, or by de- murrer, id. 387. The statute requiring the filing of an indictment is directory. The omission to file does not, it seems, avoid the indictment. If otherwise, an averment that it was filed with the clerk of the county is equivalent to an averment that it was filed in the court of general sessions. id. \^l 388. An indictment will not be quashed, on the ground that it was found and presented by the grand jury pending an examination of the same charge before a po- lice magistrate. People v. Hefferman, 5 Park. Crim. Rep. 393. New York General Sessions. Before Hoffman, Be- corder. February, 1863. M|j=>>. 389. Since the Revised Statutes, it is unnecessary, in an indictment for burglary in breaking, &c., with in- tent to commit a crime, to specify what kind of felony was intended. Mason v. The People, 26 N. Y. Bep. 200. Court of Appeals, March, 1863. 390. In a tenement house,' severed by lease into distinct habitations, each rodm or suit of rooms occupied by a ten- ant is his dwelling-house, and a door of such room is an outer door, so that a breach of it in the daytime is bur- glary, though the common door, for passage into the street, be open. id. 391. To convict one charged with uttering a counter- feit bank check, set ou^ in the indictment and purport- ing to have been certified by some person purporting to be connected with the bank on which the check was 554 INDICTMENT. drawn, it is suflScient to prove that the words of certifica- tion were false, and that no person of the name signed to the certificate was connected with the bank, without show- ing that the signature of the drawees was a forgery. Peo- ple V. Clements, 26 JV. T. Bep. 193. Court of Appeals, March, 1863. 332. A certified check on a bank is an instrument which, as an entirety, comes within the statute of forgery; and where evidence, received without objection, shows that any material part of it was forged, e. g., the certifi- cate, it is immaterial that the indictment does not specify that the forgery was of the certification, and not of the check itself id. 393. The indictment need not aver that the paper is, in the words of the statute, an order for the payment of money, or any instrument by which a pecuniary demand is created. id. 394. Bex v. Howard, (6 Carr. & Payne, 148,) distin- guished on the diversity between our statute and the British. id. 395. An indictment for a conspiracy, to cause one L. to be arrested for the crime of larceny, averred, that in pur- suance of the conspiracy, the defendant caused and procured one W. to appear before a police justice and complain of L. for larceny, and false swearing that L. had stolen money from her. The conspiracy was sought to be established, by the act of procuring "W". to make the complaint and falsely swear to the larceny committed. Held, that the facts did not show that "W"., in so swearing, committed the crime of perjury, and consequently the de- fendant was not guilty of the off"ense of subornation of perjury ; and it followed that no felony being established, no merger of the misdemeanor in it did or could take place. Mkin v. The People, 28 N. Y. Bep. 177. Court of Appeals, March, 1863. 396. An indictment for a conspiracy, which avers that the accused, with another person, conspired unlawfully and INDICTMENT. 555 maliciously, to procure a third person to be arrested for the offense of larceny, well knowing that he was not guilty of said offense, follows the statute substantially, and con- tains all the needful averments to sustain a conviction, id. S. 397. Form of an indictment for obtaining money by false pretenses. People v. Smith, 5 Park. Crim. Rep. 490. Supreme Court, New York General Term, May, 1863. ^8^3; 398. In an indictment for bigamy, it is unnecessary to negative the exceptions, although they are referred to in the section defining the offense. (211. 8. p. 687, § 8 et seq. ; 3 E. 8. 5th ed. 967.) As matter of pleading, as well as proof, it lies upon the defendant to bring himself within the exceptions. Fleming v. The People, 21 N. Y. Hep. 329- Court of Appeals, September, 1863. 399. The general rule of criminal pleading is, that where there is an exception or qualification in the enacting clause of a statute, to the effect that, in certain cases or under cer- tain circumstances, the ofi'ense is not to be considered as committed, these must be negatived in the indictment. This indictment is formally defective, but the statute (2 R. 8. 728, § 52 ; 3 R. 8. 5th ed. 1019) cures the formal defect, if it were one, of not negativing the provisos. id. ^isu^' 400. An indictment for abduction, under section twenty-six, article one, title two, chapter one, part four of the Revised Statutes, (3 R. 8. 5th ed. 943,) will be sus- tained, though it be alleged therein that the female was taken for the purpose of prostitution, concubinage and marriage, instead of making the allegation in the alterna- tive in the language of the statute, and will be supported by proof of a taking for either of those purposes. People v. Parshall, 6 Park. Crim. Bep. 129. Supreme Court, Mon- roe General Term, March, 1864. 401. An additional allegation in such indictment, charg- ing an intent to do further acts not mentioned in the stat- ute, will not vitiate the indictment, but will be regarded as surplusage. id. Jjjf; 402. Form of an indictment for malicious mischief. 556 INDICTMENT. People V. Moody, 5 Park. Crim. Rep. 568. Supreme Court, Broome General Term, May, 1864. 403. The indictment charged the name of the deceased to be Nancy Elizabeth Vincent; the evidence showed she went by the name of Lizzie Walters ; that she sometimes went by the name of Elizabeth ; that she called her name Nancy E. Vincent, and that, when brought before the offi- cer, charged with having stolen the prisoner's watch, she stated in the presence of the prisoner that she was not his wife, that her name was Nancy Vincent, and that the prisoner made no objection to her statement; held, that it was not erroneous in the court below to exclude, as evi- dence, letters addressed to the prisoner, which had been written at the request of the deceased, and which were signed Lizzie Walters, or Elizabeth Walters, some of them commencing " My dear husband," and concluding, " your loving wife," such letters being offered for the pur- pose of proving a variance beween the indictment and the evidence. Walters v. The People, 6 Park. Grim. Rep. 15. Supreme Court, New York General Term, May, 1864. 404. In an indictment for obtaining money by false pre- tenses, the name of the person defrauded was charged to be John J. Robinson. The evidence showed his name was spelt Robison. The recorder charged the jury that it was for them to determine whether the two names had the same sound ; and if the sound was not the same, it was their duty to acquit. On review, the charge was-held to be cor- rect. People V. Cooke, 6 Park. Crim. Rep. 31. Supreme Court, New York General Term, May, 1864. 405. The statement of the day of the month, in an indictment for committing an affense on Sunday, though the doing of the act on that day is the gist of the offense, is not more material than in other cases. People v. Ball^ 42 Barb. Rep. 324. Supreme Court, Erie General Term, May, 1864. 406. Accordingly held, that an averment in an indict- ment for violating the 22d section of the excise law, which mDICTMENT. 557 forbids the sale of intoxicating liquor by licensed innkeep- ers on Sunday, that the defendant "on the 13th day of October, in the year and at the place last aforesaid, which said day was the day of the week called and known as Sunday, did sell," &c., was sufficient, although it appeared on the trial that the 13th day of October was not Sunday, but Monday. Davis, P. J., dissented. id. 407. Form of an indictment for manslaughter. People V. Holmes, 6 Park. Crim. Rep. 25. Supreme Court, New York General Term, May, 1864. 408. Form of an indictment for robbery in the first de- gree. Quinlan v. The People, 6 Park. Grim. Rep. 9. Su- preme Court, New York General Term, May, 1864. S' 409. A count in an indictment, which omits to state the time and place at which the alleged offense was committed, is fatally defective. Crichton v. The People, 6 Park. Crim. Rep. 363. Court of Appeals, June, 1864. 410. A general verdict of guilty will be sustained, al- though there be a defective count in the indictment, if there be also a good count to which the evidence is applicable, id. 411. Whatever is alleged in a count which is not neces- sary to constitute the offense, may be rejected as surplus- age, id. 412. An averment in an indictment, descriptive of the offense charged, if made under a videlicit, cannot be re- jected as surplusage. id. fg|°; 413. Form of an indictment for nuisance, in permit- ing a plank road to be out of repair, with counts under the statute and at common law. People v. The Branchport Company, 5 Park. Crim. Rep. 604. Supreme Court, Mon- roe General Term, December, 1864. 414. If the acts of the prisoners committing the offense are a part of one and the same transaction, and the offense in law admits of different degrees, they may be convicted of different degrees, though jointly indicted for the same offense. Klein v. The People, 31 N. Y. Rep. 229. Court of Appeals, December, 1864. 558 INDICTMENT. 415. This rule applies, except in indictments for offenses necessarily joint, as for a conspiracy, riot, &c. id. 416. Where two are jointly indicted for committing a larceny, and one of them pleads guilty of an attempt to commit a larceny, and is sentenced, the other defendant may be lawfully tried for the larceny, and, on conviction, be sentenced to suff'er the penalty of the law therefor, id. 'S 417. An indictment for an assault and battery upon a person to the jurors unknown is not sustained, it seems, by evidence that the name of the person assaulted was known to the jurors finding the indictment. But such an indictment is sustained by evidence before the petit jury, disclosing the name of the person assaulted. It is the ignorance of the grand jury, and not of the petit jury, which authorizes the statement that the person is unknown. White et al. v. The People, 32 N. Y. Rep. 465. Court of Appeals, June, 1865. ■'i^^^; 418. It seems, that it is only in very clear cases that a prisoner should be allowed to withdraw his plea and move to quash the indictment, without the consent of the prosecuting attorney. People v. Strong, lAbb.-Prac. Rep. 244, N. S. New Torlc General Sessions, July, 1865. Be- fore Russel, City Judge. 419. Although, as a general rule, criminal complaints must originate in the police offices, and the court will, on motion, relieve against an indictment if it originated with the grand jury ; (quere,) yet where the action of that body is necessary to prevent the statute of limitations from attach- ing, the indictment will not be quashed on that ground, id. 420. It makes no difference, in such a case, that the pros- ecution might have brought the offense to the knowledge of the authorities at an earlier time. id. 421. An indictment should not be quashed upon the ground that there was not suflBcient evidence before the grandjury, if there was before them testimony upon which, on their oaths, they could fairly act. If they have some evidence, it is for them to determine its weight. id. INDICTMENT. 559 ^i^^s': 422. There is no fatal variance between the indict- ment and the verdict, where the former charges the pris- oner with having /eZont'owsZ^/ stolen, taken and carried away from the person, &c., SLnd the l&tter&udis the prisoners guilty, as charged in the indictment, of grand larceny, in stealing from the person, <&c. Fallon^. The People, 39 N. Y. Bep. 145, 2 Keyes. Court of Appeals, September, 1865. face's, 423. A count in an indictment which charges that the prisoner did administer, and did cause and procure to be administered, &c., does not charge two distinct offenses, and is not subject to the objection of duplicity. La Beau V. The People, 33 How. Prac. Bep. 66. Supreme Court, Fourth District, General Term, October, 1865. (This case is also reported in 6 Park. Crim. Rep. 371.) 424. Formof an indictment for murder by poisoning, id. 425. An indictment charging that the defendant admin- istered poison, is sustained by proof that the defendant ob- tained the poison and mixed it with the food which he knew was prepared for the use of the person poisoned, id. 426. It was charged in an indictment thiat the defendant " did administer, and did cause and procure to be admin- istered," certain poison, &c. Held, that it was not liable to the objection of duplicity, though the statute, by using the disjunctive, had made "administering" and "causing and procuring to be administered," separate and distinct offenses. id. 427. On the trial of an indictment for murder by poison- ing, it is competent, upon the question of intent, to prove that a short time befoi'e the procuring of the poison, the defendant had in his possession a " slung shot," with which he threatened that he would take the life of the deceased, and, with such proof, the weapon may be exhibited in court, and identified before the jury. id. fell: 428. It is necessary to the validity of an indictment, under the statute, for illegal voting at a general or special, town or charter election, that it should contain an allega- gation of the facts which render the act of voting criminal. 560 INDICTMENT. People V. Standish, 6 Park. .Grim. Rep. Ill, Supreme Court, Monroe General Term, December, 1865. 429. Where the indictment contained only the general allegation that the defendant was not a qualified voter at the time he gave his vote, and the defendant was convicted on evidence that he had, prior to the election, made a bet on the election, the conviction was reversed. id. 430. The simple act of voting at an election is no crime ; it is other facts connected with or attending that act which constitutes its criminality. Those facts which give char- acter to the act, and which render it criminal, should be alleged in the indictment. id. 431. Form of an indictment for robbery. People v. Sail, 6 Park. Grim. Rep. 642. Supreme Court, Monroe General Term, December, 1865. i8s"5, 432. In an indictment for obtaining money by false -pretenses, it is sufficient to state, negate and prove one false pretense ; and the materiality and influence of such pretense is a question for the jury, unless, upon the face of the indictment, the pretense appears clearly to be imma- terial. Thomas v. The People, 34 N. Y. Rep. 351. Court of Jppeals, January, 1866. 433. It is sufficient if, upon the face of the indictment, a false pretense is alleged which is capable of defrauding by inducing a credit, &c. Per Wright, J. id. ^ms!' 434. It is not a valid objection to an indictment that it recites the wrong year in which the statute, under which the defendant was indicted, was passed by the legis- lature. People V. Reed, 47 Barb. Rep. 235. Supreme Court, Monroe General Term, March, 1866. 435. An indictment alleged, or recited, that the act was passed April 12, 1861. It was in fact passed on that day and year, but was repealed the next year. It was re-enacted May 5, 1863, by a provision declaring that " all the pro- visions" of that chapter "are hereby re-enacted, and de- clared to be in full force from and after the passage of this act." The statute thus re-enacted was chapter 173 of the INDICTMENT. 561 laws of 1861, containing six sections. Tlie offense was committed after the re-enactment in 1863, and while the act was in force. Held, that this was not a variance fatal to the indictment. id. 436. A material variance, in such a case, is where some material provision of the statute is misrecited. id. ■ 437. It is wholly immaterial when the statute was enacted by the legislature and became a law, provided it was in force when the offense charged in the indictment was committed. id. 438. The legislature has power to pass a valid law to prevent the taking of fish, at certain seasons, within the waters of this state. It is a power which the legislature has already exercised, and the right is founded in consid- eration of public policy. id. 439. Where an offense consists in doing acts prohibited by a statute, it is unnecessary for the jury to find that the defendant was actuated by express malice. It is enough for them to find that he was guilty of the act. id. 440. An. indictment for a breach of the excise law alleged that the offense was committed " at the town of E. in the county of Seneca, and on the boundary of the two counties of Seneca and Yates, and within' five hundred yards of such boundary." The proof showed the offense to have been committed in the town of R. in Seneca county, and within less than five hundred yards of the boundary line between the counties of Yates and Seneca, but not precisely upon such dividing line. Held, that in view of the statute which provides that when an offense shall be committed on 'the boundary of two counties, or within five hundred yards of such boundary, (3 R. 8. 5th ed. 1018,) an indictment for the same may be found, and a trial and conviction had, in either of such counties, this could not be regarded as a variance, in any proper sense; and that the judge properly refused to discharge the prisoner, or order a verdict in his favor, on that ground. People v. 36 562 INDICTMENT. Davis, 45 Barl. Sep. 494. Supreme Court, Monroe General Term, March, 1866. 441. The boundary of each county, for the purpose of jurisdiction over offenses, is by that provision of the stat- ute extended five hundred yards into the adjacent county; and this space may very properly, by way of local descrip- tion, be described as on the boundary and within five hundred yards of the boundary line. id. 442. A general verdict, where there are several counts in the indictment, all of the same grade, is not erroneous where there is one good count which is sustained by the evidence. id. ^^l\ 443. "When the accused is indicted in the county where he is apprehended, for an unlawful marriage in an- other county, the indictment must show his apprehension in the county in which he is indicted ; that being a fact indispensable to authorize the court of sessions of the latter county to try the accused. Mouser v. People, 46 Barb. Rep. 33. Supreme Court, Broome General Term, May, 1866. 444. It is not enough that this jurisdictional fact is stated in the caption to the indictment or record of conviction, for the reason that it is not a fact of which the court of sessions can take judicial notice. id. 445. The omission of such an averment in the indict- ment is not a defect of form, but of substance. It is a material defect, and is not cured by the statute. (3 E.. S. 5th ed. 1019, § 54.) id. 446. The prisoner was indicted under the statute, which declares "if any unmarried person shall, knowingly, marry the husband or wife of another," &c., he shall be imprisoned, &c., a specified time. But there is no allega- tion in the indictment that he was unmarried before he married Ann Decker; and his counsel insists that the omission to allege, this fact is fatal to the indictment, and that it is void. The indictment should have alleged this fact. "But this defect was not pointed out or insisted upon INDICTMENT. 563 at the trial, and it is unnecessary to determine whether it is a defect in matter of form that is cured by statute, (3 R S. 5th ed. 1019, § 54,) for the reason that the omis- sion to allege in the indictment that the prisoner was ap- prehended in the county of Broome is a fatal defect in it, and renders it invalid. id. \^l; 447. While an indictment remains in the court in which it is found, a caption is not necessary. The cap- tion forms no part of the indictment. Wagner v. The People, 39 N. Y. Bep. 684, 2 Keyes. Court of Appeals, June, 1866. 448. The prisoner was indicted, tried and convicted in the New York general sessions, of assaulting and shoot- ing at Mrs. Baily, with intent to kill her. The proof on the trial showed that the prisoner shot at Thomas J. Baily, intending to kill him only, and not Mrs. Baily. The ball missed Baily, and, passing beyond, hit his wife. The prisoner's counsel requested the court to charge the jury, "that if the prisoner pointed and fired a pistol at Baily alone, with intent to kill him or do him bodily harm, the prisoner cannot be convicted of shooting Mrs. Baily." The court refused so to charge. The prisoner was in- dicted under the statute. (2 R. S. 665 ; 3 R. S. 5th ed. 944.) To convict him, it must be proved that he violated some one of its provisions. Shooting at Baily, with intent to kill him, and hitting Mrs. Baily by mere mistake, does not prove him guilty of shooting at her, with intent to kill her. It is clear, however, that the prisoner, under this indictment, could have been convicted of the common law offense of feloniously or unlawfully firing or striking at dtie and hitting another. The request of the prisoner was, in substance, to charge that the prisoner could not be convicted of any offense for shooting Mrs. B. The re- quest was too broad, and the court therefore committed no error in refusing such charge. Hollywood v. The Peo- ple, 40 N. Y. Rep. 55, 3 Keyes. Court of Appeals, June, 1866. - 564 INDICTMENT. fjfa!' 449. It is a rule that time and place, when and where the crime was committed, must be stated with cer- tainty in the indictment ; but it is not necessary to prove them on the trial as stated, unless they are necessary in- gredients in the offense. People v. Stocking, 50 Barb. Hep. 573. Supreme Court, Erie General Term, September, 1866. (This case is also reported in 32 How. Prac. Eep. 48.) S: 450. The indictment charged that the name of the person murdered was Amasa Mulock, and the proof showed he was as well known by that name as by the name of Amsey Mulock, which was claimed to be his name. Held that there was no misnomer, and that whether the name was correctly stated in- the indictment, was a question for •the court to decide. Gardiner v. The People, 6 Park. Crim. Hep. 155. Supreme Court, Broome General Term, November, 1866. {^l 451. An indictment charged the prisoner, in one count, with the murder of Lucy McLoughlin, and in an- other, with the murder of Kate Smith. The counsel for the prisoner moved the court that the prosecution be re- quired to elect upon which count the prisoner should be tried. The court reserved the question. It was proved that the deceased was usually known by the name of Kate Smith, but there was some evidence tending, to show that her name was Lucy McLoughlin. At the close of the evi- dence the prosecution entered a nolle prosequi as to the count charging the murder of Lucy McLoughlin, and the jury found the prisoner guilty upon the other count of the indictment of the murder of Kate Smith. Held that there was no error in this. O'Brien v. The People, 48 Barb. Bep. 274. Supreme Court, New York General Term, January, 1867. ^m^: 452. It is unnecessary, in an indictment for per- jury, to specify the particular form in which the oath was administered, i. e., whether on the Holy Scriptures or on the Gospels ; but the averment is amply sufficient if it INDICTMENT. 565 states that the oath was administered by the magistrate in due form of law. Tuttle v. The People, 36 N. Y. Rep. 431. Court of Appeals, March, 1867. 453. It is sufficient to allege the substantial and Specific facts constituting the offense, without setting forth the evidence establishing their truth. id. 454. Where the existence' of a corrupt intent is material, it is proper to prove the antecedent acts and declarations of the accused in connection with the res gestce. id. ^^^\ 455. A general verdict, in a criminal case, is equiv- alent to a special verdict finding all the facts which are well pleaded in the indictment. Fitzgerald v. The People, 49 Barb. Pep. 122. Supreme Court, Dutchess General Term, May,, 1867. 456. Where, upon an indictment charging the prisoner with having committed the crime of murder in the first degree, the jury find a general verdict, the court is justi- fied in pronouncing a judgment sentencing him to be hung. id. 457. A common law indictment for murder is good and sufficient, in form, to charge the statutory definition of the crime ; the premeditated design to eff"ect the death of the person killed, which the statute makes an indispensable in- gredient of the crime, is comprehended in the averment of a willful and felonious killing with malice aforethought, id. 458. In an indictment for arson, with an intent to prej- udice the insurer, it is not necessary to state the par- ticular manner in which the attempt was made ; a general allegation that the prisoner and D. did feloniously and willfully set fire to and burn the prisoner's shop, with in- tent to burn the prisoner's goods and chattels in the shop which were insured, &c., is sufficient. Marhsey v. The People, 6 Park. Crim. Rep. 114. Supreme Court, Broome General Term, May, 1867. 459. It was alleged in the indictment that the property was insured " by the North American Fire Insurance Com- pany," and it was not alleged that such company was a 566 INDICTMENT. corporation or had the right to insure the property. Held, that the allegation was sufficient to authorize the introduc- tion of evidence on the trial to prove the incorporation and the right to insure the property. id. f/gP,'- 460. The commencement of an indictment is to be distinguished from the caption thereof; for the caption constitutes no part of an indictment. People v. Bennett, 37 N. Y.Bep. 117. Court of Appeals, September, 1867. 461. The caption consists wholly of the history of the proceeding where an indictment is removed from an infe- rior to a superior court; containing the name of the court where it was found; the names of the jurors by whom it was found ; and the time and place of the finding ; and was entered in the record by the clerk of the superior court, immediately preceding ihe indictment. id. 462. The commencement of an indictment is as follows : " The jurors of the people of the state of , in and for the body of the county of , upon their oaths presents," &c., and it is unnecessary and improper to name the jurors in the body of the indictment. id. 463. Property purchased for the support of the poor by the direction of the superintendent of the county, and kept for that purpose, if stolen, may be laid in the indict- ment either as the property of the county or of the super- intendent, id. 464. The office of superintendent of the poor, though invested with corporate powers, is notwithstanding a mere agency of the county, and the relation between the county and its superintendent is that of principal and agent, id. j's??; 465. An indictment for murder charged the pris- oner with killing the deceased, in the first count, with a knife; in the second, with an axe; and in the third, by beating and choking. Held, that there was no error in the judge refusing to require the public prosecutor to elect between the three counts in the indictment. Lanergan v. The People, $0 Barb. Bep. 266. Supreme Court, New York General Term, November, 1867. mCICTMENT. 567 l^i 466. Upon an indictment for selling unwholesome beef, knowing it to be such, the defendant's counsel re- quested the judge to charge the jury, that if they should find that the beef was purchased as an article of merchan- dise, and not for domestic consumption, then the indict- ment could not be sustained. The judge refused so to charge, and the jury found the defendant guilty. The general term reversed the judgment, on the ground of error in the refusal of the judge to charge as requested. Seld, that the refusal was not error, and the conviction, being properly found, must be affirmed. People v. Parker, 38 N. Y. Bep. 85. Court of Appeals, January, 1868. 467. An indictment, charging the offense of murder to have been committed willfully and of malice aforethought, (omitting the words " with premeditated design,") and a general verdict of guilty, followed by a sentence of death, will be sustained, since the statute of 1862, as before. Fitzgerald v. The People, 37 N. Y. Bep. 413. OouH of Appeals, January, 1868. (This case is also reported in 4 Abb. Prac. Rep. 68, new series.) "lass!'' 468. An indictment for murder in the common law form, charging the killing with malice aforethought, is good, notwithstanding our statute has divided the crime of murder into different degrees ; and a verdict finding the accused " guilty, as charged in the indictment," is a conviction of murder in the first degree. Kennedy v. The People, 39 N. Y. Bep. 245. CouH of Appeals, March, 1868. 469. The statute is not a rule of pleading but a guide to the conduct of the trial, prescribing the proofs requi- site to a conviction. id. 470. An indictment charging the killing of T. H., alias T. J., is not defective for uncertainty nor duplicity. That expression does not import a killing of " either T.H. or T. J., but a killing of T. H., otherwise called or known as T. J." The omission of the Latin word " d'ietus" is not material, id. 'S 471. A felony may be charged in, an indictment in different ways in several counts, for the purpose of meeting 568 INCEST. the evidence as it appears on the trial, and if the diflerent counts are inserted iu good faith, for the purpose of making a single charge, the court will not compel the prosecution to elect. Lanergan v. The People, 6 Park. Crim. Rep. 209. Court of Appeals, June, 1868. lies: 472. To charge in an indictment that the defend- ant, on the first day of June, and on divers other days and times between that day and the day of the finding of the indictment, (September 12,) sold by retail to divers citi- zens of this state, and to divers persons to the jurors un- known, strong and spirituous liquors, to wit, three gills of brandy, three gills of rum, three gills of gin, &e., is not to charge several distinct offenses in the same count, in any sense as to invalidate the count or the indictment. Osgood V. The People, 39 N. Y.Rep. 449. Court of Appeals, Sep- tember, 1868. 473. It is unnecessary to name, in the indictment, the particular person to whom the defendant sold the liquor constituting the offense. id. 474. "Where the offense is charged as above, the refusal of the court to require the prosecutor to elect as to the kind of liquor sold, which he would rely upon as consti- tuting the offense, is no ground of error on review. All questions of that character are addressed to the discretion of the court. id. Incest. 5^g' 1. On the trial of an indictment for incest, charged to have been committed by a father with his daughter, the declaratipns of the defendant are competent evidence upon the question of consanguinity. People v. Hariden, 1 Park. Crim. Sep. 344. Steuben Oyer and Terminer, May, 1852. Before Strong, J. 2. The statute in such case is only applicable to cases in which the sexual intercourse is by mutual consent ; where it is accomplished by force, it is punishable only as a rape. id. INTOXICATION. 569 Intoxicaton. l^^: 1. Intoxication is no excuse, on an indictment for blasphemy. People v. Forter, 2 Park. Grim. Bep. 14. Washington Oyer and Terminer, July, 1823. Before Wal- worth, C. J. 2. Intoxication is a voluntary deprivation of reason and cannot be given in evidence, even on a trial for murder, to excuse the offender. People v. Fuller, 2 Park. Grim. Bep. 16. Warren Oyer and Terminer, July, 1823. Before Walworth, G. J. 3. That a prisoner was intoxicated, is no defense to an indictment for perjury. People v. Willey, 2 Park. Crim. Bep. 19. Montgomery Oyer and Terminer, July, 1823. Before Walworth G. J. ^^^^ 4. It is no defense to an indictment for murder, that the prisoner was intoxicated at the time of the commission of the offense. The law holds a person re- sponsible for a criminal act, although, at the time, he was intoxicated to such an extent as to be unconscious of what he was doing. People v. Bobinson, 1 Park. Grim. Bep. 649. Bensselaer Oyer and Terminer, May, 1854. Before Harris, J. ■tSsI' 5. It is a rule of the common law, that a person is held to intend that which, in the ordinary course of things, vrould be the natural result of his own acts. Illustrations of this rule given by the presiding judge, in his charge to the jury, with explanations as to its applicability in a case of intoxication. People v. Hammill, 2 Park. Grim. Bep. 223. New York Oyer and Terminer, April, 1855. • Before Gowles, J. S.' ^- Voluntary drunkenness is not a legal excuse for the commission of crime. The rule is otherwise where the drunkenness is not voluntary. People v. Bobinson, 2 Park. Grim. Bep. 235. Supreme Gourt, Albany General Term^ June, 1855. i 7. In the case of delirium tremens or mania a potu, the 570 INTOXICATION. insanity excuses the act, the frenzy being not the imme- diate, but a remote consequence of indulgence in strong drink. id. 8. But where the nature and essence of the crime are made by law to depend upon the peculiar state and condi- tion of the criminal's mind at the time, and with reference to the act done, drunkenness may be a proper subject for the consideration of the jury, not to excuse or mitigate the offense, but to show that it was not committed. Per Parker, J. id. 9. A person stimulated even to the highest pitch of frenzy by voluntary indulgence in strong drink, may still be capable of planning and executing a criminal design ; and where in such case there is mind enough to conceive and perpetrate the act, there is enough to subject the of- fender to legal responsibility. id. 10. "Where, on trial of an indictment for murder by poisoning, the judge charged the jury " that if the prisoner was intoxicated to such an extent that she was unconscious of what she was doing, still the law holds her responsible for the act ;" but it appeared from other parts of the charge that the judge intended to speak, and the jury must have understood him as speaking, only with reference to a state of mental excitement or madness, the immediate conse- quence of indulgence in strong drink, and not of a state of insensibility ; held that the charge was not erroneous, id. 11. Held, also, that even though the expression excepted to could not be regarded as modified and explained by other parts of the charge, and might be considered errone- ous as an abstract and separate proposition, yet that it furnished no ground for granting a new trial, it appearing plainly that it had no applicability to the case, there being no fact or circumstance to warrant an inference that the accused was, at the time of the commission of the act, in a state of unconsciousness, or insensibility from intoxica- tion, id. \^%\ 12. "Where an individual is brought before a 'mag- mTOXICATION. 571 istrate upon a warrant issued for a violation of the act of April 9, 1855, " for the prevention of intemperance, pau- perism and crime," the magistrate should take his examin- ation ; and if, upon such examination, it appears that no offense has been committed, or that there is no probable cause for charging the accused therewith, he should be discharged. If there is probable cause to believe the defendant guilty, bail should be taken, if offered by the defendant, for his appearance at the next court having cognizance of the offense. People y. Berherrich, 20 Barh. Rep. 224. Supreme Court, Dutchess General Term, July, 1855. 13. The legislature did not intend, by that act, to extend the jurisdiction of courts of special sessions so far as to compel persons accused of offenses against the act, to submit to a trial before that tribunal in cases where the accused should offer bail for their appearance at the next court of sessions or oyer and terminer. id. 14. A court of special sessions is one of limited juris- diction, deriving all its power from the statute. It can only acquire jurisdiction over the person of the accused upon his request to be tried before it, or his omission, for twenty-four hours after being required to do so, to give bail for his appearance according to law. id. fals: 15. On the trial of an indictment for murder, al- leged to have been committed by a blow inflicted by the prisoner with a club in a sudden affray, it is admissible to prove that the prisoner was intoxicated at the time of the transaction ; and for the purpose of establishing that fact, a witness who was present at the time, and was well ac- quainted with the prisoner, after describing the appearance and conduct of the prisoner, may be permitted to give his opinion as to the fact whether or not the prisoner was intoxicajted. Eastwood v. The People, 3 Park. Grim. Rep. 25. Supreme Gourt, Monroe General Term, December, 1855. fsls; 16. On a question whether a person was intoxicated, it is competent to ask a witness who saw and observed 572 INTOXICATION. him on the occasion referred to, whether, in his judgment, he was then under the influence of intoxicating liquor. People V. Eastwood, 14 N. Y. Bep. 562. Court of Appeals, December, 1856. 17. The question does not call for an answer in viola- tion of the general rule which excludes the opinions of witnesses. The inquiry was not intended to bring out an opinion, but to lead the witness to answer to a fact which he saw. If the opinion of the witness had been asked as to facts not within his own observation, the objection would have been good ; as to such facts, opinions can be given generally only as to matters of science or art, and by men of the particular science or art. If the question had been (as it might have been) direct, " What was the condition of the prisoner as to sobriety at that time ?" it probably would have been answered (as it had been before by other witnesses) without objection. It did not become incompetent by adding the words, "in your judgment," while the judgment was restricted to what the witness saw. Whether a person is drunk or sober, or how far he was affected by intoxication, is better determined by the direct answer of those who have seen him than by their description of his conduct. id. 18. That a prisoner charged with the crime of murder was intoxicated at the time he caused the death, may be material to explain his conduct at and prior to the time ; and also, in reference to the design with which the act was perpetrated. For one to drink, that he may drown his conscience, and the better nerve himself to commit a crime, is to aggravate his offense ; but if one has lost his senses, and become insane, he has ceased to be account- able to the criminal law, whether the loss of intellect was caused by misfortune or his own imprudence in the use of intoxicating liquors, or by any willful act of his own. The loss of intellect takes away the faculty of possessing that " design" which is an essential part of the offense of murder. So if any other condition of the man deprives INTOXICATION. 573 him of the power of knowing what he does, or of enter- taining a design in acting, he cannot commit any offense of which design is an essential. If he willfully brought himself into that condition, he may be morally account- able for all his acts while thus degraded; but to make him liable to the criminal law, his offense must be brought within the definition of that law. id. f^l 19. Under the act entitled "An act to suppress in- temperance, and to regulate the sale of intoxicating li- quors," passed April 16, 1857, being intoxicated in any public place is a criminal offense ; but it is not punishable summarily before a magistrate unless the accused elects to be thus tried, the act having secured to him the right, in all cases, to give bail to appear before the next court of oyer and terminer or sessions, to be held in the county, and to be tried only upon indictment by a grand jury. People V. Putnam, 3 Park. Orim. Rep. 386. Supreme Court, at Chambers, May, 1857. Before Pratt, J. ws?: 20. Wher-e a person, arrested and brought before a magistrate under the seventeenth section of the act enti- tled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April 16, 1857, refused to be sworn and examined as to the cause of his intoxica- tion, the magistrate has no power to commit him to prison for such refusal. People v. Webster, 3 Park. Orim. Rep. 503. Supreme Court, at Chambers, July, 1857. Before Welles, J. 21. It seems that justices of the peace, in examinations upon complaints made before them in criminal cases, have no power to commit persons for refusing to be sworn as witnesses. id. X$i 22. On a trial for murder, where the intention of the prisoner is sought to be ascertained, for the purpose of determining whether the offense is murder or man- slaughter, the jury are authorized to take into consider- ation the intoxication of the prisoner, as bearing upon the ,question of intent. Rogers v. The People, 3 Park. Grim. 574 INTOXICATION. Rep. 632. Supreme Court, New York General Term, Feh' ruary, 1858. 23. And where, on sucli a trial, the prisoner's counsel requested the court to charge " that if it appeared by the evidence that the condition of the prisoner from intoxica- tion was such as to show that there was no intent or mo- tive to commit the crime of murder, that the jury should find a verdict of manslaughter," and the court refused to charge, a new trial was granted. id. 24. Though, it is true, that if a man voluntarily make himself drunk, his drunkenness is no excuse for any crime he may commit while so intoxicated, yet, in homicides of different degrees according to intent, and in larcenies, for- geries and in other crimes depending on intent or knowl- edge, the intoxication of the prisoner is, in many cases, a material circumstance for the consideration of the jury. id. fslis!' 25. The voluntary intoxipation of one who, with- out provocation, commits a homicide, although amounting to frenzy, does not exempt him from the same construc- tion of his conduct and the same legal inferences upon the question of intent as affecting the grade of his crime, which are applicable to a person entirely sober. People v. Rogers, 18 N. Y. Rep. 9. Court of Appeals, SeptBmber, 1858. 26. Evidence . of intoxication is, however, always ad- missible. Where the crime was committed after provoca- tion, it may be considered in determining whether it was done in the heat of passion, and in other cases whether threatening words were uttered by the culprit with delib- erate purpose or otherwise, and generally to explain his conduct. id. 27. Insanitj' occasioned by previous habits of intemper- ance, and not directly resulting from the immediate in- fluence of intoxicating liquors, is entitled to the same consideration as insanity from any other cause. id. fa^sS; 28. A person accused of being intoxicated in a pub- lic place, under chapter 628 of 1857, (2 R S. 5th ed. 943,) INTOXICATION. 575 cannot be summarily tried before a justice of tbe peace unless be so elects, but is entitled to give bail for bis ap- pearance before the next court of oyer and terminer or general sessions. Hill v. The People, 20 N. Y. Bep. 363. Court of Appeals, December, 1859. 29. Tbe statute having made intoxication in a public place a criminal offense, the accused cannot be deprived of the right of trial by jury. id. 30. Our laws, organic as well as statute, exempt persons charged with criminal offenses from coercive summary trial, without a jury. Our state constitution provides (art. 1, § 2) that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. Under our statute laws, existing at the time of the adop- tion of our present constitution, a justice could hold a court of special sessions, and could try — without a jury, if one should not be demanded, or with a jury of six men, if one should be requested — persons charged with certain misdemeanors, who should elect to be thus tried, or who should fail to give the requisite security, to appear at a court of oyer and terminer, or general sessions, where they could not be tried without indictment, nor by any except a common law jury of twelve men. Such must be the rule and such must be the rights of persons charged with crimes or misdemeanors now. Any one who may proffer the requisite security, has the right to have the complaint exhibited against him, for any crime or mis- demeanor, examined and passed upon by a grand jury, before te can be coerced into a trial, and, if indicted, to be tried by, a jury of twelve men. id. ^mt' 31. Voluntary intoxication can furnish no excuse or immunity for crime, and so long as the offender is capa- ble of conceiving a design he will be presumed, in the absence of contrary proof, to have intended the natural consequences of his own acts. Benny v. The People, 31 N. T. Bep. 330. Court of Appeals, March, 1865. (The 576 INSANITY. decision in this case, at general term, is reported in 18 Abb. Prac. Eep. 91.) fs??; 32. Drunkenness is no excuse for crime ; and one who is voluntarily in that condition must take the conse- quences of his own acts. Lanergan v. The People, 50 Barh. Bep. 266. Supreme Court, New YorTt General Term, No- vember, 1867. 33. Evidence of intoxication is admissible in every trial for murder, because it may tend to cast light upon the acts, observations or circumstances attending the killing. id. 34. Intoxication must result in a fixed mental disease of some continuance or duration, before it will have the efi"ect to relieve from responsibility for crime. id. ^1868.' 35. Drunkenness is no excuse for crime, and a person who is voluntarily in that condition, is responsible for the consequences of his acts. Lanergan v. The People, 6 Park. Crim. Bep. 209. Court of Appeals, June, 1868. (This case is also reported in 5 Abb. Prac. Eep. 113, new series.) Insanity. 5^°e: 1. An insane person is considered, in law, incapa- ble of committing a crime ; but it is not every degree of insanity which abridges the responsibility attached to the commission of crime. In that species of insanity, where the prisoner has lucid intervals ; if during those intervals, and when capable of distinguishing good from evil he per- petrate an offense, he is responsible, and the principal subject of inquiry is, whether the prisoner, at the time he committed the offense, had sufficient capacity to discern good from evil, and should the jury believe he had such capacity, it will be their duty to find him guilty. Bichard P Clark's case, 1 Gitt/ Ball Becorder, 176. Before Bad- cliff, Mayor. New York, November, 1816. ^s",!. 2. That species of frenzy which is induced by vio- lent passion, unless settled down into a state of total de- rangement, will not excuse the commission of an offense. INSANITY. 577 Lawrence Pienovi's case, 3 Oity Hall Recorder, 123. Be- fore Golden, Mayor. New York, August, 1818. 3. Where a man in a fit of jealously bit off the nose of his wife, though he is able on the trial to produce the most respectable testimony to show that his conduct, immedi- ately before and after the act, was that of a man bereft of his senses, yet if it further appear that during the commis- sion of the offense he acted designedly, and at a subse- quent period had a distinct recollection of the circum- stances of the atrocious act which he endeavored to justify, it was held, that this was rather to be imputed to the vis- itation of wicked passions than that of God. id. 4. A defense, resting solely on the ground of insanity, is to be strictly scrutinized. id. ?g^ 5. It seems, ^on a prosecution for felony, a specific, act of derangement need not be shown ; if the jury believe from all the circumstances of the case that the prisoner is insane, they ought to acquit. People v. Tripler, 1 Wheel. Oases, 48. Biker Becorder. New Tork, October, 1822. "'lis!'' 6. Pleas of insanity are to be received and exam- ined with care and caution ; they are easily made, and often were made by prisoners as a last resort, when every other hope of defense failed. People v. De Graff, 1 Wheel. Oases, 203. Biker, Becorder. New York, March, 1823. fsl; 7. Every person is presumed to be sane till |he contrary appears. People v. Kirby, 2 Park. Orim. Bep. 28. iSt. Lawrence Oyer and Terminer. Before Walworth, O. J. August, 1823. {^^ 8. The finding of a jury upon a preliminary issue, to the effect that the prisoner was then sane, cannot be taken into consideration upon the question of insanity set up as a defense upon the trial of the indictment. Freeman V. The People, 4 Denio, 9. Supreme Court, January, 1847. 9. And where the court, on the trial of the indictment, refused to permit evidence to be given that the prisoner was insane at any time after the finding of the verdict upon the preliminary issue, and excluded the opinions of 37 578 INSANITY. medical witnesses formed from an observation of the pris- oner after that time, as to his insanity when the oftense was committed ; such ruling was held erroneous. id. 10. Where a prisoner was tried for murder four months after the crime was alleged to have been committed ; held that it was competent for the prisoner to prove by profes- sional witnesses that he was insane at the time of the trial, with a view to establish the defense of insanity when the act was done. id. 11. The common law, as well as the statute, (2 R. S. 697, § 2 ; 3 R S. 5th ed. 983,) forbids the trial, the sentenc- ing, or the punishment of an insane person for a crime, while he continues in that state. id. 12. But one capable of rightly comprehending his own condition in reference to the proceeding against him, and of conducting his defense in a rational manner, is not in- sane within the meaning of the rule, though on some other subjects his mind may be deranged. id. 13. Where insanity in a person indicted is alleged or suspected, the most discreet and proper method of de- termining the question in an important case is a trial by jury; but other modes may be adopted, in the discretion of the court. Per Beardsley, J. id. 14. Where a jury impanneled to try whether a person indicted for murder was then insane, were instructed by the court that they were to decide " whether the prisoner knew right from wrong; and if he did, then he was to be considered sane ;" held, that the charge was erroneous, id. 15. And the jury having found that the prisoner was "sufficiently sound in mind and memory to distinguish between right and wrong;" held, that the verdict was defective. id. 16. The test of insanity, when set up to prevent a trial, is whether the prisoner is mentally competent to make a rational defense ; and, when alleged as a defense to an indictment, it is whether, at the time of committing the act, he was so laboring under such mental disease as not INSANITY. 579 to know the nature and quality of the act he was doing, or that it was wrong. id. 17. A bill of exceptions does not lie to review questions determined upon the trial of a collateral issue ; and there- fore where exceptions were taken upon a preliminary trial of a q^uestion of present insanity, which were incor- porated in a bill of exceptions taken upon the trial of the indictment ; held that such exceptions were not properly before the court. id. 18. On such preliminary trial, the defendant is not entitled to peremptory challenges; but challenges for cause may be made. id. °gfg^ 19. It is a defense to an indictment for crime, that the act complained of was done under an insane impulse, which, at the time, destroyed the capacity to distinguish between right and wrong. People v. Sprague, 2 Parh. Grim. Rep. 43. Kings Oyer and Terminer, October, 1849. Before Morse, J. 20. On the trial, in this case, on an indictment for rob- bing a female of her shoe, in daylight, in the public street of a city, it being proved that the accused had been, for several years, and ever since an injury to his head, which it was supposed had affected his brain, in the habit of taking the shoes of females, wherever he could find them, and secreting' them without any apparent object for so doing, and that insanity was a hereditary disease in the family of the prisoner on the side of his mother, vdth other circumstances tending to establish monomania, and after hearing the testimony of eminent medical men on the subject, the prisoner was acquitted on the ground of insanity. id. \^^l 21. On a trial involving an inquiry as to the san- ity of a prisoner, a medical witness cannot be permitted to give his opinion on the case, or on the question of guilt, but only on the question of sanity. (Per ShanJcland, J. People v. Thurston, 2 Park. Crim. Rep. 49. Supreme Oourt, Delaware Greneral Term, July, 1852. 580 INSANITY. 22. Nor can a medical -witness be permitted to give his opinion on the prisoner's sanity, where he has heard only part of the evidence on the subject, and his opinion has been formed on such part of the evidence. Per Shank- land, J. id. 23. A medical witness may give his opinion on a hypo- thetical statement of facts, and it will be for the jury to judge whether the supposed facts so stated correspond with the facts as proved. Per ShanJcland, J. id. 24. Opinions of eminent medical witnesses upon the subject of insanity, with their statements of the symptoms and evidence of insanity, and of the causes which pro- duce it. id. ^^J; 25. "Where insanity is interposed as a defense, its existence must be established by affirmative proof, every person being presumed to be sane till the contrary is proved. People, v. Pobinson, 1 Park. Crim. Rep. 649. Bensselaer Oyer and Terminer, May, 1854. Before Har- ris, J. ^Sj^; 26. Every man is presumed to be sane till the con- trary is shown. The burthen of proof of insanity to over- come such presumption, rests upon the accused. Laize v. The People, 1 Park. Crim. Hep. 495. Supreme Court, Orange General Term, July, 1854. 27. Opinions of medical witnesses upon a case of alleged insanity, with their statements of the symptoms and evi- dences of insanity. id. 28. 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 ascertaining the state of mind of the actor. id. 29. "Where, on a trial for murder, the defense set up his insanity, evidence may be received of the acts and decla- rations of the accused, as well before and after as at the time of the homicide. id. 30. But it is not competent to prove the effect which the prisoner's conduct had on the mind of another person INSANITY. 581 on the day before the homicide, nor the acts, nor declara- tions of the person 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 insanity, nor would such person, if living, be permitted to testify to such opinion. id. 31. If a medical witness has heard only part of the testimony on which the prisoner's counsel relies to estab- lish his defense, 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. id. 32. 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. id. ^\St 33. It is not competent for a medical witness who has not heard all the testimony tending to show the men- tal condition of a person, to give an opinion founded on the portion heard by him as to his sanity. People v. Lake, 2 Kernan's Bep. 358. Court of Appeals, March, 1855. 34. Even where such a witness has heard all the testi- mony, his opinion founded thereon, upon the general question of sanity or insanity, is not competent evidence. He should merely give an opinion as to what the facts, proved or claimed to be proved, indicate as to the mental condition of the party. Per Hand, J. id. 35. The opinion of a physi^cian who has personal knowledge of the conduct and habits of a person, is com- petent evidence as to the sanity of such person. Per Hand, J, . id. 36. On the cross-examination of a medical witness, who has testified that in his opinion the prisoner was sane, it is competent to inquire whether, in his opinion, specified facts claimed to be proved indicate insanity. id. 37. AH the judges concurred in the first and last propo^ 582 INSANITY. sitions decided in this case ; on the others they expressed no opinion. id. ^IJ; 38. Rules and directions to govern a jury on trial of the question of present insanity, on an indictment for murder. People v. Lake, 2 Parle. Urim. Bep. 215. Dutch- ess Oyer and Terminer, May, 1855. Before Bean, J. S; 39. Symptoms of poisoning by arsenic, described by physicians, with their opinions on the subject of in- sanity, set forth in the evidence. People v. Bobinson, 2 Park. Crim. Bep. 235. Supreme Court, Albany General Term,, June, 1855. f^: 40. "Where a physician, who had heard all the evi- dence, and who saw and examined the defendant on the ninth day of July, two days after the homicide, had testi- fied that the prisoner was then deranged, and that he thought delirium tremens was the cause of his insanity, and the court had not permitted the witness to answer whether, in his opinion, founded on such personal examin- ation, the same state of mind had existed on the night of the seventh of July, or what was the state of the defend- ant's mind on the night of the seventh of July, but had permitted the witness to state how long he thought the defendant, when he saw him, had been in such a state of delirium tremens, it was held that no error had been com- mitted. McGann v. The People, 3 Parle. Crim. Bep. 272. Supreme Court, Albany General Term, May, 1857. 41. "Where the counsel for the defendant asked a medi- cal witness who had heard all the evidence, what, in his opinion, the facts stated by the witnesses on the trial, supposing them to be true, showed as to the state of the defendant's mind on the night of the seventh of July, when the homicide took place, and the evidence was ex- cluded by the court, but, at the same time, the court decided that the witness might be asked his opinion upon a hypothetical case corresponding to the testimony, or that the testimony might be read to the witness, and his opinion asked upon it, on the supposition that those facts INSANITY. 583 were true, it was held that inasmuch as the question per- mitted to be asked was substantially, in its effect and scope, like the one which had been excluded, no error had been committed. Per Harris, J. id. 42. What is the proper mode of examining a medical witness on a question of insanity, stated by Harris, J. id. 43. "Where the presiding judge had charged the jury that the defense of insanity must be proved beyond a reasonable doubt, and if the defendant had satisfied them beyond a reasonable doubt, so that they should find that at the time of the killing he was so far really insane as not to be responsible for the act, they should acquit him, but otherwise they must convict him, the charge was held not to be erroneous. id. ^\&7. 44. Upon a trial for murder, where the killing by the prisoner is admitted, and his defense is insanity, the prisoner is entitled to the benefit of any doubt resting upon the question of sanity ; sanity is a necessary con- dition to constitute the crime, and the proof thereof a part of the case to be made by the prosecution ; held, therefore, that it is error in the judge, in such case, to charge the jury that sanity being the normal state, there is no presumption of insanity ; that the burden of proving it is upon the prisoner ; that a failure to prove it, like a failure to prove any other fact, is the misfortune of the, party attempting the.proof, and that they must be satisfied of his insanity beyond a reasonable doubt, or otherwise must convict. People v. McCann, 16 N. Y. Re^. 58. Court of Appeals, September, 1857. S; 45. Insanity occasioned by previous habits of intemperance, and not directly resulting from the imme- diate influence of intoxicating liquors, is entitled to the same consideration as insanity from any other cause. Peo- ple V. Rogers, 18 N. T. Rep. 9. Court of A'ppeals, Septem- ber, 1858. ^i^l[ 46. Upon the question of insanity, the doubt of an expert is not admissible in evidence, Sanchez v. The 584 INSANITY. People, 22 N. T. Rep. 147r Court of Appeals, Septemher, 1860. "ae?' 47. Sanity is the presumed normal condition of the human mind, and it is never incumbent upon the prosecution to give affirmative evidence of the existence of such state. Walter v. The People, 32 N. Y. Pep. 147. Court of Appeals, March, 1865. •'S: 48. An irritable temper and an excitable dispo- sition are not, of themselves, evidence of insanity. Willis V. The People, 32 N. Y. Pep. 715. Court of Appeals, June, 1865. 49. "Where the prisoner at the time of the killing is in such a state of mind as to know that the act he is commit- ting is unlawful and morally wrong, he is responsible as a sane man. id. ^wS!' 50. Sanity is presumed to be the normal state of the human mind, and it is never incumbent upon the prosecution to give affirmative evidence that such state exists in a particular case. Ferris v. The People, 31 Mow. Prac. Rep. 140. Court of Appeals, March, 1866. 'S. 51. "Where a case calls for no charge on the sub- ject of insanity, no exception lies for neglect or refusal so to charge. Wagner v. The People, 39 N. Y. Rep. 684, 2 Keyes. Court of Appeals, June, 1866. \^l 52. "When insanity is interposed as a defense, it is not incumbent on the people to establish the sanity of the prisoner at the time of the commission of the offense, by affirmative evidence. O'Brien v. The People, 48 Barh. Rep. 274. Supreme Court, New York General Term, Jan- uary, 1867. 53. Delirium tremens, like insanity, if it deprives one of the capacity to know what he is doing, or of knowing right from wrong, saves him from any criminal responsi- bility for his acts. id. ^mt' 54. The true rule as to competency of profes-. sional and non-professional witnesses, as laid down by Porter, J., in Clapp v. Fullerton, (34 N. Y. Eep. 190,) fully JURY. 585 recognized and stated to be: "A layman, when examined as to facts witMn his own knowledge, bearing on the question of sanity, may be permitted to characterize the acts to which he testifies, as rational or irrational. He may testify to the impression produced by what he wit- nessed; but he is not legally competent to express an opinion on the general question whether the mind of the individual be sound or unsound." O'Brien v. The People, 36 N. Y. Bep. 276. Court of Appeals, March, 1867. Jury. ^UJI' 1. Where a jury could not agree on a verdict, after being out all night and part of a day, and the court of sessions discharged them without the consent of the party ; the discharge was held to be proper, and the prisoner was again arraigned on the indictment for the same offense. People V. Denton, 2 Johnson's Oases, 275. Supreme Court, April, 1801. fjjf; 2. A. and B. were indicted for a conspiracy to de- fraud C. B. was acquitted, and the jury being unable to agree on a verdict whether A. was guilty or not, the court,- against the consent of A., ordered a juror to be withdrawn and the jury discharged. It was held that the court may, in their discretion, in a criminal case, discharge a jury who are unable to agree on a verdict, against- the consent of the prisoner, who may be brought to trial a second time for the same offense. People v. Olcott, 2 Johnson's Cases, 301. Supreme Court, July, 1801. fsof; 3. Withdrawing, by permission of the court, a juror in a criminal case, is not of itself a cause for arresting the judgment on a subsequent trial for the same offense. People V. Barrett & Ward, 2 Caines' B. 180. Supreme Court, August, 1804. .fg°„^; 4. After a prisoner has pleaded to an indictment, the jury been sworn, and evidence offered, if the public prosecutor, without the prisoner's consent, withdraw a juror, merely because he is unprepared with his evidence, 586 JUEY. the prisoner cannot afterwards be tried on the same in- dictment ; if he be, it is good cause for arresting the judg- ment. People V. Barrett & Ward, 2 Oaines' Bep. 304. Supreme Court, February, 1805. fs^is; 5. In the traverse of an indictment, founded on a case which has excited much public interest, which has been made the subject of common report, and has been published in the newspapers, a challenge to a juror called to try such case, for having formed an opinion, is not well taken, should the juror declare, on oath, that if what he had seen published and had heard as a matter of common report, relative to the circumstances of such case were true, he believed the prisoner to be guilty ; but that he had formed no opinion which would influence his decision as a juror. Mary Biley's case, 1 Oity Hall Becorder, 23. Before Badcliff, Mayor. New York, February, 1816. S'ls! 6. On a trial for murder, where a juror, not belong- ing to the society of Friends, on being called declines serving from scruples of conscience, and declares that, having long before made up his mind on the subject, he •had determined never to find a verdict, the consequence of which would be the death of a human being, however clear and positive the testimony might be, and that he still adhered to that determination — it was held that although such juror was not exempt, by the statute, from serving as a juror, yet such declaration formed a good ground for challenge by the public prosecutor. Such challenge is to be tried by the first two jurors called and sworn, and the oath to be administered to the triors is : " You shall well and truly try the matter of challenge, whether James Palmer stands indifferent between the people of the state of E"ew York and Diana Sellick, the prisoner at the bar, and a true verdict give according to evidence." Diana Sellick' s case, 1 City Hall Becorder, 185. New York Oyer and Terminer, December, 1816. Before Van Ness, J. 7. On the trial of an indictment for murder, alleging that the death was occasioned by means of poison admin- JURY. 587 istered by the prisoner, and the ground of defense on the trial is insanity, should the jurors entertain a rational doubt on the question whether the death of the child was occa- sioned by the poison ; or should they be fully convinced from the testimony before them, that at the time the pris- oner committed the act she was insane, it will, in either case, be their duty to acquit. id. l^^l 8. A person called as a jui'or on a trial for murder, who declared that he did not believe it right, in any case, for a man to suffer the punishment of death, was held unfit to be impanneled. John McDonald's case, 3 City Sail Recorder, 46. Before Badcliff, Mayor. New York, July, 1817. fg^i^: 9. In a criminal case, it is the right of the jury to judge of the law as well as of the fact. Mordecai M. Noah's case, 3 City Hall Recorder, 13. Before Badcliff, Mayor. New York, February, 1818. ma.' 10. A challenge may be interposed against a juror, though the party taking the challenge, in the first instance, puts a question to the juror touching that which forms the ground of the challenge. John W. Thorn, Valentine N. Livingston and Henry D. Tracy's case, 4 City Hall Recorder, 81. Before Golden, Mayor. New York, June, 1819. 11. The two jurors first called and sworn, are to be the triors to decide on the competency of a juror chal- lenged, id. 12. Where a challenge to the favor is taken, the specific cause need not be assigned previous to the trial of such challenge. id. 13. A juror in a criminal case should stand wholly in- different between the prosecution and the accused, and free from all exception; and if, on the trial of a challenge, circumstances appear sufficient to produce a doubt in the minds of the triors whether such juror stands indifferent or not, it is their duty to reject him. id. "iSl"' 14. A juror, when inquired of by the court 588 JURY. whether he has formed an opinion on the merits, is to answer under oath ; but his answer shall not preclude either party challenging him from establishing facts by proof, for the purpose of disqualifying him as a juror. Mobert M. Ooodwin's case, 5 Oity Hall Recorder, 1 1. Before Golden, Mayor. New York, March, 1820. S: 15. Where a challenge to the favor is interposed by the public prosecutor, on the ground that the juror called had declared, on being called, that he was opposed, on principle, to the infliction of capital punishment, it was held, that such juror was a competent witness before the triors. Artinah Randall's case, 5 Gity Mall Recorder, 141. New York Oyer and Terminer, December, 1820. Before Van Ness, J. S: 16. Though one called as a juror, and sworn to make true answers to such questions as may be asked him by the court touching his competency as a juror, declare that he had read a newspaper containing a statement, and that if it were true he believed the prisoner guilty, yet, if on being further examined, such juror shall unequivocally declare, 1st, that he has not, at any time, formed or ex- pressed an opinion, or even entertained an impression, which might influence his conduct as a juror ; 2d, that he has no bias or prejudice on his mind for or against the prisoner ; and 3d, that in every respect, according to the best of his knowledge or belief, he stands perfectly indiffer- ent between the people and the prisoner — it was held that he was a competent juror. Milligan & Welchman's case, 6 Gity Hall Recorder, 69. Before Riker, Recorder, Irving, First Judge, and Allen, Mayor. New York, November, 1821. 17. Where one called as a juror, in a case where the president and directors of a bank are prosecutors, is a stockholder in an insurance company, it is not a disqual- ification ; but if he is a stockholder in such bank, he is incompetent as a juror. id. ^1822.' 18. If a jury, while they are deliberating on their verdict, should agree among themselves that if nine of the JURY. 589 panel should unite on a verdict the other three would fall in and find with them, and proof of such bargain be estab- lished aliunde, by other testimony than the jury themselves, on objection, it would be fatal. People v. Barker, 2 Wheel. Cases, 19. Biker, Recorder. New York, June,, 1822. fl^'; 19. In suspicious cases the jury should acquit. They must have satisfactory proof. People v. 0' Bryan, 1 Wheel. Cases, 21. Biker, Becorder. New York, Septem- ber, 1822. fgl^: 20. The credibility of a witness is a proper subject for the consideration of the jury. They are to decide what degree of credit ought to attach to the testimony of any man. People v. Osborne, 1 Wheel. Cases, 97. Biker, Becorder. New York, December, 1822. 21. "Where property has been stolen, the jury may con- vict upon the confession, on the examination of the pris- oner only; but it is desirable to have other testimony, where it can be had. People v. McFall, 1 Wheel. Cases, 107. Biker, Recorder. New York, December, 1822. 22. In a prosecution for grand larceny, after the verdict is recorded, but before the jury have left the box, they may, by consent of the district attorney and the prisoner, hear witnesses, to ascertain the value of the article stolen ; and reconsider their verdict, whether grand or petit lar- ceny. People V. Smith, 1 Wheel. Cases, 119. Biker, Be- corder. New York, December, 1822. fj=^; 23. On an indictment for passing counterfeit notes, upon a question whether a note passed by the prisoner to a third person has been destroyed by him, or whether the note was counterfeit, is a proper subject for the consider- ation of a jury. People v. Warner, 1 Wheel. Cases, 186. Biker, Becorder. New York, February, 1823. ■\g 24. It is a good objection to a talesman, who is called as a juror, that he is bail for the prisoner's appear- ance to answer, &c. People v. McCollister, 1 Wheel. Cases, 391. Biker, Becorder. New York, June, 1823. 25. In a case of larceny, the intent to steal is a question 590 JUEY. for the jury, and can only be made out by an impartial view of all the circumstances in reference to the particu- lar case on trial. People v. Ward, 1 Wheel. Cases, 397, Hiker, Recorder. New York, June, 1823. 26. The court will allow questions to be asked of the jurors^ whether they had formed any opinion on the mer- its of the case they were about to try. People v. Eettich, 1 Wheel. Cases, 399. Biker, Becorder. New York, June, 1823. '^'. 27. It is not a good ground of challenge to the array, that the jury was drawn and the panel certified by the deputy clerk, instead of the clerk, who was absent. People V. Fuller, 2 Park. Grim. Rep. 16. Warren Oyer and Terminer, July, 1823. Before Walworth, C. J. 28. It is not a good ground of challenge to a, juror for principal causQ, that he had expressed his opinion hypo- thetically. id. 29. Where a juror is challenged for the favor, and triors are appointed, the juror himself may be sworn as a witness before them, to state or explain any facts which do not impeach his character or his motives. id. Pg|5; 30. In an indictment for false pretenses, the ques- tion whether a pretense was such an one as might have been guarded against by ordinary prudence, is a question exclusively for the jury ; except where it is manifestly such an one as could not, by possibility, deceive a man of com- mon sagacity. People v. Bolton, 2 Wheel. Cases, 161. Bi- ker, Becorder. New York, December, 1823. ^l^^' 31. The only object of interrogating jurors, is to ascertain whether they are prejudiced for or against the prisoner, yet the court or counsel would not be concluded by their answers ; the question of competency must be set- tled by the triors appointed by law. People v. Johnson, 2 Wheel. Gases, 361. New York Oyer and Terminer, March, 1824. Edwards, J., &c. 32. A juror was called and the following questions were put to him: Ist. Have you, at any time, formed or ex- JURY. 591 pressed an opinion, or ever entertained an impression which may influence your conduct as a juror ? 2d. Have you any bias or prejudice on your mind for or against the prisoner ? 3d. Do you, in every respect, according to the best of your knowledge or belief, stand perfectly indiffer- ent between the people and the prisoner? The juror hav- ing been challenged by the prisoner for favor, triors were appointed. The judge in his charge to the triors said : " A juror must approach the box with impartiality. The opin- ion that the juror has made up his mind, may be predicated upon a hypothesis that if the report is true or not true, the prisoner is guilty or not guilty. The mere circum- stance of a juror having formed an opinion upon reports and newspaper publications, is not an objection against him. If the juror is able to make up a verdict upon the testimony offered on the trial, independent of the reports he has read and heard, he is certainly a good juror." id. f^ 33. The jury are judges of the law and fact. This principle of criminal jurisprudence has been so long and so firmly settled, that it is too late now to intrench upon it. In any direction of the court as to principles of law, the jury have a right to differ from them, and it may in some cases be their duty to do so ; a decent respect to their direction is only expected. People v. Moore et al., 3 Wheel. Gases, 97. Biker, Becorder. New York, September, 1824. ^^; 34. A jury impanneled to try a prisoner upon an indictment for murder, were allowed to leave the court- house during the trial, under the charge of two sworn con- stables ; and having left the courthouse, two of them separated from their fellows ; went to their lodgings, a distance of thirty rods, ate cakes, took some with them on their return, and drank spirituous liquor, though not enough to affect them in the least, and one of them con- versed on the subject of the trial; they returned, heard the trial through, and joined in a verdict of guilty. Held, that the verdict should be set aside, and a new trial granted. 592 JUEY. People V. Douglass, 4 Cowen, 26. Supreme Court, Febru-> ary, 1825. 35. The mere separation of a jury, though impanneled to try a capital offense, and though they separate contrary to the directions of the court, will not, of itself, be a suffi- cient cause for setting aside the verdict. id. 36. But if there be the least suspicion of abuse, the verdict should be set aside. id. Isasl' 37. Where two or more persons, jointly indicted for murder, are tried together, only twenty peremptory challenges can be allowed to all the defendants. People V. Thayers, 1 Parh. Orim. Pep. 595. Urie Oyer and Term- iner, April, 1825. Before Walworth, 0. J. 38. 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 decis- ion 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 dufy of the court to comment upon the evidence, for the purpose of presenting such questions properly to the consideration of the jury. id, \f&. 39. 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. People V. Videto, 1 Park. Orim. Rep. 603. Franklin Oyer and Terminer, July, 1825. Walworth, J. ^^f; 40. A challenge of a juror for principal cause be- comes a part of the record, and may be reviewed on error. People V. Vermilyea, 7 Cowen, 108. Supreme Court, May, 1827. 41. A challenge because the juror has expressed an opinion is a challenge for principal cause, and need not be accompanied with personal ill-will to render it valid, id. JURY. 593 42. Where sucli a challenge is made and decided upon by the court, who pronounce it insufficient, this is equiva- lent to a decision on demurrer and joinder, and should be so entered by the clerk on the record. id. 43. If it be not entered in that form, yet, on certiorari, if the particular facts appear upon the return, the court will treat it as a decision on a regular issue in law, and set it aside as erroneous. id. 4A. The juror himself may be questioned on oath touch- ing his opinion. id. fa^: 45. Semble, though a juror may once have enter- tained and expressed an opinion hostile to a party, yet if it satisfactorily appear that he has changed his views, it is no ground for a new trial that he concealed his former hostility, when called as juror. People v. Vermilyea, 7 Coioen, 396. Supreme Court, August, 1827. ?8^^. 46. Mere matter of evidence against a juror, on a challenge to the favor, is no cause for setting aside a ver- dict, unless it appear that he was in fact influenced in his verdict by the cause alleged. Cain v. Ingham, 7 Cowen, 478. Supreme Court, October, 1827. 47. That a juror's father had married the defendant's brother's widow, the father being dead at the time of the trial, is no ground for principal challenge by the plaintiff. ' id. 48. When affinity is a principal cause of challenge, see note at the end of this case. id. 49. Where a juror engaged in the course of a cause, and after it was committed to the jury, drank brandy, though in a trifling quantity, and, as he stated, to check a diarrhea, yet, held that the verdict should be set aside. Brant v. Fowler, 7 Cowen, 562. Supreme Court, October, 1827. 50. It is not a good ground of principal challenge at the circuit, that the circuit clerk is attorney for one of the parties, and was so at the time of drawing, making and arraying the panel. Wakeman v. Sprague, 7 Cowen, 720. Supreme Court, October, 1827. 38 594 JUET. fgll' 51. A challenge to a juror for principal cause was sustained where the juror had said that he believed the defendant was guilty, although he testified that he had no fixed opinion upon the subject of the defendant's guilt ; that he only entertained impressions derived from history and common reports, meaning thereby pi'inted statements in papers, and reports in conversation ; that he had never heard witnesses to the transaction testify, nor say any thing on the subject in question ; if the evidence supported the circumstances he had heard, he had a fixed belief respecting the guilt of the defendant; if those circum- stances should be done away by evidence, he should not consider him guilty. People v. Mather, 4 Wend. 229. Su- preme Court, May, 1830. 52. So a juror was held properly excluded, on a challenge to the favor, who testified that he had formed, though he had not expressed an opinion that the defendant was guilty. His opinion was formed upon reports and what he had read. On the trial of a former challenge, he had heard a witness testify respecting the subject in question. His opinion was made up previous to hearing that testimony, but what the witness had stated had tended to sfrengthen his opinion. He had read reports of trials and affidavits or statements under oa.th relating to the same subject. His opinion was made up from reading them and other matters. And the charge of the judge to the triors in this case was approved, in which he instructed them that if they believed the juror had a fixed opinion, which it would require testimony to remove, he was disqualified, whether that opinion was founded on rumor alone, or on rumor and printed statements. id. 53. A juror who has formed an opinion of the guilt of the accused is not competent to serve ; although he de- clares that if the circumstances on which his opinion is founded are not supported by proof, his opinion of the guilt of the accused will be removed. id. 54. There is no distinction as to the grounds of the JURY. 595 opinion fornaed by the juror of the guilt of the accused ; whether it be founded on being an eye witness, or on hearing the testimony of those who were present at the transaction, or whether it be based on rumors, reports and newspaper publications ; in either case it is good cause of challenge. ' id. 55. "When the facts on which a challenge rest are dis- puted, the proper course is to submit the question to triors; but if neither of the parties ask for triors to settle the fact, and submit their evidence to the judge, and take his de- termination thereon, they cannot afterwards object to his competence to decide that issue. The production of evi- dence to the judge without asking for triors, will be con- sidered as the substitution of him in the place of triors ; and his decision will be treated in like manner as would the decision of triors ; and, therefore, although the determ- ination of the judge should be against the weight of evi- dence, a new trial will not be granted for that cause when the defendant is acquitted, in analogy to the principle that if on the main question in a criminal case the defendant is found not guilty, there cannot be a new trial. id. 56. "W'here an accused party waived his right to object to a juror, against whom good cause Of challenge existed on his part, it was held, that the public prosecutor could not insist upon having the juror excluded, under an agree- ment that all should be considered as challenged by both parties. id. 57. It is no cause of challenge to an array of jurors, that two sets of jurors are drawn at the same time from the jury box, for two distinct courts, if they are kept entirely separate and a distinct panel of each is given to the sheriff. Orane v. Dygert, 4 Wend. 675. ■ Supreme Court, May, 1830. 58. Nor is it cause of challenge that the jurors are drawn more than fourteen days before the sitting of the court at which they are to serve. id. ?„°^ 59. A non-compliance by the clerk to put the names of all the persons returned as jurors into a box, from 596 JURY. which jurors for the trial of issues are to be drawn accord- to the statute, is not a sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court are satisfied that the party complaining has not or could not have sustained any injury from the omission ; and it was accordingly held, where, on the' trial of a capital case, after twenty-eight jurors had been called, eleven of whom were approved and sworn, and seventeen peremptorily challeged, it was discovered that the ballot containing the name of a juror, who had answered on the calling of the general panel, was not in the box containing the names of the jurors returned for the court, and which, on search, was found and put into the box, and drawn out of it by direction of the court, and the juror sworn to serve on the jury, that the irregularity or neglect of the officer was not such as to entitle the prisoner to a new trial, it appear- ing to the court that the omission to put the ballot into the box proceeded from neglect and not from design. People V. Bansom, 7 Wend. 417. Supreme Court, October, 1831. °834. 60. The discharge of a jury in a criminal case, without agreeing on a verdict, is a matter resting in the sound discretion of the court in which the trial is had. People v. Q-reen, 13 Wend. 55. Supreme Court, October, 1834. 61. The exercise of the discretion of a court in this re- spect cannot be reviewed on writ of error; so held in this case, where the jury were discharged after only thirty minutes consultation. id. 62. It seems that the power to discharge should be exer- cised with great caution ; that for a disagreement upon the first cojaparison of opinions, a jury should not be discharged; that a reasonable time should be allow- ed, &c. id. Js"^; 63. A juror Vfho,' after he is sivorn in chief, and has taken his seat, is discovered to be incompetent to serve, may, in the exercise of a sound discretion, be set aside by the court at any time before evidence is given ; and JUKY. 597 this may be done even in a capital case, and as well for cause existing before as after the juror was sworn. People V. Damon, 13 Wend. 351. Supreme Court, January, 1835. 64. A person whose opinions are such as to preclude him from finding a defendant guilty of an offense punish- able with death, is an "incompetent juror on the trial of an indictment for an offense subjecting to that punishment. It is not the opinions on this subject of the religious de- nomination to which he belongs which exclude him, but his own opinions ; and therefore, if he entertains them, though he does not belong to a religious denomination, he is incompetent to serve as a juror. id. P/a^. 65. The forming and expressing an opinion by a juror upon the guilt or innocence of a party on trial for a felony, is a principal cause of challenge; the mere form- ing of an opinion is enough. People v. Rathbun, 21 Wend. 509. Supreme Court, October, 1839. 66. Whether a Jury in a criminal case are concluded by the instructions of the judge upon matter of law, or whether they are the sole judges of the law, as well as the facts of the case, quere. id. 67. "Where, on a trial for felony, the prisoner by his counsel consents to substitute the court for triors, upon challenges, to jurors, such consent cannot afterwards be revoked, and a demand made that a challenge to jurors 'shall be passed upon by triors, especially after the chal- lenge has been passed upon by the court. id. ms! 68. Where such a. deficiency of jurors occurs in a criminal case as is contemplated by 2 R. S. 733, § 3, (see 3 R. S. 5th ed. 1026,) the number of additional persons to be summoned rests in the sound discretion of the court before which the indictment is pending. People v. Colt, 3 mil, 432. Supreme Court, July, 1842. J^^J: 69. The finding of the jury at the oyer and term- iner, upon a mere question of fact, cannot be reviewed by the appellate court on a writ of error, although it ap- pear affirmatively that the bill of exceptions contains all 598 JUEY. the testimony given on the trial. Colt v. The People, 1 Park. Orim. Bep. 611. At Chambers, November, 1842. Before Walworth, Chancellor. iaJS: 70. Up6n a challenge to a juror /or /awr, any fact or circumstance from which bias or prejudice may justly be inferred, although weak in degree, is admissible evi- dence before the triors. People v. Bodine, 1 Denio, 281. Supreme Court, July, 1845. 71. Upon the trial of such a challenge it is erroneous to reject all evidence except such as goes to establish a fixed and absolute opinion touching the guilt or innocence of the prisoner. id. 72. A fixed opinion of the guilt or innocence of the prisoner, though it may be necessary to sustain a chal- lenge for principal cause, need not be proved where the challenge is for favor. A less decided opinion may be shown and exhibited to the triors, who must determine upon' its effect. ' id. 73. A juror challenged for favor, who is examined before the triors, may be asked whether he ever thought the prisoner guilty ; or what impressions statements which he had heard or read, respecting the evidence, had made upon his mind. id. 74. So it seems ah opinion imperfectly formed, or one based upon the supposition that facts are as they have been represented, may be proved before the triors upon such a challenge. Per Beardsley, J. id. 75. Where the matter alleged against one who is drawn as a juror is in judgment of law a disqualification, the challenge is for principal cause, and is entered on the record; where the objection is not per se a disqualifi- cation, the challenge is for favor, and is made ore tenus. In the former case, where the facts are ascertained, it is to be determined by the court ; in the latter the question is one of fact for the decision of the triors. Per Beards- ley, J. id. 76. The causes of challenge for favor are very various, JUEY. 599 and not subject to precise definition. The question is to be submitted as a question of fact, upon all the evidence, to the conscience and discretion of the triors, whether the juror is indifferent or not. ■ id. 77. Where, upon a challenge for favor, the court err in admitting or rejecting evidence, or instr.ucting the triors upon matters of law, a bill of exceptions lies. id. 78. The remedy would be the same if the court should overrule such a challenge when properly made, or refuse to appoint triors. Per Beardsley, J. id. 79. The fact that a prisoner did not avail himself, as he might, of a peremptory challenge to exclude a juror who was found indifferent upon a challenge for cause, does not prevent him from taking advantage of an error committed on the trial of the challenge for cause, though it appears that his peremptory challenges were not ex- hausted when the impanneling of the jury was completed. He is entitled to have his challenges for cause determined according to law, and to make or withhold his peremptory challenges according to his pleasure. id. ^^s\ 80. Upon the trial of a challenge to a juror for priJi- cipal cause, for having formed and expressed an opinion upon the guilt or innocence of the prisoner, the challenging party cannot ask the juror, when examined as a witness, whether he has an impression as to the defendant's guilt or innocence. People v. Honeyman, 3 Denio, 121. Sur- preme Court, May, 1846. 81. Otherwise when the challenge is for favor on the ground of bias. id. 82. Upon challenges for favor on account of bias, al- though evidence that the juror has given' credit to written or oral statements as to the prisoner's guilt is admissible for the consideration of the triors, the juror should not be set aside unless it is found that he has such a settled opinion that he could not render a verdict upon the evi- dence alone. The case of People v. Bodine, (1 Denio, 281,) commented on and explained. id. 600 JURY. Jan. 1847. 83. A juror, to be competent, must not only be indifferent as to the issue be is to determine, but impar- tial between the parties; and where triors of a challenge for favor to a juror were sworn to find whether the juror was indifferent "upon the issue joined," that qualification being objected to, the oath was held erroneous. Freeman V. The People, 4 Denio, 9. Supreme Qourt, January, 1847. 84. Where a juror is set aside by a peremptory chal- lenge, the party on whose behalf it was made cannot on error insist upon an erroneous ruling of the court upon the previous trial of a challenge of the same juror for cause. id. 85. A challenge to a juror for cause must distinctly specify the ground of challenge, or it may be disregarded. Per Beardsley, J. id. 86. It is a good cause of principal challenge that the juror has formed and expressed an opinion that the pris- oner is guilty. id. 87. An impression that the prisoner is guilty, or a hypo- thetical opinion adverse to him, though not a ground of principal challenge, may be given in evidence to show bias, on a challenge for favor ; and it is then for the triors to determine whether the juror is indifferent or not. id. 88. And it is erroneous for the court to instruct the triors, as matter of law, that a hypothetical opinion of the guilt of the prisoner will not disqualify a juror. id. 89. Where a challenge for principal cause, on the ground that the juror had formed and expressed an opin- ion that the prisoner was guilty, was overruled by the coilrt, after evidence given in its support, and the juror was then challenged for favor, and the same evidence having been submitted to triors, they were instructed that the latter challenge was in the nature of an appeal from the judgment of the court upon the facts; held, that the charge was erroneous. id. 90. The right to peremptory challenges exists where the defendant may be punished by imprisonment in a state JURY. 601 prison ten years, though the case is one in which the court may impose a shorter period of imprisonment. Dull v. The People, 4 Denio, 91. Supreme Court, January, 1847. (See 3 E. S. 5th ed. 948 and 1027.) 91. Therefore, a person indicted for burglary in the second degree, which is punishable " by imprisonment in a state prison for a term not more than ten j'ears, nor less than five years," is entitled to peremptory challenges, id. Jj°3 92. It is not in general sufficient to justify triors in setting aside a juror in a criminal case, as not being indifferent, that he has formed an unfavorable opinion of the character of the accused. Whether it would be a valid objection that he had read a report of the facts in the public papers, and had thereby imbibed an impression against the accused, depends upon the strength of the impression. People v. Lehman, alias Madame Restell, 2 Barb. 216. Supreme Court, New York General Term, January, .1848. S.' 93. In criminal as well as in civil cases, except in a criminal prosecution for libel, it is the duty of the court to decide the questions of law, and of the jury to decide the questions of fact. The People v. Finnegan, 1 Park. Crim. Rep. 147. Supreme Court, Albany General Term, May, 1848. J™=' 94. A juror being challenged to the favor, testified before the triors that he had formed no opinion and had no impressions as to the guilt of the prisoner, but that it had been and was still his impression that the general character of the prisoner was bad. The question was then put to the juror whether he would disregard what he had heard and said, and render his verdict according to evi- dence. Objected to, and exception taken. Held, that the question, although inartificially put, substantially called for the consciousness of the juror as to his ability to try the cause impartially, and therefore that it was properly allowed. Lohman, alias Restell, v. The People, 1 Oomst. 380. Court of Appeals, June, 1848. 602 JUKY. ^^l' 95. The idea that in criminal cases, in courts of record, the jury are the judges of the law, as well as of the facts, is erroneous ; not being founded upon principle or supported by authority. Per Welles, P. J. Carpenter v. The People, 8 Barb. 603. Supreme Court, Monroe General Term, May, 1850. S 96. The act of April 27, 1847, to provide for addi- tional challenges to jurors, and the provisions of the Re- vised Statutes respecting challenges to jurors, are in pari materia, and niust be construed as if they formed parts of the same statute and were enacted at the same time. Waterford and Whitehall Turnpike Company v. The People, 9 Barb. 161. Supreme Court, Clinton General Term, July, 1850. 97. By force of the statutes, thus construed, the public prosecutor, on the trial of an indictment, is entitled to the same number of peremptory challenges that are allowed to parties in civil actions. Oady, J., dissented. id. fjsi; 98. Where, on a criminal trial, a person is drawn as a juror and challenged to the favpr, and called as a wit- ness iu 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. People V. Knickerbocker, 1 Park. Grim. Rep. 302. Supreme Court, Erie General Term, November, 1851. 99. Where, on a trial of a challenge to the favor, im- proper 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 cannot afterwards avail himself of exceptions taken to the admission of such improper evidence before the triors, id. jfsl^; 100. A juror 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, 1 Park. Crim. JUEY. 608 Bep. 272. iSupreme Court, New York General Term, T)e- cember, 1851. 101. Where, after a challenge for principal cause has 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 ground of challenge. id. l^l 102. Where a justice of the Supreme Court has made an order for summoning twenty-four additional jurors, and after the drawing of the first thirty-six jurors, and before the' drawing of the additional twenty-four jurors, the old jury list had been destroyed as required by law, and a new jury list had been substituted, and it hap- pened that one of the twenty-four persons last drawn had been previously drawn as one of the thirty-six jurors, so that in fact only twenty-three additional jurors had been drawn, on challenge to the array for that cause, the chal- lenge was overruled by the oyer and terminer. People v. Thurston, 2 Park. Crim. Bep. 49. Supreme Court, Dela- ware General Term, July, 1852. 103. Form of an order for summoning additional jurors, under 2 R. S. 417, §-41 ; (3 R S. 5th ed. 715.) id. S: 104. The public proseutor on the trial of an indict- ment is not entitled to any peremptory challenge of jurorfe. People v. Aichinson, 7 How. Prac. Bep. 241. Queens County Oyer and Terminer, November, 1852. Before Strong, J. 105. What is meant by statutes being «w pari ma^eWa. id. 106. Waterford and Whitehall Turnpike v. The People, (9 Barb.- Rep. 161,) dissented from. id. fsla 107. In drawing a jury, where the name of a juror is called and he does not answer, his name is to be re- turned to the box with the undrawn ballots, and if he then returns into court, neither party can require him to take his seat as a juror. ' People v. Lamed, 3 Seld. Bep. 445. Court of Appeals, December, 1852. 108. If, after calling his name, the drawing is for a short period suspended, and before it is resumed he appears, 604 JUET. the court may, in its discretion, permit Mm to be called a second time. Semble. id. *^S^ 109. On the trial of an indictment at the oyer and terminer for murder, after eleven jurors had been drawn and sworn, the next juror drawn was challenged for favor, and the two jurors first admitted having been sworn as triors, and having heard the evidence, the argument of counsel and the charge of the court, after consultation, reported to the court that they could not agree in deciding upon the challenge; it was held, that the challenge must be retried, and the court selected the third and fourth jurors to act as triors for that purpose. People v. Dewick, 2 Park. Orim. Rep. 230. Suffolk Oyer and Terminer, March, 1853. Before Strong, J. 110. Suggestions as to the practice on challenges for principal cause and for favor, and as to the proper mode of selecting triors and deciding upon their competency, id fgll: 111. To give validity to proceedings in the oyer and terminer, it is necessary that process for summoning the petit jury should be issued, and that it should also be returned and filed in the office of the clerk of the county. McOuire v. The People, 2 Park. Crim:Rep. 148. Supreme Court, Onondaga Ganeral Term, December, 1853. 112. Where, after a trial and conviction for murder at the oyer and terminer, it appeared, on writ of error, that no precept for summoning the petit jury had been returned and filed, the conviction was held to be erroneous, and the judgment was reversed. id. ""54^' 113. The credibility of witnesses is exclusively 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. Woodin v. People, \ Park. Grim. Rep. 464. Supreme Court, Monroe General Term, March, 1854. Ysm: 114. It seems that the jury are no more judges of the law in criminal than in civil cases. Safford v. The JUEY. 605 People, 1 Parle. Orim. Rep. 474. Supreme Court, Saratoga General Term, May, 1854. ®i|gJ: 115. No peremptory challenges- are allowable to the people in criminal cases. The statute of 1847, entitled " An act to provide additional challenges to jurors," has not changed the law in respect to challenges by the people in criminal cases. People v. Henries, 1 Park. Crim. Hep. 579. Supreme Court, Monroe General Term, September, 1854. (See Laws of 1858, ch. 332, § 1 ; 3 R. S. 5th ed. 1030.) fsM: 116. The words " trial by jury," as used in the state constitution, mean a jury of twelve men, as at common law. People v. Kennedy, 2 Park. Crim. Pep. 312. Su- preme Court, at Chambers, August, 1855. Before Par- ker, J. 117. The words " heretofore used," in the same section, mean " in use at the time of the adoption of the constitu- tion." id. 118. At the time of the adoption of the constitution, a person charged with the commission of a misdemeanor had the right to a trial by jury of twelve men. He could secure this right when brought before the committing magistrate, by giving bail to appear at the next criminal court. id. 119. The constitutional provision, under which a person charged with a misdemeanor is entitled to a trial by jury, is applicable to any offense of the same grade created by statute after the adoption of the constitution. id. 120. The right to a trial by a common law jury of twelve men,. in cases of misdemeanor, is secured by the constitu- tion of this state, and cannot be taken away by the legis- lature. People v. Johnson, 2 Park. Crim. Pep. 322. Supreme Court, at Chambers, August, 1855. Before Dean, J. 121. The provision of the 5th section of the act, passed April 9, 1855, ch. 231, which requires the person accused to be tried before a court of special sessions, and deprives him of the privilege of giving bail to appear before the 606 JURY. next criminal court, is unconstitutional and void, inasmucli as it takes away the right of "trial by jury," secured by the constitution of the state. People v. Toynhee, 2 Parh. Grim. Rep. 329. Supreme Court, Dutchess General Term, August, 1855. 122. The act of April 2, 1850, regulating the police of the town of Watervliet, so far as it takes away from a person charged with an offense the right to give bail for his appearance at the next criminal court having jurisdic- tion, is an infringement of the right of trial by jury, and is unconstitutional and void. People v. Oarrol, 3 Parle. Grim. Rep. 22. Supreme Court, at Chambers, August, 1855. Before Parker, J. ^l 123. Under the statutes of the state of l^Tew York, the people, in a criminal prosecution, are entitled to two peremptory challenges. People v. Caniff, 2 Parh. Grim. Rep. 568. Supreme Court, St. Lawrence General Term, September, 1855. (See Session Laws of 1858, ch. 332, § 1, or 3 R. S. 5th ed. 1030, as follows : " On any trial for any offense punishable by death, or by imprisonment in the state prison for the term of ten years or for a longer time, the people shall be entitled peremptorily to challenge /we of the persons drawn as jurors for such trial, and no more ; and on the trial of an indictment for any offense punishable by im- prisonment for a less term than ten years, the people shall be entitled peremptorily to challenge three of the persons drawn as jurors for such trial, and no more.") ^g%\ 124. Where a juror, on being called, is challenged on the ground of his having formed or expressed an opin- ion as to the guilt of the prisoner, such juror may be ex- amined as a witness for the purpose of sustaining the challenge. People v. Christie 2 Park. Grim. Rep. 579. Supreme Court, General Term, New York, November, 1855. (This case is also reported in 2 Abb. Prac. Rep. 256.) 125. A juror when examined as a witness for the pur- pose of sustaining a challenge to the favor, will not be ex- cused from answering whether he has any prejudice or JURY. 607 bia§ against a religious sect, on the ground tliat such an- swer would disgrace him. id. fg^^: 126. "Where a juror has been challenged for favor, and evidence of circumstances in support of the challenge has been received and submitted to the triors without ob- jection, it belongs to the triors and not to the court to decide whether the juror stands indifferent between the parties ; and in such case the court, in charging the triors, should not instruct them how they ought to find on that point. Fer Wright, J., at the oyer and terminer. Peo- ple V. McMahon, 2 Park. Crim. Rep. 663. Supreme Court, Albany General Term, December, 1855. 127. In civil cases, and cases of misdemeanor, if the jury separate, either with or without the leave of the court, it will not vitiate the verdict without additional evidence of irregularity or abuse ; but in criminal cases of a higher grade, and especially in capital cases, such a separation, for however short a time, will be fatal to a verdict against the prisoner, unless it be shown affirmatively on the part of the prosecution, by the clearest evidence and beyond a reasonable doubt, that no injury to the prisoner could have occurred in consequence of. the separation. East- wood V. The People, 3 Parle. Crim. Rep. 25. Supreme Court, Monroe General Term, December, 1855. 128. It is the modern practice of the courts to receive the affidavits of the jurors themselves in answer to a charge of irregularity or abuse, though they have generally been considered as an unreliable species of evidence. id. 129. If, after a cause has been submitted in a capital case, a jury receive any kind of evidence which can have the most remote bearing on the case, it will be fatal to their verdict. id. 130. Where, in a capital case, after the testimony was closed, several of the members of the jury, while walking out for exercise, by leave of the court and in charge of an officer, visited and examined the place where the homicide occurred and in regard to which the witnesses had testified, 608 JURY. it was held to be a sufficient reason for granting a new trial. id. 131. This provision of the act (the 5th section of the act passed April 9, 1855, chap. 231) is not in contraven- tion of the state constitution, which declares that " the trial by jury" in all cases in which it has been heretofore used, shall remain inviolate forever. People v. Fisher, ■2 Park. Crim. Bep. 402. Supreme Court, Monroe General Term, December, 1855. 132. The words "trialby jury," in the state constitution, mean a trial by a common law jury of twelve men. id. 133. The expression in the state constitution, " the trial by jury," refers as well to other incidents of the trial, as to the number of 'men necessary to constitute a jury, and implies an indictment by a grand jury and in a court of record with common law jurisdiction. id. "S."' 134. The proceedings in a court of special sessions, authorized by the said act, passed April 9, 1855, eh. 231, is unconstitutional and void, on the ground that the party accused is thereby deprived of the right of trial by jury guarantied by the constitution. The People v. Toynbee, 2 Park. Grim. Rep. 490. Court of Appeals-, March, 1856. ^w&. 135. On the trial of an indictment for murder, a juror was challenged by the district attorney for princi- pal cause, on the allegation that he was opposed to capital punishments; on being sworn, the juror testified that he was opposed to the punishment of death, but said that if sworn as a juror on a trial for murder, and the evidence of guilt was clear, he should find the accused guilty ; held, that the challege was not sustained. People v. Wilson, 3 Park. Crim. Rep. 199. Westchester Oyer and Terminer, June, 1856. Before Strong, J. 136. Where a challenge for principal cause, in such a case, had been made and tried, and the juror had been de- cided to be competent, it was held that the trial of the chal- lenge might be opened, even after the juror had been sworn and taken his seat and other jurors had been called, but JURY. 609 before evidence in the cause had been taken, if it appeared that the juror had misunderstood the question put to him and had given a wrong answer, and that the juror desired to make the correction and to say that he could not, under any circumstances, convict on a charge of murder; and where, on resuming the trial of a challenge under such cir- cumstances, the juror repeated such correction, the chal- lenge was held well taken, and the juror was set aside, id. ^l^: 137. The statute requiring the district attorney to issue' a precept to the sheriff, at least twenty days before the holding of a court of oyer and terminer, if it is at all applicable to the stated terms of such courts held under the code, is merely directory, and an omission to issue it, inasmuch as it does not " tend to the prejudice of the de- fendant," will not invalidate the subsequent proceedings or judgment. McOann v. The People, 3 Parh. Orim. Pep. 272. Supreme Court, Albany General Term, May, 1857. 138. "Where, at a stated term of a court of oyer and term- iner, an order was entered by direction of the court ad- journing the term until a future day, and also directing the sheriff to summon "for the adjourned term of the court sixty jurors, (to be drawn in the usual way,") and, at the adjourned term, part of the number so drawn and summoned, and also a part of the panel which had been drawn and summoned for the regular term, appeared ; and the jury which tried the cause was drawn from a box con- taining the names of both panels, and no objection was made to the regularity of the proceedings until after conviction ; it was held, that though the proceeding was technically in- formal in the direction given as to the drawing of the jurors, it furnished no good reason for setting aside the verdict or arresting judgment. People v. Qummings, 3 Parh. Or. Hep. 343. Supreme Court, Albany General Term, May, 1857. ^857.' 139. Where a juror is challenged to the favor, the triors are to decide whether he is, at the time of the trial, " altogether indifferent ;" the inquiry is not confined to the state of the juror's mind before coming to court, but 39 610 JURY. if any thing has occurred in court which has produced on his mind an impression of the giiilt or innocence of the prisoner, it is a sufficient reason for finding the juror not to .be indifferent between the parties. Thompson v. The People, 3 Parh. Grim. Bep. 467. Supreme Cowt, New York General Term, June, 1857. fg^f: 140. Under the statutes of the state of N"ew York, the people are entitled to two peremptory challenges. (This decision is in accordance with the Waterford and Whitehall Turnpike Co. v. The People, 9 Barb. 161 ; The People V. Oaniff, 2 Park. Crim. Eep. 586 ; and adverse to The People v. Henries, 1 Park. Crim. Eep. 579 ; and to The People v. Aichinson, 7 How. Prac. Eep. 579.) People V. Masters, 3 Park. Grim. Bep. 517. Tompkins Oyer and Terminer, August, 1857. Before Balcom, J. (By chapter 332 of Session Laws of 1858, five peremptory challenges are given to the people on the trial of an indictment, in cases punishable by death or by imprisonment in a state prison for ten years or over, and three peremptory chal- lenges where the punishment is less than ten years. 3 E, S. 5th ed. 1030. Are the people entitled to a peremptory challenge in a court of special sessions ?) ?£^ 141. The court has a right to direct a jury to re- consider their verdict before it has been recorded, and it is its duty to do so if satisfied there has been a palpable mis- take. People v. Bush, 3 Park. Crim. Bep. 552. Supreme Court, Kings Gfenerel Term, October, 1857. 'JlJj"' 142. A juror in a criminal case being challenged for principal cause, testified that he " had formed and ex- pressed an opinion, but that he had no fixed opinion — none which could not be removed by the evidence ;" held, that he was disqualified. Cancemiv. The People, 16 N. T. Bep. 501. Court of Appeals, March, 1858. 143. The testimony of a juror, on his challenge for favor, cannot be considered in determining whether a previous challenge of him for principal cause was properly over- ruled, id. JUKY. 611 fls^a^ 144. To sustain a challenge tov principal cause, on the ground that the juror has formed and expressed an opinion, it must appear that the opinion was absolute, un- conditional, definite and settled; it is riot enough that it was hypothetical, conditional, indefinite and uncertain. If the opinion belong to the latter class, it is a proper sub- ject for a challenge to the favor. Stout v. The People, 4 Park. Orim. Rep. 71. Supreme Court, Monroe General Term, Septembery 1858. 145. Where, on a trial for murder, a juror who was drawn was challenged by the prisoner for principal cause, on the ground that he had formed and expressed an opin- ion, and such challenge was traversed by the public prose- cutor, and it appeared by the testimony of the juror, who was called upon as a witness to prove the truth of the chal- lenge, that he thought he had ah impression as , to the prisoner's guilt or innocence ; that he rather thought he had formed an opinion ; that he presumed he had expressed it, and thought he retained it; that he had formed an opinion, if the newspaper accounts of the transaction of which he had read only a part were true, and that so far as he had read he gave them credence ; that it might or might not require evidence to remove his impression of the prisoner's guilt ; that he had not arrived at any defi- nite opinion, and the court overruled the challenge, and decided the juror to be competent ; it was held on review that the decision was correct. • id. 146. In all challenges for principal cause and for favor, the matter of fact upon which the challenge is founded must be specified when the challenge is interposed, or the court should disregard it. Such matter of fact may be traversed, presenting a question for decision, or the party may dem'ur, thus admitting the truth of the allegation, id. 147. It ie most convenient for the dispatch of business, and in accordance with the customary practice at the cir- cuit and oyer and terminer, that a challenge for prin- cipal oauae, resting on a disputed question of fact, should 612 JUEY. be decided by the court, though such a question may, like a challenge 'for favor, be referred to triors for determina- tion ; and when such a question has been determined by the court without objection from either party, the court will be deemed to have acted by the consent of counsel on both sides, and its right thus to act cannot afterwards be questioned. Per Smith, J. id. S: 148. A question of fact on a principal challenge, in the absence of consent to a different mode of trial, is prop- erly triable before triors appointed by the court. It is competent, however, for the parties, by consent, to waive the appointment of triors, and submit to the court the question of fact for its decision ; and such has become the general practice. Stout v. The People, 4 Park. Grim. Rep. 132. Supreme Court, at Chambers, October, 1858. Before Strong, J. 149. The determination of the court, on a question of fact thus submitted, cannot be excepted to, and is final. It stands in that respect upon the same footing as if it had been made by triors, and cannot be reviewed on error, id. 150. Mere hypothetical opinions, though, legal evi- dence to be considered on a challenge for favor, will not sustain a challenge for principal cause. id. *iS?' 151' The following irregularities in the delibera- tions of a jury in a case of murder were established : One of the jurors inquired of a constable in attendance, whether the jury could not bring in a verdict of man- slaughter ; stating, at the same time, that if they could do • so, the whole jury would agree on such a verdict. Upon which the constable, in violation of his duty and oath, undertook to give his opinion. The Revised Statutes were subsequently sent for by the jury, and their provisions in relation to the crimes of murder and manslaughter exam- ined. Held, that these irregularities of the jury would have been sufficient to vitiate the verdict, unless it had appeared beyond all reasonable doubt that no injury had resulted from it to the defendant. People v. Mary Har- JURY. 613 tung, 17 How. Prac. Bep. 85. Albany Oyer and Terminer, March, 1859. Before Harris, J. ?8^^. 152. "Where a juror, on challenge, stated that " he had read part of the statements in the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner's guilt or innocence, but had no bias one way or the other ; that his preconceived idea or impression would in no way influence his verdict; but he would be governed entirely by the evidence produced on the stand ;" held " that the juror was impartial, within the meaning of the law requiring jurors to be persons of sound judgment and well informed," and was properly allowed to be sworn. People v. Sanchez, 18 Sow. Prac. Bep. 72. Supreme Court, New York General Term, OctO' her, 1859. (This case is also reported in 4 Park. Crim. Rep. 535.) 153. Where, on a coroner's inquest, the jury found that the death was caused by suicide, and nearly four months afterwards the coroner summoned another jury, and held a second inquest, at which the jury found that the de- ceased was killed by H. B., whereupon the coroner issued a warrant of commitment under which he was impris- oned; on habeas corpus the accused was discharged from imprisonment, on the ground that the second inquisition was not authorized by the statute. id. l^a 154. Where a case rests upon circumstances, it is for the jury to construe them and to say whether they neces- sarily impute guilt to the defendant, or whether they are consistent with his innocence. Pfomer v. People, 4 Park. Grim. Bep. 558. Supreme Gourf, New York General Term, February, 1860. J*^if' 155. After the impanneling of a jury in a criminal case, its arbitrary discharge without any cause, and where no circumstances exist calling for the exercise of the dis- cretion of the court, is a bar to a subsequent trial of "the defendant upon the same indictment. Grant v. The People, 614 JTJEY. 4 Park. Qrim. Bep, 527. Supreme Cotirt, Clinton General Term, May, 1860. 156. After an inquest supervisum corporis has been held by a coi;oner, in case of sudden or violent death, and an inquisition has been found by the' jury, a second inquest cannot be held by the coroner unless the first inquisition shall have been vacated or set aside, or shall have been absolutely void. People v. Budge, 4 Park. Grim. Bep. 519. Supreme Court, at Chambers, May, 1860. Before Bacon, J. ®il?o': 157. When a judge acts as trior, upon the chal- lenge of a juror for favor, his decision upon the question of fact is not reviewable. Sanchez v. The People, 22 N. Y. Bep. 147. - Court of Appeals, September, 1860. ^i^\!' 158. When the facts may or may not constitute larceny, depending upon the intent of the prisoner, this is a question which can only be found by the jury. Bllis V. The People, 21 Mow. Prac. Bep. 356. Supreme Court, New York General Term, March, 1861. ^sei. 159' IJi impanneling a jury for the trial of a felony at the oyer and terminer in the county of Kings, it is not erroneous for the court, after failing to get a jury from the thirty-six jurors summoned for the first six days of the court, under the special act of April 17, 1858, applicable to that county, to refuse to summon talesmen, and to proceed to complete the jury from the thirty-six jurors summoned for the next six days of the court. Lambertson V. The People, 5 Park. Crim. Bep. 200. Supreme Court, Dutchess General Term, May, 1861. {Ji^el; 160. It is a good ground of challenge to the array that certain of the jurors had not been summoned by any legal authority, and that their names had been put upon the list of jurors by the clerk of the court, at their request, without any order having been entered requiring such jurors to serve; and where such a challenge interposed in behalf of a prisoner on trial for felony was overruled by the court, on error, the judgment was reversed. Mc- JUKY. 615 Closkey v. The People, 5 Park. Orim. Rep. 308. Supreme Court, Kings General Term, December, 1862. 161. A defect or a violation of the statute, in the man- ner in which the jury list is made up, must be taken ad- vantage of by a challenge to the array, and not to the person of the juror. id. ^^^t 162. On a trial for murder, a juror was-challenged for principal cause, on the ground that he had formed or expressed an opinion as to the guilt or innocence of the prisoner, and it was shown that he had formed an opinion that the person charged to have been murdered was killed by the prisoner; Jield, that the challenge was not sus- tained. Lowenberg v. The People, 5 Park. Orim. Rep. 414. Supreme Court, New York General Term, March, 1863. 163. Where, on a trial for murder, a juror was chal- lenged for favor, on the ground that he had formed or expressed an opinion as to the guilt or innocence of the prisoner, the court refused to charge the triors, on the request of the prisoner's counsel, that they should find the challenge true, if, from the evidence, they should find that the juror believed that the person charged to have been murdered was killed by some one. id. 164. On a challenge for favor, the juror testified, before the triors, that he had conscientious scruples in reference to serving as a juror, in a case where the punishment, on conviction, would be death ; that he would, if he took an oath to serve as a juror, render a verdict in accordance with the evidenpe, but that it would violate his conscience to do so ; that he could not, where the punishment was death, conscientiously render a verdict which would take a man's life, even if the evidence clearly showed that the prisoner was guilty. The court refused to charge the triors that, assuming what the juror said to be true, no cause was shown which would justify the triors in finding the challenge true. id. 165. The prosecution challenged a juror for favor, on the ground that he was not indifferent between the 616 JUKY. people and the prieoner. The prisoner's counsel demurred to the challenge, and assigned for cause that the challenge did not specify any sufficient grounds in law, and the dis- trict attorney joined in demurrer; held that the demurrer was not sustainable, and it was overruled. id. 166. On such a challenge the juror, when examined as a witness -before the triors, was asked, " Have you any conscientious scruples against rendering a verdict of guilty, in a case where the punishment, upon conviction, is death?" On objection, held that the question was compe- tent, id. 'S 167. The jury in criminal cases are bound by the instructions of the court, as to the law, to the same extent as in civil cases. Duffy v. The People, 26 N. Y. Rep. 588. Court of Appeals, June, 1863. ^1863! 168. It is not a sufficient challenge for principal cause that a juror had formed an opinion that the prisoner had killed the person for whose murder he was indicted. Killing being but one element of the crime, is consistent with the prisoner's innocence of murder. Lowenherg v. The People, 27 N. Y. Rep. 336. Court of Appeals, September, 1863. (This case is also reported in 26 How. Prac. Eep. 202.) fst 169. The act of 1861, (see chapter 210 of the Ses- sion Laws of 1861,) directing that where the regular panel of jurors is exhausted without obtaining a jury, the necessary jurors shall be drawn from the town-box of the town in which the trial is had, is applicable as well to criminal as to civil courts. People v. McQeery, 6 Park. Crim. Rep. 653. Supreme Court, Monroe General Term, December, 1863. 170. Where a sheriff is directed to summon jurors, they may be lawfully summoned by his deputies, under his direction. id (The act mentioned in the foregoing decision is an act entitled, " An act to amend the Revised Statutes in relation to trials by jury," and is as follows : JUEY. 617 Section 1. The clerk of every county, in addition to the box by law now provided and kept for the purpose of con- taining the names of jurors drawn to serve at any court, shall provide another box, in which he shall deposit the names of all persons who have been selected and returned as suitable persons to serve as jurors, and who reside in the city or town where courts are appointed by law to be held. § 2. "Whenever a sufficient number of jurors duly drawn and summoned do not appear or cannot be obtained, to foij-m a jury, the court may order the sheriff to draw, in the presence of the court, from the box so kept by the clerk of the county, and containing the names of persons returned to serve on petit juries, for the city or town where such court is held, the names of so many persons as. shall be sufficient, and as the court may direct. The court may also, by the consent of the parties to any action pending therein, order the sheriff to summon from the bystanders or from the county at large, so many persons qualified to serve as jurors, as shall be necessary to make the full panel of jurors on the trial of such action. § 3. The sheriff shall forthwith summons the persons so drawn, and make return thereof, in the same manner as now provided by law, in cases where persons are sum- moned as juroi'S from the bystanders ; and the persons so summoned shall attend forthwith and serve as jurors unless excused by the court, and shall be subject to the same penalties for neglect or refusal to attend. § 4. This act shall not apply to the city and county of l^ew York, nor to the county of Kings. § 5. All acts and parts of acts, inconsistent with this act, are hereby repealed.) ^imt 171. The act in relation to jurors, &c., (ch. 322, 1858,) so far as it relates to the summoning of jurors in the county of Kings, is general, and requires that they shall be summoned by the commissioner of jurors to be ap- 618 JURY. pointed for the county. Benny v. The. People, 31 N. Y. Sep. 330. Court of Appeals, March, 1865. 172. Such act virtually abrogates all authority in the sheriff to summon jurors to serve in the courts of Kings county. id. 173. Under such act, after exhausting the first panel, a new panel may be summoned forthwith to attend said court upon one day's notice. (2 K S. pp. 419, 420.) id. 174. The statute (Laws of 1858, ch. 332, § 1 ; 3 R. S. 5th ed. 1030) providing that " on any trial for any offense punishable by death, &c., the people shall be entitled per- emptorily to challenge five of the persons drawn as jurors for such trial," is constitutional. Walter v. The "People, 32 N. Y. Sep. 147. Court of Appeals, March, 1865. (This caise, at general term, is reported in 18 Abb. Prac. Rep. 147, and in 6 Park. Grim. Rep. 15.) 175. The constitution of 1846, in preserving the right of trial by jury in all cases in which it had been thereto- fore used, does not limit or restrict the authority of the legislature, except as to the particular right guarantied, id. 176. The subject of peremptory challenge has always been under legislative control ; and if it were a right given by common law, the legislative will could regulate it. id. 177. Where a juror has conscientious scruples against finding a party guilty of an offense punishable with death, he may be challenged for principal cause by the people. (2 R. S. 734, § 12 ; 3 R. S. 5th ed. 1027.) id. 178. So where a juror states that he is unwilling to be sworn, in such a case, because of such scruples, it is suffi- cient ground for such challenge. id. is 179. It seems, that the want of indifiference of a juror may be considered as a cause for setting aside a ver- dict on a motion for that purpose; -and that the verdict should be set aside when the facts are of a character likely toprejudice the prisoner. Willis v. The People, 32 N. Y. Pep. 715. Court of Appeals, June, 1865. \^l 180. It is the duty of a jury to find a verdict upon JUET. 619 the evidence given on the trial, and upon that alone, with- out any a,ddition to it or modification of it, arising out of the peculiar scientific acquirements or actual knowledge of facts in controversy possessed by the jurors or any of them, though the weight and credit of such evidence should be judged of by them in the light of their own experience. People V. Zeiger, 6 Park. Grim. Pep. 355. Supreme Court, Erie General Term, September, 1865. f^^5, 181. "Where the jury have a reasonable doubt, from the evidence, as to what degree of murder to convict the prisoner of, it is their duty to convict of the lesser degree. People V. Lamb, 39 N. Y. Pep. 360, 2 Keyee. Court of Appeals, January, 1866. Smith, J. ^mt' 182. "When there is an irregularity in the drawing of the jury, which cannot affect the rights of the prisoner, even though it be such as to subject the delinquent to punishment, it will not render the panel illegal. Ferris v. The People, 35 W. Y. Bep. 125. Court of Appeals, March, 1866. (This case is also reported in 31 How. Prac. Rep. 140. This case, at general term, is reported in 1 Abb. Prac. Eep. 193, new series, and in 48 Barb. 17.) 183. Mere irregularities, not affecting the rights of the parties, are to be discarded by the appellate court in re- viewing the decisions of the general sessions of New York. id. 184. A party seeking to reverse its judgment, should allege, at least, a prejudicial error. id. 185. Any irregularity attending the drawing of jurors, which does not change the persons who are to compose the jury, does not tend to affect the rights of the prisoner, and will not be good cause of challenge to the array. Friery v. The People, 39 N. Y. Rep. 424, 2 Keyes. Court of Appeals, March, 1866. 186. "Where the prisoner challenges a juror for principal cause, and, his challenge being overruled, he then chal- lenges him peremptorily, he thereby waives his challenge for principal cause. id. 620 JUET. S: 187. Chapter 210 of the Session Laws of 1861, re- quiring the county clerk to provide an additional box for the' drawing of jurors, in which shall be placed the names of jurors residing in the city or town where courts are ap- pointed by law to be held, is applicable to criminal trials, as well as to the trials of civil suits. Gardiner v. The People,. 6 Park. Grim. Bep. 155. Supreme Gov/rt, Broome General Term, November, 1866. 188. The act of 1861 is neither in conflict with the pro- vision of the constitution of the United States, which se- cures the right of persons accused of crime to a trial by an impartial jury of the state and district wherein the crime shall have been committed, nor to the provision of the constitution of this state, which declares that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. id. 189. The legislature has power to provide for summon- ing jurors from any place in the county, as well as from bystanders or from the county at large, to supply a -defi- ciency of jurors at a trial. id. 190. On a challenge to the array, when jurors to supply a defi'ciency are drawn under the statute of 1861, the court will presume, unless the contrary is shown, that the clerk has discharged his duty in putting into the box the names of jurors on the last list required by law to be made. id. 191. Elmira was a town when the jury list in and for the county of Chemung was made and filed in 1863. In 1864 the city of Elmira was erected from portions of both the towns of Elmira and Southport. Held, that on a trial in the court of oyer and terminer in the city of Elmira, in April, 1866, where, on a deficiency of jurors, it became necessary to draw from the town-box, under chapter 210 of the laws of 1861, the persons returned as jurors for the town of Elmira in July, 1863, were competent to serve as jurors, and that it was no ground for challenging the array that some of them did not reside in the city or town of Elmira at the time of the trial. id. JURY. 621 192. The jurors so drawn in 1863 for the town of Elmira ■were competent to serve as jurors in courts held in the city of Elmira for three years, and until other lists were returned and filed. ' id. 193. The objection that one of the jurors drawn was not on the jury list of 1863, and that the box of Elmira jurors, from which his name was drawn, was made in 1860, and not after the list of jurors was made and filed in 1863, ought to have been made when the name of the juror was drawn by the clerk from the box provided by the statute of 1861. It is too late to make such an objection aftei? several jurors have been drawn for the trial. id. 194. Nor can such an objection be made available on error, if it appears that after the overruling of the objec- tion on the trial the juror was challenged peremptorily, and that the defendant's counsel was subsequently in- formed by the court that the peremptory challenge of the juror would not be counted as one of the peremptory challenges allowed him by statute. id. 195. Where, during the impanneling of a jury, after a challenge to a juror has been overruled, the prisoner's counsel is informed by the court that the juror who was challenged shall stand aside and not sit, if 'he desires it, and that the number of the prisoner's peremptory chal- lenges should not be lessened thereby, and he chooses to stand mute, though told by the court that his conduct would be construed to be a consent to the juror's sitting, it was held that an objection to the juror was not available on review. id. 196. "Where, on the trial, during the impanneling of a jury, it is discovered by the court. that the jurors whose names are in the box were those on the list made in 1860, and that the clerk had omitted, in 1863, . to take these names from the box and put in the names of the jurors drawn for that town in 1863, it is proper for the clerk, under the direction of the court, before any other jurors are drawn, to take from the box the names put in it from 622 JURY. the list of 1860, and to deposit in it the names of the jurors drayn for that town in 1863. id. 197. It is not necessary for the district attorney to verify his answer to a challenge to the array interposed by the defendant. id. 198. A challenge to the array will not be sustained, be- cause the list of jurors for the town, whose names are put into the box from which the jurors are to be drawn was dated the 24th day of July, 1863, instead of the first Mon- day of that month. The statute is only directory, and a list is valid, though made and filed at a later date than that mentioned in the statute. id. 199. Nor will a list of jurors be void because the town clerk was absent when it was signed. The list will be valid without his signature. id. 200. A defendant has no right to impugn a list of jurors returned by the proper town officers, and filed in the office of the county clerk. Such list is conclusive upon the de- fendant as to its regularity. id. 201. An objection to the regularity of a panel of jurors cannot be made available on review, when it appears that on the trial the court, with the consent of the district attor- ney, informed the prisoner's counsel that the three jurors, upon whose right to sit the question of regularity depend- ed, should stand aside and not sit in the case, and three other jurors might be drawn in their places if the prison- er's counsel desired it, without diminishing the number of peremptory challenges, to which the prisoner was en- titled, id. ff5"j 202. Where a juror on the trial of an indictment for murder, on being challenged for principal cause, stated that he had read a statement in the newspaper of the homicide, but that although he had an impression that a homicide was committed, he had none as to the guilt or innocence of the prisoner ; held that the challenge was properly overruled. O'Brien v. The People, 48 Barb. Bepi JURY. 623 274. Supreme Court, New York General Term, January, 1867. 203. The prisoner then challenged the juror for favor, and demanded triors. These having been sworn, the juror again testified that he had read the statement in the news- paper, without any impression remaining on his mind of the guilt or innocence of the prisoner ; that " it would require evidence, either the one way or the other, to make him convinced of the prisoner's guilt or innocence." The prisoner's counsel requested the judge to charge that the challenge was well taken, as matter of law. The judge declined so to do, and submitted the question of the im- partiality of the juror to the triors. Held there was no error in this ; and that- it was properly given to the triors to decide that question. - id. 204. Another juror, being challenged for principal cause, testified that he had conscientious scruples in finding a verdict where the penalty was death; but that his scruples would not prevent him from finding a verdict of guilty of murder, where the evidence required him to do it ; held that the juror was properly set aside as incompetent, id. 205. Where a juror states that he has conscientious scruples against finding a verdict involving the penalty of death, he is directly within the inhibition of the statute, as to jurors serving who hold such scruples. id. 206. "When a juror has conscientious scruples in finding such a verdict, his competency is not established or re- stored by a statement that he would render a verdict of guilty if the evidence required it. id. 207. A juror, being 'challenged by the prisoner's coun- sel for favor, testified that he thought he read or heard the statement of the homicide, published in the paper, and believed that a homicide was cqpamitted by the person charged in the paper, but it left no impression on his mind as to the guilt or innocence of the party. Beld that the challenge was properly overruled ; the result of the evi- dence being that there was no impression on the juror's 624 JUEY. mind as to the guilt or innocence of the prisoner ; the per- son charged in the paper not being identified as the prisoner. id. ■ ""fs's"^' 208. Where one called as a juror, in a capital case, states that he has conscientious scruples as to finding a verdict in a case involving life and death, he is to be deemed incompetent to sit in such case. O'Brien v. The People, 36 N. Y. Sep. 277. Court of Appeals, March, 1867. 209. "Where a juror, called in such case, states that he read the newspaper accounts of the transaction, but that they left no particular impression on his mind as to the guilt of the person named, other than that the crime had been committed by the person named, he is not to be deemed disqualified to sit in such case. id. 210. It is competent for the court to act as triors upon challenge to favor ; and the assent of the parties thereto is to be presumed, where no objections are raised and there is no request to submit the question to triors. id. ^Jf 211. "Where a defendant, on a trial for crime, is en- titled to a peremptory challenge, the right continues until the juror is sworn. Lindsley v. The People, 6 Park. Crim. Bep. 233. Supreme Court, Erie G-eneral Term, May, 1867. 212. On a trial for manslaughter, in which the defendant was entitled under the statute to five peremptory challenges, after eteven jurors had been drawn, a person drawn as a ju- ror was challenged by the defendant for principal cause, and after a trial of the challenge it was overruled and the person declared competent to serve as a juror. The court then asked the prisoner's counsel if they challenged the juror peremptorily, and the counsel answered " no." The juror then took his seat in the box. Afterwards, and while the other jurors were being sworn, and before the juror in question was sworn, the counsel for defendant insisted upon the right of then peremptorily challenging the juror. Seld, that the right of peremptory challenge still existed ; that its exercise at that time was an absolute right and JUEISDICTION. 625 did not rest in the discretion of the court, and that it had not been waived by the previous answer of the defendant's counsel declining to challenge the juror. Daniels, J., dissenting. id. Jurisdiction. fi^s. 1- By an act of the legislature of the state of N'ew York, passed Feb. 15th, 1800, (1 vol. R. L. 189,) it is enacted that " all that island, called Governor's Island, on which Fort Jay is situated, bounded on all sides by the waters of the East river and Hudson river, shall hereafter be subject to the jurisdiction of the United States." By the constitution of the United States, (1st art., 8th sec.,) it is declared that congress shall have power to exercise exclu- sive legislation in all cases whatsoever, over such district as might become the seat of government of the United States, " and to exercise like authority over all places •pur- chased by the consent of the legislature of the state iu which the same shall be, for the erection of forts, maga- zines, arsenals, dockyards and other needful buildings, and to make all laws which shall be needful and necessary for carrying into execution the foregoing powers." Gov- ernor's Island was ceded by the state, not purchased by the United States, and when ceded it was made subject to the jurisdiction of the United States, if the United States pleased to exercise jurisdiction over it, which they have not, as yet, done. It was held, that notwithstanding the above grant in our statute, and the clause in the constitu- tion, the court of sessions, in and for the city and county of New Tork, had j urisdiction over oft'enses committed on Governor's Island. James W. Lent's case, 4 City Hall Be- corder, 27. Before Colden, Mayor. New York, February, 1819. "i^; 2. In setting, out the proceedings of a court of in- ferior or limited jurisdiction, the indictment should always state enough to show that such court has jurisdiction of the case. People v. Cook, 2 Farh. Grim. Bep, 12. War- 40 626 JURISDICTION. ren Oyer and Terminer, July, 1823. Before Walworth, a J. 3. Where the indictment was for petit larceny, as a second offense, and it did not set forth that the offense was committed within the county where the court was hoiden, or that the accused requested a trial by the justices, or that he refused to give bail ; held, that the indictment did not show that the special sessions had jurisdiction of the cause. id. "m 4. Verbal agreements as to proceedings upon an in- dictment made by parties and their counsel, in the presence of a court of oyer and terminer, will be inforced, if the court has jurisdiction of the case to which they refer. But jurisdiction of an indictment pending in another court cannot be conferred by such an agreement. People v. Eartwell, 2 Parle. Grim. Bep. 32. Oneida Oyer and Term- iner, December, 1823. Before Walworth, O. J. 5. But where, under such an agreement, the prisoner gave bail to appear at the next court of oyer and terminer, the court refused to discharge him from such recognizance, on the ground of the general jurisdiction of the court over all crimes and offenses, and required the prisoner to give bail to appear in the court in which the indictment was pending. id. fala! 6. The court of last resort in this state is the exclu- sive judge of its own jurisdiction, and its decision on that point cannot be questioned by the court below, 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. People v. Clark, 1 Park. Grim. Bep. 360. Supreme Gourt, New York General Term, December, 1852. 7. A sentence inflicting corporeal punishment cannot be pronounced in the absence of the defendant ; but the per- sonal presence of the defendant is not necessary where a fine only is interposed. id. 8. On a writ of error brought to reverse a judgment in JUEISDICTION. 627 a capital case, the personal attendance of the defendant on the argument or at the decision in the appellate court, is not necessary to give such court jurisdiction. id. ^l' 9. The equitable pbwers of the superior court can only be exercised in those actions and proceedings which its jurisdiction, as defined by the Code, properly embraces. People V. Bose Porter, 1 Duer's Bep. 709. Superior Court, at Chambers, May, 1853. Before Buer, J. S 10. A state has no jurisdiction of crimes committed beyond its territorial limits. People v. Merrill, 2 Park. Grim. Bep. 590. Supreme Court, Ussex General Term, July, 1855. 11. Every statute is presumed to be enacted with refer- ence to the local jurisdiction of the legislature of each state. id. •'I'gl; 12. On a trial before the oyer and terminer, in the county of "Westchester, it appeared that the alleged murder had been perpetrated on board a vessel lying at anchor on Long Island Sound, about a quarter of a mile west of Hartt Island, northerly of a line connecting the extreme points of Hartt and City Islands ; held that the offense was committed within the county of Westchester. People v. Wilson, 3 Park. Orim. Bep. 200. Westchester Oyer and Terminer, June, 1856. Before Strong, J. 13. Every part of the state of New York is included within some one of the counties enumerated in the stat- ute. ■ . id. 14. Where a body of water in which the tide ebbs and flows, is situated between a range of islands and the main shore, and all are so near to each other that a person with the ordinary power of vision can see with the naked eye from point to point, on every point of the connecting line, what is doing on each, it is within the county bounded upon the high seas, according to the rule which extends the jurisdiction of a county to a line running from one to the other of the fauces terrce. (The mouth or chops of a channel.) id. 628 JUEISDIOTION. 15. In an indictment against a constable for not execut- ing a warrant delivered to , him against a person charged with crime, it is necessary to show by averments that the justice who issued the warrant had jurisdiction. People V, Weston, 4 Park, Grim. Bep, 226. Bwperior Court of Buffalo, General Term, June, 1856. 16. It is not sufficient that the warrant set forth in the indictment recites all the facts, to confer the authority to issue it. It must be alleged in the indictment that those facts are true. id. 17. In pleading, the judgments and proceedings of infe- rior courts of special and limited jurisdiction, a general averment of jurisdiction is not sufficient, but the facts on which it depends should be averred. id. il^i, 18. The jurisdiction conferred on the police justice of the city of Buffalo, by section thirty-five, chapter two hundred and thirty of the Session Laws of 1853, is only exclusive in respect to the other justices of said city, and does not take away the power of a coroner of the county of Erie to issue process, and to commit to prison under the provisions of the Eevised Statutes. People v. Biegler, 3 Parle. Grim. Bep. 316. Supreme Gourt, at Chambers, Janu- ary, 1857. Before Strong, J. ^gjf' 19. Under the act of congress, the county courts of the several counties of the state of New York have juris- diction of the naturalization of aliens. People v. Sweetman, 3 Park. Grim. Bep. 358. Supreme Court, Jefferson General Term, April, 1857. Per Bacon, J. 20. State courts, in entertaining jurisdiction of cases of naturalization, act exclusively under the laws of the United States, and should be deemed, quoad hoc, courts of the United States. id. 21. "Willful false swearing, by a person giving material testimony in a naturalization proceeding before a county court, is an offense against the laws of the United States, and punishable in the United States courts, and not in the state courts. id. JURISDICTION. 629 22. The question of jurisdiction of certain offenses, as between the courts of the United States and the state courts, discussed by Pratt, J. id. S|Pj': 23. The act (chapter 337 of 1855) to enlarge the jurisdiction of the general and special sessions of the peace, in and for the city and county of New York, is not void by reason of section sixteen, article three of the constitu- tion, which declares that " no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title;" al- though such act contains general provisions applicable to all the courts of oyer and terminer in the state. People v. McCann, 16 N. Y. Bep. 58. September, 1857. 24. The character of an act is to be determined by its provisions, and not by its title ; and general provisions are not rendered void by reason of their being contained in the same act with other provisions of merely local applica- cation, though the title of the act refers to the latter pro- visions^only. id. "ISl"' 25. Cattle, stolen in Wyoming county, were driven across the line into Erie county, and through different towns of the latter county into the city of Buffalo ; held, that the superior court of Buffalo had jurisdiction for the trial of the offense. People v. Smith, 4 Park. Crim. Rep. 255. Su- perior Court of Buffalo, General Term, March, 1859. fsfo!" 26. The court cannot acquire jurisdiction to try an offense by consent, nor- can the averment in an indictment be charged by consent, so as to embrace any other than those presented by the grand jury. People v. Campbell, 4 Park. Grim. Bep. 386. New York General Sessions, Sep- tember, 1859. Be/ore Bussel, City Judge. It™"" 27. In a case of false pretenses, it is not material to the question of jurisdiction of the court where the pre- tenses were made. The obtaining of the signature or prop- erty by means of them, with intent to cheat and defraud, completes the crime and determines the place of trial. Pea- 630 JUEISDIOTION. pie V. Sully, 5 FarTc. Grim. Bep. 142. Superior Court cf Buffalo, Greneral Term, March, 1860. f^^^ 28. Where an offense was committed on navigable tide waters wholly within the state of New York, and the United States courts and the state courts assumed jurisdic- tion thereof, the former, prior in point of time to the lat- ter, it was held, on a writ of habeas corpus issued to test the legality of the latter arrest, that the conflict of juris- diction could not be avoided by setting up judgment pro- nounced in one of the tribunals, which, when obtained, would be a bar to the proceedings in the other. People v. Sheriff of Westchester, 1 Park. Crim. Bep. 659. At Cham- bers, September, 1862. Before Edmonds, J. 29. It was also held to be no means clear, that the state courts had not jurisdiction over the subject matter of the offense, 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. id. S' 30, An indictment in a state court for an offense against the penal laws of the state, is not removable by the defendants on petition, before plea, into the Circuit Court of the United States, under the provisions of section five, of chapter eighty-four, of the thirty-seventh congress. Peo- ple V. Murray, 5 Park. Crim. Bep. 577. New York Gene- ral Sessions, June, 1864. Before Bussel, City Judge, and Hoffman, Becorder. 31. Congress has not the power to confer upon the United ■States courts jurisdiction to try indictments found in the state courts. id. 32. It is not enough that an act of congress gives the United States Circuit Court jurisdiction of such a case. It can have no jurisdiction that is not conferred by the constitution as well as by the law. id. 33. The dictum of Chief Justice Marshall, in Osborn v. The Un^ited States, (9 Wheat. 821,) declaring that congress is capable of giving the Circuit Court of 'the United States JUEISDICTION. 631 original jurisdiction in any case to which the appellate jurisdiction extends, has no application to a case in the origin of which neither the constitution or laws of the United States are involved, and in which a question involv- ing either may never arise, or, if it does, can only arise in the progress of the cause. By Hoffman, JRecorder. id. "^5; 34. A court of oyer and terminer has jurisdiction to try all cases of murder committed within the county. A murder committed by a soldier in the military service of the United States, in time of war, insurrection or rebel- lion, forms no exception. The People v. Gardiner, 6 Park. Orim. Rep. 143. Supreme Court, Broome General Term, November, 1865. 35. The act of congress of March 3, 1863, which declares that certain offenses, including mnrder, committed in time of war, insurrection or rebellion, by persons who are in the military service of the United States, and subject to the articles of war, shall be punishable by the sentence of a general court-martial or military commission, is consti- tutional and valid ; but the jurisdiction thus conferred is not exclusive, and does not divest the state courts of con- current jurisdiction in similar cases. id. 36. "Where, in an indictment for murder, pending in the court of oyer and terminer of the county of Chemung, the defendant interposed a plea to the jurisdiction, alleging that at the time the offense charged was alleged to have been committed, he was a soldier in the military service of the United States, during war, insurrection and rebellion, and subject to the articles of war, and that the place where the offense was alleged to have been committed, was in the western military district of the state of New York, which was occupied by the United States military forces, with whom the defendant was in actual military service, and that a general court-martial was in session in said district, and the district attorney demurred to such plea, the court of oyer and terminer held the demurrer to be well taken, and the decision was approved by the Supreme Court, id. 632 LAEOENY. 37. Form of a plea to the jurisdiction, setting up facts to bring the case within the third section of the act of congress of March 3, 1863, providing for the trial of offenses by courts-martial and military commission ; of a demurrer to such plea, and of a certiorari to remove the decision on the demurrer to the Supreme Court. id. 'S: 38. Upon a trial for murder, the prisoner was charged in the indictment with having committed the offense in the city and county of New York. Upon the trial, the witnesses spoke of the occurrences as having taken place in Broome street. Held, that as the prisoner's counsel, throughout the trial, assumed the fact that Broome street was in the city of New York in calling and cross-examining witnesses, addressing the jury, and objecting to rulings of the court, on that theory — it is too late, on appeal, to make the objection to the jurisdiction of the court upon the ground that the offense was not proved to have been com- mitted within its jurisdiction. Wagner v. The People, 39 N._ Y. Bep. 684, 2 Keyes. Court of Appeals, June, 1866. 39. The same view was taken of the omission to prove the year in which the offense was committed, the assump- tion upon the trial being that it was in the year 1865, as charged in the indictment. id. Larceny. S??; 1. Where a person stole a horse in the state of Ver- mont and fled into this state, where he was apprehended with the horse in his possession, it was held that he could not be tried in this state for the felony ; but was to be considered merely as a fugitive from justice. People v. Gardner, 2 J. B. 477. Supreme Court, November, 1807. (But see 3 E. S. 6th ed. 984.) 2. Where a person was indicted in the city of New York for stealing a gun, and the jury found a special verdict that the gun was stolen in the state of New Jersey, and brought by the prisoner into this state, where it was found in his possession, the court said that the prisoner LAEOENY. 633 was entitled to his discharge ; but they ordered him to be detained in prison three weeks, and notice thereof to be given to the executive of New Jersey, and if the prisoner should not be demanded within that time, that he be dis- charged. People V. Schenck, 2 J. B. 479. Supreme Court, November, 1807. JJJJ- 3. Taking a letter from another, which is of no in- trinsic value, nor importing any property in possession of the person from whom it is taken, is not larceny, nor any criminal offense of which a special sessions has cognizance. Payne v. The People, 6 J. R. 103. Supreme Court, May, 1810. isis: 4. On the trial of an indictment for stealing a bank note, bill, &c., under the statute, (1 If. R. L. 174, sess. 24, ch. 88,) parol evidence of the contents of the bills or notes stolen is admissible, without accounting for their non- production. People V. Holhrook, 13 J. B. 90. Supreme Court, January, 1816. 5. Where the indictment stated that the defendant stole four promissory notes, commonly called hank notes, given for the sum of 50 dollars each, by the Mechanics' Bank, in the city of New York, which were due and unpaid, of the value of 200 dollars, the goods and chattels of P. C, then and there found, ^c, it was held a sufficient description, without saying they were the property of P. C. The word chattels denotes property and ownership, id. 6. If two persons, at the same time, steal from another different sums, each of which sums amount to less than $12.60, but which if added together amount to more than that sum ; and if when the person thus losing his money attempts to leave the house, a third person with the thieves assaults and pulls him back, should the jurors believe that three were aiding, abetting and assisting in the commis- sion of the felony, they are justifiable in finding them all guilty of grand larceny. Buck, Palmer and Seed's case, 1 City Sail Becorder, 4. Before Badcliff, Mayor. New York, January, 1816. 634 LAECENY. me: 7. The felonious removal of property from the place of deposit, without carrying it away, is theft. Tobias' case, 1 City Sail Becorder, 30. Before Badcliff, Mayor. New Torh, February, 1816. 8. Where the testimony was that the meat was in a barrel at the Fly Market, and the prisoner was detected in the act of taking out a quantity and laying it by the side of the cask ; and when inquired of what he was about, answered that he was putting the meat in the barrel, he was found guilty. id. 9. The mayor, recorder and aldermen of the city of I^ew York have a right to try a prisoner on a charge for steal- ing bills issued from the corporation of said city, if such bills are in circulation, and the private property of an in- dividual. Peter Linnenden's case, 1 City Hall Becorder, 30. Before Badcl^f, Mayor. New York, February, 1816. 10. An indictment for larceny cannot be supported for stealing bills or notes not payable in money. id. (See 3 R. S. 5th ed. 958.) '"ibis!'' ll- Where a person obtains the possession of a chattel on hire, under a pretense of going to a particular place, he is guilty of felony, if it clearly appears that it was his intention, on acquiring such possession, to convert the property to his own use ; and in such a case, the original acquisition was felonious from its inception, and the owner, at no instant of time, was divested of his right of property. Such intention may be gathered from the circumstances of the case ; and where, as the evidence shows in this case, the prisoner hired a horse and carriage to go to Manhat- tanville, promising to return in the evening, and two months afterwards was found' in Philadelphia, having dis- posed of the horse, and offered the carriage for sale, he is guilty of felony. John Brannan's case, 1 City Hall Be- corder, 50. Before Biker, Becorder. New York, March, 1816. ^^l' 12. Where a prisoner takes the horse of another and rides him off on the road and then abandons him, it ^ LAECENY. 635 is no larceny, for there is no evidence of a felonious inten- tiotii Larceny is defined to be, the fraudulent or wrongful taking and carrying away, by any person, of the personal goods of another, from any place, with a felonious intent to convert them to his own use, and make them his own property, without the consent of the owner. Jeffers & Dickaman's cases, 1 City Hall Recorder, 83. Before Bad- cliff Mayor. New Yorh, May, 1816. JSe! 13; "Where property was stolen in the city of New York and found in the possession of the prisoner in Con- necticut, where he sold the property for the inadequate price of fifty-five dollars, and after being arrested, at dif- ferent tim6s made inconsistent statements in relation to the possession of the property ; these circumstances were held to be strong and conclusive against the prisoner. Bartholomew D. Armstead's case, 1 City Hall Recorder, 175. Before Riker, Recorder. New York, November, 1816. 14. To constitute larceny, there must be an intention to convert the property to the use of the felon?; and where property to an inconsiderable value appeared to have been taken, either for the purpose of retaliating for a real or supposed injury, or through wanton mischief, this was held not to be stealing. Eleanor Chrocheron and Patty Kemble's case, 1 City Hall Recorder, 177. Before Rad- cliff, Mayor. New Yorh, November, 1816. Mj™''' 15. "Where a prisoner steals an article in another state, and brings it into this state, an indictment cannot be supported for the offense in a court of this state ; but where it is rendered in the least doubtful whether such taking was in such other state, or on the high seas, the jury, in a clear case of guilt, disregarding technical niceties, will find the prisoner guilty. David McGuUough's case, 2 City Hall Recorder, 45. Before Radcliff, Mayor. New York, March, 1817. "isi?.' 16- Where two belonging to a ship's crew came in the night, in a boat, from the ship, and took away a quantity of boards belonging to an individual, from a wharf in the 636 ' LAECENY. city of New York, and carried them alongside of the shipy and others on board took them up the side, and after- wards, when detected and called on by an officer of the ship, eight of the crew come in a body, and several among them say, "sir, we are guilty," should the jury believe them all to be concerned, they must be found guilty ; though the persons taking the boards, or those individually de- claring themselves guilty, are not identified. John Bowe et al, 2 City Hall Recorder, 86. Before Rodman, Mayor. June, 1817. 17. A man by putting boards on a public wharf does not so far divest himself of the possession, that he cannot maintain a prosecution against him who takes them away feloniously. id. fs"}!; 18. A bona fide finder of an article lost, as a trunk containing goods lost from a stagecoach and found on the highway, is not guilty of larceny, by any subsequent act, in secreting or appropriating to his own use the article found. People v. Anderson, 14 J. R. 294. jS'm- preme Court, August, 1817. 19. To constitute larceny, the possession of the goods must have been acquired animo furandi in the first in- stance, an intention afterwards formed of converting them to the party's own use is not felonious. id. 20. Where a larceny is committed within the city of New York, and the prisoner is pursued into the state of New Jersey, and apprehended without legal authority and brought back, and is there arrested by virtue of a warrant issuing from the police, it was held, on the trial of an indictment for the offense, that the alleged viola- tion of the sovereignty of New Jersey would not be re- garded by the court, who would not look beyond the arrest by the police. Samuel Britton's case, 2 City Mall Re-^ corder, 119. Before Radcliff, Mayor. New York, Aupust, 1817. 21. It seems that, in such a case, any alleged violation of territorial rights, is a matter resting between the execu- LARCENY. 63T tive of the respective states, with which the court will not interfere. id. ?8°'7. 22. Where an ostler, having charge of a horse, is sent by the owner's agent with the horse to a man at a distance, who had entered into a negotiation for the pur- chase of the horse with the agent, and such ostler being expressly directed by the agent not to deliver the horse or receive the money, and it clearly appearing that the owner of the horse had never given him any authority to deliver or receive the money for him, nevertheless receives a check, draws the money, and converts it to his own use, it was left to the jury to judge, from all the circum- stances in the case, whether, at the time the prisoner took such horse from the agent, he intended to convert the avails thereof to his own use. Augustus M. Stones case, 2 Oity Sail Becorder, 157. Before Badcliff, Mayor. New York, October, 1817. 23. It seems that such fraudulent intent must exist in the mind at the time of taking the horse, to render such taking felonious ; nor will any subsequent evil intent render the taking felonious. id. 511^: 24. Where the cargo on the deck of a North river coaster was swept off in a violent gale, and, while floating in the water, was taken up by persons coming from the shore in boats, who brought it on shore, and afterwards concealed a part of such cargo, conveyed it to the city of New York in a secret manner, and converted the avails to their own use ; and it further appeared that the captain, having charge of the cargo, had the power of regain- ing possession, though, by reason of the situation of his vessel, he did not immediately attempt to regain such pos- session ; on the trial of an indictment against such persons for grand larceny, it was held that the captain, by such ac- cident, was not so far divested of the possession and prop- erty in such cargo, that a prosecution for that offense could not be supported. John Dayton and Thomas Dyer's 638 LABCENY. case, 167. Before Baddiff, Mayor. New York, November, 1817. 25. In such case it was left to the jury to judge, from all the circumstances in the case, whether the prisoners, at the time of taking up such property, intended to con- vert it to their own use, id. 26. It seems that, in such case, such property, in a legal point of view, was not lost by the* captain. id. 27. On the trial of an indictment for stealing a hog, it appeared that at the time the felony was committed the animal was dead and partly dressed ; held, that the de- scription in the indictment was sufficient, as the common acceptation of the name of property governs the descrip- tion in an indictment. Daniel Beed, John Lennington and Bobert Beed's case, 2 City Sail Becorder, 168. Be/ore Bad- cliff, Mayor. New York, November, 1817. fg^ia. 28. To convict a prisoner of larceny, it is essential for the public prosecutor to prove that the goods of him in whom the ownership is laid in the indictment were stolen. In this case the owner is not produced as a wit- ness, and a link in the chain of testimony is wanting. The ownership is material and should be proved. Joseph Ma- han, indicted with Abraham Anderson, 3 (My Hall Be- corder, 44. Before Baddiff, Mayor. New Yorh, February, 1818. ■^fi'JI' 29. To cut off and carry away lead from the roof of a building is not larceny ; but if, after the sepa- ration, the lead is left near the place, and subsequently carried away feloniously, this is larceny. (See 3 R. S. 5th ed. 974.) John's case, 3 City Hall Becorder, 58. Be- fore Colden, Mayor. New Yorh, April, 1818. 'i8i8.' 30, This was a case where the prisoner was con- victed on an indictment for petit larceny, in stealing an unmade pair oftrowsers; under objection it was held that the common acceptation of property, among artisans deal- ing in the article described, was sufficient; that the terms urfmade and unfinished were synonymous, Charles Moon's LARCENY. 639 case; dQity Hall Recorder, 92. Before Golden, Mayor. New York, June, 1818. fl?i: 31. Though the obligee voluntarily deliver to the obligor a bond, remaining due and unsatisfied, yet should it further appear that the obligee was an ignorant person, and the other practiced on her credulity in obtaining the instrument, and afterwards made use of divers evasions when called on by her for the bond or the money, and finally withheld it, falsely alleging that it had been paid to a third person; should the jury believe, from the circum- stances, that at the time he obtained the bond he har- bored a felonious intent, they may convict him. Jessie Bow's case, 3 City Hall Recorder, 127. New York, Sep- tember, 1818. Before Golden, Mayor. 32. "Where a lad, under the age of fifteen, who had been taken on trial as a clerk or attendant of a counting-house, but not intrusted with the care of the books, is tried on a charge for stealing a check which had been left in the book, filled up and signed by the principal, and a number of circumstances are produced on behalf of the prosecution, to show that such lad took the check with a felonious in- tent, and the lad's confession, which was proved on the trial, showed that he tore the check, which was not signed, out of the! book, and tore it up, and where, from other cir- cumstances in the case, it should be rendered doubtful whether he took the check, or, if he did, whether he had any agency in obtaining the money from the bank, it will be the duty of the jury to acquit him. George Lloyd's case, 3 Gity Hall Recorder, 132. Before Golden, Mayor. New York, September, 1818. i^f^: 33. Where a man, at the time he obtains goods at a store, alleges that if one of the two boys who sold him the goods will go with him to a certain place he would pay for the property ; and on the way represents they were purchased for a sick lady, who would pay, &c. — should he go off with the property and convert it to his own use, he is liable to a conviction for larceny, should the jury believe 640 LARCENY. that, at the time he acquired possession, he intended wrong- fully to deprive the owner of his goods. John O'Terre's case, 3 City Ball Recorder, 154. Before Golden, Mayor. New York, October, 1818. 34. In such case, the prisoner would not be liable to an indictment for obtaining goods by false pretenses ; the false representations not having induced a delivery of the goods. id. 35. A lad taken on trial, while in the employ of the principal, was sent by him to carry goods to a particular place ; but the lad took them to auction and had them sold, intending to convert the avails to his own use — ^it was held, that this was constructive larceny. Tobias McClure's case, 3 Oity Ball Becorder, 154. Before Golden, Mayor. New York, October, 1818. *isi?' 36. Where a man by representations, and with a felonious intent, obtained the delivery of goods, which the vendor sold to him for cash, this was held to be larceny ; otherwise, had he delivered them on a credit. Solomon Valentine's case, 4 City Ball Becorder, 33. Before Golden, Mayor. New York, March, 1819. 37. Where the prisonei* purchased a pair of shoes at a store for three dollars, and the vendor consented to repair a pair of boots, worth more than the shoes, and receive his pay for the shoes and repairing the boots when the prisoner called for them, and, without paying for such repairs, he obtained their delivery by false representations, and with a felonious intent ; it was held, that an indictment for steal- ing the shoes could not be maintained. id. 38. Where a man selected clothing at a store, and re- quested the storekeeper to send it to his lodgings, when he would pay cash on the delivery ; instead of which he imposed on the carrier, by first getting possession of the goods, and delivering therefor a bank check of no value ; and, when requested by the carrier to pay the money or redeliver the goods, laughed at him, and affected drunken- ness—this was held to be constructive larceny. Boyal A. LAECENY. 64X- Bowen's case, 4 City Rail Becorder, 46. Before Golden, Mayor. Neio York, March, 1819. ?s1*9. 39. If property is stolen, and but a part is found in possession of a prisoner, this shall be sufficient to charge him with the possession of the whole, should the jury be- lieve it must have been stolen at the same time. John Collins' case, 4 city Hall Becorder, 139, Before Golden^ Mayor. New Yorle, October, 1819. 40. Though there are articles of separation between husband and wife, yet the ownership of goods stolen from her must be laid in him. Henry Dixon's case, 4 Oity Hall Becorder, 142. Before Golden, Mayor. New York, Octo- ber, 1819. 55?J; 41. The prisoner was indicted for petit larceny at common law, and for embezzling under the statute. It appeared in evidence that the prisoner, a servant boy, who had been in the employment of S. for some time, was in- trusted by S. with a basket of cakes to sell and return the money, but did not return either the cakes, the money, or the basket. It was held, that to convict him of larceny, the jury must believe that at the time his master intrusted him with the property, he harbored the felonious intent to convert it to his owfi use ; and to bring the offender within the act in relation to embezzlement, the jury must be con- vinced that the prisoner converted the property to his own use, with intent to steal the same. John Langleifs case, 4 Gity Hall Becorder, 159. Before Golden, Mayor. New York, November, 1819. (See 3 E. S. 5th ed. 957.) 42. To constitute larceny, there must be technically a carrying away, and the prisoner must have had entire pos- session of the property. James Philip's case, 4 Gity Hall Becorder, 177. Before Golden, Mayor. New York, Novem- ber, 1819. 43. Where an article exposed for sale at a window was tied by a string, and the prisoner, intending to steal, took hold of such article, but neither cut nor broke the string, 41 642 LARCENY. it was held tliat this was not a sufficient asportation, or carrying away, to constitute larceny. id. 44. "Where J., near a crowd in whicli were C. and E., picked a man's pocket of his pocket-book, and immedi- ately made off and whistled, upon which C. and R. left the crowd and went with J. to a place remote from that where the pocket was picked, where the three were found dividing their supposed spoil, this was held by the jury sufficient evidence of a co-operation of the whole in the larceny. Bohert Johnson, William Gross and Eichard Richardson's case, 4 City Hall Recorder, 178. Before Col- den, Mayor. New Torh, November, 1819. Jm. 45. Where a prisoner, intending to steal fowls, broke open a hen-house in the night, and being caught by the owner in the hen-house, fled and carried away the padlock by which the door was secured, it was held that he could not be convicted of stealing the lock, if either through alarm, or from any other motive than with a felonious intent, he took it away. William Hadley's case, 5 Gity Hall Re- corder, 8. Before Golden, Mayor. New York, Feb. 1820. S.' 46. "Where several go to a place to steal, and one of them removes the goods to a convenient place for the others to carry off, where they remain some time and are then carried off by the coadjutor, he is guilty as a prin- cipal. McDowell and Farrel's case, 5 Gity Hall Recorder, 94. Before Jay, Recorder. New York, July, 1820. im: 47. One cannot be convicted of stealing property, the ownership of which is alleged in the indictment to be in himself and another person. Van Oleef's case, 5 City Hall Recorder, 117. Before Golden, Mayor. New York, September, 1820. 48. The court in this case said : It appeared from the testimony of C, that the prisoner is the same person in whom the ownership of the goods is laid in the indictment, and that the prosecutor and prisoner were partners, and actually the owners of the property. They were, therefore tenants in common, and as such were seized per my et per LAEOENY. 643 tout; that is, of the whole and a part ; and one partner had as much right to the whole as the other. This is, there- fore, a prosecution against a man for stealing his own goods. This indictment cannot he supported. id. S: 49. To constitute a constructive theft, the prisoner, at the very time he obtains possession of the goods, must harbor a felonious intent. If he harbored this intent at any other time subsequent to the taking, this would not be sufficient. John Eisrott's case, 5 City Sail Recorder, 137. Before Golden, Mayor. New York, November, 1820. 50. An infant under seven years is incapable of com- mitting crime. Between that age and fourteen, if it ap- pears on the part of the prosecution that the infant is possessed of sufficient capacity, he may be convicted ; but, as his age approximates the nearer to that of seven, the inference in his favor is the stronger ; and, as his age ap- proximates the nearer to fourteen, the influence in his favor on the score of infancy lessens. Garret Walker's case, 5 City Sail Recorder, 136. Before Golden, Mayor. New York, November, 1820. !['/^- 51. The least removal of property from the place where it is deposited, is a sufficient carrying away to con- stitute larceny. Scott's case, 5 Oity Hall Recorder, 169. Before Golden, Mayor. New York, December, 1820. 52. It appeared in evidence, in this case, that while K. was at the horse market, the prisoner secretly thrust his hand in K.'s side coat pocket containing his pocket-book and the money laid in the indictment. At first K. let him alone, but after he had lifted it up from the bottom of the pocket, and just as he was about carrying it away, K. put down his own hand on that of the prisoner, who re- linguished his hold of the pocket-book, when it dropped into its former place. The court, on the authority of the case of James Lapier, convicted at the Old Bailey, in 1784, of robbing Mrs. Hobart, decided that the evidence showed a sufficient carrying away to constitute larceny, id. S'. 53. To convict of grand larceny, the jury must be 644 LARCENY. satisfied that the prisoner stole property to the amount of more than twenty-five dollars, set forth in one and the same count in the indictment ; and they cannot take part of that sum contained in one count, and add it to a part in another count, where they find the amount of the prop- erty stolen in each count to be less. James McKenna'a case, 5 Oity Hall Becorder, 174. Be/ore Golden, Mayor. New York, January, 1821. 54. The rule is, where stolen property is found in the possession of a person, such person is bound to account for such possession satisfactorily, or he is to be considered as the thief. But that general rule has this qualification; he is bound to account satisfactorily for such possession, if, from the circumstances of the case, it is believed it is in his power, or tha^ he is in a situation to do so. Boberi Sale's case, 5 Oity Sail Becorder, 178. Before Colden, Mayor. New York, January, 1821. fsfi. 55. He who drives and has management of a sleigh, and suffers young persons, whom he carries out on a party of pleasure, or for stealing, to stop the sleigh and steal the property of others, before his eyes, and takes no meas- ure to restrain or prevent them, is as guilty as the thieves. Isaac Sherman's case, 6 Oity Hall Becorder, 2. Before Colden, Mayor. New York, February, 1821. 56. Consenting to the commission of a felony, is aiding, abetting and assisting. id. im! 57. The felonious intent is derived from the act ; and when one comes, as the pretended agent of another, and inquires of a person having charge of a quantity of iron for sale, the price, and whether the pretended princi- pal can have a specific quantity, and is informe'd that he can have such quantity at a certain price ; but without further conversation, such agent takes away the iron secretly and converts it to his own use ; it was held he was guilty of a felonious taking. David Bartrow's case, 6 City Hall Becorder, 56. Before Biker, Becorder. New York, July, 1821. LAECENY. 645 58. A large quantity of heavy property in a ship was Bold by one having charge of it ; and the understanding between the vend6r and vendee was, that when the prop- erty was delivered the payment should be made. The property was discharged from the vessel as preparatory to delivery, and put on the wharf, and while there a part was stolen ; it was held that the ownership of the prop- erty was properly laid in the vendor. id. Ksf: 59- To obtain possession of the goods of another by an artifice, promising to pay cash on delivery, but when delivered presenting an order with the acceptance of the other thereon, payable at a future time, is not larceny. Daniel Cochran's case, 6 Gity Hall Recorder, 62. Before Biker, Recorder. New York, September, 1821. 60. The facts in this case were, that the prisoner pur- chased twenty barrels of flour of "William Cornell, the clerk of George Carroll, for cash, but said he could not pay for the flour until he went home, and requested the clerk to send his purchase to a certain store in Pike street. The property was carried there, and the prisoner obtained possession of a part, but, instead of paying cash, he pre- sented to the clerk an acceptance of Carroll for eighty- nine dollars, payable in thirteen days thereafter. The clerk refused to receive this in payment, and the prisoner retained the property. The court ruled that it was clearly not a felony, because the flour was not taken with an intent to steal. . id. fglJ- 61. The possession of stolen goods, where the pris- oner does not account for such possession, raises but a presumpti6n of guilt, which may be rebutted by circum- stances. Daniel Bell's case, 6 Qity Mall Recorder, 96. Before Riker, Recorder. New York, December, 1821. 62. The declarations of the wife of any other person in the presence of the prisoner, not contradicted by him, is good evidence. id. S' 63. On a trial for larceny, where the stolen prop- erty is found in the possession of the prison'er, and he is 646 LAECENT. unable or refuses to give a satisfactory account how he came in possession of it, and proves no good character, it is always taken as evidence of his guilt. People v. Pres- ton, 1 Wheel. Cases, 41. Hiker, Mecorder. New York, September, 1822. ^isa' 64. In petit larceny all are principals, and if one counsels an apprentice to steal a box of candles of his master, and he does steal them, it is larceny in both. People V. Sheahan, 1 Wheel. Oases, 226. Hiker, Recorder. Ifew York, March, 1823. 65. Where on a charge of grand larceny against A. B., under fourteen years of age, and no proof of. capacity is given, the presumption is in his favor, and he is entitled to an acquittal. People v. McBride, 1 Wheel. Cases, 230. JRiker, Recorder. New York, March, 1823. ^: &&. In larceny of goods of partners, a contingent interest in the goods stolen, by one of the partners, is not sufficient to lay them as the goods of the partners, but should be laid in the indictment as the sole property of the partner who has the legal interest in them. People v. ■Romaine, 1 Wheel. Cases, 369. Riker, Recorder. New York, May, 1823. S^: 67. Stealing a promissory note was not felony at common law, and an indictment for such stealing should conclude contra formam statufi. People v. Cook, 2 Park. Crim. Rep. 12.' Warren Oyer and Terminer, July, 1823. Before Walworth, 0. J. . 68. On an indictment for a second offense of petit lar- ceny, charged to have been committed after a conviction for the first offense before a court of special sessions, the indictment must show that the court of special sessions had jurisdiction to try the first offense. id. 69. In setting out the proceedings of a court of inferior or limited jurisdiction, the indictment should always state enough to show that such court had jurisdiction of the case. id. S' 70. If a servant intrusted with the care of a horse LARCENY. 647 of his master, take it from the stable of his master with intent to run away with it, he is guilty of stealing. The horse in 'the stable of the master is in the actual possession of the master and not of the servant. People v. Wood, 2 Park. Orim. Bep. 22. Saratoga Oyer and Terminer, July, 1823. Before Walworth, 0. J. fs'g: 71. Where the prisoner came to a clothing store, and was measured for a coat, telling the tailor where he lived and agreeing to pay for the coat on delivery, and when the coat was delivered taking it from the clerk, and walking out through the back part of the house, going to Philadelphia, where he was arrested ; held to be construct- ive larceny. People v. Curtis, 1 Wheel. Cases, 536. Biker, Becorder. New York, August, 1823. mi. 72. On an indictment for petit larceny, where the examination of the prisoner, taken before the committing magistrate, was offered by the prosecution in evidence, and objected to, on the ground that it was not taken ac- cording to law, it was held that it was necessary to pro- duce the magistrate who took it, or his clerk, to prove the objection groundless. People v. Bobinson, 2 Wheel. Cases, 240. Biker, Becorder. New York, January, 1824. 73. Where it appeared the prisoner came into a store and told the keeper that a customer of the store had sent him for goods, and in consequence of such falsehood uttered by the prisoner the storekeeper delivered him the goods, it was held, that where a person obtains goods under a false pretense, which pretense is the inducement for parting with his property, such a case falls within the statute for punishing the obtaining of goods by false pre- tenses, and is not larceny. People v. French, 2 Wheel. Cases, 259. Biker, Becorder. New York, January, 1824. ?w^. 74- The true construction of the statute, (Sess. 42, ch. 246, § 4,) providing that every person who shall be a second time convicted of petit larceny, shall be adjudged to imprisonment in the state prison, is, that the second offense must be committed after a conviction for the first, 648 LARCENY. in order to warrant the enhanced penalty. People v. But- ler, 3 Oowen, 347. Supreme Court, October, 1824. 75. It is not enough that there be two successive petit larcenies by the same person, which are severally and suc- cessively prosecuted to conviction; though the second indictment charge the first conviction as a part of the crime. id. f/j^; 76. It is felony for a man who elopes with another's wife, to take his goods, though with the consent and at the solicitation of the wife. People v. Schuyler, 6 Cowen, 672. Supreme Court, February, 1827. f/s^: 77. The receiptor of goods taken by the sheriff in execution has not even a special property ; and a larceny cannot be laid of the goods as the property of the receiptor. Norton v. People, 8 Oowen, 137. Supreme Court, February, 1828. (See note of the reporter, at end of the case.) 78. Goods were feloniously taken and removed in one's absence by his servant, and under his direction, and after- wards the principal was present and aided in, secreting the goods. Held, that this was not larceny in the principal, who was a mere accessory. id. Jj?3 79. Larceny may be committed by a man stealing his own property, where the intent is to charge another with the value of it. People v. Palmer, 10 Wend. 165. Supreme Court, January, 1833, 80. When property is levied upon by a constable, he acquires a special property in it, and if stolen, it may be charged in an indictment or complaint as the property of the constable. id. {l^\ 81. A foreigner, committing larceny abroad, com- ing into this state and bringing the stolen property with him, may be indicted, convicted and punished in the same manner as if the larceny had been committed here. Peo- ple V. Burke, 11 Wend. 129. Supreme Court, January, 1834. (See 3 R. S. 5th ed. 984.) ?8°3^- 82. On the trial of an indictment for stealing foreign bank bills, it is incumbent upon the prosecutor to produce ^ LiiKCENT. 649 at least frima facie evidence of the existence of sucli banks and the genuineness of the bills. People v. Caryl, 12 Wend. 547. Supreme Court, October, 1834. 83. It would not be necessary, in such a case, to pro- duce the highest evidence of the existence of the banks, such as the proof of the original charters or acts of the government incorporating the companies ; but that proof that there were such banks de facto would be sufficient. And so, as to the bills, it was not necessary to prove^ by positive testimony, that the names subscribed to them were in the handwriting of the officers of the banks, but it should ,at least be proved by a witness familiar with the bills that he believed them to be genuine. id. ^^is\ 84. A party indicted for compounding a larceny, and agreeing to withhold evidence, cannot plead the acquit- tal of the person charged with the larceny in bar of his own conviction. People v. Buchland, 13 Wend. 592. Su- preme Court, May, 1835. (See 3 K. S. 5th ed. 969.) 85. In case of principal and accessory, the acquittal of the principal, it seems, would be admissible evidence in defense of the accessory, though it would not be conclusive in bar of a conviction ; but in the case of an indictment for compounding a crime, and agreeing to withhold evi- dence, the acquittal of the principal offender would not be competent evidence in defense. id. °°V 86. Where the personal property of one is, through inadvertence, left in the possession of another, and the latter animo furandi conceals it, he is guilty of larceny ; knowing it to be the property of another, his possession will not protect him from the charge of felony. People v. McGarren, 17 Wend. 460. Supreme Court, October, 1837. 87. It seems that where property is found in the high- way, and the finder knows the owner, or there be any mai-k upon it by which the owner may be ascertained, and the finder, instead of restoring it, converts it to his own use, such conversion will constitute a felonious taking. id. fglJ; 88. The finder of property who knows the owner 650 LAECENY. 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. People v. Swan, 1 Park. Orim. Itep. 19. Sara- toga Oyer and Terminer, December, 1839. Before Wil- lard, C. J. \^l 89. Where property, (e. g., a pocket-book containing bank bills,) with no mark about it indicating the owner, was lost, and found in the highway, and there was no evi- dence to show that the finder, at the time, knew who the owner was; held, that he could not be convicted of lar- ceny, though he fraudulently, and with intent to convert the property to his own use, concealed the same immedi- ately afterwards. People v. Oogdell, 1 Hill, 94. Supreme Court, January, 1841. 90. To render the finder of lost property liable as for a larceny, he must know who the owner is at the time he acquires possession, or have the means of identifying him instanter, by marks then about the property which the finder understands. It is not enough that he has general means of discovering the owner, by honest diligence, &c. id. 91. This appears to be the settled doctrine of the law, and was considered to be so by this court in The People v. Anderson, (14 J. E.. 294,) and not disregarded in The Peo- ple V. McOarren, (17 "Wend. 460.) This may seem sin- gular to one reasoning , upon principle ; but that is no argument for disregarding a settled rule of law. id. f^; 92. An indictment for petit larceny, charging it as a second oflTense, is good, though in respect to the first offense it merely alleges that the defendant was convicted, &c., without averring in terms a. judgment or sentence, and though it does not specify the property to which the first offense related, or the person from whom it was stolen. Stevens v. The People, 1 Hill, 261. Supreme Court, May, 1841. 93. Otherwise, however, if the indictment omits to aver that the defendant had been pardoned, or otherwise dis- LAEOENT. 651 charged from the first conviction "before the commission of the second offense. id. 94. One who obtains the bailment of goods, fraudulently intending to deprive the owner of his property, may be convicted of larceny, under an indictment alleging that he feloniously stole, took and carried away the property, &c. Gary and another v. S. &. W. Hotailing, 1 Hill, 311. Su- preme Court, May, 1841. 95. But if the transaction is made to assume the form of a sale, unless it comes within the statute as to false pre- tenses, the fraudulent vendee is shielded from the charge of taking, in a criminal sense, though it is otherwise in respect to the civil remedy. id. JjJl; 96. If the goods of A. be stolen by B., and after- wards they be stolen from B. by C, an indictment against the lattei- may allege the title to be in either A. or B., at the election of the pl«ader. Ward v. People, 3 Hill, 395. Supreme Court, July, 1842. 97. Semble, that the Revised Statutes have not made the offense of petit larceny a misdemeanor, but that it is still a felony, as at common law. id. 98. There are no accessories in petit larceny ; but all concerned in the commission of the offense are prin- cipals, id. 99. Ice, put away in an icehouse for domestic use, is private property, and, as such, the subject of larceny, id. M^4^' 100. Where goods have been obtained under a purchase, though by fraud and false pretenses, the party obtaining them cannot be convicted of larceny. Ross v. People, 5 Hill, 294. Supreme Court, May, 1843. 101. The case of Bex v. Campbell (1 Mood. Or, Oas. 176) overruled. Semble. id. \f^- 102. Though an indictment for petit larceny de- scribe it as a second offense, alleging a previous conviction of forgery, the prisoner may nevertheless be convicted of the larceny as a first offense. Palmer v. People, 5 Hill, 427. Supreme Court, July, 1843. 652 LARCENY. 1843. 103. A man entered a flouring mill through an open window without sash, crossed a floor, went up a ladr- der, and raised a trap-doof not fastened, and then stole some flour. Held not burglary, either at common law or under the Revised Statutes; .it was merely a larceny. People V. Fralick, Lalor's Supplement, 63. Supreme Court, 1843. ^g\l\ 104. Ice, when put away in an icehouse, for domes- tic use, becomes individual property, so as to be the sub- ject of larceny. Ward V. The. People, 6 Hill, 14:4. Cou/rt of Errors, December, 1843. 105. Under an indictment for larceny, alleging the goods to be the property of F., and to have been stolen from him, the prisoner may be convicted, though it should turn out that F.'s possession was acquired by theft; and hence the inquiry whether F. had thus acquired possession, is irrele- vant, id. 106. There are no accessories in petit larceny ; but all concerned in the commission of the oflfense are prin- cipals, id. J^g' 107. Although every larceny includes a trespass, and cannot exist unless there has been a taking from the possession of another, yet, where one having only the care, charge or custody of property for the owner, converts it, animo furandi, it is larceny ; the possession in judgment of law remaining in the owner until the conversion. People V. Call, 1 Denio, 120. Supreme Court, May, 1845. 108. So, where the holder of a promissory note, having received a partial payment from the prisoner, who was the maker, handed it to him to indorse the payment, who took it away and refused to give it up ; held, that the possession remained in the owner, the prisoner acquiring only a temporary charge or custody for the special pur- pose ; and that his subsequent conversion, the jury having found it felonious, was larceny. id. 109. In such a case, it is not essential that a felonious LAECENY. 653 intent should exist when the prisoner received the note. It is enough if he converted it animo furandi. id. f^l' 110. A receipt for the payment of a debt is the sub- ject of larceny. Per Beardsley, J. People v. Loomis, 4 Denio, 380. Supreme Court, May, 1847. 111. But stealing a receipt or other instrument from the hands of the party whose act it is, it never having taken effect by delivery, is not larceny. id. 112. Therefore, where a debtor procured his creditor to sign a' receipt for the debt, under a pretense that he was about to pay him, and then took it from him with a crim- inal intent, and without paying the money ; held, that he was not guilty of larceny. id. Y^l[ 113. The statute makes "bank notes" and not " bank bills " the subject of larceny. But where the prop- erty stolen was called in the indictment "bank bills," it was held sufficient, bank notes being commonly called and known as bank bills. Low v. The People, 2 Park. Orim. Bep. 37. Supreme Cowrt, Albany General Term^ December, 1848. 114. It is not sufficient, in an indictment, to describe the property stolen as " sixty dollars in bank bills, current money, of the value of sixty dollars," or " bank bills, being current money of the state of New York, of the value of sixty dollars." The number of the bills stolen should be stated. id. 115. On the trial of an indictment for larceny, alleged to have been committed in stealing bank notes, the jury must be satisfied from the evidence, of their genuineness ;. and where the court refused to charge that the prisoner ought to be acquitted, unless the evidence showed their genuine- ness, it was held to be erroneous, and the prisoner having been convicted, the conviction was reversed and a new trial ordered. id. ^^^; 116. At 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 dogq as 654 LARCENY. property, by subjecting them to taxation, and define lar- ceny so as to cover the taking and carrying away of all kinds of property, except the freehold and things which are parcel of it. People v. Moloney, 1 Parh. Crim. Rep. 593. ' At Chambers, November, 1854. Before Bean, Jus- tice. 117. "Where a person was indicted for grand larceny, in stealing a Newfoundland dog of the value of $100, the property of E. T., and arrested on a warrant issued on such indictment, after hearing on habeas corpus before a justice of the Supreme Court at chambers, his discharge was refused. id. S. 118: The statute declaring a second offense of petit larceny to be punishable in the state prison, is not appli- cable to a case in which the first conviction took place in another state. People v. Gcesar, 1 Parh. Crim. Sep. 645. Columbia Oyer and Terminer, January, 1855. Before Parker, Justice. 119. And where a defendant pleaded guilty to an in- dictment charging petit larceny as a second offense, and it appeared by the indictment that the first offense was com- mitted and the first conviction had in the state of Massa- chusetts, it was held that the defendant could only be punished for simple larceny. id. 120. Form of an indictment for petit larceny charged as a second offense. id. ^gjl' 121. The rule that larceny cannot be committed of goods accidentally lost, and of which the finder really supposes that the owner cannot be ascertained, is not applicable to cattle which have strayed from the inclosure of the owner upon the public highway ; and where cattle were found upon the public highway, under such circum- stances, and were driven by the finder to market, with the intention of converting them to his own use, he was ad- judged guilty of larceny. People v. Kaatz, 3 Park. Grim. Bep. 129. Supreme Court, Dutchess General Term, April, 1856. LAKCENY. 655 122. The presumption of dereliction, applicable to lost inanimate chattels, does not apply to stray domestic ani- mals, as to which there is always supposed to be an animus revertendi, (an intent to return.) id. f^J: 123. Where, on a trial for larceny, it appeared that the property stolen had not come to the possession of the prisoner, but had been received by C. on the order of the prisoner, and there was evidence tending to prove that C. was a confederate with the prisoner in the transaction, but C. testified to his entire innocence, and the judge charged the jury that they were to determine whether C. was an innocent agent of the prisoner in taking the property, and that if they so found, and found also a felonious intent on the part of the prisoner, they should find him guilty ; but that if they should come to the conclusion that C. had a knowledge of the prisoner's felonious intent, then they should find the prisoner not guilty, on the ground that he was in that case only an accessory before the fact : Held, on review, that the charge was correct. People v. McMur- ray, 4 Park. Grim. Rep. 234. Superior Court of Buffalo, General Term, December, 1856. 124. A simple receipt is not the subject of larceny under the statute; otherwise of an " accountable receipt." id. 125. On the trial of the defendant for petit larceny, be- fore a court of special sessions, the complainant testified that he had a certain number of sheep, and had counted them a few days before — on a particular morning he missed one of them, and then went on to identify the skin, which the defendant had sold, as that of the lost- sheep. Held, that this was sufficient evidence to show that a lar>- ceny had been committed. Barringer v. The People, 14 N. Y. Hep. 593. Court of Appeals, December, 1856. ll^j- 126. It is sufficient in an indictment for petit lar- ceny, charged as a second offense, to aver, generally, that the court of special sessions, before which the defendant was convicted, had full and competent power and author- ity in the premises, without setting forth the particular 656 LARCENY. facts showing jurisdiction. People v. Golden, 3 Park. Orim. Rep. 330. Supreme Cowt, Broome General Term, January, 1857. 127. An oniission in such indictment to state the facts which show jurisdiction is only a formal defect, which is cured by the statute ot jeofails, and is not available on demurrer. id. f,|?; 128. J., by falsely representing to S. that he had sold for S. a quantity of goods to R. H. & Co., induced S. to send the goods to the store of R. H. & Co. J. then went to R. H. & Co., with whom he had in fact no dealings on account of S., and informed them that the goods were sent there by mistake, and induced them, by such misrep- resentation, to deliver the goods to him, and he took the goods away from the store of R. H. &. Co. and converted them to his own use, held that this was larceny, and not simply obtaining goods by false pretenses. People v. Jaclt- son, 3 Park. Grim. Rep. 590. Swpreme Cowrt, New York General Term, December, 1857. 129. Upon the trial of an indictment for grand larceny, it is competent for the people, for the purpose of showing the whole transaction, to give evidence of the taking, by the prisoner, of property insufficiently described in the indict- ment, it containing a sufficient description of other prop- erty of a value adequate to make the offense grand larceny. People V. Haskins, 16 N. Y. Rep. 344. Court of Appeals, December, 1857. 130. "What is a sufficient description of coin and bank notes, stated per Denio, Gh. J. id. 131. A prisoner may be convicted of burglary or larceny in any county into which he carries the goods stolen by means of burglary. In the indictment for simple larceny, it is sufficient to allege the taking to have been in the county where the indictment is found ; but it seems that an indictment for the burglary, in a county other than that where the burglarious entry was made, must set out the LAKCENY, 657 facts specially, to bring it within the statute. (2 R S. 727, § 50 ; 3 R. S. 5th ed. 1019.) id. 132. The case of Manley v. The People (3 Seld. 295) explained, and the report corrected. Per Denio, Ch. J. id. 133. Where an accomplice and his wife are witnesses against the prisoner, it is not error in the judge to instruct the jury that they may take the testimony of the wife into consideration, as corroborating that of her husband, the ac- complice, id. {lli_ 134. A note, though payable in specific articles, is the subject of liarceny, within the statutory definition. People V. Bradley, 4 Park. Grim. Bep. 245. Superior Court of Buffalo, Criminal Term, January, 1858. Before Clinton, J. ^mt 135. The separation and conversion to his own use by a carrier, without the assent of the owner, of sundry bars of pig iron, part of a larger number which had been delivered to him for transportation' and loaded upon his canal boat, is larceny and not embezzlement. Nichols v. The People, 17 N. Y. Bep. 114. Court of Appeals, March, 1858. 136. "Where the commodity, apart of which is separated by the carrier from the rest, is transferred in commerce by weight, and not by count, the severance is a trespass which determines Che priority of contract, and a breaking of bulk equivalent to the opening of a bale or package. id. fm 137. A dog, though propertyj so as to enable the owner to maintain an action of trespass for an unlawful taking, was not the subject of larceny at the common law; but under the provisions of the statute declaring all per- sonal property the subject of larceny, an indictment for stealing a dog will now be sustained in this state. People V. Campbell, 4 Parle. Crim. Bep. 386. New Yorh General Sessions, September, 1859. Before Bussetl, 0. J. flsPj- 138. Petit larceny, as a first offense, is not a felony which disqualifies the convict as a witness^ Shay v. The 42 658 LAECENY. People, 22 N. Y. Bep. 3lt. Court of Appeals, September, 1860. 139. The case of Ward v. The People, (3 Hill, 398,) The People V. Adler, (3 Park. Crim. Eep. 249,) and Keeper y. Hardbech, (3 Duer, 373,) so far as they may conflict here- with, considered and disregarded. id. \^l: 140. Under the statute, (Laws of 1860, oh. 508, § 33,) which declares that in cases of larceny in the city of Ifew York, by stealing, taking or carrying away from the per- son of another, the offender may be punished as for grand larceny, although the value of the property taken shall be less than $25, the court of special sessions in the city of New York have no Jurisdiction to try and convict of petit larceny, or to hear or decide such a case at all. It is its duty, in such a case, to cause the complaint to be brought before the grand Jury. People v. Riley, 21 Mow. Prao. Pep. 451. Supreme Court, Special Term, July, 1861. Be- fore Leonard, J. (This case is also reported in 12 Abb. Prac. Rep. 479.) fjlJ; 141. Upon an indictment containing nine counts for embezzlement of different grades, and others for lar- ceny, a verdict, " guilty of embezzlement," is equivalent to an acquittal of the larcenies charged, and a bar to any subsequent prosecution. Guenther v. The People, 24 N. T. Bep. 100. Court of Appeals, December, 1861. 142. One of the counts for embezzlement being good, the verdict means that he is guilty of the offense as charged therein. id. 143. An entry by order of the court after the jury was discharged, in amendment of the verdict as first recorded, that " the jury find the prisoner not guilty of the larceny charged," is unwarranted and nugatory. id. ^S; 144. The word "way," in section thirty-three of the " act in relation to police and courts in the city of New York," (ch. 508 of I860,) is enabling, and not mandatory. Williams v. The People, 24 N, Y. Bep. 405. Court of Appeals, June, 1862. LAEOENY. 659 145. Under an indictment charging the larceny of several Bums, amounting to more than $25, under said ,section 33, it being proved on the trial that the prisoner stole from the person of the prosecutrix seven dollars, the prisoner has a right to have the jury instructed to find whether the sum stolen was more or less than twenty-five dollars, for the prisoner might, if the jury had found the, sum was twenty-five dollars or under, in the discretion of the court, have been punished by fine and imprisonment only. id. '^iSsi 146. Where a person is tried on an indictment charging him with stealing from the person property of more than twenty-five dollars in value, and it is proved on the trial that the property stolen from the person was of less than twenty-five dollars in value, it is erroneous for the court to refuse to charge that the defendant can be found guilty of petit larceny only, and to charge that if the defendant stole from the person the sum of eighteen dollars only, he may be found guilty of the offense charged , in the indictment. Rhodihan v. The People, 5 Park. Grim. Pep. 395. Supreme Court, New York General Term, May, 1863. 147. It is the duty of the court, in such case, to instruct the jury to find whether the property stolen from the per- son was worth more or less than twenty-five dollars, id. (This indictment was found under the 33d section of chap. 608 of 1860, which was applicable only to the city of New Tork ; but, by the 2d section of chap. 374 of 1862, the same law was made applicable to the entire state.) °^5- 148. Where two are jointly indicted for committing a larceny, and one of them pleads guilty of an attempt to commit a larceny, and is sentenced, the other defendant may be lawfully tried for the larceny, and on conviction be sentenced to suffer the penalty of the law therefor. Klein ' V. The People, 31 N. Y. Pep. 229. Court of Appeals, De- cember, 1864. ^^' 149. In an indictment for larceny, a count charging that a certain number of written promises for the payment 660 LAEOENY. of money, called bank bills, of the value and denomina- tion of five dollars each, were feloniously stolen and taken from the person of D. M., without alleging that the act was done in the " night time," and without alleging that the property was of the value of more than twenty-five dollars, is good as charging grand larceny, under the act of 1862, 9hapter 374, section 2. People v. Fallon, 6 Park. Grim. Rep. 256. Supreme Court, Erie General Term, May, 1865. 150. Qn a trial of an indictment for stealing a bank bill from D. M., it is not error in the court to refuse to charge that the fact that the bill had been paid to him for serv- ices and received by him in payment, was no evidence that the bill was genuine or of the value of the sum which it purported to represent. id. 151. The presumption in such case is in favor of the genuineness of the bill, and the onus of proving the con- trary rests upon the defendant. id. ^^l\ 152. In order to convict of larceny, the jury must be satisfied that the taking of the property was with a felonious intent; it is not sufficient to find that, after the taking, it was converted to the use of the prisoner with a felonious intent. Wilson v. The People, 39 N. Y. Rep. 459. Court of Appeals, September, 1868. 153. It is necessary to find .that the intent to steal ex- isted at the time of the taking — "cepit animo furandi" — he took with an intent to steal. id. 154. The rule, established by aq unbroken current of decisions in England and this country, is the one laid down by Lord Coke, as follows : " The intent to steal must be when it cometh to his hands or possession ; for, if he hath the possession of it unlawfully, though he hath ani- mum furandi afterwards, and carrieth it away, it is no larceny." id. 155. Cases cited in the opinion of the court, by Mason, J., sustaining the rule. id. MALTCIOUS MISCHIEF. 661 Malicious Mischief. ^l^\ 1. Malicious miacMef done to any kind of property is a misdemeanor, and the party doing the injury may be prosecuted criminally. Loomis v. Edgerton, 19 Wend. 419. Supreme Court, May, 1838. 2. In this case it was alleged that the plaintiff had "willfully, wickedly, maliciously, and in a secret manner, seized and broken in pieces a cutter belonging to the defendant. id. ^: 3. An indictment charging that the defendant, "with force and arms, unlawfully, willfully and maliciously did break in pieces and destroy two windows in the dwelling- house of M. C, to the great damage of the said M. C. and against the peace," &c., does not set forth an offense in- dictable by the laws of this state. Kilpatrich v. The Peo^ pie, 5 Denio, 276. Supreme Court, May, 1848. 4. An act which would otherwise be only a private tres- pass, does not become indictable by being charged to be done with force and arms ; nor by being alleged to have been committed maliciously, or without claim of right, or without any motive of gain. . id. 5. Whether if the breaking of the windows in this case had been charged to have been done secretly, or in the night time, the act would have been indictable. Quere, Per Beardsley, 0. J. id. 6. The indictment alleges that the act was done " against the form of the statute in such cases made and provided ;" but we have no such statute as this averment supposes, and the indictment must be sustained by the common law or not at all. ' id. (The legislature in 1853, ch. 573, § 1, passed the follow- ing : " Any person who shall maliciously or wantonly de- stroy, injure or deface any monument or work of art, building, fence, or other structure, or destroy or injure any ornamental tree, shrub or plant, whether situated on any private ground or on any street, public place, public or 662 MALICIOUS MISCHIEF. private way, or cemetery, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished," &c. (3 R. S. 5th ed. 981.) 7. The cases in which indictments have been sustained for maliciously killing or wounding domestic animals, de- pend upon features peculiar to such offenses, as the de- pravity of mind, and the cruelty of disposition, which such acts evince. id. l^ll 8. The willful trespasses over which jurisdiction is given to courts of special sessions, by the act of 1857, ch. 769, § 1, (3 R. S.5th ed. 1000.) do nt)t include cases of "malicious mischief;" they refer only to such willful tres- passes upon real estate as are made indictable and punish- able as. misdemeanors by statute. Wait v. Green, 5 Park. Crim. Eep. 185. Supreme Court, Dutchess General Term, July, 1861. 9. A malicious act, however wanton or dangerous, which does not result in any destruction or even injury to property, does not amount to the misdemeanor known as " malicious mischief." id. S: 10. An indictment for unlawfully, willfully, mali- ciously and mischievously driving the horses attached to a freight car, on the fourth avenue. railroad, against another railroad car, then and there being, and then and there injuring the last mentioned car, he so intending, &e., does not set up or include the common law offense of malicious mischief. The defendant can be considered as guilty of nothing beyond a hurtful trespass. Williams v. TJie People, 24 How. Frac. Rep. 350. Supreme Court, New York Gen- eral Term, November, 1862. 11; A trespass upon property, although it may be will- ful and malicious, is not within the offense of malicious mischief at common law, unless it was in the night time or secretly, without the hope of gain; or unless it consisted of some act of cruelty to domestic animals. id. ^^i\ 12. The wanton, malicious and secret destruction of the personal property of another is a misdemeanor at MISDEMEANOE. 663 the common law. People v. Moody ^ 5 Parle. Crim. Bep. 568. Supreme Court, Broome General Term, May, 1864. 13. The prisoner was indicted for having, in the day- time, maliciously and clandestinely, and in a spirit of wan- tonness and revenge, cut, mutilated and injured the harness of D. T. The indictment was quashed at the sessions, on the ground that it did not charge any criminal offense, either at common law or by the statute. On error the judgment was reversed, the court holding that the offense charged amounted to malicious mischief, a,nd was punishable by the common law as a misdemeanor. id. 14. The case of The People v. Kilpatrick, (5 Denio, 277,) commented on and distinguished. id. 15. Form of an indictment for malicious mischief, and of an entry in the record quashing the same. ic?. Misdemeanor. ^J3i!" 1, The court of general sessions of the peace has power to discharge a jury, without the consent of the pris- oner, on an indictment for a misdemeanor. People v. Den- ton, 2 Johnson's Cases, 275. Supreme Court, April, 1801, (Kent) J., in this case, decided that an inspector of elec" tion could be indicted and punished at common law, upon the ground that every willful neglect of a public trust, affecting the community, is an offense at common law ; the other judges expressing a doubt. But our statute- see 3 K.. S. 5th ed. 979 — relieves us of all doubt on that subject.) Jfj"g 2. To keep and permit hogs to run at large in the heart of a populous city, is a nuisance and misdemeanor at common law, and on the trial of such a case it is com- petent for the public prosecutor to prove particular acts, of a mischievous nature, committed by other hogs. Louis Lash- ine and Christian Harriot's cases, 4 City Hall Becorder, 26. Before Golden, Mayor. New YorTc, January, 1818. ll^^ 3. To break the seal and open a letter containing the secrets or private business of another, is a misdemeanor 664 MISDEMEANOR at common law; but to publish the contents of sucb a letter, wbicli may innocently come into the possession of the publisher opened, is not a public offense. (See 3 E. S. 5th ed. 976.) Mordecai M. Noah's case, 3 Oity Hall Becord- er, 13. Before Radeliff, Mayor. New Yorh, February, 1818. ^il'iil"' 4. An intelligence office-keeper, who recommends a young female stranger to a house of ill fame, knowing it to be such, is indictable for a misdemeanor at common law, though such stranger be herself a prostitute. Francis Wittenburgh's case, 3 City Hall Becorder, 49. Before Bad- cliff, Mayor. New York, March, 1818. f^i; 5; By the 15th section of the statute of the United States, concerning "post-offices and post roads," it is enacted, that " if any person shall take any letter or packet not containing any article of value, or evidence thereof, out of a post-office, or shall open any letter or packet which shall have been in a post-office, or in the custody of a mail carrier, before it shall have been delivered to the person to whom it is directed, with design to abstract the correspondence, or to pry into another's business or secrets ; or shall secrete, embezzle or destroy any such mail letter or packet ; such offender, upon conviction, shall pay for every such offense," &ic. It was held, that the jurisdiction of the court of general sessions over an offense of this de- scription was not ousted by this act ; such offense being a misdemeanor at common law. (See 3 R S. 5th ed. 976.) Charles Gill's case, 3 City Hall Recorder, 61. Before Biker, Becorder. New York, May, 1818. ^i™8.' 6. To write and deliver, or cause to be delivered, a letter or challenge to another, calculated and intended to incite and provoke him to fight a duel, is a misde- meanor at common law; and the statute did not take away the common law remedy, and that the intent was a matter for the jury'. George F. Norton's case, 3 City Hall Becorder, 90. Before Golden, Mayor. New York, June, 1818. (See 3 R S. 5th ed. 966.) 7. To treat a dumb beast, under the care of a man, Oct. 1818. MISDEMEANOE. 665 with cruelty, is a misdemeanor at common law ; but where a cartman struck his horse hut a single blow with a club, which deprived the animal of life, under circumstances which evinced that the killing was not the result of de- liberation, it was held that an indictment for cruelly beat- ing the horse was not maintained. Isaac Ross' case, 3 City Hall Recorder, 191. Before Golden, Mayor. New York, October, 1818. "JlJIJl"- 8. The possession of a die or other instruments for coining counterfeit Spanish dollars, with an intent to coin such money, is a misdemeanor at common law. A Spanish dollar is as much the currency of the country as an eagle; and both of them are rendered current by a statute of the United States. John Burke Murphy's case, 4 City Sail Recorder, 42. Before Colden, Mayor. New York, March, 1819. ^?J: 9. Previous to the trial of a woman as a common scold, the district attorney need not point out particular instances of scolding upon which he intends to rely. Charlotte Greenwault and Sarah Moody's cases, 4 City Hall Recorder, 174. Before Colden, Mayor. New York, November, 1819. 10. A prosecution may be sustained against a common scold. The offense, , in principle, was the same as for a common nuisance. It must appear to be the common disturbance of the neighborhood. But where there ap- peared to be an inveterate hostility in a particular neigh- borhood against a woman, and violent recriminatory abuse appeared to have been exercised as well on behalf of the neighboring women towards her as on her part towards them, however abusive, scandalous and clamorous may have been her language towards such women, a prosecu- tion against her as a common scold cannot be maintained; violent women quarrels will not render them indictable as common scolds. id. 11. The defendant, a grocer, was indicted folr a misde- meanor at common law, in selling by false weights and 666 MISDEMEANOE. measures, and it appeared in evidence on the trial that the first parcels alleged to have been sold short of their true weight, were carried from the city of ISew York to "Westchester county, and weighed by the prosecutor and his wife with a pair of steelyards, and the other parcel in P.'s store ; held, in a prosecution for selling by false weights and measures, it is incumbent on the prosecutor to show that the articles sold by the defendant, alleged to be short of weight or measure, were weighed or measured by the standard weight or measure, or that the steelyards or P.'s weights were of the standard weight. William W. Winan's case, A City Hall Recorder, 176. Before Golden, Mayor. New York, November, 1819. S' 12. To have in possession instruments for coining, with an intent to coin counterfeit money, is a misdemeainor at common law. John J. Dorsett's case, 5 Oity Mall Re- corder, 77. Before Golden, Mayor. New York, May, 1820. S. 13. To attempt to fire a house is a misdemeanor at common law. Miza Orr's case, 5 Oity Hall Recorder, 181. Before Golden, Mayor. New York, January, 1821. (See 3 R. S. 5th ed. 983.) ^^ 14. The defendants were indicted separately, for misdemeanors at common law, for cruelty to beasts. It appeared in evidence that the defendants, having each a milch cow with a calf at her side for sale, tied the tongues of the respective calves near the root, with a small cord, to prevent their sucking ; and, by this means, giving the bags of the cows an appearance of being full of milk while suckled by the calves. There was some doubt about Mor- ris, and he was acquitted; but Clark plead guilty, and was fined $20 and costs. Morris and Glark's cases, 6 Oity Hall 'Recorder, 62. Before Riker, Recorder. New York, September, 1821. 15. A common scold, on conviction, may be punished as for any other misdemeanor. Gatharine Field's case, 6 Gity Hall Recorder, 90. Before Riker, Recorder. New York, September, 1821. MISDEMEANOE. 667 16. In this case it appeared in evidence that the defend- ant scolded at every person with whom she had any com- tnunication, when she was not scolding at her husband ; that she was a general disturber of the neighborhood, and that she scolded at all times, not excepting Sundays. The jury found her guilty, but recommended her to mercy. She was fined six cents and costs. A few days afterwards it was represented to the court by her counsel that it was understood by them that a fine only was imposed. The recorder observed that it had been represented to him that, on a publication of her case in one of the public papers, she had been at the office and scolded the printers ; and he saw no reason why the clerk of the court and the district attorney ought not to take their fees in the same coin. The costs were remitted. id. l^; 17. To put cow-itch upon a towel, and in a tub of water, for the purpose of being used, and it injures a per- son, is a misdemeanor, and an indictment may be sustained. It comes within the class of cases that had been frequently punished by indictment ; such as poisoning animals, throw- ing vitriol on another's clothes, &c. It was a perpetration of mischief, indicating a malicious intent, which it was a matter of public concern to repress and punish, and was therefore indictable. People v. Blake, 1 Wheel. Oases, 490. Biker, Becorder. New York, July, 1823. {"jII- 18. Eorging a receipt for a note of hand, " which when paid will be in full," &c., does not come within the provisions of " the act to prevent forging and counterfeit- ing," passed April 2, 1813 ; but it is a misdemeanor at common law. People v. Eoag, 2 Park. Grim. Bep. 36. Oneida Oyer and Terminer, December, 1823. Before Wal- worth, 0. J. fg^jj- 19. The carrying of a watch about the person of a defendant in an execution, and refusal by him to deliver it to the officer, is not an ofiense within the meaning of the statute declaring the secreting of property, so as to prevent its being made liable for the payment of debts, a misde- 668 MISDEMEAE"OB. meaner. People v. Morrison, 13 Wend. 399. Supreme Court, January, 1835. (See 3 R S. 5th ed. 133.) 20. A party who violates the provisions of the Revised Statutes in respe'ct to excise and the regulation of taverns and groceries, may be indicted and Jined for such violation, notwithstanding that he has been sued by the overseers of the poor of the town where the offense was committed, and the penalty prescribed by the statutes collected from him. People V. Stephens, 13 Wend. 341. Supreme Court, Janu- ary, 1835. 21. Where a statute creating an offense imposes a spe- cific penaltt/, and also declares that the offense shall be a misdemeanor punishable by fine and imprisonment, the offender is subject to indictment in like manner as he would have been had the offense been a misdemeanor at com- mon law. id. ^^] 22. On the trial of a party for a misdemeanor, a juror may be withdrawn, on the application of the public prosecutor, after the jury have been impanneled and sworn. People V. Ullis, 15 Wend. 371. Supreme Court, May, 1836. 23. J. E., T>. E. & D. G. H. were put on trial for assault and battery and riot committed by them. After the district attorney rested, the counsel for the defendants offered to prove, that on the day preceding the trial, two of the de- fendants, J. E. & D. G. H., were put on trial on the same indictment, and after evidence had been given on the part of the prosecution, the court, on the motion of the district attorney and against the consent of the defendants, with- drew a juror, for the purpose of enabling the district attor- ney to bring on the trial against the three defendants at the same time ; which evidence was refused to be received. Held, that the power of the court as to the withdrawal of a juror after the jury was impanneled and sworn, in the case of a misdemeanor, seems to be put on the same footing as in civil cases, in which it rests very much in the exer- cise of a sound discretion. The same indulgence is not extended in this court to all criminal cases not capital, idi. MISDEMEANOE. 669 Oct. 1839. 24. la respect to misdemeanors, where part of the offense is committed in one county and part in another, the rule of law is that the veniie may be laid and the trial had in either county. People v. Bathhun, 21 Wend. 509. 'Supreme Court, October, 1839. i^^: 25. The officers before whom oaths and affidavits may by law be taken, by 2 R. S. 284, § 49, (see 3 R. S. 5th ed. 474,) are hound to administer the same when requested, the word may in that section being equivalent to shall, and a refusal to do so subjects them to indictment for a mis- demeanor. People V. Brooks, 1 Denio, 457. Supreme Court, July, 1845. 26. To render a neglect of duty by a public officer will- ful, within the statute making such neglect a misdemeanor, (2 R. S. 696, § 38 ; see 3 R. S. 5th ed. 979,) it is only neces- sary that it should appear to be intentional; and it is no defense that the officer believed he was not bound to do the act, and was not guilty of bad faith in refusing. id. 27. A justice of the peace before whom a cause is pend- ing, is bound, on the defendant's request, to swear him to an affidavit prepared for the purpose of procuring the cause to be discontinued, on the ground of the justice being a material witness for the defendant; and his refusal to do so is a misdemeanor, whether the affidavit, as drawn, is sufficient for the purpose or not. id. J']^ 28. AH. those who aid or abet the commission of a misdemeanor are principal offenders. People v. Erwin, 4 Denio, 129. Supreme Court, January, 1847. f*]>g 29. A magistrate who acts as such, without having first taken the oath of office, is guilty of a misdemeanor, punishable by fine or imprisonment, and forfeits his office. Weeks v. Ellis, 2 Barh. 320. Supreme Court, Montgomery General Term, January, 1848. 30. Under the Revised Statutes (1 R. S. 665, §28 ; 2 R. S. 5th ed. 929,) it is a misdemeanor to publish in this state an account of a lottery to be drawn in another state or ter- ritory, although such lottery be authorized by the laws of, 670 MISDEMEANOR. the place where it is to be drawn. Qharles v. People, 1 Oomstock, 180.- Court of Appeals, January, 1848. Ps^i?: 31. After the dissolutidn of a marriage for adultery, if the guilty party marries again he can be punished under section 54, vol. 3, 5th ed. 980, of the Eevised Statute, as for a misdemeanor. People v. Hovey, 5 Barb. 117. Sv/preme Court, Monroe General Term, Becemher, 1848. ^^fg, 32, Where a warrant omits to state the value of the property stolen, the offense charged will be deemed petit instead of grand larceny. Payne v. Barnes, 5 Barh. 465. Supreme Court, Schenectady Greneral Term, January, 1849. ^1854.' 33. It is only where a regulation, of a board of health has been made and published, that a person can be convicted under the fourth section of the act, of a misde- meanor, for its violation. Beed v. The People, 1 Park. Grim. Bep. 481. Supreme Court, Cayuga General Term, June, 1854. (See 2 R. S. 5th ed. 54.) S. 34. Where a defendant is convicted of a misde- meanor under the statute, (or any other statutory offense,) the judgment of the court thereon for sentence must state the particular offense constituting the misdemeanor or other crime. In the matter of the application of John Cavanaugh, 10 How. Prac. Bep. 27. Supreme Court, af Chambers, October, 1854. Before Dean, J. 35. That is, it is not enough for the judgment to state that the defendant was convicted of a misdemeanor, sim- ply, but it must state what the offense was which con- stituted the misdemeanor, whether a violation of duty as a commissioner of excise, or gaming, &c. id. f^"5. 36. It is not a misdemeanor, under the statute, for an innkeeper to sell spiritous liquors, to be drank on the premises on Sunday, to persons not lodgers or travelers. Van Zant v. The People, 2 Park. Crim. Bep. 168. Supreme Court, Kings General Term, January, 1855. (But see Session Laws of 1857, ch. 626, § 21 ; 2 E. S. 5th ed. 944.) fj'Sf: 37. A person arrested under a warrant for a mis- demeanor, in violating the act entitled "An act for the MISDEMEANOE. 671 prevention of intemperance, pauperism and crime," passed April 9, 1855, when brought before the magistrate, has a right to give bail for his appearance at the next court of sessions, or the next criminal court to be held in the county. People v. Kennedy, 2 Park. Crim. Bep. 312, Supreme Court, at Chambers, August, 1855. Before Park- er, J. 38. That right, conferred'in such cases by the provisions of the Revised Statutes, is not taken away either by ex- press terms or by implication, by the fifth section of said act. id. 39. A provision denying to a person so arrested the right to give bail, and compelling him to be tried for said offense by the magistrate as a court of special sessions, would be unconstitutional and void under art. 1, sec. 2 of the state constitution. id. 40. The law in reference to an examination applica- ble to other cases of misdemeanor, is alike applicable to offenses for selling intoxicating liquor contrary to the provisions of the act " to prevent intemperance, pauper- ism and crime," passed April 9, 1855. People v. Johnson, 2 Park. Crim. Bep. 322, Supreme Court, at Chambers, August, 1855. Before Dean, J. 41. A person charged with the offense of selling intoxi- cating liquor contrary to the provisions of that act, has the right to give bail to appear and answer at the next criminal court having cognizance of the offense, and in which he may be indicted, as in other misdemeanors tri- able by a court of special sessions. id. fg^f: 42. The board of health of the town of Castleton, of the county of Richmond, has no power to make a regulation prohibiting all persons from passing from within the quarantine inelosure, situated in that town, into any other part of the town. Such regulation is in conflict with the powers conferred by the state on the officers of the quarantine establishment; and where a person had been arrested and committed, charged with a misde- 672 MISDEMEANOE. meanor for violating such a regulation, be was discharged on habeas corpus. People v. Boff, 3 Park. Grim. Bep. 216. Supreme Court, at Chambers, August, 1856. Before Birds- eye, J. 43. The powers of a board of health, organized under chapter three hundred and twenty-four of the laws of 1850, considered and explained. id. ^^f- 44. The conducting of a house in. such a way as to disturb and disquiet the neighbors, or the carrying on of its business so as to tend to the corruption of pilblic morals, is punishable as a nuisance. People v. Corey, 4 Park. Grim. Bep. 238. Superior Court of Buffalo, Gen- eral Term, March, 1857. ^i^_ 45. Where a statute prohibits an act which is not critninal at common law, and imposes a civil penalty for its commission, the act is not indictable; but if at the time of enacting the statute it was already prohibited by a former statute, and the statute imposing the penalty contains provisions showing that the legislature did not intend that the civil penalty should constitute the only punishment, it may, in addition to the penalty, be also punished as a misdemeanor. People v. Shea, 3 Park. Grim. Bep. 562. Supreme Court, Onondaga General Term, Octo- ber, 1857. {Behan v. The People, 3 Park. Crim. Eep. 686, Court of Appeals, June, 1858, sustains the position taken in this case.) S: 46. Giving a lease of real estate belonging to the corporation of the city of New York for a longer period than ten years, or without having complied with the pro- visions of the 41st section of the amendment to th« char- ter of the city of Few York, passed in 1857, (ch. 446,) is the violation of such charter within the meaning of the 40th section of said act, and punishable as a misdemeanot. People V. Wood, 4 Park. Grim. Bep. 144. .^ew; York Oyer and Terminer, November, 1858. Before Mullin, J. 47. The mayor, aldermen and councilmen of the city of New York are officers of the city government, within the MISDEMEANOE. 673 meaning of the said 40t]i section ; and, as such, are liable to indictment for willfally doing the acts forbidden by that section, and which are therein declared to be misdemean- ors, id. 48. A conspiracy by such officers to give a lease in violation of the provisions of such charter, is a misde- meanor ; but it is not a misdemeanor, under the said 40th section, for such officers to vote for and pass a resolution directing the comptroller of the city to lease real estate of the corporation for a longer term than ten years, such voting, of itself, not being an unlawful act under the statute, providing that no alderman or councilman shall be questioned in any other place for any speech or vote in either board. id. 49. Where a count in an indictment against the mayor, aldermen and councilmen of the city of New York, charged that the defendants "did violate and evade the provisions" of said amended charter, by voting for and passing a resolution in due form, directing the comp- troller to lease "certain real estate of the corporation to the Roman Catholic Orphan Asylum for more than ten years," the count was adjudged bad as not charging any offense under the statute. . id. 50. A pilot, within the meaning of chap. 69 of the laws of 1847, regulating Hellgate pilots, is the person piloting and directing the vessel while on board of it. It is no offense against the act, for the pilot of a steam-tug to take a schooner through Hellgate, lashed to the side of the steam-tug, the pilot of the steam- tug remaining on his own steamer and making signals to those on board the schooner to change their helm to conform to the movements of the steamer. Francisco v. The People, 4 Park. Grim, Bep. 139. Supreme Court, New York General Term, November, 1858. 51. It is erroneous,, in such a case, to charge that, in so towing the schooner through Hellgate, the pilot of the steam-tug was committing an act of pilotage. id. 52. Steamboats have a right to tow vessels through 43 674 MISDEMEANOR. Hellgate without being subject to the law relating to pilotage, being excepted from its operation by the 10th section of the act of 1847. id. i's^S: 53. The non-payment by the collector of assess- ments of the city of New York, to the chamberlain of said city, within the time required by the ordinances of the common council, of the money collected by him on tax warrants issued by the city authorities, is not a "fraud upon the city," within the meaning of section 40 of the amended charter of said city, passed April 14, 1857, by which the committing of a fraud upon the city is de- clared to be a misdemeanor. People v. Taylor, 4 Park. Grim. Bep. 158. New York Oyer and Terminer, January, 1859. Be/ore Mullen, J. S: 54. The act of April 17, 1860, prohibiting certain exhibitions and plays within the city and county of New York, on Sunday, held to be constitutional and valid, as a lawful exercise of legislative authority. People v. Hogan, 20 How. Pr. Bep. 76. Superior Court, Special Term, De- cember, 1860. Before Hoffman, J. 55. Consequently, the defendants, by exibiting on Sun- day a play called " One of our People," or the "Brave Isaac," in the building IsTos. 37 and 39 Bowery, known as the "New York Stadt Theatre," incurred the penalty pre- scribed by this act, viz., guilty of a misdemeanor ; and in addition to the punishment therefor provided by law, sub- jected to a penalty of $500, with a forfeiture of license, id. fe^j^: 56. Every act done maliciously, tending to bring religion into contempt, may be punished at common law ; and the Christian sabbath, as one of the institutions of that religion, may be protected from desecration by such laws as the legislature, in their wisdom, may deem neces- sary to secure to the community the privilege of undis- turbed worship, and to the day itself that outward respect and observance which may be deemed essential to the peace and good order of society, ^nd to preserve religion and its ordinances from open reviling and contempt. MISDEMEANOR. 675 Lindenmuller v. The People, 33 Barb. 54S. Supreme Court, New York General Term, Fehriiary, 1861. (This case is also reported in 21 How. Pr. Rep. 156.) 57. Upon this ground the " act to preserve the public peace and order on the first day of the week, commonly called Sunday," passed April 17, 1860, prohibiting ex- hibitions or dramatic performances on Sunday, can be sustained ; the legislature being the sole judges of the acts proper to be prohibited, with a view to the public peace, and as obstructing religious worship, and bringing into contempt the religious institutions of the people. id. 58. That act is clearly constitutional, as dealing with and having respect to the sabbath as a civil and political institution, and not affecting to interfere with religious belief or worship, faith or practice. id. 59. In the state of New York the sabbath exists as a day of rest, by the common law, and without the necessity of legislative action to establish it; and all that the legis- lature attempts to do in the sabbath laws, is to regulate its observance. id. ^•S 60. The statutory provision, (2 E. S. 288 ; 3 R. S. 5th ed. 478,) which declares it a misdemeanor for an attor- ney, counselor or solicitor, to buy any bond, bill, promis- sory note, bill of exchange, &c., with intent and for the purpose of bringing any suit thereon, is not applicable to a demand purchased with the intent of prosecuting it in a justice's court. Goodell v. The People, 5 Park. Orim.Bep. 206. Supreme Court, Broome General Term, May, 1862. 61. The object of the statute is to prevent attorneys and solicitors from purchasing debts or other things in action for the purpose of obtaining costs by a prosecution thereof. No costs being allowed to an attorney in a justice's court, he has no object in buying debts to sue in that court, and there is neither opportunity nor temptation for him to advance his pecuniary interests by so doing, and, therefore, the prohibition of the statute was not intended to restrain 676 MISDEMEANOR. him from acts which are not productive of the evils which it was intended to remedy. id. ^il^a'; 62. If a felony has actually been committed, an officer, in arresting the oflFender or preventing his escape, will be justified in taking his life, provided there is an actual necessity for his doing so ; it is otherwise in case of an arrest for a misdemeanor. Oonraddy v. The People, 5 Parle. Grim. Bep. 234. Supreme Court, Orange General Term, September, 1862. 63. To authorize a conviction tinder the act passed April, 23, 1862, entitled "An act to- prevent the adultera- tion of milk and to prevent the traffic in impure and un- wholesome milk," it is necessary to aver in the complaint or indictment, and to prove on the trial, that milk was adulterated with a view of offering it for sale or exchange. A charge that the defendant had adulterated, without stating the object of such adulteration, is insufficient. People V. Faeurback, 5 Park. Grim. Pep. 311. Supreme Court, New York G-eneral Term, September, 1862. 64. Whether mixing water with milk is an adulteration within the meaning of the statute. Quere. id. fsra!' 65. A board of supervisors acts judicially, in ex- amining} settling and allowing accounts. The members are charged and intrusted with definite duties and powers, to be performed and exercised for the benefit of the com- munity, and if they wickedly abuse, or'fraudulently exceed those powers, they are guilty of a misdemeanor and punish- able by indictment. People v. Stocking, 50 Barb. Bep. 573. Supreme Court, lErie General Term, September, 1866. (This case is also reported in 6 Park, Crim. Rep. 263.) 66. If a supervisor, acting as a member of the board, knowingly, corruptly, unlawfully and partially, votes that an account presented against the county, as a county charge, be allowed and made a charge against the county, he is guilty of a misdemeanor, and may and should be indicted, tried, convicted and punished. id. 67. To constitute the crime of official corruption or mis- MISDEMEANOE. ' 677 conduct in office, it is not essential that the board or officer should have jurisdiction of the subject matter upon which it or he acts. If the officer wickedly abuses, or fraudulently exceeds his powers, he is punishable by in* dictment. It is not essential that any injurious effects should result to individuals from the misconduct of the officer. id, 68. If a board of supervisors acts without jurisdiction, its decision will not be binding upon the parties intended to be affected by the act. But the fact that the board ex- ceeded its powers will constitute no defense for the super- visor whose act, as such, proceeded from corrupt and wicked motives. id. s,|pJ: 69. The C. VanderhiU, a tug-boat employed in tow- ing vessels through Hellgate, being about to commence the towing of the schooner Oopia through the channel, H,, a Hellgate pilot, went on board the " Oopia" and offered his services as such pilot to the defendant, who was in charge as pilot of the 0. Vanderbilt. His services were refused ; but he remained on board, without rendering, or being requested to render, any" aid ; and the defendant towed the schooner through. Held, that this was a clear violation of the statute, (Laws of 1865, chap. 115, § 3,) which provides that " if any person other than a branch Hellate pilot shall pilot or tow for any other person, any vessel * * * or board such vessel for that purpose, (except barges &c. in the channel of the East river, com- monly called Hellgate, * * *) without the aid of a branch Hellgate pilot on board, he sh^U be deemed guilty of a misdemeanor," &c. People v. 8perry, 50 Barb. Rep. 170. Supreme Court, Orange General Term, September, 1867. 70. That statute is not in conflict with the provisions of the constitution of the United States, which grants to con- gress the power to regulate commerce. 1. The state act is not an exercise of the power vested exclusively in con- gress, but is a mere police regulation, 2. The act has 678 NEW TRIAL. been sanctioned and adopted by the pongress of tbe United States. id. 71. The protection of an enrollment and coasting license does not extend beyond the vessel licensed, so as to author- ize the towing of other vessels. id. fa^s^g^- 72. It is sufficient under the statute, (Laws o'f 1851, ch. 504, sec. 1 ; 2 R. S. 5th ed. 926,) to establish the guilt of the defendant, indicted for permitting gambling in his room or office, to prove that he occasionally knowingly permitted gambling in his office. It is not necessary to prove that he habitually did so, or that gambling there was a principal business. Hitchens v. The People, 39 N. T. Rep. 454. Court of A'ppeals, September, 1868. 73. The proof in this case showed that upon several oc- casions. the defendant had permitted property to be gam- bled for in his room or office, and upon other occasions, to his knowledge and by his permission, games were played in the same room for beer, &c., and that the accused kept these articles for sale, and that upon the termination of the games he furnished and charged them to the loser. Held, this was sufficient to bring the case within the statute. id. New Trial. (Chapter 339 of Session Laws of 1859, § 4, is as fol- lows : " The courts of sessions of the several counties in this state shall have power to grant new trials upon the merits, or for irregularity, or on the ground of newly dis- covered evidence, in all cases tried before them.) S: !• Where the jury, on returning to deliberate on their verdict, take ou^ with them the written examination of the prisoner before the police justice, read in evidence on the trial, to which was attached an affidavit not read in evidence, and at the time that they retire the counsel for the prisoner was absent, and no objection or consent on his behalf appears, though it does not appear that the NEW TRIAL. 679 jurors referred to such affidavit, the court will grant the prisoner a new trial. Lemuel E. Mitchell's case, 1 City Hall Becorder, 147. Before Badolif, Mayor. New York, Sep- tember, 1816. ^11' 2. A certificate of 6ight of the jurors who pro- nounced a prisoner guilty, on a charge of forgery, that they convicted the prisoner principally on the testimony of De Forest, with an affidavit of the prisoner, stating that since the trial he had discovered testimony by which he could impeach the testimony of De Forest, will'not be suf- ficient to induce the court to grant a new trial. Simeon Van Houghton and John Harvey's cases, 2 Oity Hall Be- corder, 73. Before Badcliff, Mayor. New Torle, May, 1817. fa'i^; 3. The court of general sessions, in and for the city and county of New York,"have a right to grant a new trial on the merits. Mordecai M. Noah's case, 3 City Hall Becorder, 13. Before Badcliff, Mayor. New York, February, 1818. 4. An indictment containing five counts, three of which were for intercepting, opening and reading a private let- ter containing the secrets of another, sealed and directed to an individual^ and for causing and procuring the same letter to be intercepted, opened and read ; , the fourth count was, for obtaining and getting into possession such letter, and publishing its contents; and the fifth, for thus obtaining and getting in possession the same letter, and publishing it in a public newspaper with strictures and comments. On the trial, the evidence on the part of the prosecution did not support the charge in the first three counts, which alone contained an indictable offense, and so expressed by the court in their charge to the jury, who, nevertheless, found a general verdict against the defend-- ant. On an application to the court to grant a new trial, on the ground that such verdict was contrary to law and evidence, the motion was granted. id. 'S 5. Where the prisoner moves for a new trial on the ground that testimony was admitted on behalf of the pros- ecution which the prisoner can sliow to be infamous, the 680 NEW TRIAL. court will recur to the evidence in the case, in judging of the propriety in granting such motion ; and where it ap- peared that the evidence of the felony, independent of the relation of the witness mentioned in the application for a new trial, was clear and satis'factory, the motion was de- nied. Senry Green's case, 3 City Hall Recorder, 96. Be- fore Golden, Mayor. New York, June, 1818. ™'- 6. A court of general sessions has no power to grant the application for a new trial in a case of felony, the ap- plication being on the merits. People v. Harper, 1 Wheel. Gases, 495. Golden, Mayor. New Torh, 1819. ■^"f; 7. In cases of felony, as well as of misdemeanor, if the jury, after deliberating so long on the prisoner's case as to preclude a reasonable expectation that they will ever agree on their verdict, unless compelled to do so by famine and exhaustion, may be discharged, and the pris- oner be again tried by another jury. People v. Goodwin, 18 J. B. 187. Supreme Gourt, August, 1820. 8. As where, on an indictment for manslaughter, the jury, after a trial of five days, and after being kept to- gether to consider of their verdict for seventeen hours, de- clared that there was no probability of their agreeing on a verdict; and, it being within half an hour of the time when the court was bound by law to close its session, the jury were discharged, and the prisoner was again tried at an- other court. id. 9. The new trial, where the prisoner, after being tried in the court of sessions, is brought to this court on habeas corpus and cetiorari, may be before the court of oyer and terminer and jail delivery, or at the next sittings in New York or Alhamy, under the act, Sess. 36, ch. QQ. id. 10. Where a prisoner was, tried at a court of oyer and terminer and jail delivery for murder, and convicted, with- out a venire returned and filed, (the paper purporting to be a venire not having the seal of the court,) it was held to be error, and judgment was arrested, and a new trial awarded. People V. McKay, 18 J. B. 212. Supreme Gourt, August, 1820. NEW TRIAL. 681 ^^ft 11. Where a prisoner who has been tried and found_ guilty, and judgment is arrested, on his motion, and in his favor, a new trial may be awarded. id. 12. On a motion for a new trial, on the ground of the improper conduct of the jury, the affidavits of the jurors are not admissible to prove such improper conduct. Peo- ple V. Carnal, 1 Park, Grim. Rep. 256. New York Oyer and Terminer, September, 1851. Before Edmonds, J. 13. 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 npt be set aside because of such communication, where it is made by the losing party or by a stranger to the controversy. id. 14. Where, on a trial for murder, while the jury were consulting together on 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 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 communi- cation to the jury, a new trial was denied. id. ^S 15- Courts of sessions, as organized under the judi- ciary act of 1847, have not power to grant new trials. People V. Court of Sessions, 1 Park. Crim. Pep. 369. Su- preme Court, Cayuga General Term, June, 1852. 16. 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 sent|ence according to the verdict, it was held that the granting of a new trial was a nullity, and a manda- mus was awarded to compel the court to proceed and pass sentence. id. 17. Sem,ile, that a court of oyer and terminer has power to grant new trials. Per Johnson, J. id. 682 NEW TEIAL. 5*a?^: 18. It is very questionable whether surprise, found- ed on a mistake in law, can be a ground for a new trial. It cannot be, where it arose solely from the negligence of the moving party. People v. O'Brien, 4 Park. Crim. Rep. 203. Superior Court of Buffalo, Criminal Term, November, 1854. Be/ore Clinton, J. 19. Where the defendant had been convicted of keep- ing a disorderly house, and on motion for a new trial it appeared, from his aflBldavits, that the conviction was had solely upon evidence that his tenant of the basement kept that part of the house in a disorderly manner ; that he, the defendant, occupied the floor above, and supposing he was only required to defend, as he did, the character of the part occupied by himself, and the affidavits did not show that he had, but left the inference that he had not disclosed all the facts to his counsel, and did not show that he had discovered any material evidence not before known to him and within his reach ; held, that he was not enti- tled to a new trial. id. 20. It seems that the superior court of Buffalo has power to grant a new trial to a defendant convicted of a misdemeanor, either on the judge's minutes at the same term at which he was convicted, or on a case at the gen- eral term. id. 21. A new trial will not be granted on the ground of newly discovered evidence, where such evidence might have been procured by ordinary diligence ; nor will a new trial be granted on the ground of surprise, where the party becomes surprised after the rendering the verdict. People V. Mack, 2 Park. Orirri. Rip. 673. Supreme Court, Dutch- ess Special Term, November, 1854. Before Bean, J. fjl^; 22. The court of oyer and terminer has power to grant a new trial on the merits, after a defendant has been convicted of felony. People v. Morrison^ 1 Park. Crim. Rep. 625. Greene Oyer and Terminer, December, 1854. Before Harris, J. 23. The cases of Tlie People v. The Judges of the Dutch- NEW TRIAL. 683 ess Oyer and Terminer, (2 Barb. 282,) and The United States V. Gilbert, (2 Sumner, 19,) reviewed and disapproved, id. ^^^: 24. "Where, on a trial for a felony, after the public prosecutor has entered upon his case and given evidence to the jury, he finds himself unprepared vrith the proper evidence to convict, and obtains leave of the court to withdraw a juror and thus arrest the trial, such withdrawal not being the result of improper practices on the part of the defendant or any one acting with or for him, or of any overruling inevitable necessity, the defendant cannot be again put on trial for the same offense. Klock v. The Peo- ple, 2 Fark. Orim. Bep. 676. Supreme Court, Jefferson General Term, April, 1856. 25. The objection to a second trial, in such case, does not rest upon the constitutional provision that no person shall be subject to be twice put in jeopardy for the same offense ; that provision is a protection only where there has been a conviction or acquittal by the verdict of a jury, and judgment has passed thereon, and does not apply to a case where the jury have been discharged without giving any verdict where judgment has been arrested. id. 26. But the objection lies back of the constitution, and rests upon the principles of the common law, which are essential to the protection of the accused, by securing him a speedy and impartial trial, and the best means of vindi- cating his innocence. id. 27. "Whether the same rule applies to^ trials for mere misdemeanors, quere. id. 28. The decision in the case of The People v. Mlis, (15 "Wend. E. 371,) doubted, and The People v. Barrett, (2 Caines, 304,) approved. id. 29. The practice to be adopted in bringing up the ques- tion in such a case, discussed. id. Sept 30. Courts of oyer and terminer have power to grant new trials to prisoners in cases of conviction upon insufficient evidence, or where verdicts have been rendered against evidence ; but the power ought not to be exercised 684 NEW TEIAL. except in cases where it was the duty of the court to advise the jury to acquit the defendant, or to inform them that it was unsafe to convict upon the evidence before them. People v. Goodrich, 3 Park. Orim. Bep. 518. Dela- ware Oyer and Terminer, September, 1857. Before Bal- com, J. 31, In cases of doubt, where the evidence is conflict- ing, and the credibility of the witnesses is in question, and no error has been committed by the court in its charge, a new trial will generally be denied. id. Jit 32. The act of 1855 gives to the Supreme Court the power, on a writ of error, to grant a new trial where the verdict is against the weight of evidence. Sogers v. The People, 3 Park. Grim. Bep. 632. Supreme Gourt, New York General Term, February, 1858, "i859?' 33. The following irregularities in the delibera- tions of a jury in a case of mwder were .established : One of the jurors inquired of a constable in attendance, whether the jury could not bring in a verdict of manslaughter, stat- ing, at the same time, that if they could do so, the whole jury would agree on such a verdict. Upon which the consta- ble, in violation of his duty and his oath, undertook to give his opinion. The Kevised Statutes were subsequently sent for by the jury, and their provisions in relation to the crimes of murder and manslaughter examined. Held that these irregularities of the jury would have been suffi- cient to vitiate the verdict, unless it had appeared beyond all reasonable doubt that no injury had resulted from it to the defendant. People v. Mary Hartung, 17 Sow. Prac. Rep. 85. Albany Oyer and Terminer, March, 1859. Before Harris, J. (This case also reported in 8 Abb. Prac. Rep. 132, and in 4 Park. Crim. Rep. 256.) 34. The defendant's counsel took the ground that, under the circumstances of this case, the verdict of the jury was not, and could not have been, the result of that calm de- liberation and concurring judgment which alone could fitly characterize so momentous an act. The court, on a NEW TEIAL. 685 review of the circumstances, thought otherwise, and denied the motion for a new trial. id. l^l 35. On a motion before the court of oyer and terminer, in behalf of the prisoner, for a new trial, on the ground of irregularity, affidavits of counsel as to informa- tion they have received from jurors concerning what took place in the jury-room, cannot be received as any evidence of the alleged irregularity. Wilson v. The People, 4 Parh. Grim. Pep. 619. Supreme Court, Albany General Term, September, 1859. 36. It is no reason for setting aside a conviction for murder, on motion for a new trial, that during a recess of the trial one of the jurors took up and examined a piece of the skull of the person alleged to have been murdered, which was lying on the district attorney's table, the cir- cumstances of the case being such as to show that the juror could not have been misled thereby,, and the fact of the juror having examined the said skull being known to the prisoner's counsel before they entered upon the defense. id. 37. Affidavits of jurors cannot be received to show that, at the request of one of their number, a constable handed in a paper on which were marked the several punishments fixed by law for the different degrees of manslaughter, and when such fact was shown by the affidavit of the con- stable, the court refused to set aside the verdict, it appear- ing, affirmatively, that the jury could not have been misled thereby. id. Pj«S; 38. If a court of oyer and terminer have the power to grant a new trial in any case, (and the weight of author- ity seems to be in favor of such a power,) it can only be on the ground that the court is not an inferior court, and the motion must be made before the same court, held by the same judge who tried the case. There is no author- ity or power for a subsequent court of oyer and terminer to hear a motion for a new trial, where the trial was had before a different judge at a previous court, or to nullify 686 NEW TRIAL. the judgments and proceedings of such, previous court. People V. Quimbo Appo, 18 How. Prac. Bep. 350. Supreme Court, New York General Term, December, 1859, fa'j^; 39. On a motion for a new trial made before the oyer and terminer, after a conviction for murder, on the ground that the verdict was against evidence, the follow- ing facts appeared: The deceased and one Smith were quarreling, when the prisoner interfered and struck the deceased the first blow on the head ; the blow was returned by the deceased, who then retreated, followed by the pris- oner. The prisoner secretly opened his knife, whereupon the deceased again struck at the prisoner, and again re- treatedi The prisoner then struck the deceased with the knife, and cut him in the face. The deceased continued .to flee, and the prisoner was approaching the deceased when Kirby run in between them. The prisoner then struck at Kirby with the knife, but the latter jumped out of the way, and the prisoner followed the deceased. One of the brothers of the deceased called out to him to take care or he would be killed, and as the deceased looked around to see his danger, the prisoner struck the knife into his temple with such force, that after three unsuccess- ful attempts to draw it out he fled, leaving the knife stick- ing in the head of the deceased. The death of the deceased was caused by the last blow. It was held that these facts were sufficient to warrant the conclusion that the prisoner had formed the determination to take the life of the de-' ceased before he struck the last blow, and a new trial was denied. People v. Shay, 4 Park. Orim. Bep. 344. New York Oyer and Terminer, February, 1860. Be/ore In'gra- ham, J. "tJS!"' 40. The oyer and terminer has no power to order a new trial upon the merits after a conviction for felony. Quimbo Appo v. The People, 20 N. Y. Bep. 531. Court of Appeals, March, 1860. "JJs'J"' 41. Where the defendant was tried and con- victed of the crime of murder, and sentenced to be hung, NEW TEIAL. 687 and during such sentence a law was passed by the legis- lature which repealed the statute under which the sen- tence was made, and thereby made the judgment of the Supreme Court (the sentence) erroneous, and no other valid law being applicable to the case, the Court of Ap- peals reversed the judgment of the Supreme Court, for such error, and ordered a new trial ; held, on demurrer, that the special pleas of the defendant interposed against a new trial in the oyer and terminer, on the ground, Ist, of a former conviction for the same offense ; 2d, of jeopardy; and 3d, of a (legislative) pardon, could not be sustained. People v. Hartung, 23 How. Prac. Bep. 314. Supreme Court, Albany General Term, March, 1862. ^8^5: 42. The plaintiff in error was convicted in June, 1857, of arson in the first degree, and sentenced to the pun- ishment then prescribed by statute, which was death. An act of the legislature was passed in 1860, dividing murder into two degrees, and providing that every person there- after convicted of murder in the second degree, should be sentenced to imprisonment for life; and abolished the pun- ishment of death for arson in the first degree. It also made the punishment for murder in the second degree applicable to all crimes that were then punishable with death, extjept treason and murder in the first degree ; held, that although the punishment of the offense of which the plaintiff" in error was found guilty, existing at the time of its commission, having been afterwards abolished, and a new and totally different punishment substituted in its place, the legisla- ture intended the act of 1860 to apply the punishment of imprisonment for life to arson in the first degree, com- mitted before as well as after the passage of the act, and as the change was a mitigation of the punishment, the act in this respect was not ex post facto. Shepard v. The People, 23 How. Prac. Bep. 237. Supreme Court, New York Gen- eral Term, May, 1862. Ilea: 43. Where a j udgment again st a prisoner is reversed upon the' ground alone that a wrong judgment was given, 688 NEW TEIAL. upon a, lawful and regular trial and conviction, he cannot constitutionally be tried again; he must be discharged. Shepard v. The People, 24 Eow. Prac. Bep. 388. Court of Appeals, September, 1862. S: 44. Where a capital case has been tried at the gen- eral sessions of New York, the Supreme Court has power, on writ of error, under the act of 1855, chapter 337, § 3, to order a new trial when it shall be satisfied the verdict was against law, or against the weight of evidence, or that jus- tice requires a new trial, " whether any exception shall have been taken or not in the court below." Jefferds v. People, 5 Parh. Crim. Bep. 522. Supreme Court, New York General Term, November, 1862. • ^863."' 45. "When a legal trial, conviction and sentence for murder is reversed in consequence of a repeal of the statute under which the sentence is to be executed, a new ■ trial of the prisoner for the same murder cannot be al- lowed ; he is entitled to his discharge. Hartung v. Peo- ple, 25 How. Prac. Bep. 221. Court of Appeals, March, 1863. fsl?: 46. The mayor's court of the city of Albany has power to grant new trials, or to set aside a judgment on the ^merits on the report of a referee. People v. Austin^ 43 Barb. Bep. 313. Supreme Court, Special Term, Decem- ber, 1868. Before Peckham, J. IS; 47. TheSupremeCourthasno jurisdiction to enter- tain a motion for a new trial, on the ground of an irregu- larity which does not appear upon the record ; but, after a writ of error has been returned, and not before, affidavits may be read upon the argument to correct an error arising out of an irregularity prejudicial to the rights of the pris- oner, which does not appear on the record, and where he has no other legal mode of redress. Per Ingalls, J. Wil- lis v. The People, 5 Park. Crim. Bep. 621. Supreme Court, Albany General Term, September, 1864. S. 48. "Where the several features of a charge, although perhaps not amounting to error, are calculated to confirm NEW TEIAL. 689 a wrong impression in tlie minds of the jury, produced by an erroneous ruling in respect to evidence of tlie good character of the accused, anew trial will be granted. Peo- ple V. Lamb, 39 N. Y. Bep. 360, 2 Keyes. Oomt of Ap- peals, January, 1866. Smith, J. ime. 49. "Where a remark of a j udge, in refusing to charge as requested, though erroneous, does no harm, because it was a mere abstraction, having nothing to do with the matter in hand, it will afford no ground for reversing the judgment, or granting a new trial. The rule on this sub- ject is the same in criminal as in civil cases. Patter son^ V. People, 46 Barb. Bep. 625. Supreme Court, Onondaga General Term, October, 1866. **S*- 50. The act of 1855, chap. 337, authorizing the appellate court to grant a new trial where the prisoner was convicted for a capital offense in the court of general ses- sions, in and for the city and county of New York, "whether any exception shall have been taken or not in the court below," was passed for the advantage of the accused in this, to wit, that a new trial might be awarded when sub- stantial justice required, even though the record disclosed no error. But such act was not intended to authorize this court to disregard errors which, prior to its passage, were ^available to the accused as grounds for a new trial. Those grounds still remain to him, whatever may be his condi- tion, of guilt. "We are, therefore, required to examine the rulings and decisions of the court in which the trial was had, to see if any error was there committed prejudicial to his rights. If the record disclose such error, the convic- tion should be set aside. O'Brien v. The People, 36 iV. Y. Bep. 276. Court of Appeals, March, 1867. ■*p^|' 61. In criminal cases the court is required to order a new trial, if it is satisfied that the verdict is against evi- dence, or against law, or that justice requires a new trial. Manual v. The People, 48 Barb. Bep. 548. Supreme Court, New York General Term, April, 1867. 52. "Where the court, upon a writ of error, came to the 44 690 . KOLLE PEOSEQTJI. conclusion, from an examination of the evidence, that, • under any view to be taken of the case, the homicide was only one of killing in the heat of ;^ssion, arising out of a sudden quarrel, without a design to effect death, by a dan- gerous weapon, and therefore was only manslaughter in the third degree ; held, that a conviction of murder in the first degree was not warranted by the evidence, and that under such circumstances it was the duty of the court to order a new trial. id. SSJ: 53. It seems that the court of general sessions in the city of New York has power to entertain a motion for a new trial. Lanergan v. The People, 50 Barh. Rep. 266. Supreme Court, New York General Term, November, 1867. "S!"' 54. The courts of general sessions of the peace, in and for the city and county of New York, have author- ity to grant new trials upon the merits in cases tried be- fore them. Lanergan v. The People, 39 N. Y. Eep. 39. Court of Appeals, March, 1868. 55. The court of* general sessions of the peace, in and for the city and county of New York, is included in the act of 1859, (Laws of 1859, chap. 339, § 4,) which provides that, " The courts of sessions of the several counties in this state shall have power to grant new trials upon the merits, or for irregularity, or on the ground of newly discovered evidence, in all cases tried before them." id. Nolle Peosequi. fj,'^' 1. The statute requiring the assent of the court to the entry of a nolle prosequi by a district attorney, does not confer the power upon the court to direct a discon- tinuance without the motion of that officer. People v. MoJLeod, 25 Wend. 483. Supreme Court, July, 1841. Also see 1 Bill, 2,11. ^11: 2. A court of sessions has no power to direct a nolle prosequi to be entered on an indictment pending therein for an offense not triable in that court. People v. NUISANCE. 691 Porter, 4 Park. Qrim. Beja. 524. Supreme Court, Clinton General Term, May, 1860. 3. Nor can a nolle^prosequi be entered to a part of a count of an indictment, though the court in which it is pending have j urisdiction to try the offense charged. A nolle prosequi may be entered to the whole of an indict- ment, or to any one or more of several counts in an in- dictment. ^8°^: 4. A nolle prosequi or supercedeas is properly en- tered on an indictment, when a subsequent indictment is presented by the grand jury for the same offense. Gardi- ner V. The People, 6 Park. Crim. Eep. 155. Supreme Court, Broome General Term, November^ 1866. Nuisance. f^^; 1. On an indictment for a nuisance, in keeping fifty barrels of gunpowder in a certain house near the dwelling-houses of divers good citizens and near a public sired, &c. It was held that the fact so charged does not amount to a nuisance. Otherwise, if it had been alleged to have been negligently and improvidently kept. The Peo- ple V. Sands, 1 J. B. 78. Sufreme Court, February, 1806. JJ°^; 2. A lawful business, in a populous city, ougM so to be exercised that the least possible annoyance or incon- venience should arise to the prejudice of the citizen. Ben- jamin Prescott's case, B City Hall Becorder, 170. Be/ore Badcliff, Mayor. Neio York, November, 1817. 3. On the trial of an indictment for erecting and contin- .uinga certain distillery for distilling and rectifying spirits, . in which there were certain furnaces which emitted large quantities of smoke to the great annoyance of the peo- ple, which allegation appeared to be supported, and it fur- ther appeared that the chimney conveying such smoke was low, this was held a common nuisance. id. 4. "Where divers persons, in a populous city, living ad- jacent to a distillery from which issued noisome smells and vapors, were thereby much incommoded, and the air 692 NUISANCE. ■was rendered uncomfortable, though such smells and va- pors were not, in their nature, unhealthy, it was held that such distillery was not therefore the less a nuisance, id. llJ'i 5. To keep and permit hogs to run at large in the heart of a populous city, is a nuisance and a misdemeanor at common law, and on the trial of such a case, it is com- petent for the public prosecutor to prove particular acts, of a mischievous nature, committed by other hogs. Louis Lashine and Christian Harriott's cases, 4 City Sail Be- corder, 26. Before Golden, Mayor. New York, Jan. 1819. is 6. To "constitute a public nuisance by conducting, in a populous city, a lawful business, it is not sufficient that its exercise be merely disagreehle; but it mast be an annoyance, calculated to interrupt the public in the rea- sonable enjoyment of life or property. Soger Prout's case, 4 City Sail Becorder, 87. Before Golden, Mayor. New York, June, 1819. fi^^ 7. To constitute a nuisance, it is not necessarjr that the smell should be unwholesome ; it is sufficient if it renders the enjoyment of life and property uncomfort- able. Lynch, Newberry and Bichard's cases, 6 City Sail Becorder, 61. Before Biker, Becorder. New York, Sep- tember, 1821. 8. That the establishment, complained of as a nuisance, was erected prior to the adjacent buildings, is imma- terial. • id. •^gj'; 9. A theater, per se, was not a nuisance, but might become so by the misconduct of those concerned in it ; in • all such cases the nuisance ought to be abated. The law regarded so Highly the comfort, convenience and the peace- able and quiet enjoyment of the citizen, that in case of extensive manufactories and establishments of trade, when they were found detrimental to health of individuals, or when they destroyed their repose, or where the public generally suffered an inconvenience, it was a nuisance. It did not depend so much upon the place, but the manner of conducting it. A church might become a nuisance if the NUISANCE. 693 conduct of the worshipers there, and others, was such as to destroy the peace of the neighborhood. A quiet house, or at least one which did not disturb the neighborhood, might become a nuisance by gambling. A bawdy house, although it might not disturb the neighborhood, was nev- ertheless a nuisance, or any house in which immoral or indecent conduct was admitted. People v. Q. N. & G. Baldwin, 1 Wheel. Cases, 279. Biker, Becorder. New York, April, 1823. 10. It is unnecessary that the public peace, or the neigh- borhood, should be disturbed by a house, to constitute it disorderly. It was sufficient if it was the resort of people for any immoral purposes. A house where people go to drink and tipple is not always a noisy house, and yet is a very disorderly one. A house where people meet for the purpose of assignation is a disorderly house, because it is a violation of the laws of decency and morality. People V. Bowland, 1 Wheel. Oases, 286. Biker, Becorder. New York, April, 1823. *J|J; 11. An indictment lies against a corporation, quasi a corporation, for neglecting to do what the common good requires ; as where the corporation of a city have power to direct the excavating, deepening or cleansing of a hasin connected with a river, and neglect to take the necessary ■measures in that respect after such basin, becomes foul by the aggregation of mud and other substances, so that the water is corrupted and the air infected by noisome and unwholesome stenches, and thus a nuisance created. Peo- ple V. Corporation of Albany, 11 Wend. 539. Swpreme Court, May, 1834. 'i''^^; 12. A bowling alley, kept for gain or hire, is a public nuisance at common law, though gambling be expressly prohibited. Tanner v. The Trustees of the village of Albion, 5 Hill, 121. Supreme Court, May, 1843. 13. Accordingly held, that under a village charter au- thorizing the trustees to pass by-laws relating to nuisances, 694 NUISANCE. they had power to make a by-law prohibiting the keeping of bowling alleys for hire. id. 14. The case of The People v. Sergeant, (8 Cowen, 139,) and EalVs case, (1 Mod. 76; 2 Keb. 846; 1 Vlentr. 169, S. C.,) commented on. id. 15. Semhle, that erections of every kind adapted to sports or amusements, having no useful end and noto- riously fitted up and continued in order to make a profit for the owner, are regarded by the common law as nui- sances. Per Gowen, J. id. ■ Pjfj, 16. The defendants, being proprietors of a distillery in the city of Brooklyn, were in the habit of delivering their grains remaining after distillation, called slops, to those who came for them, by passing them through pipes to the public street opposite their distillery, where they were received into casks standing in wagons or carts; and the teams and carriages of the purchasers were accustomed to collect there in great numbers to receive and take away the article ; and in consequence of their remaining there to await their turns, and of the strife among the drivers for priority, and of their disorderly conduct, the street was obstructed and rendered inconvenient to those passing thereon ; held, that the defendants were guilty of a nui- sance. People v. Cunningham, 1 Denio, 524. Supreme Court, October, 1845. 17. The consideration that the teams and carriages were not owned by the defendants, or under their control, does not excuse them, they having, in effect, by the manner of conducting their business, invited those assemblages at the point where the article was delivered. id. 18. Proof of strife and collision among the drivers, while awaiting their turns, is competent evidence toward establishing the fact of obstruction. id. 19. A temporary occupation of part of a street or high- way by persons engaged in building, or in receiving or delivering goods from stores or warehouses or the like, is allowed from the necessity of the case ; but a systematic NUISANCE. 695 and continued encroacliment upon a street, though for the purpose of carrying on a lawful business, is unjusti- fiable, id. 20. A party cannot defend an indictment for nuisance, by showing its continued existence for such a length of time as would establish a prescription against individ- uals, id. \^st 21. It is only where a regulation of a board of health has been made and published, that a person can be convicted, under the fourth section of the act, of a misde- meanor for its violation. Beed v. The People, 1 Park. Grim. Hep. 481. Supreme Court, Cayuga Greneral Term, Jum, 1854. 22. 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. (See 2 R S. 5th ed. 54.) id- 23. On the trial of an indictment for the violation of • such an order, it is not competent for the prosecution to prove affirmative oflensive acts on the part of the defend- ant, while engaged 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 ques- tion, id. 24. On such trial, it is a defense to such indictment to prove that, at the time of the making and service of the order, the defendant resided out of the bounds of the village corporation in which said board of. health was organized. March, 25. The conducting of a house in such a way as to disturb and disquiet the neighbors, or the carrying on of its business so as to tend to the corruption of the public 696 NUISANCE. morals, is punishable as a nuisance. People v. Casey, 4 Fark. Orim. Rep. 238. Superior Court of Buffalo, Gen- eral Term, March, 1857. flJi^ 26. Form of an indictment for nuisance, in erect- ing and maintaining a dam by which lands were overflowed, to the injury of the public health. Munson v. The People, 5 Park. Crim. Bep. 16. Supreme Court, Monroe General Term,, September, 1860. 27. Where a defendant is found guilty on an indictment for a nuisance, in erecting and maintaining a dam, and there is no averment in the indictment of a continuance of the nuisance, the court is not authorized to render a judgment for the abatement of the nuisance. It can only inflict a personal punishment upon the defendant. And where a judgment of abatement had been improperly rendered by the court of oyer and terminer in such a case, the Supreme Court, on a writ of error, reversed the judgment and remitted the proceedings to the oyer and terminer, that a proper sentence might be passed. id. fllJ: 28. In an indictment against a railroad company for an unlawful and willful neglect to erect and maintain fences on the sides of the road, it is necessary to aver that it was the duty of the corporation to erect and maintain such fences. People v. The New York Central Bailroad Co., 5 Park. Crim. Bep. 195. Supreme Court, Erie General Term, September, 1861. 29. When the indictment is against an individual, or a township or class of persons not of common right bound to repair, the mode in which the defendant became liable must be stated. • id. fIJ 30. The object of a prosecution by indictment, for nuisance to highways, is not the punishment of the de- fendant, but the repair of the highway, when it is out of repair, or the removal of the nuisance when the highway is obstructed. People v. The Branchport Co., 5 Park. Crim. Bep. 604. Supreme Court, Monroe General Term, Decem- ber, 1864. NUISANCE. 697 31. An indictment for nuisance against a plank road company contained the allegation that the defendants' road was, and had been, and at and until the finding of the indictment still was out of repair, to the damage and common nuisance of the citizens of the state, so that they cannot go and pass over the same without great trouble, annoyance and inconvenience; held, that to authorize a conviction, it was neces.8ary to show not only that the road had been out of repair, but that it continued so to be, down to the time of the finding of the indictment. id. 32. Form of an indictment for nuisance in permitting a plank road to be out of repair, with counts under the statute and at common law. id. fj^s^: 33. On the trial of an indictment for nuisance, evi- dence of the condition of the premises in question, after the finding of the indictment, is not admissible. But a judgment will not be reversed on the ground of the admis- sion of such evidence, if it appears from the bill of excep- tions that it could have caused no legal injury to the de- fendant. Taylor v. The -People, 6 Park. Grim. Rep. 347. Supreme Court, Erie General Term, Fehruary, 1867. 34. To convict of nuisance, it is not necessary to estab- lish any criminal intent. id. 35. It is no defense to an indictment for nuisance, that the slaughter-house alleged to constitute it, was built re- mote from habitations and public roads, and that the per- sons suffering from it afterwards built their dwellings within the reach of its stench or noisome effects. id. 36. It is only where an indictment charges the business itself to be a nuisance, and avers its continuance, that a judgment can be given on conviction, enjoining the de- fendant from continuing his business. id. 698 OYER AND TEEMINEE. Oyer and Tekminbr. ■^fj'jl' 1. A court of oyer and terminer may grant a new- trial. People V. Townsend, 1 Johns. Oases, 103. Supreme Court, April, 1799. 2. Proceedings removed from the oyer and terminer, and filed in the Supreme Court, cannot be sent back to that court. id. 3. The trial in such cases must be at bar, or be sent down to be tried at the next oyer and terminer, except in a capital case. id. ■^Jo'j^' 4. On the return of a certiorari directed to a court of oyer and tern^iner, in the proceedings in the case of an indictment for a nuisance, the Supreme Court refused to interfere, or grant a writ to prostrate the nuisance, until a record of the conviction was regularly made out and re- turned. People V. Valentine, 1 Johns. Gases, 336. Bupreme Court, April, 1800. S: 5. "Whether, in this state, a court of oyer and term- iner, having sentenced a malefactor upon conviction before them to capital punishment, have power, after they have adjourned, on being afterwards upon further examination convinced of his innocence, to suspend his execution or grant a reprieve, till the case can be laid before the par- doning power ? Quere. Miller's case, 9 Cowen, 730. Feb- ruary, 1828. 6.' By the common law, the judges may reprieve, even after adjournment; and the only question is, whether this power be wanting here either from the frame and principle of our government, or is impliedly denied or withheld by the constitution. (See 3 R S. 5th ed. 936.) id. 7. This question examined upon the constitution, upon principle and authority, in a correspondence between Clinton, governor, and Edwards, circuit judge, president of the oyer and terminer of the city of New York, in a case (stated) wherein that court had repi'ieved the capital exe- cution of a prisoner after sentence. id. OYER AND TERMINER. 699 PsI'g. 8. The associate judge of the common pleas of the city of New York, appointed under and by virtue of an act of 1st April, 1839, has authority, two aldermen of the city being associated with him, to hold a court of oyer and term- iner in that city. People v. White, 22 Wend. 167. >S'm- 'preme Court, October, 1839. 9. Where a trial is commenced in the oyer and terminer of New York, the circuit judge and associate judge and two aldermen presiding, and the circuit judge retires from the bench during the progress of the trial, and does not again i-eturn whilst it continues, the trial is, notwithstaifd- ing, regular, and if a conviction takes place, the sentence of the law will not be suspended on account of such de- parture of the circuit judge. id. S: 10- The provision of the Revised Statutes, (2 R. S. 204, § 28 ; 3 R. S. 5th ed. 295,) authorizing the mayor, re- corder and aldermen of the city of New York, or two of them, to sit in the oyer and terminer held in that city as a constituent part thereof, is not a violation of art. 4, sec. 7, of the state constitution in force at the time of its enact- ment. Colt V. The People, 1 Park. Grim. Rep. 611. At Chambers, November, 1842. Before B. H. Walworth, Chan- cellor. fg^i^^ 11. A court of oyer and terminer has no power to grant a new trial on the merits, after a defendant has been convicted of a felony. The People v. The Judges of the Dutchess Oyer and Terminer, 2 Barb. 282, Supreme Court, Dutchess General Term, September, 1847. 12. The oyer and terminer is not a superior court of general jurisdiction. , id. *J^J' 13. "Where an indictment has been found at the general sessions for an offense triable in that court, and the cause is subsequently removed into the oyer and term- iner by an order of a circuit judge, the oyer and terminer has power to order the indictment to be sent back to the general sessions for the trial ; and this without notice to the accused. The People v. The General Sessions of N. Y. 700 OYER AND TEEMINER. 3 Barh. 144. Supreme Court, Kings General Term, May, 1848. 'S: 14. SemUe, that a court of oyer and terminer has power to grant new trials. Per Johnson, J. The People v. Court of Sessions of Wayne County, 1 Park. Grim. Rep. 369. Supreme Court, Cayuga Q-eneral Term, June, 1852. i^JJ; 15. 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, (3 E. S. 5th ed. 1031,) that the defendant was convicted of & felony or a misdemeanor; but the particular offense should be stated. People v. Cavanagh, 1 Park. Grim. Bep. 588. Su- preme Court, at Chambers, October, 1854. Dean, J. fsl^: 16. The court of oyer and terminer has power to grant a new trial on the merits, after a defendant has been convicted of felony. People v. Morrison, 1 Park. Grim. Bep. 625. Greene Oyer and Terminer, December, 1854. Be- fore Harris, J. 17. The question whether the court of oyer and terminer is a superior court of general jurisdiction, discussed, id. tlss!' 18- It is not error for a justice of the Supreme Court to preside at the oyer and terminer, during the year in which he is a judge of the Court of Appeals. McCarron v. The People, 2 Park. Grim. Bep. 183. Supreme Court, Oswego General Term, April, 1855. 19. Although he is a judge of the Court of Appeals, he is also a justice of the Supreme Court, and may exercise all the powers and discharge all the duties of a justice of the Supreme Court. id. Jj^f; 20. A court of oyer and terminer is a court of superior criminal jurisdiction, having power to try- all crimes and misdemeanors, and though its record does not show the service of process on the defendant, its jurisdic- tion over the person will be presumed. People v. Cava- nagh, 2 Park. Grim. Bep. 650. Supreme Court, Kings General Term, July, 1855. 21. Upon a conviction at the oyer and terminer, it is OYER AND TERMINER. 701 sufficient to state in the entry of judgment on the minutes, under the requirement of 2 E. S. 738, § 5, (3 R. S. 5th ed. 1031,) that the defendant was convicted of a misdemeanor ; and a more particular description of the offense need not be stated, nor is a more particular description of the offense necessary in the warrant of commitment. id. ^^; 22. A justice of the Supreme Court, while a judge of the Court of Appeals by virtue of his selection fi-om the class of justices having the shortest term to serve, has authority to preside in a court of oyer and terminer; or to discharge any of the ordinary duties of a justice of the Supreme Court. McCarron v. The People, 13 N. Y. Bep. 74. Court of Appeals, September, 1855. ^l^; 23. In May, 1857, a justice of the Supreme Court had power to hold a court of oyer and terminer in the city of New York, and it was not necessary that two aldermen should be associated with him. People v. Cunningham, 6 Park. Crim. Rep. 398. New York Oyer and Terminer, May, 1857. Before Bavies,. J. "j^- 24. If a court of oyer and terminer has the power to grant a new trial in any case, (and the weight of author- ity seems to be in favor of such a power,) it can only be on the ground that the court is not an inferior court, and the motion must be made before the same court, held by the same judge who tried the case. There is no authority or power for a subsequent court of oyer and terminer to hear a motion for a new trial, where the trial was had before a different judge at a previous court, or to nullify the judgments and proceedings of such previous court. People v. Quimbo Appo, 18 How. Prac. Bep. 350. Su- preme Court, New York General Term, December, 1859. 25. By the constitution and the statutes, the court of oyer and termmer was organized an independent cowrt, not continuing as the other courts, with succeeding terms, &c., but merely continued as they had previously existed, for the purpose of disposing of the criminal business properly belonging to the Supreme Court, and terminating with Y02 OYEE AND TEEMINER. all its powers at tlie time of its adjournment, without any right or authority in a succeeding court to review or change the proceedings and judgment rendered by any previous court. id. ^mo!' 26. The oyer and terminer in the several counties is a permanent and continuous court. Its successive ses- sions are terms of the same, and not distinct tribunals. Quimho Appo v. The People, 20 N. Y. Bep. 531, Court of Appeals, March, 1860. 27. -The oyer and terminer has no power to order a new trial upon the merits after a conviction for felony. id. S' 28. The judges of a court of oyer and terminer have no power to settle and sign a bill of exceptions after a final adjournment of such court. Birge v. The People, 5 Park. Grim. Bep. 9. Supreme Court, Broome Gieneral Term, May, 1860. 29,. Where, after the adjournment of a court of oyer and terminer, a bill' of exceptions in a criminal case which had been tried at such court, was settled by the justice of the Supreme Court, who had presided on the trial, and was afterwards signed by such justice, and also by the two justices of the sessions who sat with him on the trial, and was filed more than ten days after such adjournment, and was afterward returned as part of the record on a writ of error, this court, on motion of the district attorney, ordered the bill of exceptions to be struck from the record. id. 30. The statute provides that in all cases where excep- tions are allowed by law on the trial of any cause, either party may make such exception at the time the decision complained of is made, or .if such exception be made to the charge given to the jury, it shall be made before the jury shall have delivered their verdict, (2 E. S. 423, § 74; 3 E. S. 5th ed. 720 ;) and the next section provides that such exception shall be in writing, but that the court may allow such time as shall be deemed reasonable to settle and reduce the same to form. The court made no order OYER AND TEEMINEE. 703 iu the case before us giving any such time, and there is no time in such a case, unless the rules of the Supreme Court in civil actions are to be deemed to apply. The rule of the court was, at the time of the passage of this statute, that a case or bill of exceptions must be made and served within four days, while the present rule gives ten days. The question arises, then, whether the four- day or the ten-day rule shall control. If the change of the rules of the court in civil actions controls the criminal practice, then defendant had ten days, and served his bill in time. But it may well be doubted whether such is the rule. If the new rule is to control, I do not see how it can relieve the defendant from the effect of the present rule 37, which declares that when a party makes exceptions, he shall procure the same to be filed within ten days after the same shall be settled, or he shall be deemed to have abandoned the exceptions. This bill of' exceptions was not filed until several months after the bill was settled, and the defendant must therefore be deemed to have abandoned his exceptions. Opinion of Mason, J. id. W65.' 31. It seems the court of oyer and terminer may entertain a motion to set aside a verdict for the want of indifference of a juror, on motion, but has no authority to grant a new trial upon the merits. Willis v. The People, 32 JSr. . Y. Rep. 715. Court of Appeals, June, 1865. 32. It seems that when it is made to appear that the pur- poses of justice have been perverted to the injury of the accused by practices dehors the trial, or by procuring im- proper persons to sit upon the jury, or by management of any person which could not be guarded against by ordin- ary care and attention, the court in which the miscarriage took place may set aside the verdict as a mistrial. id. JJ°J; 33. A court of oyer and terminer has jurisdiction to try all cases of murder committed within the county. A murder committed by a soldier in the military service of the United States, in time of war, insurrection or re- bellion, forms no exception. People v. Gardiner, 6 PsLrh. 704 OYER AND TERMINER. Orim. Rep. 143. Supreme Court, Broome General Term, November, 1865. fe 34. The act of 1855, ch. 337, as amended in 1858, ch. 330, has no application to trials of courts of oyer and terminer. It is only when a conviction for a capital offense has taken place in the court of general sessions of the peace, in and for the city and county of New York, that this court is authorized to grant a new trial, " whether any exception shall have been taken or not in the court below." McEee v. The People, 36 N. Y. Rep. 113. GouH of Appeals, January, 1867. (This case is also reported in 34 How. Prac. Rep. 230.) fle'J- 35. The statute makes it the duty of the judges of the Supreme Court of each district to appoint the times and places of holding courts of oyer and terminer within their respective districts; and having made such appoint- ments, a judge has no authority to adjourn such court to be held at another place within such district. Northrv/p V. The People, 37 N. Y. Bep. 203. QouH of Appeals^ Sep- tember, 1867. 36. The court of oyer and terminer, being adjourned to be held in a place within the district, other than that fixed upon by the judges of the Supreme Court, has no au- thority to transact any business at such place of adjourn- ment, and criminal trials and convictions had at such place will be void and be set aside as erroneous. id. 37. Under the Code of Procedure, directing that the places appointed within the several counties for hold- ing the general and special terms, the circuit •courts and courts of oyer and terminer, shall be those " designated by statute for holding county or circuit courts," a court- of oyer and terminer in a county where there are court houses in different places designated by statute as places in which county and circuit courts may be held, after hav- ing met at one of such places, may adjourn to meet at another. People v. Northrup, 50 Barb. Rep. 147. Supreme Court, Orange General Term, September, 1867. PAEDON. 705 38. A power to adjourn, imports a power to put oft" the holding of the court to another time or place. The only restriction on the power is that the place be one designated hy statute. id. 39. Taking into view the whole of section 24 of the Code, it is apparent that the legislature intended to leave the law, regulating the places of holding courts, as it stood at the time of the passage of the Code. . id. Pardon. "•S")' 1. A. having been convicted of forgery, was sen- tenced to the state prison for life. He was afterwards pardoned by the governor. The pardon contained a pro- viso, that it was not to be construed so as to relieve A. from the legal disabilities arising from his conviction and sentence, &c., but only from the imprisonment. He was afterwards offered as ,a witness for the people on a trial of an indictment, and admitted to testify, although objected to as incompetent. It was held that the proviso in the pardon being incongruous, and repugnant to the pardon itself, ought to be rejected, and that the witness was com- petent. People V. Pease, 3 Johns. Cases, 333. Court of Errors, March, 1803. 2. Where a .convict was sentenced to state prison for life, and the governor pardoned him in the following words : " is pardoned, remised and released, of and from the forgery, conviction, sentence and imprisonment, &c., so far as the same extends to the said imprisonment; pro- vided always, and it is hereby declared, that nothing therein contained is intended, or shall be construed, so as to relieve the said Noah Gardner of and from the legal disabilities to him from the conviction, sentence and im- prisonment aforesaid, other than the said imprisonment," it was held that the pardon relieved hifn from all the legal disabilities which attached to him by the conviction and sentence. id. 45 706 PAEDON. • ^fSI: 3. If a prisoner who has been pardoned on condi- tion of leaving the United States within a limited time, do not depart, and is afterwards taken up for not so doing, he may, on its appearing to the court that he was deranged in his intellect, be discharged on condition of departing within the same period from the day of discharge. People V. James, 2 Gaines' B. 57. Supreme Court, May, 1804. ^Ji^il; 4. After conviction and before sentence, the keeper of a prison has no right to discharge a criminal convict upon the production of a pardon ; the court only is to judge of its validity. John Merritt's case, 4 Gity Hall Recorder, 58. Before Golden, Mayor. New Yorh, April, 1819. mJ; 5. John ]S"eafie was offered as a witness, and records were produced showing that during the month of June, 1806, at the Orange oyer and terminer, he was convicted of three distinct grand larcenies, on the first of which he was sentenced to the state prison two years, on the second one year, and on the third two years. On the — of Sep- tember, 1808, he received a pardon, which recited a con- viction for grand larceny at the same court, in the month of June, 1806, and a sentence iovfive years; and the par- don thereupon released and acquitted him from further imprisonment. The court decided that the pardon was of no avail, and the witness offered was therefore incom- petent. It appeared from the record produced that there were three several convictions for grand larceny, on each of which the prisoner was sentenced for a term less than five years, and the pardon produced recited a conviction for that offense and a sentence for five years. Though the several terms on the conviction amount to five years, and the offense was the same, yet it cannot be justly inferred that the .pardon was intended to apply to the whole or either of those convictions ; and, for aught that appears, the prisoner may haVe been convicted of some other grand larceny, at the same court, during the same month ; and the pardon may have been granted for that offense. A pardon should recite truly, and to a certainty a common PAEDON. 707 intent, the conviction which it is intended to apply. Gil- bert B. Hutchins' case, 4 City Hall Recorder, 119. Before Golden, Mayor. New York, September, 1819. ^illl^' 6. The power conferred upon the executive by the constitution to grant pardons, includes the power of granting a conditional pardon. The People v. Potter, 1 Park. Grim. Bep. 47. At Chambers, March, 1845. Before JEdmonds, J. 7. Such condition may be banishment from the United States, and on a breach of the condition the pardon be- comes void, and the criminal may be remanded on his original sentence. , id. 8. The power to remand him can be exercised by the court in which he was convicted, or by any court of supe- rior criminal jurisdiction. id. 9. The statute has not prescribed any mode of proceed- ing in such cases. At common law the oftender 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 execution should not be awarded against him on his former conviction. He is then put at the bar, the recordof 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 fact is awarded, returnable instanter, and if found against him, or if he confess that he is the same person, the court orders execution of the original sentence. There are other questions (according to the nature of the condition) for the consideration of the court, as whether the prisoner has had proper time to comply with the condition — whether he has been pre- vented from doing so by sickness, mental alienation, or the like, or in case of banishment, whether he had been brought back forcibly and against his will. id. 10. The practice you mention as having obtained in sucb cases, of recommitting to the state prison, without any warrant or adjudication, is, in my opinion, neither war- 708 PARDON. ranted by law or a just regard to personal liberty. Letter of Greene 0. Bromon, attorney general, printed in this case, commented on and adopted by the justice delivering the opinion. id ^^i\ 11. A person convicted of perjury is an incompe- tent witness, though he has been pardoned by the gov- ernor, and the pardon purports to restore him to all his civil rights, the legislature having provided that such con- vict 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. Eoughtaling y. Kel- derhouse, 1 Park. Grim. Rep. 241. Supreme Gourt, Albany General Term, May, 1851. fsfg. 12. A pardon may be alleged in opposition to a conviction, and may also be alleged as an answer to a return on habeas corpus. In re Francis B. Edymoin, 8 How. Pr. Rep. 478. Cayuga County, at Chambers, A'agust, 1853. Before Humphreys, County Judge. 13. Where a pardon was made out, executed and deliv- ered to the warden of the state prison, for the discharge of Francis B. Edymoire, and it appeared on return by tha warden, to a writ of habeas corpus, that the name of the prisoner, in fact, was Francis B. Edymoin ; held, that the variance was unimportant, and did not vitiate the par- don, id. 14. The constitution (art. 4, § 5) vests the governor with the power and general jurisdiction to grant pardons, ex- cept in specified cases; and the legislature directs as to the manner of making the application in one particular, that is, that notice of. the application for a pardon must be served upon the district attorney of the county in which the conviction shall have been had, &c. Seld, that the non-compliance with this provision did not deprive the governor of his jurisdiction tc^ pardon. The governor's jurisdiction does not depend upon an application for a pardon being made to him in a particular way. id. 15. Where the governor has jurisdiction to pardon, and PEKJUEY. 709 has exercised it, the court, on habeas corpus, cannot go behind the pardon to inquire into the regularity of the proceedings. id. 16. Nor can the question be raised, on habeas corpus, whether the pardon was obtained by false and fraudulent pretenses. id. 17. "Where it appears, upon habeas corpus, that the par- don is fair on its face, and an unconditional one, that puts an end to any inquiry into the manner of obtaining it. id. Pekjurt. ^^^_' 1. In an action of slander, for charging the plain- tiff with having sworn falsely, and committed perjury, in swearing out an attachment, &c., before a justice of the peace, it was held that as the statute authorized the justice to issue the attachment on satisfactory proof, it was left to his discretion to decide on the proof; and where he took the oath of the party, which was not legal evidence, this was held an error of judgment, and not an excess of juris- diction, and the proceeding was therefore erroneous, only, not void ; and perjury may be assigned in an oath erro- neously taken, especially while the proceedings remain unreversed. Van Steenburgh v. Kortz, 10 J. R. 167. Su- preme Court, May, 1813. Xiw. 2. "Where S. sued R. in the marine court of the city of New Tork, and the cause was tried by one of the justices of that court, in presence of another justice, who did not particularly attend to the said cause ; held, that a cause tried in that manner is tried before a competent tribunal; and on the traverse of sUch indictment, it is sufficient for the public prosecutor to show that the oath alleged to be false was taken before such tribunal, by the testiinony of one credible witness ; nor is it requisite that the taking of such oath should be proved by the testimony of the court or magistrate before whom it was taken. Frederick Johnson's case, City Hall Recorder, 21. Before Badcliff, Mayor. February, 1816. 710 PEEJURY. 3. The falsity of the oath, in a prosecution for perjury, must be proved by at least two witnesses ; but the mate- riality of such oath to the issue, and the knowledge of the prisoner that such oath was false, are matters of fact to be deduced by the jury from the whole circumstances of the case. id. ?ai6. 4. "Where E. was indicted for willful and corrupt perjury, committed in an affidavit, sworn to for the purpose of removing the proceedings instituted by one of the police justices against a vagrant, then in Bridewell, into the Supreme Court, by certiorari, and on the trial of such indictment, two unimpeached witnesses, on behalf of the prosecution, expressly swear to the falsity of a particular statement in the affidavit, which is decided by the court to be material, should the jurors believe that such statement, though false, was not willful and corrupt, it will be their duty to acquit the prisoner. Robert Elwell's case, 1 City Hall Recorder, 155. Before Radcliff, Mayor. New York, October, 1816. 5. Where the prisoner was brought before a justice by warrant, and confessed judgment and claimed his privi- lege from execution, on the ground that he was a man of family, and the justice administered an oath to the pris- oner, who swore that he had been married three weeks ; it was held, that this was an oath administered by one having competent authority, under the statute, and for all practical purposes administered during the trial of the cause. Thomas Gilbert's case, 1 City Mall Recorder, 163. Before Radcliff, Mayor. New York, October, 1816. {""a, 6. The oath 'taken, assigned as perjury, must be material to the question in controversy, and corrupt, or it cannot amount to that crime. Michael Pendegrast's ' case, 3 Oity Hall Recorder, 11. Before Radcliff, Mayor. New York, January, 1818. 7. P. became a petitioning creditor, to the amount of $950, for R, under the insolvent act, and swore to an affidavit prescribed in the act, before a master in chancery, PERJURY. 711 by the uplifted hand ; afterwards, when the time for the creditors of R. to show cause before the recorder of New York had arrived, and R.. applied for his discharge, cer- tain of his creditors opposed him, and produced P. as a witness to prove that R. was not indebted to him. On that occasion P. affirmed before the recorder, that he did not swear before the master to the affidavit then produced to him ; that he never swore in his life ; but that he affirmed ; held that P. was not guilty of perjury, inasmuch as it was immaterial to the inquiry before the recorder, whether P. swore or affirmed to the facts in the affidavit taken before the master ; and that the jurat of an officer authorized to take affidavits is conclusive evidence of the taking of an affidavit. id. "Isis." 8. The oath assigned as perjury in an indictment was, that the defendant " saw M. G. and M. F. hand a trunk through a window in the rear of the house of J. If. G. on the same night it had been stolen, and that he saw the same trunk handed to J. N. G. through the said window, and that he saw the said J. IS. G. place the same in the smoke-house." On the trial of this indict- ment, it a:ppeared that on the former trial the defendant swore that he saw a man on the back stoop, (whom he afterwards recognized to be J. if. G.,) and two women at the window hand him out something about a foot and a half long, which looked like a trunk. Though this was the subject matter of the former trial, and was frequently referred to during its progress, it was held that the vari- ance between the oath set forth in the indictment and the proof, was fatal. Reuben Rider's case, 3 Oity Hall Re- corder, 93. Before Oolden, Mayor. New York, June, 1818. IsisI' 9. The falsity of the oath assigned as perjury must be verified by more than the oath of a single witness; but it is not necessary that two witnesses should be produced, on the part of the prosecution, to prove the falsity of such oath. All that is necessary on this point is, that where the oath of the party accused is balanced by the oath on 712 PERJURY. the part of the prosecution, the public prosecutor should throw sufficient in the scale of testimony, \>y positive tes- timony or circumstances on his side, to cause a prepon- derance. John Merritt's case, 4 City Hall Recorder, 58. Before Golden, Mayor. New Yorh, April, 1819. fs°i^, 10. "Where a complaint for a misdemeanor was entered in the police office on the 4th of October, on which day the court of sessions, in and for the city and county of Ifew York, commenced its term, and on the 5th of October the prisoner offered to justify as bail in the same case, and did so ; it was held that the police magistrate had competent authority at common law, to administer an oath touching the sufficiency of such bail, on his justify- ing; and if such oath, in a material matter, be false, a prosecution for perjury might be sustained against him. Charles Tomlinson's case, 4 City Hall Recorder, 122. Be- fore Colden, Mayor. New York, October, 1819. 11. Though in such case it must appear from the matter spread on the face of the indictment that the oath was material in the subject of inquiry, yet it is not necessary that it should be expressly averred in the indictment that such oath was material. id. 12. Where an indictment alleged that the prisoner swore "that he was then the owner of .the house number 106 Mulberry street,." and proceeded by way '^f innuendo thus, (meaning a certain house of that number in Mul- berry street, in ti,e city of New York aforesaid;) it was held that those words in the innuendo, designating the city, were but explanatory, and did not extend or enlarge the meaning of the matter preceding. And it was further held, that the averment of the falsity of that oath in the indictment, "that he was not the owner of the house 106 Mulberry street," without the words, " in the city of l^ew York," was sufficient. id. 13. Though the averments of the falsity of the oath, in an indictment for perjury, negative each allegation in the J» PERJURY. 713 oath, yet it is not necessary, on the trial, that every part of the oath averred to be false should be so proved. id. 14. In a proceeding for bastardy, after the woman has sworn who is the putative father, and he has entered into the usual recognizance before the magistrate to appear in the sessions, an affidavit taken by the mother before him, stating that the child was dead, though false, is a proceed- ing coram non Judice, upon which a prosecution for per- jury cannot be predicated. To constitute perjury, the oath must be taken before some magistrate competent to admin- ister it. Catharine Wood's case, 4 City Hall Recorder, 130. Before Colden, Mayor. New York, October, 1819. •',523.' 15. In alleging the commission of perj ury, the day laid in the indictment is not material, and the offense may be proved to have been committed on any other day, before or after the time laid. People v. Eoag, 2 Park. Orim. Bep. 9. Clinton Oyer and Terminer, July, 1823. Before Walworth, C J. (This must mean, of course, any time before the date of the indictment.) 16. That the prisoner was intoxicated, is no defense to an indictment for perjury. People v. Willey, 2 Park. Orim. Pep. 19. Montgomery Oyer and Terminer, July, 1823. Before Walworth, C. J. fglJ 17. Where, in an indictment, the accused is charged with perjury, in swearing to an affidavit, the affidavit must be set forth in the indictment. People v. Bohertson, 3 Wheel. Cases, 180. Biker, Becorder. New York, December, 1824. 18. The common form is, that he came before the person or the court and exhibited the affidavit or paper writing, that person or court having competent authority ; and if the indictment does not conform to these general princi- ples of law and established forms of criminal proceedings, it will not warrant a judgment to be passed upon it. id. P^'o 19. A witness may be convicted of perjury in falsely swearing to a promise within the statute of frauds, although parol evidence of the promise would not be competent if objected to. Such evidence is material, and therefore the 714 PEEJUKY. action of slander will lie for imputing perjury in respect thereto. Howard v. Sexton, 4 N. Y, Rep. 157. Court of Appeals, October, 1850. fsli: 20. Form ofindictment for perjury, in falsely swear- ing that usury was taken in discounting a promissory note. People v. Burroughs, 1 Parle. Crim. Hep. 211. Su- preme Court, Albany General Term, February, 1851. 21. Where it does not appear on the face of the record, by the statement of the issue and evidence in the indict- ment, that the matter alleged to be false is material, it is sufficient to aver in the indictment that the matter in rela- tion to which peijury is assigned, became and was mate- rial upon the trial. id. 22. Where, in a suit brought by a bank on a promissory note, the defendant had testified as a witness in behalf of the indorser that F., who at that time was president of the bank, had taken usury in discounting the note, it was held, on a trial 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 trans- action, 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. id. 23. 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 indorser, and S. McF. and the defendant as joint makers, the evidence of the defendant in such case being only available in behalf of the indorser. ■ id. 24. Where, on an indictment for perjury in having Dec. 1891. ^ PERJUBY. ' 715 sworn falaely as to the ability of tlie defendant to become bail for a prisoner charged with crime, the indictment charged that the perjury was committed upon an exam- ination had after he had been previously sworn to make true answers to such questions as should be put to him touching his qualifications and competency to be and become bail, &c. ; and it- appeared on the trial that after the answers of the defendant to certain interrogatories 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 indictment. Smith v. The People, 1 Park. Grim. Bep. ,317. Supreme Gourf, New York General Term, December, 1851. 25. And where the indictment charged that the perjury was comimitted on the defendant's ofl'er to become bail for one Thompson, committed on McDonald's complaint in default of bail for $500, and the evidence showed the per- jury to have been committed on defendant's examination as bail for Thompson, committed on the complaint of Sayre and others in default of $3000 bail, it was also held to be a material variance, and that, the proof did not sup- port the indictment. id. ^mH' 26. A challenged voter swearing falsely before a de facto board of inspectors, is liable to the same punish- ment as if the oath had been administered by inspectors de Jure. The People v. Gook, 4 N. ¥. Bep. 67. Gourt of Appeals, March, 1853. 27. An oath irregularly administered, e. g., upon a book other than the holy evangelists, the parties administering and taking it, supposing it a bible, is a valid oath. id. 28. 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 the referee are superfluous : he acquired jurisdiction by the 716 , PERJURY, order of reference duly made. People v. McGuims, 1 Park. Grim. Rep. 387. Supreme Court, Monroe General Term, March, 1853. ?854'. 29. Perjury cannot be assigned to a false oath to a protest taken before a- notary public, as part of the pre- liminary proofs in case of a marine loss. The oath in such a case is a voluntary and extra-judicial proceeding. Peo- ple V. Travis, 4 Park. Crim. Rep. 213. Superior Court of Buffalo, Criminal Term, December, 1854. Before Clin- ton, J. (By an act of the legislature, passed May 7, 1863, chap. 508, p. 880, the powers of notaries public are ex- tended, as follows : " § 2. JSTotaries public shall have all the powers now conferred upon them by law, and shall also have power to take affidavits and certify to the same, and to take and certify the acknowledgment and proof of deeds and other instruments in writing, in all cases where justices of the peace or commissioners of deeds may now take and certify the same." •^^jj'; 30. Form of an indictment for perjury alleged to have been committed in a proceeding to obtain the natu- ralization of an alien in a county court. People v. Stoeet- man, 3 Park. Crim. Rep. 358. Supreme Court, Jefferson General Term, April, 1857. ■5,857.' 31. "Where a person testifies to what is true in fact, but at the time he testifies does not know it to be true, and has no knowledge on the subject, if such testimony be material and the act willfully committed, such person is guilty of perjury, and may be convicted under an indict- ment in the ordinary form. People v. McKinney, 3 Park. Crim. Rep. 510. Supreme Court, Saratoga General Term, June, 1857. 32. "Where, in an action on an alleged contract, in which the making of the contract was in issue, a witness testified that he went with the parties to the field where the contract was made, and was present at the making of the contract, and heard it agreed to.by the parties, and that no other persons were present except himself and the PEEJUEY. 717 parties to tlie contract, and it appeared on the trial of an indictment against such witness for perjury, in giving such evidence, that such witness did not go to the field where the contract was made, and was not present and had no knowledge of the transaction, it was held that such evi- dence was circumstantially material, and that the witness, having testified willfully, was guilty of perjury. id. 33. Form of an indictment for perjury, committed in a civil action, tried before a justice of the peace. id. ^^i^' 34. It is not necessary, even on an indictment for perjury, to prove the identical words or language of the party charged ; it is sufficient to prove substantially what he said, and all that he said, on the point in question. Fowler v. The People, 18 How. Prac. Bep. 493. Supreme Court, New York General Term, March, 1860. "^86?' 35. A witness who testifies falsely as to a material fact is guilty of perjury, though he was not a competent witness in the case, and especially inadmissible to prove the particular fact to which he testified. Chamberlain v. The People, 23 N. Y. Bep. 85. Court of Appeals, March, 1861. 36. So held, where, in an action for divorce, the hus- band — his wife having borne a child — testified that he had had no sexual intercourse with her during marriage, id. ^867."' 37. "Where a party, from corrupt motives, erased the signature of the subscribing witness to a deed, and pro- cured the instrument to be recoi'ded by falsely swearing that he was himself the subscribing witness ; held that he was properly convicted of perjury. Tuttle v. The People, 36 N. Y. Bep. 431. Court of Appeals, March, 1867. 38. In such a case, it is no defense that the accused acted upon the advice of counsel in taking the oath, if the jury are satisfied from the evidence that he acted in bad faith, and sought the advice as a mere cover to secure immunity against the penalty of his crime. id. 718 PRACTICE. Practice. • °802. !• Where an indictment was found at the general sessions of the peace of the county, and the defendant was convicted at the oyer and terminer, and the indictment was removed into this court, with a caption stating that the grand jury were sworn and charged, omitting the words " then and there ;" on motion in arrest of judgment, the omission of those words was held fatal, and the judg- ment arrested. People v. Guernsey, 3 Johns. Cases, 265. Supreme Court, October, 1802. fs^^: 2. "Where a prisoner was tried at general sessions for grand larceny and brought before the Supreme Court, on suggestion of its being a second offense, it was held that no other judgment could be given tjian the court be- low might have pronounced. People v. Youngs, 1 Caines' B. 37. Supreme Court, May, 1803. 3. The court will not pronounce judgment on a prisoner convicted at an oyer and terminer, if the record of his conviction be not before them^ but will admit to bail. McNeill's case, 1 Caines' B. 73, Supreme Court, May, 1803. fs"^!: 4. If an indictment be removed from the sessions into the Supreme Court, any exceptions may be taken to the charge of the judge by making a case, and bringing it before the court, in the same manner as in civil proceed- ings. People V. Oroswell, 1 Caines' Bep. 149. Supreme Court, August, 1803. J^?5; 5. If a defendant has been prevented by adverse winds from showing cause against a rule for an informa- tion, and the same has been made absolute for want of cause shown, the court will set it aside, of course, on an immediate application. People v. Freer, 1 Caines' B. 395. Supreme Court, November, 1803. fs'J^; 6. A subpoena ticket for a person to attend as a witness in the Supreme Court is good, though it does not specify the place in which the court was to be held. So if it be to testify in an indictment in the Supreme Court, when PRACTICE. 719 that against the party named is in the oyer and terminer. People V. Van Wyck, 2 Oaines' JR. 334. Supreme Court, February, 1805. 7. Cause maybe shown against a rule for an attachment by affidavit, the party not being bound to appear in per- son, id. falsi; 8. If an attorney withhold the money of his client, this court will afford relief in a summary way, by attach- ment, without driving the client to an action. People v. Smith, 3 Oaines' B. 221. Supreme Court, August, 1805. \ai'. 9- -^ counsel has a right, by law, at reasonable hours of the day, to go within the walls of a jail, for the purpose of advising with his client, and the exercise of that right may be enforced by attachment. The enforcement of that right by the court, on application, is discretionary; but such discretion is a legal discretion, and to be used according to the due course of law. In the matter of the Sheriff and Jailor of the City and County of New York, on the complaint of Wm. W. McClelan, ^c, 1 Wheel. Cases, 303. Biker, Recorder. New York, July, 1815. 10. Every court of record has the power, by common law, to control its own officers. . id. fj^,^; 11. An application to postpone a trial for want of a material wiiness will be denied, where it appears that even if the witness was produced he could not prove the fact relied on, especially where the object of such post- ponement is to create delay. John W. Brigham's case, 1 City Hall Becorder, 30. Before BadcUff, Mayor. New York, February, 1816. JJfJ' 12. Though according to the strict rules of practice, where a man appears by counsel, he shall be precluded from examining witnesses and addressing the jury, yet such rules may be relaxed in favor of a foreigner, under peculiar circumstances, in a criminal prosecution. Joseph Decosta's case, 1 City Hall Becorder, 83. Before BadcUff, Mayor. New York, May, 1816. If^l 13. In a criminal prosecution, after the testimony 720 PEACTICE. is closed on both sides, and the counsel on behalf of the prisoner have submitted their remarks to the jury, the public prosecutor will be permitted to introduce material evidence, should it appear to the court that such evidence is newly discovered, and that he was not previously apprised of its existence ; but this rests in the discretion of the court, who, in the exercise of it, will be careful that the rights of the prisoner shall not be thereby prejudiced; and in case of the prisoner, he can, as a matter of right, at any stage of the trial, before the jury has retired to delib- erate, introduce newly discovered evidence. Joel Sturdi- vant's case, 1 City Hall Recorder, 110. Before Radcliff, Mayor. New York, July, 1816. 14. On the question of identity of bank bills, alleged in an indictment to have been stolen, which have been re- cently drawn from the bank, and on which the owner has put no particular mark, the jury had a right to take all the circumstances of the case in connection, and judge from the whole, whether the bills found on the prisoner were the same bills alleged to have been stolen ; confirming the holding of court in the case of Ferguson, (1 City Hall Ke- corder, 65.) John, Williamsons case, 1 Oity Hall Recorder, 114. Before Radcliff, Mayor. New York, July, 1816. ^if; 15. The affidavit of one of the jurors, in a criminal trial, after the verdict has been regularly entered, will not be received by the court, on a motion for a new trial, to impeach such verdict. John Francis and John Jones' cases, 1 Oity Hall Recorder, 121. 'Before Radcliff, Mayor. New York, August, 1816. ^Ife': 16. The court will not interfere to discharge a per- son from arre^ who was taken immediately after he was discharged by the court, on civil process in a suit brought for the recovery of money for which he had given checks, unless, in a motion to the court for the discharge of such person, express authority can be shown that a prisoner discharged by the court is entitled to the same privilege from arrest as the law allows to suitors and all those at- PEACTIOE. 721 tending court, concerned in the administration of justice. George Lynch's case, 1 City Mall Becorder, 138. Before Badcliff, Mayor. New York, September, 1816. 17. Where two persons are jointly indicted, under the first and ninth sections of the "act to prevent forgery and counterfeiting," (vol. 1 K R. L. p. 407,) they may be tried jointly, and are not entitled to be tried separately. George Wellington and Abel S. Franklin's cases, 1 City Ball Be- corder, 144. Before Badcliff, Mayor. New York, Septem- ber, 1816. 18. It seems that a right of a peremptory challenge to a juror by one prisoner, when exercised, does not derogate from the rights of his associate on the trial, who might choose to retain the same juror on the panel; inasmuch as the right of challenge is founded on some legal objection, and not on choice. id. °°J; 19. A prosecutor who appears before the court, and in his relation concerning a felony committed, neces- sarily discloses his own infamy, will be recognized by the court for his good behavior ; and all witnesses appearing on a trial, in which gross corruption is manifested, who by their own showing are disorderly persons, will be de- livered over to the police to be dealt with according to law. Zeno Carpenter and Mary Ms wife's case, 1 City Hall Becorder, 164. Before Badcliff, Mayor. New York, Octo- ber, 1816. N»J- 20. In a prosecution against a woman for bigamy, evidence of barbarous treatment by the first husband, before the marriage with the second took place, is inad- missible, but will be received by the court in mitigation of her punishment; this can be shown by the affidavit of the prisoner or any other person. Nancy Walworth's case, 1 City Sail Becorder, 171. Before Badcliff, Mayor. New York, November, 1816. 21. Two or more prisoners jointly indicted for the forgery of bank paper and passing the same, knowing it to be forged, are not entitled to a separate trial as a mat- 46 722 PEACTICE. ter of right; but the court, for special reasons shown, wil] order a separate trial as a matter of favor. Thomas Shaw and Philip Harkins' case, 1 City Hall Becorder, 177. Before Badeliff, Mayor. New York, November, 1816. 22. It seems where the wife is a material witness in favor of one indicted with her husband, the court will grant a separate trial. id. Ps^iJ: 23. On the trial of an indictment for manslaughter, stating the offense to have been committed in the ninth ward of the city and county of New York, and it ap- peared that the offense, if any, was committed in another county ; held that the court of general sessions of the city and county of New York had no jurisdiction; and, in such case, where the jury acquit the defendant, the court will suspend his discharge until an application can be made to some magistrate having authority, to recognize the de- fendant to appear at the next court of oyer and terminer to be held in the county where the crime was committed. Caleb Oriswold's case, 1 City Hall Becorder, 181. Before Badeliff, Mayor. New York, December, 1816. fs^i^; 24. An assault and battery cannot be compoudded by the parties unless through the special interposition of the court, nor will the court consent to such compounding without the approbation and consent of the district attor- ney after indictment ; and where an assault and battery, which in the judgment of the district attorney was of an infamous nature, had been thus compounded, and the costs paid to the clerk, it was hel^ that the former officer was not precluded from bringing on the case for trial. Johrh Gilmore's case, 2 City Sail Becorder, 29, Before Badeliff, Mayor. New York, February, 1817. 25. An indictment at common law cannot be maintained for a mere trespass. Feter Nelson's case, 2 City Hall Be- corder, 30. Before Badeliff, Mayor. New York, February, 1817. 26. Should the jurors, in a case of grand larceny, not be able to agree, and after staying out a reasonable time, PKAOTICE. 723 and returning into court are. discharged, the prisoner may be tried again for the same offense by another jury. Noah M. Sauxhunt'g case, 2 City EaU Recorder, 33. Before Eadoliff, Mayor. New York, February, 1817. 27. Where two are indicted jointly, and on the trial some evidence is introduced on behalf of the prosecution, showing that the prisoners were aiding, abetting and assisting in the commission of a felony, the court will not interfere in advising the jury to acquit one of the prison- ers that he may be sworn as a witness in favor of the other. Thomas Brown, and William Bay's cases, 2 City Mall Becorder, 38. Before Badcliff, Mayor. New York, Feb- ruary, 1817. ^JlIJj'' 28. "Where the husband is convicted of an out- rageous assault and battery committed on the wife, whom he has left in a helpless situation, destitute of the means of support, the court will suspend his sentence to ascer- tain whether a reconciliation will take place; and if it does not in a reasonable time, and the husband remains obstinate, the court will inflict such a fine as will bring him to a sense of his duty. John Gamble's case, 2 City Sail Becorder, 44. Before Badcliff, Mayor. New York, March, 1817. ffl'a 29. An affidavit of the want of material witnesses, made for the postponement of a trial during the same term an indictment is found, and within a few days after such finding, need not allege the particular matters which the defendant expects to prove by such witnesses ; and in deciding on the propriety of postponing such trial, the court will not regard matters not before it on affidavit. Amos Broad and John Beitz's cases, 3 City Sail Becorder, 7. Before Badcliff, Mayor. New York, January, 1818. 30. After a conviction for a nuisance, .in conducting a lawful business, the court will suspend the sentence a rea^ sonable time, to give the defendant an opportunity to abate such nuisance. id. liii 31. Where an indictment consisted of divers 724 PEACTICE. counta, some of which contained a charge for an indictable offense, and others not, it is the right of the party against whom a general verdict may be rendered, to inquire of the jury, on their return, whether they find the defendant guilty on all the counts, or on either, and which of them, and the jury are bound to answer such inquiry ; but the party has no right to interrogate a jury as to the particular reasons or grounds of their verdict. Mordeeai M. Noah's case, 3 Oiti/ Hall Beeorder, 13. Before Badeliff, Mayor. New York, February, 1818. ^S 32. The public prosecutor is not bound to bring on a case for trial until the last day of the term next after that in which the indictment was found ; at which time, if the defendant has been ready for trial, and no sufficient cause be shown on the part of the prosecution, the court may discharge him from his recognizance or from prison. Senry B. BagermarCs case, 3 City Mall Recorder, 73. Before Golden, Mayor. New York, June, 1818. 33. Matter not admissible in justification of an assault and battery, but which goes merely in mitigation of the punishment, will not be received by the court on the trial of an indictment for that offense. . Such matter should be laid before the court by affidavit only. id. 34. In a prosecution for an assault and battery, the court will receive affidavits in mitigation of the punishment, from the defendant after conviction, and affidavits in aggravation on behalf of the prosecution ; but if no affi- davits in mitigation are presented, or if so, withdrawn by leave of the court before inspection, affidavits in aggrava- tion will not be received except for some special cause, id. 35. When affidavits in mitigation are received by the court, the prosecutor has no right to demand their inspec- tion, or reading, to enable him to prepare counter affida- vits; but should the court be in want of information relative to any matter disclosed in the affidavits, on either side, the court will hand back the affidavits, confining the parties to particular points. id. PRACTICE 725 . 36. After the testimony on both sides has been submit- ted to the jury in a case of perjury, they must pass thereon ; and the public prosecutor will not be suffered to enter a nolle prosequi on the indictment. Reuben Eider's case, 3 City Hall Recorder, 93. Before Oolden, Mayor. New York, June, 1818. ^^^- 37. Affidavits submitted to the court after verdict, for the purpose of mitigating the punishment, should not controvert the facts upon which the verdict is founded ; and if they do, they will not be regarded by the court. Barney Rooney and Margaret Ms wife's case, 3 City Hall Re- corder, 128. Before Golden, Mayor. New York, August, 1818. °fg_ 38. A certiorari, issuing from the Supreme Court to the sessions, on the motion of two defendants indicted with another for a misdemeanor, is effectual for the removal of the indictment against the whole, though the third does not participate in the motion. Robert McBermut, Andrew 8. Garr and Creorge Caine's case, 4 City Hall Recorder, 12. Before Thompson, C. J. New York Oyer and Terminer, October, 1818. 39. Should the public prosecutor, for the purpose of supporting an indictment for a conspiracy, produce in evi- dence an injunction from chancery^ previously obtained in favor of either of the defendants on trial, and also a notice of a motion in the Supreme Court, and the rule obtained thereon in their behalf, they are entitled to the benefit, as well of the allegations contained on the bill upon which the injunction was granted, as of those in the affidavits upon which the motion was founded. id. f/p'' 40. B. was convicted on an indictment for grand larceny, in stealing one guinea of the value of $4.75, thirty doubloons of the value of $15 each, and four hundred and forty-four Spanish dollars. On the trial, it appeared that there were found in possession of the prisoner one hun- dred and thirty-six Spanish dollars, among which was one identified to be the money of the prosecutor, and a greater number of doubloons than laid in the indictment ; it was 726 PEAOTICE. held that the prosecutor, on application, was entitled to an order for the restitution of the money laid in the indict^ ment. Alexander Ball's case, 4 Oity Hall Recorder, 113. Be- fore Golden, Mayor. New York, September, 1819. 41. After conviction, the court will not hear an affidavit of the prisoner's wife, denying any facts on which the ver- dict was founded. They admit affidavits in mitigation, not in contradiction. id. fs'g. 42. Though the examination of one prisoner against another indicted with him is not evidence before the jury, yet the court, in apportioning punishment to each of the prisoners, will regard the matters set forth in such exam- ination, so far as they may appear corroborated. Peter Bowerhan, Samuel Hophins, William Vanderburgh, Adam Vanderburgh, James Vanderburgh and Bdward Fitzgerald's case, 4 Gity Sail Recorder, 136. Before Golden, Mayor. New York, October, 1819. 43. A prisoner tried with another is not entitled to call for a verdict of acquittal, that he may be sworn as a wit- ness, unless where no evidence whatsoever against him has been produced. id. .44. Where an oral confession, in the first instance, has been made under the influence of a promise of favor, and afterwards an examination of the prisoner in the usual man- ner takes place in the police, being a reiteration of the first confession, it shall be left to the jury to determine, from the circunstanees, whether the promises continued their influence on his mind until his examination in the police; and if so, it is to be rejected. id. S';^; 45. A copy of the affidavit upon which a motion for a rule to show cause is founded, together with a certi- fied copy of such rule, should be served on the party re- quired to show cause in a proceeding for an attachment. John Neafie's ease, 4 Gity Hall Recorder, 168. Before Golden, Mayor. New York, November, 1819. 'S: 46. Though a judge at nisiprius may not under- take to quash an indictment sent down by the Supreme PRACTICE. 72T Court, to be tried before him, yet he will refuse to bear evidence affecting tbe moral character of an individual, on a particular count, which does not contain a criminal offense. G-eorge W. Niven's case, 5 Gity Hall Recorder, 79. New York Oyer and Terminer, June, 1820. Before Yates, J. 47. Though it is a rule that a man shall be estopped from impeaching a judgment confessed by himself, yet the rule does not apply to a criminal case, wherein the judg- ment is alleged to have been obtained fraudulently by a third person. ,, id. PsIS: 48. The admission of testimony at any stage in a criminal case rests in the sound discretion of the court ; and where the testimony had closed on both sides, and the counsel for the prisoner, in his remarks to the jury, insist- ed on an acquittal, because the district attorney had not proved that the property belonged to the persons men- tioned in the indictment; it was held, that he might re- call and examine the principal witness in the case to that point, inasmuch as this omission, during his previous ex- amination, was the result of mistake. Berthina Tucker's case, 4 Oity nail Recorder, 164. Before Oolden, Mayor. New York, December, 1820. ll^i 49. The court will not hear the affidavit of a pris- oner read, for the purpose of putting off" his trial, contain- ing facts, in addition to those contained in another previ- ously read, on which such motion had been denied, on the ground that to permit a prisoner to make an affidavit con- taining facts which must have been within his knowledge at the time a previous one was made, on which a motion to postpone his trial had been denied, would be a tempta- tion to commit perjury. Tellesphore Robetdille's cases, 5 Oity Ball Recorder, 171. Before Golden, Mayor. New York, January, 1821. 50. An objection to one of the members of the court sitting to try a prisoner, on the ground that he was a director of one of the banks, whose paper, \n the indict- ment, was alleged to be counterfeit, should be made before 728 PEACTIOE. witnesses have been sworn, and tlie trial has progressed, Louis Lampier's case, 5 City Hall Beeorder, 179. Before Golden, Mayor. New York, January, 1821. fs^f: 51. Practice and practical forms of removing an indictment from the oyer and terminer to the Supreme Court, after conviction, where a question of law is reserved at the trial, and the convict is in prison. See notes b, c, and d, in connection with the principal case. People v. Van Santvoord, 9 Oowen, 655. Supreme Court, August, 1821. Si?; 52. It is a general rule, that after the counsel on both sides have submitted their remarks to the jury, fresh testimony cannot be introduced ; but this is a matter of discretion with the court. William Phelan's case, 6 City Mall Recorder, 91. Before Biker, Recorder. New York, De- cember, 1821. 53. After the counsel on either side have addressed the jury, testimony of a fact, concerning which such counsel must have been previously apprised, will not be received, id. Ilis. 54. The court will not hurry on a trial at the end of a term, where it appears the indictment was found but one day previous, and the prisoner makes oath that he has an absent witness who is material, but does not state that he has used due diligence, or that he expects to have his testimony at a certain time. People v, Lee, 1 Wheel. Cases, 17. Biker, Recorder. New York, September, 1822. 65. In suspicious cases, where an affidavit is made in the usual form of the absence of a material witness, the court will direct the counsel for the prisoner to join in a com- mission with the district attorney to take the testimony of such absent witness, and will allow a reasonable time for the execution of the commission ; but if he does not choose to join in such commission, they will coinpel him to show his absent witness is material. People v. Hettick, 1 Wheel. Cases, 26. Biker, Recorder. New York, Sept. 1822. 56. A prisoner has no right to claim his trial on any day of the first term, where the district attorney is not ready ; nor to adjourn it to the next after the following term. PEACTICE. 729 People V. McLane, 1 Wheel. Oases, 31. Biker, Becorder. New York, September, 1822. 57. On a prosecution for an assault, and no prosecutor appearing, after the district attorney has called on the trial and a jury sworn, it being the next term after the charge made, and the same term the indictment is found, a ver- dict of not guilty ought to be taken, and the prisoner dis- charged. People V. Mclntyre, 1 Wheel. Cases, 32. Biker, Becorder. New York, September, 1822. 58. In a prosecution for assault and battery, it is too late to compromise after the jury are sworn. People v. Prince, 1 Wheel. Oases, 32. Biker, Becorder. New York, September, 1822. 59. Possession of stolen property not sufficient proof to commit on a charge of larceny, where the circumstances are doubtful and good character is shown. People v. Tur- rell, 1 Wheel. Oases, _ 34. Biker, Becorder. New York, September, 1822. 60. A prisoner's motive for doing a particular act must be discovered from a view of all the facts connected with the act. People v. Mead, 1 Wheel. Cases, 36. Biker, Be- corder. New York, September, 1822. 61. Time to plead is due to the prisoner ex gratia, not of right. People v. Allen, 1 Wheel. Oases, 36. Biker, Be- corder. New York, September, 1822. JJS: 62. In cases of doubt, character is essential ; but where the charge is proved, it cannot avail. People v. Kirby, 1 Wheel. Cases, 64. Biker, Becorder. New York, November, 1822. 63. In ordinary cases, an affidavit of the absence of a material witness has been deemed sufficient to put off the trial to the next term. But cases may occur where the court will compel the prisoner to show how his absent witness is material, by stating in his affidavit what he ex- pects to prove by him. But when, as in this case, the prosecuting officer offers to admit, as true, the testimony sworn to be material, and the prisoner refuses to accept 730 PEACTICB. the offer, the court will order the trial to proceed. Peo- ple V. Foot, 1 Wheel. Cases, 70. Biker, Eecorder, New York, November, 1822. 64. O'a a charge of receiving stolen goods, knowing them to be stolen, it is the intent that constitutes the crime, and it is to be made out from an impartial view and comparison of all the circumstances of the case. People V. Cochrane, 1 Wheel. Cases, 81. Biker, Becorder. New York, November, 1822. fall: 65. An indictment charged the prisoner with hav- ing in his possession, with intention to utter and publish, and also with actually passing, a $10 note of the Bank of Middletown, in the state of Connecticut, to Mr. Josiah Smith. The prisoner took an exception to the indictment, that the district attorney, in setting out the note, had mis- stated it, to wit, in the cashier's name. The name upon the note appeared to be " Tim," and a flourish, being evi- dently intended as afi abbreviation for "Timothy;" but in the indictment it appeared to be "Tim," the dot or mark over the "i" was left out. The court left it to the jury to say whether there was a variance between the note and indictment, as they were judges of the law and the fact. The verdict of the jury was, not guilty, on a defect in the indictment. People v. Quackenboss, 1 Wheel. Cases, 92. Biker, Becorder. New York, December, 1822. ?8^: 66. Cruelty to a brute cannot be justified, and in all cases of wanton cruelty the court will severely punish the guilty offender. People v. Stokes, 1 Wheel. Cases, 111. Biker, Becorder. New York, December, 1822. 67. In a prosecution for grand larceny, after the verdict is recorded, but before the jury have left the box, they may, by consent of the district attorney and the prisoner, hear witnesses to ascertain the value of the article stolen ; and reconsider their verdict, whether grand or petit larceny. People V. Smith, 1 Wheel. Cases, 119. Biker, Becorder. New York, December, 1822. 68. "Where there is no evidence before the jury but the PEAOTIOE. trSl testimony of tlie prosecutor and the examination of the prisoner, the court will leave it to the jury to decide which is entitled to the most credit, and they will decide accord- ingly. People V. Bankin, 1 Wheel. Cases,-120. Biker, Be- corder. New York, December, 1822. 69. After the counsel for the people has rested, and the counsel for the prisoner has proceeded to sum up, it is too late to introduce testimony ; even where the counsel for the prisoner went to trial under the expectation their wit- nesses would be in court, before those on the part of the people would have been examined. People v. Demott and others, 1 Wheel. Gases, 122. Biker, Becorder. New York, December, 1822. 70. The court, at the request of the prosecutor or the defendant, will direct the witnesses, not under exam- ination, to be separated from those that are, in all cases. People V. Duffy, 1 Wheel. Cases, 123. Biker, Becorder. New York, December, 1822. im 71. Where it appears a subpoena on the part of the defendant has been issued and served, and has not been obeyed, the court will not order on the trial until an at- tachment has been issued, executed and returned. People V. Bush, 1 Wheel. Oases, 137. Biker, Becorder. New York, January, 1823. 72. A counsel has no right to demand a copy of the indictment of the district attorney. He must apply to the clerk of the court, who, upon payment of the usual fees, will furnish a copy or copies. People v. Warner, 1 Wheel. Oases, 140. ■ Biker, Becorder. New York, January, 1823. 73. On a motion to bail on a charge of felony, the court will not be confined to the depositions taken before the magistrate. People v. De G-raff, 1 Wheel. Cases, 141. Biker, Becorder. New York, January, 1823. 74. After the district attorney has rested, and the counsel for the prisoner rises to address the jury, the district attor- ney has no right to interrogate him, whether he is sum- 732 PEACTICE. ming up or opening the case to the jury ; but the proper mode is for the court to ask the counsel for the peoplie and the prisoner if they have rested, and if they have, to direct them to proceed, People v. Trequier and others, 1 Wheel. Cases, 142. Biker, Recorder. New York, January, 1823. \l^, 75. On an indictment for passing counterfeit notes, upon a question whether a note passed by the prisoner to a third person has been destroyed by him, or whether the note was counterfeit, is a proper subject for the consider- ation of a jury. People v. Warner, 1 Wheel. Cases, 186. Hiker, Recorder. New York, February, 1823. 76. On a charge of constructive larceny, the court will leave it to the jury, under all the circumstances of the case, to decide whether the defendant is guilty or not. People V. Sheahan, 1 Wheel. Oases, 188. Riker, Recorder. New York, February, 1823. 1S23. 77_ Jq a^Q indictment for assault and battery, after the defendant is convicted, if the prosecutor states an inten- tion to commence or proceed in a civil suit, the court will suspend the sentence. People v. Pentz, 1 Wheel. Cases, 240. Riker, Recorder. New York, 1823. \S 78. The court will allow questions to be asked of the jurors, whether they had formed any opinion on the merits of the case they were about to try. People v. Set- tick, 1 Wheel. Oases, 399. Riker, Recorder. New York, June, 1823. 79. Counsel for the people can state such facts only, in his opening, as were legal evidence ; that he could not be allowed to state those which he could not legally offer to the jury. id. 80. The declarations of counsel is no impeachment of a >vitness' testimony or character; and it was against the obvious rules of law to confirm a witness' character or tes- timony before it was impeached ; nor can a conversation between the witness and a third person be admitted until it is impeached. id. 81. It is the duty of the defendants to be present and PEACTIOE. 733 at the bar of the court, and in all criminal proceedings were always supposed to be ; and no trial could take place without such presence but by consent, and where, as in this case, it was a question of identity, if they were not so present, their recognizances would be forfeited. People V. Mount and others, 1 Wheel. Oases, 411. Biker, Recorder. New York, June, 1823. 82. On a trial for felony, the court of sessions have no power to discharge a jury but in extreme cases. People V. Ward, 1 Wheel. Oases, 469. Biker, Becorder. New York, June, 1823. w^: 83. That an indictment was recently found, is not ground for putting off a trial in a capital case, especially where the prisoner has been a long time in prison, charged with the offense. People v. Fuller, 2 Park. Orim. Bep. 16. Warren Oyer and Terminer, July, 1823. Before Wal- worth, O. J. iw. 84. The discharge of the jury in criminal cases must rest with the court, under all the particular or pecu- liar circumstances of the case ; and, although the power of discharging a jury is a delicate and highly important trust, yet it does exist in cases of extreme and absolute necessity, and may be exercised as well in cases of felonies as misdemeanors. And a jury, from the length of time they have been considering a case, and the declaration that there was no probability of their agreeing, may fairly be presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaus- tion. People V. Goodwin, 1 Wheel. Oases, 470. Supreme Court, August, 1823. ^l^j[ 85. A motion by a defendant in a criminal cause, removed by a certiorari and pending in the Supreme Court, should be preceded by notice to the district attor- ney. People V. Vermilyea, 7 Cowen, 108. Supreme Oourt, May, 1827. 86. Whether an indictment for a misdemeanor so re- moved, can be remitted to the court below ? Quere. id. 734 PEACTICE. 87. But if it can, tlie court have a discretion to retain it ; and will do so, especially where it appears probable that grave questions of law will arise on the trial. id. 88. And, in such case, they will ordinarily send the cause down to the circuit of the county where the venue is laid. id. 89. The venue is never changed in a criminal cause. But when it appears that an impartial trial cannot be had in the county where the offense is laid, the court will order a suggestion of this fact to be entered on the record ; and a venire is then awarded to the sheriff of another county, id. 90. But to warrant such a suggestion, the case must be a clear one upon the facts. The expression of a belief that a fair and impartial trial cannot be had, in an affidavit, goes for nothing, unless it be warranted by the facts par- ticularly proved. id. 91. On certiorari, the court will not notice facts impropr erly returned ; e. g., the. evidence returned by a court of oyer and terminer. id. 92. Ifor will they instruct the circuit judge, on motion, upon any surmised state of facts. id. 93. Semble, that where several defendants, entii'ely dis- connected in the transactions through which they are sought to be convicted, are jointly indicted, it would be a sound exercise of discretion to grant them separate trials. id. 94. But where the right of peremptory challenge is out of question, it is in the discretion of the court to allow a separate trial or not. id. 95. Semble, however, that this is a legal discretion ; and should a separate trial be improperly denied by a circuit judge, the Supreme Court would not, on motion, order a new trial. id. 96. The statute giving a bill of exceptions does not ex- tend to criminal cases ; and hence the evidence given in an inferior criminal court cannot be reviewed by a writ of error or certiorari. id. 97. But where a criminal cause goes down to the circuit, PEACTICE. 735 the proceedings at the trial may be reviewed, on motion, the same as in a civil cause ; and the evidence be brought up on a case. id. 98. The circuit court may grant an attachment, and bring a witness before them to testify, after he has dis- obeyed a subpoena. id. 99. The district attorney may remove a criminal cause to the Supreme Court, by certiorari, as a matter of course, and of right. id. 100. Form of a recognizance for the appearance of a defendant, who has removed a criminal cause by certiorari, for error in his conviction ; and upon which the Supreme Court ordered him to be tried at the circuit. id. 101. Sureties for the defendant's appearance to answer an indictment, &c., must justify, if this be required by the district attorney. id. 102. Where the defendant has pleaded to an indictment in an inferior court, which is tried ;■ but on certiorari to this court a new trial is ordered, he need not, in strictness, plead de novo, for the old plea stands. id. 103. Tet he may plead de novo by consent. id. 104. Where several defendants are jointly indicted ; but the indictment is removed by certiorari at a suit of a part of the defendants ; whereupon the whole cause is re- tained for trial on the civil side ; if the other defendants will not voluntarily come in and be recognized, &c., they may be brought in on a capias. id. 105. Where a criminal cause is tried at the circuit, judg- ment is rendered by the bench ; and if there be a convic- tion, semble, that the circumstances in evidence must be laid before them by a case, or in some other way, to enable them to estimate the measure of punishment. id. 106. The Supreme Court will not give an opinion ad- visory to another court, after that court has rendered judg- ment. Uz parte Barker, 7 Cowen, 143. Supreme Court, May, 1827. 736 PEACTICE. 107. Otherwise if judgment be suspended for the pur- pose of obtaining the opinion of the Supreme Court, id. 108. A bill of exceptions is inapplicable to a criminal cause. id. 109. Questions of evidence are, therefore, brought from crimiinal courts, before the Supreme Court, by consent; judgment being suspended. id. 110. Such suspension is, of course, where there is doubt. id. 111. The matter then comes before the Supreme Court, on a case, upon which they will advise the inferior court ; or on certiorari and habeas corpus, with a case ; whereupon the Supreme Court will grant a new trial ; or if they refuse it, give judgment themselves. id. 112. Proceedings on the defendant's removing an indict- ment for a misdemeanor by certiorari. People v. Winchell, 7 Cowen, 160. Supreme Court, May, 1827. (See 3 R. S. 5th ed. 1022 to 1025 ; Const, of 1846, art. 6, § 14; Laws of 1847, 332, § 44.) 113. Construction of the terms of his recognizance upon the statute. id. 114. Both parties should go to trial according to the terms of the recognizance, of course ; and whether the de- fendant gave notice or not. id. 115. No rule need be taken on part of the people. id. 116. A defendant omitted to appear and try at the cir- cuit, because he could not procure certain material testi- mony. On motion to estreat his recognizance, ordered that the motion be granted, unless within thirty days he should give a new recognizance to appear and try at the next circuit. ' id. 117. "Whether the first recognizance continued in force? Quere. id. fs^; 118. A new trial will not be granted, even in a criminal case, because the district attorney, by mistake, withholds in his hands papers important to the defendant, unless the latter uses due diligence to obtain them. Where PRACTICE. 737 the district attorney told him, by mistake, they were in the hands of C, who, on being applied to, answered they were with the district attorney ; but the defendant did not explain the mistake, and apply to the district attorney again ; held, a want of due vigilance. People v. Vermilyeaf 7 Oowen, 369. Supreme Court, August, 1827. 119. In drawing a jury under the statute, (1 E. L. 331, § 20,) if any juror does not appear when drawn and his name called, he may be refused a place in the box, though he afterwards appear and answer before a full jury is drawn. id. (See 6 Coweu, 584; 7 "Wend. 548; 3 Seld. 445; 3 R S. 5th ed. 719.) 120. Or, semhle, he may be received, in the discretion of the court. id. 121. A new trial will not be granted, on motion of a de- fendant convicted in a criminal case, on the ground that a co-defendant, tried at the same time and acquitted, was a material witness for the convicted defendant. id. 122. So, it seems, in a capital case, or a case where the right of peremptory challenge prevails. id. 123. "Where, on a cause being carried down for trial, for the first time, the defendant moves to put off the trial for the absence of a material witness, having used due dili- gence to obtain his attendance, though such witness reside out of the jurisdiction of the court, the trial should be postponed. id. 124. It is no answer to the application to admit that the witness required would, if present, testify to the facts sup- posed in the affidavit on which the motion to postpone is founded. id. 125. Though, semhle, it would be an answer to admit unqualifiedly the truth of such facts. id. 126. Short of this the party is entitled to time for ob- taining the oral examination of his witness before the jury. ' id. 127. In all such cases the questions are : 1. Is the witness 47 Y38 PKACTICE. material ? 2. Has tlie defendant been guilty of laches ? 3. Can tlie witness be procured at the next court ? id. 128. Where a criminal cause is removed by certiorari into the Supreme Court, and retained on the civil side, a commission may issue to take the deposition of a foreign witness, as in a civil cause. _ id. 129. The rule as to putting off trials for the absence of witnesses is the same, both in civil and criminal cases, id. 130. The court has a discretion as to putting off; but it is a legal discretion ; and if not properly exercised by a judge at the circuit, the Supreme Court will interfere on motion. id. fj^'f 181. The Supreme Court will not render judgment against a defendant in case of pequry, though convicted on the civil side at the circuit, unless he be present in court at the time of judgment. People v. Winchell, 7 Qowen, 525. Supreme Court, October, 1827. 132. Sentence of the slightest corporeal punishment can- not be given in absentia. id. 133. What is corporeal punishment? It includes im- prisonment. Semble, sentence in absentia can be only of a fine! id. f^4] 134. A prisoner tried for felony must be present on the taking of the verdict. People v. Perkins, 1 Wend. 91. Supreme Court, August, 1828. (3 R. S. 5th ed. 1027. People V. Wilkes, 5 How. Prac. Eep. 105.) f/j'g 135. A judgment in a criminal case cannot be ar- rested for a variance between the indictment and the proof. People V. Onondaga General Sessions, 1 Wend. 296. Su- preme Court, October, 1828. fs^f: 136. Where a judgment is arrested by a court of general sessions, the remedy is by writ of error, and not by mandamus. People v. Onondaga General Sessions, 2 Wend. 631. Supreme Court, August, 1829. ?^l 137. A certiorari to remove an indictment, directed to the oyer and terminer, will not be quashed, because, at the time of the allowance of the writ, the indictment is in PRACTICE, , 739 the sessions, if, when the writ be served, the indictment be in the oyer and terminer. People v. Jewett, 3 Wend. 314. Supreme Court, October, 1829. 138. It is a good cause of exception to a grand Juror, that he has formed and expressed an opinion as to the guilt of si, party whose case probably will be presented to the consideration of the grand inquest ; so, also, a grand juror's having evinced feelings of hostility towards such a party is good cause of exception. But these exceptions must be taken before the indictment is found and previous to the juror being impanneled and sworn, and will not afterwards be heard. id. 139. A challenge to the array will not be allowed on the ground that, in the selection of grand jurors, all persons belonging to a particular fraternity or association were ex- cluded, if those who are returned are unexceptionable, and possess the qualifications required by statute. id. S' 140. A rule merely directing a criminal cause re- moved into this court by certiorari, to be tried in a county other than that in which the offense is alleged to have been committed, will npt authorize the trial in such county, with- out a suggestion on the roll that a fair and impartial trial cannot be had in the county where the indictment was found; and such suggestion cannot be made without special leave obtained from the court. People v. Mather, 3 Wend. 431, Supreme Court, January, 1830. 141. A rule to change the place of trial may be waived by the parties going to trial in the county where the in- dictment was found. id. 142. A rule entered in the minutes of the court during one of its terms, without the express direction of the court, and not asked for by either party, will be regarded as a nullity. id. ™|J' 143. "Whether a new trial can be awarded in a crim- inal case for the misdirection of the court, where there has been an acquittal of the accused by the jury, is an un- settled question ; if the power exists, it will not be e^er- 740 PEACTIOE. cised unless it is reasonable to infer that the acquittal was induced by such inisdirection. The People v. Mather, 4 Wend. 229. Supreme Court, May, 1830. (See 3 K. S. 5th ed. 1033.) 144. In an indictment for perjury by an insolvent debtor, in the oath taken by him on presenting his petition and the inventory of his estate required by the statute, it is not necessary to set forth the facts which give jurisdiction to the officer, as is done in pleading a discharge in a civil suit ; it is enough to aver that the officer had lawful and competent authority to administer the oath. People v. Phelps, 5 Wend. 10. Supreme Court, May, 1830. 145. The truth of such averment must be shown on the trial. id. 146. I^or is it necessary, where the perjury consists in omitting to set forth in the inventory property belonging to the insolvent, to spread out in the indictment the iwuew- tory exhibited , to the officer, or to state the substance thereof; it is sufficient to averj that with the papers pre- sented to the officer, was one pui-porting to be a full and just inventory of all the estate, both real and personal, in law and equity, of the insolvent. id. 147. The indictment is good if, after averring that the officer had competent authority to administer the oath, and alleging the presentation of the inventory, and that at the same time an oath or affidavit in writing was exhibited, in the words prescribed by the statute, setting forth the same or the substance thereof, and that the insolvent was sworn to the truth of the same, it is charged that the inven- tory is hot in all respects just and true, and the particulars are specified in which the falsity consists, as that $3500 in goodS) wares and merchandise, in the hands of G. M. & Co., merchants in Philadelphia, were knowingly and fraudulently left out of the inventory, and that the insolv- ent had disposed of the same for the future benefit of himself or his family, and with the intent to defraud his PEACTICE. 741 creditors, and fraudulently to obtain tlie benefit of the act id. 148. "Where some of the words in the prescribed form are omitted in the affidavit, they may be supplied by an innuendo. id. 149. Courts of oyer and terminer have authority to grant new trials on the merits. People v. Stone, 5 Wend, 39. Supreme Court, May, 1830. (See 3 E. S. 5th ed 1035.) S 150. In an indictment for 'perjury, committed in the taking of an oath by an insolvent, on presenting his petition for a discharge, it is not, nor was it necessary pre- vious to the Revised Statutes, to s6t forth more than the oath. People v. Warner, 5 Wend. 271. Supreme Gourt, July, 1830. 151. Where the oath is set forth in the indictment to be in substance and to the effect following, to wit, &c., an exact recital is not necessary ; and accordingly, where the indefi- nite article an was substituted for the definite article the, the variance was held to be immaterial. id. 152. A new trial was refused in a criminal case where the complaint was that the judge, although requested, declined to charge the jury, there being no dispute as to the law of the case ; the trial closing so late on Saturday night that had the jury been charged, they must either have been dismissed or kept over the Sabbath ; and the verdict being fully supported by the evidence. People v. Gray, 5 Wend. 289. Supreme Court, July, 1830, JJ";- 153. Where the seal attached to a certiorari is not the seal of the court out of which the writ issues, an amendment by affixing the right seal may be allowed. People V. Steuben G. P., 5 Wend. 103. Supreme Court, November, 1830. l'^{ 154. It is not a good plea to an indictment that one of the grand jurors who found the same was not a free- holder. People V. Jewett, 6 Wend. 386. Supreme Court, January, 1831. 742 PRACTICE. JJJI' 155. It is not necessary to negative all the pretenses set forth in an indictment for obtaining property by false pretenses; but those relied on by the pleader, and which he expects to prove were false, mast be specifically and directly negatived; it is, however, sufficient to prove one of several assignments in a count. People v. Stone, 9 Wend. 182. Supreme Court, May, 1832. 156. Where, in an indictment for forgery, two distinct offenses requiring different punishments are alleged in the same count, as where the forging of a mortgage and of a receipt indorsed thereon are both charged in the same count, and the defendant is convicted, the judgment will be arrested. People v. Wright, 9 Wend. 193. Supreme Court, May, 1832. 157. In charging the forgery or felonious alteration of a mortgage, with the intent to defraud the mortgagor, it must be averred that there are, in fact, such lands as are described in the instrument, and that the mortgagor had an interest or right in the same. id. 158. "Whether the forging, by altering or destroying a receipt indorsed upon a mortgage, would be adjudged a forgery of the mortgage, quere. id. °g^[ 159. A check on a bank, charged in an indictment for forgery to be addressed to the cashier thereof, is cor- rectly described where the check is in the form of a letter addressed on the back thereof to the cashier, although in the inside of the letter there be no direction whatever. People V. Cfumaer, 9 Wend. 272. Supreme Court, October, 1832. ^^l' 160. A party bound to appear at a court of crim- inal jurisdiction and answer what shall be objected against him, forfeits his recognizance if he departs without leave; it is no answer to a suit on the recognizance that he ap- peared and was ready to answer, if at a subsequent day of the court he did not appear when demanded. People v. Stager, 10 Wend. 431. Supreme Court, May, 1833. 161. A defendant may be tried at the same time Jan. 1835. PRACTICE. 743 for different offenses charged in the same indictment, if the offenses are of the same grade and subject to the same punishment. People v. Gates, 13 Wend. 311. Supreme Court, January, 1835. •^^'/ 162. The object of an arraignment of a defendant is to establish his identity. It is not indispensable to a valid arraignment that the defendant should be called to the bar of the court to answer the matter charged upon him in the indictment ; and that, when so brought up, he should be called upon, by name, to hold up his right hand. Any other acknowledgment or identity will answer the purpose as well. People v. Frost, 5 Parh. Orim. Rep. 52. New York General Sessions. Before Biker, Recorder. April, 1838. 163. Where the prisoner actually appeared and held up his hand, and thereby, and by subsequent acts, admitted his identity, it was held, on motion in arrest of judgment, to be a valid arraignment. id. 164. Where a defendant had been duly arraigned, and by acts, if not by words, had demanded a trial, and had procured the cause to be set down for trial, and had chal- lenged jurors, produced witnesses, and examined and cross-examined witnesses on both sides, and had summed up the case to the jury, after a verdict of guilty, a motion in arrest of judgment, on the ground that a formal plea of not guilty had not been put in, was denied. id. 165. "Where on the trial of an indictment for man- slaughter in the fourth degree, which lasted several days, the jurors were allowed to separate by consent of parties; after a verdict of guilty, the judgment will not be arrested on affidavits proving expressions used by one of the jurors, both before and during the trial, tending to show bias against the defendant, where the allegations are fully met and repelled by the affidavit of the juror assailed, and where during the whole trial the jury appeared to be at- tentive, patient and exemplary. id. JJ^J 166. Where at the oyer and terminer the initiatory 744 PEAOTICE. proceedings of a trial for murder had been commenced, by calling the jurors as directed by law, and only nine- teen of the jurors answered to their names, thereupon three hundred additional jurors were summoned by the sheriff under direction of 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 de- cided on such application was a matter of discretion, and that no exception could lie to such refusal. Colt v. The People, 1 Parh. Grim. Hep 611. At Chambers. Before Walworth, Chancellor. November, 1842. 167. ffeld, also, that the summoning of so large a num- ber of additional jurors was a matter of sound discretion, to be exercised by the court, with a view to get a sufficient number who were qualified and competent, from which a full jury could be obtained; and that such discretion should be exercised upon the knowledge which the court possessed of the probable effects which a report of the facts, in the public papers and otherwise, might have had in biasing the niinds of jurors, so as to disqualify them from serving on the trial. id. f^; 168. WTiere, in an indictment against three per- sons for misdemeanor, distinct offenses were charged in different counts, and on the trial, the defendants being tried together, the evidence tended to show that two crimes had been committed, and when the prosecution rested there was no evidence against one of the defendants in respect to one of the offenses charged, though there was testimony tending to show them all guilty of the other offense, and the defendants applied to the court to com- pel the prosecutor to elect for which offense he would proceed, it was held that he should have been required to make such election. People v. Oostello, 1 Benio, 83. Su- preme Gov/rt, May, 1845. 169. Such application being addressed to the discretion of the court before which the trial took place, whether a PEACTICE. 745 decision denying it could be corrected by this court upon a bill of exceptions, quere. id. 170. Where, in a court of special sessions, a defendant was convicted of petit larceny, upon a complaint for steal- ing one white woolen flannel sheet, and the evidence on the trial related to a blanket made of cotton and woolen — the warp being of cotton and the filling woolen — and the variance was objected to,; held, that it was material and fatal, and the conviction was reversed. Alhenhrach V. The People, 1 Denio, 80. Supreme Court, May, 1845. P^^ 171. It is iiot the duty of a court in conducting a trial, to determine abstract propositions submitted by counsel, (e. g. whether certain testimony which had been given bore upon the issue or only upon the credit of wit- nesses ;) it is enough if the court respond to all objections to testimony taken by either party and give the proper instructions to the jury. People v. Qunni/ngham, 1 Denio, 524. Supreme Court, October, 1846. ^l' 172. "Where a court of review reverses a judg- ment for error in the record, it must generally be such a judgment as the court below ought to have rendered. People v. Taylor, 3 Denio, 91. Supreme Court, May, 1846, 173. But if a wrong judgment be ^ven.against a defend- ant, which is reversed on error, the court of review can neither give a new judgment nor send the proceedings back to the court below for a proper judgment, unless the case be presented by bill of exceptions, when a venire de novo may be awarded. Per Bronson, J. id. jiuy, 174 The jurisdiction of the courts of this state over crimes is limited to such as are committed within the boundaries of the state. Per Beardsley, J. People v. Adams, 3 Denio, 190. Supreme Court, July, 1846. 175. But personal presence at the place where a crime is committed is not always essential to constitute the oflfender a principal, e. g., where it is perpetrated by means of an instrument, as by the discharge of a gun taking effect in another country, or by an innocent living agent, id. 746 PRACTICE. 176. Where the agent who does the act constituting the offense is himself guilty, he is the principal if it be a felony, and the employer is an accessory before the fact ; but if it be a misdemeanor, both are principal offenders. Per Beardsley, J. id. 177. In the case of the commission of an offense within this state by means of an innocent agent, the employer is guilty as a principal though he did no act in this state, and was at the time the offense was committed in another state. id. 178. The offense of cheating by fafse pretense is in judgment of law committed where the false pretences are successfully used, and where the money or property is obtained, although the fraud originated and was contrived elsewhere. id. 179. Accordingly, where one was indicted in the city of New York for obtaining money from a firm of commis- sion merchants in that city, by exhibiting to them fic- titious receipts, signed by a forwarder in Ohio, falsely acknowledging the delivery to him of a quantity of pro- duce for the use of, and subject to the order of the firm; and the defendant pleaded that he was a natural born citizen of Ohio, and had always resided there, and had never been in the state of New York ; that the receipts were drawn and signed in Ohio ; and that the offense was committed by their being presented to the firm in New York by innocent agents employed by the defendants in Ohio ; held that the plea was bad, and that the defendant was properly indicted in the city of New York. id. il^i 180. The common law, as well as the statute, (2 R. S. 697, § 2; 3 R. S. 5th ed. 983,) forbids the trial, the sentencing or the punishment of an insane person for a crime, while he continues in that state. Freeman v. The People, 4 Benio, 9. Supreme Court, January, 1847. 181. But one capable of rightly comprehending his own condition in reference to the proceeding against him, and of conducting his defense in a rational manner, is not in- PEACTICE. 747 sane within the meaning of the rule, though on some other subjects his mind may be deranged. id. 182. Where insanity in a person indicted is alleged or suspected, the most discreet and proper method of de- termining the question in an important case is a trial by jury ; but other modes may be adopted in the discretion of the court. Per Beardsley, J. id. 183. Where a jury impanneled to try whether a person indicted for murder was then insane, were instructed by the court that they were to decide " whether the prisoner knew right from wrong; and if he did, then he was to be considered sane ;" held that the charge was erroneous, id. 184 And the jury having found that the prisoner was "sufficiently sound in mind and memory to distinguish between right aiid wrong;" held that the verdict was de- fective, id. 185. The test of insanity, when set up to prevent a trial, is whether the prisoner is mentally competent to make a rational defense; and, when alleged as a defense to an indictment, it is whether at the time of committing the act he was so laboring under such mental disease as not to know the nature and quality of the act he was doing, or that it was wrong. id. 186. A bill of exceptions does not lie to review ques- tions determined upon the trial of a collateral issue ; and therefore where exceptions were taken upon a preliminary trial of a question of present insanity, which were incor- porated in a bill of exceptions taken upon the trial of the indictment ; held that such exceptions were not properly before the court. id. 187. On such preliminary trial, the defendant is not entitled to peremptory challenges; but challenges for cause may be made. id. 188. The place of trial cannot be changed in a criminal case for the convenience of witnesses or parties; though it may be where a fair and impartial trial cannot be had 748 PEACTICE. in the proper county. People v. Harris, 4 Benio, 150. Su- preme Court, January, 1847. fff^'; 189. A criminal case cannot be moved out of its order on the calendar by the defendant, unless the notice of argument states his intention of bringing it on out of its order. Barron v. The People, 1 Barb. 136. Supreme Gourt, New York Q-eneral Term, September, 1847. 190. A judgment against the defendant in a criminal case will not be reversed by default. But the court must be satisfied that there was error in the record or proceed- ings of the court below. id. 191. That part of the 97th rule which gives to the counsel for the people alone the right to move cases out of their order on the calendar, applies only to the first week in term. After that, either party, on a four days' notice, may bring on the argument of the cause out of its order. id. Jlfg 192. It was not the intention of the legislature, in authorizing bills of exceptions to be filed in criminal cases, that convictions should be reversed for any and every error committed on the trial. Per Strong, P. J. The People V. Lohman, 2 Barb. 216. Supreme Court, New Yorh General Term, January, 1848. 193. The important and controlling question in such cases, is whether any error has been committed which could affect the rights of the accused. If there has been any such error, however slight it may have been, the con- viction should be set aside. But all exceptions not having a direct reference to the merits of the case, should be disregarded. Per Strong, P. J. id. 194. "Where an offense is committed within this state by means of an innocent agent, the employer is guilty as a principal, though he did no act in this state, and was, at the time the offense was committed, in another state. Adams v. The People, 1 Comstoch, 173. Court of Appeals, January, 1848. 195. In such case the courts of this state have jurisdic- PEAOTICE. 749 tion of the offense, and if the offender comes within the limits of the state, they have also jurisdiction of his per- son, and he may he arrested and brought to trial. id. 196. Under the Eevised Statutes, it is a misdemeanor to publish in this state an account of a lottery to be drawn in another state or territory, although such lottery be author- ized by the laws of the place where it is to be drawn. Charles Y. The People, 1 N. T. Rep. 180. Qourt of Appeals, January, 1848. 197. Accordingly held, that a demurrer to an indictment which charged the defendant with publishing in the city of New York, an account of a lottery to be drawn in the district of Columbia, was not well taken. id. JJ^: 198. Meld, that upon the trial of an indictment for murder, the accused cannot be convicted of a simple assault and battery, though he may be of manslaughter. Burns & Gary v. The. People, 1 Parh. Grim. Rep. 182. Swpreme Cov/rt, Erie General Term, November, 1848. • ?848; 199- -A. writ of error will not lie in behalf of the people, after judgment for the defendant, in a criminal case. People v. Gorning, 2 N. T. Rep. 9. Court of Appeals, December, 1848. fjfg, 200. Under the provisions of the act to organize the stale lunatic asylum, &c., passed April 7, 1842, a judge has no power to grant an order directing a sheriff to dis- charge a prisoner from imprisonment, on the ground of his being insane. He can only direct such prisoner to be sent to the lunatic asylum. Bush v. Pettibone, 5 Barb. 273. Supreme Gourt, Oswego General Term, January, 1849. *W|; 201. A verdict will not be set aside on bill of ex- ceptions, although there was error on the trial, if the error was such that it could do no legal injury; and the rule in this tespeet is the same in criminal as in civil cases. Shorter v. The People, 2 N. Y. Rep. 193. Court of Appeals, May, 1849. 202. And the rule applied in a capital case where there was an error in the charge to the jury respecting the law 760 PEAOTICE. of homicide, but the facts of the case did not call for a charge upon the point. id. ^^l\ 203. The want of jurisdiction in tribunals of spe- cial and limited jurisdiction can always be shown. Sar- rington v. The People, 6 Barh. 607. Supreme Court, Clinton General Term, July, 1849. 204. If they do not acquire jurisdiction, their proceed- ings are coram nonjudice, and void. id. 205. The party claiming under the judgment or final determination of such tribunals is bound to prove, affirma- tively, the facts necessary to give them jurisdiction. id. 206. The jurisdiction of a court, whether of general or limited jurisdiction, may be inquired into, although the record of the judgment states facts giving it jurisdiction, id. 207. No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends. id. 208. If the record of an inferior court or tribunal omits to state facts necessary to give it jurisdiction, such record, without proof of the facts aliundi, is not evidence for any purpose. id. /sIS: 209. Under a plea of not guilty, a defendant cannot avail himself of the fact that the defendant has been in- dicted by a wrong name. People v. Smith, 1 Park. Grim. Rep. 329. Columbia Oyer and Terminer, January, 1852. Before Parker, J. fsfj 210. 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. People V. Mclntyre, 1 Park. Crim. Bep. 371. Supreme Court, Onon- daga General Term, October, 1852. 211. 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 in- terfere to compel the district attorney in regard to it. id. 212. The decision of the court, refusing to direct the PEAOTICE. 751 district attorney in such case, is not the subject of review upon exception. id. 213. On a separate trial of a defendant jointly indicted with a co-defendant for felony, such defendant cannot swear his co-defendant as a witness in his behalf. Such co-defend- ant is not a competent witness for the defendant on trial, till discharged from the record by nolle prosequi, acquittal or otherwise. id. JJfJ; 214. The act of April 4, 1848, providing that in case of the absence of the presiding justice appointed to hold any general term of the Supreme Court, any three justices convened to hold such term, may designate one of their number to preside at svch general term, means that the person so appointed shall preside during the whole of such term, if deemed expedient; and not merely during such portion of the term as the absence of the regular pre- siding justice shall continue. People v. Hicks, 15 Barh. Hep. 153. Supreme Gourt, New York General Term, May, 1853. 215. Thus where, at the commencement of a term, the presiding justice of the court is absent from the state, and another justice is, by an order duly made, designated by the three judges convened to hold the court, to preside at such term, he is authorized to preside during the whole of such term ; notwithstanding the regular presiding justice returns to the district before the close of such term. id. 216. The district attorney is the proper person to pro- cure a certiorari to be issued, in a criminal case, to remove into the Supreme Court proceedings commenced by habeas corpus; and to act as attorney for the people, upon such certiorari. id. ^i^sJI: 217. A writ of error does not lie to reverse a con- viction in a criminal case until after sentence has been pro- nounced, and the sentence must appear in the record. Hill v. The People, 10 N. T. Bep. 463. Gourt of Appeals, June, 1853. 218. The proceedings upon an indictment in the oyer 752 PEACTIOE. and terminer may be reviewed by the Supreme Court before sentence, when the judgment has been stayed under 2 E. 8. 736, § 27, (3 E. S. 5th ed. 1029,) but in such case they are brought up by certiorari. id. i^f^: 219. It is a matter of discretion with the court to allow the district attorney to try prisoners who are jointly indicted, jointly or separately, as it seems best to comport 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. People v. Stochham, 1 Park. Crim. Bep. 424. Supreme Court, Onondaga General Term, Oetoh&f, 1853. 220. 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. id. fg|5: 221. It is no objection to an indictment that it was found while an investigation of the charge was pending before the committing magistrate. People v. Sorton, 4 Park. Qrim. Rep. 222. Superior Court of Buffalo, General Term, December, 1854. 222. There is no rule of practice making it imperative, in criminal cases, to put over the trial upon affidavits of a prescribed form and substance. id. 223. Where an application is made by a defendant, in a criminal case, to postpone the trial, strict practice requires the prisoner to make in his affidavits a full disclosure of the names of his witnesses, and the facts he expects to prove by them, though such strictness may well be waived by the district attorney or by the court, on an application made at the term where the indictment is found; and where there is no appearance of ill faith, the court ought to grant a reasonable opportunity to supply defects and omissions in the affidavits before the decision upon the applica- tion, id. 224. The postponement of the trial of an indictment, on the application of the prisoner, is in no case a matter of legal right, but rests upon the discretion of the court. In PBACTICE. 753 resisting such a motion, the district attorney may state facts touching the.merits of the application ; and the de- meanor and conduct and conversation of the prisoner in the presence of the court may properly be taken into con- sideration, and the minutes of the grand jury may be re- ferred to for the purpose of ascertaining the materiality of the matters proposed to be proved by the absent wit- nesses, id. 225. In deciding upon such an application, the same credence cannot be given to the uncontradicted affidavit of a person indicted for felony, as to the uncontradicted affidavit of a party to a civil action. id. Y5I; 226. Where, after pleading not ^guilty, any thing occurs available as a defense, the defendant can only avail himself of it by a subsequent plea. People v. Benjamin, 2 Park. Orim. Pep. 201. Supreme Court, Albany General Term, May, 1855. uBs: 227. It is the modern practice of the courts to re- ceive the affidavits of the jurors themselves in answer to a charge of irregularity or abuse, though they have generally been considered as an unreliable species of evidence. East- wood V. The People, 3 Park. Grim. Pep. 25. Supreme Court, Monroe General Term, December, 1865. ■^gjj' 228. "Where, on a trial for felony, after the public prosecutor has entered upon his case and given evidence to the jury, he finds himself unprepared with the proper evidence to convict, and obtains leave of the court to withdraw a juror and thus arrest the trial, such withdrawal not being the result of improper practice on the part of the defendant or any one acting with or for him, or of any overruling inevitable necessity, the defendant cannot be again put on trial for the same offense. Kloch v. The Peo- ple, 2 Park. Grim. Pep. 676. Supreme Court, Jefferson General Term, April, 1856. 229. The objection to a second trial, in such case, doe$ not rest upon the constitutional provision that no person shall be subject to be twice put in jeopardy for the same 48 754 PEACTICE. offense ; that provision is a protection only where there has been a conviction or acquittal by the verdict of a jury, and judgment has passed thereon, and does not apply to a case where the jury have been discharged without giving any verdict where judgment has been arrested. id. 230. But the objection lies back of the constitution, and rests upon the principles of the common law, which are essential to the protection of the accused, by securing him a speedy and impartial trial, and the best means of vindi- cating his innocence. id. 231. "Whether the same rule applies to trials for mere misdemeanors. Quere. id. 232. TJie decision in the case of The People v. Ellis (15 Wend. R. 371) doubted, and The People v. Barrett (2 Gaines, 304) approved. id. 233. The practice to be adopted in bringing up the ques- tion in such a case, discussed. id. S' 234. The trial of a criminal case will be postponed on application of the defendant, on the general affidavit of the absence of material witnesses, unless it is apparent that the application is made merely for the purpose of delay ; in which case an affidavit will be required showing the nature of the defense intended to be sustained by the absent witnesses, that the court may judge of their ma- teriality. People V. Wilson, 3 Park. Crim. Bep. 199. Westchester Oyer and Terminer, June, 1856. Before Strong, J. 235. "Where an application was made to postpone the trial of an indictment for murder, and it was claimed by the district attorney, and was not controverted by the de- fense, that no living person except the prisoner was pres- ent at the alleged murder, and there was no pretense of an alihi, such general affidavit was held to be insufficient, and the prisoner was required to disclose what defense he expected to establish by the evidence of the absent wit- nesses, id. 236. Trials in qriminal cases will not usually be post- PKAOTICE. 755 poned on account of the absence of witnesses to char- acter, id. 237. "Where an application was made to postpone the trial of an indictment for murder, to enable the defendant to procure witnesses to character, and the district attorney in opposing the motion offered to admit the previously good general character of the prisoner, the motion was denied on the making of such admission. id. 238. A writ of error will not lie to review a judgment on some of the counts in an indictment while other counts are undisposed of People v. Merrill, 14 N. Y. Bep. 74. Courl; of Appeals, June, 1856. 239. The statute enabling the people to bring error in criminal cases (Laws of 1852, 76 ; 3 R. S. 5th ed. 1035) has not changed this rule. The judgment to be reviewed on a writ of error in behalf of th^ people is a final judg- ment on the whole indictment. id. fjlJ: 240. On writ of error to review the judgment of the Supreme Court in a criminal case, where the convic- tion was by a justice of the peace, sitting as a court of special sessions without a jury, and his judgment was removed into the Supreme Court by certiorari, this court is not concluded by the decision of the court below on questions of fact, but is authorized to review the case upon the evidence. Barringer v. The People, 14 N. T. Bep. 593. Court of Appeals, December, 1856. 241. Error in excluding evidence is cured where subse- quently the party excepting is permitted to prove, without objection, the fact sought to be established. id. 242. In a criminal prosecution, what is sufiicient evi- dence that a larceny had been committed, considered, id. "H^?; 243. Since, by the Revised Statutes, a defendant in a criminal case is allowed to make a bill of exceptions, as in civil cases, and have the exceptions examined upon a writ of error, the practice of suspending judgment, to enable the court below to take the opinion of the Supreme Court upon questions raised upon the trial, ought not to 756 PEACTICE. be encouraged. People v. Cummings, 3 Park. Crim. Rep. 343. Supreme Court, Albany General Term, May, 1857. 244. Where an indictment has been removed into the Supreme Court by certiorari, before trial, it must be tried at a circuit court like other issues pending in the Supreme Court, and not at the oyer and terminer. People v. Bu- loff, 3 Park. Orim. Rep. 401. Supreme Court, Tioga Gen- eral Term, May, 1857. ^^^^^' 245. When an indictment is brought into the Su- preme Court by certiorari, and tried at the circuit, judg- ment should be pronounced at a general term. Cancemi V. The People, 16 N. Y. Rep. 501. Court of Appeals, March, 1858. f^^ 246. The statute (2 E. S. 599, § 45) providing for a certiorari, to certify diminution, variance or other defect in a record, is applicable to proceedings on writs of error in criminal as well as civil cases. Cancemi v. The People, 18 N. I. Rep. 128. September, 1858. 247. The statute prescribing the contents of the return to writs of error in criminal cases, and directing the court to render judgment thereupon, does not limit its general power to bring before it such proceedings, not contained in the record made up below, as are necessary for the cor- rection of errors. id. 248. Where, in addition to the formal record and bill of exceptions required as a return to the writ of error, the return includes other matter which the appellate court might, upon diminution being alleged, have brought before it by certiorari, such matter is to receive the like consid- eration, and, if it discloses error, to have the same effect as if returned in obedience to the requisition of a certio- rari. ' id. 249. A request to charge on the /ac(s, in a criminal trial, is very properly refused by the judge. People v. Davis, 18 How. Prac. Rep. 134. Supreme Court, Albany General Term, September, 1858. S: 250. It is not error for the court to refuse to issue PKAGTICE. 757 an attacliinent against a witness, on the application of the prisoner's counsel, after such counsel has stated that they have no other witnesses, and arrangements have heen made for summing up the cause on both sides, and assented to by the court. The opening of the testimony in that stage of the case rests in the discretion of the court. Stephens V. The People, 4 Park. Grim. Rep. 396. Supreme Court, New York Greneral Term, May, 1859. 251. On reversing a judgment of the oyer and terminer, by wjiich the prisoner was sentenced to imprisonment in the state prison, and ordering a new trial therein, the Su- preme Court further ordered that the prisoner should appear at the next court of oyer and terminer, to be held in the county in which he had been convicted, to stand trial on the indictment, and not depart the court without its leave, and abide its orders and judgment. People v. Blakely, 4 Park. Grim. Bep. 176. Supreme Qov/rt, Ghe- nango General Term, May, 1859. 252. On a trial for murder it is competent for the court, without the consent either of the people or the prisoner, to permit a separation of the jury during the progress of the trial. Stephens v. The People, 4 Park., Grim. Bep. 396. Supreme Gourt, New York General Term, May, 1859. 253. If, however, there could have been doubt on the question, considered as one to be governed hy authority of judicial decisions, it appears to be entirely removed in this state by a positive statute, which declares that " the proceedings prescribed by law in civil cases, in respect to the impanneling of jurors, the keeping them together, and the manner of rendering their verdict, shall be had upon the trial of indictments." (2 R. S. 735, § 14 ; 3 E. S. 5th ed. 1027.) The provision is general, and without any quali- fication or restriction whatever. The power of the court to permit a separation in civil cases is undoubted, and it is constantly exercised, and had been long previous to the passage of that statute. id. ^S: 254. In criminal as in civil cases, it is discretion- 758 PRACTICE. ary with the judge at the trial, in view of all the circum* stances, to permit further testimony to be introduced, even in favor of the prosecution, After the summing up has com- menced ; and no appeal or writ of error lies from such decision, Kolle v. The People, 17 How. Prac. Bep. 565. Supreme Oburt, New York G-eneral Term, June, 1859. S; 255. It is not error in law in a capital trial for the judge, with the assent of the prisoner, to permit the jury to separate from time to time before the charge is given to them, and they retire to deliberate upon their vardict. Stephens v. The People, 19 N. Y. Rep. 549. Court of Ap- peals, September, 1859. f^l\ 256. The taking of exceptions is restricted to de- cisions made by the court below during the progress of the trial. The decisions of the court of oyer and terminer, in refusijjg to grant a new trial, cannot be reviewed on ex- ceptions. Sartung v. The People, 4 Park. Grim. Bep. 319. Supreme, Court, Albany General Term, December, 1859. 257. A bill of exceptions should contain no more of the case than is necessary to present the questions of law raised on the trial, and which are the legitimate subjects of review on exception; and where other matters are in- serted, they should be striken out on motion. id, l^^o. 258. An exception to an improper question is not available on error, where the answer of the witness was a denial of his ability to give the information sought by the question. Shay v. The People, 4 Park. Grim. Bep. 353. Supreme Court, New York General Term, February, 1860. \^^; 259. An order for taking the testimony of a non- resident complainant de bene esse, under the acts of 1844 and 1846, entitled in the " court of general sessions," be- fore the finding of an indictment thereon for the offense, is irregular, and testimony taken under it cannot be read in evidence on the trial of the indictment. People v. Ward, 4 Park. Crim. Bep. 516. New York General Sessions, April, 1860. Before Barnard, Becorder. So.' 260. The issue joined upon a special plea of a PKACTICE. 759 former trial can only be tried by a jury ; the consent of tlie defendant cannot confer jurisdiction upon the court to try the issue without a jury. Chrant v. The People, 4 Parh. Grim. Bep. 527. Supreme Court, Clinton General Term, May, 1860. iSJfi' 261. "Where a defendant had been convicted before the court of sessions of a misdemeanor for a violation of the excise laws, and exceptions tkken by him had been re- moved into this court, by certiorari, and sentence stayed, on affirming the conviction, the proceedings were remitted to the court of sessions, with directions to proceed and render judgment, and the defendant was required to appear at the next term of that court to receive sentence. People V. Mwrphy, 5 Park. Crim. Rep. 130. Supreme Court, Broome Creneral Term, July, 1861. SlJ: 262. An entry by order pf the court after the jury was discharged, in amendment of the verdict as first re- corded, that " the jury find the prisoner not guilty of the larceny charged," is unwarranted and nugatory. Guenther V. The People, 24 N. Y. Bep. 100. Court of Appeals, De- cember, 1861. S' 263. A common law certiorari to review a summary conviction under a penal statute brings up, not only ques- tions affecting the jurisdiction of the magistrate and the regularity of the proceedings, but the question whether there was any evidence to warrant the conviction, and extends to all other legal questions ; and in such cases the evidence must appear on the face of the record, or the conviction will be quashed. Mullins Jr. v. The People, 24 JV: Y. Bep. 399. Court of Appeals, June, 1862. fig- 264. It seems, in this state, the statute of limitar- tions, to be available in a criminal case, should be pleaded. People v. Boe, 5 Park. Crim. Bep. 231. Montgomery Oyer and Terminer, September, 1862. Before Bosekrans, J. 265. Form of a plea, to an indictment, of the statute of limitations. *<^- ^^ 266. Where, on ah indictment for misdemeanor, it 760 PRACTICE. appears that the offense consists of a series of acts, and a part of the series is a complete misdemeanor, there can be no merger in a felony, and the conviction for a misdemeanor will be sustained, although the evidence may show the commission of an act of felony. Elltin v. The People, 24 How. Prac. Rbp. 272. Supreme Court, New York General Term, October, 1862. 267. But where, in such indictment, the act, which is the gist of the indictment, is a single act, and the evidence shows the commission of a fdony, the misdemeanor may be merged in the felony. id. S: 268. Where a capital case has been tried at the gen- eral sessions of New York, the Supreme Court has power, on writ of error, under the act of 1855, chapter 337, § 2, to order a new trial, when it shall be satisfied the verdict was against law or against the weight of evidence, or that jus- tice requires a new trial, " whether any exception shall have been taken or not, in the court below." Jefferds v. The People, 5 Park. Grim. Bep. 522. Supreme Court, New York Q-eneral Term, November, 1862. ?862. 269. After judgment, an allegation in the caption of an indictment that it was found by " a grand jury of good and lawful men," is to be deemed good, though not stating the names nor the number of the jurors. The objection must be taken by motion to quash, or by de- murrer. Dawson v. The People, 25 N. Y. Bep. 399. Com-t of Appeals, December, 1862. 270. The statute requiring the filing of an indictment is directory. The omission to file does not, it seems, avoid the indictment. If otherwise, an averment that it was filed with the clerk of the county is' equivalent to an averment that it was filed in the court of general sessions. id. 271. A court of oyer and terminer gave judgment for the prisoner on demurrer to special pleas establishing a good defense. The plea of not guilty remained on the record undetermined. The Supreme Court reversed the judgment on the demurrers, and ordered a new trial. ' PRACTICE. 761 Seld, 1. That the judgment of the oyer and terminer was final, and appealable to the Supreme Court. 2. That the judgment of the Supreme Court, though directing a new trial, was final so far as that court was concerned, and therefore appealable to this court. Martung v. The People, 26 N. Y. Bep. 154. Court of Appeals, December, 1862. i 272. The record having been rehaitted to the court of oyer and terminer, this court has power to reach it for the purpose of reviewing the judgment of the Supreme Court ; but whether the writ of error should be addressed to the inferior court, the Supreme Court, or both, quere. id. fs^: 273. An indictment will not be quashed, on the ground that it was found and presented by the grand jury pending an examination of the same charge before a police magistrate. People v. Heffernan, 5 Park. Grim. Bep. 393. New York Oeneral Sessions, February, 1863. Before Moff' man, Becorder. ^^^^ 274. Where there has been a conviction in a court of oyer and terminer, and judgment has been stayed, the proceedings may be removed into the Supreme Court for review by certiorari: where there has been a conviction and judgment, the proceedings can be removed into the Supreme Court for review, only by writ of error. Willis V. The People, 5 Park. Grim. Bep. 621. Supreme Gourt, Albany General Term, Septemiber, 1864. 275. The Supreme Court has no jurisdiction to entertain a motion for a new trial, on the ground of an irregularity which does not appear upon the record ; but, after a writ of error has been returned, and not before, affidavits may be read upon the argument to correct an error arising out of an irregularity to the rights of the prisoner, which does not appear on the record, and where he has no other legal mode of redress. Per Ingalls, J. id. 276. But a conviction will not be set aside and a new trial granted, when it is apparent that no injury resulted to the prisoner from the alleged irregularity. id. fslJ- 277. The defendants having pleaded not guilty to a T62 PRACTICE. defective indictment for murder, the coUrt refused to quash it upon their motion. People v. Waters et al., 5 Fark. Orim. Rep. 661. Supreme Court, Onondaga General Term, December, 1864. 278. The court will not ordinarily quash an indictment after the defendants have heen arraigned and pleaded not guilty. , id. 279. In cases of indictments which charge the higher crimes, or other oflfenses which affect the public at large, as perjury, forgery, &c., the courts uniformly refuse to quash, except where the objection could not be obviated or the error corrected by a new indictment. Per Mor- gan, J. id. 280. The court is in no case bound to quash an indict- ment ex debito j'usticice, but may oblige the defendant to plead or demur. It is to be presumed, in the first instance, that every person has a christian as well as a surname, and an indictment for murder is defective which describes the deceased as " one Hardy," without other designation, and without an averment, by way of excuse, that his name is otherwise to the jurors unknown. Per Morgan, J. id. ^ilg^; 281. The right given by the Revised Statutes to obtain a review of a criminal case on exceptions, super- sedes the necessity for the practice previously established, by which an inferior court of criminal jurisdiction, after conviction, suspended sentence, and asked for and obtained the advice of /the Supreme Court as to doubtful questions of law that had arisen on the trial. People v. Bruno, 6 Park. Orim. Pep. 657. Supreme Court, Monroe General Term, September, 1865. 282. Such practice, however, has not been abolished, and it is competent for the Supreme Court to entertain such an application, and to decide it upon its merits, id. 283. Where an indictment contained two counts, one for larceny and the other for receiving stolen property, knowing it to have been stolen, and the jury found a general verdict of guilty, and it appeared that both counts PRACTICE. 763 related to the same transaction — held, that there was no ground for sustaining a motion in arrest of judgment, but that judgment should be given for the highest grade of offense. 284. A motion in arrest of judgment is not limited to the indictment, but may be made on the whole record, which includes the verdict. id. 1 285. Form of an entry on the record made by the court of sessions, for the purpose 'of asking the advice of the Supreme . Court upon questions of law involved in the case. id. Ses. 286. "When prisoners are jointly indicted, and they elect to have separate trials, it has always been allowed to the district attorney to determine which of them he will first put upon his trial. It is purely a matter of discretion with him, and his discretion will not be interfered with by the court. And a refusal thus to interfere forms no ground of exception. Patterson v. The People, 46 Barb. Rep. 625. Supreme Court, Onondaga General Term, October, 1866. 287. "Where, on a trial for murder, the killing is proved and conceded, and there is no doubt as to the identity of the prisoner, it is for him, in making out a justification for the act, to satisfy the jury, beyond reasonable doubt, that he did apprehend, and had reason to apprehend, that he was in imminent danger of his life, or of the infliction of some great personal injury. id. 288. It would be reversing the whole order of the trial, and the burden of proof, if it devolved upon the people not only to prove the killing, but to negative any possible defense that the statute or common law affords to an alleged offender charged with crime. Per Bacon, P. J. id. 764 PEISONEE— EXAMINATION OF. Prisoner — Examination of. ICg^l: 1. A prisoner, in his examination before the police magistrates, is not bound to answer any question, the an- swer to which, if true, would implicate himself; but if he submits to answer, and answers falsely, the public prose- cutor may produce evidence to disprove such examination, and it will then be taken strongly against the prisoner. Goldsby & Covert's cases, 1 Oity Hall Recorder, 81. Before Maddiff, Mayor. New York, May, 1816. Jgl-. 2. The magistrate before whom an examination is tak^n, is a competent witness to testify to acts done by the prisoner before him, but not to declarations forming part of such examination. Tellesphore Robetaille's cases, 5 Oity Hall Recorder, 171. Before Golden, Mayor. New York, January, 1821. 3. Where a prisoner, in his examination before a magis- trate for a specific offense, discloses matters material to the prosecution on the trial of an indictment for another offense, it was held that such examination might be read on the trial of each indictment. id. 4. Examinations of prisoners hefore a magistrate stand on the same footing in courts of justice, as their declara- tions reduced to writing before any individual would, id. 5. Whatever is reduced to writing before a magistrate, and forms part of the examination of the prisoner, is not the subject of parol testimony. James Kenna's case, 5 City Sail Recorder, 174. Before Oolden, Mayor. New York, January, 1821. f^- 6. An examining magistrate is not compelled to caution a prisoner that he is not bound to confess ; that his confession should be free and voluntary ; that his con- fession might be read against him on his trial ; nor is it necessary it should so appear on the face of the deposi- tions. People v. Maxwell, 1 Wheel. Cases, 163. Riker, Recorder. New York, February, 1823. (See 3 E. S. 995, 6th ed.) PRISONEE— EXAMINATION OF. 765 7. It is not necessary the examination of a prisoner, in order to make it evidence, stould be signed by him. Peo- ple V. Johnson, 1 Wheel. Cases, 193. Biker, Recorder. New York, February, 1823. ^^' 8. There is no law in this country requiring the presence of counsel at the examination of a prisoner; and it is no objection to reading the examination of a prisoner, (who. denies it, to be free and voluntary at his trial,) that he was taken out of prison to the dead body of the person he was charged to have murdered, and was requested by the officer to touch the body, and did so ; and from thence was taken to the examining magistrate in excessive per- turbation of mind, and there confessed all the particulars of the murder. People v. Johnson, 2 Wheel. Oases, 361. New York Oyer and Terminer. Hdwards, J., ^c. March, 1824. 9. Parol Evidence of facts disclosed by third persons, in the presence of the prisoner, and assented to by him, can- not be given in evidence if it appears that the prisoner was at the time under examination ; it should make part of the examination itself. . id. "1^1: 10. To authorize a magistrate to take the first step towards the arrest of a person charged with the commis- sion of a crime, viz., to examine the complainant on oath, a simple complaint that an offense has been committed, is all that is necessary; such complaint, under the statute, need not be in writing nor under oath. People v. Hicks, 15 Barb. Rep. 133. Supreme Oourt, New York General Term, May, 1853. 11. All that need be proved by the examination of the complainant, to authorize further action on the part of the magistrate, is that it shall furnish good grounds to believe that further investigation will lead to the discovery of crime. id. 12. Where the comptroller of the city of New York appeared before the recorder, and upon his oath stated that from an examination of documents in his possession, 766 PEISONER— EXAMINATION OF. in his official capacity, and from information which he believed to be true, frauds criminal in their nature and character had been committed upon the public treasury of the city, to a large amount ; specifying the particular char- acter of one of the frauds as a specimen of the nature and character of the others ; held, that this was sufficient com- plaint, not only to authorize, but to require the recorder to investigate the matter thereof. id. 13. Held, also, that upon such complaint the recorder had power to examine any witnesses who might be pro- duced by the complainant, either voluntarily or by means of such process as the law allows, to compel the attend- ance of witnesses. And that his authority was not limited to the examination of such witnesses as should voluntarily present themselves for examination. id. 14. The magistrate may issue subpoenas to compel the attendance of witnesses in behalf of the complainant, on such examination, which the witness is bound, and may be compelled, to obey. id. 15. And if it appears from the examination of the com- plainant and witnesses produced by him, that a person is a material witness, and a subpoena is issued by the magis- trate to compel his attendance, and duly served on him, but he refuses to attend ; whereupon the magistrate issues an attachment, and the witness, on being brought before the magistrate, refuses to be sworn and testify, the magis- trate has power to adjudge him to be guilty of a criminal contempt, and to commit him to prison therefor. id. 1855.' 16. Where an individual is brought before a magis- trate, upon a warrant issued for a violation of the act of April 9, 1855, " for the prevention of intemperance, pau- perism and crime," the magistrate should take his exam- ination ; and if, upon such examination, it appears that no offense has been committed, or that there is no probable cause for charging the accused therewith, he should be discharged. If there is probable cause to believe the defendant guilty, bail should be taken, if offered by the PKISONEE— EXAMINATION OF. 767 defendant, for his appearance at the next court having cognizance of the offense. People v. Berberrich, 20 Barb. Hep. 224. Suprertie Court, Dutchess General Term, July, 1855. 17. The legislature did not intend, by that act, to extend the jurisdiction of courts of special sessions, so far as to compel persons accused of offenses against the act, to sub- mit to a trial before that tribunal in cases where the ac- cused should offer bail for their appearance at the next court of sessions or oyer and terminer, at all events, id. 18. A coujt of special sessions is one of limited juris- diction, deriving all its power from the statute. It can only acquire jurisdiction over the person of the accused upon his request to be tried before it, or his omission, for twenty-four hours after being required to do so, to give bail for his appearance according to law. id. {^j[ 19. Where a person, arrested and brought before a magistrate under the seventeenth section of the act en- ' titled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April 16, 1857, refused to be sworn and examined as to the cause of his intoxication, the magistrate has no power to commit him to prison for such refusal. People v. Webster, 3 Park. Grim. Bep. 503. Supreme Court, at Chambers, July, 1857. Before Welles, J. (The legislature, May 11, 1869, chap. 856, amended the excise law of 1857, by striking out so much of section 17 as required the magistrate to swear the person apprehended for being intoxicated in a public place, as to the cause of his intoxication, and the person or persons who sold or gave the liquor to him.) 20. It seems that justices of the peace, in examinations upon complaints made before them in criminal cases, have no power to commit persons for refusing to be sworn as witnesses. id. 21. The power conferred by statute upon magistrates in relation to the case of witnesses refusing to be sworn or to testify on trials before justices of the peace, is condi- 768 EAPE. tional, dependent upon tlie fact that tlie party at whose instance the witness attends shall make oath that the tes- timony of the witness is so far material that without it he cannot safely proceed in the trial of the cause. The power of the justice to commit does not therefore vest until such party makes such oath. In this case there is no trial of a cause; no party to make the oath ; and the war- rant does not show that any such oath was made. id. 22. It may be said that this view in relation to the pow- ers of justices of the peace to commit in criminal proceed- ings, will, if sustained, deprive them of important and necessary facilities for the eliciting of facts and advancing criminal justice in the detection of crimes, I can only say 1 cannot help it. It is not for courts or judges to make laws J and if those upon whom that duty devolves deem an enlargement of the powers of justices in such cases necessary or wise, they have but to will it and it is done. id. Rape. •J^o^l 1. On an indictment for rape, there is no definite period fixed by law to infer puberty; it depends more upon the constitution and habits of body of the party than upon age; and if the girl, young as she may be, yielded her consent, it is no rape ; and the circumstance that a long time elapsed after the commission of the act before she made any disclosure, unless it can be satisfac- torily accounted for, must undoubtedly detract much from the credibility of the prosecutrix. People v. Oroucher, 2 Wheel. Oases, 43,. New York Oyer and Terminer, July, 1800. Be/ore Benson, J. S: 2. Where a prisoner is charged with an attempt to commit a rape, and in order to prove that fact one circum- stance relied on is that the prisoner infected the girl with a venereal disease, the examination of the prisoner by a physician cannot be given in evidence until the fact of the diseased state of the girl is first shown. People v. Flinrif KAPE. 769 1 WJieel. Oases, 74. Biker, Recorder. New York, Novem- ber, 1822. S' 3. WKere a married woman retired to bed, fell asleep and was awakened by a man, whom she supposed to be her husband, in the very act of sexual connection, and it proved afterwards not to be her husband; was it a- rape or merely an assault? People v. Bartow, 1 Wheel. Cases, 378. Biker, Becorder. New York, May, 1823, S: 4. In cases of rape the legislature has made an innovation in the common law ; formerly force was neces- sary in the commission of a rape in all cases; now, by statute, carnal knowledge of an infant under ten years of age was felony, whether she consented or not. It was obvious the statute did not apply to an attempt to commit rape, it was therefore as at common law ; force and non- consent must be shown. In this case — an infant of seven years of age — it was almost impossible to suppose consent, and as the act was against her will, it is a presumption of law so strong as to amount to proof of force. People v. Stamford, 2 Wheel. Oases, 152. Biker, Becorder. New York, November, 1823. {|^, 5. On the trial of a person charged with the crime of rape, or an assault with intent, &c., the inquiry may be made of the prosecutrix whether she had previous connec- tion with other men ; and it seems that she, in such case, is not privileged from answering. People v. Abbot, 19 Wend. 192. Supreme Oourt, January, 1838. 6. The prosecutrix may be shown to be in fact a com- mon prostitute ; so also a previous voluntary connection between her and the prisoner may be proved ; and evidence may be given of particular acts and associations, indicating on her part a want of chastity. id. 7. It seems also, that the general character of the prose- cutrix as a common prostitute may be shown ; and that the prisoner is not restricted to the proof of her general char- acter for truth and veracity, but may give evidence of her general moral character. id. 49 770 EAPE. 8. The same rules of evidence are applicable to a trial for an indictment for a simple assault and battery on a female, followed with carnal knowledge. id. 9. The magistrate before whom the complaint was made cannot be called to state what the prosecutrix testified before him, as to her having had previous connection with other men, if the inquiry is not made for the purpose of showing a discrepancy in her testimony. id. 10. Where a prisoner is tried in a court of general ses- sions, on an indictment for rape and an assault with intent, &c., and the jury convict of an assault and battery only, judgment cannot be rendered ; the sessions not having jurisdiction of the offense of rape — for imprisonment may be for life on conviction for rape — therefore the whole was coram non judice, and void. id. (In 1865 the legislature enacted that "all criminal offenses — except murder in the second degree, arson, and manslaughter in the first degree — now punished by im- prisonment in the state prison for a term not less than ten years, shall hereafter be punished by imprisonment in the state prison for a term not less than five nor more than twenty years. See Session Laws of 1865, chap. 212, p. 345.) JJff' 11. Where the prisoner decoyed a female, under ten years of age, into a building for the purpose of ravish- ing her, and was then detected while standing within a few feet of her in a state of indecent exposure ; held, that though there was no evidence of his havingactually touched her, he was properly convicted of an assault with an attempt to commit a rape. Hays v. The People, 1 Hill, 351. Su- preme Court, May, 1841. 12. The consent of a female of that age, or even her aiding the prisoner's attempt, is no defense. id. 13. An assault is an attempt with force or violence to do a corporeal injury to another ; and may consist of any act tending to such injury, accompanied with circum- stances denoting an intent, coupled with a present ability, to use violence against the person. id. EAPE. 771 14. It is not essential, to constitute an assault, that there should be a direct attempt at violence.- id. l^ll 15. The phrase " navigating a river," &c., used in the statute (2 R. S. 727, § 44) relating to offenses committed on board of vessels, should be construed in reference to the understanding of persons engaged in the business of navigation. People v. ffulse, 3 Hill, 309. Supreme Court, July, 1842. (3 R. S. 5th ed. 1018.) 16. Accordingly, where a vessel has started on her voy- age and still intended prosecuting it, though when the offense was committed, and for two days previous, she was lying at anchor in a river, by reason of adverse winds ; held, nevertheless, that she was navigating the river, within the meaning of the above statute. id. 17. If the offense be committed while the vessel is in a river, prosecuting her voyage, the case is within the stat- ute, even though the port of departure and destination are both upon other waters. id. , 18. The statute, however, is not to be construed as au- thorizing any unnecessary departure from the common law rule respecting venue in criminal cases. id. 19. Accordingly, where, at the time of the commission of the offense, the vessel was navigating a river, and her port of destination, which she finally reached, was upon the ocean, in a county beyond the mouth of the river ; held, that no indictment lay in such county, but only in some county through which or a part of which the vessel passed while on the river. id. M|rei. 20. On the trial of an indictment for rape, it is competent for the counsel for the prisoner, on the cross- examination of the prosecutrix, to ask her whether the treatment complained of " was with her consent or against, her will." Woodin v. The People, 1 Park. Orim. Bep. 464 Supreme Court, Monroe General Term, March, 1854. 21. 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 772 EAPE. form of a question, if not otherwise objectionable, is a mat- ter of discretion with the court. id. 22. The credibility of witnesses is exclusively 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 rest- ing on the credibility of witnesses. id. fsIS: 23. To warrant a conviction for rape under the 2d sub. of § 22, 2 R. S. 663, (3 E. S. 5th ed. 942,) it ought to appear that there was the utmost reluctance and the utmost resistance on the part of the prosecutrix. People V. Morrison, 1 Park. Grim. Hep. 625. Greene Oyer and Terminer, December, 1854. Be/ore Harris, J. JJli;- 24. The wtord " ravish" is necessary, in charging the offense, in an indictment for rape; audits omission in the indictment will, after conviction, be ground for re- versal on error. Gougleman v. The People, 3 Park. Crim. Pep. 16. Supreme Court, New York General Term, May, 1855. ^f; 25. On the trial of an indictment for rape, it is not competent, on the part of the defense, to prove acts of illicit sexual intercourse between the prosecutrix and per- sons other than the defendant, although the prosecutrix had previously been asked, on her cross-examination, in relation to such illicit acts, and had denied them. (This case overrules People v. Abbott, 19 Wend. 192.) People v. Jackson, 3 Park. Grim. Rep. 391. Supreme Gourt, Kings General Term, May, 1857. 26. Form of an indictment for rape. id. ^mt 27i A prisoner tried for rape is not, in all cases, entitled to a direction from the court that he cannot be convicted, unless the prosecutrix used the utmost reluctance in respect to the commission of the offense. The request should be qualified so as to include the circumstances under which the offense was committed, such as threats, intimidation or fears of the prosecutrix. People v. Mon- nais, 17 Abb. Prac. Rep. 345. Supreme Court, First Dis- trict, General Term, March, 1864. EAPE. 773 28. "Where, on the trial of an indictment for rape, evi- dence of the acts and declarations of a third party had been admitted against the prisoner, with proof of complicity on his part sufficient to be submitted to the jury ; held, that the prisoner was entitled to an instruction from the court that he could not be held accountable for the conduct of the third party, except so far as their acts were in com- plicity, id. fsw!' 29. Having carnal connection with a woman, in- toxicated to the point of insensibility, forcibly, is not a rape, but is merely a crime under the 23d section of the act respecting offenses against the person. (2 K. S. 663, § 23 ; 3 E. S. 5th ed. 942.) People v. Quin, 50 Mrb. Sep. 128. Supreme Court, Monroe General Term, September, 1867. 30. To constitute the crime of rape, since the Eevised Statutes, the connection must be absolutely against the will of the female, and there should be the utmost reluc- tance and the utmost resistance by her. id. 31. The statute, by specifying and describing the offense of having carnal knowledge of a woman, without her consent, by administering to her any substance or liquid which shall produce such stupor, or such imbecility of mind, or weakness of body as to prevent effectual resist- ance, and prescribing a different measure of punishment for it, has taken it out of the category of rape, even if it would have been held to be such at common law. id. 32. "Administering" is defined to be "giving," "dis- pensing ;" and there is no question but that the defend- ants furnished and gave her the liquor on that morning. The fact that she asked them for it at one time, makes no difference ; they bought it and gave it to her, and drank it with her. It was by their " administering" that she obtained it. id. 33. Where the defendants administered to the woman the liquor which produced a stupor and insensibility that would have prevented any effectual resistance had she 774 RAPE. been inclined to resist ; held, that as the violation of the person of the female, under such circumstances, would not have constituted the crime of rape, the defendants could not be convicted of an assault with intent to commit a rape. id. 34. Where a physician had sexual connection with a female patient, a single woman thirty years of age, on two occasions, while attending her in a professional capacity j she testifying that he told her she had a disease of the womb, and that a physical examination was necessary-; that he professed to be making such examination, while doing the acts, which she believed to be true ; that this occurred in the parlor of her brother's houSe, in the day time, while the wife of her brother was in an adjoining room ; but that, though she submitted with much reluc- tance, she made no outcry, and made no revelation of the occurrences until after she had been told that she was pregnant ; held, that such a statement, made by a female of mature age and professing any intellectual capacity, ought not to be allowed to become the basis of judicial action. Walter v. The People, 50 Barb. Bep. 144. Su' preme Court, Orange General Term, September, 1867. 35. Held, also, that a charge of the judge to the jury, that "as to the degree of force used, in a case like this, where resistance is not made, by reason of a representa- tion leading the female to believe that sexual penetration of her body is necessary for the recovery from disease, the force used in ordinary sexual intercourse is sufficient to constitute a rape," was erroneous. id. 36. The prisoner's counsel requested the court to charge, that " even if the defendant had accomplished his alleged purpose by fraud, without intending to use force, then such fraud does not constitute rape, unless the evidence shows that the defendant intended to use force if the fraud failed." The court refused go to charge. Held, that the proposition was in several respects of the case correct, and that the jury should have been instructed accordingly, id. EEOEIVER OP STOLEN GOODS. 775 Receiver op Stolen Goods. ■tfjil' 1. Receiving a stolen bank bill, knowing it to have been stolen, is not a misdemeanor within the statute. (But see 3 E. S. 5th ed. 959.) Christopher Boyd and Mar- tha his wife's case, 3 City Hall Recorder, 59. Before Biker, Becorder. New York, April, 1818. ■iSJI; 2. The mere finding an article stolen, in possession of a party charged with receiving it, knowing it to be stolen, without other evidence, is insufficient to produce a conviction; but inadequacy of price; purchasing new goods from vagabonds from appeai'ance; concealing the goods; agitation when questioned respecting them; all or either of these, if existing, are circumstances of guilt. John ShotwelVs cases, 3 City Hall Becorder, 95. Before Colden, Mayor. New York, June, 1818. 3. If in such a case the property alleged to be stolen be laid as the separate property of "W"., and on the trial it should appear that the property was that of W. & K., the prosecution cannot be sustained. id. Dec. vsO.. 4. On the trial of an indictment for receiving stolen goods, knowing them to be stolen, it seems that the coun- sel for the prosecution will not be permitted, for the pur- pose of establishing the scienter, to show that stolen goods, not laid in the indictment, were found in the house of the prisoner. Daniel Bell's case, 6 City Hall Becorder, 96. Biker, Becorder. New York, December, 1821. 5. Every case of receiving stolen goods depends on its own intrinsic circumstances. This is a crime different from that of passing counterfeit money: it is a specific offense, and must depend on its own peculiar circum- stances, id. JJg; 6. On a charge of receiving stolen goods, knowing them to be stolen, it is the intent that constitutes the crime, and it is to be made out from an impartial view and comparison of all the circumstances of the case. 776 EECEIVEE OF STOLEN GOODS. People V. Cochrane, 1 Wheel. Oases, 81. Biker, Recorder. New Yorh, November, 1822. iS. 7. On a charge of receiving stolen goods, knowing them to be stolen, it is not competent for the district attorney to prove that the house of the prisoner was the resort of felons who came there to dispose of stolen goods. People V. Pierpont, 1 Wheel. Cases, 139. Biker, Recorder. New York, Jan,uary, 1823. ^w^.' 8- On an indictment for receiving stolen goods, knowing they were stolen, the j ury are to decide, from all the circumstances of the case, the intent of the defendant, whether he received the goods knowing they were stolen or not. People v. Teal, 1 Wheel. Cases, 199. Biker, Re- corder. New York, March, 1823. ^sl^: 9. In an indictment for receiving stolen goods, it is not necessary to allege that they were received upon any consideration passing between the thief and the receiver. People v. Sopkins, 12 Wend. 76. Supreme Court, May, 1834. (See 3 K S. 5th ed. 959.) feU: 10- Where, in an indictment for receiving stolen goods, the charge was that the prisoner had feloniously received of an ill disposed person, to the jurors known as Deman Boyce, a cow^ the property of, &c., which had then lately before been stolen by the said ill disposed person, with knowledge of the felony, and the verdict of the jury was that the prisoner was guilty of receiving the cow charged in the indictment as stolen property, knowing her to he stolen, without finding by whom the property was stolen, the conviction was held proper, and a judgment rendered upon the verdict was affirmed. People v. Gas- well, 21 Wend. 86. Supreme Court, May, 1839. Ja"^; 11. If a stranger, pursuant to an arrangement with one whom he knows has stolen goods, invite an interview with the owner, and afterwards receive the goods under the mere color of an agency, but really to make a profit out of the larceny, he is within the statute against receiving EECEIVER OF STOLEN GOODS. 777 stolen goods. People v. Wiley, 3 Hill, 194. Supreme Court, July, 1842. 12. Various English statutes against receiving stolen goods reviewed, and their policy examined. id. 13. Under our statute, the receiving of stolen goods malo animo is a principal offense. id. 14. Eeceiving stolen goods with intent to favor the thief, though it be only by disconnecting him with one of the evidences of his guilt, is within the statute. Sem- ble. id. 15. So, of a receipt, with knowledge, designed as a means of depriving the owner of the whole or a part of the goods, contrary to his intent, id. 16. So, the purpose be not to deprive him of the specific goods, but of some other portion of his property; e. g., to defraud him into the payment of money by way of reward for the restoration of the goods. id. 17. "W., a police justice of the city of New York, having learned that a large amount of funds had been stolen from a bank in Maryland, invited an interview with the agents of the latter, expressing his belief that the property could be recovered. An interview accordingly took place, in which W. proposed to procure the restoration of the prop- erty upon condition that the bank would pay therefor at the rate of ten per cent on the amount ; saying, his em- ployer would not take less. After several days spent in negotiating, during which W. professed to be acting with entire knowledge as to the views and wishes of the thief, it was finally agreed that the property should be restored for a less sum than the one first demanded ; and a place was fixed for carrying the agreement into effect. W. brought the property to the appointed place and delivered it to the agents of the bank, who thereupon paid him the stipulated reward. Held, that though "W. received the property under color of an agency from the bank, the jury were authorized to find that he had procured the agency under a previous arrangement with the thief, intending to 778 EEOEIVER OF STOLEN GOODS. make a profit to himself out of the crime, but concealing such intent from the bank; and if so, he was punishable as a receiver of stolen goods. id. 18. If W. had only sought for such a reward as was insisted on by the thief before giving up the goods, to- gether with a fair compensation for his own trouble, he proposing and being allowed for the whole as such, the case might have been different. id. 19. Quere, however, whether any arrangement to obtain and restore stolen goods for a reward stipulated with the owner, followed by an actual receipt of the goods from the thief for that purpose, can be said not to be within the statute. id. 20. In general, the gist of offenses of this nature is the intent to defraud. id. 21. A man may be convicted of stealing his own goods ; e. g., where he secretly and fraudulently takes them from his bailee, so as to bring a charge Upon the latter. id. 22. And if the goods have been stolen from the bailee by another, the owner may render himself criminally re- sponsible by fraudulently receiving them from the thief, id. 23. On the trial of an indictment for receiving stolen goods, the prisoner offered to show that, during the week previous to the receipt, he declared publicly his expecta- tion of obtaining the goods ; held inadmisible, as being irrelevant not only, but a naked declaration of the prisoner in his own favor. id. 24. Bank bills, complete in form, but not issued, are the property of the bank ; and may be so treated in criminal proceedings for receiving them, with knowledge of their having been stolen. id. 25. In order to constitute the offense of larceny, or of receiving stolen goods, it is sufficient if the thing stolen or received be of some value, however small. SemUe. id. 26. The word bond necessarily imports an obligation under seal; and hence, under an indictment for receiving stolen goods, describing them as so many bonds, the de- KECEIVER OF STOLEN GOODS. 779 fendant cannot be convicted if it turn out that they were simple contracts. id. 27. An indictment for receiving stolen goods should describe the goods with certainty and accuracy ; and a va?- riance in this particular will be fatal. id. 28. Though a general verdict of guilty be rendered on an indictment containing several counts, all of which are bad save one, judgment may, notwithstanding, be ren- dered. , id. 29. Otherwise, however, in civil cases, where a general verdict is rendered upon several counts, some of which are bad. id. 30. In a prosecution for larceny, or for receiving stolen goods, if the crime be established in respect to only a single article, though the indictment describe several, the defend- ant may be convicted. id. 31. Though a court in the course of a trial, whether civil or criminal, err in point of law ; yet, if the error be one which by legal necessity can do no injury, it.is not cause for setting aside the verdict even on bill of exceptions, id. • 32. On the trial of an indictment for receiving stolen goods, which misdescribed a part of the goods, but con- tained a sufficient description of the residue, ihe jury were instructed by the court that there was no misdescription whatever; and general verdict of guilty was rendered. Seld, that the erroneous instruction constituted no ground for a new trial, inasmuch as it appeared by the bill of ex- ceptions, that the question of the defendant's guilt was identical in respect to the whole of the goods ; he having received them, if at all, from the same person, by a single act. id. fJs'f' 33. 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 owneK, or in some other way to defraud him of the property. People v. Johnson, 1 Park. Grim. Hep. 564. Supreme Court, Delaware Gfeneral Term, July, 1854. 780 EECEIVER OF STOLEN GOODS. 34. In an indictment for such offense, 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 so received with a felonious or fraudulent intent. id. 35. 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. id. ^i&r'. 36. Form of an indictment for feloniously receiving and having stolen property, with counts charging some of the defendants as accessories. Wills et al. v. The People, 3 Park. Qrim. Hep. 473. Supreme Court, New York Gen- eral Term, June, 1857. 37. On the trial of an indictment for feloniously receiv- ing and having stolen goods, where a witness called by the prosecution had testified that he called on the defendants and found the stolen property in their possession, and purchased it of them for a much less sum than its value, and had at the time, in his possession, a memorandum of the goods which had been stolen, it is competent for the prosecution, for the purpose of showing the true position of the witness in the transaction, to show by him that he had previously received the memorandum from the person from whom the property had been stolen, and that he also got the money with which he bought the property from the person from whom it had been stolen. id. 38. What facts and circumstances are sufficient to just- ify the court in refusing to discharge one of the defend- ants, on the trial of such an indictment, where a clear case of guilt was made out against the other defendant, both being claimed to have acted in concert, stated in the his- tory of the case, and commented on by Mitchell, J. id. 39. Where the bulk of the stolen goods was found in Williamsburgh, in a house apparently kept for storing and concealing goods, but a portion of the goods, used as samples, was found at the store and place of business of the defendants in New York, at which place Wills, one of EECEIVBE OF STOLEN GOODS. 781 the defendants, exhibited to a witness, and offered to sell him the whole of the goods and the samples, before they were exhibited to the witness, were brought in by Conley, another defendant, after an absence of only fifteen minutes from the time he was sent by Wills to get them ; it was held, on the trial of an indictment found in the city of New York, that the court of general sessions were right in overruling a motion to dismiss the case, or to direct the jury to acquit the prisoners, which motion was made on the ground that it was not shown that they had received or had the goods in question, within the city and county of New York. id. 40. On the trial of an indictment for receiving stolen goods, knowing them to be stolen, it is not competent for the defendant, for the purpose of proving that when he received the goods he had no knowledge of their being stolen, to prove what the person from whom he received the goods said as to the manner in which such person be- came possessed of the property. id. 41. Where a witness, called by the defendants, testified that he saw in the store of the defendants samples of the property alleged to have been stolen, it is not competent for the defendants to prove by the witness what was said by one of the defendants then present, " as to what the property was doing there." id. 42. Under the statute of this state, a person may be tried and convicted of the offense of feloniously receiving and having stolen goods, either in the county where the prisoner originally received, the stolen property, or in any county in which he afterwards had it. id. ^l; 43. To convict of having feloniously received goods which had been stolen from an -incorporated company, it ■ is necessary to allege in the indictment, and to prove on the trial, that the company alleged to have been injured by the offense of the defendant was an existing corporation. Cohen v. The People, 5 Park. Grim. Pep. 330. Supreme Court, New York General Term, May, 1862. 44. On the trial of an indictment for receiving stolen 782 EECORD OF CONVICTION, goods, knowing them to have been stolen, the thief from whom the prisoner received the goods is not to be regarded as an accomplice, but as guilty of a previous and different offense. People v. Oook,5 Park. Grim. Bep. 351. Supreme Court, New York General Term, May, 1862. Eecord of Conviction. ^SJ; 1. In proce'edings under the seventh section of the " act declaring the powers of the courts of general sessions of the peace," &c., the record of conviction ought to state sufficient to show that the justices had jurisdiction. The value of the thing stolen ought to be stated, and that the party convicted had not given bail within forty-eight hours after being committed, or had consented to a trial before the expiration of that time. Powers v. The People, 4 J. B. 292. Supreme Court, May, 1809. Psff 2. In 0, record of conviction before a court of special sessions, the place where the offense was committed must be stated, that it may appear to have been within the juris- diction of the court. People v. Miller, 14 J. B. 371. Su- preme Court, October, 1817. 3. "Whether it is necessary to state that the complaint, previous to issuing the warrant on which the defendant was arrested, was made under oath ? Quere. id. fsl?; 4. A record of conviction for a felony, in that part containing the judgment of the court, should show that the prisoner was sentenced for a felony ; and in case where, by mistake, the appropriate word was omitted, it was held that such record could not be amended. David Bartron's case, 6 City Hall Becorder, 101. Biker, Becorder. New York, December, 1821. 5. The prisoner in this case was indicted under the statute declaring it a felony, after being sentenced and imprisoned in a state prison, to break the prison and escape. ffeld, that the sta,tute of amendments and jeofails, by its express words, did not apply to criminal cases. id. s"!: 6. The power of summarily convicting offenders AUB, 1847. KEOOED OF CONVICTION. 783 being in derogation of the common law, it must be strictly confined to the special statute from which its force is derived. People v. Phillips, 1 Park. Qrim. Bep. 95. At Ghambers, August, 1847. Be/ore Edmonds, 0. J. 7. The restrictions and regulations relative to these con- victions, established by the higher courts in England be- fore the revolution, were declaratory of the common law, and are binding in this state, unless they have since been repealed or altered by statute. id. 8. A record must 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 ac- cused ; that he may not again be convicted of the same offense. 2. For protection of the magistrate; a proper record being conclusive 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. (Quere? See Sess. Laws of 1859, chap. 339.) 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. 5. Although there is no trial by jury, proceedings must be according to the course of the common law in trials by jury. 6. There must be, fii'st, an information or charge, and the defendant must be summoned and have an oppor- tunity to make his defense. 7. The evidence in support of the charge must be such as the common law approves, unless specially directed otherwise by statute. 8. There must be a conviction, judgment and execution, all accord- ing to the course of the common law. 9. The record is designed to show the regularity of the proceedings, and that the sentence is supported by legal evidence ; there- fore everything necessary to support a conviction must appear upon it. It must set forth : 1. The particular cir- 784 EEOOED OF CONVICTION. cumstances constituting the offense, to show that the mag- istrate has conformed to the law and has not exceeded his jurisdiction. A mere statement of the offense, 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 defense, so far as applicable to the charge, to show that every ma- terial allegation was sustained by proof. 6. An adjudi- cation of the guilt of the accused, which must be exact and precise, judgment for too little being as, bad as for too much. ' id. (Since this decision a form of record has been author- ized by the legislature, which is applicable to the city of New York only. See 2 K 8. 5th ed. 881.) l^l' 9. A warrant of commitment issued by a justice of the peace, upon a conviction for petit larceny, is void, unless it be directed to the officer or class of officers by whom it is to be executed ; and it will afford no protection to a constable who executes it. Bussel v. Hubbard, 6 Barb, 654. Supreme Court, Jefferson Q-eneral Term, July, 1849. 10. The legislature, by the section of the statute relative to warrants of commitment issued by courts of special sessions, did not intend to prescribe a form for such war- rants, or to vary the common law rule respecting them. Hence a warrant which would be good at common law will be valid under the statute. id. fj"^; 11. A certificate of conviction, in the form directed by the statute, and which was filed in the clerk's office within the prescribed time, is competent evidence of the facts stated therein ; although it does not contain evidence that the court had obtained jurisdiction over the person of the prisoner. People v. Powers, 7 Barb. 462. Supreme Court, Onondaga General Term, November, 1849. 12. Such a certificate, being made evidence by statute, EEOORD OF CONVICTION. 785 of the facts contained in it, cannot be contradicted by parol evidence showing that there was, in fact, no trial and conviction. id. 13. Yet it seemg that a party may so far contradict a record of conviction by a court of inferior jurisdiction, as to prove that the court had no jurisdiction of the offense, or of the person of the prisoner. id. fjl?: 14, A certificate of conviction made by a court of special sessions, in form, and filed in the county clerk's office within the time prescribed by statute, is conclusive evidence of the facts therein stated. People v. Powers, 2 Seld. Rep. 50. Court of Appeals, December, 1851. ,^^ 15. Upon a conviction at the oyer and terminer, it is not sufficient to state in the entry of judgment in the minutes, under the requirements of 2 R. S. 738, § 5, (3 R. S. 5th ed. 1031,) thatthe defendant was convicted of a felony or a misdemeanor; but the particular offense should be stated. People v. Oavanaugh, 1 Park. Qrim. Hep. 588. At Chambers, Brooklyn, October, 1854. Dean, J. 16. And where a person is imprisoned under such con- viction, the particular kind of offense of which he has been convicted should appear in the commitment, that it may be seen whether the punishment awarded was war- ranted by the offense. id. 17. The penitentiary being provided by law for the im- prisonment 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 sen- tence a person so committed to imprisonment in the county jail. id Jg"5 18. By statute passed January, 1833, common pros- titutes in the city of New York are declared vagrants, and the record of conviction ordered filed in the office of the clerk of the court of sessions. Stewart's case, 1 Abb, Prac. Pep. 210. New York Common Pleas, at Chambers, January, 1855. Before Ingraham, F. J. \^ 19. Form of a record of conviction for felony, 50 786 RECOED OF CONVICTION. where the defendant was tried on an indictment found against. him jointly with another person, and to which the defendant pleaded not guilty and demanded a separate trial Peverelly v. The People, 3 Park. Grim. Rep. 59. Su- freme Court, New York General Term, February, 1855. Pass's. 20. The record of conviction for vagrancy, in the city of New York, should be filed with the clerk of the court of sessions, and not with the county clerk. Layden's case. New York Gommon Pleas, at Ghambers, October, 1856. Before Ingraham, F. J. *5|Jf^' 21. To constitute a judgment record, it must be signed by a judge of the court. Weed v. The People, 31 N. Y. Rep. 465. Court of Appeals, March, 1865. 22. The statute (2 E. S. 738, § 4; 3 R. S. 5th ed. 1031) authorizing the defendant, convicted or acquitted, &c., to cause a record to be made up, when the district attorney neglects to do so on request, has not dispensed with such necessity. ' id. 23. The district attorney is not authorized to sign the record, in -lieu of a judge of the court ; and if so signed by the district attorney only, it is not a judgment record, id. 'S: 24. It is not necessary, upon a conviction by a court of special sessions, in the city and county of New York, that a record should be filed. The act of 1858 (441, ch. 282, § 5) provides that transcripts of convictions shall not be required to be filed, but makes a certified copy by the clerk of the court of special sessions evidence. A similar provision may be found in the act of 1830, ch. 42. Wil' Harrison's case. Supreme Court, First District, at Gham- bers, June, 1865. Before Ingraham, P. J. 25. If it were, it seems that the omission to file one would not be ground for discharging the prisoner upon habeas corpus, where the statute has made it the duty of the magistrate not to extend his inquiry behind the com- mitment, id. fs's'j. 26. Upon a conviction for disorderly conduct, the making and filing of a record is not necessary. Case of EECOGNIZANCE. 787 the Twelve Commitments. New York Oommori Pleas, Octo- ber, 1865. Be/ore Daly, F. J. EBCOaNIZANCE. fg^^: 1. "Where the condition either of a bond or recogni- zance becomes impossible of performance by the act of God, or of the law, or the obligee or conusee, performance is excused. People v. Manning, 8 Qowen, 297. Supreme Court, February, 1828. 2. E. g., a sheriff's recognizance to appear on an attach- ment, where he is sick at the day, and afterwards dies. id. S' 3. A party, bound to appear at a court of criminal jurisdiction and answer to what shall be objected against him, forfeits hia recognizance if he departs without leave; it is no answer to a suit on the recognizance, that he ap- , peared and was ready to answer, if, at a subsequent day of the court, he did not appear when demanded. People v. Stager, 10 Wend. 431. Supreme Court, May, 1833. 4. The clause "that he shall not depart until dis- charged," is not necessary to be inserted in the recogni- zance, in respect to the charge upon which the recognizance is entered into ; its use is to detain the party upon other charges that may be exhibited against him ; and if such other charges are presented, and the party is convicted and refuses to appear after personal notice, the recogni- zance is forfeited. id. 5. If, however, after a recognizance is entered into, the party charged is arrested on a bench warrant issued upon an indictment for the same offense and he subsequently escapes, his hail are discharged. id. 6. After such arrest, the proper course, it seems, would be for the public prosecutor to require new bail, or move for the commitment of the defendant. id. \^l- 7. A recognizance taken before two justices of the peace, for the appearance of a party indicted in a court of general sessions for a mscZe?wea»o>*, is good and valid. Peo- ple V, Euggins, 10 Wend. 464. Supreme Court, July, 1833. Y88 EECOGNIZANCE. 8. Afttr indictment, any one justice of the peace has power to admit to bail a party indicted in a court of gen- eral sessions of an offense triable in that court; and before indictment, he may let to bail a person charged with an offense under the degree of grand larceny. id. 9. So also two Justices may, before indictment, let to bail prisoners arrested and in jail, charged on suspicion of fel- ony. (See 3 R. S. 5th ed. 997.) id. 10. The.statute requiring recognizance to be signed, only requires the signature of the cognizor. id. 11. It need not be positively averred in a suit on the recognizance that the recognizance was filed in, or made a record of, the court in which it was returnable; it is sufficient, on general demurrer, that the declaration refer to it as a record of the court. id. 12. An- averment that the principal, although called, did not appear, is equivalent to an averment that his default for not appearing was entered of record, and supersedes the necessity of an allegation that the bail did not produce the principal. id. 13. It seems, that a recognizance taken in the oyer and terminer for the appearance of a party at the next general sessions, may be respited from the sessions to the oyer and tei'min&r. People v. Oay, 10 Wend. 509. Supreme (Jourt, July, 1833. ™|^; 14. A recognizance to appear at a court of general sessions to answer to an indictment to be preferred, to do and receive, &c., is valid, if the offense charged be substan- tially, although not technically set forth. People v. Blank- man, 17 Wend. 252. Supreme Oourt, May, 1837. 15. It seems that the same rule applies to a warrant of arrest and to a mitimus, and that when a prisoner is brought up on habeas corpus, the court will look into the original deposition to see if there be just cause for his de- tention, id. 16. A party under recognizance may be called on any day during the continuance of the court, and. is not neces- RECOaNIZANCE. 789 eary to justify a call on a day subsequent to the first day of the court, that notice should be given to him or his bail. id. 17. In an action on a recognizance, it is not necessary to aver in the declaration the order of the court directing a prosecution. id. \fA'. 18. A recognizance cannot be respited from one court to another, contrary to the remonstrance and express dissent of the bail, if they have the principal in court at the time of the motion for a respite. People v. Clary, 17 Wend. 374. Supreme Court, July, 1837. 19. It seems, however, that a recognizance may be re- spited without the knowledge, approbation or consent of the bail, and still be obligatory ; and that to discharge them from liability, there must be an express dissent, id. ^i^_ 20. In an action upon a criminal recognizance, con- ditioned that the accused shall appear and answer, &c., a plea that he appeared and was ready to answer is not suf- ficient. Per Coioen, J. People v. Greene ^ Pixley, irn- pleaded ^c, 5 Sill, 647. Siipreme Court, October, 1843. 21. If the condition be that the accused shall appear, do., and not depart till discharged by the court, the cognizors are bound to see that he remains during the term specified, to answer any charge other than the one on which the prose- cution is founded. Per Cowen, J. id. 22. Where the condition is that the accused shall appear to answer, (fee, and not depart the court without leave, ap- pearing and answering at the term specified, satisfies the recognizance ; a default at the next term will be no breach. Per Cowen, J. id. ^^: 23. A recognizance for the appearances of wit- nesses to testify on an indictment in a court of general sessions, must contain an acknowledgment of indebtedness to the people, and mention the offense charged, or no ac- tion can be maintained upon it. People v. Mundk, 5 Mill, 606. Siipreme Court, May, 1844. ?s44 24. In debt on a recognizance, conditioned that the defendant should appear and answer to an indictment 790 EECOGNIZANOB. found against him, the defendant pleaded that, after the forfeitui'e of the recognizance, and before the commence- ment of the action, he was arrested upon a bench warrant issued upon the same indictment, and that he thereupon entered into another recognizance to appear and answer, the condition of which he fully kept and performed. Held, that the matters stated in the plea constituted no defense. People v. Anable, 7 Hill, 33. Supreme Court, October, 1844. 25. In an action upon a criminal recognizance taken be- fore one of the special justices of the city of I^ew York, conditioned that the accused appear and answer at the next court of general sessions, &c., the declaration must set forth the facts showing the magistrate's right to require bail in the particular case. People v. Koeber, 7 Hill, 39. Supreme Court, October, 1844. 26. Where the declaration stated that the accused was brought . before the special justice, and was on oath in due form of law charged with the commission of a burglary, but failed to show any other authority to require bail ; held, insufficient. id. 27. The proceedings which evince the authority of the justice to require bail from the accused must substan- tially appear in the recognizance, or it will be void. Per Beardsley, J. id. 28. The recognizance should so far state the crime charged as to show the case to be one in which the special justice had a right to take bail. Per Beardsley, J. id. 29. If the statement be that the crime charged before the justice was burglary, without showing that it was be- low i\i% first degree, the recognizance will be invalid. Per Beardsley, J. id. 30. So if the recognizance state merely that the pris- oner was charged with the offense, without showing in some way that there was probable cause for believing him guilty. id. 31. The recognizance may be either to appear and an- EECOGNIZANCE. 791 Swer the particular charge set forth, or to appear and an- swer what shall be objected against the party. Per Beardsley, J. ij,^ ' 32. In an action upon a criminal recognizance taken before the recorder of the city of New York, conditioned to appear and answer at the next court of general sessions, the declaration averred, that the accused was brought be- fore the recorder, " and then and there charged with the commission of a grand larceny," &c., but failed to show that the charge was upon oath, or that the recorder de- cided upon it, or had any reason to believe it true. Held, insufficient. People v. Young, 7 Mill, 44. Supreme Qourt, October, 1844. l^l; 33. It seems that the court may, at the term at which the party is bound by a criminal recognizance to appear, make a valid order requiring him to appear and answer at a future time. People v. Hainer, 1 Benio, 454. Supreme Court, July, 1845. Per Bronson, 0. J. 34. Where, in a declaration on a recognizance entered into by a party and his sureties for the appearance of the former at the next general sessions to answer, &c., and to obey the order of the court and not depart without leave, &c., the plaintiffs averred that, at the then next term of the sessions, the recognizance was respited and continued until and to a succeeding term, and assigned for a breach, that at such succeeding term the defendant made default in appearing ; held, that no. suflS.cient breach of the condition was shown, and that the declaration was insufficient, id. 35. "Where a party bound by recognizance makes de- fault in appearing, according to its condition, and the order to prosecute for such default is respited or delayed to give him an opportunity to appear at a future day, and he again fails to appear, the declaration on the recognizance should proceed upon the failure to appear at the time mentioned in the recognizance. Per Bronson, 0. J. id. K' 36. A suit on a criminal recognizance, conditioned for an appearance at the general sessions, should be prose- 792 KECOGNIZANCB. cuted in the common pleas of the proper county ; and if brought in this court, unless for special reasons, the pro- ceedings will be set aside. People v. Blackman, 1 Denio, 632. Supreme Court, September, 1846. 37. The Supreme Court has jurisdiction of such actions, but declines to exercise it for reason of fitness and con- venience, and principally because the courts of common pleas have an equitable jurisdiction which this court does not possess, to relieve the defendants upon terms. id. 38. If either' of the defendants resided without the county where the recogtiiscmce was returnable, it would furnish a reason for bringing the suit here. id. f^^\ 39. A district attorney has authority and discretion given by statute, as to What court he will sue a recogni- zance in, whether the principal and bail all reside in the county in which the recognizance was taken or not, Peo- ple V. Allen, 2 Mow. Prao. Pep. 34. Supreme Court, De- cember, 1845. ™^?; 40. A tecognizance need not recite the special facts which gave the oflScer an authority to act in the particular case in which it was taken. It is enough if he had juris- diction in cases of that general description, and it appear that the condition is to do something to which a party may legally be bound by recognizance. People v. Kane, 4 Denio; 530. Supreme Court, May, 1847. 41. So, where a recognizance taken before the recorder of Albany, who is authorized to take bail in all cases, con- ditioned for the appearance of another at the next court of criminal jurisdiction to be held in that city, to answer to a charge for forgery, omitted to state the proceedings by which the application was brought before the recorder ; held, that it was nevertheless a valid recognizance. id. 42. In declaring on a recognizance, it is not necessary to aver the special facts by which the officer became author- ized to proceed in the particular case. id. 43. The history, nature and effect of a recognizance ex- plained. Per Beardsley, J. id. EECOGNIZANCE. 793 44. The cases of The People v. Koeher, (7 Hill, 39,) and The People v. Toung, (id. 44,) so far as they conflict with the foregoing positions, overruled. id. ?S47. 45. A party bound by a bond or recognizance to appear before a court or officer must, to save a default, make a technical appearance in the suit or proceeding ; being corporally present is not enough, if he refuse to an- swer when formally called. People v. Wilgus, 5 Denio, 58. Supreme Court, October, 1847. 46. Accordingly, where one who had been arrested as a fraudulent debtor, pursuant to the act to abolish imprison- ment for debt, executed a bond with sureties, conditioned to appear at an ai^ourned day ; and on that day came be- fore the officer and in his presence agreed with the com- plainant for a further adjournment, and it was arranged between' the parties, in the absence of sureties, that he should be formally called by the officer and should not an- swer, in order that the sureties might continue liable, which was accordingly done ; held, that a default had occurred for which an action might be maintained on the bond id. ^°^- 47. A marshal of the United States bears the same relation to the circuit court of the United States that a sheriff does to the county courts in this state; and his duties are very analogous to those of the sheriff. Oorlies y. Waddell, 1 Barb. 355. Supreme Court, New York Q-en- eral Term, November, 1847. 48. A marshal has no right to receive money upon an estreated recognizance in a criminal case, until an execu- tion has been duly issued and placed in his hands. id. 49. And if a surety in a recognizance of that nature, after having waived the issuing of an execution, pays to the marshal the amount due upon such recognizance, he may sue the marshal, while the money is still in his hands, in an action for money had and received, and recover the same back, id. 50. Recognizances in criminal cases should not be made returnable before a judge at chambers ; and if made return- 794 KECOGNIZANCE. able in that manner, the prisoner is not bound to appear there. id. 51. They should be made returnable before the court, at a term thereof. id. ■JUs. 62. 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. People V. Graham, 1 Park. Grim. Bep. 141. Supreme Court, Albany General Term, January, 1848. 63. Such entry must contain all the substantial parts of the recognizance, such as the acknowledgment of indebt- edness, the offense charged and the condition, &c. ; a mere memorandum that a recognizance in a certain sum was taken is not sufficient. id. 64. "What was said between the clerk and the bail, on the taking of a recognizance, cannot be proved by the cer- tificate of the clerk. id fs^g: 66. In debt upon recognizance, the breach com- plained of being the non-appearance of the accused at the criminal court where he was bound to appear, it is not a defense that no indictment was found against him at such court. Ohamplin v. The People, 2 N. Y. Bep. 82. Court of Appeals, December, 1848. 56. Persons in jail, or bound by recognizance to appear and answer to an indictment to be found, are not of course entitled to a discharge, although no indictment be found. Their discharge rests in the discretion of the court. id. 57. The declaration taken by a Supreme Court commis- sioner need not state the special facts giving the officer jurisdiction. id. 68. A person arrested for a criminal offense may insist upon an examination before he can be compelled to enter into a recognizance. But he may waive that privilege, and if he does so, a recognizance entered into without such examination is valid. id. 59. A recognizance therefore need not show on its face RECOGNIZANCE. 795 that there is probable cause for believing the accused guilty of the offense charged, or that the magistrate has made any adjudication in the matter. id. 60. If the recognizance was extorted from the prisoner in violation of his right to a previous examination, that fact should be set up by way of defense. id. Jm9. 61. After a person has been convicted under the acts relative to disorderly persons, and committed to prison in default of sureties for good behavior, and a record of conviction has been made and signed, (though not filed,) the committing magistrate has no power, acting singly, to discharge the prisoner, or to take a recognizance for his good behavior. People v. Duffy, 5 Barb. 205. Supreme Court, New York General Term, January, 1849. 62. The final commitment of the prisoner, after the record of conviction has been made and signed, completely exhausts the power of the magistrate, and ousts him of jurisdiction to take a recognizance. id. 63. A recognizance, taken in pursuance of an order of an officer authorized to let to bail, and by an officer having general jurisdiction to let to bail, and to take recogni- zances, though he be not the officer before whom the ap- plication to let to bail is pending, is valid; especially where the officer acquires jurisdiction of the person of the party by his voluntary appearance and acknowledg- ment, and where the officer before whom the application is pending subsequently adopts the recognizance thus taken, and lets the prisoner to bail on the faith of it, and the recognizance itself is filed by him, and becomes a record. People v. Leggett, 5 Barb. 360. Supreme Court, Oneida General Term, January, 1849. ^lia.' 64. A recognizance taken from the prosecutor of a criminal complaint before a police justice, containing the condition required by the statute, that the prosecutor will appear and testify at the next court having cognizance of the offense, &c., will not be vitiated by the addition of the words, "as well to the grand as to the petit jury, and 796 KECOGNIZANOB. not depart the said court without leave." Peoples. Willis, 5 Barb. 511. Supreme Court, Albany General Term, March, 1849. 65. Where the condition of a recognizance taken before a police justice is to do an act for which a recognizance may properly he taken, and the police justice had authority in law to act in cases of that general description, a decla- ration upon such recognizance need not aver the existence of the particular facts and circumstances which gave the officer authority to take it. id. fsl'o 66. A recognizance to appear and answer to an indictment need not recite the special facts which give the officer taking it authority to act in the particular case, or describe a criminal offense. It is sufficient if the officer had authority in cases of that general description, and the condition is to do something which a party may be legally bound by recognizance. Gildersleeve v. The People, 10 Barb. 35. Supreme Qourt, New York General Term, Octo- ber, 1850. 67. The reason of this rule is, that the entering into a recognizance being the voluntary act of the party, he ad- mits the authority of the magistrate, and acknowledges the regularity of the proceedings in which it is taken. In this respect the case is distinguishable from one where the liability arises from a proceeding in invitum. Per Ed- wards, J. id. 68. A recognizance, the condition of which ia, that the principal shall appear at the next court of general sessions of the peace, and then and there answer all such matters and things as shall be objected against him, and abide the order of the court, and not depart the said court without leave, and in the mean time shall keep the peace, &c., is valid, although it does not state what particular charge the principal shall answer. id. 69. The substance of the undertaking ia, that the prin- cipal will appear and answer any charge which may be brought against him. id. EECOGNIZAKCE, 797 70. The legal effect of such a condition in a recogni- zance is, that the principal shall appear at the next court of general sessions and answer such charge as shall he brought against him, and be forthcoming before the court at all times until discharged; not merely that he shall appear at the term of the court held next after the date of the recognizance. id. 71. The case of The People v. Koeher, (7 Hill, 39,) and the case of I%e People v. Young, (7 id. 44,) overruled, so far as they hold that the recognizance should state the crime so as to show the case to be one over which the officer taking it had jurisdiction. id. 72. The People v. Kane, (4 Denio, 530,) where it was held that a recognizance need not recite the special facts which gave the officer jurisdiction, sustained by the Court of Appeals in the case of OhampUn v. The People, (2 ]!if . Y. Eep. 82,) is now the settled law of the state. id. 73. The statute of 1844, providing that all recognizances given in the city and county of New York to answer a criminal charge, on being forfeited, shall be filed by the district attorney, together with a certified copy of . the order of the court forfeiting the same, in the office of the county clerk, and docketed as if the same were the transcript of a judgment record for the penalty, and. thait such judgment shall be a lien on l-eal estate, and may be collected by execution, is not in contravention of the sec- tion of the constitution of the year 1821, which declared that the trial by jury, in all cases in which it had been theretofore used, should remain inviolate forever, for it will be seen that this is substantially the re-establishment of the rule which existed at common law, and under the former statutes of this state, and which existedattiaetime the constitution of 1821 was adopted, under Tvhich the statute in question was passed. id. 74. The statute of 1844, so far as it operates upon re- cognizances taken previous to its passage, takes aw'ay no right, but operates merely in furtherance of the remedy. 798 KECOGNIZANOE. It furnishea a more summary method of enforcing an ex- isting obligation. id. \l^: 75. 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 in- dictments 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 hot at the next court of sessions to be there held at which a jury shall be summoned. People V. Derby, 1 Parle. Orim. Rep. 392. Columbia Circuit. Be- fore Parker, J, April, 1853. 76. And where such a recognizance was taken in Jan- uary, 1851, and at a court of sessions held in June follow- ing, M. was defaulted and his recognizance 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 recognizance had been shown, and judgment was given for the defendant. id. S 77. 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 offensfe. People v. Mack, 1 Park.' Orim. Rep. 567. Dutchess Circuit, September, 1854. Before Dean, J. 78. Where a recognizance was conditioned for the ap- pearance 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 Mon- day of May of the same year, at which a grand jury was re- quired to attend and did attend and was sworn and heard complaints, such court of sessions having cognizance of the offen'se charged, the recognizance was held void, and in EECOGNIZANCE. 799 an action upon it against the bail, judgment was given for the defendant. id. 79. 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 tran- iscend his jurisdiction. , llse. 80- Form of a recognizance, taken by a police jus- tice, to appear and answer to an indictment in the court of general sessions, and of a justification by the surety in the recognizance. People v. Bogart, 3 Parle. Crim. Bep. 143. Supreme Court, New York General Term, September, 1856. 83. Form of a recognizance, taken by a police justice, on a charge made before him of grand larceny. id. ^Il' 82. Where a prisoner is let to bail by an ofBcer out of court, the recognizance taken must be filed, as required by statute, before any action can be taken on it by the court ; and no suit can be maintained upon such a recog- jiizance, without averring in the complaint and proving on the trial that it had been filed, or made a record of the court in which it was returnable. People v. Shaver, 4 Park. Grim. Bep. 45. Supreme Court, Clinton General Term, May, 1858. 83. It is a good defense to an action on a recognizance, that it was taken on an illegal arrest of the prisoner, for whom the defendant became bail. id. 84. A complaint in writing, charging S. with bigamy, alleged to have been committed in Albany county, was made before a justice of the peace of Fulton county, who issued a warrant for the arrest of 8., under which S. was arrested in Montgomery county by a constable of the latter 800 EECOGNIZANCE. county, (the warrant not having been first indorsed by a jus- tice of Montgomery county,) and brought into the county of Fulton before the justice who had issued the warrant, upon whose requirement a recognizance was entered into to appear at the next court of sessions to be held in Mont- gomery county. Held, that the arrest was illegal, and the recognizance void for duress ; that it should have been directed to an officer of the county in which the justice who issued it was a magistrate ; and that the justice who issued the wan-ant had no authority, in a case like that before him, to take a recognizance for the appearance of the prisoner at a court of sessions of any other county than that in which the justice resided. id. 85. A warrant legally issued can only be directed to an officer of the county in which the justice of the peace who issued it was a magistrate, and such officer can only exe- cute the warrant in that county, unless the defendant has escaped to or was in another county, " out of the jurisdic- tion of the magistrate who issued the warrant," and tiien only upon proof of the handwriting of the magistrate who issued it bming furnished to an officer in the latter county, and obtaining his indorsement of the warrant ; and such indorsement would authorize the officer bringing the war- rant, or any other officer to whom it may have been directed, to execute the warrant in the county where it was indorsed^ (2 E. S. 4th ed. 890, § 5 ; 3 E. S. 5th ed. 993.) Such in- dorsement would extend the jurisdictioii of the officers of the county in which the magistrate who issued the warrant resided, to the county in which the warrant was indorsed, but it would not confer any power upon an officer of the latter county to arrest 'the defendant any where, not even in Ms own county, nor to take the defendant out of his county, be- fore any magistrate in the county in which the warrant was issued. id. 86. Form of a complaint on recognizance, and of an an- swer thereto, setting up the above mentioned defense, id. 'wm. 87, An indictment being found against C, he was, EECOGNIZANCE. 801 on the 6tli of June, 1860, arraigned in the court of oyer and terminer, and pleaded not guilty. Bail was fixed at $700, and C. as principal, and F. as surety, were recognized for the appearance of C. at the next oyer and terminer* in October, to answer the indictment, by an entry made in the minutes of the court, which merely recited the arraign- ment of C. upon the indictment, and that he was ordered by the court to enter his recognizance in the sum of $700, and that thereupon C. was recognized in that sum as prin- cipal, and F. as surety. 0. appeared at the oyer and term- iner in October, when another indictment was found against him, and filed on the morning of the 10th of October, for the same offense charged in the previous indictment. On the afternoon of the same day a third indictment was found ; C. was arraigned thereon, and pleaded not guilty ; and on motion of the district attorney, an order was en- tered in the minutes, quashing the first two indictments. C. then departed from the court without its express per- mission. On the next day an order was entered, directing the recognizance of June 6 to be written out in ftiU and attached to the minutes as of that date, and that the min- utes and entry of such recognizance be corrected, &c. Thereupon another order was entered, directing such re- cognizance to be estreated and prosecuted. The clerk, pursuant to the order, drew up from his minutes a recog- nizance, as of the 6th of June, and attached the same to the minutes kept by him at the June term, and also to the book of records, by pasting the same therein. In an ac- tion upon such recognizance ; held, 1. That the entry in the minutes of the court was defective, in not stating the acknowledgment of indebtedness, and therefijre no legal recognizance was entered into by C. and F. 2. That the entry being defective, there was no memorandum from which to make up a recognizance, hence there was noth- ing on which to base the action. 3. That the court had not authority, ex parte, to manufacture an undertaking forcing . obligations upon the accused and his surety, never assumed 51 802 EECOGNIZANCE. by them. 4, That quashing the indictment, which the ac- cused had given bail to appear and answer, was a discharge of the obligation, released the surety, and authorized the prisoner's departure from court without special leave. Bockes, J., dissented. People v Felton, 36 Barh. Rep. 429. Supreme Court, Warren Q-eneral Term, July, 1860. "jj 88. A recognizance taken in a criminal case, con- ditioned that the prisoner shall appear at the next court of oyer and terminer, to answer to an indictment; that he shall " not depart without leave of the court ;" and that he shall " abide its order and decision," by its terms re- quires, substantially, his appearance on the first day of term and de die in diem during its continuance, unless dis- charged by the court. People v. McOoy, 39 Barh. Rep. 73. Supreme Court, Albany General Term, May, 1862. 89. The obligation to appear at the next court of oyer and terminer is not answered by an appearance on the first day of the term, or by appearing and submitting to a par- tial trial. id. 90. The meaning of the condition is not that the pris- oner shall simply submit to a trial, but that he shall at all times until surrendered, or ordered into custody, submit himself to the jurisdiction or authority of the court; and that he shall be held to answer during the whole term of the court, and until the trial is ended. id. 91. If the prisoner appears in court, answers when called, and without having been surrendered by his bail, or or- dered into the custody of the sheriff, enters upon his trial, but before the same is finished he departs from the court without leave, and does not return again to abide the order and decision of the court, his recognizance is forfeited, id. 92. Where a recognizance is taken in the proper court of oyer and terminer, and is returnable " at the next court of oyer and terminer," the fair interpretation of the words employed is, that the court of oyer and terminer of the county where the indictment was found, and where it could EECOGNIZANCE. 803 tried, and in wtieh the recognizance was taken, is intended, and therefore the recognizance is not void for uncertainty, id. 1865.' 94. In debt on a recognizance, conditioned that Van P. should personally appear at the next court of oyer and terminer of the county of Montgomery, to answer to an in- dictment, &c. ; held a good answer to the action, that inter- mediate the date of the recognizance and the term of the court therein mentioned, Yan P. enlisted as a soldier in the service of the United States, and was in active service in the army of the United States during the entire session of said court, under the control and authority of the commander- in-chief, until after the day of appearance, &c. James, J., dissented. People v. Cushney, 44 Barh. Rep. 118. Supreme Court, Clinton General Term, July, 1865. IMS. 95. The inability of the principal, by reason of sickness, to appear at court and answer to an indictment found against him, according to the terms of his recogni- zance, is a good defense to an action brought against his sureties upon the recognizance. People v. Tubbs, 37 N. T. Bep. 586. Court of Appeals, January, 1868. 96. Such disability, when occasioned by the principal being thrown from a horse just prior to the term of tlie court, is such an act of God as will excuse the performance of the contract by his sureties. id. 1868.' 97. In an action upon a recognizance, taken before a coiinty judge, the plaintiff, on the trial, was unable to prove that the recognizance had been filed in the office of the county clerk, (although such was the fact,) or that it had ever become in any manner a record of the court. tThe action being tried by the court, without a jury, upon an agreed statement of facts, the court found and decided "that the recognizance was never filed in, or made a record of, any court ; that to maintain an action upon a recognizance it must appear that it was filed in, or made a record of, the court in which it is returnable ; and that the complaint of the plaintiff be dismissed, with costs." The judgment enterejd upon such decision recited and 804 EOBBEEY. stated these findings and conclusions of fact and law, and tlien adjudged and directed that the complaint be dis- missed, with costs. In a subsequent action, brought by the plaintiff in that suit against the defendant therein, upon the same recognizance — held, that the finding in the previous action, that the recognizance had not been filed and had not become a record, was conclusive upon the plaintiff in the second action ; and inasmuch as he could not properly re- cover without establishing the converse of those findings, judgment was properly directed for the defendant. Peo- ple V. Smith, 51 Barh. Bep. 360. Swpreme Gourt, Urie General Term, September, 1868. EOBBERT. ^J,f; 1. The crime of robbery is of a more aggravated nature than larceny, simply considered, and consists in feloniously taking the money or goods of another, in his presence, against his will, by violence or putting him in fear. John Norris' case, 1 City Hall Becorder, 60. Before Bctdcliff, Mayor. New York, April, 1816. Psfj 2. To snatch away an article from the person of another, unless a struggle ensues between the owner and thief, or some personal injury is infiicted on the former by the latter, is not a robbery. John Anderson and John Wiiliams' case, 1 City Hall Becorder, 163. Before Bad- cliff, Mayor. New York, October, 1816. li^j_ 3, Force or violence, in depriving a man of his property, is an essential ingredient to constitute robbery. Lawrence Plato and others' cases, 2 City Hall Becorder, 31. Before BadcUff, Mayor. New York, February, 1817. 4. It seems that, in an indictment, a count for highway robbery includes within itself grand or petit larceny, or assault and battery. id, {^i, 5. Though, on the trial of an indictment for high- way robbery, it is incumbent on the public prosecutor to show that the prisoner put the injured party in fear before depriving him of his property, yet iq a case in which it ap- KOBBEEY. 805 Reared tliat the prisoner, a stranger to the prosecutor^ first blew out the candle, and then seized the prosecutor and wrested his money from his pocket, and afterwards, but nearly at the same instant of time, made use of threats, the jury, in judging whether the prisoner put the other party in fear before or after the money was obtained, are not confined merely to the threats used, as the means by which fear was induced, but may recur to all the other means calculated to put a man in fear. William R, Thompson's ease, 3 (7% Hall Becorder, 10. Before Badcliff, Mayor. New York, January, 1818. ISi!" 6. Where it appears that the husband and wife are together at the time a robbery is committed, and she is voluntarily aiding, abetting and assisting him in its perpe- tration ; or if she encourages him in the act, she is equa,lly involved in the guilt. (Goodman and wife's case, 6 Gity Hall Becorder, 21. Before Biker, Becorder. New York, April, 1821. S: 7- To constitute robbery, the money must be taken from the person, either by putting him in fear, or under such circumstances of violence as would reasonably pro- duce fear in the mind of a man. Secretly picking a pocket will not amount to robbery. Norris & Henderson's case, 6 Gity Hall Becorder, 86. Before Biker, Becorder. New York, November, 1821, •[^|y- 8. A trial and acquittal for robbery is a bar to an indictment for larceny, where the property alleged to have been taken is the same. ' People v. McG-owem, 17 Wend. 386. Supreme Gourt, July, 1837. ■ 9. The rule in such cases is, that if the former indict- ment might have been sustained by proof, which would be sufficient to sustain the second indictment, a primai facie case is made out for the prisoner by the production of the record of acquittal, and without further proof on the part of the prosecution, he is entitled to be discharged. id. ^Z\ 10- A robbery may be committed by extorting per- sonal property from the person or in the presence of the 806 EOBBEEY. owner, by means of threats of an unfounded criminal charge, where such property is obtained through fear pro- duced by such threats. People v. McDaniels, 1 Parle. Orim. Rep. 198. Washington Oyer and Teroniner, Novem- ier, 1839. Before Willard, Circuit Judge, &c. 11. Where, by means of a threat to arrest the prosecu- tor 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 twenty dollars, and a receipt for thirteen dollars owed by the defendant to the prosecutor, and to promise to pay the defendant twenty dollars more ; held, that the defendant was guilty of robbery in the second degree. id. 12. It is not necessary, to constitute such offense, that the charge against the prosecutor 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 understood at the time by the prose- cutor, id. Ps^'j 13. In an indictment for robbery in the first degree, (2 K S. 677, § 55; or 3 E. S. 5th ed. 956,) the defendant was charged yyith having feloniously assaulted J. D. on, &c., at, &c., and then and there feloniously putting him in fear and danger of his life, and then and there feloniously and violently stealing, taking and carrying away from hia person and against his will, certain money of the said J. D., to wit, current bank bills of the value of $15, and silver coin of the value of |3, of the goods and chattels of the said J. D., against, &c., and it was held sufficient, without setting forth the number and denomination of the bank bills, and the amount secured thereby and remaining unsatisfied thereon, or the number and description of the pieces of coin. People v. Loop, 3 Park. Orim. Pep. 559. Supreme Court, Tompkins General Term, October, 1857. fsl?: 14. The mere snatching of a thing from the hand or person of another, without any struggle or resistance EOBBEEY. 807 by the owner, or any force or violence on the part of the thief, will not constitute robbery. McGloshey v. The Peo- ple, 5 Fark. Orim. Rep. 299. Supreme Court, Kings Gen- eral Term, December, 1862. 15. "Where the court instructed the jury that feloniously taking another's property with violence sufficient to con- stitute an assault and battery, would make out the crime of robbery, it was held to be erroneous, and the prisoner having been convicted under such a charge, the judgment was reversed. id. 16. "Where the property is not obtained by putting the person in fear of immediate injury to the person, the vio- lence necessary to make the offense amount to robbery must be sufficient to force the person to part with his prop- erty, not only against his will, but in spite of his resist- ance, id. ^IJ; 17. The prisoner, together with her husband, was indicted and tried for robbery. The judge charged that if the husband was present at the time the intent to com- mit the offense was formed, the law presumed she acted under his' compulsion; but if she formed the intent to commit the crime, and actually commenced its consum- mation in his absence and without his knowledge, the fact that he afterwards arrived and aided in completing it, did not create the presumption that she acted under his com- pulsion, and that whether the wife acted under* the compulsion of her husband was a question for the jury. On a writ of error brought by the prisoner, held that the charge was not erroneous. Quintan v. The People, 6 Park, Grim. Rep. 9. Supreme Court, New York General Term, May, 1864. 18. In an indictment for robbery in the first degree, the prisoner was charged with taking "bank bills of banks to the jurors unknown, and of a number and denomination to the jurors aforesaid unknown, of the value of forty- nine dollars," &c. &e., and the allegation was held to be sufficient. id. 808 EOBBEEY. 19. Form of an indictment for robbery in the first degree. id. fg^e^: 20. On the trial of an indictment for robbery, the question whether the act was done with a felonions intent is exclusively one of fact, to be decided by the jury. Peo- ple V. Hall, 6 Park. Crim. Rep. 642. Supreme Court, Monroe General Term, December, 1865, 21. The mere snatching of an article of property from the person of another is not robbery. id. 22. Form of an indictment for robbery. . id. l^l' 23. Upon a trial for robbery in the first degree, the taking of the property from the person by force and violence was clearly proved. A strong array of circum- stances was proved, pointing to the prisoner as the person who committed the offense. Held, that question of the prisoner's guilt was properly submitted to the jury. Bloomer v. The People, 40 iV. T. Rep. 9, 3 Keyes. Court of Appeals^ June, 1866. \^l' 24. On the trial of an indictment for robbery the defense was an alihi. The evidence of two witnesses tended to show that when the crime was committed, at half past ten o'clock on the morning of July 30th, the prisoner was at home, at his mother's house, in bed. The judge, in charging the jury, substantially told them that it was for them to determine whether they believed the witrfesses who had testified to the alibi; that it was singu- lar that a boy like the prisoner should be* in bed from seven to half past eleven in the morning, in July, unless he was sick, or there was some other special reason; and that the circumstance that neither his mother, nor any one of his family, had been called to show that he was sick, or to explain the fact of his thus being in bed, might or "would probably turn the scales." Held, that looking at the whole charge, the inference was that the judge meant, and that the jury understood him as meaning, that on the question as to the credit they would give to the witnesses who had undertaken to prove an aliii, the circumstance mentioned SEDUCTIOK 809 by the judge might or probably would turn the scales. And that the language, though strong, afforded no ground for granting a new trial. McGrory v. The People, 48 Barb. i2ep. 466. Supreme Court, New York General Term, April, 1867. 25. The judge, in his charge, also said: "A crime of this kind is generally perpetrated at night, but this was in broad daylight, at half past ten o'clock, in one of our public thoroughfares ; a child with money in his pocket taken up and carried in an alley, knocked down, robbed and left. If they are guilty, they deserve a severity of punishment greater than any punishment that has been imposed this term on any person tried. There is some excuse at night, when an attack of that kind is made, but it is a much greater offense, and requires graver consider- ation where they are so desperate as to make it in broad daylight." Held, that there was no error in this; that it was plain the judge merely meant to say, and in sub- stance did say, that to commit a robbery like that with which the prisoners were charged, in broad daylight, &c., showed a greater boldness, hardihood or recklessness in crime, than committing a like robbery under cover of the night. id. Seduction. ^|f{- 1. To an indictment for the seduction of an unmar- ried female, under the act of 1848, the defendant inter- posed 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 spe.cial plea, the facts thus set up were held to constitute a good defense to the prosecution, and judgment was given for the defendant. People v. Alger, 810 SEDUCTION. 1 Parh. Grim. Rep. 333. Columbia Oyer and Terminer, September, 1851. Before Johnson, J. 2. The promise required by the act must be such a promise as the law would presume the female, from the facts within her knowledge, to regard and rely upon as a valid marriage. id. 3. If a married man, representing 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 con- summated, be void, if the female was ignorant of the fact of his marriage, and was under a mutual engagement to him. id. 4. Should the mutual promise of marriage be alleged in the indictment, and should it be substantially set out so that the court can see that it is a valid promise? Quere. id. fsl^: 5. 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. Crosier v. The People, 1 Park. Crim. Rep. 453. Supreme Court, Albany General Term, December, 1853. 6. 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 pretense, and one which the seducer knew it was not in his power to perform, the offense is nevertheless within the statute, id. 7. 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 lewdness proved affirmatively, on the part of the defend- ant, id. 8. The evidence contemplated by the statute in support SEDUCTION. 811 of the testimony of the female is not confined to proof of I the fact of illicit intercourse, but extends to proof of other material facts, such as the illegitimacy of her child, th6 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 corrobo- rate her as to immaterial facts in her testimony. id. S' 9- O"! ^^1 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 general bad reputation for chastity. Per Hand, J. Safford v. The People, 1 Parle. Crim. Rep. 474. Supreme Court, Saratoga General Term, May, 1854. 10. Where the illicit intercourse, between the prosecu- trix and "the defendant, began four or five years before 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 of the indictment, and not to be within the statute. id. fg|5; 11. On the trial of an indictment for seduction, under a promise of marriage, the prosecutrix testified that she had never had sexual intercourse with any other per- son than the defendant. Held, that it was competent on the part of the defense to contradict her evidence, either directly, by actual proof of such intercourse with others, or by facts from which the jury could infer such inter- course ; and that, for the latter purpose, it was proper to prove by a witness that he had seen her commit wanton or lewd acts towards some other person than the defendant. People V. McArdle, 5 Park. Grim. Bep. 180. Supreme Court, New York General Term, December, 1861. 12. On an indictment for seduction under promise of marriage, under the laws of 1848, chapter 111, which con- stitutes such an act a misdemeanor, although an express 812 SEDUCTIOK promise on the part of the defendant ought to be proved, it is not necessary that there should be proof of an express promise on the part of the person seduced, in order to sup- port defendant's promise. A promise on her part, if ne- cessary at all, may be inferred from circumstances. People V. Kane, 14 Abh. Prac. Bep. 15. Supreme Court, Second District Q-eneral Term, December, 1861. 13. It seem,s that a promise on the part of the defendant alone, if express, is enough to sustain a conviction. id. 14. On an indictment for seduction under promise of marriage, the previous chaste character of the complainant is presumed until evidence impeaching it is produced, id. ^mt 15. Form of an indictment for seduction under a promise of marriage. People v. Kenyan, 5 Park. Orim. Sep. 254. Supreme Court, Monroe General Term, March, 1862. 16. Charge of the court to a juiy on a trial for seduction, containing a statement of the different questions of fact to be decided, and of the rules of law by which they were to be governed. id. 17. The words "previous chaste character," as used in the " act to punish seduction as a crime," mean " actual personal virtue." id. 18. On the trial of an indictment under that statute, it is not competent for the defendant to prove what was the previous reputation of the prosecutrix for chastity; but the question is, was she, in fact, a woman of chastity before the alleged offense. It is only by proving specific acts that her previous character can be assailed. id. 19. Nor is it competent, on the trial of such an indict- ment, to prove by general reputation that the house of the mother of the prosecutrix, where the prosecutrix lived, was a house of ill fame. If such a fact is proper to be proved, it should be established, not by hearsay, fcut by positive testimony. id. 20. To convict under this statute, which subjects to pun- ishment " any man who shall, under promise of marriage, seduce," &c., it is not necessary to prove on the trial that SEDUCTION. 813 the defendant is twenty-one years of age. If he is old enough to be the father of the child begotten by him, he is sufficiently within the description of the statute to be amenable to punishment for the offense. id. 21. The statute, in providing that no conviction shall be had on the testimony of the female seduced, unsup- ported by other evidence, does not require the testimony of an additional witness. The corroborating evidence may be supplied by the facts and circumstances surrounding the transaction and otherwise established in the case. id. 22. Where the prosecutrix testified that she was un- married, and it appeared she was sixteen years of age at the time of the alleged offense, and living with her mother, the fact that she was unmarried was held to be prima facie sufficiently established within the requirements of the statute. id. 23. Where a seduction is accomplished by means of a promise of marriage on the part of the seducer, a consent of the female to marry the seducer, amounting to a mutual promise on her part to marry, is implied. id. 24. Where it was proved on the trial that the defendant was a frequent visitor at the house of the mother of the female seduced; that he waited on her to balls and parties, and took her out frequently to ride, and when her mother spoke to him about his keeping company with her daugh- ter said his motives were good ; it was held that such facts were proper evidence for the consideration of the jury, in corroboration of her testimony, to prove that he had made to her a promise of marriage. id. 25. The testimony of the female as to the illicit con- nection with the defendant, is corroborated by evidence that she was delivered of a child, of the abundant oppor- tunity afforded for the defendant to become the father of it and of the external evidences of the intimacy existing between the parties. id. 26. The statute does not require that the testimony of the female shall be corroborated in every particular. It is 814 SENTENCE. only necessary that it should be supported in the main features of the case. id. ^llt'' 27. Under the act to punish seduction as a crime, (ch. Ill of 1848, 3 E. S. 5th ed. 942,) it is sufficient that the defendant effected his object by a conditional promise that if the girl would permit his illicit connection he would marry her. Kenyan v. The People, 26 N. Y. Bep. 203. Court of Appeals, March, 1863. 28. The submitting to his embraces upon this proposi- tion is, it seems, a promise to marry on her part. id. 29. Evidence of general reputation of the girl's want of chastity is inadmissible. Previous chaste character, in this statute, means actual personal virtue — not reputation ; and can be impeached only by specific proof of lewd- ness, id. 30. The corroboration of the seduced female, required by the statute, relates to the promise and the intercourse : it is not necessary in respect to her chastity or to her being unmarried. id. 31. The evidence of the seduced female is admissible that the promise of marriage was the inducement to the illicit intercourse. id. 32. It is unnecessary that the promise should be a valid one, or that the defendant be of full age. It is sufficient that he has arrived at the age of puberty. id. Sentence. flfj'; 1. On a conviction for keeping a disorderly house, if the nuisance is abated, a nominal fine only will be in- flicted, unless the case demanded exemplary punishment People V. Brougham, 1 Wheel. Cases, 40. Biker, Becorder. New York, September, 1822. JI^J 2. The court of oyer and terminer, in which a criminal case has been tried and a verdict of guilty ia 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 defend- SENTENCE. 815 ant should be left to his writ of error. Colt v. The People, 1 Parh. Crim. Pep. 611. At Ghamhers, November, 1842. Before Walworth, Chancellor. 3. 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 per- mits 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 entertain any doubt as to the legality of the conviction. id. 4. If one commits a felony, and is sentenced to the state prison, and before the term has expired is again sen- tenced for another crime, committed at the state prison, to " solitary confinement for the term of three years," the judgment of the court not being "after the expiration of your former sentence." Quere, is the sentence good ? id. fs's^: 5. 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 re- quirement does not render the sentence void. Miller v. Mnkle, 1 Park. Grim. Hep. 374. Supreme Court, Albany General Term, February, 1853. 6. 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. id. 7. The disqualification consequent upon a sentence by which all the civil rights of the person sentenced are sus- pended, commences as does the running of the time of imprisonment, from the moment of passing sentence, id. 8. The effect of vacating a sentence and pronouncing a new sentence at the same term, is the same upon the civil 816 SENTENCE. rights of the defendant as if the first judgment had been reversed on error, and the defendant had been again con- victed on a second trial. id. 9. "Where a defendant was sentenced so that his term of imprisonment in the state prison would expire in Decem- ber, 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 assignment of "his book accounts to another person, it was held that such assignment was valid. id. fsIS: 10. No court has authority to suspend sentence in- definitely against criminals who have been found guilty by a jury, or have pleaded guilty. An indefinite suspension of the sentence prescribed by law is a quasi pardon, pro- vided the prisoner be discharged from imprisonment. No court in this state has any pardoning power ; that power is vested exclusively in the governor. People v. Morrisette, 20 Sow. Prac. Bep. 118. New-Yorh Oyer and Terminer, December, 1860. Before Balcom, J. 11. No suspension of sentence or stay is authorized, ex- cept upon a certiorari or writ of error, on application in arrest of judgment, or for a new trial. id. Y°Z: 12. A sentence which is proper for burglary in the second degree, for which crime the prisoner was indicted, tried and convicted, will not be reversed, for the reason that the court who pronounced the sentence probably sup- posed from an indorsement on the indictment that he was convicted of burglary in the first degree. Irving v. The People, 28 Sow. Prac. Bep. 205. Supreme Court, New York General Term, November, 1864. *{|5f ■ 13. The omission to state in a sentence in what prison the prisoner is to be confined, is not error. The law determines the prison ; and the court have no author- ity to incarcerate the prisoner in any other. Weed v. The People, 31 N. Y. Bep. 465. Court of Appeals, March, 1865. SENTENCE. 817 14, Where the prisoner committed the crime of murder iu the first ' degree, while the law of 1860 was in force, (November, 1861,) and was tried and convicted under the law of 1862, (ITebruary, 1863,) the sentence should be, that the prisoner suffer the punishment of death ; and also that he be confined at hard labor in the state prison until such punishment of death be inflicted. McKee v. The People, 32 N. Y. Rep, 239. GouH of Appeals, March, 1865. 15. In such a case, where the trial and conviction are reg- ular, but the sentence and judgment affirming the same are erroneous, this court will reverse the judgment and remit the record for proper sentence. id. is 16- Where, after sentence in a criminal case in a court of sessions, the judgment is reviewed upon writ of error, and affirmed in the Court of Appeals, and the day for execution fixed by the sentence has passed, it is compe- tent for the Court of Appeals, in remitting the record, to direct the court of sessions to sentence the prisoner anew. This may be done as well by remitting -the proceedings to the Supreme Court, with directions to that court to remit them in turn to the court of sessions, as by remitting them to the court of sessions in the first instance. Walters v. The People, 19 Abb. Prac. Pep. 212. Supreme Court, at Chambers, June, 1865. Before Ingraham, J. 17. The court of sessions, after the affirmance of judg- ment, have power to pass a full sentence, if the day fixed by the original sentence of execution has passed. id. Sept 18. The general term of the Supreme Court has the power to fix a day for the excution of a prisoner, although he has been tried, convicted and sentenced in the court of general sessions, upon the affirmance of that judgment on appeal. People v. Ferris, 32 Eow. Prac. Hep. 411. Comi of Appeals, September, 1866. 19. The act of April 18th, 1859, which says, upon the affirmance of a judgment in a capital case, the court shall remit the record to the court from which it came, is not 52 818 SURETIES OF THE PEACE. applicable to a case where the record is removed from the Supreme Court to the Court of Appeals. id. 20. Upon the affirmance of a judgment in the Court of Appeals, and the record is remitted to the Supreme Court, it is the duty of that court to follow the directions of the appellate court. SUEETIES OF THE PbACB. ^i^; 1. In proceedings under the statute to prevent the commission of crimes, where the examination of the com- plainant, reduced to writing, subscribed and sworn to by him, contains matters sufficient to authorize the issuing of a warrant of arrest, the justice who issues the warrant has jurisdiction, although no complaint in writing separate and distinct from the examination is made. Bradstreet v. Fur- geson, 17 Wend.. 181. Supreme Court, May, 1837. 2. In a warrant of commitment, issued against a person accused for refusing to give security to keep the peace, it is not necessary to allege the oflfense which he is charged to have threatened to commit ; it is enough to state the requirement to give security, and his refusal. id. 3. The third section of the law does not require a formal adjudication by the justice, before issuing the warrant ; the satisfaction of the mind of the magistrate is sufficient, andthe/cscf of issuing the process is evidence enough that it appeared to him that there was just reason to fear the commission of the offense. id. (See 3 R. 8. 5th ed. 991.) fj'iS; 4. On an application to a magistrate for sureties of the peace, there must be a formal complaint in writing and upon oath, besides the examination in writing required by the statute, to justify the magistrate in issuing a warrant against the party complained of; it is not enough that the complaint is embraced in the examination. Bradstreet v. Ferguson, 23 Wend. 638. Court of Errors, Becemher, 1840. 5. If, however, the warrant to arrest recite that there waa a complaint in writing, and upon oath, it is prima facie evi- VAGRANCY. 819 dence that sueli proceedings were had, and will protect the magistrate in an action against him, until it be affirm- atively shown on the other side that there was not such a complaint. id. 6. In the mittimus, it is not necessary to state the crime for the prevention of which the application for sureties of the peace was made ; it is enough if it be stated that the party is committed for refusing to give sureties. id. Vagrancy. J5II: 1. The first section of the act passed 12th April, 1853, (Session Laws of 1853, page 353,) prescribing and authorizing a general form for a record of conviction in case of vagrancy, is not unconstitutional. Morris v. The People, 1 Park. Crim. Pep. 441. Supreme Court, New York General Term, December, 1853. (Amended April 10, 1855, and is applicable only to the city of New York. See 2 E, S. 5th ed. 881.) 2. Whether the second section of that act which author- izes' a discharge before the expiration of the term, on an order jointly made by the committing magistrate and one of the governors of the almshouse, is not unconstitutional and void, as infringing upon the pardoning power vested in the governor by the constitution, Art. 4, sec. 5. Quere ? id. Jan. 3_ Proceedings prior to a commitment for vagrancy cannot be reviewed on habeas corpus, if that commitment is regular, and the record of conviction is properly made and filed. By statute passed January, 1833, common pros- titutes in the city of New York are declared vagrants, and the record of conviction ordered filed in the office of the clerk of the court of sessions. The defect in the evidence before the justice can be reviewed only on certiorari. Stewart's case, 1 Abb. Prac. Bep. 210. New York Common Pleas, at Chambers, January, 1855. Be/ore Ingraham, First Judge. Oct. 4 The record of conviction for vagrancy in the city of New York should be filed with the clerk of the court 820 VAGRANCY. of sessions, not with the county clerk. An alderman of the city of New York may commit to the workhouse for vagrancy. Layden'a case, New Torh Common Pleas, at Chambers, October, 1856. ' Before Ingraham, F. J. fs^f; 5. The statute of 1833, which is applicable only to the city of New York, declares "all common prostitutes who have no lawful employment whereby to maintain themselves" to be vagrants, does not authorize the con- viction, as a vagrant, of a " common prostitute and idle per- son " merely. By the Revised Statutes, (2 R. S. 5th ed. 879,) " All idle persons who, not having any visible means to maintain themselves, live without employment," are va- grants. It does not declare all idle persons to be vagrants, hut only such idle persons as live without employment, and yet have no means to maintain themselves. In the matter of Catharine Forbes, 19 Sow. Prac. Rep. 37. Supreme Court, New York Special Term, August, 1860. Before Suther- land, J. 6. When a statute gives a precise definition of vagrancy, the magistrate must follow it, and insert it in the warrant of commitment, if he determines the individual to be a vagrant, and attempts to state the facts which constitute vagrancy; otherwise the warrant is void on its face. id. 7. It seems, that there is no common or statute law which requires common prostitutes, who have lawful em- ployment whereby to maintain themselves, to be more indus- trious than any other persons, in order to exonerate them from vagrancy, id. (This case is also reported in 4 Park. Crim. Rep. 611.) ^s6o: 8. Where a conviction of vagrancy before a police justice is reviewed on habeas corpus before a judge at chambers, the only inquiry should be, whether the justice had jurisdiction of the prisoner, and whether the prisoner was committed for an offense within the statute. People V. Gray, 4 Park. Crim. Rep. 616. Supreme Court, at Cham- bers, September, 1860. Before Ingraham, J. 9. The offense consists in being a vagrant ; and it is not VENUE. 821 necessary that the record or the commitment should state the- ground on which the charge of vagrancy was based. It is enough that they show that the prisoner had been charged with being a vagrant, and was convicted of that offense. id. 10. Even if a contrary rule had been adopted prior to 1855, since that time the mode in which the record of conviction is directed to be made up, would render such recital unnecessary. That act (Sess. Laws 1855, ch. 268 ; see 2 R. S. 5th ed. 881) directs the form of the record of conviction to be, in this respect, as follows : " That the pris- oner was brought before the justice on the charge of being a vagrant, and that upon diligent inquiry, &c., it appearing that the said prisoner is a vagrant within the provisions of the statute, I, the justice, did so adjudge," &c. The com- mitment is sufficient if it follows the record, and when it is not required that the justice should insert in the record the particular grounds on which the charge of vagrancy is based, it cannot be necessary to recite them in the com- mitment, id. (The act of 1855 is applicable to the city of KTew York only, and the form of the record enacted in 1855 is not in force except within that city.) Venue. fJi°,; 1. The venue in a criminal cause may be changed on motion of the public prosecutor, if it appear that a fair and impartial trial cannot be had in the county where the indictment was found. People v. Webb, 1 Sill, 179. Su- preme Court, January, 1841. 2. There is no fixed rule defining what shall or shall not be received, as proof of the fact that such trial cannot be had. »'«?• 3. The venue may be changed, though there has been no actual experiment made, by way of trying the cause, or even impanneling a jury, in the county where the venue is laid. id- 822 VENUE. 4. The cases of Bowman v. Ely, (2 Wend. 250,) and Messenger v. Holmes, (12 id. 103,) reviewed and explain- ed, id. f^4^: 5. The venue will not be changed, in a criminal case, up'on affidavits expressing mere belief \ha,t the prisoner cannot obtain a fair and impartial trial in the county where the indictment was found ; but the affidavits must set forth the facts and circumstances, so that the court may judge whether the application is well founded. People v. Mary Bodine, 7 Mill, 147. Supreme Court, August, 1844. 6. The allegation that a fair and impartial trial cannot be had, must be clearly established, or the venue will not be changed. id. ^J: 7. Where an impartial jury cannot be obtained in the county in which the indictment is found, the place of trial can be changed only by removing the indictment into the Supreme Court by certiorari, and then moving the Supreme Court to change the place of trial to some other county. People v. Buloff, 3 Park. Grim. Bep. 401. Su- preme Court, Tioga General Term, May, 1857. falJ: 8. That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county in which the venue was laid, is a sufficient reason for chang- ing the place of trial in a criminal case. People v. Long Island Bailroad Company, 4 Park. Grim. Bep. 602. Su- preme Gowt, Kings General Term, December, 1858. 9. In deciding upon such an application, the court should be governed by the facts shown, and not by the mere im- pressions or conclusions of parties and witnesses. id. 10. It is not indispensable to a change of venue in a criminal case, that there should have been an ineffectual attempt to obtain a jury in the county where the venue was laid. id. •^^i!" 11. The court of sessions has no power to arraign a defendant on, or receive a plea to, an indictment for mur- der. If it could do that, it must of necessity have re- ceived whatever appropriate plea the defendant chose to VENUE. 823 put in, a plea of "guilty as well," as of "not guilty." But " a plea of guilty is the highest kind of evidence of which the case admits," (2 Hale, 225,) so that if the de- fendant had put in the plea of guilty, she would have been convicted in the court of sessions of the crime of murder, which is plainly beyond the jurisdiction of the court, (3 R. S. 5th ed. 302, § 5, sub. 2 ;) and a legal issue in criminal as in civil cases is requisite, before the court will entertain a motion to change the place of trial. People v. McGraney, 21 How. Prac. Rep. 149. Supreme Court, Special Term, April, 1861. Before Parker, J. 12. Motion to change the place of trial on an indictment for murder on the ground of undue excitement, denied without regard to the merits, where it did not appear from the motion papers that a return had been made or filed to the writ of certiorari, removing the case from the oyer and terminer to the Supreme Court, and where there was no issue joined, except by an arraignment and plea in the court of sessions. id. wM.' 13. A certiorari to remove a cause from the oyer and terminer to the Supreme Court, before trial, may be issued on the application of the prosecution. People v. Baker, 3 Park. Grim. Rep. 181. Supreme Court, New York Special Term, June, 1866. Before Strong, J. 14. And where a cause so removed is pending in the Supreme Court, and it appears that a fair, impartial and effectual trial cannot be had in the county in which the indictment was found, the Supreme Court, at special term, will order the trial to be had in some other county. id. 15. Where the indictment is against several persons, and enough is shown on the part of the prosecution to make a change of the place of trial proper as to one defendant, the change will be made as to all the defendants, although it is a case in which every defendant is entitled to a sepa- rate trial. _ id. 16. And where it appears, in opposition to such appli- cation, that the defendants' witnesses are poor and unable 824 WAEKANTS. to bear the expenses of a journey to another county, and that the defendants also are destitute of property, the court may require, as a condition to changing the place of trial, that the district attorney procure some arrangement to be made by which the county, in which the indictment was found, shall pay the necessary expenses of the indigent witnesses subpoenaed in behalf of the defendants, and at- tending at any court in which the trial shall not be post- poned at their instance. id. 17. Ordinarily, where the place of trial is changed in a criminal case, an adjoining county should be selected ; but if the necessity which requires the change calls for it, a more remote county may be designated. id. Warrants, 51^: 1. A justice of the peace cannot grant a warrant to apprehend a criminal for an oftense committed in an- other state. People v. Wright, 2 Gaines' Rep. 213. Su- preme Court, November, 1804. (But see 3 R. 8. 5th ed. 984 and 998.) fg^; 2. A search warrant under the hand and seal of a justice, reciting information on oath, that certain goods, describing them, had been stolen by A. and B., and were concealed in the house of C, and commanding the officer, to whom it was directed, to enter the said house in the daytime, and search for the articles stolen, and to bring them with C, or the person in whose custody the goods should be found, before the justice, is a legal and valid warrant. Bell v. Olapp, 10 J. B. 263. Supreme Court, August, 1813. 3. And a plea of justification under such a warrant need not state that it was, in fact, executed in the daytime, id. 4. The officer, in the execution of such a warrant, if the door be shut, may, after a demand and refusal to open it, break open the outer or other door of the h,ouse. id. "IS: 5. Where an offender, arrested under a warrant indorsed in pusuance of the act " for the better appre- WAEEANTS. 825 ihending of felons and other offenders," was taken into the county where the magistrate resided who issued the war- rant, he not being a justice of the county where the offense was committed, it was held, that an action for false impris- onment was properly brought, the officer having neglected to comply with the requirements of the statute. Green v. Bumsey, 2 Wend. 611. Supreme Court, May, 1829. 6. In this case, the offense was charged to have been committed in Niagara, the warrant was issued by a jus- tice of Genesee, and the defendant was arrested in Monroe; held, that the constable could, by virtue of the warrant, assuming that it was valid and regularly indorsed under the statute, only arrest the person charged, and take him before a justice of the peace of Monroe county, to give bail, if the offense was bailable, or convey him to the county where the offense was committed. id. (See 3 E. S. 5th ed. 994.) YS 7. A warrant under which a false imprisonment takes place, produced on the trial by a plaintiff, is evidence of the facta contained in it, until gainsayed by proof on his part. Scott v. My & White, 4 Wend. 555. Supreme Court, May, 1830. ■ 8. A misnomer of the person, in process, on which an arrest is made, subjects the actors to an action for false imprisonment. id. ^^: 9. It does not seem to be absolutely necessary to set out the charge or offense or evidence in a warrant to ap- prehend, though it is necessary in the commitment; but it is advisable, especially if the warrant be for peace or good behavior, to set forth the special cause for which it is granted, in order that the party may come before the jus- tice with sufficient sureties ; but if it be for treason or felony, or other offense of an enormous nature, it is not necessary to state it, and it seems to be rather discretion- ary than necessary to set it forth in any case, and the war- rant is valid without it. Atchinson v. Spencer, 9 Wend. 62. Supreme Court, May, 1832. (The Eevised Statutes 826 WAEEANTS. have altered the common law in this respect. They rC" quire that the warrant shall recite the accusation. 3 E.. S. 5th ed. 993.) 10. It is the information upon oath that gives the magis- trate jurisdiction ; and if such jurisdiction is in fact given, though it he not particularly stated in the warrant, or erroneously stated, the magistrate is not to be treated as a trespasser. id. ■iJ^: 11. In every case where a party, charged with a criminal offense, is brought before a justice on a warrant, he must be examined in relation to the oiFense charged, and is entitled to have witnesses sworn and examined on his part, and to have the assistance of counsel ; 9, convic- tion, however, will not be quashed, or a judgment set aside, after a trial had, for the omission of duty by the justice in these particulars. People v. Son, 12 Wend. 344. Supreme Court,. July, 1834. (See 3 K S. 5th ed. 995, 996.) \l^l 12. A warrant in a criminal proceeding at common law must be under the seal of the magistrate issuing it ; it would not be a warrant, in the sense of the law, un- less sealed. Beekman v. Traver, 20 Wend. 77. Supreme Court, July, 1838. fj^'f; 13. Warrants of arrest and commitments need not contain the facts on which the charge made is predicated ; but are sufficient, in this respect, if the nature of the ojffense be clearly specified. People v. Alexander McLeod, 1 Hill, 377. Supreme Court, July, 1841. p5^^ 14. The term warrant implies a seal, except in cases where a seal has been dispensed with by statute. Semhle. Smith and others v. Randall, 3 Mill, 495. Supreme Court, October, 1842. "5^1; 15. A justice of the peace has no power to issue process of arrest for a crime committed in another county, though the offender be in the county where the justice resides. Semhle. People v. Oassels, 5 Sill, 164. Supreme Court, May, 1843. (But see 3 R. S. 5th ed. 994.) 16. Otherwise, where the crime was committed in the WAEBANTS. 827 county where the justice resides, though the offender has escaped into another county. id, & 17. If the reputed father of a bastard child against whom an order of filiation has been made, shall not pay the amount certified for the costs of apprehending him, and of the order of filiation, the justices may issue a war- rant for his commitment, though he has executed a bond pursuant to section 14 of the statute "concerning the sup- port of bastards." (See R S. 5th ed., vol. 2, 909.) People V. Stowell, 2 Denio, 127. Supreme Court, January, 1S46. 18. Where such bond has been given, but the costs are not paid, the warrant should direct the father to be safely kept until discharged by the court of general sessions, or until he shall pay the costs. id. fa\°9. 19. A warrant issued by a justice for the arrest of a person charged, with larceny, which recites a distinct charge of larceny against the accused, is not rendered in- valid by the omission of an allegation as to the value of the property stolen. Payne v. Barnes, 5 Barb. 465. Svr- preme Court, Schenectady General Term, January, 1849. 20. The only effect of such an omission is, that the offense charged will be deemed to be petit instead of grand larceny, and a magistrate of the county in which the person accused is arrested will be authorized to admit him to bail. id. 21. The Eevised Statutes (2 R. S. 706, §§ 2, 3) do not require that either the complaint or the examination should be reduced to writing prior to the issuing of a warrant for the arrest of an offender. (3 R. S. 5th ed. 993.) id. 22. All the statute requires is that the warrant shall recite the accusation. And the accusation need only charge that a criminal offense has been committed. If, therefore, it charges a criminal offense generally, viz., that of larceny, it is sufficient to authorize the issuing of a warrant, although the accusation omits to state the value of the property. id. 23. The recital in such warrant, of the complaint, is 828 WAEEANTS. presumptive evidence of the fact that such complaint haa been made. id. 24. An omission in a warrant of arrest, which is merely- clerical, and is apparent, and which does not mislead any- one, or prejudice the defendant, will not render such war- rant invalid. id. fS. 25. A justice of the peace, before he is authorized to issue a warrant for the arrest of a person, must be sat- isfied, upon the examination on oath of the complainant, that a criminal offense has been committed; and in the warrant the accusation must be recited. Wilson v. Robin- son, 6 ffow. Prac. Sep. 110. Supreme Court, Special Term, January, 1851. Before Harris, J. 26. Where the complainant counted out some money upon a desk, which he intended to pay to defendant upon defendant's giving him a receipt therefor, which money the defendant took up and carried away, the complainant forbidding him, unless he gave a receipt, which was not given; held, On demurrer, that the justice of the peace had no authority or jurisdiction to issue a warrant for the arrest of the defendant, as it did not appear that any crim- inal offense had been committed. id. f^^; 27. A complaint alleging a criminal offense on in- formation and belief, without stating any facte, will give a justice of the peace jurisdiction to issue a warrant of arrest, although he grossly errs in exercising that jurisdic- tion. Campbell v. JEwali ^ McKay, 7 How. Prac. Bep. 399. Supreme Court, Livingston Special Term, February, 1852. Before Strong, J. 28. This case sustains Stewart y. Hawley, (21 "Wend. 553,) and is adverse to Wilson v. Robinson, (6 How. Prac. Eep. 110.) id. "^^j^j^; 29. At common law all warrants in criminal pro- ceedings are required to be under the hand and seal of the magistrate who issues them. Certain statutory exceptions stated by Rosehrans, J. People v. Eolcomb, 3 Parle. Crim. WARRANTS. 829 Bep. 656. Supreme Court, Clinton General Term, May^ 1858. 30. A search warrant, not under seal, is void, and affords no protection to an officer attempting to execute it. id. 31. Nor can a search be sustained as valid when directed to " any 'constable" of the county in which the search is directed to be made, the statute requiring all search war- rants to be directed " to the sheriff of the county, or to any constable or marshal of the town or city" in which the stolen property is alleged to be secreted. id. 32. The place to be searched must be particularly desig- nated in the search warrant. Where a part of the com- plaint was recited in the warrant, in which it was stated that the complainant suspected the stolen property was concealed in the stable of 0. P., on the east side of the canal, in the village of Whitehall, in said county, known as the "red barn," and the warrant gave directions to search the places where said property was suspected to be concealed, it was held insufficient, for the reason that though the place mentioned in the complaint was suf- ficiently designated, the direction given in the warrant was too general, and authorized the search of any suspected place, instead of confining the search to the place so sus- pected by the complainant. id. 33. Whether a search warrant can be executed or afford protection to an officer, where it shows upon its face that the party who has the property alleged to be stolen is charged with the larceny of it, and. no warrant for his arrest accompanies or is incorporated in the search war- rant. Quere. id. 34. A warrant legally issued can only be directed to an officer of the county in which the justice of the peace who issued it was a magistrate, and ^uch officer can only execute the warrant in that county unless the defendant has escaped to or was in another county, " out of the juris- diction of the magistrate who issued the warrant;" and then only upon proof of the handwriting of the magis- 830 WAEEANTS. trate who issued it being furnished to an officer in the latter county, and obtaining his indorsement of the war- rant; and such indorsement would authorize the officer bringing the warrant, pr any other officer to whom it may have been directed, to execute the warrant in the county where it was indorsed. (2 R. S. 4th ed. 890, § 5; 3 R. S. 5th ed. 993.) Such indorsement would extend the juris- diction of the officers of the county in which the magistrate who issued the warrant resided, to the county in which the warrant was indorsed ; hut it would not confer any power upon an officer of the latter county to arrest the defendant any- where, not even in his own county, nor to take the defendant out of his county before any magistrate in the county in which the warrant was issued. People v. Shaver, 4 Park. Grim. Bep. 45. Supreme Court, Clinton Creneral Term, May, 1858. fj'j^; 35. A warrant of commitment issued by a justice of the peace, under part iv., chap. 2, title 1, sec. 5, of the Revised Statutes, .is valid without a seal. Gano v. Hall, 5 Park. Crim. Rep. 651. Supreme Court, Broome General Term, February, 1864. 36. The fifth section, which provides for the warrant of commitment, is silent as to the subject of a seal. The general statute, therefore, covers the case, which provides that "all process issued by any justice of the peace shall be signed by him, and may be under seal or without seal. (3 R. S. 5th ed. 454, § 158.) I cannot assent to the view expressed by one of the judges of this court, (3 Park. Crim. Rep. 656,) that this section only applies to civil process. TJhe language is too broad and general to receive such a limited construction. Per Mason, J. id. 37. Where a justice of the peace, after an examination, has adjudicated that a person brought before him shall give sureties of the peace, and the prisoner has refused to do so, it is his duty to issue his warrant of commitment ; and such warrant issued on the next day will be valid, though, in the mean time, the prisoner has been suffered to go at large by the consent of the justice. id. WITNESS. 831 38. Form of a warrant of commitment on a refusal to give sureties to keep the peace. id. Yifi 39. Where a statute declares that "it shall not be lawful to sell or furnish any wine, beer, strong or spiritous liquors to any person," &c., &c., and the warrant of arrest charged the defendant with having sold lager leer, instead of " beer ;" held, that the warrant did not charge an offense on its face. It should distinctly state the fact that showed the violation of the statute. It would have been sufficient to charge that the defendant had sold "beer " in the prohibited placCj and then sustained that charge by proving the sale of lager beer, if lager be, from its prop- erties, within the prohibition ; or the warrant might have charged, by avermentj that lager was of that character of beer. But there is nothing in the warrant that shows, either by fact or averment, that " lager bier " is within the pro- hibition of the act. People v. Sart, 24 Mow. Frao. Bep. 289. . Supreme Court, New York General Term, November, 1862. imi. 40. It is not necessary that complaint in writing in any case ^ould be taken before the issuing of the warrant in a criminal case. Warrants issue on examination made by the magistrate, and not on complaint or oath, as such, and complaints are not required to be on oath, although the examination must be. In the matter of the application of Boswell for a writ of certiorari, 34 How. Prac. Bep. 347. Brooklyn Court of Sessions, January, 1868. Before Troy, J. Witness. \™^ 1. Where two persons, jointly indicted for an assault and battery, pleaded separately, and one of them being tried first, it was held, that the other defendant was not a competent witness for him. People v. Bill, 10 John. Rep. 95. Supreme Court, January, 1813. 2; A party in the same suit, or indictment, cannot be a \ witness for his co-defendant, until he has been first acquit- nted or convicted ; and whether the defendants plead jointly or separately, makes no difference. id. 832 WITNESS. ^s^l; 3. A witness is not bound to answer a question, the the answer to which, if true, might absolutely, or have a tendency to, implicate him in a criminal trainsaction. Boa- well SaUonstaU's case, 1 City Hall Recorder, 134. Before Badcliff, Mayor. New York, August, 1816. fs°?'' 4. On the trial of an indictment for the forgery of an order for the delivery of goods, and for passing such order, knowing it to have been forged, the person on whom the order is drawn, and who delivers the goods, is a competent witness to prove the forgery, and the person whose name is forged is a competent witness in the same case to prove circumstances calculated to establish the scienter, although he will not be allowed to testify to the fa^t of the forgery. This -latter rule is technical, and ap- plicable to the crime of forgery only. Curtis Coe's case, 1 Oity Mall Recorder, 141. Before Badcliff, Mayor. New York, September, 1816, fg^^: 5. A witness who gives a different statement in his testimony from" that which he had before given, when under oSith, in relation to the same transaction, will be distrusted in the whole of his testimony. Noah M. Mawon- hwst's cage, 2 City Hall Recorder, 33. Before Badcliff, Mayor. New York, February, 1817. Ilir.' 6. Capacity, rather than age, is the criterion for determining whether a child of tender years (a young female of nine years of age) ought to be sworn as a wit^ ness; and where such witness was introduced, and was found on examination to possess sufficient intelligence, but did not understand the nature of an oath, nor the con- sequences of swearing false, it was held that the court might instruct such witness before administering the oath. William W. Jenner's case, 2 City Hall Becorder, 147. 'Be- fore Badcliff, Mayor. New York, September, 1817. l^!['g, 7. An infant of intelligence, a lad eleven years of age, who does not understand the nature of an oath, ap- pearing as a witness under objection, will be instructed by WITNESS. 833 the court. Augustus M. Stone's case, 3 Oity Hall Record- er, 2. Before Radcliff, Mayor. New York, January, 1818. 5|^J: 8. "Where a note, whicli had been protested at the bank, originally came into the hands of M., an attorney, from his client D., one of the indorsers, and M., another )f the indorsers, against whom a suit is commenced and a ?judgment by confession entered, satisfies the judgment, ind then requests M. to collect the money due on the note of the maker, and is afterwards indicted for perjury, on i;he trial, for which it is necessary to produce the note; it was held, that M. could not withhold it on the ground of professional confidence. John Neafie's case, 4 Gity Hall Recorder, 168. Before Golden, Mayor. New York, No- vember, 1819. fJa";- 9. The admission of one called as a witness, that h^ had been convicted of a felony, does not render him in- competent ; but it affects his credibility. He cannot be rendered incompetent without producing the record of his conviction. Yet, upon such admission, the jury ought not to place any confidence in his testimony, unless cor- roborated. Miza Orr's case, 5 Gity Hall Recorder, 181. Before Golden, Mayor. New York, January, 1821. fg^^j- 10. The court will commit a witness to answer for an offense, which in his testimony he shows he has per- petrated. Isaac Sherman's case, 6 Gity Hall Recorder, "2. Before Golden, Mayor. New York, February, 1821. ^ 11. The credibility of a witness is a proper subject for the consideration of the jury. They are to decide what degree of credit ought to attach to the testimony of any man. People v. Osborn, 1 Wheel. Gases, 97. Riker,^ Re- corder. New York, December, 1822. ■*"«• 12. A person whose name has been forged is a competent witness, on the trial of an indictment, to prove the forgery ; this is the uniform practice, and its propriety cannot now be drawn in question. There is no sound reason for sustaining the old rule. The People v. Dean, 6 Oowen, 27. Supreme Court, August, 1826. 53 834 WITNESS. 13. A witness may be asked a question, the answer to whicli will criminate him; and, if he has no objection, may answer it. Southard v. Rexford, 6 Cowen, 254. Su- preme Cowrt, August, 1826. 14. His privilege is personal only ; but it is the duty of the court to advertise him of it. id. fj^f: 15. It is the nature of the crime, not the punish- ment, which determines whether a convict is an admissi- ble witness. People v. Whipple, 9 Cowen, 707. Albany Oyer and Terminer, August, 1827. 16. A conviction of treason, felony or any species of the crimen falsi, renders the convict incompetent to testify, id. (See 3 E. S. 5th ed. 961, 988.) 17. But to render him incompetent, the judgment as well as the conviction must be proved. id. 18. The principal is a competent witness against the ac- cessory, id. 19. So an accomplice is admissible or not, in the discre- tion of the court ; and when admitted, on his making a full disclosure, is entitled to a recommendation for pardon, id. 20. A motion should be made for an accomplice to tes- tify, by the public prosecutor ; and the court, under the circumstances of the case, will admit or disallow the evi- dence, as may most effectually answer the purposes of justice. id. 21. Semble, what an accomplice states -under oath against his associate would be inadmissible evidence against him- self, on account of the implied promise of the court to recommend him to mercy. id. 22. "Where one was convicted by verdict of murder, and offered as a witness against an accessory before the fact, but appeared to have been the leader in perpetrating the crime, he was rejected. id. 23. An accomplice, admitted to testify of one crime, may, though he behave well, be prosecuted for another crime, the implied promise of pardon not extending to that. And if it appear that he is charged with any other felony WITNESS. 835 than that in relation to which the prosecutor moves for his admission as a witness, this fact of itself will be a suf- ficient ground for rejecting him. (See note a, at the end of this case.) id. S' 24. Evidence that a witness has been indicted for perjury and forgery, he not having been tried and con- victed, is inadmissible to impeach his credibility. Jackson ex dem. Gribhs v. Osborn, 2 Wend. 555. Supreme Court, May, 1829. £■ 25. "Where the evidence against a party charged with a criminal ofiense is given by a suspected or im- peached witness, an accomplice by his own confession, and the accused oflfers no proof of good character, the omission to do so is a strong presumption of guilt, which may prop- erly be taken into consideration by the jury. People v. Vane, 12 Wend. 78. Supreme Court, May, 1834. '^11; 26. On an indictment against two for felony, and separate trial of one of the defendants before the arraign- ment of the other, on the motion of the prosecutor, the defendant not arraigned is not a competent witness for the other, notwithstanding the statute securing, in such cases, a separate trial. People v. Williams, 19 Wend. 377. Su- preme Court, May, 1838. mi' 27. A witness is not bound to answer whether he has been guilty of stealing ; as his reply might subject him to criminal punishment. Ward v. People, 3 Sill, 395. Supreme Court, July, 1842. ofj 28. A witness is not bound to testify to matters which may tend to criminate him or even subject him to a penalty. Cloyes v. Thayer ^ Morse, 3 Hill, 564. Supreme Court, October, 1842. fl^g 29. In criminal cases, a principal is a competent wit- ness against an accessory. So also are accomplices against their copartners in crime. The People v. Lohman, alias Madame Bestell, 2 Barl. 216. Supreme Court, New York G-eneral Term, January, 1848. 30. A witness cannot, ordinarily, be compelled to pro- 336 WITNESS. claim his own infamy while on the stand. But if he vol- untarily waives his privilege, in order to sustain a charge against another, he cannot claim it when asked other questions having a tendency to weaken or remove such charge. id. 31. The witness in this case had voluntarily proclaimed her own infamy, in having constant illicit sexual inter- course with one individual, for nearly a year, and in aiding, at least, in procuring an abortion of her child, for the pur- pose of fixing a criminal charge upon the defendant. She therefore precluded herself from claiming the privilege of not answering questions of a similar character, if they re- lated to the saftie point. But she could not be required further to degrade herself by going into a history of her whole life. id. 32. The practice adopted in eases of bastardy illustrates and confirms this principle. There the mother, after de- grading herself by testifying to her illicit intercourse with the reputed father, can be required to state whether she had not similar intercourse with others about the time of the pregnation of her child. But she cannot be compelled to answer questions relating to her chastity at other periods. id. 33. Where a party intends to coerce an answer from a witness, tending to degrade him, such party is bound to show, affirmatively, that the question is relevant. id. 34. As a general rule, it is improper for a party to put a leading question to his own witness. But if the other party does not raise the objection specifically, at the time, it will not avail him on a writ of error. id. 35. Where the delay which has occurred in instituting a criminal prosecution is calculated to excite suspicion as to the truth of the charge, and to lead to an impres- sion unfavorable to the principal witness, it is proper for the prosecutor to prove any circumstances which will have a tendency to rebut those presumptions. id. 36. A witness is privileged from answering a ques- June, 1848. WITNESS. 837 tion when the answer would tend to disgrace him, unless 'the evidence would bear directly upon the issue ; and therefore where the answer could have no effect upon the case, except as it might impair the credibility of the witness, held that he was privileged. Lohman, alias Madame Bes^ tell, v. The People, 1 N. Y. Bep. 380. Court of Appeals, June, 1848. Ps«: 37. The public prosecutor has no right to object, on the trial of an indictment, that a question put to one of the witnesses calls for an answer tending to' expose him to criminal punishment ; this being an objection which the witness alone is authorized to make. Ward v. The People, 6 Rill, 144. Court of Errors^ December, 1848. ^f; 38. A person convicted of perjury is an incompe- tent witness, though he has been pardoned by the gov- ernor, 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 judg- ment be reversed. Such is the law, though the exclusive power to pardon be vested in the governor, on the ground that such incapacity to testify is the result of a rule of evi- dence and not a punishment of the offense. HoughtQiiling V. Kdderhouse, 1 Park. Grim. Bep. 241. Supreme Court, Albany General Term, May, 1851. °^^ 39. Where one of two defendants, jointly indicted for felony, is separately tried in accordance with his own demand, his co-defendant is not a competent witness in his favor. Mclntyre v. The People, 5 Seld. Bep. 38, Court of Appeals, October, 1853. 'l^- 40. If a witness refuses to answer interrogS'tories in a commission from another state, on the ground that the answer might tend to convict him of a crime, and the court can imagine any state of facts under which the an- swer might lead to such a result, the witness may insist on the protection of the law and refuse to answer. In the matter of the application for an attachment agaimt Lems 838 WITNESS. Tappan and Benjamin Douglass, 9 Sow. Prac. Hep. 894. Supreme Court, Special Term, New York, June, 1854. fglS: 41. On the trial of an indictment in the court of sessions, the county judge presiding at the trial cannot be sworn and examined as a witness ; he cannot, at the same time, act in the capacity of both judge and witness. People V. Miller, 2 Park. Grim. Hep. 197. Supreme Court, Monroe &.eneral Term, December, 1854. ^Jj'jl' 42. Where several persons are jointly indicted, one of them is not a competent witness for or against the others, without being first acquitted or convicted ; and it makes no difference whether the defendants plead jointly or separately. An accomplice separately indicted is com- petent. People V. Donnelly, 2 Park. Crim. Hep. 182. Su- preme Court, New York General Term, April, 1855. ^^l\ 43. Where a juror, on being called, is challenged on the ground of his having formed or expressed an opin- ion as to the guilt of the prisoner, such juror may be examined as a witness for the purpose of sustaining a chal- lenge. People V. Christie, 2 Park. Crim. Rep. 579. Su- preme Court, New York General Term, November, 1855. 44. A juror, when examined as a witness for the pur- pose of sustaining a challenge to the favor, will not be excused from answering, whether he has any prejudice or bias against a religious sect, on the ground that such an- swer would disgrace him. id. 45. Where, on the trial of several defendants on an in- dictment for a riot, it appeared that a secret society had been organized for the purpose of repressing the class or sect to which the defendants belonged, it was held to be competent to require a witness, who had been called and had testified on the part of the prosecution, to answer on a cross-examination whether he was a member of such secret society. id. i[jj',; 46. It seems that justices of the peace, in examina- tions upon complaints made before them in criminal cases, have no power to commit persons for refusing to be sworn WITNESS. 839 as witnesses. People v. Webster, 3 Park Grim. Bep. 503. Supreme Court, at Chambers, July, 1857. Before Welles, J. Ps^s'f 47. On the trial of an indictment for a personal injury by the husband on his wife, the prosecution can- not be compelled to call the prosecutrix as a witness. But the wife is a competent witness for the prosecution ; she may be called as a witness in behalf of her husband, where the prosecution fails or neglects to call her. People v. Fitzpatrick, 5 Park. Grim. Bep. 26. Albany Oyer and Terminer, October, 1857. Before Harris J. f/s?; 48. Persons believing in any other than the Chris- tian religion, are required by statute (2 E. S. 408; 3 R. S. 5th ed. 692) to be sworn according to the peculiar ceremo- nies of their religion. People v. Jackson, 3 Park. Grim. Bep. 590. Supreme Court, New York General Term, De- cember, 1857. 49. A Jew or Israelite is usually sworn upon the He- brew bible, and with his head covered. id. ™86o!'' 50. A conviction and sentence under the Revised Statutes, of a person for petit larceny, does not render him an incompetent witness in any case. Petit larceny is not a felony by statute, although it may be at common law, as to all questions controlled solely by the common law, and the case of People v. Alder (3 Park. 249) decides only the proposition here laid down. People v. Shay, 18 How. Prac. Bep. 538. Supreme Court, New York General Term, March, 1860. (This case is also reported in 4 Park. Crim. Eep. 353.) \m' 51- There is no rule of law which prevents a con- viction on the testimony of an accomplice, alone. The utmost caution should undoubtedly be exercised ; but juries are, nevertheless, at liberty to convict on the unsup- ported testimony of a confederate in the crime. The rule of law stated by Mr. Greenleaf (1 Greenl. Ev. § 380) is the correct one, and is expressed as follows : " The degree of credit which 6ught"to be given to the testimony of an accomplice is a matter exclusively within the province of 840 WITNESS. the jury. It has been Bometimes said that they ought not to believe him unless his testimony is corroborated by other evidence ; and, without doubt, great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law ; it being ex- pressly conceded that the jury may, if they please, act upon the evidence of the accomplice without any confirm- ation of his statement." People v. Dyle, 21 N. Y. Bep. 578. Court of- Appeals, June, 1860. Ileo': 52. Petit larceny, as a first offense, is not a felony which disqualifies the convict as a witness. Shay v. The People, 22 N. Y. Bep. 317. Court of Appeals, September, 1860. 53. The cases of Ward v. The People, (3 Hill, 398,) The People v. Adler, (3 Park. Crim. Eep. 249,) and Keyser V. Hardheck, (3 Duer, 373,) so far as they conflict here- with, considered and disregarded. id. PjJS: 54. "Where two or more persons, jointly indicted, are tried separately, one of the. defendants not on trial may, by permission of the court, be called and examined as a witness on behalf of the people against the defendant on trial, though the person so called and examined has not been convicted or acquitted, nor otherwise discharged ; but a defendant in a joint indictment cannot, while the indictment is pending against him, be called as a witness for his CO defendants, though he be tried separately. (The case of The People v. Donnelly, 2 Park. Crim. Eep. 182, disapproved.) Wixson v. The People, 5 Park. Crim. Bep. 119. Supreme Court, Monroe General Term, December, 1860. 55. Where two or more persons, jointly indicted, are all put on trial together, neither one of the defendants can, until discharged from the indictment, be a witness for or against the others. id. 56. Though it rests in the discretion of the court to decide whether a co-defendant may, on such separate trial, be called as a witness on behalf of the people, no formal WITNESS. 841 application is necessary ; and where a co-defendant waa offered on the trial as a witness, and was objected to on the ground that he was a co-defendant, and could not be sworn except by special leave of the court, and the objec- tion was overruled by the court, the decision was held to be equivalent to an order made on a special application of the court. id. 57. Where, on a criminal trial, one of the defendants is a competent witness on behalf of the people, the wife of such defendant is also a competent witness. id. ^^eh' 58. A witness who testifies falsely as to a material fact is guilty of perjury, though he was not a competent witness in the case, and was especially inadmissible to prove the particular fact to which he testified. Chamber- lain V. The People, 23 N. Y. Bep. 85. Court of Appeals, March, 1861. 59. So held where, in an action for divorce, the hus- band — his wife having borne a child — testified that he had had no sexual intercourse with her during marriage, id. 60. It seems (per James, J.) that in an action between husband and wife, either party is, since the amendment to the Code in 1857, a competent witness against the other in general, though inadmissible to prove the particular fact of non-intercourse. id. 61. Upon an indictment of the husband for perjury, after divorce, the' wife is a competent witness to prove that she had no sexual intercourse with any other per- son, id. **5f; 62. A witness before a grand jury is not privileged, by the constitution or the common law, from answering a legal and |)roper question in reference to a matter pending before that body against certain aldermen in the city of New York, for feloniously receiving a gift of money to influence theit vdtes in an official capacity, on the ground that such question would disgrace him, and have a ten- dency to accuse him of a crime. People v. Kelly, 21 How. Prac. Bep. 54. Supreme Court, New York General Term, 842 WITNESS. May, 1861. (This case is also reported in 12 Abb. Prac, Rep. 150.) g^?: 63. The constitution (Art. 1, § 6) does not protect a witness in a criminal prosecution, against another, from being compelled to give testimony which implicates him in 'a crime, when he has been protected by statute against the use of such testimony on his own trial. People v. Hachley, 24 N. Y. Bep. 74. Court of Appeals, December, 1861. 64. That the information thus elicited facilitates the discovery of other evidence by which the witness may be subsequently convicted, is an incidental consequence against which the constitution does not guard him. Its prohibition is simply against his being required to give evidence when he himself is upon trial. id. 65. The refusal of a witness to answer a proper ques- tion before a grand jury is punishable as a contempt under the statute, (2 R. S. p. 534, § 1; p. 735, § 14; 3 R, S. 5th ed. 841, 1027,) as committed in a proceeding upon an in- dictment. / id. 66. When the refusal was reported by the grand jury to the court in the presence of the witness, who did not deny but justified the same, and reiterated the refusal, the contempt is one "in the immediate view and presence of the court," and no affidavit or further evidence is requi- site to a commitment. id. 67. The first article, section six of the constitution, ,which says, " no person shall be compelled, in any criminal case, to be a witness against himself," does not protect a witness in a criminal prosecution against another, from being compelled to give testimony which disgraces him or tends to convict of a crime, if he has been protected by statute against the use of his testimony on a trial against himself. People v. Kelly, 24 Sow. Prac. Bep. 369. Court of Appeals, December, 1861. S.' 68. An accomplice is a competent witness for the prosecution on a criminal trial, and the jury may convict, WITNESS. 843 on the uncorroborated evidence of an accomplice, if they regard it sufficient to prove, beyond a reasonable doubt, the guilt of the accused. People v. OooJc, 5 Park. Grim. Bep. 351. Supreme Court, New York General Term, May, 1862. Psl^: 69. Where a vsritness was called, who was nine years of age, and who stated that he did not know the nature of an oath, or the obligation of a witness, and had never been sworn, he was properly excluded as incompetent; and it is not error, in such a case, for the court to refuse to instruct the witness as to the nature and obligations of an oath. Jones v. People, 5 Park. Grim. Bep. 126. Supreme Gourt, Monroe General Term, December, 1864. °866. 70. On the trial of a criminal case, the prisoner cannot be examined as a witness for himself; nor can one jointly indicted with him be examined as a witness in his behalf. Patterson v. People, 46 Parh. Bep. 625. Supreme Court, Onondaga General Term, Octoier, 1866. (But see act of legislature passed May 7th, 1869, allowing prisoner to tes- tify in his own behalf) 71. The common law rule always excluded co-defend- ants from testifying for each other ; and the relaxation of the rule as to such parties, and in respect to the defendant himself, effected by section 399 of the Code, applies only to civil actions. id. *5JJ' 72. It was held that D., who had been indicted jointly with the prisoner for arson, and pleaded guilty, was a competent witness for the prosecution against his co- ^ defendant. Mackesey v. The People, 6 Park. Grim. Bep. 114. Supreme Gourt, Broome General Term, May, 1867. 844 WRITS OF EREO'R AND "Writs of Error and Bills of Exception. '^11' 1. A writ of error, at the suit of a citizen, in crim- inal cases, though not capital, cannot issue without the fiat of the attorney general. Lavett v. People, 7 Oowen, 339. Supreme Court, May, 1827. 2. But should he refuse his fiat, in a proper case for error, the Supreme Court will order him to grant it. id. 3. A writ of error will not, per se, stay execution in a criminal cause. (See note a.) 4. But the court below will, on motion, stay execu- tion till judgment be given on the writ of error. (See note o.) id. (See 3 E. S. 5th ed. 1033.) °°3^ 5. A bill of exceptions lies for refusing triors, or upon any question arising upon a challenge to jurors, in case where triors may be demanded. People v. Rathbun, 21 Wend. 509. Supreme Court, October, 1839. 6. Observations as to the proper matter of a bill of ex- ceptions in a criminal case. id. iJ'S 7. Writsof 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. Colt v. The People, 1 Parle. Orim. Bep. 611. At Chambers, November, 1842. Before Walworth, Chancellor. 8. 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 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 rnade to disallow the same, if he has no reason to doubt the legality of the conviction. id. ^^,\ 9. In a criminal case, where the offense is not cap- ital, a writ of error is a writ of right, which no justice of the Supreme Court can refuse to allow. People v. Bestell, BILLS OF EXCEPTION. 845 3 How. Prac. Rep. 251. Supreme Court, Special Term, New York, November, 1847. Hdwards, J. 10. To stay proceedings, however, on the conviction, is a matter which, under the statute, is submitted to the dis- cretion of the judge allowing the writ; and this power should be exercised, where there is any reasonable doubt that the conviction can be sustained. id. ^l' 11. An exception is available for the purpose of correcting an error in the admission or rejection of evi- dence, 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 conducting the trial, to the forms of the questions 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 cannot be had by an exception. Peo- ple v. Finnegan, 1 Park. Grim. Hep. 147. Supreme Court, Albany Creneral Term, May, 1848. 12. Where the court permitted the counsel for the peo- ple 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 defense, 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 to 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 counsel had addressed the jury, on a specific proposition as to the legal presump- tion, and if the court refused so to charge them, to except to such refusal. id. f^§ 13. A writ of error will not lie in behalf of the peo- ple, after judgment for the defendant, in a criminal case. People V. Corning, 2 N. T. Bep. 9. Cov/rt of Appeals, De- cember, 1848. 846 WEITS OF ERROR AND ^^1: 14. A verdict will not be set aside on bill of excep- tions, although there was an error on the trial, if the error was such that it could do no legal injury ; and the rule in this respect is the same in criminal as in civil cases. Shorter v. The People^ 2 N. Y. Bep. 193. Court of Appeals, May, 1849. 15. And the rule applied in a capital case, where there was an error in the charge to the jury respecting the law of homicide, but the facts of the case did not call for a charge upon the point. id. 'i85o: 16. A defendant in a criminal case is bound to fur- nish, upon bill of exceptions, printed papers for a hearing, the same as in other cases. People v. , 4 How. Prac. Bep. 417. Supreme Court, Dutchess General Term, July, 1850. 17. It seems to be the correct practice in such cases that the defendant, intending to ask a hearing without furnish- ing printed papers, should, on serving his bill of excep- tions, give notice to the district attorney that he will apply to the justice who presided at the trial for a certificate of his inability to print ; and such cei'tificate shall be evi- dence of such inability. id. Pss^, 18. 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 cannot avail himself of the objection that such motion should have been made by the attorney general. Carnal v. The Peo- ple, 1 Park. Orim. Bep. 262. Supreme Court, New York General Term, October, 1851. 19. A justice of the Supreme Court has power to allow a writ of error, and to make an order staying proceedings, after conyiction, in a capital case. id. 20. 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. id f/j";: 21. "Where an exception is taken so indistinctly that the court cannot readily perceive the exact point of the BILLS OF EXCEPTION. 84T objection, the appellate court will disregard it. Per Mitch- ell, J. Carnal v. The People, 1 Parh Crim. Bep. 272. Su- preme Court, New York General Term, December, 1851. VS 22. In charging a jury, an expression of opinion by the judge as to the effect of. the evidence, leaving the jury to decide the question, notw^ithstanding such expression, does not furnish a valid ground of exception ; otherwise, if the language, vyhich is the subject of exception, amounts to an instruction as to the lave applicable to the evidence in the case. People v. Quin, 1 Park. Crim. Bep. 340. Su- preme Court, Albany General Term, May, 1852. 23. 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 comment- ing on the evidence for the prosecution, said, " now, gen- tlemen, if you believe this evidence, and believe that the crime was committed by the defendant, under the circum- stances as given to you by these witnesses, I then 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 be an instruction upon a conclu- sion of law ; and the case properly presenting questions of fact to be passed upon by the jury, viz., whether the killing was by "premeditated design to effect death," or in the "heat of passion," &c., the charge was held to be erroneous, and a new trial was awarded. id. 24. 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 Edrhonds, J. Sullivan v. The People, 1 Park. Crim. Bep. Z4n. Supreme Court, New York 6-eneral Term, May, 1852. 1852. 25. Where a statute authorizes a writ of error upon "any judgment," the writ may be brought upon a judg- ment rendered after the act takes effect, although it be the judgment of an appellate court in an action pending be- fore it, prior to the passage of the act. People v. Clark, 3 Seld. Bep. 385. Court of Appeals, October, 1852. 848 WEITS OF EREOE AND 26. The " act in relation to writs of error in behalf of the people in criminal cases " (Laws 1852, chapter 82 ; 3 E.. S. 5th ed. 1035) authorizes writs of error upon judg- ments in favor of the defendant upon verdict. id. is 27. A writ of error does not lie to reverse a con- viction in a criminal case until after sentence has been pronounced, and the sentence must appear in the record. Mill V. People, 10 N. Y. Bep. 463. Court of Appeals, June, 1853. 28. The proceedings upon an indictment in the oyer and terminer may be reviewed by the Supreme Court be- fore sentence, when the judgment has been stayed under 2 E. S. 736, § 27 ; 3 R. S. 5th ed. 1029 ; but in such case they are brought up by certiorari. id. \^3, 29. In determining whether a writ of error should be allowed and a stay of proceedings 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 court erred on the law ; it is enough that the exception is not deemed frivolous, and that it involves an import- ant question, in regard to which there is a conflict of au- thority, and which remains unsettled by the courts of this state. People v. Sendrickson, 1 Park. Grim. Sep. 396. Su- preme Court, at Chambers, August, 1853. Before Wright, J. 30. Where a coroner's inquest was held on the day foUow- ■ ing that of the alleged murder, at which the prisoner was called by the coroner as a witness, and was sworn and ex- amined by him, under oath, before the coroner's jury, hav- ing been subpoenaed for that purpose, there being some circumstances tending to show that the prisoner was then suspected of the murder, though no charge had been made against him, and in 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 suffi- BILLS OF EXCEPTION. 849 cient doubt of the correctness of the decision to warrant the allowance of a writ of error with a stay of proceed- ings, id. ?£'3. 31. A bill of exceptions lies only to correct an er- roneous 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. People v. Stockham, 1 Park. Grim. Bep. 424, Supreme Court, Onondaga General Term, October, 1853. < S' 32. Exceptions may now be taken on the trial of a criminal cause, in the same cases and manner provided by law in civil eases. Safford v. The People, 1 Park. Grim. Bep. 474. Supreme Gourt, Saratoga General Term, May, 1854. 33. 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 ex- ceptions with the transcript of the record. id. S: 34. Form of a writ of error to remove a cause, after ■judgment, from the court of general sessions of New York to the Supreme Court ; of the allowance thereof, and of the return thereto. Beverelly v. The People, 3 Park. Grim. Bep. 59. Supreme Court, New York General Term, Febru- ary, 1855. "isss!'' 35. Form of a writ of error, sued out in behalf of the people, to remove a criminal case from the Supreme Court to the Court of Appeals. People v. Thorns, 3 Park. Grim. Bep. 256. Gourt of Appeals, March, 1855. mS: 36. The right to a bill of exceptions, in a criminal case, is given by statute. Its office is to bring up for review questions of law made and decided on the trial. But the statute limits this right to exceptions taken on the trial, to the main issue. It is not extended to such as are taken on the trial, of preliminary or collateral questions. Wyn- hammer v. The People, 11 How. Prac. Bep. 530. Supreme Gourt, Erie General Term, September, 1855. (This case is also reported in 2 Park. Crim. E.ep. 377.) ■'I'Jgl' 37. A writ of error will not lie to review a judg- 54 850 WEITS OF EEROR AND ment on some of the counts in an indictment while other counts are undisposed of. People v. Merrill, 14 N. Y. Bep. 74. Court of Appeals, June, 1856. 38. The statute enabling the people to bring error in criminal cases (Laws of 1852, 76 ; 3 R. S. 5th ed. 1035) has not changed this rule. The judgment to be reviewed on a writ of error in behalf of the people is a final judgment on the whole indictment. id 39. The Revised Statutes have abolished all assignments of error, and allegations of diminution on writs of error and certiorari, in criminal cases. Hayen v. The People, 3 Park. Orim. Bep. 175. Supreme Court, Cayuga General Term, June, 1856. 40. In deciding a criminal case, therefore, brought up on a writ of error, the Supreme Court cannot look beyond the record of judgment. id. 41. To enable a party to avail himself of any irregularity in the court below, it should be presented in the first instance in that court, either by plea in abatement or bill of exceptions, so as to introduce it upon' the record, and thus subject it to review upon writ of error after judgment id. Sse! 42. Where the return to a writ of error contained only the indictment and the clerk's minutes of the trial, showing the impanneling of the jury, the verdict of guilty and the sentence of the court, without any judgment record, it was held that the questions could not be raised, whether the defendant was present at the trial, or whether he was asked, previous to the passing of the sentence, if he had any thing to say why sentence should not be pro- nounced against him. Thompson v. The People, 3 Park. Grim, Bep. 208. Supreme Court, Delaware General Term, July, 1856. 43. Whether such objections would have been available if the record had been before the court. Quere. id. fsIS: 44. On writ of error to review the judgment of the Supreme Court in a criminal case, where the conviction was by a justice of the peace, sitting as a court of special BILLS OF EXCEPTION. 851 sessions without a jury, and his judgment was removed into the Supreme Court hj certiorari, this court is not con- cluded by the decision of the court below on questions of fact, but is authorized to review the case upon the evi- dence. Barringer v. The People, 14 N. Y. Rep. 593. Court of Appeals, December, 1856. 45. Error in excluding evidence is cured where subse- quently the party excepting is permitted to prove, without objection, the fact sought to be established. id. 46. In a criminal prosecution, what is sufficient evidence that a larceny has been committed, considered. id. ^^: 47. Since the adoption of the Eevised Statutes, a party who has brought a writ of error to reverse a judg- ment in. a criminal case cannot allege diminution and sue out a certiorari, but the cause must be decided upon the return to the writ of error, which return properly includes the pleadings, the bill of exceptions, if any, and the judg- ment ; and when, on alleging diminution, a certiorari had been issued and return thereto had been made, the certio- rari and return were struck out on motion, McCann v. The People, 3 Park. Qrim. Bep. 272. Supreme Court, Al- bany General Term, May, 1857. 48. Any irregularity, which cannot be made to appear in the return to the writ of error, can be made available on motion, in the court below, either to quash the indict- ment, or for a new trial or for other appropriate relief, ac- cording to the circumstances of the case. id. 49. Thus, if an error or irregularity has occurred in summoning or impanneling the petit jury, unless the de- fendant can present the objection in the form of an excep- tion to some decision upon the trial, he must bring it before the court on a motion for a new trial. He cannot make it the ground of reversing the judgment upon writ of error. id. 50. "Where the presiding judge had charged the jury that the defense of insanity must be proved beyond a reason- able doubt, and if the defendant had satisfied them beyond 852 WEITS OF ERROE AND a reasonable doubt, so that they should find that at the time of the killing that he was so far really insane as not to be responsible for the act, they should acquit him, but other- wise they must convict him, the charge was held not to be erroneous. id. 51. Section three of chapter three hundred and thirty- seven of the laws of 1855, which authorizes an appellate court, on a writ of error from a court of oyer and terminer, to order a new trial, if it shall be satisfied that the verdict was against evidence, or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below, is inoperative and void, for the reason it is in conflict with the sixteenth section of the third article of the constitution of this state, which declares that no local bill shall embrace more than one subject, and that that shall be expressed in the title. id. fiff: 52. The third section of the act of 1855, chap. 337, " to enlarge the jurisdiction of the general and special ses- sions of the peace, in and for the city and county of New York," granting a writ of error with a stay of proceedings, as a matter of right, where the verdict is against the pris- oner, in capital cases, or when the minimum punishment is imprisonment in state prison for life, and requiring the appellate court to grant a new trial, if satisfied that the ver- dict was against the weight of evidence or against law, or that justice requires a new trial, is constitutional. People V. McOann, 16 N. Y. Bep. 58. Court of Appeals, Septem- ber, 1857. Ps^'y. 53. The district attorney and th© counsel for the defendants settled a bill of exceptions on this wise : (Title of the cause.) " Having examined the annexed bill of excep- tions, and found the same to be in all things correct, we stip- ulate that the same be and hereby, is settled without presen- tation to the court." Dated, &c., and signed. The People ex rel. James McDonald v. The Court of Sessions of Wayne County, 15 How. Prac. Pep. 385. Wayne Special Term, Oc- tober, 1857. Before Welles, J. BILLS OF EXCEPTION. g53 64. The bill of exceptions was soon afterwards presented to, and signed and sealed by the two associate justices of the court of sessions, who, with the county judge, compose the court at which the trial was held. Soon after this, a change took place in the office of district attorney. The bill of exceptions was then presented to the county judge to be signed and sealed by him ; he declined doing so, and indorsed thereon a certificate or statement in writing, as follows : " Having been applied to, to sign the within bill of exceptions, and also to sign the above certificate, I have declined to do so for the reason the charge to the jury is not correctly set out in the bill, and I decline to sign it without the correction." The certificate referred to, was to the effect that the bill of exceptions had been examined, and that it was expedient to take the judgment of the Su- preme Court thereon. Subsequently a justice of the Su- preme Court made and indorsed on the bill of exceptions a certificate to the same effect as that last referred to, and the bill of exceptions with the said certificate was filed with the county clerk ; and the district attorney, as such, was re- quested to sue out a writ of certiorari to remove the case into the Supreme Court. Afterwards -the district attorney served on the relator's counsel a notice of a motion, to be made in the court of sessions, for an order amending said bill of exceptions by incorporating therein the charge of the county judge as delivered to the jury, and for the re- settlement and re-signing of the bill, on the ground that the rulings of the court, and the charge to the jury, were incor- rectly stated in the bill, and for sUch further order, &c. This motion was made upon the bill of exceptions as filed, and on the minutes of the court alone, and offered on the ground : 1st. That no papers had been served as a basis of the motion ; 2d. That the bill of exceptions was not shown to be incorrect ; and 3d. That the court of sessions had no power to alter, amend, re-settle or interfere with the bill of exceptions. The court of sessions made an order that the motion be granted, and that the district attorney serve 854 WEITS OF EEEOE AND a copy of the amendment proposed to the bill on the rela^ tor's counsel, with ten days notice of settlement, the bill to be settled at the next term of the court of sessions. Subsequently the relator's counsel moved to vacate said last mentioned order, which motion was denied. After- wards an order was granted by the Supreme Court at spe- cial term, that said court of sessions show cause why a writ of mandamus should not issue, commanding said court to vacate and annul said order directing the re-settlement of the bill of exceptions. Held, 1st. That the court of sessions had the power to order a re-settlement of the bill of exceptions, notwithstanding the settlement and agreement made and signed by the (former) district attorney and the relator's counsel, and signed by a majority of the court, and filed with the clerk. Held, 2d. That the objection that the order for re-settling the bill of exceptions should be vacated and set aside, as- made without any evidence before the court to justify it, and that the evidence pro- duced by the relator, on the motion, showed clearly that the bill of exceptions had been fairly and truly settled, was answered by the fact that it was claimed that the court of sessions was in possession of evidence showing the in- correctness of the bill of exceptions, viz : the minutes kept on the trial by the county judge, in which the charge of the court as delivered to the jury, was drawn out at full length, which differed materially from the charge stated in the bill of exceptions as settled, which was supported by the affidavit of the county judge, read in opposition to this motion. Held, also, that-the objection that this evi- dence, or copies of papers containing it, was not served upon the relator or his counsel, before the motion for re- settlement was made, or read in opposition to the motion, should not be entertained on this motion for a mandamus, unless it was made to appear that some legal vested right of the relator had been denied or violated by reason of the omission complained of (Oases defining the powers and duties of the court on mandamus, referred to.) id. BILLS OF EXCEPTION. 855 55> It seems, that the court of sessions have no estab- lished positive rules of practice to govern them. They are not necessarily governed by the rules which have been established to regulate proceedings in civil actions in the Supreme Court or any other court. id. 5J°J: 56. A writ of error to bring a judgment of the court of general sessions into the Supreme Court for review, issues as a matter of rigUt. People v. Holmes, 5 Ahh. Prac. Bep. 420. Supreme Court, Special Term, November, 1857. Before Boosevelt, J. 57. It is discretionary with the court to grant a stay of proceedings on a judgment in a criminal case, pending a writ of error; and the power should only be exercised upon good cause shown. id, 58. In general, a stay should not be granted where the writ of error is based on technical objections not affecting the substance of the crime charged. id. PjJ5: 59. A writ of error to bring the proceedings result- ing in a capital conviction before the Supreme Court and Court of Appeals for review, issues (under Laws of 1855, 613) as matter of right ; and the prisoner is also entitled as of right to a stay of proceedings accompanying the writ. People Y. Gancemi. Supreme Court, Special Term, Decem- ber, 1857. Before Boosevelt, J. S' 60. It is the duty of the officer to whom an appli- cation is made for an allowance of a writ of error and a stay of execution in a capital case, to deny the same, if he is satisfied of the legality of the conviction. People v. Wood, 3 Park. Crim. Bep. 681. Supreme Court, at Cham- bers, June, 1858. Before Johnson, J. f^l- 61. The statute (2 E. S. 599, § 45) providing for a certiorari, to certify diminution, variance or other defect in a record, is applicable to proceedings on writs of error in criminal cases as well as civil cases. Cancemi v. The People, 18 N. Y. Bep. 128. Court of Appeals, September, 1858. 62. The statute prescribing the contents of the return to 856 WRITS OF ERROR AND writs of error in criminal cases, and directing the c6ur,t to render judgment thereupon, does not limit its general power to bring before it such proceedings, not contained in the record made up below, as are necessary for the correction of errors. id. 63. Where, in addition to the formal record and bill of exceptions required as a return to the writ of error, the return includes other matter which the appellate court might, upon diminution being alleged, have brought before it by certiorari, such matter is to receive the like consider- ation, and, if it discloses error, to have the same effect as if returned in obedience to the requisition of a certiorari, id. 64. Upon a conviction for murder in the Supreme Court, the postea in the formal record showed a trial and verdict , by twelve jurors ; the return further showed that, subse- quent to the trial, the justice presiding thereat qualified the postea by his certificate, sent up to the court at gen- eral term ; that during the trial one of the jurors was with- drawn, under a stipulation of the prisoner consenting thereto, and also that by the record the cause should ap- pear to have been tried by twelve jurors ; that the prisoner made the fact thus brought out a ground for motion in arrest of judgment; that the court directed the fact thus certified should be stated among the reasons assigned in arrQst of judgment, and afterwards, at special term, directed the certificate, and reason for arrest of judgment founded thereon, to be annexed to the record. Held, 1. That such order was within the power of the court, at special term. 2. That the certificate became a part of the postea, and rendered the record, into which it was incorporated, con- sistent in all its parts. 3. That, therefore, the facts stated in it are not within the rule that nothing dehors and con- tradicting the record can be alleged for error. 4. That the consent of the prisoner to his trial by less than a full jury of twelve was a nullity, and the conviction illegal, id. Sfs^. 65. A writ of error to review in the Court of Ap- peals a judgment rendered in the Supreme Court, on an BILLS OF EXCEPTION. 857 indictment for a capital offense, cannot be issued unless allowed by a judge of the Court of Appeals, or justice of the Supreme Court, or a county judge, and such writ of error will not stay or delay the execution of such judg- ment, or of the sentence thereon, unless it be expressly directed in the allowance that the writ shall operate as a 8tay of proceedings. Stout v. The People, 4 Parh. Crim. Hep. 132. Supreme Court, at Chambers, October, 1858. Before Strong, J. 66. Such a writ ought not to be allowed and the pro- ceedings stayed, unless it is probable an error has been committed, or unless real doubt may well be entertained as to the correctness of the decisions • sought to be re- viewed, id. Isss!' 67. On the examination of a bill of exceptions taken by the defendant upon a criminal trial, it is well settled that if a legal error, or error in law, has been com- mitted, it is the duty of a judge, on proper application, to allow a writ of error, and stay the execution of the judg- ment against the defendant. And further, where on such examination the judge has grave doubts of the correctness of the rulings of the court at the trial, it is equally his duty, in the exercise of the judicial discretion with which he is clothed, to allow the writ and stay the execution of the judgment. For it is against the benign spirit of the common law to allow a conclusion of crime to be had by its erroneous administration. The People v. Mary Har- tuhg, 17 How. Prac. Rep. 151. Supreme Court, at Cham- hers, April, 1859. Before Wright, J. 68. Applying these principles to this case, a writ of error is allowed, and execution of judgment stayed, on the ground that it appeared that improper evidence against the defendant had been admitted on the trial. id. Mw. 69. In criminal cases, the practice in the fourth district is to allow the bringing up of any errors that affect the party, whether in or dehors the record, or other- wise. And the court will pass upbn all questions brought 858 WRITS OF ERBOR AND before them by either a writ of error, or certiorari, or both. O'Leary v. The People, 17 How. Prac. Rep. 316. Supreme Court, Plattsburgh General Term, May, 1859. few!' 70. The people are not entitled to a writ of error to review the order of the Supreme Court, granting a new trial in a criminal case, where there had been a conviction and certiorari with stay of judgment in the court below. People V. Nestle, 19 JV. Y. Rep. 583. Court of Appeals, September, 1859. 71. The writ only lies where there has been judgment for the prisoner upon the indictment. id. Sl5: 72. The taking of exceptions is restricted to decis- ions made by the court below during the progress of the trial. The decisions of the court of oyer and terminer, in refusing to grant a new trial, cannot be reviewed on ex- ceptions. Hartung v. The People, 4 Parh. Crim. Rep. 319. Supreme Court, Albany General Term, December, 1859. 73. A bill of exceptions should contain no more of the case than is necesaary to present the questions of law raised on the trial, and which are the legitimate subjects of review on exception ; and where other matters are in- serted, they should be stricken out on motion. id. f/s^: 74. An exception to an improper question is not available on error, where the answer of the witness was a denial of his ability to give the information sought by the question. Shay v. The People, 4 Park. Crim. Rep. 353. Supreme Court, New York General Term, February, 1860. 75. An order quashing a conviction and sentence is not reviewable on writ of error under the act of 22d March, 1852. That act is applicable to judgments only. People V. Barry, 4 Park. Grim. Rep. 657. Supreme Court, New York General Term, February, 1860. ^mo!' 76. Form of a writ of error, sued out by the de- fendant, to remove a cause, after conviction, from the court of sessions to the Supreme Court, with the allowance of the same and stay of proceedings on the sentence. BILLS OF EXCEPTION. 859 Coats V. The People, 4 Park. Grim. Rep. 662. Supreme Court, Monroe General Term, March, 1860. i86o!' 77. The return to a writ of error in a criminal case brings up the indictment, the pleas interposed by the de- fendant and the trial and judgment upon those pleas, as well as the bill of exceptions. On such a return, therefore, a special plea of a former trial on the same indictment, and the proceedings on such plea, are properly before the court for review. Grant v. The People, 4 Park. Grim. Sep. 527. Supreme Court, Clinton General Term, May, 1860. 78. The judges of a court of oyer and terminer have no power to settle and sign a bill of exception after a final ad- journment of such court. Birge v. The People, 5 Park. Crim. Pep. 9. Supreme Court, Broome General Term, May, 1860. 79. Where, after the adjournment of a court of oyer and terminer, a bill of exceptions in a criminal case, which had been tried at such court, was settled by the justice of the Supreme Court, who had presided on the trial, and was afterwards signed by such justice, and also by the two jus- tices of the sessions who sat with him on the trial, and was filed more than ten days after such adjournment, and was afterward returned as part of the record on a writ of error, this court, on motion by the district attorney, ordered the bill of exceptions to be struck from the record. id. 80. The statute provides, that in all cases where excep- tions are allowed by law on the trial of any cause, either party may make such exception at the time the decision complained of is made, or if such exception be made to the charge given to the jury, it shall be made before the jury shall h^ve delivered their verdict, (2 E. S. 423, § 74 ; 3 E. S. 5th ed. 720,) and the next section provides that such exception shall be in. writing, but that the court may allow such time as shall be deemed reasonable to settle and reduce the same to form. The court made no order in the case before us giving any such time, and there is no time in such a case, unless the rules of the Supreme 860 WRITS OF ERROR AND Court in civil actions are to be deemed to apply. The rule of the court was, at the passage of this statute, that a case or bill of exceptions must be made and served within four days, while the present rule gives ten days. The question arises, then, whether the four-day or the ten-day rule shall control. If the change of the rules of the court in civil actions controls the criminal practice, then defendant had ten days, and served his bill in time. But it may well be doubted whether such is the rule. If the new rule is to control, I do not see how it can relieve the defendant from the eftect of the present rule, 37, which declaires that when a party makes exceptions, he shall pro- cure the same to be filed within ten days after the same shall be settled, or he shall be deemed to have abandoned the exceptions. This bill of exceptions was not filed until several months after the bill was settled, and the defendant must, therefore, be deemed to have abandoned his excep- tions. Opinion of Mason, J. id. J^i\ 81. The proceedings of a county court of sessions, on the trial of an indictment, will not be reviewed on writ of error by the Supreme Court, until a record of judgment shall have been made up and filed ; and when a return to a writ of error was defective in this respect, on motion of the district attorney the writ of error was quashed. Dato- sonv. The People, 5 Park. Crim. Rep. 118. Supreme Court, Kings General Term, February, 1861. ^JlJ?*' 82. An exception to the charge of the court should point to the very error complained of, that, if committed inadvertently, it may be corrected. Sllis v. The People, 21 Sow. Prac. Rep. 356. Supreme Court, New York Gen- eral Term, March, 1861. ^iet 83. A writ of error, in a criminal case, under the act of 1852, lies, on behalf of the people, as well from the Supreme Court as from the Court of Appeals. And this, though the writ from the Supreme Court is brought to bring up a judgment of the oyer and terminer on demurrer to special pleas interposed to the trial of an indictment. BILLS OF EXCEPTION. 861 People V. Sartung, 23 How. Frac. Bep. 314. Supreme Court, Albany General Term, March, 1862. Si 84. When a request to charge contains two propo- sitions, one of which is right and the other wrong, it is not error in the court to refuse to charge as requested. Tomlinson v. The People, 5 Park. Grim. Bep. 213. Supreme Court, New York General Term, May, 1862. ^|g: 85. An exception to an expression by the court of an opinion on a question of fact, in a charge to the jury, is not available. Conraddy v. The People, 5 Park. Crim, Bep. 234. Supreme Court,, Orange General Term, Septem- ber, 1862. S; 86. A request made by counsel to the court, to coEsider him as excepting to each question to be asked a witness, is too general to be available. Each exception should be distinctly taken, and separately incorporated in the bill of exceptions. Jefferds v. The People, 5 Park. Crim. Bep. 522. Supreme Court, New York General Term, November, 1862. 87. It is not error in a judge, in charging a jury, to comment on the facts, or even to state his own theory in regard to them. If, after all, the decision of the facts is left to the jury, it aflEbrds no ground of exception that the j,udge reviewed the evidence on any branch of the case. id. 88. Where a capital case has been tried at the general sessions of New York, the Supreme Court has power, on a writ of error, under the act of 1855, chap. 337, § 3, to order a new trial when it shall be satisfied the verdict was against law, or against the weight of evidence, or that justice requires a new trial, "whether any exception shall have been taken or not in the court below." id. "iMB.''' 89. Form of a return to a writ of error by the court of general sessions of New York, containing writ of error, allowance of writ with stay of proceedings, in- dictment in case of murder, necessary entries on the record, statement from minutes of the court,. &c. &c. 862 WEITS OF EEKOB AND Lowenberg v. The People, 5 Parh. Crim. Bep. 414. Su- preme Court, New York General Term, March, 1863. ^5?,'; 90. Where there has been a conviction in a court of oyer and terminer, and judgment has been stayed, the proceedings may be removed into the Supreme Court for review by certiorari. Where there has been a conviction and judgment, the proceedings can be removed into the Supreme Court for review, only by writ of error. Willis V. The People, 5 Park. Crim. Rep. 621. Supreme Court, Albany Creneral Term, September, 1864. 91. The Supreme Court has no jurisdiction to entertain a motion for a new trial on the ground of an irregularity which does not appear upon the record; but after a writ of error has been returned, and not before, affidavits may be read upon the argument to correct an error arising out of an irregularity prejudicial to the rights of the prisoner, which does not appear on the record, and where he has no other legal mode of redress. Per Ingalls, J. id. 92. But a conviction will not be set aside and a new trial granted, when it is apparent that no injury resulted to the prisoner from the alleged irregularity. id. 93. A writ of error having been brought, and a return made after conviction and sentence in a capital case, affida- vits were presented tending to show that S., one of the jurors, who had agreed to the verdict of guilty, had, before the trial, expressed the opinion that the prisoner was guilty and ought to suffer death; and that such ex- pression of opinion was unknown to the prisoner and his counsel at the time of the trial. In opposition, the affida- vit of the juror was read, denying fully and explicitly that he had ever formed or expressed any opinion, and. other affidavits were read in corroboration. Upon a full exam- ination of the affidavits, it was held that there was no ground for complaint on the part of the prisoner, and the ap- plications were denied and the judgment affirmed. id. &, 94. Form of a writ of error in behalf of the people, with an order that the prisoner be retained in custody; BILLS OF EXCEPTION. 863 indictment for murder, with special pleas in abatement and demurrer thereto. People v. Cyphers, 5 Parh. Grim. Mep. 6G6. Supreme Court, Broome General Term, January, 1865. ^S: 95- In 8- court of review, the charge of a judge on the trial should be interpreted in the light of the evidence, and in accordance with the ordinary and popular import of the language, as it would naturally be understood by the jury. People v. Brarisby, 32 N. Y. Bep. 525. Court of Appeals, June, 1865. 96. An erroneous instruction by the presiding judge will not authorize the reversal of a judgment, where it appears from the form of the finding, as matter of legal necessity, that the error did not affect the result, and wrought no actual prejudice to the party. id. 'Cml: 97. On exception to the following charge of the city judge: "You have heard the evidence of Knapp; you can judge of his manner, and by his statement before you, what degree of credit you will give to his testimony. It is a matter resting purely with yourselves, irrespective of any contradictions that may have taken place, either at the police office or in his statements as to his visits to the house in Cherry street." Held, that in substance it was instructing the jury, in judging of the credit to be given to Knapp's testimony, they must disregard the discrepan- cies between his affidavit and his testimony, and his con- tradictory statements, and therefore erroneous. People v. Payne, 36 How. Prac. Bep. 94. Supreme Court, New York General Term, July, 1865. S' 98. Where no objection is made in the court of general sessions of New York that the trial was had after the close of the third week of the term, it cannot be urged, as a ground of objection on writ of error, that no order for the continuance of the term appears on the record of judgment. The omission to incorporate that fact in the record does not show that the order was not duly entered 864 WKITS OF EEROR AND. on the minutes of the court. It is not necessary it should be included in the record ; and every intendment is in favor of the regularity of the proceedings. Ferris v. The People, 48 Barb. Rep. 17. Supreme Court, New York Gen- eral Term, November, 1866. 99. A bill of exceptions in a criminal case brings up for review no questions except those which arise on the trial of an indictment. It is not available to review a decision made on demurrer to a plea to the jurisdiction of the court. People v. Gardiner, 6 Park. Grim., Bep. 143. Su- \preme Court, Broome General Term, November, 1865. iles. 100. Where a county court of sessions, after a trial and conviction of the defendant upon a'n indictment, make an order in arrest of judgment and discharge the defendant, the decision of the court and the proceedings therein can- not be reviewed by writ of error brought by the district attorney in behalf of the people. People v. Tarhox, 30 How. Prae. Bep. 318. Supreme Court, Broome General Term, January, 1866. 101. The act of 1852 onjy authorizes the district attor- ney to sue out writs of error in criminal cases to review judgments rendered in favor of defendants upon indict- ments, id. 102. An order in arrest of judgment is not a judgment of the court, but an order merely. In analogy to civil cases, it cannot be pleaded in bar to another prosecution for the same matter, because there is no judgment susceptible of review. id. 103. A decision of a county court of sessions, quashing an indictment and discharging the defendant, cannot be reviewed by writ of error va. behalf of the people. The act of 1852 only authorizes the district attorney to bring writs of error to review judgments rendered in favor of defendants in criminal cases. People v. Loomis, 30 How. Prac. Bep. 323. Supreme Court, Broome General Term, January, 1866. BILLS OF EXCEPTION. 865 ^mt 104. It seems that a party seeking to reverse a judgment of the general sessions of New York, convict- ing one of the crime of murder, should allege and prove a prejudicial error in the proceedings ultimating in such conviction. Friery v. The People, 39 N. Y. Eep. 424. Court of Appeals, March, 1866. ^1^, 105. Where a person is convicted, upon undisputed evidence, of a capital oflense, and an indispensable ele- ment to constitute such crime is wanting, there being no proof in the case of its existence, the Supreme Court will reverse on writ of error, although no valid exception was taken to any decision made at the trial or to the charge of the court. McOann v. The People, 6 Parh. Orim. Eep. 629. Supreme Court, Albany General Term, September, 1866. \^^; 106. On the trial of an indictment for robbery the defense was an alibi. The evidence of two witnesses tended to show that when the crime was committed, at half past ten o'clock in the morning of July 30th, the prisoner was at home, at his mother's house, in bed. The judge, in charging the jury, substantially told them that it was for them to determine whether they believed the witnesses who had testified to the alibi; that it was singu- lar that a boy like the prisoner should be in bed from seven to half past eleven in the morning, in July, unless he was sick, or there was some other special reason ; and that the circumstance that neither his mother, nor any one of his family, had been called to show that he was sick, or to explain the fact of his thus being in bed, might or "would probably turn the scales." Held that, looking at the whole charge, the inference was that the judge meant, and that the jury understood him as meaning, that on the question as to the credit they would give to the witnesses who had Undertaken to prove an alibi, the. circumstance mentioned by the judge might or probably would turn the scales. And that the language, though strong, afforded no ground 55 866 WRITS OF EKEOR AND for granting a new trial. MeOrory v. The People, 48 Barb. Bep. 466. Supreme Court, New York General Term, April, 1867. 107. The judge in his charge also said: "A crime of this kind is. generally perpetrated at night, but this was in broad daylight, at half past ten o'clock, in one of our public thoroughfares ; a child with money in his pocket, taken up and carried in an alley, knocked down, robbed and left. If they are guilty, they deserve a severity of punishment greater than any punishment that has been imposed this term on any person tried. There is some excuse at night, when an attack of that kind is made, but it is a muoh graver offense, and reqmres graver consider- ation where they are so desperate as to make it in, broad daylight." Held that there was no error in this; that it was plain the judge merely meant to say, and in substance did say, th^t to commit a robbery like that with which the prisoners were charged, in broad daylight, &c., showed a greater boldness, hardihood or recklessness in crime, than committing a like robbery under cover of the night. id. 108. On a trial of an indictment for murder, the judge charged the jury that they were to decide "whether it was murder, or whether it was a case of justifiable homi- cide." After defining the crime of murder, he told them the intent must be clearly proven, or they could not con- vict of murder. He then explained to the jury the law as to justifiable and excusable homicide, and submitted to them whether the prisoner was justified in using a deadly weapon. He also told the jury if they had any doubt as to which degree of murder to convict the prisoner of, it was their duty to convict of the lesser degree of guilt. That if they had any reasonable doubts that the prisoner intended, at the time the blow was struck, to take life, and they believed it was done in the heat of passion, then they could convict of the lesser degrees. Held, there was BILLS OF EXCEPTION. 867 no error in the charge. Manuel v. The People, 48 Barb. Bep. 548. Supreme Court, Neto York General Term, April, 1867. ^ma: 109. A judgment of the Supreme Court, on writ of error, reversing a judgment of the court of oyer and terminer sustaining a demurrer to an indictment, is not a final judgment reviewable by writ of error in this court. Paige v. The People, 6 Park. Grim. Bep. 683. Court of Appeals, September, 1868.