:s^r,7,itffi ,,W. -t/J. . Shea, 3 Park., 562. OP MISDEMEANORS. 6 Where a misdemeanor at common law is created a felony by- statute, the misdemeanor is not merged, but can be prosecuted as such.* n. In regard to those offences which are penal at common law, whatever mischievously affects the. person or property of another, or openly outrages decency, or disturbs public order, or is injuri- ous to public morals, or is a breach of official duty when done corruptly, or amounts to a public wrong, is the subject of indict- ment.* The crime should be an act done with a criminal intent to the injury of the public. (a) The act must be done, for so long as an act rests in bare intention it is not punishable,* for, as was observed by Lord Kenton, it was a principle of natural justice and of law that the intent and the act must both concur to constitute crime.* (b) The act must be done with a criminal intent, for the law judges not only of the act done, but of the intent with which it is done, and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal the act becomes criminal and pun- ishable.® Thus, where on the trial of an indictment for a misdemeanor, in exposing the bodies of the defendants naked and uncovered to the public view, the intent with which the act was done was held to be a material ingredient in the offence, and the fact of so exposing themselves, but not in an intentional and wanton man- ner, nor with the design or expectation of being seen by others, was not sufficient to complete the crime.* (c) The act must be done to the injury of the public, for an infringement of private rights alone, although done willfully, is not at conunon law a crime. It is said that the distinction of public wrongs from private, of crimes and, misdemeanors from civil injuries, seems principally to consist in this, that private wrongs or civil injuries are an infringement or privation of the > Peo. «. Jackson, 3 HiU, 92; Lohman i>. Peo., 1 Com., 379; 22 Wend., 175. ' Bla. Com., 65; 1 Russ. on Cr., 46-43; Wh. Cr. L., § 3; 1 East P. C, ch. 1, § 1 ; 1 Hawk. P. C, ch. 1, § 1. " 1 Russ. on Cr., 47. • 7 Term. R., 514. • 1 Russ. on Cr., 47. • MUler V. Peo., 5 Barb., 203. See 2 Gray, 72. 4 OF raSDBMEANORS. civil rights which belong to individuals considered merely as individuals. Public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community considered as a whole community in its social aggregate capacity.^ Thus, it has been held that to render an act indictable as a nuisance, it must be an offence so inconvenient and troublesome as to annoy the whole community, and not merely particular persons.^ And this principle has been carried so far as to hold it not indictable as a conspiracy to commit a trespass to private property, although the injury be in fact carried out.^ The injuries to private rights, which are most frequently erro- neously supposed to be indictable as crimes, are those which arise either from breach of contract, or from frauds, or from trespass to real and personal estate. The general rule applicable to all this class of cases is that, to render the offence indictable, it must be one that tends to injure the public. Thus, defrauding one person 'only, without the use of false weights, measures or tokens, and without any conspiracy, is at common law only a civil injury, and not indictable.* But when the personal property of another has been destroyed, wantonly, maliciously, and under such circumstances as to indicate a revengeful spirit and a general malicious disposition, they become offences at common law. This offen,ce is distinguishable from an ordinary trespass, in this, that it is not only a violation of private right, without color or pre- tence, but without the hope of expectation or gain. Such an act discovers a degree of moral turpitude dangerous to society, and for their security ought to be punished criminally. Acts injuri- ous to private persons, which tend to excite violent resentment and thus produce a disturbance of the peace, are indictable.* But great care should be taken to distinguish such cases from mere cases of aggravated trespass, for all cases which would otherwise be mere private trespasses do not become indictable because charged to have been committed maliciously and with force and arms; and it is said that the cases in which indictments have been sustained for maliciously killing or wounding domestic ' 4 Blac. Com., 5. " Rex V. Lloyd, 4 Esp. R., 200. • Rex V. Turner, 13 East, 228. ' Rex V. Wbeatly, 2 Burrow, 1125; 1 Wm. Black, 273. • Peo. V. Smith, 5 Cow., 258. OF MISDEMEANORS. . O animals, depend upon features peculiar to such offences as the depravity of mind and cruelty of disposition which such acts evince.^ The following table is a synop^ of the principal crimes which are specifically designated as misdemeanors by our statutes, including some of the most important ones known at common law: A. LIST OF THE MOST IMPOETANT MISDEMEANOES. Affray. (C.L.) AssavM. (C. L.) Attempts to extort. (2 R. S., 690, § 2.) Arsenals, taking arms from. {2 R. S., 696, § 45 ; Laws 1834, ch. 281.) Auctioneers neglecting to make reports. (2 R. S., 696, § 36.) selling without security. (1 R. S., 530, § 10.) guilty of fraudulent practices. (Laws 1838, ch. 52, § 3 ; Id., § 21.) ■ other violations by. (1 R. S , 532, §§ 30, 31, et seq.') accepting appointment of from other States, &c. (1 R. S., 531, § 29.) neglecting to render accounts^ &c. (Laws 1846, ch. 62, § 8 ; 1 R. S., 531, §28.) Aiding an escape from an officer. (2 R. S., 684, § 20. See Escapes.) Attempts to commit misdemeanors. (2 R. S., 698, § 3.) Armories and contents, willfdl injuries to. (Laws 1862, ch. 477, § 130.) Attorneys and Counsellors, guilty of deceit or collusion. (2 R. S., 286, § 55.) Attorneys, buying clauns, &c. (2 R. S., 288, §§ 58, 59, 60 ) Buyiitg lands in suit. (2 R. S., 691, § 5.) Buying lands when grantor is out of possession. (Id., § 6.) Buoys and beaams, mooring vessels to. (1 R. S., 528, § 72; Laws 1857, ch. 671, § 72; amended 1858, ch. 226.) Banking Associations, violating provisions of act concerning. (1 R. S., 599, § 252; Laws 1839, ch. 355, § 4; 5th ed. R. S., vol. 2, p. 576.) Building and Loan Companies, fraud in performance of duty by officer or servant of. (Vol. 2, R. S., p. 782, § 9.) Bastards, neglect of overseer and superintendents of poor to provide for. (1 R. S., 655, § 67.) Barretry. (C. L.) Battery. (C. L.) Buildings, violation of act concerning the erection of buildings in New York city. (Laws 1862, ch. 356, p. 574, § 40; Laws 1867, ch. 908, vol. -2, p. 2274; Id., ch. 939.) Bownty act, violation of. (Laws 1864, ch. 8, § 7, p. 17.) Barratry. (C. L.) Black mailing. (See Attempt at Extortion.) Concealing prisoners entitled to habeas corpus or certiorari. (2 R. S., 572, § 77.) Consjnracy. (2 R. S., 691, §§ 8, 9, 10.) Concealing estate by insolvent debtors. (2 R. S., 691, § 4.) ' Kilpatrick v. Peo., 5 Den., 277. See "MaUcious Mischief," post. b OF MISDEMEANORS. Compounding and concealing misdemeanors. (2 R. S., 692, § 12.) Criminal contempts. (2 R. S., 692, § 14.) Concealing death of child. (2 R. S., 694, § 22.) Convicts, bringing foreign to this State. (2 R. S., 696, § 40; Laws 1833, ch. 230, § 1.) Counterfeiting owners' brands on casks and packages. (1 R. S., 658, § 17.) Canal boat, signing false biU of lading of. (1 R. S., 241, § 246; 5th ed. R. S., vol. 1, p. 624.) Concert saloons, fyc, on Sunday, in New York city. (Laws 1860, ch. 501, p. 999.) County officers, neglecting and refusing to make report or pay over moneys. (Laws 1863, ch. 404, § 5.) Court houses, selling liquor in. (2 R. S. 291, § 83.) Caucuses and primary meetings, interfering with. (Laws of 1866, ch. 783.) Cruelty to animals. (Laws 1867, ch. 375, vol. 1, p. 834; 2 R. S., 695, § 28; Laws 1856, ch. 98 ; Id., 697, § 57.) Champerty. (0. L. ; 2 R. S., 288, §§ 58, 59; Id., 267, § 161.) Cheats. (0. L.) Coekfghting. (Laws 1867, oh. 375; vol. 1, p. 834.) Cemetery. (See Malicious mischief.) , kiUing birds in. (2 R. S., 697, §§ 63, 64; Laws 1853, ch. 629.) Canal officers, neglect of. (1 R. S., 247, § 299.) Canal locks, bridges, fences, gates, &c., injuries to. (Fifth ed. R. S., vol. 1, p. 633 ; 1 R. S., 248, § 318.) Canal bank, culverts, &c., breaking of. (Id., 319.) Constables buying claims for suits, &c. (2 R. S., 267, § 161.) — — asking or receiving rewards. (2 R. S., 267, § 160:) Disclosing fact of indictment found. (2 R. S., 726, § 39.) Disguised persons, unlawful assemblages of. (Laws 1845, ch. 3, § 6 ; 5th ed. R. S., vol. 2, p. 881, § 10.) Directors of monied corporations making conveyance, &c., in contemplation of insolvency. (1 R. S., 591, § 11.) Directors and officers of banks over-issuing notes. (1 R. S., 599, § 92.) , &c., other violations of statute by. (Id., §§ 93, 94, 95, et seq.) Detaining prisoners by police in county of Kings. (Laws 1863, ch. 174.) Deg, bull, bear and cock fghUng. (See Cruelty to Animals. Laws 1867, ch. 375; 1856, ch. 98, § 2; vol. l,p. 834.) Disobeying commands of officers, &c., in criminal cases. (2 R. S., 746 5 30.) Escape, assisting from an officer. (2 R. S., 684, § 20.) , assisting in, from jails. (Id., §§ 18, 19.) , attempts to, from jail. (2 R. S., 685, § 27.) , sheriff suffering insolvent, to. (2 R. S., 44, § 18.) , officers conniving at. (2 R. S., 684, § 21.) Embracery. (2 R. S., 693, § 16.) Extortion. (2 R. S., 650, §§ 5, 6, 7, 8 ; Id., 752, § 28.) Election law, violations of. , bribery and menace at. (Vol. 1, R. S., p. 448, § 4.) , changing vote of elector. (Id., § 7.) , non-residents voting at. (Id., § 10.) , inspector of election permitting person to vote not entitled, &c. (Vol. 1 OF MISDEMEANORS. 7 Election law, violatumt of. , willful neglect, corrupt conduct, &c., of messengers to college of electors. (Vol. 1, R. S., p. 445, § 19.) , calling out militia at. (Vol. 1, R. S., p. 448, § 5.) . , furnishing money to electors, Ac. (Vol. 1, p. 448, § 6.) , disobeying inspectors. (Id., § 9.) , procuring illegal voters, &c. (Id., §§ 11, 12.) , obstructing electors. (Id., § 9.) , voting more than once. (Id., § 10.) , aiegal voter knowingly offering to vote. (Id., §§ 10, 13.) , willful n^ect and corrupt conduct of officers at, &c. (Vol. 1, R. S., p. 447, § 3.) , violations o^ in Cattaraugus and Allegany reservations. (Laws, 1860, ch. 265, p. 467.) Excise law, violation of. (Laws 1857, ch. 628, vol. 2, p. 405.) Engrossing, forestalling and regrating. (C. L., and Eng. Stat.) Frmtdvlent convinces. (2 R. S., 690, § 3.) False imprisonment by officers. (2 R. S., 692, § 11.) False firm names. (2 R. S., 696, § 42; Laws 1833, ch. 281.) Ferries, violation of condition of recognizance. (1 R. S., 527, § 7.) Ferrying without a license. (Id., § 8.) jFVre to woods, n^ligently setting. (1 R. S., 697, §1.) , refusing to assist in putting out. (Id., 2.) FVauds in the use of false stamps, brands, labels or trade marks. (Laws, 1862, ch. 306, p. 513.) Forcible entry and detainer. (C. L.) Factors and agents fraudulently selling or dispo^g of property. (1 B. S., 774, §7.) Gas tar, throwing into public streams. (LaCws 1845, ch. 201, p. 229 ; 2 B. S., 696, § 47.) Gas meter, intentionally making pipes, &c., around. (Laws 1854, ch. 109, § 1, p. 262; 2 B. S., 697, § 66.) , willfully injuring. (Id., § 2; Id., § 67.) Gaming, frauds in. (1 B. S., 662, § 11.) Gambling, keeping room, building or places for. (1 B. S., 664, § 22.) , permitting of, by owner of boat, &c. (Laws 1851, ch. 504, § 7, 1 B. S., 664, § 22.) Gaming, winning or losing $25 in twenty-four hours. (1 B. S., 662, § 13.) Gaming houses, common. (See Nuisance.) Game laws for preservation of moose, wild deer, birds and fish, violation of. (Laws 1867, ch. 898, vol. 2, p. 2240; Laws of.l861, ch. 173.) Hops, adulteration of. (1 B. S., 566, § 14.) Harbor masters, falsely pretending to be. (Laws 1862, ch. 487, p. 978, § 9.) , violations of act coneeming. (Id., §§ 8, 11.) Health Board in New York city, violations of. (Laws 1867, ch. 956, vol. 3, p. 2410.) Health law in other cities and villages, violations of. (Laws 1850, ch. 324, § 4; 5th ed. B. S., vol. 2, p. 54. Vide 15 Wend., 262.) JrUoxicated persons administering medicine. (2 R. S., 694, § 24.) 8 OF MISDEMEANORS. Intoxication by engineers and conductors of railroads. (5th ed. R. S., Tol. 2, p. 689, § 52.) ^ lee, cutting of in Hudson river. (Laws 1860, ch. 20, p. 25.) Inn and hotel keepers, frauds upon. (Laws 1867, ch. 677, § 1, vol. 2, p. 1727.) Jurors, improper conduct in. (2 R. S., 693, § 17.) , improper conduct in drawing of. (Id., § 18.) , attempt to corrupt. (2 R. S., 693, § 16.) Jails, selling and bringing liquor into. (2 R. S., 431, § 31.) Justices issuing process without filling up blanks. (2 R. S., 267, § 159.) buying claims for suit, &c. (2 R. S., 267, § 161.) Libel. Lunatics, neglect of overseers of the poor, constables, &c., in confining. (Vol. 2 R. S., p. 884, § 11.) Lotteries, setting up, drawing, &c., unauthorized lotteries. (1 R. S., 665, § 34.) , printing and publishing notices of, &c. (1 R. S., 666, § 35.) , selling or procuring tickets in, &c. (Id., § 36.) , offering for sale property defendant on. (Id., § 37.) , keeping office for registering number of tickets. (Id., § 41.) Logs, lumber, ^c, defacing and forging marks on. (1 R. S., 699, § 10.) Levy, under pretended process. (2 R. S., 692, § 11.) Libraries, injuring property of. (Fifth ed. R. S., vol. 2, p. 644, § 21 ; Laws 1853, ch. 395, § 10.) Miscarriage, administering drugs, &c., to produce. (2 R. S., 694, § 20.) , soliciting drugs for, &c. (Id., § 21.) Malicious mischief. (Laws 1853, ch. 573, p. 1055 ; amended by Laws 1865, ch. 222, p. 359. See Laws 1866, ch. 467.) , destroying, injuring, removing or defacing mile stones, &c. (1 R. S., 526, § 187 ; 2 R. S., 696, § 35.) , destroying, injuring, removing or defacing guide posts. (Id., § 188 ; 2 R. S., 696, § 35.) , destroying, mutilating tombs, monuments, &c., in rural cemeteries. (Vol. 2, R. S., p. 630, § 13 ; Laws 1847, ch. 133.) , destroying, mutilating tombs, monuments, &c., in private cemeteries. (Id., p. 632, § 23; Laws 1854, ch. 112.) , destroying toll bridge or turnpike gate. (2 R. S., 695, § 32.) , destroying mUl dams. (Id., § 33.) , removing monuments for boundaries. (Id., § 34.) Marriages, solemnizing in certain cases. (2 R. S., 140, § 11.) . Malicious trespass. (2 R. S., 693, § 15 ; Laws 1851, ch. 182.) Maintenance. (C. L.) Militia law, violations of. (Laws 1862, ch. 477, §§ 130, 291, 294, 296, 314.) MUk, adulteration and frauds in sale of, &c. (Laws 1862, ch. 467, p. 866; amended 1864, ch. 544, p. 1195.) Metropolitan police act, violations of. (Laws 1860, ch. 259, p. 435.) , district, unauthorized service of process in. (Id., § 22.) , using or inciting to personal violence on elector in. (Id., § 43. See Laws 1867, ch. 806, vol. 2, p. 1993.) Nuisance. (C. L.) , bawdy houses. , disorderly houses. OF MISDEMEANORS. 9 Nuisance, gaming houses. J play houses. , common scold. , eaves droppers. , infected persons. , selling unwholesome food. , combustible and explosive materials. , obstructing a highway. • , not repairing a highway. , offensive trades and business. , open lewdness. , keeping dangerous and troublesome animals. Official miscondiui. (2 R. S, 696, § 53.) Officers neglecting duty and conniving at escapes. (2 R. S., 685, § 21.) , neglect of duty by, in assessing and imposing taxes in city of N. Y. (Vol. 1, R. S., p. 959, § 24.) , unauthorized granting of process by. (2 R. S., 561, § 11.) , refusing to deliver papers to successor. (1 R. S., 124, § 2 ; 5th ed. R. S., vol. 1, p. 416.) Offices, selling of and procuring appointments. (Laws 1863, ch 51, p. 71.) Oyster beds, taking oysters from. (Laws 1863, ch. 493, § 4; Laws 1866, ch. 404; Id., ch. 753.) Opening and reading sealed letters or telegraphic dispatches. (Laws 1867, eh. 871, §1; vol. 2, p. 2186.) Pui&AiTig' contents of such letters. (2 R. S., 695, § 30.) Persons found armed at night, with dangerous weapons, with felonious intent. (Laws 1862, ch. 374, p. 627, § 1.) Petit larceny. (2 R. S., 690, § 1.) Persuading persons to enlist in other States. (Laws 1864, ch. 2, § 3.) Posting for not fighting duels. (2 R. S., 694, § 19.) Physicians and others administering medicines when intoxicated. (2 R. S., 694, §24.) Poisons, sale and labeling of, in cities and villages. (Laws 1860, ch. 442; amended 1862, ch. 273.) Poisons, neglecting to label. (2 R. S., 694, § 25.) Practicing medicine by persons not licensed, etc. (1 R. S., 455, § 41 ; Laws 1853, ch. 184, §5.) Professors of medicine and others removing and trafCicing in surgical remains, etc. (1 R. S., 455, §§ 46, 47, 5 ed., vol. 2, p. 67; Laws 1854, ch 123, §§ 2, 3. Pilot, acting as such without Ucense. (1 R. S., 528, § 57.) Port wardens, unlawfully acting as such. (Id., § 84.) Paupers, removal of, from one city, town or county to another. (2d vol. R. S., 628, § 81.) Pawnbrokers, violating law in relation to. (1 R. S., 711, § 8.) Pilot, acting as such without branch pilot. (Laws 1860, ch. 64, p. 76.) Prize fighting. (Laws 1859, ch. 37, p. 63, § 1; 1856, ch. 98, §1; 2 R. S., 697, §57.) Qfiarantine, violating or obstructing. (5th ed. R. S., vol. 2, p. 7, §§ 13, 27.) , masters of vessels violating. Id., p. 11, §§ 34, 35, 36.) 10 OF MISDEMEANORS. Qiuirantine, other persons violating, or obstructing health officer, etc. (Id., p. 12, §§ 36, 37, 39.) , holding intercourse with vessels at. (Id., p. 12, § 38. For subsequent act establishing a quarantine, defining duties and power of health officer, and pro- viding for violations of the provisions thereof, vide Laws 1863, ch. 358.) Mailroads, vrillftd injury to. (5th ed. R. S., vol. 2, p. 689, § ^3.) , placing baggage, freight and other cars in rear of passenger cars in forming train. (Vol. 2d B. S., p. 688, § 49.) , neglect to ring bell and blow whistle by engineer. (Id., § 50.) , conductor or engineer of, intoxicated. (Id., § 52.) Railroad Co. contracting debts beyond available means, etc. (2d vol. R. S., p. 692, § 65; Laws 1845, ch. 230.) Resisting execution of process. (2 R. S., 696, § 46; Laws 1845, ch. 69, § 17.) Returning upon lands after being removed by sheriff on sale by State. (Yol. 1, R. S., p. 550, § 67.) Removing human remains from burying ground. (Laws of 1842, ch. 215, §§2, 3; 5th ed. R. S., vol. 2, p. 619, §§ 46, 47.) Racing of horses and other animals. (1 R. S., 672, § 49.) Running horses in carriage on turnpike ro^d. (1 R. S., 696, § 4.) Racing animals within one mile of courts. (2 R. S., 692, S 13.) Riot. Rout. Removing human remains beyond limits of State, etc. (Laws 1854, ch. 123, § 2, 3; 5th ed. R. S., vol. 2, p. 67.) State prison, bringmg or conveying letters in or from. (5th ed. R. S., vol. 3, p. 1093, § 130.) Salt springs, violation of act concerning. (Laws 1859, ch. 346, p. 807 ; § 144 of this act repeals former provisions.) Sheriff's, coroners, &c,, refusing to execute process. (2 R. S., 684, § 21. , omitting to execute process. (Id.) , refusing to receive prisoner. (Id.) , allowing and conniving at escape. (Id.) Suing in the name of another. (2 R. S., 551, § 1.) Severing produce from the soil. (Id., 693, § 15.) Schiol meetings, making false declarations of right to vote at, &o. (IRS 469, § 99.) Spirits, adulteitition of. (Id., 568, § 16.) Slceees, selling persons as. (Id., 658, §§ 3, 7.) Selling passenger tickets by person not authorized. (Vol. 2, R S n 991 §§ 1, 3.) *"' ' Sluikers carrying child out of State, or secreting it. (2 R. B., 149, § 7.) School laU) in New York city, violation of. (Laws 1864, ch. 351, § 3, p. 826.) Slung shot, making or selling. (2 R. S., 696, § 62.) Stefepriaonagentsandwardens, neglect of duty by. (5th ed. R. S vol 3 n 1085, §76; Laws 1854, ch. 240, §14.) > - > f , officers of concerned in contracts. (Laws 1855, ch. 552, § 10.) School superintendents, neglect of. (5th ed. R. S., vol 2, p. 97*, § 53.) Sdmol moneys, embezzlement of. (Id., p. 98, § 54; Laws 1856, ch. 179 § 18 ) Scftoo/ tntsiee, false report by. (5th ed. R. S., vol. 2, p.l23, § 169.) ' ATTEMPTS TO COMMIT MISDEMEANORS. H Telegraph posts, piers, etc., unlawiully injuring, destroying, etc. (Vol. 2. R. S., p. 740, § 7.) communications, ■wilUiilly divulging contents, or refusing to deliver, etc. (Laws 1850, ch. 340, § 1; amended. Laws 1867, ch. 871, § 2, vol. 2, p. 2186.) crossing waters, injuries to. (Laws 1845, ch. 243, § 1 ; 2 R. S., 696, § 48.) Theatres, admittance of minors under fourteen years, in New York city. (Laws 1859, ch. 48, p. 104.) Trespassers on lands in villages and cities. (Laws 1857, ch. 396, § 1 ; 2 R. S., 697, § 59.) TVode Marks and Labels— see "Frauds in," etc. (Laws 1862, ch. 306, p. 513.) Town clerks neglectiag to return names of constables chosen. (1 R. S., 350, §§ 14, 15 ; 5th ed. R. S., vol. 1, p. 830.) Usury. (2 R. S., 773, § 15 ; Laws 1837, ch. 430, § 6.) Unlawful assembly. (Laws 1845, ch. 3, § 6 ; see disguised persons.) Vessels, negligence in lading. (2 R. S., 694. § 26.) , mismanagement of steamboats. (Id., 695, § 27.) , attaching landing line to machinery of boat. (1 R. S., 685, § 13.) , captain of, or other person, neglecting to close dampers at certain places in Hudson river. (Laws 1839, ch. 112, §§ 1, 2.) , racing and creating an undue quantity of steam. (1 R. S., 686, § 32; Laws 1839, ch. 175, § 3.) , without license in Metropolitan Police District. (Laws 1866, ch. 4T5 ; Laws 1867, ch. 806, § 10, vol. 2, p. 1993.) Weight marks, &Ise on casks and packages. (Laws 1857, ch. 725.) Wrecked property, officers detaining, Sas. (1 R. S., 694, § 24.) , persons not delivering, &c. (Id., § 25.) , defacing marks on, and destroying bills of lading of, &c. (Id., § 26.) , violations of act concerning, by wreck masters, sheriff, coroners, &c. (Id., § 24.) Wild aniTnals in public highways. (Laws 1862, ch. 112, p. 262.) Wolves, justice of peace giving false certificate in regard to destruction of. Warehousemen, wharfingers and others issuing &lse receipts aud fraudulently transferring property, &c. (Laws 1858, ch. 326, p. 532 ; amended by Laws of 1859, ch. 353, p. 862; amended by Laws of 1866, ch. 440.) AUempts to Commit Misdemeanors. — ^The attempt to commit a misdemeanor was indictable at common law.^ Our statute provides that every person who shall attempt to commit an offence prohibited by law, and, in such attempt, shall do any act towards the commission of such offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, in cases where no provision is made by law, are to be punished as provided by statute. The statute after providing for the pum'shment of attempts to commit offences, where the offence attempted to be • 6 Car. & P., 368; Kusa. & By., 107. 12 OF MISDEMEANOBS. committed is punishable as a felony, declares_ that if the offence attempted to be committed be punishable in a county jail, the person convicted of such attempt, shall be punished by imprison- ment in a county jail for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offences so attempted.^ And if the offence so attempted be punishable by a fine, the offender convicted of such attempt, shall be liable to a fine not exceeding one-half of the largest amount which may be imposed upon a conviction of the offence so attempted, and if the offence so attempted be punishable by imprisonment and a fine, the offender convicted of such attempt, may be punished by both imprisonment and fine, not exceeding one-half of the longest term of imprisonment, and one-half of the greatest fine which may be imposed upon a conviction for the offence so attempted.* Affray. — An affray is the fighti,ng of two or more persons in some public place, to the terror of the people.' The word is derived from the French, and in that language signifies to terrify. Hawkins says as an affray in a legal sense, is taken for a public offence, to the terror of the people, it seems clearly to follow that there may be an assault, which will, not amount to an affi-ay, as where it happens in a private place, out of the hearing or see- ing of any except the parties concerned, in which case it cannot be said to be the terror of the people.* An affray differs from a riot in this, that two person only may be guilty of it; whereas, at common law, three persons at least are necessary to constitute a riot. And there may be an affray which will not amount to a riot, though many persons be engaged in it, as if a number of persons being met together at a fair or market, or on any other lawful or innocent occasion, happen on a sudden quarrel to fall together by the ears, it seems agreed that they will not be guilty of a riot, but only of a sudden affray, of which none are guilty but those who are actually engaged in it, and this on the ground of the design of their meeting being innocent and lawful, and the subsequent breach of the peace happening unexpectedly and without any previous intention.* ' 2 R. S., 698, § 3. ' Id. • 4 Black. Com., 144; 3 Inst., 158. • 1 Hawk. P. C, ch. 63, § 1. • Id., ch. 65, § 3. ARSENAL, TAKING AEMS FEQM, ETC. 13 Arsenal, Taking Arms From. — Any person who shall here- after be convicted of forcibly entering any arsenal, armory or arsenal yard, and of seizing, taking and carrying away any arms or ammunition belonging to this State, or of entering such arsenal, armory or arsenal yard, with the intention of seizing, taking and carrying away any arms or ammunition belonging to the people of this State, shall be deemed guilty of a misde- meanor and punished by a fine not exceeding one thousand dol- lars, or by imprisonment in the jail of the county where the conviction shall be had, for a term not exceeding one year, or both, in the discretion of the court before which such conviction shall be had.^ Av£tioneers, Violation of Law by. — ^The statutes for the regu- lation of trade in certain cases, and concerning sales by auctioneers, are found in title one, chapter seventeen, of part one of the Revised Statutes, and at page 457 of vol. 1, 5th ed., E. S. By the act all sales at public auction in the city of New York, not imder the authority of the United States, and all such sales in other parts of the State where duties are payable on the effects , to be sold, shall be made by an auctioneer, who shall have given the security required by the statute, or by a copartner or clerk of an auctioneer duly authorized under the provisions of the statute; but where no duties are payable, all such sales, except in the city of New York, may be made by any fcitizen of the State.* And by subsequent amendments, so much of the above section as applies to sales at public auction in the city of New York, was made applicable to the cities of Albany, Brooklyn and Troy.^ The statute then provides that, " Every person who shall sell or attempt to sell contrary to the provisions of the above section shall be deemed guilty of a misdemeanor, punishable by fine or imprisonment, or both, in the discretion of the court by which he shall be tried, the fine in no case to exceed five hundred dollars, or the imprisonment three months."* Auctioneers who are found guilty before any court of criminal jurisdiction in this State of fraudulent practices are forever there- after disqualified from exercising the rights or pursuing the ' 2 R. S., 696, § 45 ; Laws 1834, ch. 281. ' 1 R. S., 530, § 6 ; 5th ed. R. S., vol. 2, p. 459. ■ Laws 1831, ch, 316; Laws 1833, ch. 212; Laws 1837, ch. 297. * 1 R. S., 530, § 10. 14 or MISDSMEANORS. business of an auctioneer, and are to be deemed guilty of a mis- demeanor, punishable by fine, not to exceed five hundred dollars, or by imprisonment, not to exceed one year, or by both such fine and imprisomnent.^ Any person who shall act as auctioneer in, selling any goods liable to auction duties without filing the bonds required by law, or who shall neglect to make or render the accounts, or to pay over the duties required by law, shall be deemed guilty of a mis- demeanor, and punished by imprisonment not exceeding one year, or by fine, not exceeding one thousand dollars, or by both such fine and imprisonment.* Every auctioneer who, during his term of office, shall accept an appointment as auctioneer from any other State, or who shall be concerned as principal or partner in selling any goods, wares, merchandise or efiects, in any other State, by public auction, or who shall receive any reward, compensation or benefit, for or on account of any such sale, shall be deemed guilty of a misde- meanor, and on conviction shall forfeit his appointment and be incapable forever thereafter of acting as an auctioneer within this State.' The statute further provides that auctioneers shall be guilty of a misdemeanor in having more than one house or store in any city of this Stafe for holding an auction; also in selling certain articles at any other place than that designated in a writing to be signed by him as such house or store; also in advertising a sale for auction in any other manner than that prescribed by the statute; also in demanding or receiving a higher commission for sales than those prescribed by statute; also for selling cer- tain articles in New York city and Albany other than in the day time, between sunrise and sunset; and also in being guilty of any fraud or deceit in the execution of the laws applicable to auctioneers, or who shall, by any fraudulent means, seek to elude or defeat its operation.* Auctioneers Neglecting to Report. — ^Every auctioneer who shall willfully neglect to make any report required tb be made to the • Laws 1838, ch. 52, § 3 ; 1 R S., 531, § 21. • Laws 1846, oh. 62, § 8; 1 R. S., 531, § 28. • 1 R. S., 531, § 29. • 1 R. S., 531, § 30; Id., 532, §§ 31. 33-34-35-36-87; Id.. 535, §S 51-52- 63. Vide Minturn «. Main, 3 Seld., 220. ADULTERY, ETC. • 15 Comptroller of this State by the thirteenth article of the second title of the seventeenth chapter of the first part of the Eevised Statutes, in addition to any pecuniary penalty imposed by law for any such neglect, shall, upon conviction, be adjudged guilty of a misdemeanor, and in addition to any other punishment prescribed by law, shall be subject to a fine not exceeding one thousand dollars.^ Adultery. — This offence was not punishable by the English common law, and the Legislature of this State have not consid- ered it a subject of criminal punishment. Attorneys Guilty of Deceit and Collusion. — Any attorney, counsellor or solicitor, who shall be guilty of any deceit or col- lusion, with intent to deceive the court or any party, shall be deemed guilty of a misdemeanor, and on conviction shall be pun- ished by fine or imprisonment, or both, at the discretion of the court, and shall also forfeit to the party injured by his deceit or collusion treble damages, to be recovered in a civil action.* Attempt to Extort. — ^Every person who shall verbally, or by written or printed communication, threaten to accuse another of any offence, with intent thereby to extort any property or any pecuniary benefit whatever, shall, upon conviction, be adjudged guilty of a misdemeanor.^ Extortion in a large sense, signifies any oppression under color of right; but in a more strict sense, signifies the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due."* Armories and Contents, Willful Injuries to. — ^Any person who shall willfully injm-e any armory or its contents, or any gun, sword, pistol or other property of the State therein deposited, shall be deemed guilty of a nusdemeanor.' Assault. — ^An assault and also a battery are offences at common law; we have no statutes defining the crimes.* Mr. Abchboid, in his treatise upon criminal procedure, defines a common assault to mean, an attempt or offer, with force and • 2 R. S., 696, § 36. » 2 R. S., 286, § 55. • 2 R. S., 690, § 2. • 4 Black. Com., 141; 1 Hawk. P. C, eh. 68, § 1; Peo. v. Whaley, 6 Cott., 661. • Laws 1862, ch. 477, § 130. • Peo. V. Cohran, 2 John. Cas., 76. 16 -OF MISDEMEANORS. violence, to do a coi^oreal hurt to another.^ Mr. Waterman, in his comprehensive notes to the same work, after reviewing the definitions given at common law, and the various decisions upon the subject, says: The definitions given are not entirely accurate; they pre-suppose in all cases an incipient eflbrt to do corporeal injury. In other words, an actual intent, and a real attempt, on the part of the aggressor. This is by no means necessary. What- ever may be the secret object or intent of the aggressor, if his outward act is such as to lead a man of ordinary firmness to suppose that he intends violence, this will, in law, amount to an assault. A moment's reflection must satisfy the mind that this must be so, for the outrage to the feelings and the danger to the public peace, are equally great, whether the offer of -violence be real or be so feigned as to bear the semblance of reality. Mr. WATEimJCivtJ^erefore, says we would define an assault to be an attempt, or the"'tKiM[uivocal appearance of an attempt, with force or violence,, to do a c&rporeal injury, and may consist of any act which shall convey to the mind of the person set upon, a well grounded apprehension of personal violence.* Our Court of Appeals have laid down the rule that 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 offence that violence to the person be either offered, menaced or designed, and no exception to this rule exists in the case of an indignity offered to a woman who knowingly consents to the liberties taken.' Among instances of common assaults may be mentioned the striking at the prDsecutor, with or without a weapon, or present- ing a gun at him at a distance to which a gun will carry, pro- vided that it be so loaded that it can be discharged, or pointing a pitchfork at him while standing within reach of it, or holding up one's fist at him, or by any other rash act done in any angry or threatening manner.* So riding towards a man with intent to do him a corporeal injury.* But mere words can never amount • 2 Arch. Cr. Pr., 282. ' Id., note. • Peo. V. Bransby, 32 N. Y., 525. Cr. Cas., p. 368. ' 1 Arch. Cr. Pr., 283 ; 1 Hawk., ch. 62, § 1. See cases collected in 1 Whee. • Stephens v. Myers, 4 C. & P., 349; Peo. v. Lee, 1 Whee. Cr. Cas., 364; 3 C. & P., 373. ASSAULT. 17 to an assault; there must be some overt act.^ It is not necessary that there should be a direct attempt at" violence, but any indi- rect preparation towards it is sufficient. Thus, where the pris- oner decoyed a female under ten years of age into a building for the purpose of ravishing her, and was there detected while stand- ing within a few feet of her in a state of indecent exposure, it was held, though there was no evidence of his having actually touched her, that he was properly convicted of an assault.* "Where a person presented a pistol at another, which pistol purported to be loaded, and was presented so near as to have inflicted an injury had it been loaded and gone off, it was held to be an assault, though the pistol was in fact not loaded. Paeke, B., said, "My idea is that it is an assault to present a pistol at all, whether loaded or not. If you threw the powder out of the pan or took the percussion cap off, and said to the party, ' This is an empty pistol,' that would be no assault, for then the party must see that it was not possible that he should be injured; but if a person present a pistol which has the appearance of being loaded, and puts the party in fear and alarm, that is what it is the object of the law to prevent. I think tha,t if in this case it should be proved that the prisoner presented a pistol purporting to be a loaded pistol, and the jury are satisfied that it was so near as to produce danger to life if the pistol had gone off, that would have been an assault in point of law.' An assault may be committed on one in a house, who is not seen or known to be there, as if one were wantonly to fire a loaded gun, and the ball should pass through a Jiouse where per- sons were, it might be an assault on all of them.* So, the forci- bly towing of a boat ashore, in which another is sitting, has been held to be an assault.' And it is an assault to attempt to run against the wagon of another person on the highway, although there is no actual collision.* It is an assault to pursue a man with a dangerous weapon, coming so near to him that he may ' 1 Hawk., ch. 61, § 1; 1 Bay., 351; 1 IredeU, 125. ■ Hays V. Peo., 7 HUl, 351. • Keg «. St. George, 9 C. & P., 83. * Header v. Stone, 7 Mete, 147. » Osgood's Case, 6 City H. Rec, 4. " Peo. V. Lee, 1 Whee, Or, Oases, 364. C; P. Vol. H— 2, 18 OF MISDEMEANORS. reasonably apprehend danger.* But it is not such an offence to point a cane at one in> the street, merely in derision, and as an insult, but without an intent to strike.* Or for a man to strike at a person at such a distance that he cannot touch him or put ' him in fear.* And it has been held that if a man raise his hand against another, within striking distance, saying, " If it was not for your gray hairs, I would tear your heart out," was not an assault, because the words explained the action, and repelled the idea of an intent to strike.* Battery. — This is also a common law offence, of which no defi- nition is contained in our statutes. The United States Circuit Court has defined a battery to be the touching or commission of an actual violence on the person of another, in a rude and angry manner.' Popular signification of the word " assault" being to attack, to make a violent onset upon, and the legal signification of assault being only an attempt to commit violence, have given rise to frequent mis application of the term, even by professional men, especially as every battery must include an assault. We find standard law works calling that, an assault, which manifestly is a battery, and vice versa. The true distinction is, that while an assault is only an attempt to injure the person, a battery is the actual infliction of injury.^ The least touching of another's person, will- fully or in anger, is a battery, thus: The mere taking hold of the coat, or laying the hand on the person of another, if done in anger, or in a rude and insolent manner; '' holding him by the arm;^ pushing another against him;' throwing water upon him;*" spitting in another's face, which, though not calculated to injure the person, is a gross indignity;" striking a horse upon which he is riding, whereby he is thrown;*- sprinkling paint on another, ' Fairme's Case, 5 City H. Rec, 95. ' Goodwin's Case, 6 Id., 9. = 2 Roll., 547. * 1 Serg. & Ra-wle, 347. ' Johnson v. Tompkins, 1 Baldwin C. C, 571. " 2 Arch. Cr. Pr., 283, note. ' U. S. V. Ortega, 4 Wash. C. C, 531. ' 6 Mad., 172. ' Bull N. P., 16. " Purcell V. Home, 8 N. & P., 564. " 1 Whee. Cr. Cas., 410. " 1 Mod., 24. BATTERY. 19 thrusting or pushing a man in anger.^ All these, and any other injury, however trifling, actually done to the person of another, in an angry, revengeful, rude or insolent manner, constitute a battery.** So, also, if parish officers cut off the hair of a pauper in a poor house by force, and against the will of such pauper, it will be an assault and battery, and if it is done as a matter of degradation, and not with a view to cleanliness, that will be an aggravation, and go to increase the damages.^ It is not necessary in order to constitute an assault and battery that the act complained of should be actually accompanied with violence, provided it be improper in itself, and be d|»ne against the free will of the party complaining or without his consent, whether such party be in a condition to assent or not. Where- fore it has been held that the improperly exposing a female servant to the inclemency of the weather, whereby the servant became sick and emaciated, was an act in the nature of an assault and battery.* The injury need not be immediate. Thus, where A threw a lighted squib into a market place, which, being tossed from hand to hand by different persons, at last hit B in the face and put out his eye, it was held that this was actionable as an assault and battery.* So, also, it was holden an assault and battery where a person pushed a drunken man against another and thereby hurt him.* Neither is it necessary that the injury should be literally by the hand of the defendant. It may be by encouraging a dog to bite, or by riding over a person with a horse, or by willfully and violently driving a cart, etc., against the carriage of another per- son, and thereby causing bodily injury to the persons in it.^ The making a female patient strip naked, under the pretence that the defendant, a medical practitioner, cannot judge of her illness, if he himself take off her clothes, was held an assault.^ (a) Self Defence. — Self defence is a primary law of nature, ■ 6 Mod., 142. » 1 Hawk. P. C„ ch. 62, § 2. ' Forde v. Skinner, 4 C; & P., 239. * Rex V. Ridley, 2 Campb., 650-653. ' 2 Starkie, 388. » 2 Blk. R., 892. ' 2 Arch. Or. Pr., 284, note. » Russ. & Ry., 130; B. v, Eosinskj, Mod. 0. C, 191. 20 OF MISDEMEANORS. and it may be laid down as a general principle that a man is justified, in order to defend himself against the attack of another, in resorting to any violence which the peculiar circumstances of the case may require for his protection, even should his conduct involve the life of his assailant.* The doctrine was laid down at an early day, that where one manifestly intends and endeavors by violence or surprise to com- mit a known felony upon a man's person (as to rob, or murder, or commit a rape upon a woman), or a man's habitation or prop- erty (as arson or burglary), the person assaulted may repel force by force, and even his servant then attendant on him, or any other person present, may interpose for preventing mischief, and in the latter case the owner or any part of his family, or even a lodger with him, may Mil the assailant for preventing the mis6hief.* But it must be understood that care should be taken that the resistance does not exceed the bounds of mere defence, preven- tion or recovery, so as to become vindictive, for that would make the defendant the aggressor. The fact that the defendant struck the first blow would not justify an enormous battery; and the force used must not exceed the necessity of the case.' A party has no right to retaliate by an assault when it is in his power to . keep aloof from the party striking.* And it is the duty of one who is assailed to endeavor to avoid the assault, and an assault cannot be justified as made in self defence unless the danger of injury is so manifest and pressing that no other reasonable means of self protection are immediately available.® And no words will justify an assault and battery.* One who, in consequence of abusive language which he used to another in the house of the latter, is ordered out of the house and struck with an umbrella, has no right to repel, force with force, and if he do so, and cast a tumbler in the face of the owner of the house and cut out one of his eyes, he cannot exonerate himself by alleging that the injury was the result of accident and in self defence.'' ' Scribner v. Beach, 4 Den., 448. ' Foster's Crown Law, 273. ' 2 Arch. Or. Pr., 54, note; Gates v. Luensbury, 20 John., 427; Elliott e. Brown, 2 Wend., 497; 6 Conn., 453, Bull N. P., 18. ' Reg. V. Drisooll, 1 C. & Mars., 214 ; 10 Iredell, 214. " Keyes v. Devlin, 3 B. D. Smith, 518. ' Id. ' Burke's Case, 5 City H. Bee, 93. BATTERY. 21 (b) Defence of Others. — A man may justify an assault and battery in defence of his wife, child or servant, ol- either of these characters in defence of her husband, father or master, and any violence necessary to this end will be excusable.^ But it is to be understood by this rule that the person so assisting will be justified only in the same cases and to the same extent as the party assailed, and in whose defence the party is acting; and the assault must only be made for the purpose of prevention, and cannot be justified by way of retaliation after the attack is over.*^ (c) Lamful Gorrection. — Every master has a right to correct his scholar, with moderation, and as long as he confines himself within proper bounds is protected by the law.' But a teacher, in inflicting corporal punishment upon a scholar, must exercise reasonable judgment and discretion, and be governed as to the mode and severity of the punishment by the nature of the oflFence and by the age and strength of the pupil; and it will be for the jury to determine whether the punishment was excessive and improper.* So, also, a parent may correct, in moderation, his child, and a guardian his ward;* and the same rule in regard to the exercise of judgment and discretion in inflicting the chastise- ment applies as in the case of teacher and scholar. 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 trespasser.' But this rule does not extend to the case of husband and wife; for, although it has been observed that, as the husband is the guardian of the wife and boimd to protect and maintain her, the law has given him a reasonable superiority and control over her person, and that he may even put gentle restraint upon her liberty, if her conduct be such as to require it.^ Yet a husband has no right to beat his wife or inflict corporal pimishment upon her;^ but he may defend • Roll. Abr., 546; 1 Hawk. o. 60, §§ 23, 24. » Barfoot v. Reynolds, Str., 95S. • Morris' Case, 1 City H. Rec, 52. • Com. V. Randall, 4 Gray, 36. . > 1 Chit. Gen'l Pr., 64, et seq.; 4 Duer, 642; 10 How., 43g. " Brown v. Howard, 14 John., 120. ' 2 Kent's Com., 181. ' Peo. V Winters, 2 Park., 10. 22 OF MISDEMEANORS. himself against her, and may restrain her from acts of violence towards himself or towards others.^ (d) In Making an Arrest. — The laying of hands by an officer upon a person in a case where he is authorized to make an arrest is no battery in law. Thus, where, upon a trial for assault and battery, evidence that the prosecutor had committed petit larceny, and that the alleged assault and battery by the defendant con- sisted in arresting the prosecutor therefor, without process, and delivering him to a public officer, will constitute a complete defence.^ And as private persons may arrest one in the act of committing a felony, a charge of assault and battery committed in making such an arrest will be dismissed.^ In cases like these the force used must be only so great as is necessary for the pur- pose of elfecting the object in view; and if there be an excess of violence, the officer will be guilty of an assault. If, therefore, a constable, in preventing a breach of the peace, and any person stands in the way, with intent to prevent him from so doing, the constable is justified in taking such^person into custody, but not in striking him.* (e) Preservation of the Peace. — A person has not only a right but it is his duty to interfere to preserve the peace. If, there- fore, A and B are fighting, and C comes up and takes hold of one of them by the collar in order to separate the combatants, he is not guilty of assault and battery. So to lay one's hand gently on another, whom an officer has a warrant to arrest, and to tell the officer that this is the man he wants, is no battery.* (/) Defence of Possession of Property. — li one unlawfully attempt to dispossess another of his personal property, he may be repelled with such force as is necessary to maintain posses- sion. This is the law of self defence which is recognized only in those cases where, if one were compelled to resort to the slow process of the law, the injury would be irreparable.® A civil trespass will not justify the firing of a pistol at the trespasser in sudden resentment or anger. If a man takes ' Peo. «. Winters, 2 Park., 10. » Peo. V. Adler, 3 Park., 249. • Peo. 1). Walven, 7 N. Y. Leg. Obs., 89. * Levy V. Edwards, 1 C. & P., 40; see Hager v. Danforth, 20 Barb., 16; Peo. 1). Gulick, H. & D. Supp., 229. " 1 Hawk. P. C, oh. 62, § 2; Bac. Abr., tit. Assault and B.attery. « Davis V. Whitridge, 2 Strob., 232. See Harrington «. Peo., 6 Barb., 607. BATTERY. 23 forcible possession of another's close, so as to be guilty of a breach of the peace, it is more than a tresspass. So if a man with force invades and enters the dwelling house of another. But a man is not authorized to fire a pistol on every invasion or intrusion into his house. He ought, if he has a reasonable oppor- tunity, to endeavor to remove the trespasser without having recourse to the last extremity.^ The rule has been laid down in this State, that in cases of resistance to trespassers the party resisting will be guilty in law of an assault and battery if he resists with such violence that it would, if death had ensued, been manslaughter.* 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, though he who has been forcibly ousted from the naked possession by the owner of the premises, cannot maintain trespass; yet in retaining such possession, he has a right to repel force by force.* If the regulation for the collection of railroad tickets is a rea- sonable one, and essential for the interests of the company, and a passenger refuses to comply with it, he may be requested to leave the car, and if he refuses to go, may be ejected without unneces- sary violence.'' And the right must be exercised by stopping the car, and in such a maimer as is consistant with the passenger's life. If the attempt be made to eject without first stopping the car, the passenger has the same right to repel the attempt that he has to resist a direct attempt to take his life.^ The question whether the owner of goods which are in his actual possession, may not lawfully defend his possession of them against a seizure, on an attachment by an officer, who comes to take them on a ptecept against another person, who has no right or interest in the goods, has occasioned considerable discussion. In Massa- chusetts* it was held that the owner might maintain his possession ' Mead's Case, 1 Dewin C. C, 185. ' Scribner v. Beach, 4 Den., 448. ' Mickle's Case, 1 City H. Rec, 96. * Peo. V. Caryl, 3 Park., 326. Vide Peo. v. Judson, Id., 234; Com. v. Power, 7 Met., 596; Hall v. Power, 12 Id., 482. ' Sanford v. R. R., 23 N. Y., 343. « 8 Pick., 1.33. 24 OF MISDEMBANOES. by force. In Akbama^ that the owner might employ as much force as was necessary to protect the levy. In Vermont* a con- trary doctrine was held. And in this State, where a constable, having an attachment against A, seized a trunk belonging to B, it was held an indictable oflFence in the latter to attempt to regain possession of the trunk by assaulting the officer, and that although he might be subject to a private action of trespass, for forcibly regaining possession of his own property thus taken, it was clearly an indictable offence thus to obstruct the officer in the execution of his duty.^ The right of recaption of personal property, exists with the caution that it be not exercised violently, or by breach of the peace, for should these accompany the act, the party would then be answerable criminally. In the case of personal property improperly detained or taken away, it may be taken from the house and custody of the wrong doer, even witholit a previous request; but unless it was seized or attempted to be seized forci- bly, the owner cannot justify doing anything more than gently laying his hands on the wrong doer to recover it.* Thus, where the plaintiff took hold of a robe in the defendant's hands, in order to take it from him, upon which the defendant immediately knocked the plaintiff down with his fist, and the plaintiff again attempted on rising, to possess himself, of the robe, and the defendant struck a blow with it, which broke the plaintiff's arm, it was held that the defendant was not justified in either blow.' In the defence of real property, in cases of trespass thereon, the rule may be laid down that, in defence of bare p6ssession, a wounding cannot be justified. It might, however, be justified on the ground of personal defence, as where, in attempting to remove the intruder, or prevent his forcible entry, he should commit an assault upon the person of the possessor or his family, and the ownfer should, in defence of himself or family, wound him." If the defendant has actual possession of land owned by him, he will be justified in using violence, if necessary in defending his ' 12 Ala., 840. • 8 Ter., 824; 12 Id., 437; 17 Id., 573. See 3 Ohio, 159 ; 8 Term., 78. • Peo. V. Cooper, 13 Wend., 379. ' Scribner v. Beach, 4 Den., 448; Spencer v. McGowan, 13 "Wend., 256; Weaver v. Bush, 8 Term. R., 78. ' Scribner v. Beach, 4 Den., 448. ° 2 A. K. Marsh, 669; 4 J. J. Marsh, 578. BUYING LANDS IN SUIT., 25 possession; but if he has not possession, his right of possession, however perfect, will not justify violence in enforcing it.^ A trespasser, however, is not bound to submit quietly to unrea- sonable or unnecessary violence, though in the wrong at the time, he does not thereby forfeit all right to self-protection. On the contrary, he may protect himself by force from unreasonable or wanton violence, committed or sought to be committed by the party trespassed upon.^ (ff) Accident.- — ^If the injury committed were accidental, and not the result of negligence, it is no battery. Thus, if a horse, by sudden fright, run away with his rider, and runs against a man;^ or if a soldier hurt another by discharging his gun in exercise;* or where skins were thrown down into a man's yard, being a public way, by which a person's eye was knocked out, and it appeared by the proof that the wind blew the skin out of the way, and that the injury was cause^d by this circumstance.* But if two persons, engaged in an unlawful act, inadvertently hit a third person, this is a battery, and cannot be justified on the ground that it was accidental, for the rule of law is that every one shall be held responsible for the consequences of his unlawful act;* and the general rule may be laid down to be that, if a party be in the prosecution of a legal act, an action does not lie for an injury resulting from an inevitable or unavoidable accident which occurs without any blame or default on his part.^ (h) Amicable Contest. — As if an injury be received in playing at any lawful sport, as ball, by consent, it will not amount to a battery in law, for the intent of the parties is not unlawful, but rather commendable. But if the contest is unlawful, such as prize-fighting, it would be otherwise.^ Buying Lands in Suit. — ^If any officer, judicial or ministerial, or other person, shall take any conveyance of any lands or tene- ments» or of any interest or estate therein, from any person not • Hyatt V. Wood, 3 John., 239 ; MicUe's Case, 1 City H. Rec, 96 ; Id., 119. Vide Harrington v. Peo., ft Barb., 607; Newkirk v. Sabler, 9 Id., 652. ■ Peo. ». Gulick, HiU & D. Supp., 229. • Gibbons v. Pepper, 4 Mod., 405. • Weaver v. Ward, Hob., 134; 2 Roll. Abr., 548. ' Bex t). Gill, 1 Stra., 190. » James v. Campbell, 5 0. & P., 372. ' 2 Chit. Rep., 639; 1 Bing., 213. " Bell N. P. 15, 9 C. & P., 359. 26 OF MISDEMEANORS. being in the possession thereof, while such lands or tenements shall be the subject of controversy by suit in any court, knowing the pendency of such suit, and that the grantor was not in pos- session of such lands or tenements, he shall, upon conviction, be deemed guilty of a misdemeanor.^ Buying Lands when Grantor is out of Possession. — ^No person shall buy or sell, or in any manner procure or make or take any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof or the person making such promise or covenant shall have been in possession, or he, and those by whom he claims shall have been in possession of the same or of the reversion or remainder thereof, or have taken the rents and profits thereof for the space of one year before such grant, conveyance, sale, promise or covenant made; and every person violating this provision shall be deemed guilty of a misdemeanor.* The two last preceding sections do not apply to any mortgage executed by a person not in possession of lands allowed by the provisions of the first chapter of the second part of the Revised Statutes, nor to any conveyance of lands and tenements to any person in the lawful possession thereof.^ Barratry. — This ofience consists in some willful act or miscon- duct of a shipmaster, done for a fraudulent or unlawful purpose, contrary to their duty to the owner of the vessel.* Such as a criminal delay of the voyage,' or dropping anchor and going ashore for a private adventure,® and in short every willful act on the part of the master of known illegality, every gross malver- sion in his office, or criminal negligence, by whatever motive induced, whereby the owner is damnified, comes within the legal definition of barratry.'' Barretry. — Common barretry is the practice of exciting ground- less judicial proceedings, and a common barretor is defined to be a common mover, exciter or maintainer of suits or quarrels in ' 2 R. S., 691, § 5 ; 14 Barb., 441 ; 21 Wftid., 99. ' 2 R. S., 591, § 6; 20 Barb., 429; Id., 455; 20 Wend., 212; 22 Id., 403. • Id., § 7. See 5th ed. B. S., vol. 3, p. 30, § 168. ' 3 Pet., 222; 4 Dallas, 294; 14 Mass., 1 ; 2 Cowp., 148; 4 Term Rep., 33; 19 Pick., 34. ' 8 Taunt., 684. ' 4 Term, 33. ' Lawton «. Sun Ins. Co., 2 Cush., 500. BUILDING AND LOAN COMPANIES, ETC. 2T courts of record or other courts, or by all kinds of disturbance of the peace, or by spreading, false rumors and calumnies, whereby discord and disquiet may grow among neighbors,^ But one act of this description will not make one a barretor, as it is necessary in an indictment for this offence to charge the defend- ant Avith being a common barretor, which is a term of art appro- priated by law to this crime.'^ And it has been held that the commencing of three suits where one may serve every justifiable purpose, may be evidence of three acts of barretry, if particular directions were given to the attorney with a malicious des\gn to harrass and oppress the debtor.^ Building and Loan Companies, Fraud by Officers of. — No officer, trustee, attorney, agent or servant of any such incorpora- tion, shall use or dispose of any part of the funds of such asso- ciation, or assign, transfer, cancel or deliver up, or acknowledge satisfaction of any bond, mortgage or other written instrument belonging to such association, imless duly authorized, or be guilty of any fraud in the performance of his duties, and every person guilty of a violation of the above provisions, shall be liable to an indictment for a misdemeanor, punishable by fine or imprison- ment, or both, in the discretion of the court in which he shall be tried.* Cheats. — At the common law it was said by some writers that deceitful practices in defrauding or endeavoring to defraud another of his own right, by means of some artful device, con- trary to the plain rules of common honesty, were indictable as cheats.^ But the rule was laid down by East and Kussell that a cheat or fraud effected by an unfair dealing and imposition on an individual, in a private transaction between the parties, could not be the subject of indictment at common law, and that to render it indictable it should appear that it either afiected or might affect the public.® And this latter expression coincides with the rule as laid down in this State, that at common law no ' 1 Hawk. P. C, ch. 81, §§ 1, 2; Co. Litt., 368; R. v. Urlyn, 2 Sound, 308, note 1. • 8 Co., 36; 1 Sid., 282; 6 Mod., 311. » Com. V. McCuUoch, 15 Mass., 227. • 5th ed. R. S., vol. 2, p. 782, § 9.' • 1 Hawk., ch. 71, § 1. ' 2 East. P. C, ch. 18, § 2; 2 Rus.s. on Cr., 2,S2. 28 OF MISDEMEANORS. mere fraud not amounting to felony* is an indictable offence unless it affects the public.* Among other offences of this nature known to the common law were the selling of unwholesome provisions,* and the adulteration of food with noxious ingredients, for the sake of gain.* But this class of cases have been in this work treated as nuisances, upon the ground that they are injurious to a large class of the community.* And it will be found that most of the cases of cheats which arise in practice that do not fall either under^the definition of a nuisance or of some special statute made applicable to the particular case, or else under our statute in relation to false pretences, are injuries affecting merely the indi- vidual concerned, and not the public, and that the party's only redress is by action, and not by indictment and criminal prosecu- tion. Much uncertainty and confusion exists among the adjudged cases in relation to injuries by means of fraud, nor are the decis- ions entirely harmonious, but from an examination of them all it may be gathered that by no means was every fraud or cheat •indictable at common law. Two things, at least, were essentially requisite; the fraud must have been such as tended to injure the public, and it must have been one against which common pru- dence could not guard." Cruelty to Animals. — The statute in relation to cruelty to animals declares it to be a noisdemeanor for any person to over- drive, overload, torture, torment, deprive of necessary suste- nance, or unnecessarily or cruelly beat, or needlessly mutilate or kill, or cause the same to be done, to any living creature; also to keep or use, or in any way be connected with or interested in the management of, or to receive money for the admission of any person to any place kept or used for the purpose of fighting or baiting any bull, bear, dog, cock or other creature, or who shall aid, encourage or assist therein, or who shall suffer or per- mit any place to be so kept or used; also to impound animals ' Vide False Pretences; vol. 1, ante, p. 559. • Peo. c. Gates, 13 Wend., 311; Peo. v. Stone, 9 Id., 182. See 6 Mass., 72; Poo. V. Herrick, 13 Wend., 87; Bums' Just., tit. Cheat. • 2 East. P. C, ch. 18, § 4. ' Rex t). Dixon, 4 Camp., 12. ' Vide Nuisance, post. ' 1 Lead. Cr. Oas., 11, note, ^ee False Pretences, vol. 1, ante, p. 560. CONCEALING ESTATE BY INSOLVENT DEBTORS. 29 without a sirfficient quantity of good and wholesome water; also to cai'ry animals upon any vehicle or otherwise in a cruel or inhuman manner; also to abandon sick, infirm or disabled creatures to die. But nothing in the act is to be construed to prohibit or interfere with any properly conducted scientific experiments or investigations, which experiments shall be per- formed only imder the authority of the faculty of some regularly incorporated medical college or imiversity of the State of New York.i A previous statute of the State reads as follows: " Every per- son who shall maUeiously Mil, maim or wound any horse, ox or other cattle, or any sheep belonging to another, or shall mali- ciously and cruelly beat or torture any such animal, whether belonging to himself or another, shall, upon conviction, be adjudged guilty of a misdemeanor.* Concealing Estate by Insolvent Debtors. — If any insolvent debtor, who shall apply for a discharge from his debts, under the provisions of the third article of the second title of the fifth chapter of the second part of the Eevised Statutes, or shall apply for a discharge from imprisonment, imder the sixth article of the before mentioned title, shall willfully, 1. Conceal any part of his estate or effects, or any books or writings relative thereto, either before or after the execution of any assignment, as provided in the said articles; or, 2. Conceal and not disclose to the court or officer before whom his petition may be pending any debts or demands which he shall have collected, *or any transfer of his real or personal estate which he may have made after presenting to such court or officer a schedule of his estate, Such debtor shall, upon conviction, be adjudged guilty of a misdemeanor.^ Concealing the Death of a Child. — ^Any woman who shall endeavor privately, either by herself or the procurement of others, to conceal the death of any issue of her body, which, if bom alive, would by law be a bastard, whether it was bom dead or alive, or whether it was murdered or not, shall be deemed guilty ' Laws 1867, ch. 375, vol. 1, p. 834. See also Prize (Dog, Bear, Bull and Cock) Fighting, post, p. ' 2 R. S., 695, § 28. ' Id., 691, § 4. 30 OF MISDEMEANORS. of a misdemeanor, and shall, on conviction thereof, be punished by imprisonment in a county jail not exceeding one year.^ A second conviction of the above offence is a felony.* Gourt House, Selling Liquors in. — ^No spiritous liquor shall, on any pretence whatever, be sold within any building established as a court house for the holding of courts of record while any such court or any circuit court shall be sitting therein, except in such part of such building not appropriated to the use of courts or juries attending them, in which such sale shall have been authorized by a resolution of the board of supervisors of the county. Every person violating the above provision shall be deemed guilty of a misdemeanor.^ Oounterfeiiing Ovmers' Brands on Casks and Packages. — Every person who shall counterfeit or fraudulently alter or deface the brands or other marks put upon any hogshead, barrel or half barrel containing flour, meal, beef, pork, pot or pearl ashes, fish, fish oil, liver oil, or distilled spirits, by the owner thereof, shall be deemed guilty of a misdemeanor, punishable by fine not exceeding five hundred dollars, or by imprisonment not exceeding one year.* Concealing Prisoners Entitled to Habeas Corpus or Certi- orari. — Any one having in his custody or under his power any person who, by the provisions of the Eevised Statutes, would be entitled to a writ of habeas corpus or certiorari to enquire into the cause of his detention, who shall, with intent to elude the service of any such writ, or to avoid the effect thereof, transfer any such prisoner to the custody or place him under the power or control of another, or conceal him, or change the place of his confinement, is guilty of a misdemeanor.' Compoundinff Misdemeanors. — ^Every person having a knowl- edge of the actual commission of any offence, punishable by imprisonment in a county jail or by fine, or of any misdemeanor or violation of any statute, for which any pecuniary or other penalty or forfeiture is, or shall be prescribed; who shall take any money, pl-operty, gratuity or reward, or any engagement or ' 2 R. S., 694, § 22. " Id., § 23. See Second Offences, ante, vol. 1. ' 2 R. S., 291, § 85. • 1 R. S., 568, § 17. • 2 R. S., 572, § 77; 2 Duer, 42. CRIMINAL CONTEMPTS. ' 31 promise therefor, upon any agreement or understamtKng-, express or implied, to compomid or conceal any such offence or misde- meanor, or to abstain from any prosecution thereferr or to with- hold any evidence thereof, shall, upon conviction,, be adjudged guilty of a misdemeanor.^ Criminal Contempts. — Every person who shall be guilty of any criminal contempt, enumerated in the second title of the third chapter of the third part of the Eevised Statutes^ shall be liable to indictment therefor for a misdemeanor.* The following constitute the criminal contempts, above refer- red to: 1. Disorderly, contemptuous or insolent behavior committed in a court of record during its sitting, in immediate view and presence, and directly tending to interrupt its proceedings, or impair the respect due to its authority. 2. Any breach of the peace, noise or other disturrbance directly tending to interrupt its proceedings. 3. Willful disobedience of any process or order lawfully issued or made by it. 4. Kesistance willfully offered by any person to the lawful order or process of the court. 5. The contumacious and unlawful refusal of any person to be sworn as a witness, and when so sworn, the like refusal to answer any proper and legal interrogatory. 6. The publication of a false or grossly inaccurate report of its proceedings; but no court can pimish as a contempt, the pub- lication of true, fiill and fair reports of any trial, argument, pro- ceedings or decision had in such court.' In case of the punish- ment for contempts without indictment, it may be by fine or by imprisonment in the jail of the coimty, where the court may be sitting, or by both, in the discretion of the court; but the fine shall in no case exceed the sum of two hundred and fifty dollars, nor the imprisonment thirty days; and where any person shall be committed to prison for the non-payment of any such fine, he shall be discharged at the expiration of thirty days.* Persons ' 2 R. S., 692, § 12; 15 Barb., 541. Vide Compounding Felonies, ante, vol. 1, p. 541. • Id., § 14. ' 2 R. S., 278, § 8 ; 15 Barb., 193; 1 Duer, 512; 4 Sand., 639. • Id., § 9; 2 Den., 572. 32 " OP MISDEMEANORS. punished for contempts under the provisions of the Revised Statutes are, notwithstanding, liable to indictment for such offence; but the court before which a conviction shall be had on such indictment, in forming its sentence, is required by statute to take into consideration the punishment before inflicted.-' Cemeteries, Rural, Destroying Tombs, etc., in.- — ^Any person who shall willfully destroy, mutilate, deface, injure or remove any tomb, monument, grave-stone, building or other structure placed in any cemetery of any rural cemetery association, or any fence, railing or other work for the protection or ornament thereof, or of any tomb, monument or grave-stone or other structure aforesaid, or of any plat or lot within such cemetery, or shall willfully destroy, cut, break or injure any tree, shrub or plant within the limits of such cemetery, shall be deemed guilty of a misdemeanor.* Cemetery, Private, Injuring Fences, etc. — Every person who shall pull down or deface any fence, monument or stone in or about any private ceinetery, incorporated imder the provisions of the Eevised Statutes, shall forfeit to the said coi'poration a sum not exceeding four hundred dollars for each offence, to be recovered in a court of record, and such offender shall be adjudged guilty of a misdemeanor.^ Cemetery, Killing Birds in, etc. — (a) Any person who shall kill or wound or trap any bird within any cemetery or public burying ground, or who shall destroy any bird's nest, or remove the eggs or the young birds therefrom, shall be deeme^ guilty of a misdemeanor, punishable by a fine of five dollars for every bird killed, wounded or trapped, and for every bird's nest destroyed, or eggs or young birds removed, recoverable in any justice's court within the county where the offence has been committed, to be sued for by any person making the complaint, the penalty to go towards the support of the poor of the county.* {b) Any person who shall Imowingly buy or sell any bird which has been killed or trapped, or shall have such birds on sale, shall be deemed guilty of a misdemeanor, punishable by a fine of five dollars for every bird bought, sold or on sale, to ' 2 R. S., 279, § 13. ' 5th ed. R. S., vol. 2, tx 630. § 13; Laws 1847, ch. 133. • Id., p. 632, § 23 ; Laws 1854, ch. 112. See Malicious Mischief * 2 R. S., 697, § 63; Laws 1853, ch. 629, § 1. CAtCtSES AND PRIMARY MEETINGS, ETC> 33 pe recovered and disposed of in like manner as above pro* Vided for.^ The provisions of the last two sections are made applicable to every place "witiiin the distance of two miles of the boundaries of the Greenwood Cemetery inclosure in the county of Kings.^ Caucuses and Pnmary Meetings^ Interfea'ing Wtt/i.^-^Jf any person shall, by bribery, menance or other corrupt means or device whatsoever, either directly or indirectly, attempt to influ* ence any person, delegate or substitute, entitled under the call of any political party of this State, to vote in any primary meet* ing, caucus or convention of any such party, in gi^Tog his vote or ballot, or deter him in giving the same, or hinder him in the free exercise of the right of suffrage at any such primary meet* ing, caucus or convention^ and shall be convicted thereof, such person, so offending and convicted^ shall be adjudged guilty of a misdemeanor> and shall be fined or imprisoned, according to the discretion of the court before which such conviction shall be had; such fine in no case to exceed five hundred dollars, and such imprisonment one year.^ CowSjpe'racy.-^The offence of conspiracy is said to be more difficult to be ascertained precisely than any other for which an indictment lies, and is, indeed, rather to be considered as governed by positive decisions than by any consistent and intelligible prin* ciples of law.* The modern offence comprises numerous acts not mentioned by the older criminal writers. Thus, Lord Coke described the offence as a consultation and agreement between two or more to appeal or indict an innocent person falsely and maliciously, whom they accordingly cause to be indicted or appealed, and afterwards the party is acquitted by the verdict of twelve men.* And Blackstone confines the offence to malicious accusation, and does not enter into a discussion of any other species of conspiracy.® At a later day it was said the offence consisted, according to all the authorities, not in the accomplish- ment of any injurious or imlawful purpose, nor in any one act ' 3 R. S., 697, § 64; Laws 1853, ch. 629, § 2. ' Id., § 65; Laws 1855, ch. 664, § 1. ' Laws 1866, ch. 783. * Dick. Sess. ' 3 Inst., 143. ' 4 Black. Cona^.,136. C. E Vol. II— X Si OF MISDEMEANORS. moving towards that purpose, but in the actual concert and! agreement of two or more persons to effect something whi6h, being so connected and agreed, the law regards as the object of an indictable conspiracy, and that there were two cl£isses of cases in which • the criminality of such agreement was perfectly intelligible and obvious f 1st. .Where the object proposed would if accomplished, be a criminal offence in all the parties acting in it. 2d. Where, though the ultimate object may be lawful, the means by which the parties, conspirators, propose to effect their purpose, necessarily involve them in an indictable offence.* And the authorities have held that the gist of a cctospiracy is the unlawful confederacy to do an unlawful act, or a lawful act for an unlawful purpose, though nothing be done in prosecution of it, the offence being •complete when the confederacy is made.* But in regarding the above definitions of the offence it should be borne in mind that our statute provides that no agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act besides such agreement be done to effect the object thereof by one or more of the parties to such agreement. The New York statute upon this subject is as follows: If two or more persona shall conspire, Isfc. To commit any offence ; or, 2d. Falsely and maliciously to indict another for any offence, or to procure another to be charged or arrested for such offence; or, 3d. Falsely to move or maintain any suit; or, 4th. To cheat and defraud any person of any property by any means which are in themselves criminal; or, 5th. To cheat and defraud any person of any property by any means which, if executed, would amount to a cheat, or to obtaiioing money or property by false pretences; or, 6th. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or the due administra- tion of the laws, shall be deemed guilty of a misdemeanor.^ No conspiracies, other than such as are enumerated above, ax& punishable criminally. • Observations by Mr. Talfourd, in his edition of Dick. Sess.; 4 Bla. Com., 136; 1 Hawk. P. 0., ch. 72, § 2; 2 East. P. C, oh. 18, §5:4 Met., Ill; 1 Whee. Or. Oas., 142. ■ Peo. I). Mather, 4 Wend., 259 ; 2 Mass., 337-538-112; 6 Id., 74; 3 Serg. & Kawle, 220 ; 9 Mass., 415; 4 Met., Ill ; Storm's Case, 1 City H. Reo 169 ' 2 R. S., 692, § g. See 1 Whee. Cr. Cas., pp. 150-222'; ^3 Barb. 633 GONSPIRACY: 35 No agl'eement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a con- spiracy, unless some act beside such agreement be done to effect the object thereof by ohfe or more of the parties to such agree- ment.^ All conspiracies whatsoever, -wrongfully to prejudice a third person, were highly criminal at common law; as when divers per- sons confederate together by indirect means to impoverish a third person, or falsely and maliciously to charge a man with being the reputed father of a bastard child, or to maintain one another in any matter whether it be true or false.* But where there was a combination to commit a trespass upon the land of another, though alleged to be with force, and by striking terror, by carry- ing offensive weapons in the night, it Was held not to be punish- able as a conspiracy.^ The conspiring to obstruct, prevent or defeat the course of public justice, to injure the public health as by selling unwhole- some provisions, or to effect any public mischief, as by raising the price of the public funds by illegal means, are offences pun- ishable by indictment. So, also, all combinations or confederal cies wrongfully to prejudice an individual, whether the intention be to injure his property, his person or his character, are misde- meanors, and were at common layf adjudged conspiracies.* When the defendants were charged with a conspiracy against public justice, in causing a man t& be executed for a robbery which they knew he was innocent of, with the intent to get into their possession the reward offered; it was held that it would have been equally a conspiracy, though the defendants had failed in their infamous design, and the man had been acquitted.^ A conspiracy to indict a person for the purpose of extorting money from him is a misdemeanor whether the charge be true or false.* It has been held in this State that a conspiracy of journeymen workmen, or of any trade or handicraft, to raise their wages by ' 2 R. S., 692, §§ 9, 10; Peo. v. Chase, 16 Barb., 495. » 1 Hawk. P. C, ch. 72, § 2. ' R. V. Turner, 13 East. R-, 228. ' 4 Penn. L. J., 63-64. ' R. V. McDaniel, 1 Leach, 45. * R. V. Uollingberry, 4 B. & C, 329. 36 OF MISDEMEANOES entering into combinations to coerce joumeymeB and master workmen employed in some trade or business to conform to rales 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^ conspired together and fixed the price of making coarse boots, and entered into a combination that if a journeyman shoemaker 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 journey- man who had violated their rules, that they would refuse to work for him and would quit his employment, and carried such com- bination into 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 dis- charge such journeyman from his employ, that the parties thus conspiring were guilty of a misdemeanor and punishable accord- ingly.' It was also held that an association among the whole or a large portion of the proprietors of boats on the Erie and Oswego canals, under an agreement to regulate the price of freight and passage by a uniform scale, to be fixed by a committee chosen by themselves, and to divide the profits of their business according to the number of boats employed by each, with provisions pro- ■ hibiting the members from engaging in similar business out of the State, i^ illegal. The tendency of such an agreement is to increase prices, to prevent wholesome competition, and to diminish the public revenue, and is against public poUcy.^ A conspiracy to manufacture base and spui-ious indigo, with a fraudulent intent to sell the same as good and genuine indigo, is indictable.* It is provided by our statute that in trials for conspiracy in those cases where an overt act is required by law to consumate the offence, no conviction shall be had unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts so alleged be proved on the trial; but other " Peo. V. Fisher, 14 Wend., 11 ; Contra, 4 Met., 111. ' Stanton v. AUen, 5 Den., 534. See also Hooker v. Vandewater, 4 Den, 349. • Com. V. Judd, 2 Mass. 329. CHAMPERTY. 37 overt acts not alleged in the indictment may be given in evidence on the part of the prosecution.^ Whether a confederacy, agreement or understanding exists, may be left to reasonable inference; it may be collected from all the circumstances of the case. K a series of acts is to be per- formed with a view to produce a particular result, he who aids in the performance of any one of these acts, in order to bring about this result, knowing what the object is, must have the inten- tion to effectuate the end proposed; and if he operates with others, knowing them to have the same design, there is in fact an agree- ment between him and them; his criminal intent is not to be dis- tinguished from the intent of those who first formed the plan of the conspiracy.^ A conspiracy to commit a misdemeanor, is not merged in the misdemeanor the result of the conspiracy when committed; but where the crime perpetrated is of a higher grade of offence than a misdemeanor, the misdemeanor is merged in the crime.^ To constitute the offence of conspiracy, there must be a conspiracy to cheat and defraud some person of his property. Although there may have been an intention to defraud, yet if the means used could not possibly have that effect, the offence is not complete.* Champerty. — ^This has been defined to be a species of maintain- ance being a bargain with a plaintiff or defendant, campum par- tire to divide the land or other matter sued for between them, if "they prevail at law, whereupon the champertor is to carry on the party's suit at his own expense.* And where an attorney pur- chases from his client the whole subject matter of controversy for his own benefit, it is champerty, though he has seme interest of his own.^ Our statutes contain the following provisions in regard to the buying of claims and demands, for the purposes of prosecution : " No attorney, counsellor or solicitor shall, directly or indirectly, buy, or be in any manner interested in buying, any bond, bill, promissory note, bill of exchange, book debt or other thing in > 2 R. S., 735, § 19. » 7 Bost. Law Rep., 58. » Peo. V. Mather, 4 Wend., 229. * March ». Peo., 7 Barb., 391. " 4 Black. Com., 135. ' Arden v. Patterson, 5 John. Ch., 44. See Maintenance, and 2 R. S., 691, §§ 5, 6 ; also buying lands in suit when the grantor is out of possession, ante. 38 OF MISDEMEANORS. action, with the intent and for the purpose of bringing any suit thereoa ; and no attorney, counsellor or solicitor, by himself or by or in the name of another, either before or after suit brought, shall lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money on a.ny bond, bill of exchange, draft or other thing in action, to any person as an inducement to the placing, or in consideration of having placed, in the hands of such attorney, counsellor or solicitor, or in the hands of any other person, any debt, demand or thing in action for collection." "Every attorney, counsellor or solicitor who shall violate either of the above provisions, is to be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by fine or imprison- ment, or both ; and he shall also be removed from office in the several courts in which he is licensed."^ The above provisions of the statute have been held not to apply to a demand purchased with the intent of prosecuting it in the justices court.'-* No justice of the peace or constable shall, directly or indirectly, buy or be interested in buying any bond, note or other demand or cause of action, for the purpose of commencing any suit thereon before a justice ; nor shall any justice or constable, either before or after suit brought, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money or other valuable thing to any person, in consideration of, or as a reward for, or inducement to the placing or having placed in the hands of such justice or constable a,ny debt, demand or cause of action what- ever for prosecution or collection. JSvery justice or constable offending against the above provi- sions, shall be deemed guilty of a misdemeanor, and upon convic- tion, shall be subject to fine or imprisonment, or both, in the dis- cretion of the court ; and every such conviction shall operate as a forfeiture of the office of the justice or constable so convicted.' Disclosing Fact of Indictment Found. — ^No grand juror, con- stable, district attorney, clerk or judge of any court, shall disclose the fact of an indictment having been found against any person for a felony, not in actual confinement, until the defendant in such • 2 E. S., 288, §§ 58, 59, 60. » Goodellt). People, 5 Park., 206. See 3 Wend., 120: 3 Sandf , 696; Laws 1847, ch. 470, § 47, vol. 2, p. 647. » . w?. '2:R. S.,267, §W1, DISOBEYING COMMANDS OF OFFICERS, ETC. 39 indictment shall have been arrested thereon ; and every person violating the above provision is guilty of a misdemeanor.^ The above section does not extend to any district atfomey, sheriff or other officer making any such disclosure by the issuing, or in the execution, of any process in such indictment, or in any other way when it shall become necessary in the discharge of any official duty.' In charging grand juries, it is made the duty of the court to apprise them of the foregoing provision respecting the disclosure of the fact that any indictment has been found.^ Disobeying Commands of Officers to Render Assistance in Griminal Oases. — Every person willfully and unlawfully dis- obeying the commands oi sheriffs, constables, marshals or other persons lawfully authorized to execute any criminal process, for assistance in executing the same, or in securing and conveying to the proper jail or before the proper magistrate any person duly arrested by them, are to be deemed guilty of a misdemeanor.* Election Laws, Violation of. — If any person shall, by bribery, menace or other corrupt means or device whatsoever, either directly or indirectly, attempt to influence any elector of this State in giving his vote or ballot, or deter him from giving the same, or disturb or hinder him in the free exercise of the right of suffrage at any election within this State, held pursuant to chapter six of part one of the Eevised Statutes, entitled " Of elections for other than militia and town officers," and shall thereof be convicted, such person so offending and convicted shall be adjudged . guilty of a misdemeanor, and be fined or imprisoned according to the discretion of the court before which such conviction shall be had; such fine in no case to exceed five hundred dollars, nor such imprisonment one year.^ If any officer or other person shall call out or order any of the militia of this State, to appear and exercise on any day during any election to be held by virtue of the above mentioned chapter, or within five days previous thereto, he shall forfeit the sum of five hundred dollars for every such offence." •* E. S., 726, § 39. " Id., § 40. " Id., § 41. ' 2 E. S., 746, § 30. » 5th ed. R. S., vol. 1, p. 448, § 4. = Id., § 5. ■ 40 OF MISDEMEANORS It shall not be lawful for any candidate for any elective office, •with intent to promote his election, or for any other person, with intenrto promote the election of any such candidate, either, 1st. To provide or furnish entertainment, at his expense, to any meet- ing of electors previous to or during the election at which he shall be a candidate; or, 2d. To pay for, procure or engage to pay for, any such entertainment; or, 3d. To furnish any money, or deliver any property, or otherwise compensate any person for procuring the attendance of voters at the polls; or, 4th. To engage to pay any money, or deliver any property, or otherwise compensate any person for procuring the attendance of voters at the polls; or, 5th. To contribute money for any other purpose intended to promote an election of any particular person or ticket, except for defraying the expenses of printing and the circulation of voties, handbills and other papers previous to any such election, or for conveying sick, poor or infirm electors to the polls.^ Where the defendant agreed to pay the plaintiff one thousand dollars in consideration that the latter, who had built a log cabin, » would keep it open for the accommodation of political meetings, to further the success of certain persons nominated for members of Congress, it was held that the agreement was illegal and could oot be enforced.^ IJo person shall fraudulently or deceitfully change or alter a ballot of any elector, nor shall furnish an elector any ballot coh. taining more than the proper number of names, or cause any other deceit to be practiced, with intent fraudulently to induce such elector to deposit the same as his vote, and thereby to have the same thrown out and not counted.* It is further provided, that any person offending against the provisions of the act in relation to the violation of the election laws, shall be deemed guilty of a misdemeanor, punishable by fine, not' exceeding two hundred and fifty dollars, or by im^ prisonment, not exceeding six mouths.* If any person shall willfully disobey any lawful command of the board of inspectors of any election, or shall willfully and • 5th ed. R. S., vol. 1, p. 448, § 6. ' Jackson v. Walker, 5 Hill, 27; 7 Id., 387. ' 5th ed. R. S., vol. 1, p. 448, § 7, * Id., § 8. ELECTION LAWS, VIOLATION OP- « 41 without lawful authority obstruct, hinder or delay any elector on his way to any poll where an election shall be held, or while he is exercising or attempting to exercise the right of voting, or shall aid or assist in such obstruction or delay, he shall, on con- viction, be adjudged guilty of a misdemeanor, and be fined in a sum not exceeding two himdred and fifty dollars, and may be imprisoned, in the discretion of the court, for not more than six months.^ Any person who, at any general or special election, or city or charter election, shall knowingly vote, or ofler to vote, in any election district in which he does not reside, except as provided in the above mentioned act, or who shall vote, or offer to vote, more than once at the same election, either in the same or in any other election district, shall, on conviction, be adjudged guilty of a misdemeanor, and punishable by fine, not exceeding two hundred dollars, or by imprisoiiment, not exceeding six months, or by both, as the court may direct.* Every person who shall procure, aid, assist, counsel or advise another to give or offer his vote, at arty general, town, city or charter election, knowing that the person is not duly qualified to vote at the place where the vote is given or offered, and every person who shall procure, aid, assist, counsel or advise another to go or come into any town, ward or election district, for the pui'pose of giving his vote at any general, special, town or city election, knowing that the person is not duly qualified to vote in such town, or ward, or election district, is also guilty of a misde- meanor, and is to be puiiished as last aboVe provided.-' Any person not duly qualified to vote under the laws of this State, who shall knowingly vote, or offer to vote, at any general, special, town or charter election in this State, shall be adjudged guilty of a misdemeanor, and on conviction, shall be imprisoned for a period not exceeding six months, at the disciretion of the court before which the offence is tried.* In case any inspector of election shall knowingly and willfully permit or suffer any person to vote at any election who is not entitled to vote thereat, the said inspector so offending shall, on ' 5th ed. R. S., vol. 1, p. 448, § 9. ' Id., § 10. » Id., §§ 11, 12. ♦ Id., § 13. 42 OF raSDEMEANORS. . conviction thereof, be adjudged guilty of a misdemeanor, and shall be sentenced to pay a fine of five hundred dollars, and be imprisoned in the county jail for six months.* It is further provided, that if any officer on whom any duty is enjoined by chapter six of part one of the Eevised Statutes, entitled-" Of elections for other than militia and town officers," or in any statute relating to elections, shall be guilty of a'ny willful neglect of such duty, or of any corrupt conduct in the execution of the same, and be thereof convicted, he shall be deemed guilty of a misdemeanor, punishable by fine or imprison- ment, the fine in no case to exceed the sum of five hundred dollars, and the imprisonment the term of one year.^ Escajpe from ari Officer, Aiding an. — Every person who shall aid or assist any prisoner in escaping, or in attempting to escape from the custody of any sheriff, coroner, marshal, constable or other officer or person who shall have the lawful charge of such prisoner upon any charge shall, upon conviction, be punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.^ H scape from Jail, Aiding in. — Every person who, by any means whatever, shall aid or assist any prisoner lawfully com- mitted to any jail or place of confinement, in exection of any con- viction, or on a charge for any criminal offence other than felony, whether such escape be effected or not, or who shall convey into such jail or place of confinement, any disguise, instrument, arms, or other thing, proper or useful to facilitate the escape of any pris- oner, with intent to facilitate the escape of any prisoner so com- mitted, whether such escape shall be effected or attempted, or not, shall, upon conviction, be imprisoned in a county jail not exceeding one year, or by fine not exceeding five hundred dollars, or both such fine and imprisonment.* But if any aid and assist- ance prohibited by the last sections be rendered by any prisoner detained for any crime in the same jail, or place of confinement, with the intent of facilitating his own escape, the punishment ' 5th ed. R. S., vol. 1, p. 433,. § 41. ' Id., p. 447, § 3. ' 2 R. S., 684, § 20. See Escapes, vol. 1, p. 556. • 2 B. S., 684, § 18, ESCAPE FROM JAILS, ATTEMPTS, ETC. 43 of such prisoner shall not exceed that prescribed by law, upon a conyiction for his own escape,^ Escajpefrom Jails, Attempts. — ^Every person lawfully impris- oned in a county jail, for any cause whatever, who shall forcibly break the prison, with intent escape therefrom, or who shall attempt, by any force or violence, to escape from such. prison, although no escape be effected shall, upon conviction, be impris- oned in a county jail not exceeding one year.® • The rule was laid down by Sir William Eusseli, that, if an innocent person be committed by a lawful mittimus, on such a suspicion of felony, actually done by some other, as will justify his imprisonment, though ie be neither indicted nor appealed, he is within the statute if he break the prison, for he was legally in ciistody, and ought to have submitted to it until he had been dis- charged by due course of law. But if no felony at all were done, and the party be neither indicted nor appealed, no mittimus for such a supposed crime will make him guilty, within the statute, by breaking prison, his imprisonment being unjustifiable. And, although a felony were done, yet, if there were no just cause of suspicion, either to arrest or commit the party, his breaking the prison will not be felony if the mittimus be not in such form as . the law requires, because the lawfulness of his imprisonment in such such case depends wholly on the mittimus; but if the party were taken up on such strong causes of suspicion as will be a good justification of his arrest and commitment, it seems that it will be felony in him to break the prison, though he happen to have been committed by an informal warrant.^ And it has been held in Connecticut that a person confined in a jail by a void warrant may lawfully liberate himself by breaking the prison, using no more force than is necessary to accomplish this object.* Excise Law, Violalion of. — The improper granting of licenses to sell intoxicating liquors by the commissioners of excise is declared by statute to be a misdemeanor. So, also, the selling or giving of liquors or wines to Indians or apprentices, knowing ' 2 R. S., 684, § 19. • ' 2 R. S., 685, § 27. See Escapes and Prison Breach, tit. Felonies, ante, vol. 1, p. 556. » 1 Russ. on Or:, 428; 2 Hawk. P. C, ch. 18, §§ 5, 6, 7-15; ch, 16, § 13, ei seq.; 2 Inst., 590; Sum., 109; 1 Hale, 610, 611. * State V. Leach, 7 Conn., 752. 44 OF MISDEMEANORS. or having reason to believe him to be such, without the consent of his master or mistress, or to. any minor, under the age of eighteen years, without the consent of his father or mother or guardian. So, also, to sell intoxicating liquors to habitual drunk- ards and paupers, or upon Sundays or election days. So, also, to adulterate or sell intoxicating liquors that have been adulterated with poisonous or deleterious drugs or mixtures.^ The section of the excise act which declares it a misdemeanor for an inn, tavern or hotel keeper, or person licensed to s^U liquors, to sell or give away any intoxicating liquors or wines on Sunday is not applicable to persons other than those designated; and it is not, therefore, an indictable offence, under the statute, to sell or give away intoxicating liquors or wines on Sunday, when the act is done by a person who is not licensed to sell liquors, or who is not the keeper of an inn, tavern or hotel.'^ Emhrawry. — (See " Jurors, Attempts to Corrupt," etc.) ■ Extortion. — (See " Official Misconduct.") Engrossing, Forestalling and Regrating. — By engrossing, at common law, is meant the buying up of large quantities of pro- visions, with intent to raise the market price by creating a scarcity. Forestalling consists in bujdng up merchandise on the way to market, or in dissuading persons from bringing merchan- dise to market, or in persuading them to enhance the price when there. Regrating is the buying up of provisions in any market, and selling them again in the same market or within four miles of it. The commissioners appointed by the Legislature in their draft of a penal code remark that the tendency of our law is towards liberty in matters of trade, and they have accordingly omitted to prescribe any penalty for these offences in the draft submitted by them, unless some false or fraudulent means are employed to affect the market price.' Forcible Entry and Detainer. — Blackstone says that a forci- ble entry and detainer is committed by violently taking or keep- ing possession of lands and tenements, with menaces, force and arms, and without the authority of law.* At the common law a ' Laws 1857, ch. 628, vol. 2, p. 405. ' Peo. V. Page, 3 Park., 600. » Draft Penal Code, § 469. • 4 Black. Com., 148. • FORCIBLE ENTRY AND DETAINER, 45 forcible entry must regularly be made, with a strong hand, with unusual weapons or with menace- of life or limb; it must hare been accompanied with some circumstances of actual violence or terror, and an entry which had no other force than such as is implied by the law in every trespass was not indictable as such.^ And it was said that whenever a man, either by his behavior or his speech ai the time of his entry, gives those who are in pos- session of the tenements which he claims just cause to fear that he will do them some bodily hurt if they will not give way to him, his entry is deemed forcible, whether he cause such a terror by carrying with him an unusual number of servants or by arm- ing himself in such a manner as plainly intimates a design to back his pretensions by force, or by actually threatening to kill, maim or beat those who shall continue in possession, or by giving out such speeches as plainly imply a purpose of using force against those who shall make any resistance.'' Our statute provides that no entry shall be made into any lands or other possessions but in cases where entry is given by law, and in such case only in a peaceable manner, not with strong hand or with multitude of people.* A forcible detainer has been defined to be where a man who enters, peaceably, afterwards detains his possession by force, and the same circumstances of violence or terror which will make an entry forcible will also make a detainer forcible.* And it was said by one of the older authors, that it seemed to follow that who- ever keeps in his house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to his former pos- sessor if he dare return, is giiilty of a forcible detainer, though no attempt be made to re-enter. And it has been said that he also will come under the like construction who places meu at a distance from the house, in order to assault any one who shall attempt to make entry into it, and that he is in like manner guilty who shuts his doors against a justice of the peace coming to view the force, and obstinately refuses to let him come in.^ This doctrine will apply to a lessee who, after the end of his » 1 Hawk. P. C, ch. 64, § 25; Dalt., 300; Bac. Abr., tit. Fore-entry, (D.) See 10 Mass., 403 ; Peo. v. Smith, 24 Barb., 16. ' 1 Hawk. P. C, ch. 64, § 27. • 2 B. S., 507, § 1. - Kline v. Rickert, 8 CoW.^ 360. ' 1 Hawk. P. C, cb. 64; § 3'0. 46 OF MISDEMBANOBS. term, keeps arms in his house to oppose the entry of the lessor, though no one attempt an entry, or to a lessee at mil; detaining with force after the will is determined.^ Where the accused having entered peaceably, said to the former possessor, " It will not be well for you if you ever come upbn the premises again, by day or night," it was left to the jury whether this was a threat of personal violence, and therefore a forcible detainer. They found it Was, and on motion for a new trial it was refused.^ The statute of this State declares that upon the conviction of a defendant upon any indictment for forcible entry or forcible detainer, found in any cdurt of sessions or in any court of oyer and terminer, such court may award restitution iti the same man-" ner as a judge upon a verdict being rendered before him.^ False Firm Names. — No person shall transact business in the name of a partner not interested in his firm, and where the desig- nation " and company," or " & Co." is issued, it shall represent an actual partner or partners. Any person offending against the provisions of the above section shall, upon conviction thereof, be deemed guilty of a misdemeanor, and be ptmished by a fine not exceeding one thousand dollars.* The above provisions shall not apply to commercial copartner- ships located and transacting business in foreign countries, but they mdy use their styles Or firms of their houses in this State.* Foreign Convicts, Bringing of. — ^The niaster or commander of any ship, boat or other vessel arriving from a foreign country, who shall, knowingly, bring any person, either as a passenger or hand, into any port, city, harbor or place T^thin this State, with intent to land or to permit to land such passenger oi" hand, which passsenger or hand shall have been, or shall be a foreign convict, of any felony, which, if committed in this State would be pun- ishable therein, shall be considered for such offence guilty of a misdemeanor, and shall be punished by fine or imprisonment; but such fine shall not exceed three htmdred dollars, ncfr shall the imprisonment exceed one year f61- 6ach offence." The court • Eex t). Oakley, 4 B. & Ad., 307. ' Kline v. Eickert, 8 Cow., 226. See 1 Gush., 487. = 2R. S., 511, §23. • 2 R. S., 696, § 42, 43; Laws 1833, oh. 281, § 1. • Id., § 44. ° Id., § 40; Laws 1833, ch. 230/ § 1. FALSE IMPRISONMENT BY OFFICERS, ETC. 47 before whom such conviction shall take place, may remit the J)imishment referred to in the above section, if satisfied that the said commander or master has reconveyed such convict or con^ victs to the place from whence he took them, on pajnoaent of the costs of prosecution.^ False Imprisonment hy Officers, etc. — If any sheriff or other officer, or any person pretending to be an officer, shall, under the pretence or color of any process, or other legal authority, arrest any person, or detain him against his will, or seize or levy ilpoh any property, or dispossess any one of any lands or tenements without due and legal process, or other lawful authority therefor, he shall, upon conviction, be deemed guilty of a misdemeanor.^ Words are sufficient to constitute an imprisonment, if they impost a restraint upon the person, and the prosecutor is accordingly restrained, for he is not obliged to incur the risk of personal violence and insult, by resisting until actual violence be used.^ Where a bailiff met a person on horseback, and said to him: "You are my prisoner," upon which he tm-ned back and submit-* ted, this was held to be an arrest, though the bailiff never laid hand upon him. But if, on the bailiff's saying these words he had fled, it would have been no arrest, unless the bailiff had laid hold of him.* Fornication is not indictable tinder our law. Fraudulent Conveyances.-^^Y&ry person being a party to any conveyance or assignment of aiiy estate or interest in lands, goods or things in action, or of any rents or profits issuing therefrom, or to any charge on any such estate, interest, rents or profits toiade or created with intent to defraud, prior or subsequent pur- chasers, or to hinder, delay or defraud creditors or other persons; and, every person being privy to, or knowing of such conveyance, assignment or charge, who shall willingly put the same in use, as having been made in good faith shall, upon conviction, be adjudged guilty of a misdemeanor.^ Factors and Agents Fraudulently Selling or Disposing of Property. — Every factor or agent who shall deposit any mer- • 2K. S., 696, §41. ' 2 R. S., 692, §11. ' 3 Stark Ev., 1448. ' Bull N. P., 62 ; 1 C. & P., 153 ; 2 Id., 361 ; Ryan & Moo., 321 ; Gold v. BisaeU, 1 Wend., 210. » 2K.'S., 59(5, §3. 48 OF MISBEMBANORS: chandise entrusted or consigped to him, or any docuinetit sO p6gs sessed or entrusted as aforesaid, as a security for any money borrowed, or negotiable instrument receivedj by such factor or agent, and shall apply and dispose of the same to his own use, contrary to good faith, and with intent to defraud the true owner; and every factor or agent who shall sell any merchandise entriisted or consigned to- him in the like manner, and with the like fraudu' lent intent, and every other person who shall, knowingly connive with, or aid or assist any such factor or agent in any such fraudU'' lent deposit or sale, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by fine and imprisonment, at the discretion of the court, in which such con-' viction shall take place.^ Ferrying Without a License.—^'iS. any person (except Within the counties of Essex and Clinton, the counties of Orange, Eockland and Westchester, and the counties in the first senate district), shall use any ferry for transporting across any river, stream or ,lake any person, or any goods, chattels or efiects, for profit or hire, unless authorized in the manner directed in the Eevised Statutes, such person shall be considered guilty of a misdemeanor, and, on conviction, shall be subject to such fine, for the use of the county, as the court may adjudge, not exceeding twenty-five dol' lars for each offence.* The common pleas of Niagara have power to grant licenses to keep ferries on the Niagara river, although the jurisdiction of the State extends only to the centre of the river. Consequently, to maintain a ferry upon that river, for transporting across the same, persons or goods for hire or profit, unless authorized in the manner prescribed by law, will subject the offender to pimish* ment as for a misdemeanor.* A person having a right of ferry, granted under the act to regulate ferries within this State, cannot maintain an action on the case for the disturbance of his right. His only remedy is for the penalty given by the statute.'' Ferry Recognizance, Violation of. — Every person who shall violate the condition of a recognizance given upon a license to ^ 1 R. S., 774, § 7. See Warehousemeiij &c., post. ' 1 R. S., 527, § 8. • Peo. 1). Babcock, 11 Wend., 587. * Almy V. Harris, 5 John., 175. ' FIRING WOODS, ETC. 49 ferry shall be considered guilty of a misdemeanor, and, on con- viction, shall be subject to such fine as the court may adjudge, not exceeding twenty-five dollars for each offence; and, on proof of such conviction, the bounty court shall direct the recognizance entered into by such person to be estreated for the use of the people of this State.* Firing Woods, &c. — ^Every person negligently setting fire to his own woods, or negligently suffering a fire kindled upon his own wood or fallow land to extend beyond his own land, shall forfeit treble damages to the party injured thereby, and shall also be deemed guilty of a misdemeanor, and on conviction, shall be punished by fine or imprisonment, or both, in the discretion of the court ; such fine not to exceed one thousand dollars, and such imprisonment not to exceed one year.* Whenever the woods ia any town shall be on fire, it shall be the duty of the justices of the peace, the supervisor and the com- missioners of highways of such town, and each of them, to order out such and so many of the inhabitants of such town liable to work on the highways, and residing in the vicinity of the place where such fire shall be, as they shall severally deem necessary, to repair to the place where such fire shall prevail, and there to assist in extinguishing the same, or in stopping its progress ; and if any person so ordered to repair to and assist in manner afore- said, shall refuse or neglect to comply with any such order, he shall forfeit and pay the sum of fifty dollars, and shall also be deemed guilty of a misdemeanor, and on conviction, shall be pun- ished by fine or imprisonment, or both, at the discretion of the court ; such fine not to exceed one hundred dollars, and such imprisoninent not to exceed sixty days.^ The burning of a coal kiln in the county of Suffolk, except during the months of December, January and February, is also a misdemeanor.* Frauds in the Use of False Stamps, Brands, Labels or Trade Marks. — Any person or persons who shall knowingly and will- fully forge or counterfeit, or cause to procure to be forged or •■ 1 R. S., 527, § 7. ' 1 R. S., 697, § 1. • Id., §§ 2, 3. ' Laws 1849, ch. 282, § 1. C. p. Vol. II— 4. 50 OF MISDEMEANORS. counterfeited, any representation, likeness, similitude, copy or imitation of the private stamp, brand, wrapper, label or trade mai'k usually affixed by any mechanic, manufacturer, druggist, merchant or tradesman to and upon the goods, wares, merchan- dise or preparation of such mechanic, manufacturer, druggist, merchant or tradesman, with intent to pass off any work, goods, manufacture, compound or preparation to which such forged or counterfeited representation, likeness, similitude, copy or imita- tion is affixed or intended to be affixed as the work, goods, manu- facture, compound or preparation of such mechanic, manufacturer, druggist or tradesman, shall, upon conviction therefor, be deemed guilty of a misdemeanor, and shall be punished by imprisonment in the county jail for a period of not less than six months, nor more than twelve months, or fined not more than five thousand dollars. Any person or persons who shall, with intent to defraud any person or persons, body corporate or politic, have in his or their possession any die or dies,.plate or plates, brand or brands, engrav- ing or engravings, or printed labels, stamps, imprints, wrapper or trade marks, or any representation, likeness, similitude, copy or imitation of the private stamp, imprint, brand, wrapper label or trade mark usually affixed by any mechanic, manufacturer, drug- gist, merchant or .tradesman to or upon articles made, manufac- tured, prepared or compounded by him or them, for the purpose of making impressions or selling the same when made, or using the same upon any other article made, manufactured, prepared or compounded, and passing the same off upon the community as the original goods, manufactures, preparations or compounds of any other person or persons, or who shall so ia fact sell or use the same, or who shall wrongfully and fraudulently use the genuine stamp, brand, imprint, wrapper, label or trade mark, with intent to pass off any goods, wares, merchandise, mixtures, compounds or other article not the manufacture of the person or persons to whom such stamp, brand, imprint, wrapper, label or trade mark properly belongs, as genuine and origuial, shall, upon conviction thereof, be deemed guilty of a misdemeanor, and shall be punished by imprisonment in the county jail not less than six months nor more than twelve months, or be fined not more than five thousand dollars. Any person who shall vend or keep for sale any goo4s, mer- FRAUDS IN THE USE OF FALSE STAMPS, ETC." 51 chandise, mixture or preparation upon which any forged or coun- terfeited stamps, brands, imprints, wrappers, labels or trade marks shall be placed or affixed, and intended to represent the said goods, merchandise, mixture or preparation as the genuine goods, merchandise, mixture or preparation of any other person or persons, knowing the same to be counterfeit, shall, upon con- viction thereof, be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding five hundred dollars in each case so offending, and shall also be liable in a civil action to the person or persons whose goods, merchandise, mixture or prepa- ration is counterfeited or imitated, or whose stamps, brands, imprints, wrappers, labels or trade marks are forged, counter- feited, placed or affixed, for all damages such person or persons may or shall sustain by reason of any of the acts in this section mentioned, and may be restrained or enjoined by any court of competent jurisdiction from doing or performing any of the acts above mentioned. Any person or persons who shall, with intent to defraud any person or persons, body corporate or politic, knowingly affix, or cause to be affixed, to or upon any bottle, case, box or package containing any goods, manufacture, preparation or compound, any stamp, brand, label, wrapper, imprint or mark which shall desig- nate such goods, manufacture, preparation or compound, either wholly or in part, by a word or words which shall be wholly or in part the same to the eye, or in sound to the ear, as the word or words or some of the words used by any other person or per- sons for designating any goods, manufacture, preparation or com- pound manufactured or prepared by or for such other person or persons ; or who shall knowingly sell or expose or offer for sale any such bottle, case, box or package with any such stamp, brand, label, wrapper, imprint or mark aflSxed to or upon it, shall, pro- vided such person or persons so affixing or causing to be affixed any such stamp, brand, label, wrapper, imprint or mark, or so selling or exposing or offering for sale any such bottle, case, box or package, shall not have been the first to employ or use such words to designate wholly or in part any goods, manufacture, preparation or compound, upon conviction thereof, be deemed guilty of a misdemeanor, and shall be punished by imprisonment in the county jail not less than six months nor more than twelve months, or be fined not more than five thousand dollars ; and 52 » OF MISDEMEANORS. shall also 1)6 liable to the party aggrieved in the penal sum of one hundred dollars for each and every offence, to be recovered by him in any court of law in this State.^ Gaming-houses, Oommon. — (See " Nuisance.") Qaming. — ^Any person wlio shall, by any fraud or unlawful device, or ill-practice whatsoever, while playing at any game, or while bearing a share in the wagers played for, or while betting on the sides or hands of such as play, win; or acquire to himself or to any other, any sum of money or valuable thing, shall be guilty of a misdemeanor, and on conviction, shall be deemed infamous.^ Every person who shall win or lose at play, or by betting any time the sum or value of twenty-five dollars, or upwards, within the space of twenty-four hours, shall be deemed guilty of a mis- demeanor, and on conviction, shall be fined not less than five times the value or sum so lost or won, which, after deducting such reasonable charges of. the prosecutor and witnesses as the court shall allow, shall be paid to the overseers of the poor of the town where the offence was committed, for the benefit of the poor.* Gambling, Keeping Place for. — ^If any person shall keep a room, building, arbor, booth, shed, tenement, boat or. float, to be used or occupied for gambling, or shall, knowingly permit the same to be used or occupied for gambling, or if . the owner, superintendent or agent of any room, building, arbor, booth, shed, tenement, boat or float, shall rent the same, to be used or occupied for gambling, he shall, on conviction thereof, be fined in any sum not less than fifty, nor more than five hundred dollars.* Gambling, Permitting of by Owner, etc., of Boat or Float. — If any commandant, owner or lessee of any boat or float, shall, knowingly permit any gambling for money or property on such boat or float, and shall not, upon his knowledge of the fact, immediately prevent the same, he shall, upon conviction thereof, ■ Laws 1862, ch. 306, p. 513; the act of May 14, 1845, ch. 279, and amenda- tory act, Laws of 1850, ch. 123, repealed. Id., § 5. Vide 25 Barb., 76-417; 23 Id., 604; 3 Sandf., 253; 11 Paige, 293. As to what are "trade marks,"' see Upton on Trade Marks, and Abbott's Digest, tit. Trade Marks • 1 E. S., 662, § 11. ' Id., § 13. * Laws 1851, ch. 504, § 1 ; 1 R. S., 664, § 22. GAS METER, INJURING, ETC. i 53 be held responsible for the money or property so lost, and fined in any sum not more than five hundred dollars.^ Gas Meter, Injuring and Making Pipes Around, etc. — Any person who, with intent to injure or defraud any gas company, body corporate or individual, shall make, or cause to be made, any pipe, tube or other instrument or contrivance, or connect the same, or cause it to be connected with any main service pipe, or other pipe, for conducting or supplying illuminating gas, in such manner as to connect with, and be calculated to supply illuminat- ing gas to any burner or orifice, by or at which illuminating gas is consumed around or without passing through the meter pro- vided for the measuring and registering the quantity of gas there consumed, shall be guilty of a misdemeanor, and upon conviction, shall be punished by imprisonment not exceeding six months, and by fine not exceeding two hundred and fifty dollars.^ And any person who, with intent to injure or defraud any gas com. pany, body corporate or individual, shall willfully injure, alter, obstruct or prevent the action of any meter provided for the purpose of measuring and registering the quantity of illuminat- ing gas consumed by, or at any burner, orifice or place, or cause or procure any such meter to be injured or altered, or the action thereof to be obstructed or prevented, shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by impris- onment not exceeding six months, and by fine not exceeding tT^ro hundred and fifty dollars.' Gas Tar, Throwing in Certain Waters. — ^It shall not be lawful for the manufacturers of gas, nor for any other person, to throw or deposit any gas tar or refuse of the gas houses or factories, in the counties of New York, Queens or Kings, into any public waters, river or stream, nor into any sewer or stream running or emptying into any such public waters, river or stream; and who- ever shall ofiend against the above provisions shall be deemed guilty of a misdemeanor.* Hops, Adulteration of. — Every person who shall intermix with any hops any foreign or improper substances, or in any manner adulterate their quality, shall be guilty of a misdemeanor, pun- ' Laws 1851, ch. 504, § 7; 1 R. S„ 664, § 28. ' Laws 1854, ch. 109, § 1, p. 262. • Id., § 2. ^ 2 R. S., 696, § 47; Laws 1845, ch. 201. 54 OF MISDEMEANOKS.' ishable by fine or imprisonment, or both, in the discretion of the court in which he shall be tried.^ Inn and Hotel Keepers, Frauds on. — Every person who shall, at any hotel or inn, order and receive, or cause to be furnished, any food or accommodation, with intent to defraud the owner or proprietor of such hotel or inn out of the value or price of such food or accommodation; and every person who shall obtain credit at any hotel or inn by the use of any false pretence or device, or by depositing at such hotel or inn any baggage or property of value less than the amount of such credit, or of the bill by such person incurred; and any person who, after obtaining credit or accommodation at any hotel or inn, shall abscond from such hotel or inn, and shall surreptitiously remove his baggage or property therefrom, shall, upon conviction, be adjudged guilty of a mis- demeanor.^ This offence was known at the common law as the masterful taking of meat and drink, without payment, and was called by the name of "sorning."' Ice, Cutting, in Hudson river. — ^All persons and incorporated companies cutting ice in, or removing the same from, the waters of the Hudson river, in this State, and the tide waters of the Kondout and Catskill creeks, are required to surround the cut- tings and openings made by them or their employes with a fence of bushes or other guards, at least four feet in height, above the surface of the ice, sufficient to warn all persons of such cuttings and openings. Such bushes and guards are to be erected at or before the time of commencing such cuttings and openings, and are to be maintained and kept up by such persons or incorporated companies until ice shall have again formed in such cuttings and openings to the thickness of at least six inches. Any person violating any of the above provisions is guilty of a misdemeanor, and, on conviction thereof, shall be imprisoned in the county jail for the period of not less than five nor more than thirty days, or be fined in the sum of not less than ten nor more than one hun- dred dollars, or by both such fine and imprisonment.? Jurors, Attempts to Corrupt. — At the common law the ofience ' 1 R. S., 566, § 14. = Laws 1867, ch. 677, § 1, vol. 2, p. 1727. ' 2 Hume on Crimes, 345. * Laws 1860, ch. 20, p. 25. JUROES, IMPROPER CONDUCT IN DRAWING, ETC. 65 of embracery consists in such practices as tend to affect the administration of justice by improperly working upon the minds of jurors. It seems clear that any attempt whatsoever to cor- rupt, or influence, or instruct a jury in the cause beforehand, or in any way to incliae them mqre favorably to the one side than to the other, by money, promises, letters, threats or persuasions, except only by the strength of the evidence and the arguments of the counsel in open court at the trial of the cause, is a proper act of embracery, whether the jurors on whom such attempt, is made give any verdict or not, or whether the verdict given be true or false.^ Besides the punishment provided in the bribery act,^ our statutes contain the following enactment upon this subject: Every person who shall attempt improperly to influence any juror, in a civil or criminal case, or any one summoned or drawn as such juror, or any one chosen an arbitrator or appointed a referee in relation to any cause or matter pending in the court for which such juror shall have been drawn, or summoned or pending before such arbitrator or such referee, shall, upon con- viction, be adjudged guilty of a misdemeanor.^ Jurors, Improper Conduct in Drawing, etc. — If any person whose duty it shall be to assist at the drawing of any jurors to attend at any court, shall designedly put or consent to the putting upon any list of jurors, as having been drawn, any name which shall not have been drawn for that purpose in the manner prescribed by law, or shall omit to place on such list any name that shall have been drawn in the manner prescribed by law, or shall sign or certify any list of jurors as having been drawn which was not drawn according to law, or shall be guilty of any other unfair, partial or improper conduct in the drawing of any such list of jurors, he shall, upon conviction, be adjudged guilty of a misdemeanor.* Jurors, Improper Conduct of. — li any person drawn, sum- moned or sworn as a juror in any case, shall make any promise or agreement to give a verdict for or against any person accused ' 2 Arch. Cr. Pr., 7th ed., 570, note; 1 Hawk. P. C, ch. 86, §§ 1, 5; 4 Bla. Com., 140. ' Ante, vol. 1, p. 512. ■ 2 R. S., 693, § 16. * Id., § 18. 56 Of MISDEMEANORS of any offence, or for or against any party to any civil suit, or shall receive any paper, evidence or information from any one in relation to any matter or cause for the trial of which he shall be sworn, without the authority of the court or officer before whom such juror shall have been summoned, and without immediately disclosing the same to such court or officer, he shall, up'on con- viction, be adjudged guilty of a misdemeanor.^ Jails, Selling and Bringing Liquor 7/i 4 Wend., 394. • Id.; Wickham v. Cohklin, 8 John., 220. 72 OF MiSDEMEANOES. within the rule.^ The offence consists in the unlawful upholding or taking in hand of quarrels or sides to^ the disturbance or hiadrance of common right; and it is laid down that, whoever assists another with money to carry on his cause, as by retaining one to be of counsel to him, or otherwise bearing him out in the whole or in part of the ^pense of the suit, may properly be said to be guilty of an act of maintenance."-' Nuisance. — A nuisance is anything that works hurt, inconveni- ence or damage^ and whatever is injurious to a large class of the community is a nuisance at common law.^ Blackstone and Coke divide nuisances into two kinds; public or common nuisances which affect the public, and private nui- sances, which are defiined as anything done to the hurt or annoy- ance of the lands, tenements or hereditaments of another.* Public nuisances are the subject of criminal jurisprudence, while the appropriate remedy for private nuisances are a civil proceeding by the party aggrieved thereby. The following are instances of cases where a nuisance was held not indictable, on account of its not -being a public nuisance : Thus, where a tinman was indicted for carrying on his trade in the neighborhood of Clifford's Inn, to the common nuisance, &c., and it was proved that the noise he made was a great annoyance to some attorneys having chambers in the inn, and prevented them from attending to their business. Lord Ellenboeough held that the evidence did not sustain the indictment, the nui- sance proved being a private nuisance merely.^ So where a man was indicted for erecting a coke oven, which threw out great quantities of smoke and vapor, which proved offensive to the inhabitants of the houses in the neighborhood, but as it did^not affect their health, or render their houses unin- habitable, or eveu lower the value of their houses, it was held not a public nuisance.^ The commissioners of the penal code, in their draft submitted ' Thallhimer v. Brinkerhoof, 3 Cow., 623. ' Water, notes to Arch. Or. Pr., vol. 2, p. 1072 ; 1 Hawk. P. C, c. 83, § 4. See Champerty and Barratry. ' Lansing c. Smith, 8 Oow., 146. • 2 Inst., 406; 3 Bla. Com., 216. ' R. V. Lloyd, 4 Esp., 200. • R. V. Neville, Poake, 126; see R. «. Cross, 3 Camp. 227. NUISANCE. • 73 to the Legislature, present the following definition of a nuisance, and cite authorities which support their definition, viz : A public nuisance is a criiae against the order and economy of the State, and consists in unlawfully doing any act, or omitting to perform any duty required by the public good, which act or omission either (1) annoys or injures the comfort, repose, health or safety of any considerable number of persons, or (2) offends pub- lic decency, or (3) unlawfully interferes with, obstructs, or tends to obstruct any lake or any navigable river, bay, stream, canal or basin, or any public park, square, street or highway, or (4) in any way renders life or the use of property uncomfortable.' What was at common law a nuisance, is not made otherwise by a statute prohibiting it and giving a new remedy.^ (a) Bawdy Houses. — The keeping of a bawdy house is a com- mon nuisance, as it endangers the public peace by drawing together dissolute and debauched persons, and has also an apparent tendency to corrupt the morals of both sexes by such an open profession of lewdness.' A bawdy house is defined to be a house of ill-fame, kept for the resort and convenience of lewd people of both sexes. The residence of an unchaste woman, a single prostitute, does not become a bawdy house because she may habitually admit one or many men to an illicit cohabitation with her.* Although a person be only a lodger, and have but a single room, yet if she makes use of it to accommodate people in the way of a bawdy house, it will be the keeping of a bawdy house as much as if she had a whole house.* The rule of law, which presumes that the wife, if in company with her husband, acts under his coercion, does not prevail in indictments for this offence, which is one in which &feme covert, may be guilty as if she were sole.^ In this State, the court observed that, though a wife may be indicted with her husband, and punished for keeping a house of prostitution; yet the authorities do not state whether she may be convicted or not, in conjunction with her husband for keeping a ■ Draft Penal Code of New York, § 430. » Wetmore v. Tracy, 14 Wend., 250; see 1 John., 78; 7 Hill, 575. ^ Inst., ch. 98 ; Bac. Abr., tit. Nuisance (A) ; Burns' Just., tit. Lewdness and Nuisance; 1 Hawk. P. C, ch. 74, 75, § 6. * State V. Evans, 5 Iredell, 603. • Rex V. Pierson, 2 Ld. Raym., 1197; 1 Salk , 382. " Reg. V. Williams, 1 Salk., 383; see 1 Met., 151. T4 OF MISDEMBANOES. disorderly house of any other description, and the jury were advised that, unless it appeared clearly and satisfactorily that the wife was cooperating with the husband in some act or acts of dis- order or immorality, she ought to be acquitted.* The renting of a house to a woman of ill-fame, with the intent that it shall be kept for the purposes of public prostitution, has been held not to be an offence punishable by indictment, though it should so be kept afterwards.* It is provided by statute that whenever the lessee of any dwelling-house shall be convicted of a misde- meanor, in keeping the same as a bawdy house, the lease or agree- ment for the letting of such house, shall thereupon become void, and the landlord may re-enter upon the premises so let, and shall have the same remedies to recover possession thereof, as are given by law in case of a tenant holding over after the expira- tion of his lease.^ (5) Disorderly Houses. — At common law the keeper of an inn may be indicted and fined as being guilty of a public nuisance, if he usually harbor thieves or persons of scandalous reputation, or suffer frequent disorders in his house.* So, also, all disorderly inns or ale houses, play houses, unlicensed or improperly con- ducted, booths and stages for rope dancers, mountebanks, and the like, were public nuisances, and liable to be indicted.^ The con- ducting of a house in such a way as to disturb and disquiet the neighborhood, or the carrying on of its business, so as to tend to the corruption of public morals, is indictable as a nuisance; but the keeping of a disorderly house is not indictable, unless it be laid as a common nuisance, because a house may be disor- derly without being injurious to any but its inhabitants, and it is the injury done to the publie which is the essence of the offence. A house kept as a common tippling house, frequented by disorderly persons, who, by their drunkenness, quarreling and noisy dancing, disturb and disquiet the neighborhood, will con- stitute a disorderly house.* (c) Gaming Houses. — Common gaming houses are also nui- sances in the eye of the law, being detrimental to the public, as ' See Martha Boyd's Case, 3 City H. Rec, 134. " Brockway «. Peo., 2 Hill, 558. • 2 R. S., 702, § 39. See 4 Com., 217 ; 3 Sand., 330 ; 3 Park., 544 * 1 Hawk. P. C, ch. 78, § 1. ' 4 Black. Com., 167; 1 Fost., N. H., 343. " Peo. V. Carey, 4 Park., 240-241. NUISANCE. 75 they promote cheating and other corrupt practices, and incite to idleness and avaricious ways of gaining property great numbers whose time might otherwise be employed for the good of the community.* It has been held in this State that a public inn where any instrument or device for gambling, is used and kept as such, either by the landlord 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 of gambling are in the eye of the law persons of ill ' fame.* It has also been held that keeping a billiard room, without allowing any noise to disturb the neighborhood, and without allowing any bets on the game, is not such a nuisance; but a bowling alley, kept for gain or price, is, though it appears that in it gambling is expressly prohibited.* In the case above cited the court said that a billiard house, where no betting was allowed, and where there is no disturbance, cannot be a nuisance, unless it be a tavern where, by statute, the mere keeping of a table is made so. Paying for the table by the rub is not gaming within the meaning of the law which makes a house a nuisance. Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity.* (/■) Eaves Droppers. — These are such persons as listen under walls or windows, or the eaves of a house, to hearken after dis- course, and thereon to frame slanderous and mischievous tales, and they are a common nuisance, and indictable as such.* (e) Common Scold. — A common scold is a public nuisance to her neighborhood, and may be indicted for the offence ; and it is not necessary to give in evidence the particular expressions used; it is enough to prove that she is always scolding.® ■ 1 Hawk. P. C, ch. 76, § 6; Rex v. Dixon,, 10 Mpd., 336 ; Bac. Abr., tit. Nuisances (A). See the statute against keeping places for gambling, ante, vol. 1, p. 589. ' Butler's Case, 1 City H. Rec., 66. ' Lansing o. Smith, 8 Cow., 140; Peo. v. Sergeaiit, 8 Cow., 139; Tanner «. Trustees, &c., 5 Hill, 121. * Peo. «. Sergeant, 8 Cow., 139. ' 4 Bla. Com., 167-168; Burns' Jus., tit. Eavesdroppers; State v. Williams, 2 Term., 108; Com. v. Mergelt, 6 Penn. Law Jour., 228-266. • J'Anson v. Stuart, 1 T. R., 754; 4 Bla. Com., 168; 1 Hawk. P. C, ch. 75, § 14; Com. v. Grey, 13 Pick., 359; Com. o. Davis, 11 Pick., 432; 9 Cow., 587. 76 OF MISDEMEANORS. {d) Play Houses. — The better opinion seems to be that play houses, having been originally instituted with a laudable design of recommending virtue to the people, and exposing vice and folly, are not nuisances in their own nature, but may only become such by accident, as when they draw together such numbers of coaches and people, &c., as prove generally inconvenient to the places adjacent, or when they pervert their orginal institution by recommending vicious and loose characters under beautiful colors to the imitation of the people, and make a jest of things com- mendable, serious and useful.^ But all common stages for rope dancing, &Ci, are said to be nuisances, not only because they are great temptations to idleness, but also because they are apt to draw together numbers of dis- orderly persons, which cannot but be very inconvenient to the neighborhood.^ {ff) Infected, Persons going in Public. — The exposing in the public highway, with a full knowledge of the fact, of a person infected with a contagious disorder, and liable to communicate it to the public, is a common nuisance, and as such the subject of indictment.* But pasturing upon one's own land sheep having an infectious disease, has been held not to be a nuisance.* And a person sick of a contagious or infectious disease in his own house, or in suitable apartments at a public hotel or boarding house, is not a nuisance.® In a case where an immigrant depot was claimed to be a nui- sance, which involved the question of danger from contagious and infectious diseases, it was held that it was not a nuisance." (Zi) Selling Unwholesome Food. — Among offences of this nature, although they are sometimes considered as frauds, which affect the public at large, and indictable as cheats rather than as nuisances, is the selling of unwholesome provisions; and it has been said, generally, that the giving of any person unwholesome victuals, •■ 1 Hawk. P C. ch. 75, § 7; Bac. Abr., tit. Miisance (A).' • Id., § 6; Id. ' 3 Atk., 750; 1 Hawk. P. C, ch. 52, 53; 'R. v. Vantandillo, 4 M. & S., 73; R. V. Sutton, 4 Burr., 2116; Eex v. Burnett, 4 M. & S., 272. - Fisher v. Clark, 41 Barb., 329. ' Boone v. City of Utica, 2 Barb., 104. " People V. Commissioners of Emigration, 1 Abb., 466. NUISANCE. 77 not fit for man to eat, for gain, or from ' malice or deceit, is undoubtedly in itself an indictable offence.^ Among oases of this nature may be mentioned the conviction of a man for improperly mixing alum in bread.^ To sustain an indictment for this offence against a person who had owned a diseased cow, and had slaughtered her and sold her for food, it is enough to prove that the disease was known to thp defendant, and that the nature and tendency of the disease was such as to taint and affect the flesh of the entire animal, so as to make it unwholesome in any degree, although the taint was imperceptible to the senses, and although the eating of the flesh produced no apparent injury to those who ate it.'' ,(«■) Combustible and Explosive Materials. — The tnanner in which gunpowder is kept may or may not constitute a nuisance.* Blackstone refers to the making, keeping or carrying of too large a quantity of gunpowder, at one time, in one place, or vehicle, but does not give a positive opinion as to whether it was a nuisance at common law or not. It has been held, however, that erecting gunpowder mills, or keeping gunpowder magazines, near a town is a nuisance by the common law.® And persons putting on board of a ship an article of a combustible and dan- gerous nature, without giving due notice of its contents, so as to enable the master to use proper precautions in the stowing of it, are guilty of a misdemeanor.^ In a case in this State, it was held that no indictable offence was stated in the indictment, no facts having been stated therein to show that the powder was kept, or carried through the street, in a way that made it dangerous to the public, although it was charged in the indictment that ten casks of gunpowder were placed upon a cart, the wheels of which were bound with iron, and which was drawn through the public street of a city, over gravel and stones.'' But the carelessly depositing and keeping gunpowder in an exposed place, e. g., in a wooden building in a city, is a public nuisance.^ ' 2 East. P. C, ch. 18, § 4; 3 M. & S., 11. See Cheats, ante. ' Rex ti. Dixon, 4 Campb., 12. See Reed v. Peo., 1 Park., 481. • Goodrich v. Peo., 3 Park., 622. « 1 Hawk., ch. 76, § 88. ' Rex c. Williams,.B. 12, W. Vide 12 Mod, 342. " Williams v. East. I. Co., 3 Bast., 192. ' Peo. V. Sands, 1 John., 78. • Myers v. Malcolm, 6 Hill, 292. 78 OF MISDEMEANOES. {j ) Nuisance by Obstructing a Highway. — All injuries what- soever to a highway, which will render it less commodious to the public, are nuisances at common law ;* and our Court of Appeals have held that any unauthorized continuous obstruction of a public highway is a public nuisance.* An obstruction to a high- way will not be excused on the plea of its being necessary for the carrying on of the party's business, though such an obstruc- tion may be only occasional.' An incorporated railroad company is indictable as a nuisance in erecting and continuing a building, • and placing and leaving their cars in the public highway f and any ditch or other obstruc- tion in a highway is a nuisance.* So also it was held indictable where distillers delivered their slops daily in the street to pur- chasers, and the street was obstructed by carts and teams resort- ing thither for it and waiting to load.* To render a turnpike road a nuisance, it is not essential tha]; it should be unsafe or impassable. Any contracting or narrowing of a highway is a nuisance; so, as to any obstruction left in the road, or omission to repair it, whereby it is less convenient for public use.'^ It is a public nuisance, and indictable at common law, to place on the foot of any public street a stall for the sale of fruit and confectionery, although the defendant pay rent to the owner of the adjoining premises for the use of so much of the pavement as is occupied by him.^ It was formerly held that an indictment would not lie for setting a person on the footway in a street to distribute handbills, whereby the footway was impeded and obstructed f nor for throwing down skins into a public way, by which an accident occurred.*" Yet if these acts were improperly performed, they • 1 Hawk. P. C, ch. 76, § 144. " 14 N. Y., 506; see 24 N. Y., 658. ' Hex t). Russe'l, 6 East, 427 ; Peo. v. Cunningham, 1 Den., 524; R. v. Jone», 3 Camp., 230. • State I). M. & E. R. R. 3 Zab., 360. ' Harlow «. Humiston, 6 Cow., 189 ; 8 Id., 146 ; 23 Wend., 446 ; see 5 Den., 9 ; 14 Wend., 131 ; 14 N. Y., 506 ; 1 Duer, 451 ; 27 Barb. 207. • Peo. 1). Cunningham, 1 Den., 524. ' Waterford & Whitehall" Turnpike Co. v. Pec, 9 Barb., 161. ' Com. V. Wentworth, Brightley Rep., 318. " R. V. Sermon, 1 Burr., 516. '" R. t>. Gill, 1 Str., I'JO. NUISANCE. 79 would seem, under the rule above stated, to be indictable, as every unauthorized obstruction of a highway is now indictable.' Under the above rule, it was held indictable for a party to exhibit at the windows of his shop, in a public street, eflcigies, and thereby attract a crowd to look at them, which causes the footway to be obstructed, so that the public cannot pass as they ought to, and that it is not at all essential that the effigies should be libelous, for the gravamen of the chai-ge is the causing the footway to be obstructed ; and it seems to be immaterial whether the crowd consisted of idle, disorderly and dissolute persons or not.« Any erection in a public river is a nuisance -per se;^ but where a vessel has been sunk in a navigable river by accident and mis- fortune, it has been held that no indictment can be maintained against the owner for not removing it.* It was held in Pennsylvania that where a person, by violent and indecent language addressed to the passers by, caused a large crowd to assemble in the street of a city, thereby obstructing the highway, he was liable to indictment for committing a common nuisance.* Where land taken for a turnpike company has been transferred to a railroad company, without compensation to the owner of the fee, it was treated as a continuing nuisance.* (A) By not Hepairmp Highway. — The permitting a public highway to be grossly out of repair, is indictable as a nuisance -^ and a corporation aggregate or a railway company are liable to be indicted for the non-repair of a bridge which it is their duty to repair.® To authorize a conviction of a plank road company for a nuisance in allowing their road to fall out of repair, it is neces- sary to allege in the indictment and prove on the trial, not only ' 2 Arch. Cr. Pr., 609, note. " Idem; Bex v. Carlisle, 6 0. & P., 636. = People ti. Vanderbilt, 26 N. Y., 287, 298; 25 How., 139. * Rex 1). Watts, 2 Esp., 675. ' Barker ». Com., 19 Penti., 412. Vide Com. «. Smith, 6 Cush. 80; Bex i). Moore, 3 B. & Ad., 184 (collecting crowds of idle people). ' Mahon v. N. Y. C. B. B., 24 N. Y., 658. ' State «. King, 3 Iredell, 411. ' B. V. Birmingham & G. B. R., 9 C. & P., 489. 80 OF MISDEMEANORS. that the road has been out of repair, but also that it continues so to be down to the time of the finding of the indictment.^ ' (0 Offensive Trades and Business. — The carrying on of a business which is unwholesome and injurious to health, and which corrupts and infects the air, may be indicted as a common nui- sance. Thus, the manufacture of acid spirit of sulphur, whereby the air was impregnated with noxious and offensive smells, which were proved to be noxious and hurtful to the health of the inhab- itants, and to have made many of them sick, was held indictable.^ So, also, was the steeping of stinking skins in water in the high- way.^ So, also, may a brew house, a glass house, and a swine yard, be a common nuisance.* So, also, may a man be indicted for refusing to bury a dead body where, by reason of the decom- position thereof, divers noisome stenches arose, and the air become infected and rendered unwholesome.* In England it is said that if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air, and the presence of other nuisances will not justify any one of them." But it has been held in this State that to con- stitute an indictable public nuisance, by conducting in a populous city a lawful business, it is not necessary that it be prejudicial to health; but it is not sufficient that its exercise be merely disagree- able, but it must be an annoyance, calculated to interrupt the public in the reasonable enjoyment of life and property.'' "the occupying real property in a city, as a hog yard, slaughter house, and fat and offal boiling house, is prima fade a common nuisance, but the presumption may be rebutted by showing that the business is so carried on as not to endanger the health or interfere with the comfort of the neighboring inhabitants.^ In England, where the business of a horse boiler, which is one of the most offensive description, had been carried on on the same ' Peo. o. P. Road Co., 5 Park., 604. ' R. I). "White, 1 Burr., 333. ' R. V. Dappineau, 1 Str., 686. * 1 Bright, 69; Prescott's Case, 1 City H. Rec, 161. See 13 Met., 365. ' R. «. Vann., 21 Law. J., 39 M. ' B. t>. Neil, 2 C. & P., 485; R. v. Watts, Id , 486; R. v. Davy, 5 Esp., 217. ' Prout's Case, 4 City H. Rec, 87. See Cullin v. Valentine, 9 Paige, 575; Brady v. Wicks, 3 Barb., 157 ; Prescott's Case, 2 City H. Rec, 161 ; Lynch'a Case, 6 Id., 61 ; 1 Hilt., 126. " Dubois It. Budlong, 15 Abb., 445. KUISANCE. 81 premises for matiy years before the defendants came to them, but its extent was much greater under them than it had been before; but the neighborhood in which it was carried on, was full at the time when they commenced the business, and long before, of establishments for carrying on trades of the most offensive character, and evidence was given that the defendants carried on their trade in so improved a manner, that there was very little difference in the nuisance from what it was when they came there, it was held that this trade was in its nature a. nuisance; but con- sidei"ing the manner in which the neighborhood had always been occupied, it would not be a nuisance, unless it occasioned more inconvenience, as it was carried on by the defendants, than it had done before. If in consequence of the alleged .improvements in the mode of conducting the business, there was no increase of the annoyance, though the business itself had increased, the defend- ants were entitled to an acquittal; but if the annoyance had increased, it was an indictable offence.^ And it was also held that if a noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects, or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the" road, the party would be entitled to continue his trade, because his trade was legal before the erection of the houses and the making of the road.^ It has, however, been held by the courts of this State that no length of time will legalize a public nuisance, for the reason that, while it continues a mere trifle, no one thinks of taking measures to have it removed, and thus the public would be sure to suffer, and it is immaterial how long the practice had prevailed; neither can evidence be offered to prove that the present mode of con- ducting the business is an improvement on the former one.^ And it has also been held that it is no defence to an indictment for nuisance that the establishment complained of was erected prior to adjacent buildings.* • Rex V. Watts, Moo. & M., 281. See R. «. Neville, Peake N. P., ch. 91. » Rex V. Cross, 2 0. & P., 483. " Peo. V. Cunningham, 5 Den., 536, 537 ; Bygert v. Schenck, 23 Wend., 446; MiUs V. Hall, 9 Wend., 315. * Lynch's Oase,-« Oiiy H- %ee., 61. c: P. toi/. It— 6. 82 OF MISDEMEANORS. (m) Open Lewdness. — In general, all open lewdness, grossly scandalous, is punishable by indictment at the common law, and it appears to be an established principle, that whatever openly outrages decency and is injurious to public morals is a misde- meanor.^ The intent with which the act is done is always material in an indictment for exposing the naked body to public view, and such intent is a question of fact for the jury under all the circum- stances of the case. It is for the jury to find whether there was a wanton, intentional and indecent exposure of the person at such a time and in such a place as to ofiend against public decency.^ Evidence of secret familiarity with a woman in a room, the doors of which were shut and the window shutters closed, and the witness observing the transaction at one time through a broken pane of glass in an end window, and at another time through a doorway, the door being partly shut, is not sufficient to maintain an indictment for open and gross lewdness.^ It was held' to be an indictable offence for a man to undress himself on the beach and to bathe in the sea near inhabited houses from which he might be distinctly seen, although the houses had been recently erected, and until their erection it had been usual for men to bathe in great numbers at the place in question, and in the above case it was observed, that whatever becomes the habitation of civilized men, there the laws of decency must be enforced.* Where two defendants were charged with an indecent exposure of their persons in a public place, it was held that an urinal, with boxes or divisions for the convenience of the public, and situated in an open market, was not a public place within that allegation.^ But an omnibus was held to be a public place.® {n) Keeping Dangerous and Troublesome Animals. — ^A fero- cious dog that attacks persons is a nuisance, and if permitted to run at large any one may kill him.'^ So of a dog which has ' 1 Hawk. P. C, ch. 5, § 4; 4 Bla. Com., 65, n.; Burns' Just., i\i. Lewdmss. ' MiUer o. Peo., S'Barb., 203. • Com. t). Catlin, 1 Mass., 8. * R. V. Crunden, 2 Campb., 89. ° R. V. Orchard, 3 Cox C. C, 248. " R. «. Holmes, 6 Id., 216. ' Pntnam v. Payne, 13 Johnv, 312', Hinckley t>. Eiherson, 4 Ooir,, 361. OFFICIAL MISCONDUCT. 83 been bitten by a mad dog.^ According to a newspaper report of a late English case, it is a misdemeanor to keep an animal whose noise is a cause of disturbance to neighbors. In the par- ticular instance the evidence was that the defendant, whose name was Minty, kept a cock which crowed one hundred and fifty times in twenty-five minutes. The judges held that this wasjper se a nuisance in a populous town, and the defendant was com- mitted and fined.* Official Misconduct. — Where any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, any willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be a misdemeanor.* At the common law, where an officer neglects a duty incumbent upon him, either by common law or statute, he was indictable for the offence, and this was so whether he was an officer of the com- mon law or appointed by act of the Legislature.* The acceptance of every office implies the tacit agreement on the part- of the incumbent that he will execute his duties with diligence and fidelity.* Public officers may also be indicted for frauds committed in their official capacities." Whenever magistrates act partially or oppressively, from a malicious or corrupt motive, they may be punished criminally. Discharging an offender, when it is done with an intent to pervert the course of law and justice, is clearly an indictable offence.'' An indictment will lie against commissioners of excise for willfully and corruptly granting a license to a person to sell spirituous liquors, as an inn-keeper, knowing that he is not a man of good moral character, nor a person of sufficient ability to keep a tavern; that he has not the necessary accommodations to enter- ' 13 John., 312. " Whar. Or. L., § 5, note. • 2 R. S., 696, § 53. See also various statutory provisions as to neglect of duty by particular officers in foregoing list of misdemeanors. * 4 Bla. Com., 140; 1 Hawk. P. C, ch. 66, § 1. ' 5 Bac. Abr., 210. ' K. V. Bembridge, 6 East., 136; Rex v. Martin, 2 Camp., 268. ' Russ. on Cr., 213 ; 4 Bla. Com.,, 141 ; 6 Mod.. 96 ; 12 John., 356 ;. 1 Burr.^ 556.. 84 or MISDEMEANORS. tain travelers, and that a tayern is not absolutely necessary at the place where he proposes to keep a tavern.^ Among other examples of official misconduct may be mentioned extortion, which signifies the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due.* Indeed, a per- son holding a public office has been considered as amenable to the law for every part of his conduct, and liable to punishment for not faithfully discharging it.^ And it is laid down, generally, that any public officer is indictable for misbehavior in his office.* The Eevised Statutes provide that no judge, justice, sheriff or other officer whatever, or other person, to whom any fees or com- pensation shall be allowed by law for any service, shall take or receive any other or greater fee or reward for such service, but such as is or shall be allowed by the laws of this State.* Also, that no fee or compensation allowed by law shall be demanded or received by any officer or person for any service, unless such service was actually rendered by him, except in the case of charges for prospective costs thereinafter specified ; but this section shall not prevent any officer from demanding any fee for any service of which he is entitled by law to require the payment previous to rendering such service,^ A violation of either of the two last provisions ia a misde- meanor, and the person guilty is liable to the party aggrieved for treble the damages sustained by him.^ The provisions of law prohibiting the taking of my fees for services in civil cases, other than such as are allowed by statute, also apply to the taking of fees for services in criminal cases, beyond the amount allowed by law for such services.^ ' It is official misconduct for a justice of the peace to issue any smn- mons, warrant, attachment or execution without the same being entirely filled up, or for leaviag a blank either in the date or ' Peo. V. Norton, 7 Barb., 477. ' Peo.r. Whaley, 6Cow., 661; 4Bla.Gom., 141; 1 Hawk.P. C.,ch.68, §1. Tide Bribery, ante. • 1 Salk., 380, note a. • 6 Mod., 96. ' 2 R. S., 650, § 5. • Id., § 6. ' 2 R. S., 651, § 6. Vide Peo. v. Whaley, 6 Cow., 661. " 2R. S., T52, §28. OF OFFICERS NEGLECTING DUTY, ETC. 85 otherwise, at the time of its delivery to the officer to be executed, and every such process is by statute declared void.; and it is likevcise official misconduct for any constable to ask or receive any money or valuable thing from a defendant, or any other per- son, as a consideration, reward or inducement for omitting to arrest any defendant, or to carry him before any justice, or for delaying to take any party to prison^ or for postponing the sale of any property under any execution, or for omitting or delaying the execution of any duty belonging to his office.^ Every justice or constable offending against either of the above provisions, is to be deemed guilty of a misdemeanor, and on con- viction, shall be subject to fine or imprisonment. Or both, in the discretion of the court ; and every such conviction shall operate as a forfeiture of the office of the justice or constable so con- victed.* The statute further provides for official misconduct on the part of attorneys who are law partners of district attorneys, and who take part in the defence of suits and proceedings prosecuted by their partners as such district attorneys, and also where attorneys have acted as district attorneys and subsequently advise or act for the defence in the same matters. Every attorney who violates the above provisions is to be deemed guilty of a misdemeanor, and on conviction is to be punished by fine or imprisonment, or both, at the discretion of the court, and shall also be removed from office in the several courts in which he is licensed.^ Of Officers Neglecting Dviy and Conniving at Escape. — ^If any sheriff, jailor, coroner, marshal or constable shall^-^ 1st. Willfully and corruptly refuse to execute any lawful pro- cess directed to them, or any of them, requiring the apprehen- sion or confinement of any person charged with a criminal offence; or, 2d. Shall corruptly and willfully omit to execute such process by which such person shall escape; or, 3d. Shall willfully refuse to receive in jail under his charge any offender lawfully committed to such jail and ordered to be confined therein on any criminal charge or conviction, or on any lawful process whatever; or, ' 2 R. S., 267, §§ 159, 160. • Id., § 162. " Laws 1846, cb. 120,, p. 132, 86 OF MISDEMEANORS. 4th. Shall willfully suffer any offender lawfully committed to his custody to escape and go at large; or, 5th. Shall receive any gratuity or reward, or any security or engagement for the same, to procure, assist, connive at or permit any prisoner in his custody upon any civil process, or on any criminal charge or conviction, to escape, whether such escape be attempted or effected or not, He shall, upon conviction, be punished by imprisonment in a county jail not exceeding one year', or by fine, not exceeding one thousand dollars, or by both such fine and imprisonment.^ And every sheriff, coroner, marshal or constable who shall be con- victed of any offence specified in the last section, shall forfeit his office, and be forever- disqualified to hold any office or place of trust, honor or profit under the laws or constitution of this State.* Officers Neglecting to Deliver Books, etc., to Successors. — Whenever any person shall be removed from office, or the term for which he shall have been elected or appointed shall expire, he shall on demand deliver over to his successor all the books and papers in his custody as such officer, or in any way apper- taining to his office.^ A person elected to an office will be deemed in full possession of it on his taking the requisite oath, provided no other condition is prescribed,* Offices, Selling of, and Procuring Appointments. — Every per- son holding or exercising any office under the laws or Constitu- tion of this State, who shall, for any reward, consideration or gratuity, paid, agreed to be paid, or reserved to be paid, directly or indirectly, grant to another the right, privilege or authority to discharge any of the duties of such office, either by permitting another to make appointments, or to perform or discharge in any manner, directly or indirectly, the prerogatives or duties of such office, shall, upon conviction, be deemed guilty of a misdemeanor, and, in addition to other punishment, shall forfeit his office, and be forever disabled from holding such office; and every person who shall give, or make any agreement to give, any gratuity or reward, in consideration of any such grant or deputation, shall, upon conviction, be deemed guilty of a misdemeanor. And every ' 2 R. S., 685, § 21. " Id., § 22. » 1 R. S., 125, § 62 ; 5th ed. R. S., vol. 1, p. 416. * Peo. V. Stevens, 5 Hill, 616. See Matter of Welch, 14 Barb., 396. OVERSEEES OP THE POOR, ETC. 87 person who shallv directly or indirectly, accept or receive, or agree to accept or receive, any reward or gratuity, paid, agreed to be paid, or reserved to be paid, for the purpose of procuring for another the appointment to any office created by the Consti- tution or under the laws of this State, or any clerkship or sub- ordinate position in any such office, shall, upon conviction, be deemed guilty of a misdemeanor, and shall be punished by imprisonment in the county jail not less than six months nor over two years, and by fine not less than two hundred nor over one thousand dollars.* Every grant or deputation made contrary to the foregoing pro- visions shall be void, but all official acts done before a conviction for any offence prohibited by the last two sections, shall be valid.''* Where a person receives a deputation to a public officcj which entitles him by statute to a certain percentage upon' the fees and emoluments of the office of his principal, and on receiving his a;ppointment enters into an agreement to perform the duties of his office at a fixed salary, such an agreement being in violation of the act against buying and selling offices, is void, although it be not certain that the stipulated sum would be less than the percentage allowed by law.* But it is otherwise where the prin- cipal merely reserves a part of the fees of his office, or a sum cer- tain, which is to come out of the profits ; thus a sheriff may legally make an arrangement with his deputy, or with the jailer appointed by him, for a division with him of the fees or profit of their employment.* Where two persons apply to the Governor of the State to be appointed to the same office, and it is agreed that one of them shall withdraw his application and aid the other in procuring the appointment, in consideration of which the fees and emoluments of the office are to be divided between them, such contract is illegal and void by the common law, but it is not within the former statute respecting the sale of offices.^ Overseers of Poor, etc., JVeg/lect of, in Relation to Bastards. — Any superintendents of coimty poor, and any overseer of the " Lavs 1863, ch. 51, amending 2 R. S., 696, §§ 37, 38. Vide Bribery, ante, Tol. 1, p. 512. ' 2 R. S. 696, § 39. • Tappin v. Brown, 9 Wend., 175. * Becker v. Ten Eyek, 6 Paige, 68; Mott e. Robbins, 1 Hill, 21. ' Gray c. Hook, 4 Com., 449. 88 OF MISDEMSANORS. poor of any town, whose duty it shall be to provide for the sup- port of any bastard, and the sustenance of its mother, who shall neglect to perform such duty, shall be deemed guilty of a misde- meanor, and shall, on conviction, be liable to a fine not exceeding two hundred and fifty dollars, or to imprisonment not exceeding one year, or both.^ Oysters, Unlawful Talcing of. — ^Any perspn who shall unlaw- fully take and carry away, by any means, the oysters of another, lawfully planted upon the bed of any of the rivers, bays, sounds or other waters within the jurisdiction of this State, shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine not exceeding two hundred and fifty dollars, or by imprisonment in the common jail of the county, where the ofience was committed, for a period not exceeding six months, or by both such fine and imprisonment. Courts of special sessions are given jurisdiction to hear, try and determine violations of the above provisions.* Opening and Reading Sealed Letters and Telegraph Dis- patches. — If any person shall willfully open, read, or cause to be opened or read, any sealed letter, or telegraphic dispatch, or message, not addressed to himself, without the permission of the person to whom it shall be addressed, or of the writer thereof, or other person having the right to give such permission, he shall, upon conviction thereof, be adjudged guilty of a misdemeanor, and shall be punished by a fine of not less than three hundred dollars, or imprisonment not less than three months, or both stich fine and imprisonment. Any person who shall aid, abet or encourage the opening or reading of such letter, telegraphic dis- patch or message, shall be deemed guilty of a misdemeanor.' Pvblishing Contents of Sealed Letters. — Whoever shall mali- ciously publish the whole or any part of such letter, without the authority of the writer thereof, or of the person to whom the same shall be addressed, knowing the same to have been so opened, shall, upon conviction, be adjudged ^ilty of a misde- meanor.* • 1 B. S., 655, § 67. ' Laws 1866, ch. 753. See also Laws 1866, ch. 404; Laws 1863, ch. 493, § 4. ' 2 R, S., 695, § 29, as amended by Lws of 1867, ch. 871, § 1, voL 2, p'. 2186. See next section. ♦ 8 R, S., 695, § 29, PETIT LARCENY, ETC. 89 The two last sections do not extend to any breaking open of letters which shall be punishable by the laws of the United States.^ JPetti Larceny. — ^Every person who shall be convicted of steal- ing, taking and earring away the personal property of another, of the value of twenty-five dollars or under, shall be adjudged guilty of petit larceny, and shall be imprisoned by imprisonment in a county jail not exceeding six months, or by fine not exceed- ing one hundred dollars, or by both such fine and imprisonment.^ The same general rules of law, which will be found stated under the article upon larceny,^ apply as well to petit larceny as to the offence of grand larceny. Petit larceny at common law was a felony, and, although the Legislature may have supposed that they had reduced it to the grade of a misdemeanor, still it has been held that the provision of the statute defining what should constitute a felony, within the statute, did not reach those at common law which were not included- in the provision; and that the common law rule, that petit larceny is a felony, has not been changed by the revised statutes.* In this work it has, however, been classified as a misdemeanor^ under the rule referred to in the Peo. v. Steenburgh,® and for the sake of uniformity, as that rule has been followed in the classi- fication of the other crimes. Practicing Medicine by Persons Not Licensed. — ^Any person not being a licensed physician who shall practice or profess to practice physic or surgery, or shall prescribe medicines or speci- fics for the sick, and shall, in any court having cognizance thereof, be convicted of gross ignorance, malpractice or immoral conduct, shall be deemed guilty of a misdemeanor and liable to a fine of not less than fifty dollars nor not exceeding one thou- sand dollars, or to imprisonment in the county jail not less than one month nor exceeding twelve months, or both, in the discre- tion of the court.^ • 2 R. S., 695, § 30. » 1 R. S., 690, § 1. " Ante. • Peo. V. Adler, 3 Park., 249; Carpenter v. Nixon, 5 Hill, 260; Ward ». Pep., 3 Hill, 396. See Felonies, ante. ' Ante. • 1 R. S., 455, § 41 ; Laws 1858, ch. 184, § 5. 90 OF MISDEMEANORS. Prescribing Medicines by Intoxicated Persons. — -If any physi-' cian or other person, while in a state of intoxication, shall pre- scribe any poison drug or medicine to another person, which shall endanger the life of such other, he shall, upon conviction, be deemed guilty of a misdemeanor.^ Posting for not Fighting Duels.-^^lf any person shall post another for not fighting a duel, or for not sending or accepting a challenge to fight a duel, forbidden by law, or shall, in writing or in print, use any reproachful or contemptuous language to or concerning any one, for not sending or accepting a challenge to fight a duel, or for not fighting a duel, he shall, upon conviction, be adjudged guilty of a misdemeanor.^ Patonbrokers, Acting as. — No person shall carry on the busi- ness of a pawnbroker, by receiving goods in pledge for loans, at any rate of interest above that allowed by law, except in those ' cities where, by their charters, the corporations have the power of licensing such pawnbrokers. A violation of the above pro- vision is a misdemeanor.'' Persons Pound Armed at Night with 'Dangerous Weapons with Felonious Intent. — ^If any person in this State who, shall be found by night armed with any dangerous or offensive weapon or instrument whatsoever, with intent to break or enter into any dwelling house, building, room in a building, cabin, state room, railway car, or other covered inclosure, where personal property shall be, and to commit any larceny or felony therein, or with the intent to commit any larceny or felony ; or if any person shall be found by night having in his possession any picklock, crow, key, bit, jack, jimmy, nippers, pick, pettey, or other implements of burglary, with the intent aforesaid ; or if any person shall be found in any dwelling house or place where personal property shall be, with intent to commit any larceny or felony therein, under such circumstances as shall not amount to an attempt to commit felony, every such offender shall be deemed guilty of a misdemeanor.* Prize Fighting—Every person who shall, in this State, set on ■ 2 R. S., 694, § 24. » Id., § 19. Vide Duelling, ante, vol. 1, p. 543. • J R. S., 711, § 8. • Laws 1862, oh. 374, § 1, p. 627. See Attempts to Commit Felonies, ante, vol. 1, p. 560, and cases cited under that section. PRIZE FIGHTING, 91 •foot, instigate, promote, aid, abet or encourage, or do any act towards the furtherance of any premeditated contention or fight between two persons, commonly called ring or prize fights, to be engaged in either within or without this State ; and every person who shall, in this State, send in writing or publish any challenge, or acceptance of any challenge, for such contention or fight ; and every person who shall, in this State, train or assist any person in training for any such contention or fight ; and every inhabit- ant of this State who shall go out of this State to engage or take part in or to be present at such contention or fight, shall be guilty of a misdemeanor, and upon conviction, shall be punished by imprisonment for not less that six months, nor longer than one year, or by fine not less than two hundred dollars, nor more than one thousand dollars, or by both fine and and imprisonment.^ SheriflTs, constables, policemen and watchmen who shall have reasonable ground to believe that any ofience above specified is about to be committed within their jurisdiction, and who shall willfully neglect to make complaint to some magistrate within their jurisdiction, are guilty of a misdemeanor, and shall forfeit their office.^ The statute further provides for the holding of offenders against the above provisions to keep the peace, and in default thereof, to commit them to the county jail:* A previous statute provides as follows : Every person who shall set on foot or tastigate, or move to, or carry on, or promote, or engage in as a witness, umpire or judge, or do any act towards the furtherance of any premeditated fight or contention between persons with their fists, commonly called a prize fight, or any fight between game birds or game cocks, or dogs, or bulls, or bears, or between dogs and rats, or dogs and badgers, or any other animals, that shall have been premeditated by any person having custody of such animals, shall be liable to arrest and pro- secution for so doing, and upon conviction thereof, shall be pun- ished by imprisonment in a penitentiary or county jail for a term not less than ten days, or exceeding one year, or by fine not exceeding ten thousand dollars.* > Laws 1859, ch. 37, p. 63, § 1. • Id., § 4. • Id., §§ 2, 3. • 2 R. S., 697, § 57 ; Laws 1856, ch. 98, § 2. See also Cruelty to Animals, ante. 02 OF MISDEMEANORS. The above statute also provides for the duty of magistrates in cases of the violation of the above provisions. Prize fights, public boxing matches, and the like, exhibited for the sake of lucre, are not lawful sports, for they serve no valuable purpose, but, on the contrary, encourage a spirit of idleness and debauchery.^ Passenger Tickets, Illegal Sale of. — ^No person other than the agents or employees of railroad, steamboat or steamship com- panies of this State, duly appointed by them for that purpose, by a proper authority in writing, shall offer for sale or sell within this State, any ticket or tickets, or any printed or written instruments issued by or purporting to have been issued by any railroad, steamboat or steamship company in this State or else- where, for the transportation of any passenger or passengers upon any such railroad, steamboat or steamship, or any instru- ment, wholly or partially printed or written, delivered for the purpose or upon the pretence of the procurement to such passen- ger or passengers of any such ticket or tickets, or in any other manner charge, take or receive any money as a consideration or price for such passage, or for the procurement of such passage ticket or tickets, and no ticket or tickets, or other evidence as aforesaid, shall be sold or offered for sale by the said agents or employees except at the offices designated for that purpose by. the said companies respectively, at a price not exceeding their regular established rates. Any person violating the above provision shall, upon convic- tion, be deemed guilty of a misdemeanor, and be punished by a fine of not less than one hundred dollars, or by imprisonment of not less than three months, or by both such fine and imprison- ment.* Poisons, Neglecting to Label. — ^Every apothecary, druggist or other person who shall sell and deliver any arsenic, corrosive sublimate, prussio acid, or any other substance or liquid usually denominated poisons, without having the word " poison " written or printed upon a label attached to the phial, box or parcel in which the same is so sold, or who shall sell and deliver any ' i"ost., 260. ' 5th ed. R. S., vol. 2, p. 990, §§ 1, 3; Laws 1857, oh. 470; 3d vol. R. S., p. 959. See also Laws 1860, ch. 103, p. 177, declaring frauds in sale of tickfets in certain counties a felony. POISONS, SALE AND LABELLING OP, ETC. 93 tartar emetic without having the true name thereof written or printed upon a label attached to the phial, box or parcel contain- ing the same, shall, upon conviction, be adjudged guilty of a misdemeanor, and shall be punished by a fine, not exceeding one hundred dollars.^ Poisons, Sale and Labelling of in Cities and Villages. — No person shall sell, give or dispose of any poison or poisonous sub- stance except upon the order or prescription of a regularly authorized practicing physician, without attaching to the phial, box or parcel containing such poisonous substance a label, with the name and residence of such person and the word " poison," all printed upon it with red ink, together with the name of such poison written or printed thereon in plain and legible characters.** No person shall sell or give any poison or poisonous substance without recording in a book to be kept for that purpose the name of the person receiving said poison and his or her resi- dence, excepting upon the written order or prescription of some regularly authorized practicing physician, whose name must be attached to swch order. Such book shall be kept open for inspection.^ The above provisions only apply to incorporated cities and villages having a population of one thousand inhabitants and upwards, and any person infringing the said provisions shall, upon conviction, be deemed guilty of a misdemeanor, and be punished by a fine not exceeding fifty dollars.* Riot. — A riot is described by Hawkins to be a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist ' one another against any who shall oppose them in the execution of' some enterprise of a private nature, and afterwards actually executing the same, in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.* The old authors upon the common law draw the following dis- tinctions between these very similar classes of ofiences, and they • 2 R. S., 694, § 25. » Laws 1860, ch. 442, p. 765, § 2. " Id., § 1, as amended hj Laws of 1862, oh. 273, p. 468. * Laws 1860, ch. 442, p. 765, §§ 4, 5. ' 1 Russ. on Or., 266 ; 1 Hawk. P. C, ch. 65, § 1. M OP MISDEMEANORS. say that the distinction between them seems to be that a riot is a tumultuous meeting of persons upon some purpose which they actually execute with violence. A rout is a similar meeting upon a purpose which, if executed, would make them rioters, and which they actually make a motion to execute; and an unlawful assembly is a mere assembly of persons upon a purpose which, if ex;ecuted, would make them rioters, but which they do not execute nor make any motion to execute.^ Although a riot has been described differently by high author- ity, thus Hale, C. J., said: "The books are obscure in the defini- tion of riots. I take it, it is not necessary to say that they assembled for that purpose; but there must be an unlawful assembly; and, as to what act will make a riot or trespass, such an act as will make a trespass will make a riot. If a number of men assemble with arms, in terrorem populi, though no act is done, it is a riot; and if three come out of an ale house, and go armed, it is a riot." ^ It seems to be clearly agreed that, in every riot, there must be some such circumstances, either of actual force and violence, or at least of an apparent tendency thereto, as are apt to strike a terror into the people, as the show of armor, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi;^ but it is not necessary, in order to con- stitute this crime, that personal violence should have been com- mitted.* And if there be violence and tumult, it has generally been holden not to make any difference whether the act intended to be done by the persons assembled be of itself lawful or unlawful.® If any person, seeing others actually engaged in a riot, joins himself to them, and assists them therein, he is as much a rioter as if he had at first assembled with them for that purpose, inasmuch as he has no pretence that he came innocently into the company, but appears to have joined himself to them, with an intention of seconding them in the execution of their unlawful ' 1 Russ. on Or., 266; 1 Hawk. P. C, ch. 65, §§ 1, 8, 9 ; 3 Inst., 176; 4 Bla. Com., 146. » R. D. Soley, 11 Mod., 116. ' 1 Russ, on Or., 267; 1 Hawk. P. C, ch. 65, § S. * Clifford V. Brandon, 2 Camp.» 369. " 1 Hawk. P. C, ch. 65, § 5; R. v. Soley, 11 Mod., 117; Dalt., ch. 137; Burns' Just., tit. Riots, § 1; 1 Russ. on Cr., 268; 1 Hill (S.C.) R., 362. RIOT. 95 enterprise; and it would be endless, as well as superfluous, to examine whether every particular person 'engaged in a riot was, in truth, one of the first assembly, or actually had a previous knowledge of the design.^ And the law is that, if any person encourages, or promotes, or takes part in riots, whether by words, signs or gestures, or by Wearing the badge or ensign of the rioters, he is himself to be considered a rioter, for in this case all are principals.* The joint responsibility of rioters for each other's misconduct rests upon the principle that, when an act is committed by a body of men engaged in a common enterprise, such act is treated as if specifically committed by each indi- vidual.^ Mr. Whaeton, in discussing the question of riotous homicide, makes the following remarks: " The most ordinary case of a riot is that of a sudden popular movement got up for the purpose of redressing some supposed grievance; thp temper of a particular class is aroused by some outrage, real or supposed, which they design summarily to pvmish. Cases of this character fall under two heads: First, where the design is to inflict injury on the person or property; and secondly, where the object is death. If, as in the first place, a body of men proceed to tear down an oifen- sive buUding, or to remove certain objectionable obstructions, or even to inflict bodily violence short of death, each member is as responsible for the act of death as if he were the sole agent. Nor does this complicity extend only to those who were united at the outset in the common design. Stragglers and idlers caught up by the mob, become involved in its guilt to the very extent that they were aware of its purpose. Any other principle would not only secure indemnity for auch crimes, but would destroy all effi- ciency in government. It is true, that a man who drops mechan- ically into a crowd passing along the street,! is not responsible for a murder committed by one of the number, if he is entirely ignorant that they constitute an unlawful assembly; but that ignorance cannot exist after an order for dispersion is given by the lawful authorities. The man who, after such a moment, remains a passive spectator, is as responsible as he who takes an active part; for, indeed, it is from this very class of men the ' 1 Euss. on Cr., 269 ; 1 Hawk. P. C, ch. 65, § 3. ' 1 Russ. on Or., 269; Clifford v. Brandon, 2 Camp., 370. See 1 Hale, 463. ' Whar. on Horn., 345. 96 OP MISDEMEANORS. power of a mob is derived. The immediate mischief of riots in this country and England has always been effected by a very few individuals; but the real harm has been done by the mass of passive spectators, who prevent the prominent offenders from being reached by the police, and who, by their apparent sym- pathy, encourage the wrong-doers and produce the impression upon the well-disposed that what really is a small knot of reckless outlaws, is a well-organized and respectable band of citizens seeking redress by their own agency. It will be readily seen, therefore, that under such circumstances, both the policy of society and the principles of justice require that responsibility should be joint." ^ It should be remembered that, in order to constitute this offence, it is necessary that at least three persons should be engaged in its commission.' Houi.-^A rout, according to the general opinion, seems to be a disturbance of the peace by persons assembling together with an intention to do a thing which, if it be executed, will make them rioters, and actually making a motion towards the execu- tion of their purpose. In fact, it generally agrees in all the par- ticulars with a riot, except only in this, that it may be a complete offence without the execution of the intended enterprise.' Racing Horses and other Animals.' — ^All running, trotting or pacing of horses, or any other animals, for any bet or stakes in money, goods, or other valuable thing, or for any reward to be given to the owner or rider of any animal which shall excel in speed, excepting such as are by special laws for that purpose expressly allowed, are deemed racing within the statute, and are by statute delared to be public nuisances and misdemeanors, and all parties concerned therein, either as authors, betters, stakers, stakeholders, judges to determine the speed of the animals, riders, contrivers or abettors thereof, are deemed guilty of a misde- meanor, and are to be punished by fine not exceeding five hun- dred dollars, or by imprisonment not exceeding one year.* Racing Horses in Certain Places. — ^Every person who shall be concerned in any racing, running or other trial of speed between ' Whar. on Horn., 347. • 1 Hawk. P. 0., ch. 65, §§ 2, 5, 7. See Affray, ante. ■ 1 Russ. on Or., 272; 1 Hawk. P. C, ch. 65, § 8. See Riot, ante. ♦ 1 R. S., 672, § 49. Vide 1 Den., 170; 3 Id., 107.. HUNNING HORSES IN CARRIAGES, ETC. 97 any horses or other animals within one mile of the place where any court shall be actually sitting, shall, upon convictionj be adjudged guilty of a misdemeanor.^ Running Horses in Carriages, etc. — -No person driving any car- riage upon any turnpike, road or public highway within this State, with or without passengers therein, shall run his horses, or cause or permit the same to run upon any occasion, or for any purpose whatever ; and every person who shall offend against the above provision, is to be deemed guilty of a misdemeanor, , and on conviction thereof, shall be fined not exceeding one hun- dred dollars, or imprisoned not exceeding sixty days, at the dis- cretion of the court.^ Removing Human Remains. — It shall not be lawful for any person or persons to remove any dead body or human remains from any burying ground for the interment of which compensa- tion shall have been received by any church or religious corpora- tion, or by any officer or officers thereof, and which shall have been used for that purpose during the last .three years, with the intent to convert the said burying ground to any other purpose, without having first obtained the consent in writing of three- fourths in number of the congregation or society of such church or corporation, and which consent shall be proved or acknow- ledged and recorded in the same manner as deeds are required by law to be proved or acknowledged, before any such removal shall be attempted or commenced. Any person ofiending against any of the above provisions, shall, upon conviction, be deemed guilty of a misdemeanor, and shall be punished by imprisonment irf a county jail not exceeding six .months, or by both such fine and imprisonment, in the discretion of the court.* Railroad Engineers and Conductors, Intoxication of. — ^If any person shall, while in charge of a locomotive engine running upon the railroad of any railroad corporation, or while acting as the conductor of a car or train of cars on any such railroad, be intoxicated, he shall be deemed guilty of a misdemeanor.* ' 2 R. S., 692, § 13. » 1 R. S., 696, § 4. ' Eaws 1842, ch. 215, §§ 2, 3 ; 5th ed. R. S., vol. 2, p. 619, §§ 46, 47. See also Laws 1854, ch. 123, §§ 2, 3, as to removals by professors of surgery beyond limits of the State,and also violations of the grave, tit. Felonies, ante, vol. 1, p. 117. * 5th ed. R. S.,-'^. fi, •-«§9^ § 5* e: i( f(&. ir-7; 98 OF MISDEMEANORS. Railroad Engineer Neglecting to Ring Bell or Blow WMstte>'^ A bell shall be placed on each locomotive engine run on any rail- road, and rung at the distance of at least eighty rods from the place where the railroad shall cross any public travelled road or street on the same level with the railroad, and be kept ringing until it shall have crossed such road or street, or a steam whistle shall be attached to each locomotive engine, and be sounded at least eighty rods from the place where the railroad shall cross any such travelled public road or street upon the same leVel with the railroad, except in cities, and be sounded at intervals until it shall have crossed such road or street, and every engineer having charge of the engine, for every neglect to comply with the requirements aforesaid, shall be fined, not exceeding fifty dollars, . or imprisoned in the county jail, not exceeding sixty days, in the discretion of the court before whom any indictment may be tried. ^ Railroad Trains, Forming, -^Ith forming a passenger train, baggage, freight, merchandise or lumber cars shall not be placed in rear of passenger cars, and if they or any of them shall be so placed, the officer or agent who so directed or knowingly sufiered such arrangement, and the conductor of the train, shall be deemed guilty of a misdemeanor, and be punished accordingly.* Railroads, Willful Injury to. — If any person or persons shall willfully do or cause to be done any act or acts whatever whereby any building, construction or work of any railroad corporation, or any engine, machine or structure, or any matter or thing apper- taining to the same, shall be stopped, obstructed, impaired, weakened, injured or destroyed, the person or persons so ofiend- ing shall be guilty of a misdemeanor, and shall also forfeit and . pay to the said corporation treble the amount of damages sus- tained by means of such offence.* Paupers, Removal of, etc. — Any person who shall send, carry, transport, remove or bring, or who shall cause to be sent, carried, transported, brought or removed, any poor or indigent person, from any city, town or county, to any other city, town or county, without legal authority, and there leave such poor person, with intent tO make such city, town or county,, to which the removal shall be made, chargeable with the support of such pauper, or ' 5th ed. R. S., vol. 2, p. 688, § 50. ' Td., § 49. ' 5th ed. R. S.'j ToL 8^ pj 689. See Malicious Injury *o Railroads, ante. RESISTING THE EXECUTION OE PROCESS, ETC. 99 who shall entice any such poor person so to remove with such intent, shall be deemed guilty of a misdemeanor, and on convic- tion, shall be imprisoned not exceeding six months, or fined not exceeding one hundred dollars, or both, in the discretion of the court.^ Resisting the Execution of Process.''^'Ei\erj person who shall resist or enter into a combination with any person or persons to resist the execution of process shall be guilty 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^ The obstructing the execution of lawful process is an offence against public justice of a very high and presumptuous nature, and more particularly so when the obstruction is of an arrest upon criminal process.* Suing in the Name of Another, etc. — Every person who shall,. for vexation and trouble, or maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against, by any process or proceeding at law, or in equity, or in any other manner prescribed by lajv, to answer to the suit or prosecution of any person, without the consent of sUch person, or where there is no such person known, shall forfeit to the person so arrested, attached, or proceeded against, treble the damages and expenses which, by any verdict, shall be found to have been sus- tained and incurred by him, and shall forfeit to the person in whose name such arrest and proceeding was had two hundred and fifty dollars, and shall be deemed guilty of a misdemeanor, punishable, on conviction, by imprisonment for a term not exceed- ing six months.* State Prison, Bringing or Conveying Letters to or from.—^o person not authorized by law, or by written permission from any inspector, shall visit any State prison, or communicate with any convict therein, without the consent of the warden, nor without such consent shall any person bring into or convey out of a State • 1 R. S., 628, § 81, « 2 R. S., 696, § 46 ; Laws 1845, ch. 69, § 17. ' 4 Bla. Com., 128; 2' Hawk. P. C, ch. 7, § 1. Vide Aggravated Assaults, ante, vol. 1, p. 493, and Conspiracy,, ante. • 2R. S.,.55l, §1. 100 . OP MISDEMEANORS. prison any letter or writing to or from any convictj nor shall aliy letter or writing be delivered to a convict, or, if written by a convict, be sent from the prison, until the same be examined and read by the warden or some other officer of the prison duly authorized by the warden, and whoever shall violate the above provision is to be deemed guilty of a misdemeanor.^ Shakers, Secreting Child, etc. — K any member of the Society of ShakerSj or other person, shall send or carry, or cause to be sent or carried, away any child out of this State, or shall secrete such child, or cause such child to be secreted, within this State, so that a writ of habeas corpus cannot be executed, the person so offending shall be deemed guilty of a misdemeanor, and, on con- viction, shall be fined not exceeding two hundred dollars, or be imprisoned not more than six months, or both." School Meetings, Making False Declarations at. — Every per- son who shall willfully make a false declaration of his right to vote at a district meeting, upon being challenged, as provided by the statute-, shall be deemed guilty of a misdemeanor, and pun- ishable by imprisonment in the county jail for a term not exceed- ing one year nor less than six months, at the discretion of the court." Spirits, Adulteration of. — Every person who shall adulterate any distilled spirits or spirits in a state of distillation with any poisonous or unhealthy substance, and every person who shall •sell such spirits, knowing them to be so adulterated, shall be guilty of a misdemeanor, punishable by fine or imprisonment, or both, in the discretion of the court by which he shall be tried, the fine in no case to exceed one thousand dollars, nor the imprisonment the term of four years.* Slung Shot, Making and Selling. — Any person who shall within this State manufacture or cause to be manufactured, or sell, or expose,, or keep for sale or gift, or part with any instru- ment or weapon of the kind usually known as a slung shot, or of any similar kinds, shall be liable to indictment for misdemeanor, and, on conviction, shall be punished by fine of not less than two hundred and fifty nor over five hundred dollars, or by imprison- • 5th ed. R. S., vol. 3, p. 1093, § 130. = 2 R. S., 149, § 7. " 1 H. S., 469. § 99". * la.^ciir. 5e8;§r6; STEAMBOATS, MISMANAGEMENT OF, ETC. ment in a county jail for not less than six months nor over two years.* 8teanJ)oats, Mismanagement of. — If the captain or any other person having charge of a steamboat used for the conveyance of passengers, or if the eilgineer or other person having charge of the boiler of such boat, or of any apparratus therein for the generation of steam, shall, from ignorance or gross neglect, or for the purpose of excelling any other boat in speed, create or allow to be created such an undue quantity of steam as to burst or break the boiler or other apparatus in which such steam shall be generated, or any apparatus or machinery connected therewith, by which bursting or breaking human life shall be endangered, every such captain, engineer or other person, shall be adjudged guilty of a misdemeanor;^ Telegraph Communications, Willfully Divulging Contents, etc. — Any person connected ivith any telegraph company in this State, either as clerk, operator, messenger, or in any other capacity, who shall willfully divulge the contents, or the nature of the contents, of any private communication entrusted to him for transmission or delivery, or who shall willfully refuse or neglect to transmit or deliver the same, shall, on conviction before any court, be adjudged guilty of a misdemeanor, and shall suffer imprisonment in the county jail or work house in the comity where such conviction shall be had for a term of not more than three months, or shall pay a fine not to exceed five hundred dollars, at the discretion of the court; and any person who shall willfully, by C9nnivance with any clerk, operator, mes- senger, or other employe of any telegraph company, or other- wise willfully and wrongfully obtain, or attempt to obtain, any knowledge of any telegraphic message or dispatch, communica- tion or communications, while the same shall be in course of transmission, without first having the assent and authority of some person having the right to give such assent and authority, shall be deemed guilty of a misdemeanor, and shall, upon con- viction, be punished by a fine of not more than one thousand dollars, or imprisonment for not more than three months, or by both such fine and imprisonment.^ > 2 R. S., 696, § 52. '2 K. S., 695, § 27. • 2 R. S., 695, § 30; Laws 1850, ch, 340, § 1, as amended by Laws 1867, ch. 871, § 2, vol. 2, p. 2186. 102 OF MISDEMEANORS. Telegraph Posts, etc., Injuries to.— -Any person who shall unlawfully- and intentionally injure, molest or destroy any tele- graph lines, posts, piers or abutments, or the materials or property belonging thereto, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be punished by a fine not' exceeding five hundred dollars, or imprisonment in the county jail not exceed- ing one year, or both, at the discretion of the court before which the conviction shall- be had.^ Another statute declares it to be a misdemeanor to injure, mo- lest or destroy the lines, or property, or materials pertaining thereto, of the Morse telegraph.** Toll Bridges and Turnpike Gates, Destroying.' — Every person who shall willfully or maliciously destroy any public or toll bridge', or any turnpike gate, shall, upon conviction, be deemed guilty of a misdemeanor.^ Trespasses on Lands in Villages and Cities. — -Any person who shall intrude or squat upon any lot or piece of land situated within the bounds of any incorporated city or village, without license or authority from the owner thereof, or who shall place thereon any hut, hovel, shanty or other structure without such license or authority, or who shall place, erect or occupy within the bounds of any street or avenue of such city or village any hut, hovel, shanty or other structure, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by imprisonment in a county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.* The owner of any lot or piece of land within the bounds of any incorporated -city or village, may give notice to any intruder or squatter who may have intruded or squatted thereon, or who shall have succeeded to any other intruder or squatter thereon, to quit the same on a day to be specified, which shall not be less than ten days thereafter, -which notice may be left upon the pre- mises, addressed to the occupant or occupants thereof, without specifying their names ; and in case such intruder or squatter shall not quit the said premises at or before the expiration of the ' 5th ed. R. S., vol. 2, p. 740, § 7. ' Laws 1845, ch. 243, p. 264; 2 R. S., 696, § 48 • 2 R. S., 695, § S2. Laws 1857, ch. 396, § 1; 2 R. S., 697, § 59. UNLAWFUL ASSEMBLY. 103 time specified in such notice, he and they shall be deemed guilty of a misdemeanor, and upon conviction, may be punished by fine or imprisonment, or both, in the manner and to the extent provided in the preceding section^. Unlawful Assembly. — It is said at common law that any meet- ing of great numbers of people, with such circumstances of terror as cannot but endanger the public -peace, and raise fears and jealousies among the King's subjects, seems properly to be called an unlawful assembly, as where great numbers complaining of a common grievance meet together, armed in a warlike manner, in order, to consult together concerning the most proper means for the recovery of their interests, for no one can see what will be the event of such an assembly ;^ or in the language of Lork Coke, it is where three or more assemble themselves together to com- mit a riot or rout, and do not do it.^ And it has been ruled that an assembly of great numbers of persons, which, from its general appearance and accompanying circumstances is calculated to excite terror, alarm and consternation, is generally criminal and unlawful.* And it has been laid down by a learned judge that any meeting assembled under such circumstances, as according to the opinion of rational and firm men are likely to produce danger to the tranquility and peace of the neighborhood, is an unlawful assem- bly ; and in viewing this question, the jury should take into their consideration the way in which the meetings were held, the hour at which they met, and the language used by the persons assem- bled, and by those who addressed them, and then consider whether firm and rational men, having their families and property there, would have reasonable ground to fear a breach of the peace, as the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage.^ All persons who join an assembly of this kind, disregarding its probable eflect, and the alarm and consternation- which are likely to ensue, and who give countenance and support to it, are criminal parties.® • Laws of 1857, ch. 396, § 2; 2 R. S. 697^ § 60. » 1 Buss-, on Or., 273 ; 1 Hawk. P. C, ch. 65, § 9. " 3 Inst., 176. See Riot and Rout, ante. ♦ 1 Russ. on Cr., 273 ; 3 Stark. N. P., ch.76. » 1 Russ. on Or., 273; Reg v. Vincent. 9 0. & P.. 91 ; Eng. C. L. R., 38, 48. ' Bedford v. Birley, 3 Stark. N. P., ch, 76. 104 OF MISDEMEANORS. An assembly of persons to witness a prize fight has been held an unlawful assembly, and every one present and countenancing the fight is guilty of an offence/ It is provided by our State Constitution that no law shall be passed abridging the right of, the people peaceably to assemble, and to petition the government or any part thereof.* The statutes also contain the following provision in relation to an unlawful assembly of persons disguised, viz : Every assemblage in public houses or other places of three or more persons having their faces painted, discolored, covered or concealed, or being otherwise disguised, in a manner calculated to prevent them from being identified, is by statute of this State declared to be unlawful ; and every individual So disguised pre- sent thereat, is to be deemed guilty of a misdemeanor, and upon conviction, to be punished by imprisonment in the county jail not exceeding one year.^ Unauthorized Granting of Process by Officers in Certain Cases. — ~So justice of the peace, magistrate or other officer appointed under the authority of this State, other than the courts and officers authorized by law to issue writs of habeas corpus, are authorized to grant any warrant or other process to arrest any person alleged to be a fugitive from service, or to grant any cer- tificate of any proof having been adduced of the title of any claimant to the services of any such fugitive, and any officer violating the provisions of the statute in that respect shall forfeit five hundred dollars to the party aggrieved and be guilty of a misdemeanor.* Usury. -^Ai\j person who shall directly or indirectly receive any greater interest, discount or consideration than that pre- scribed ijy law, and in violation of the provisions of the statute, shall be^ deemed guilty of a misdemeanor, and, on conviction, the person so offending shall be punished by fine, not exceedino- one thousand, dollars, or imprisonment, not exceeding six months, or both.5 It is-also made by statute the duty of all courts of justice ■ R. V. Billingham, 2 C. & P., 234. See 4 C. & P., 537. " N. Y. Const., art. 1, § 10. = Lavs 1845, ch. 3, § 6; 5th ed. R S., vol. 2, 881, § 10. * 2R. S., 561, §11. » 2 R, S., 773, § 4&; Laws 1837, ch 430, S C, VESSELS, ATTACHING LANDING LINE TO, ETC. 105 to charge the grand jury especially to inquire into all the viola- tions of the law concerning interest on money.* One "who secures to himself a usurious preitiium by retaining more than lawful interest out of the amount of a security dis- counted by him, is indictable for receiving usury contrary to the statute.^ Vessels, AttachiTig Landing Line to Machinery of. — In case any line used for the purpose of landing or receiving passengers shall be attached in any way to the machinery of any steamboat, or the small boat shall be hauled in by means of such machinery, the person having the command or charge of such steamboat shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine or imprisonment, or both^ in the discre- tion of the court before which such conviction shall be had; but such fine shall not exceed two hundred and fifty dollars, and such imprisonment three months.* Vessels,- Racing and Creating an Undue Quantity of Steam. — If the captain or any other person having charge of any steam- boat navigating any waters within the jurisdiction of this State, and used for the conveyance of passengers; or if the engineer or other person having charge of the boiler of such boat, or of any other apparatus for the generation of steam, shall, for the pur- pose of excelling any other boat in speed, or for the purpose of increasing the speed of such boat, create, or allow to be created, an undue or unsafe quantity of steam; every such captain, engineer, or other person, shall be deemed guilty of a misdemeanor, and forfeit the sum of five hundred dollars, to be sued for in the name of the people by the district attorney of any county of this State, to whom notice shall first be given of such ofience. The statute further provides the disposition to be made of the moneys when collected.'' Vessels, Negligence in Lading. — ^Every person navigating any boat or vessel, who shall willfully receive so many passengers, or such a quantity of other lading, on board such boat or vessel, that, by means thereof, such boat or vessel shall sink or overset, ' 2 R. S., 773 § 16; Laws 1837, ch. 430, § 7. » Bank o. Henry, 2 Den., 155. • 1 E. S., 685, § 13. < Laws 1839, ch. 17&, § 1; 1 R 8 , 686, § 33 106 OF MISDEMEANORS and the life of any human being shall be endangered thereby, shall, upon conviction, be adjudged guilty of a misdemeanor.^ Weight Marks, False, on Casks and Packages. — When any person shall put up for sale any beef, pork, lard, hams, flour, meal, ,candles, cheese, starch, or other articles of produce or mer- chandise, in casks or packages, and Shall mark or stamp on such cask or package the weight of the contents of such cask or pack- age with a view to sell the same, such mark and stamp shall be the true weight thereof, and the true tare of such cask or package shall be marked thereon; and if any person shall knowingly mark or stamp false or short weight or false tare on any cask or package, and shall sell or offer for sale the contents of any such cask or package so marked, or stamped false or short, he shall forfeit the sum of twenty-five dollars for every such cask or pack- age so sold or offered for sale, and be guilty of a misdemeanor.'' Warehousemen, Wharfingers and Others Issuing False Receipts, and Fraudulently Transferring Property. — -No warehouseman, wharfinger, public or private inspector, or custodian of property or other person, shall issue any receipt, acceptance of an order or other voucher, for or upon any goods, wares, merchandise, provisions, grain, flour or other produce or commodity, to any person or persons purporting to be the owner or owners thereof, or entitled or claiming to receive the same, unless such goods, wares, merchandise, provisions, grain, flour or other commodity shall have been actually received into the store or upon the pre- mises of such warehouseman, wharfinger, inspector, custodian or other person, and shall be in store or on the said premises as aforesaid, and under his control at the time of issuing such receipt, acceptance or voucher.* No warehouseman, wharfinger or other person shall issue any receiptor other voucher upon any goods, wares, merchandise, grain, flour or other produce or commodity to any person or persons as security for any money loaned or other indebtedness, unless such goods, wares, merchandise, grain, or other produce or commodity shall be at the time of issuing such receipt in the custody of such warehousemen, wharfinger or other person, and shall be in store ^ 2 E. S., 694, § 26. " Laws 1857, ch. 725; 1 R. S., 543, § 12. " Laws 1858, ch. 326. § 1; as amended Laws 1866, ch. 440. » WAREHOUSEMEN, WHARFINGERS, ETC. 107 or upon the premises and und^r Ms control -at the time of issuing such receipt or other vouchers as aforesaid.^ . No warehouseman, wharfinger, inspector, custodian or other person shall issue any second or duplicate receipt, acceptance or other voucher for or upon any goods, wares, merchandise, provi- sions, grain, flour or other •produce or commodity while any former receipt, acceptance or voucher for or upon any such goods, wares, merchandise, provisions, flour, grain or other produce or commodity as aforesaid, or any part thereof shall be outstanding and uncancelled, without writing in ink across the face of the same " duplicate."^ . No warehouseman, wharfinger or other person shall sell or encumber, ship, transfer, or in any manner remove beyond his immediate control any goods, wares, merchandise, grain, flour or other produce or commodity for which a receipt shall have been given by him as aforesaid, whether received for storing, shipping, grinding, manufacturing or other purposes, without the written assent of the person or persons holding such receipt. No master, owner or agent of any vessel or boat of any descrip- tion, or officer or agent of any railroad company, or other person, shall sign or give any bill of lading, receipt or other voucher or document for any merchandise or property, by which it shall appear that such merchandise or property has been shipped on board any vessel, boat or railroad car, unless the same shall have been actually shipped and put on board, and shall be at the time actually on board or delivered to such vessel, boat or car to be carried and conveyed as expressed in such bill of lading, receipt or other voucher or document.^ Warehouse receipts given for any goods, wares, merchandise, grain, flour, produce or other commodity, stored or deposited with any warehouseman, wiiarfinger or other person, may be transferred by endorsement thereof; and any person to whom the same may be so transferred, shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified, so far as to give validity to any pledge, lien or transfer made or created by such person or persons ; but no property shall be delivered except on surrender and cancellation of said original > Laws 1858, ch. 326, § 2. ' Laws 1858, ch. 326, § 3; amended Laws 1866, ch. 440, § 2. = Laws 1858, ch. 326, §§ 4, 5. 108 OF MISDEMEANORS. receipt, or the endorsement of such delivery thereon in case of partial delivery. All warehouse receipts, however, which shall have the words " hot negotiable " plainly written or stamped on the face thereof, shall be exempt from the provisions of this section. All the foregoing sections shall apply to and be appli- cable to bills of lading, and to alt persons or corporations that shall or may issue bills of lading of any kind or description, the same as if the words " forwarder and bills of lading " were men- tioned in each and every section thereof.^ Any warehouseman, wharfinger, inspector, custodian or other person who shall willfully violate any of the foregoing provi- sions, is to be deemed guilty of a misdemeanor, and upon indict- ment and conviction, shall be fined not exceeding one thousand dollars, or imprisoned not exceeding one year, or by both such fine and imprisonment.^ Wild Animals in Public Highways. — It shall not be lawful for any owner or owners of any wild or rare animal, native or imported, which shall be used for exhibition in any menagerie or show, or owned or possessed for the purpose of so exhibiting the same, to convey or cause to be conveyed, or led or driven over, through or upon any public highway, road or street, such wild or rare animal, unless such owner or owners shall send before the same a person of mature age,' at least one-half a miLe in advance, to notify and warn persons traveling or using said high- way, road or street with horses or other domestic animals liable to be frightened by such wild or rare animal of the approach of such animal. Any such owner using any public highway, road or street in violation of the above provisions, shall be deemed guilty of a misdemeanor, and may be punished on conviction by fine not exceeding one hundred dollars, or by imprisonment in a county jail not exceeding ninety days, or by both such fine and imprisonment, in the discretion of the court before which such imprisonment shall be had ; and any servant or agent of the owner or owners of such wild or rare animal, and having the same in charge, who shall willfully neglect to give the notice and warning required by the foregoing section, shall be also deemed guilty of a misdemeanor, and liable to punishment therefor, as above prescribed.^ ' Laws 1858, ch. 320, § 6, p. 532, amended by Laws 1859, ch. 353, p. 862. » Laws 1866, ch. 440, § 3. = Laws 1862, ch. 112, p. 262. WRECKED PROPERTY. 109 Wrecked Property. — The statute also declares certain acts in relation to wrecked property to be misdemeanors. Among these, may be mentioned violations of the provisions , of the Kevised Statutes in relation to wrecked property, by sheriffs, coroners, wreck masters and other officers ; the defacing of marks on wrecked property, or disguising the appearance thereof, the neglect or refusal to deliver the same to the proper officers, the destroying the bills of lading, invoices, &c., showing the owners of the same, and the unlawful detention of the same by wreck masters and other officers.^ » 1 R. S., 694, §§ 24, 25, 26. 110 OF THE INDICTMENT. CHAPTER III. OF THE INDICTMENT. GemErai. Bemakks. Sectioii I.— The caption. il.— The (JKNEKAL ESAMS of the INDICTMEMT AHD the PABTIcUMBIlt THEHEDFi III. — The STATUTE op iEOFAILS. IV. — Commencement op the indictment. V. — Counts in the indictment. VI. — Duplicity. VII. — Joinder of offences. VlII. — Surplusage. IX. — Joinder op dependants. X. — Clerical errors. XI. — Certain Technical averments. XII. — Stating the dependant's name. XIH. — Statement of the names of third parties. XIV. — Allegations of time and dATe. XV. — ^Venue. ■XVI. — Description of personal property. XVII.— Value of articles. XVIII. — Written instruments. XIX.— Conclusion of the indictment. XX. — Indictments for specific offences. The metliod: of selecting the members of the grand jUry, their organization, and the proceedings had by and before them, upon the preferment, finding and presentment of the indictment, have already been spoken of in a previous chapter ; ^ and it is intended at this place to state the leading general rules concerning the form and contents of the indictment itselfi An indictment has been defined to be a written accusation of one or more persons of an indictable offence, consisting of a . felony or misdemeanor, preferred to and presented upon oath of a grand jury,^ it is a narrative of the ofience charged, and must contain a certain description of the crime, and the facts necessary to constitute it, and should hate a precise and sufficient certainty.* Indictments are framed either at common- law or linder the statute, and whenever a statute creates an ofience, and expressly provides a punishment, the statutory provisions must be followed strictly and expressly; but where the statute attaches a new ' Ante, vol. 1. , ■ ' 4 Bla. Com., 302. ' feo. V. Gates, 13 Wend., 311-317; 1 Chit.-Cr. L., W8-9; 24 Wend.. 520- 570; 1 Abb. Pr., 268 ; 4 Bla. Com., 306. ;the caption. ■ 111 penalty to that which was an offence at common law, either the remedy by statute or that at common law can be followed ; ^ and where a misdemeanor at common law is created a felony by statute, it may be prosecuted under an indictment for a felony, and in case the eyidence fail to sustain the charge, the word "feloniously" may be rejected, and judgment had for the con- stituent misdemeanor.'' ^ 1. THE CAPTION. The caption may be defined to be that portion of the record which comprehends the judicial histbry of the action to the time of the finding of the indictment; " and, strictly speaking, it is no part of the indictment, but a portion of the record, and a mere formal statement, which, though placed at the head of the indictment, is of no higher nature than an entry in the docket made by the clerk.* The caption should show the jurisdiction of the court,^ the term at which it was held, with sufficient certainty, that the indictment was found by twelve jurors of the county, and that they were sworn and charged.^ It is not usually the practice in this State to attach any caption to the indictment at the time of its finding and presentment ; but when an inferior court, in obedience to a writ of certiorari or of error, transmits the indictment to the superior tribunal, it is accompanied with a formal history of the proceedings, describing the court before which the indictment was found, the jurors by whom it was found, and the time and place where it was found. This instrument, formally termed a schedule, but now more fre- quently a caption, is annexed to the indictment, and both are sent to the superior tribunal ; ^ and another author, in treating of the practice of the quarter sessions, says it is not put on the files of the court of quarter sessions, and is annexed only on removal.^ The following decisions have been made in this State upon the > I'Whar. Cr. L., § 10; Turnpike Road v. People, 15 Wend., 267; Peoplp v. Enoch, 13 Wend., 159. . ' 1 Whar. Cr. L., § 10; 3 Hill, 92; 22 Wend.j 175; 1 Com,, 379. = 1 Bish. Or. Pro., § 147. ' Id., § 151. ' 1 Stark. Or. PI., 2d ed., 234. ' Id., 236, 237. ' Id., 233. » Dick. Qr. Sess., 5th,ed.-, 091. 112 OF THE INDICTMENT. question of the caption to an indictment. An indictment taken at an inferior court} e^. ff., at the sessions, must, in the caption, state thatthe^rand jury were then- and there sworn and charged. The omission of the words " then and there " are fatal."- While an indictment remains in the court of sessions a caption is not necessary ; when it is removed, a caption must be affixed, and it is the clerk's duty to affix it, and this whether an entry of the finding be entered in- the minutes or not.^ An objection that the caption of the indictment described H, one of the justices of the court at which the indictment was found, as a justice of the peace for the county of , whereas a justice of the peace was a town and not a county officer) was over- ruled.'' It is generally the practice in this State not to mention the names of the grand jurors in the caption of the indictment, so far as the knowledge of the author extends ; and after judgment, an allegation in the caption of the indictment that it was found by "a grand jury, of good and lawful men," is to be deemed good, though not stating the names of the jurors, and the objec- tion, if taken at all, must be taken by motion to quash, or by demurrer.* § 2. THE GBNEEAL ITIAME OF THK INDICTMENT, AND THE PAE- TICDLAEITr THEREOF. Mr. Bishop^ says the general result to which the rules of plead- ing as to the indictment come is the following : The indictment must show on its face that it has been found by competent authority, in accordance with the requirements of law, and that a particular person mentioned therein has done within the juris- diction of the indictors such and such specific acts at a specific * time, which acts so done constitute what the court can see as a question of a law to be a crime. How specific the indictment must be, is a mixed matter of professional skill and science, to be learned by study, by observationj and by practice. The objects for which particularity is required are stated by Mr. Starkie as follows : ' Peo. V. Gurnsey, 3 John. Gas., 265. ' Peo. «. Jevett, 3 Wend., 814. ' Peo. V. Thurston, 2 Park., 49. * ipsfweojiB. ¥eo.,S5 N. Y., 399. '■ 1 Or. Pro,, § 411. THE GENERAL FKAMB OP THE INDICTMENT, ETC. 113 1. In order to identify the charge, lest the grand jury should find a bill for one offence, and the defendant be put upon his trial in chief for another, without any authority. 2. That the defendant's conviction or acquittal may enure to his subsequent protection should he be again questioned on the same grounds. The offence, therefore, should be defined by such circumstances as will in such cases enable him to plead a previ- ous conviction or acquittal of the same offence. 3. To warrant the court in granting or refusing any particular right or indulgence which the defendant claims- as incident to the nature of the case. 4. To enable the defendant to prepare for his defence in par- ticular cases, and to plead in all, or if he prefer it, to submit to the court by demurrer whether the facts alleged (supposing them to be true) so support the conclusion in law as to render it neces- sary for him to make any answer to the charge^ 5. Finally and chiefly, to enable the court, looking at the record after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to warrant their judgment; and also in some instances to guide them in the infliction of a proportionate measure of punishment upon the offender.^ In this State, Chief Justice Beonson said, as a general though not universal rule in indictments for offences created by statute, particularly misdemeanors, it is sufficient to describe the offence in the words of the statute. The offence must be described with such certainty that the defendant may know what crime he is to answer for; that the jury may render an intelligible verdict; that the court may render the proper judgment, and that the defendant may be able to plead his acquittal or conviction in bar of another prosecution for the same offence; but this rule must not be carried so far as to furnish a shield from punishment, and therefore the indicting jurors are allowed to state that a particular fact, not vital to the accusation, is to them unlcnown.* And in another case the court said: " Although, in an indictment for a misdemeanor created by statute, as a general mle, it is sufficient to allege the act in the words of the statute, this rule is subject ' 1 Stark. C. V^ 79. ' Peo. V. TayIoy>;S "Denf., ^. C. p. Vol. 11—8. • 114 OF THE INDICTMENT. to many exceptions, and by no means dispenses with the necessity of alleging those facts and circumstances which must necessarily exist in order to bring the act within the purview of the statute; for it will hardly be pretended that an act is within a statute unless it be within its obvious scope and true intent and meaning. Statutes are often framed to meet the relations of parties to each other, and to prevent frauds by the one upon the other; and in framing them the language used is often elliptical, leaving some of the circumstances expressive of the relation of the parties to each other to be supplied by intendment or construction. In all such cases the facts and circumstances constituting such relation of the parties to each other must be alleged in the indictment, though not expressed in the words of the statute." ^ An indict- ment upon a statute must state all such facts and circumstances as constitute the statute offence, so as to bring the party indicted precisely within the provisions of the statute. If the statute is confined to certain classes of persons, or to acts done at some particular time or place, the indictment must show that the party, indicted and the time . and place, where the alleged criminal acts were perpetrated, were such as to bring the supposed offence directly within the statute.** And it is sufficient if all the circum- stances necessary to describe and render the charge intelligible in its legal requisites appear on the face of the proceedings, and inform the defendant of the nature of the charge against him.' The general rule may be laid down, that the facts constituting the offence must be stated with as much certainty as the nature of the case will admit, and the indictment should charge the offence with such a degree of certainty and precision that the accused may be able to judge whether the facts stated constitute an indictable offence; that he may know the nature of the offence against which he is to defend, and that there may be no doubt of the judgment to be given in case of a conviction.* ^ § 3. THE STATUTE OF JEOFAILS. Under the ancient common law, there were allowed but few amendments in judicial proceedfCgs. The statutes of jeofails, ' Peo. V. Wilbur, 4 Park., 21. ' Peo. t). Allen, 5 Den., 76. ' Veo.v. Phelps, 5 Wend., 1 * Dord V. Peo., 9 Barb., 671; Briggs v. Peo., 8 Id., 547. COMMENCEMENT OP THE INDICTMENT. 115 and amendments -which were passed in England before the settle- ment of this country, are all probably common law with us, but they did not extend to the indictment in criminal proceedings.^ For the purpose of softening the extreme rigor of the law in this respect, our Legislature has enacted a statute for the purpose of curing certain defects and imperfections in the indictment, where the same does not tend to the prejudice of the defendant. The statute above referred to is as follows : No indictment shall be deemed invalid, -nor shall the trial, judgmient, or other proceedings therein, be affected: 1. By reason of having omitted the defendant's title,, occupa- tion, estate or degree, or by reason of the naisstatement of any such matter, or of the town or county of his residence, where the defendant shall not have been misled or prejudiced by such mis- statement; or, 2. By the omission of the words "with force and arms," or any words of similar import ; or, 3. By reason of having omitted to charge any offence to have been committed, contrary to a statute, or to any statutes, not- withstanding such offence may have been created, or the punish- ment thereof may have been declared by any statute ; or, 4. By reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant." It may be here remarked that the indictment cannot be amended or remodeled by stipulations between the counsel, and the court cannot acquire jurisdiction to try an offence by consent, nor can its jurisdiction be changed by consent so to embrace any other , than that presented by the grand jury, where the action of that body is requisite.* § 4. COMMENCEMENT OF THE INDICTMENT. The practice is to write the name of the county in the upper or side margin of the indictment ; and Chittt, speaking of this sub- ject, says: The county is stated in the margin thus, " Middlesex," or " Middlesex, to wit," but the latter method is the most usual* with us; instead of " to wit/' the abbreviation "55. " is used^ and » 1 Bish. Or. Pro., 386-387, and cases cited. ' 2 B. S., 728, § 53. » Peo. ?). Campbell, 4 Park., 386. * 1 Chit. Cr. L., 194. 116 " OF THE INDICTMENT. it is usual to insert immediately above the same the designation of the court in which the indictment is found, and the term thereof at which presented. Thus: " In the Court of Oyer and Terminer, of the cqunty of Kens- selaer. " Of January term, in the year of our Lord on,e thousand eight hundred and sixty-eight. " County of Eensselaer, ss" Under the English practice, this was immediately followed by the words " the jurors for, our Lady the Queen, on their oath pre- sent that," &c. ;^ but instead thereof the following words are u,sed by us, viz.: " The jurors for the people of the State of New York, in and for the body of the county of Eensselaer, being then and there sworn and charged, upon their oath present that," &c. The indictment then proceeds W^ith a narrative of the offence charged, in proper legal phraseology. § 5. COUNTS IN THE INDICTMENT. Mr. Cmirr says that it is frequently advisable, when the crime is of a complicated nature, or it is uncertain whether the evidence will support the higher and more criminal part of the charge, or the charge precisely as laid, to insert two or more counts in the indictment.'^ A count describes the same transaction in different ways, and, although apparently several distinct charges are embraced in one indictment, but a single offence, is in reality meant to be set out; and when it is found desirable to prefer against a defendant, or several defendants jointly indicted, several distinct and uncon- nected charges in one indictment, the indictment is divided into separate and distinct statements of the same offence, and the name of count is given to each of the divisions in the same man- ner that the word "count" is used to designate the division of a declaration in the civil department of the law in corresponding circumstances.' The several counts in an indictment, after the first, commence as follows: "And the jurors aforesaid, upon their oath aforesaid, do further present that afterwards," etc. [proceeding to state the ' 2 Ch. Cr. L., t; Arch. Cr. Pr.; Dick. Sess./5th ed., 179-931. " 1 Chit. Cr. L., 248. ' 1 Bi.sh. Cr. Prd., 180-182-183. COUNTS IN THE INDICTMENT. 117 offence in proper leg'al language and phraseology, in the usual manner]. The word " afterwards " or " other" is usually inserted near the commencement of all counts, subsequent to the first count, and thus, through a legal fiction, stating a new arid distinct cause of action for the purpose of obviating the difficulty which might arise from duplicity by inserting two counts charging the same thingi And it is stated, in general, that if this commence- ment is omitted from any coimt, it is bad.^ Where several counts are used, repetitions may be avoided by referring in one count to matter contained in another. Thus, if the first count describes the wife of the defendant, and the second count mentions the defendant's " said wife," this sufficiently points to the same person who was first described.'^ And, as in criminal pleading, it is proper practice to refer in one count of an indict- ment to matters in a previous count, so, also, when one count of an indictment is bad, a subsequent count may be sustained by reference to the first coimt for some allegations.^ But where the first count charged the defendant with having assaulted " Esther Eicketts, an infant, above the age of ten and under the age of .twelve years," with intent to cJarnally know her, and a second count charged in a different form an attempt to have carUal knowledge of "the said Esther Eicketts," the reference in the second count, while it pointed out the person, was held not to carry with it the allegation that she was an infant above the age of ten and under the age of twelve years.* The several questions as to what may be included in separate counts will be spoken of under the titles of "Duplicity and Joinder of Offences^*' To a person unskilled and UUpracticed in legal proceedings it may seem strange that several modes of death, inconsistent with each other, should be stated in the same document, but it is often necessary, and the reason for it, when explained, will be obvious. The indictment is but the charge or accusation made by the grand jury, with as much certainty and precision as the evidence before them will warrant. They may be well satisfied that the homicide was committed, and yet the evidence before them leave it some- ' 1 Bish. Cr. Pro., § 185. * ' Reg. V. Dent, 1 Car. & K., 249. » Peo. V. Graves, 5 Park., 134; 1 Chit. Cr. L., 250. • Keg. V. Martin, 9 Car. & P., 215. 118 OF THE INDICTMENT. what doubtful as to the mode of death; but, in order to meet the evidence as it may finally appear, they are very properly allowed to set out the mode in different counts, and then, if any one of them is proved, supposing it also to be legally formal, it is suffi- cient to support the indictment.^ And as the fatal instrument or means of death may be varied by separate counts in an indict- ment for homicide, so, also, in other offences, distinct counts may be stated. Thus, the ownership of the stolen articles may be varied by separate counts in prosecutions for larceny, or of the building in cases of arson or burglary; and as many separate counts should be inserted as may be requisite to meet the contin- gencies of the evidence upon the trial. It is provided by our statute that when, by law, an offence comprises different degrees, an indictment may contain counts for the different degrees of the same offence, or for any of such degrees.^ § 6. DUPLicarr. As duplicity in a civil action, by joining in a declaration in one and the same count different grounds of action, of different natures, or of the same nature, to enforce only a single right of recovery, is bad, so duplicity in criminal pleading is likewise bad; and the criminal law does not permit the joinder of two or more distinct offences in one count of an indictment.^ Thus, where an indictment charged in the same count a capital offence and a mis- demeanor, it was quashed.* So, where, in an indictment for forgery, two distinct offences, requiring different punishments, are joined in the same count, as where the forging of a mortgage and of a receipt endorsed thereon are both charged in the same count, and the defendant is convicted, the judgment will be arrested.^ So, also, in New Hampshire, where horse stealing and ordinary larceny, to which different penalties were afiSxed, were joined in one count, it was held good cause for arresting the judgment.® But this general rule, like most other general rules, is subject to ' Bemis' "Webster Case, 471. » 2R.S., 728, §53. • Reed v. Peo., 1 Park., 481 ; Starkie's C. P., 272 ; Wh. Cr. L., 382; 1 Bish. Cr. Pro., 189; 1 Peters C. C, 131; 2 Mass., 163. * U. S. V. Sharp, 1 Peters C. C, TSl. ' Peo. V. Wright, 9 Wend., 193. " State V. Nelson, 8 N. H., 103. DUPLICITY. 119 exceptions. Thus, if the indictment charge the defendant with an offence which, in its nature, includes several smaller ones, it is not multifarious. Thus, an indictment for murder includes man- slaughter, a battery and an assault; and in an indictment for manslaughter there is a full and technical charge of an assault and battery.'^ Again, the provisions of the law may be such that a particular crime may be committed in different ways, and Mr. Stakkie says that it is the usual practice to allege offences cumulatively, both at common law and under the description contained in penal statutes, as that the defendant published, and caused to be pub- lished, a certain libel, or that he forged, and caused to be forged, &G ; and where the offence may be committed in different ways, and the indictment charges in a single count the commission of the crime in all these ways, coupling the ways as they are speci- fied, one after another, by the conjunction " and," it is not open to the objection of duplicity.^ And no matters, however multifari- i ous, will operate to make an indictment double, provided that all taken together constitute but one connected charge or transaction.* Thus, following the English practice, it is customary to charge the defendant in cases of burglary with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended.* So, also, a count charg- ing the defendant with having broken and entered a shop with intent to conunit a larceny, and with having committed the lar- ceny, is not bad for duplicity.* So, also, on averment of a break- ing and entering of a building, as well as an attempt in the building, after the breach and entry, to set fire to it.* So, also, where the indictment alleged that the defendant broke and entered into the dwelling house of one person with intent to steal his goods, and having so entered, stole the goods of another per- son, it was held not to be a misjoinder.'' Indictments for forgery usually charge the defendant in one ' Com. V. Homey, 10 Met., 422^25; 1 Bish. Cr. Pro., 190. ' 5 Blackf., 314; 1 Stark. Cr. P., 2d ed., 246; Rex ti. Fuller, 2 Leach, 4th ed., 790; 1 East P. C, 92; 1 Bish. Cr. Pr., 190. ' Bimes V. State, 20 Conn., 232-235. ' Arch. Cr. Pr.,49. ^ Com. V. Tuck, 20 Pick., 356. • Com. o. Harney, 10 Met., 422. ' State V. Brady, 14 Ver., 353. 120 OF THE INDICTMENT. count with the offences of falsely making, forging and counter- feiting, of causing and procuring to be falsely made, forged and counterfeited, and of willingly acting and assisting in the said false making, forging and counterfeiting, and though all of these charges are contained in a single count, where the words of the statute are followed, and a general verdict of guilty, judgment will not be arrested on the ground that the offences are distinct.^ So, also, a man may be indicted for the battery of two or more persons in the same count,^ or for a libel upon two or more per- sons, when the publication is one single act, without rendering the count bad for duplicity.^ And where two commit a joint assault with intent to murder, the one with a knife and the other with a gun, they may be charged jointly in the same count ;* and in felonies, the defendant may be charged in the same count with felonious acts with respect to several persons, as in robbery, with having assaulted A And B, and stolen from A one shilling and from B two shillings, if it was all one transaction.* If an indictment describe one offence, and then add such words only as are in part sufficient to describe another offence, it is not therefore double; to be so, it seems it must set out the two offences in adequate terms.® Although duplicity in pleading is a fault only in form,'' still it tends to useless perplexity and confusion, and is objectionable to the convenience of the defendant in making his defence, and tends to his prejudice, and would not seem, therefore, to fall within the provisions of our statutes, in regard to defects or imperfections, in matter of form in the indictment. ^ 7. JOINDER OF OFFENCES. In the last section the general rule was laid down that a defend- ant cannot be charged with two distinct offences in a single count . of an indictment. The question to be now considered is, How ' Wh. Cr. L., 390, and cases cited. • R. V. Benfleld, 2 Bur., 980-984. See 2 Stra., 980; contra, 2 Ld. Eavm. 1572. ' R. 1). Genour, 7 Mod., 400; 2 Bur., 980. • Shaw V. State, 18 Ala., 547. ' Reg. V. Giddings, Oar. & M., 634. • IBish. Cr. Pro., 194; 2 Casey, 169; 35 Maine, 9; 20 Pick., 356-360; Lohman «. Pec, 1 N. Y., 379. ' ' ' Glould PI., ch. 4, § 99. JOINDER OF OFFENCES. 121 far the same indictment may, by different counts, charge the pris- oner with the commission of distinct offences? {a) It is said that, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different timfes, in the same indictment against the same offender, and that it is no ground either of demurrer or arrest of judgment.^ But, in cases of felony, no more than one distinct offence or criminal transaction should regularly be charged upon the prisoner in one indictment, because if that should be shown to the court before the plea, they will quash the indict- ment, lest it should confound the prisoner in his defence; and if they do not discover it until afterwards, they may compel the prosecutor to elect on which charge he will proceed; but this is only a matter of prudence and discretion, which it rests with the judges to exercise.'' And the practice is, where the indictment is for a felony, to embrace but one transaction in a single indictment; and if two or more distinct 'offences are contained in the same indictment, to either quash it or compel the prosecutor to elect on which charge he will proceed.^ But where it appears, on the opening of the case and during the trial, that there is no more than one criminal transaction involved, and the joinder of the different counts is meant only to meet the various aspects in which the evidence may present itself, the court will not restrict the prosecuting officer to particular counts, and will suffer a general verdict to be taken on the whole.* Among the most common joinders of counts in the same indictment for felonies, growing out of the same transaction, may be mentioned a joinder of two counts — one for larceny and the other for embezzlement of the same property; also, counts for larceny and receiving stolen goods; also, counts for breaking and entering a building, with intent to commit larceny, and for larceny in the same building, on the same day. The statutory provision above mentioned, that when an offence comprises different degrees, the indictment may contain counts for the different degrees of the same offence, or for any of ' 1 Chit. Cr. L., 253. ' Id., 253. See tit. Ejection, ante, vol. 1, p. 362. « Whar. Cr. L., 416-122, 5th ed.; 1 Bish. Cr. Pro., 201. * Peo. V. Austin, 1 Parker, 154. See cases cited in note to § 208, 1 Bish. Cr. Pro. 122 OP THE INDICTMENT. such degrees, of course is applicable to the cases above men- tioned.^ (b) So far as misdemeanors are concerned, the rule may be stated that two or more misdemeanors, although they arise out of separate and distinct transactions, inay be joined in the same indictment when embraced in different counts;^ for, in offences inferior to felony, the practice of quashing the indictment, or compelling the prosecutor to elect on which charge he will pro- ceed, does not exist.* (c) In regard to the joinder of felonies and misdemeanors in the same indictment, the rule in this country seems to admit of their joinder where the misdemeanor is a constituent part of the felony, as a joinder of an assault with intent to commit a felony, with a common assault, or even where the misdemeanor is of a nature of a corollary to the felony ; for a charge for a constituent misdemeanor in general requires, the same kind of evidence as a charge for the felony itself, and a t^ial for the consummated act involves a trial for the attempt ; and as no real inconvenience results to the prisoner, the artificial rules resulting from a differ- ence in challenges has not been allowed to operate so as to pre- vent a joinder of the offences.* § 8. SUEPLtrSAGE. Mere surplusage in an indictment will not vitiate.. Thus, where an indictment alleges facts which constitute a misdemeanor, it will be good for that offence, although it states other facts which go to constitute a felony, provided all the facts alleged fall short of the charge of felony through the omission to aver some other facts essential to that charge, e.ff., the intent of the party accused. Thus, where an indictment charged administering drugs with intent to procure a miscarriage, which is made a misdemeanor by statute, and also averred that the death of the ohild was thereby produced, but omitted to aver an intent to destroy the child, which was essential to constitute manslaughter, it was held that ' 2 E. S., 728, § 53. ' Kane«. Peo., 8 Wend., 203; Peo. v. Costello, 1 Den., 83; Peo. v. Gates, 13 Wend., 311; 2 Dana, 242; 6 McLean, 596; 3 T. R., 105; 2 Camp., 41; 2 Cranch 0. C. R., 60. ' 1 Chit. Cr. L., 254; 2.Camp., 183. * Whar. Prec. of Indicts., 2, note. JOINDER OP DEFENDANTS. 123 the indictment, though defective as an indictment for man- slaughter, would sustain a conviction for misdemeanor.^ And the general rule has been laid down that all unnecessary words may, on trial or arrest of judgment, be rejected as sur- plusage, if the indictment would be good upon striking them out.^ Thus, if it were alleged that A, being armed with a bludgeon, and disguised with a visor, feloniously stole, took and carried away the watch of B, the allegations that A was armed and dis- guised, being altogether foreign to a charge of larceny, would be wholly rejected, and would require no proof upon the trial.'' But it has been held in this State, upon an indictment for keeping a common gaming house, where the count, after charging that the defendant kept a common gaming house, told what the jurors meant by a gaming house, to wit, a place where unautho- rized lottery tickets were sold, that it could not be supported by rejecting the specification of facts as surplusage, even if the gen- eral charge had been sufficient by itself, for the charge did not stop with the general allegation, but went on to tell what was meant by it.* § 9. JOINDEB OF DEFENDANTS. Where more than one join in the commission of an offence, all or any number of them may be jointly indicted for it, or each of them may be indicted separately.* Thus, if several commit a robbery, burglary or murder, they may be indicted for it jointly or separately, and the same when they commit a battery, or are guilty of extortion, or the like;" and where property was obtained by false pretences, and the false pretences were conveyed by words spoken by one defendant in the presence of others, all of whom acted in conceit together, it was holden that they might be all indicted together.^ It seldom happens that an indictment is defective for want of including a sufficient number of parties charged with the offence. Since, technically speaking, torts are several in their nature, • Lohman v. Peo., 1 N.T. (1 Com.), 379. ' Wh. Cr. L., 5th ed., § 622, and cases cited. ' Scott V. Com., 6 Serg. & Rawle, 224. • Peo. V. Jackson, 3 Den., 101. ' U. S. V. O'Callaghan, 6 McLean, 596. • Wh. Cr. L., 429 ; 2 Hale, 173 ; Kane v. Peo., 8 Wend., 203. ' E. V. Young, 3 T. R., 98. 124 OP THE INDICTMENT. and where several join in the same criminal act, each is severally- amenable to justice for the consequences ; and even where a duty is thrown upon several, each individual so bound is responsible for criminal omissions, as well as for criminal acts;^ With a due understanding of the legal relations of criminal parties to each other, and of their legal responsibility, but little difficulty will be experienced in the joinder of defendants in an indictment. Where, in their- nature, the offences are distinct, as iu perjury, or in seditious, obscene or blasphemous language) two or more cannot be joined as defendants in the same indictment f and the general rule may be laid down that where the offences are several, there can be no joinder^ And it has been held that where A and B are jointly indicted and tried for gaming, and the evidence shows that A and others played when B was not present) and B and others played at another timC) when A was not present, no conviction can be had against them.^ § lOi CXEEICAL ERRORS. In regard to clerical errors in the indictment, merte Verbal or grammatical errors, which do not affect the sense, are not fatal.* Thus, where an indictment for a violation of the act entitled "An act to prevent abuses in the practice of the law," recited the title, omitting the word "the" after "of," it was held no material defect.® Soi also, the omission by a clerical error of the word " with," in stating the means by -vf hich a homicide was committed, not obscuring the sense and meaning of the accusation, does not render the indictmebt insufficient.® And if there be a variance in the language of the indictment, as in writing maliciously and contemptuously for maliciously or contemptuously, or to write sea of Eome for see of Eome, or simi- lar inaccuracies, the rule was long since said to be that if the variance consist in the introduction or alteration of words purely superfluous and unnecessary, it will not be material, unless, indeed, the alteration render the whole repugnant to the intent ' 1 Stark. Or. PL, 2d ed.; 31 ; R. v. Holland, 5 T. E., 607. • R. t). Phillips, 2 Str., 921 ; 3 Sneed, 107. » Eliot ». State, 26 Ala., 78. * 1 Whar. Or. L., 5th ed., 405. ' Peo. V. Walbridge, 6 Cow., 512. ' Shayi). Peo., 22N.Y., 317. TECHNICAL AVERMENTS. 125 of the statute ; for if any material part be omitted or misrecited, the indictment will be bad, because it will, in the case of a public act, judicially appear^ to the court that the charge is professedly grounded upon a vicious foundation.^ § 11. TECHNICAL AVERMENTS. Under the following sections in relation to specific offences, the principal technical averments necessary to constitute a proper description of such offences in the indictment are mentioned. Where the indictment is drawn for an offence created by a statute, the better course to pursue is to describe the offence in the words of the act; for where an indictment charged in one count that the defendant did break to get out, and in another that he did break and get out, it was holden insufficient because the words of the statute were "break out."* And in another case, where the language of the act was " willfully and maliciously," and the indictment charged the act to have been done "unlaw- fully and maliciously," omitting the word " willfully," some of the judges thought that "maliciously" included " willfully," but the greater number held that, as "willfully" and "maliciously" were both mentioned in the statute as descriptive of the offence, both must be stated in the indictment.* But wherever there is a change of phraseology, and a word not in the statute is substi- tuted in the indictment for one that is, and the word thus substi- tuted is equivalent to the one used in the statute, or is of more extensive signification thaii it, and includes it, it will be sufficient. Thus, if the word "knowingly" be in the statute, and the word "advisedly" be substituted for it in the indictment, or the word "willfully" in the statute, and "maliciously" in the indictmentj the words "advisedly" and "maliciously" not being in the statute, respectively, the indictment would be sufficient.* In this State it was held, in a case of burglary, not necessary to follow the precise language of the statute, and the word "house "was allowed to be used instead of "dwelling house."* > 1 Chit. Cr. L., 280. • R. t). Crompton, 7 C. & P., 139. See R. ». Turner, 1 Mood., 239. ' R; c. Davis, Leax:h, 556. See Chapman v. Com., 5 Whar., 427; State «. Cord, 34 N. H., 510. * Whar. Cr. L., 5th ed., § 37«; R, «. Puller, 1 B. & P., 180. •Thompson V. Peo., 3 Park., 208. 126 OF THE INDICTMENT. The phrase "unlawful" is in no case essential unless it be a part of the description of the offence as defined by some statute; for if the fact as stated be illegal, it would be superfluous to allege it to be unlawful. If the fact stated be legal^the word " unlawful " cannot render it indictable, and the same observatipn is applicable to the terms "wrongfully," "unjustly," "wickedly," ''-■wcillfully," "corruptly," "to the evil example," "falsely," "maliciously," and such like, which are unnecessary if they are not to be found in the very definition of the offence, either at common law or in the purview of a statute. And at common law it seldom hap- pens that one of these expressions may not be supplied by an equivalent one. Thus, though it is usual to allege that the party falsely forged and counterfeited, it is enough to allege that he forged, because the word implies a false making; and. in an indictment for libels, it is sufficient to use either the word "falsely " or " maliciously," or an equivalent epithet.^ The word " feloniously," however, has been said to be essential to all indictments for felony, whether at common law or by statute.* But if an act be charged to have been done with a felonious intent to commit a crime, and it appears upon the face of the indictment that the crime, though perpetrated, would not have amounted to a felony, the word " felonious," being repug- nant to the legal import, of the offence charged, may be rejected ■as surplusage,* The words "knowingly" or "well knowing" will supply the place of a positive averment that the defendant knew the facts subsequently stated.* Where the statement of the act itself necessarily includes a knowledge of the illegality of the act, no averment of knowledge or bad intent is necessary; but it is necessary where the guilty knowledge is a substantial ingredient of the offence.* And where the indictment is founded upon a statute, and the guilty knowledge is part of the definition of the offence, it should be averred in the indictment.* And where an act must be done with a particular intent to make it criminal, an ' Whar. Or. L., 5th ed., 402, and cases cited. ' Peo. V. Fish, 4 Park., 56. • Id., §§ 339, 400; Peo. v. Jackson, 3 Hill, 92; Peo. v. White, 22 Wond., 175; Lehman «. Peo., 1 Com., 3T9. « 1 Stark. N. P., 390; Buss. &Ry., 817; 2 Stra., 904. ' Com. V. ElwelC 2Metc.. 190; 1 Stark. N. P. 390; Com. Dig, Indict; (G 6 ) • I Stark. C. P., 19G; 8 Term. R., 536 ; 6 Id., 739. STATING THE DEPENDANT'S NAME. 127 evil intention must be alleged.^ So, also, on an indictment for a misdemeanor, under the provisions of the Revised Statutes, that the doing of any prohibited act, a punishment for which is not otherwise provided, shall be deemed a misdemeanor, allegations that the act was done "willfully, maliciously, imlawfully and corruptly," do not render proof of a corrupt intent necessary. They are merely formal words.** § 12. STATING THE DEFENDANT'S NAME. Where the name of the prisoner is unknown, and he refuses to disclose it, he may be described as a person whose name is to the jurors unknown, but who is personally brought before them by the keeper of the prison.^ But it is not enough to name him as a person who is to the jurors unknown, without some addition to show whom the jury meant to designate.* The usual practice in such cases is to indict the person by some specific name, as John No Name ; and if the defendant should plead in abatement to the misnomer, then to present a new indictment against him by the name which he discloses in his plea. The name of the defendant should be repeated to every dis- tinct allegation in the indictment; but it will be sufficient to mention it once as the nominative case in- one continuing sentence,^ and his christian and surname should be stated with correctness;* and a plea in abatement will lie to a naistake in either the chris- tian or surname of the defendant.^ In this State, the law does not recognize more than one chris- tian name, and therefore when the middle name of the defendant was omitted, it waa held not to be ertor.^ It was formerly said in this State that if a man be known by ' Peo. «. Lohman, 2 Barb., 216; Russ. & Ry., 365-445; Miller v. Peo., 5 Barb., 203. ' Peo. V. Bogart, 3 Park., 143; 3 Abb., 193. • State t). Angell, 7 Iredell, 27. 4 R. „. , R. & R., 489. " Wh. Cr. L., § 234. » 2 Hawk., ch. 25, § 68; Arch. 0. P., 25; 2 Hale, 175; Oro, C. C, 34; Chit. C. L., 167. ' 2 Hale, 176; 2,Hawk., ch. 25, §69; Bac. Abr., tit. Misnomer, B; Williams J., Misn.; Burns J., Indict.; 10 East., 83; Kel., 11, 12. « Peo. V. Cook, 14 Barb., 259; Roozeyclt v. Gardner, 2 Cow., 463, 128 OF THE INDICTMENT; the name of junior to his name, an indictment against him with- out that addition ie not conclusive that he was the person indicted ; ^ but in a later case, it was held that junior is no part of a,name.^ In spelling the name, if the sound of the name is not affected by the misspelling, the error is not material.* Thus, " Segrave " for " Seagrave," " Benedetto " for " Beniditto," " Whyneard " for "Winyard," pronounced Winnyard, "Hutson" for "Hudson," form no variance.* But it has been held that " Shakespear " and " Shakepear," " Tabert " and " Tarbart," " Shutliff " and " Shurt- iiff," and " M'Cann " and " McCarn," are not the same in soimd.* It is further said, that if two names are in original derivation the same, and are taken promiscuously in common use, though they differ in sound, there is no variance.® The question of a sufficient similarity in the sound of the names, where the name in the indictment is misspelt, or, as it is techni- cally called, idem sonans, is for the jury to determine.^ "Where there is any doubt as to which of two surnames is the defendant's real one, the second may be added in the indictment after an alias dictus, thus: " John Doe, otherwise called John Eoe." ^ But it has been held that a defendant cannot be described with an alias dictus of the Christian uame;^ but the doctrine has been said not to be well founded.^" The questions which have arisen under the English practice, in regard to the statement of the defendant's additional degree or mystery, are of no importance to us; our statute has obviated the necessity of the same." It is usual to name the place of residence of the defendant, thus, as " John Doe, late pf the city of Troy, in the county of ' Pall V. Provost, 2 Cai., 165. • Peo. I). Cook, 14 Barb., 259. See Com. «. Perkins, 1 Pick., 388. = 10 East, 84; 16 Id., 110; 2 Hawk., oh. 27, § 81. • Williams v. Ogle, 2 Str., 889 ; Ahilal «. Benditto, 2 Taunt., 401; R. v. Fos- ter, R. & R., 412; State «. Hutson, 15 Miss., 512. ' R. «. Shakespear, 2 East, 83; Bingham «. Dickie, 5 Taunt., 814; 1 Chit Cr. L., 216 ; 3 Chit. Burn, 341 ; E. v. Tannett, R. & R., 351. " See Bao. Abr., Misnomer; 2 Roll. Abr., 135. ' R. I). Davis, 2 Den. C. C, 231. ' Bro. Misn., 37-47; 1 Leach, 420; 1 Hen., 7-82. ° 1 Ld. Raym., 562; 3 East, 111 ; Burn., J., Indict.; "Willis, 654. " 6 Mod., 116 p J C^mp., 479; R. T. H., 26. " 2 R. S., 128, § 54. STATEMENT OF THE NAMES OF THIRD PARTIES, ETC. 129 Rensselaer, aforesaid;" although, by our statute, the correct state- ment of the town or county of his residence is no longer material where he is not misled or prejudiced by such statement.^ Where the indictment is against a corporation, the defendant should be described by its corporate name. Thus, the words "The Vermont Central Eailroad Company, a corporation exist- ing under and by force of the laws of this State, duly organized and doing business," were held to be sufficient.* § 13. STATEMENT OF THE NAMES OF THIRD PARTIES. At the common law no addition was necessary to the name of third persons, and it was sufficient simply to describe them by their names.^ Where the name of third persons is not known to the grand jury at the time of finding the indictment they may be described as a " certain person or persons to the jurors afore- said unknown," although their names may become known after- wards.* By our statute, when an ofience shall be committeij upon or in relation to any personal property belonging to several partners or owners, the indictment for such offence shall be deemed sufficient if it allege such property to belong to any one or more of such partners or owners, without naming all the part- § 14. ALLEGATIONS OF TIME AND DATE. The general rule may be stated that the time of the alleged commission of an offence as stated in the indictment is not material, and it may be laid upon any day previous to the finding of the indictment, provided the offence be stated to have been committed within the period prescribed by law for a prosecution of the crime,* But some time must be attached to each material » 2 R. S., 128, § 54. ' State V. V. C. R. R., 28 Vt., 583; R. v. B. & G. Railway Co., 3 Adol. & EL, 223. = 2 Hale; 182; 2 Leach, 861-547; Bac. Abr., Indict. G.; R. v. OgilYie, 2 C. &P., 230; lOCush., 402. * Com. V. Hendrie, 2 Gray, 503; 2 East P. C, 651-781; 2 Hawk., ch. 25, § 71 ; Plowd., 85 b ; 2 Hale. 181 ; Goodrich v. Peo., 3 Park., 622. > 2 R. S., 727, § 46. ' Stark. C. P., 58 ; Peo. v. Van Santvoord, 9 Cow., 650 ; Com. v. Dillane, 1 Gray, 483. C. p. Vol. II.— 9. 180 OF THE INDICTMENT. fact averred.' And where the time enters into the nature of the offence it then becomes material and should be truly stated. Thus, where deeds, bills of exchange, bank notes or promissory- notes are set forth, the date, if stated, should correspond with the evidence.^ So, also, when any time stated in an indictment is to be proved by a matter of record, the true date should be stated.^ Thus, in an indictment for perjury, the day on which the perjury was committed must be truly laid.* So, also, where the time is Kmited for the finding of an indictment, the time laid should appear to be within the time so limited.* In cases of murder the death should be laid on a day within a year and a day, from the time at which the blow is alleged to have been given.' And where time is of the essence of the offence it should be stated, as in the case of burglary in the first degree under our statute, where it is necessary to allege the offence to have been committed in the night time, but it is not necessary to state the hour.^ The dates may be stated in Arabic figures;^ and the better opinion seems to be that the phrase " the year of our Lord" and "A. D." in initials may be dispensed with.' If the date should be laid in blank, it will be insufficient, for it would not appear whether the offence were barred by limitation or not." To aver that the defendant, on divers days, committed an offence, is bad; and so where two distinct days are averred. *i But it is sufficient to allege that, on a day specified, as well as on certain other days, he kept a gaming house, a tippling house, or a common nuisance; ' 1 Chit, on PI.; R. v. Holland, 5 T. R., 607; R. v. Aylett, 1 T. R., 69 ; R. v. Haynes, 4 M. & S., 24. " Freeman v. Jacob,'4 Camp., 209; Coxon «. Lyon, 2 Id., 307;*3 B. & C, 45; Arch. C. P., 9th ed., 90; 1 Green on Ev., § 56. » Pope V. Foster, 4 T. R., 590; Grey«. Bennett, 1 T. R., 656; 11 East, 508; 2 Saund.. 291 * U. S. V. McNeal, 1 Gal., 387; 2;'Wash. C. C. R., 282. ' R. V. Brown, M. & M., 163. • 2 Hawk., ch. 23, § 90; Arch. 0. P., 9th ed., 90 a; 1 Dev., 139. ' R. V. Davis, 10 B. & C, 89. " Whar. Cr. L:, 5th ed., § 265, and cases cited. ' Id. " Id., § 264. " X Ld. Raym., 581; 10 Mod., 249; 4 Id., 101; 2 Hawk., ch. 25, § 82; Cro. CC, 36. ^ VENUE. 131 the allegation, " certain other days," being rejected as surplusage.^ But it is fatally indefinite to charge a defendant with selling spiritu- ous and intoxicating liquors from a day named "to the day of the finding, presentment and filing of this indictment." ^ It is unneces- sary to specify time in alleging a mere neglect or non-perform- ance.* An offence charged to have been committed on an impos- sible day, or upon a day subsequent to the finding of the bill, will render the indictment defective.* When the time has once been named with certainty, it is afterwards sufficient to refer to it by the words " then and there," which have the same effect as if the day and year were actually repeated.® The use of the con- junction "and," without adding "then and there," it is said, is in many cases an insufficient averment. Thus, in a case of murder, it is not sufficient to allege that the defendant, on a certain day, made an assault and struck the party killed, but the words " then and there" should be introduced before the averment^ of the stroke.® But if the words "then and there" precede every material allegation, it is sufficient, though these words may not precede the conclusions drawn from the facts.^ § 15. VENXTE. It is the practice to lay the offence to have been committed in the town and county in which it was committed, thus, " at the the city of Troy, in the county of Eensselaer aforesaid; " and in the city of New York it is the practice to charge the ward as part of the venue, and if the offence is shown to be within the juris- diction of the court, the particular place need not be proved; ^ and it is said to be sufficient to lay the venue in an indictment "in the county aforesaid," a county being named in the com- » Peo. U.Adams, 17 Wend., 475; Starkie's C. P., 60; 2 Mason, 129; 10 Mod., 338. ' Com. v. Adams, 4 Gray, 57. ' • Starkie's C. P., 61; 2 Hawk., ch. 25, § 79. • Peo. V. Mather, 4 Ward, 229; Jacobs v. Com., 5 S. & E., 316; 15 Vt., 291; Add., 36. • 2 Hawk., cb- 35, § 78; Id., ch. 23, § 88; Bac. Abr., Indict. G, 4; 2 Hale, 178; 2 Stra., 901; Comyns, 480; 11 Serg. & R., 177. • 2.Hawk,, eh, 23, § 88; Dyer, 69; 2 Hale, 173; Cro. C. C, 35. ' 1 Leach, 529; Dougl., 212; 1 Walker, 392. ' 4 Bla. Com., 306; 2 Hawk., ch. 25, § 84; Id., ch. 46, § 181; 1 East P. 0., 125; 2 Hale, 179-2^245 132 OF THE INDICTMENT. mencement for which the jurors were sworn.* The venue should in all cases correspond with the jurisdiction of the court.* But when the allegation in the indictnient of the place is stated by way of local description, and not as a venue merely, a variance is fatal. Thus, where in an indictment for arson the tenement was averred to be in^the sixth ward, whereas it was in the fifth, the indictment was held bad.'' • So, also, in cases of stealing in a dwelling house, of burglary, of forcible entry and detainer, and the like, the situation of the premises should be truly stated.* It has been held that where an indictment for larceny charged that the offence was committed in a vessel in the first ward of the city of New York, and it appeared that the vessel was lying in the river at a wharf of the third ward, that it was not a material variance.® In q,n indictment for an offence within five hundred yards of the boundary of two counties, the place of commission as laid is the indictment may properly, by way of local description, be described /ds on the boundary and within five hundred yards of the boij6dary line ; and there is no variance if the proof is of an offence committed within five hundred yards of it, though not precisely on the line.® § 16. DESCRIPTION OF PERSONAL PEOPEETT. In indictments for offences relating to personal property, as larceny, receiving stolen, goods, and the like, the chattels which are made the subject of, the offence should be specifically described by their appropriate names,'' and the number and value of each particular kind of property particularly set forth, thus: " One horse, of the value of one hundred dollars," or "twenty knives., each of the value of one dollar." The common and ordinary acceptation of property is to govern its description, and the certainty must be to a common intent, by ' Com. V. Edwards, 4 Gray, 1. ' Peo. V. Barrett, 1 John. R., 66. ' Peo. «. Slater, 5 Hill, 401 ; 4 Foster, 143 ; Salk., 385 : 2 Russ. on Cr., 801 ; 2 Stark. St., 1571. • R. I). Redley, R. & Ry., 515 ; Arch. C. P., 38; 2 P. & B., 281. • Peo. V. Honeyman, 3 Den., 131. " Peo. V. Davis, 45 Barb., 494. See 2 R. S., 727 ' 2 Hale, 182-183. DESCRIPTION OF PERSONAL PROPERTY. 133 which is meant such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded, and will judicially show to the court that it could have been the subject-matter of the offence charged.^ It has been stated that in larceny a particular description of the goods taken has never been deemed necessary, and the description given in the law which enacts the offence in statutable larcenies has in general been deemed suflScient This doctrine is founded part on the fact that the prosecutor is not considered in possession of the article stolen, and is not therefore enabled to give a minute description, and principally because, notwithstand- ing the general description, it is made certain to the court from the face of the indictment that a crime has been committed if the facts be true.*' Thus, where the indictment stated that the defendant stole " four promissory notes, commonly called bank Botes, given for the sum of fifty dollars each, by the Mechanic's Bank, in the city of New York, which were due and unpaid, of the value of two hundred dollars," etc., it was held a sufficient description.' So, also, where the indictment alleged that the defendant " feloniously stole, took and carried away ten promis- soiy notes, called bank notes, issued by the Chicopee Bank, for the payment of divers sums of money, amounting in the whole to the sum of fifty dollars, and of the value of fifty dollars; ten promissory notes, called bank notes, issued by the Agawam Bank, for the payment," etc., it was held, on motion in arrest of judgment, that the indictment was sufficient, and that in an indict- ment for stealing bank notes it is enough to describe them in the same manner as other things which have an intrinsic value, by any description applicable to them as chattels.* In this State, at the Albany General Term, upon an indictment for larceny,' it was held that the number of bills stolen should be stated, while at the Tompkins General Term," upon an indictment for robbery, a description as follows: "Current bank ' Peo. V. Jackson, 8 Barb., 657 ; Com. v. James, 1 Pick., 376 ; Wh. Or. L., §355. " State V. Scribner, 2 Gill. & J., 246. » Peo. V. Holbrook, 13 John., 90. * Peo. V. Jackson, 8 Barb. 637. " Low V. Peo., 2 Park., 37. " :PeO. V. Loop, 3 Park., 559. 334 OF THE INBICTMiBNl'. bills of the value of fifteen dollars," it was held sufficient without setting forth the number or denomination of bank bills or the amount secured thereby. In an indictment for larceny, a description of the property as " sundry gold coins, current as money in this State, of the aggre- gate value of twenty-nine dollars, but a more particular descrip- tion of which the jurors cannot give^ as they have no means of knowledge," and containing similar allegations as to bank bills and silver coin, was held sufficiently specific to warrant a judg- ment upon a general verdict of guilty.^ Where the larceny of live animals is charge^) it is not neces- sary to state them to be alive, because' the law will presume them to be so unless the contrary be stated; but if, when stolen, the ■animals were dead, that fact should be stated; but if the animals have the same appellation, whether they be dead or alive, it will make no difference.* An indictment charging the defendant with stealing " six handkerchiefs " is good, though the handkerchiefs were in one piece, the pattern designating each handkerchief.* A loose and indeterminate designation is bad, as charging the defendant with stealing " a lot of lumber," " a certain lot of furniture," and " certain boats;" * but " a parcel of oats" has been held a sufficient description.^ Where the indictment is for the larceny of chattels, which are the subject of larceny only under certain circumstances, or in particular cases, it must show that they fall within the particular description. Thus, an indictment for stealing " three eggs " was ruled to be bad because only the eggs of animal* domitoa naturos are the subject of larceny." What is called, a lumping description will not answer. Thus, an indictment for stealing " twenty wethers and ewes " would be bad for uncertainty; it should state the actual number of each.'' In the description of animals some particularity is required. ' Com. V. Sautelle, 11 Gush., 142. ' R. V. Edwards, R. & R., 497 ; R. v. Holleway, 1 C. & 'p., 128 ; R. v. Wil- liams, 1 Moo., 107 ; R. «. Puckering, 1 Id., 242. = 1 Ld. Raym., 6 Term. R., 267. ' Wh. Or. L., 358; 10 La. R.,.a29. • Id.; IDey., 337. ' Ei. v.'Cox, 1 0. & K., 494. See 1 Den. C. C, 502; Wh. Or. L., 360. ' 2 Hale, 183; Arch. 0. P., 45. VALUl OF ARTICLES. 136 Thus, a "ewe" or "lamb" may be included under the general term " sheep," where such general term stands alone in the statute, without ewes or lambs being specified, but not otherwise.* So, also, under the term cattle, may be included pigs, asses, horses and geldings.* But where the statute mentioned both cows and heifers, and the indictment charged the defendant with stealing a cow, and the evidence proved it to be a heifer, it was held a fatal variance, as it was presumed that the words were not considered by the legislators as synonymous.' § 17. VALUE OF ARTICLES. In indictments for larceny some value must be attached to the article stolen or the indictment will be bad, and an indictment charging the defendant with the larceny of a thing of no value, or to which no value is assigned, may be quashed.* Where several articles of property of the same kind and nature are stolen at the same time, as several sheep or handker- chiefs, it is the common practice to allege their value cumula- tively, as " ten handkerchiefs of the value of twenty shillings," and unless the defendant be convicted of stealing part only no uncertainty can arise, but if the jury find that he stole one only, then it may be doubtful whether the offence be grand or petit larceny, since they were not alleged to be of the value of two shillings each; but in such case the difficulty might perhaps be obviated by finding the value specially.* And the better way is to give a separate value to each distinct article included in the indictment, as it has been held that otherwise the offence must be made out as to all the articles, as the grand jury has ascribed a value to all of them collectively.® It is not, however, neces- sary that the property should be of value to third persons, if valuable to the owner, therefore a man may be convicted of stealing bankers' re-issuable notes which have been paid,'' ' R. V. Bamum, 1 Crawf. & Dix, 0. C, 147; R. v. Spicer, 1 Car. & K., 599; 1 Moo., 247, 160. ' R. V. Ohaffle, R. & R., 77; R.'v. Whitney, 1 Moo., 3; R. v. Moyle, 2 East. P. C, 1076; R. V. Mott, Id., 1075. ' R. V. Cooke, 2 East. P. C, 617; leach, 123. * Peo. ». Payne, 6 Johii., 103; Peo. n. Wiley, 3 Hill, 194, » 9 Mete, 134; Wh. Cr. Prec. of Indicts.* 416, a. • R. V. Forsyth, R. & R., 274. ' Euss. & Ry., 232; 2 Leach, 1036. 136 OF THE INDICTMENT. § 18, WRITTEN INeTEUMENTS. In indictments for forgery, uttering counterfeit money, libel, selling lottery tickets, sending threatening letters and the like, where a written instrument enters into the gist of the offence, it should properly be set out in words and figures, and the omission of a figure in an indictment for forgery has been held to be fatal.* But in a late case in this State it has been held that in an indict- ment for having in possession a counterfeit bank note with the intention of passing it, the omission to set the bank note forth in the indictment is a mere matter of form and may be omitted,^ Where the instrument on which the indictment rests is in the defendant's possession, or is lost or destroyed, it is sufficient to aver such special facts as an excuse for the non-setting out of the instrument, and then to proceed either by stating its substance or by describing it as an instrument which " the jurors aforesaid cannot set forth, by reason," etc., of its loss, destrjiction or detention, as the case may be.^ And it has been held in this State that in cases of forgery, where the forged instrument is lost or destroyed, or was last traced to the possession of the accused, an exact description of it is not required in the indictment. The reason of the omission must be stated in the indictment, and then such an account of it given as shall apprise the defendant of the particular offence charged.* In cases of forgery it is not necessary to insert the vignettes, devices, letters or figures in the margin, as they make no part of the instrument.^ But it has been held fatal to omit the name of the State in the upper margin of a copy of a bank note, when such name is not repeated on the body.'' In an indictment for publishing an obscene book or picture, it is not necessary that the libel should be set out at laro-e, but in such case it is necessary specifically to aver the reason of the omission, and if the grand jurors declare of an indecent libel ' R. V. Mason, 2 East., 180; 2 East. P. C, 976; 1 Leach, 77, 145; Com. v. Stow, 1 Mass., 54; Com. v. Bailey, Id., 62; 1 Cush., 46-66; U. S. v. Harmon 1 Bald., 292; U. S. v. Britton, 2 Mason, 462. ' Tomliiison v. Peo., 5 Park., 313. = Whar. Cr. L., § 311. ' Peo. V. Kingsley, 2 Cow., 522; Peo. v. Badgeley, 16 Wend., 63 See 3 Mass., 82. ' Peo. V. Franklin, 3 John., oh. 299; 1 Mass., 62; 5 Cush., 605. ' Com. V. Wilson, 2 Gray, 70. WRITTEN INSTEUIIENTS. 137 " that the same would be offensive to the court here and improper to be placed on the records thereof," it will be a sufficient reason for not setting forth the libel.* An instrument in a foreign language should be translated and explained by proper avermeilts.^ And where there is no aver- ment of what the forged instrument purports to be, and no averment of who an officer was whose name is copied into an instrument, it should also be explained by averments.* So, also, where initials appear without an averment of what they mean.^ Where the indictment is for forging a note or bill, the indorse- ment, although forged, need not be set out.* So, also, where upon an indictment for forging a receipt it appeared that the receipt was written at the foot of an account, and the iadictment stated the receipt thus: "8th March, 1773. Eeceived the contents above by, me, Stephen Withers," without setting out the account at the foot of which it was written, it was held sufficient.' And the rule may be stated that in cases where part only of a written instrument is included in the offence, that part alone is necessary to be set out. Thus, where portions of publications are libelous and others not, it becomes necessary only to state those parts which are libelous, and if the libelous passages are in different parts of the publication and separate from each other, they may be stated in this manner: " In a certain part of which, said libel, there were and are. contained the false, scandalous, malicious and defamatory words and matter following, that is to say," etc. "And in a, certain other part of which, said libel, there were contained," etc.'' But wherever the whole instrument is included in the offence it should be set out in the indictment. Mr. Chittt says: " When it is necessary to set forth an instru- ment or writing, it may be preceded by the words 'to the tenor following,' or 'in these words,' or 'as follows,' or 'in the words and figures following;' for though the setting forth the instru- ment by the tenor which imports an accurate copy has been con- • Com. V. Holmes, 17 Mass., 336; Com. u. Tarbox, 1 Gush., 66. = R.D. Goldstein, R. & R., 473. See 6 T. R., 162; 7 Moore, 1; Russ. & Ry., 473. » R. V. Wilcox, R. & R C. C, 50. • R. V. Barton, 1 Moo., 141; R. o. Inder, 2 C. & K., 635. ' Com. V. Adams, 7 Mete, 50; Com. v. Ward, 2 Mass., 397; 7 Gratt., 654. • R. V. Testick, 1 East., 181, n. ' Tarbart v. Tipper, 1 Camp., 350; Wh; Cr. L., 5 312. 138 OF THE INDICTMENT. sidered the moat technical, yet it has been holden that ' as fol- lows ' is equivalent to the words ' according to the tenor follow- ing,' or ' in the words and figures following;' and that if, under such an allegation, the prosecutor fails in proving the instrument, verbatim as laid, the variance will be fatal; and where the indict- ment, by these or similar averments, fails to claim to set out a copy of the instrument in words and figures, it will be invalid. "i The words " in manner and form following, that is to say," do not profess to give more than the substance, and are usual in indictments for perjury.* By the use of the word " purport " is meant the substance of an instrument as it appears on the face of it to every eye that reads it, and is insufficient when literal exactness is required. By the word " tenor " is meant an exact copy of it." An averment in the indictment, "according to the purport and effect, and in substance," was held bad; and so, also, was an averment, " sub- stance and effect."* And it was also held that quotation marks were not sufficient.* Even where the tenor is set out, the mere variance of a letter will not be fatal, provided the meaning be not altered by changing the word misspelt into another of a- different meaning. Thus " promise" for " promised" was held not a fatal variance.* So, also, in an indictment for forging a bill of exchange, whei'e the tenor was "value received," and the bill -itself read "value reicevd," the question being reserved, it was held that the vari- ance was not material because it did not change the word into another so as to alter its meaning.'' In indictments for larceny in stealing written instruments, con- sisting of promissory notes, bank bills, etc., it is not necessary, as in cases of forgery, to set out a copy of the instrument stolen.^ The attaching of one of the original printed papers to the indict- > 1 Chit. Cr. L., 234; "Wh. Cr. L., § 307; 2 Leach, 660, 661; 6 Bast., 418- 426; 3 Salk., 225; 11 Mod., 96, 97; Holt, 347, 350, 425; Doug., 193, 194; I Leach, 78; 2 East. P. C, 976; 2 Bla. Rep., 787. ' Dong., 193, 194; 1 Leach, 192. • 2 Leach, 661; Com. r>. Wright. 1 Cush., 46; Wh. Cr. L., 307. • Com. «. Wright, 1 Cush,, 46; Com. ». Sweeney, 10 Serg. & &., 173. » 1 Cush., 46. • Com. 1). Parmenter, 5 Pick., 279. ' Rex I). Hart, 1 Leach, 145. ° Peo. «. HolbroDk, 13 John., 90;'Peo. «. Jackson, 8 Barb., 637. CONCLUSION OF THE INDICTMENT, ETC. 139 ment, ia the place of inserting a copy, is not a sufficient indica- tion that the paper is set out in the very words.^ § 19. CONCLUSION OF THE INDICTMENT. The concluding part of the indictment is generally in the fol- loTying words; "to the great damage of the said A B" (naming the party particularly injured by the oifence); and in some pre- cedents the following phrase is added after the above: " and to the evil example of all others in like cases offending." In pros- ecutions for nuisances, instead of the above phrases, the words "to the great damage and common nuisance of all good people of the State of New York, residing in the said town of G, and of all the good people passing and repassing, going and return- ing, through or near the same," are used. In offences under .the statute it is customary to add after either of the above paragraphs the words " contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity;" although by the statute of jeofails and amendments, above referred to, it is no longer neces- sary to charge the offence to have been committed contrary to the statute. Where the indictment is drawn at common law, the words " contrary to the form of the statute " are omitted from the conclusion; and if they should be inserted, they may be rejected as surplusage." § 20. INDICTMENTS FOE SPECIFIC OFFENCES. Below will be found a synopsis of the prominent decisions made by the courts of this State in regaf d to the form and con- tents of indictments, which have been brought before the courts for a judicial interpretation, as well as some useful hints to the practitioner in regard to the framing of indictments for specific offences. (a) Assaults, etc. — In an indictment for an assault with intent to kill, it is sufficient to state the assault and battery with the usual precision and aver the intent. The indictment requires no other facts than .are necessary to establish an assault and battery. Thus, an indictment stating that the prisoner, with force and ' Com. V. Tarbox, 1 Cush., 66. ' Com. V. Hoxey, 16 Mass., 385; 2 Hale, 190; 1 Ld. Raym., .1163; and authorities cited in 1 Whar. Cr. L., § 413. 140 ^ OP THE INDICTMENT. arms> to wit, with, etc., made an assault upon_ G, with intent to commit murder upon him, and did then and there cut, beat, strike,, wound and ill treat the said G to his damage, etc., and against the peace, etc., is sufficient.' But the indictment should state the means used, that . it was with a " deadly weapon, or such other means or force as was likely to produce death," otherwise the defendant can only be convicted of assault and battery.^ An indictment for an assault and battery committed upon an officer while executing an attachment is good although it does not con- tain arefments of jurisdiction in the officer issuing the attach- ment, the suing out of the process, the delivery to the officer, etc. The allegation of the assault on the officer while in the execution of the duties of his office, is a mere matter of aggra- vation.* (b) Arson. — ^The describing a building as a " dwelling house " iis sufficient if it was usually occupied by lodgers at night, although it was not a dwelling house in the usual sense of the term.* The building should be described as the house of some one actually in possession. If it appears that the person in whom the property was laid was not in the occupancy, although he was the general owner, the offence is not proved as laid.* Where one works a farm on shares merely, and has possession of buildings thereon merely as a place of deposit for crops, etc., the possession continues in the owner, and in an indictment against such tenant for arson, in burning such buildings, they ase properly described as the buildings of the owner.* An indict- ment for arson in burning a building will sustain a conviction for burning the goods in the building, though the proof fails to show that the building itself was burned.'' An indictment for burning one's own house, with intent to defraud an insurance company, must allege that the house was insured. It is not enough merely to allege that the act was done with intent to defraud a specified insurance company.^ ' Peo. V. Pettit, 3 John., 511. ' Peo. V. Da/is, 18 How., 134; 4 Park., 51 ; O'Leaiy v. Peo., Id., 187. = Peo. V. Cooper, 13 Wend., 379. * Peo. V. Oroutt, 1 Park., 252. " Peo. V. Gates, 15 Wend., 159. » Peo. X.. Smith, 3 How. Pr., 226. ' Peo. V. Didien, 17 How. Pr., 224. (hf^'.^l^' ' Peo. V. Hendersonj 1 Payk., 5G0. INDICTMENTS FOR SPECIFIC OFFENCES. 141 • (c) Burglary. — ^In an indictment for this offence the technical words " hrohe and entered" as well as the words ^^feloniously " and " burglariously" are necessary, and must be inserted.^ The technical averment at the common law was " feloniously and burglariously broke and entered the dwelling house in the night time;" and the felony intended to be committed, or actually perpetrated, must also be stated in technical terms.^ If there be a doubt as to whether the building broken and entered belongs to A, B or C, different counts should be inserted, alleging it to be the house of A, B and C, respectively; and if there should be a further doubt as to what specific felony was intended, it should also be laid separately in different counts.^ Where a building is rented in separate apartments, and one of these apartments is broken into, it may properly be laid in the indictment as the dwelling house of the tenant.* In an indictment for burglary in the third degree, under the Revised Statutes, it is not necessary to specify that the act was committed in the day time. The omission to state that it was in the night is as clear an intimation that the prosecution does not proceed for the higher offence as though it had been expressly said that it was done in the day time.* Where property,- stolen in one county and brought into another, shall have been taken by burglary or robbery, and an indictment under the Eevised Statutes is found against the offender in the latter county for such burglary or robbery, the indictment should set out the facts specially, so -as to bring it within the statute.® A conviction for burglary in the first degree cannot be sustained upon an indictment for "burglary which does not charge the entry to have b^en in one of the modes set forth in the statute defini- tion of that degree of the crime. The indictment is fatally defective unless it follows the statute in substance.^ Since the Eevised Statutes, it is unnecessary in an indictment for burglary in breaking, etc., with intent to commit a crime, to specify what kind of a felony was intended.^ • 1 Hale, 550; 4 Co., 39, 40; 1 Hawk, ch. 38, § 38. > 1 Hale, 549. ' 2 East P. 0., 515 ; Matt. Dig., 49. * Peo V. Bush., 3 Park., 552. » Butler v. Peo., 4 Den., 68. ' Haskins v. Peo., 16 N. Y. (2 Smith), 344. ' Fellmger v. Peo., 15 Abb. Pr., 128. « Mason v. Peo., 26 N. Y., 200. 142 OP THE INDICTMENT. • (d) Bigamy. — The indictment should state both marriages, and that the former consort was alive at the time of the second marriage.^ And it is siifficient to aver the life of the first "wife, without going on to allege that the marriagie is still subsisting.^ (e) Conspiracy. — In the case of an indictment for conspiracy, if it does not set forth the object specifically, and show that it is a legal crime, it must state particularly the means intended to be used by the conspirators, and show that those means are criminal.' And where the object of the conspiracy, as charged in the indict- ment, is in itself a legal crime, e. g., the false imprisonment of a citizen, the indictment need not state the means intended to be used, nor the overt acts relied upon as evidence.* It has been held that an indictment for a conspiracy to cheat (under the Eevised Statutes) must set out the means intended to be used by the conspirators to compass the alleged fraud. And if the averments in the indictment do not show that the accused intended to employ means which were in themselves criminal, etc., or if they do not show how the intended fraud was to have been accomplished, it is bad in substance.^ In an indictment for a conspiracy to obstruct the course of justice, where the conspiracy is to induce a witness, upon a com- plaint for felony before a grand jury, to suppress her evidence, an averment in the indictment that the conspirators did persuade and induce her to withdraw herself from the county, and to with- hold her attendance from the grand jury, sufficiently charges overt acts.* An indictment charging the prisoner with conspiring with others unknown is not improper, though the prisoner's coadjutors were known to the grand jury. On the finding of the bill, it is not necessary to set out the names of the prisoner's associates.'' The words " falsely and maliciously " in an indictment for con- spiracy, if they are indispensable, ought to be in connection, not with the allegation of the conspiracy, but in connection with the allegation of the act done by the conspirators. But where the ' 1 East P. 0., 469. ' Murray v. Reg., 14 La-vr. J. N. S., 357; 9 Jur., 596. " Lambert «. Peo., 9 Cow., 578; Cromwell's Case, 3 City H. Rec., 34. ' Peo. V. Mather, 4 Wend., 229. » March v. Peo., 7 Barb., 391. ' Peo. «. Chase, 16 Barb., 495. ' Peo. V. Mather, 4 "Wend., 229. INDICTMENTS FOR SPECIFIC OFFENCES. 143 falsity and malice of the act are sufficiently shown by an aver- ment that the conspirators well knew, etc., the words " falsely and maliciously" are not essential, and their insertion in the wrong place does not vitiate.^ An indictment for conspiracy, which avers that the accused, with another person, conspired unlawfully and maliciously to procure a third person to be arrested for the oflfence of larceny, well knowing he was not guifty of said offence? follows the statute substantially, and contains all the needful averments to sustain a conviction.^ (/) Disorderly Hovse. — ^An indictment for keeping a dis- orderly house is not vitiated by charging in the same count that it is kept as a bawdy house, a tippling house and a dancing house. Evidence of any one of these circumstances will sustain the count.^ As to what is a sufficient charge in an indictment for keeping a bawdy house, see Harwood v. Peo., 26 N. Y., 190. {g) Disinterring Dead Body. — ^An iadietment for feloniously disinterring the body of M. J. B. is not defective because it omits to allege that she was a " human being." That fact will be assimied. Nor need such an indictment designate a particular grave-yard from which the disiaterment was made. Eeferring to it as a grave-yard in the town of B is sufficient.* iji) Duelling. — ^An indictment for sending a challenge in the form of a letter to fight a duel, need not set put the words of the letter nor the substance thereof.® (f) Embezzlemeni,. — ^An indictment for embezzlement under the Eevised Statutes must charge that the defendant received the money as clerk or servant of the owner. Such an indictment, charging that the defendant received the money as agent of S, was held bad, though it went on to allege that the money came to his possession "as such servant of S."* A single count in the indictment may charge the embezzlement of goods under and over twenty-five dollars in value.'' {]) Frond. — An indictment for fraud must give the names of " Blkin V. Peo., 24 Hov., 272. ' Elkin V. Peo., 28 N. ¥., 177. • Peo. ■». Carey, 4 Park., 238. • Peo. v. Graves, 5 Park., 134. • Brown v. Com., 2 Virg. Cas., 516. • Peo. V. Allen, 5 Den., 76. ' Coats o. Peo., 4 Park., 662. 144 OF THE INDICTMENT. the persons defrauded or aver that they are unknown to the grand jury.^ (k) Forgery. — In considering the method of alleging the facts constituting this offence reference is made to the preceding sec- tion, entitled "Of Written Instruments." An indictment for forgery is good if it 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 may thereby be affected, for if the instrument charged as a forgery and set forth in the indictment appears on its face to have been available to the injury of any person, a general averment of the intent to defraud, omitting all extrinsic circumstances, is good.^ And in prosecution for forgery in the third degree, it is not necessary to allege in the words of the statute, that it was an instrument or writing being or purporting to be the act of another, by which a pecuniary demand or obligation is or purports to be created, etc., or by which rights or property are or purport to be transferried, etc:, or in any manner affected. Nor is it necessary to aver that by such forgery any person is bound or in any way injured in his person or property. But it would be as well in point of form in sych a case to charge in the indictment that the accused forged a certain paper writing purporting to be an instrument in writing and the act of the party whose name is subscribed to it, by which a pecuniary demand is or purports to be created, and then to set forth the instrument or writing in hmc verba? In an indictment fo* forging a bill of exchange or bank bill, it is not necessary to insert letters or marks appearing in the margin of the bill. They make no part of the bill.* In forgery, where the forged instrument is lost or destroyed, or was last traced to the possession of the accused, an exact descrip- tion of it is not required in the indictment. The reason of the omission must be stated in the indictment, and then such an account of it given as shall apprise the prisoner of the particular offence charged.^ ' Peo. t). Fish, 4 Park., 206. = Peo. o. Stearns, 21 Wend., 409 ; approved 23 Wend., 637. • Peo. «. Eynders 12 Wend., 425. ' Peo. V. Franklin, 3 John. Oas., 299. ' Peo. «. Kihgsley, 2 Cow., 522; Peo. «. Badgley, 16 Wend., 53 ; 3 Mass., 82. INDICTMENTS FOR SPECIFIC OFFENCES. 145 On an indictment for forging a check drawn in the name of a copartnership firm on a banking company, it is not necessary to set forth the names of all the persons who comprise the copart- nership. It is enough that any one person intended to have been defrauded is designated.^ A sealed letter directed on the outside only to a cashier, direct- • ing the payment of money, was held properly described in an indictment for forgery, as a check addressed to the cashier.^ A count charging the prisoner with the forgery of two distinct instruments, e. ff., a mortgage and a receipt, requiring different ■degrees of punishment, is bad.^ An indictment for forging a mortgage in the name of L, with intent to defraud S and M, was held insujfEcient under the fievised Statutes, because it did not aver that there was any such land as the mortgage described, or that S had any title to it.^ An indictment under the Eevised Statutes for forgery is not vitiated by pursuing the forms under the old statute, in charging that the prisoner made, forged and counterfeited, and caused or prociured to be falsely made, forged and counterfeited, and will- fully assisted in the false making, etc., the latter charges being mere surplusage.* The intent to defraud is an essential ingredient to the offence, and must be charged in the indictment, and it should be pointed at the particular person or persons against whom it i» meditated." But it is sufficient to describe the party intended to be defrauded with reasonable certainty.'' Where the intent is to defraud a bank it is not necessary to aver in the indictment that the bank was a corporation duly incorporated.^ , On the trial of an indictment for having in possession a coun- terfeit bank note, with the intention of passing it, it is no defence 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. » Peo. V. Curling, 1 John., 320. See Harris v. Peo., 9 Barb., 664. ' Peo. V. Guamer, 9 Wend., 272. = Peo. V. Wright, 9 Wend., 193^ ' Peo. V. Wright, 9 Wend., 193. This was, however, questioned in Peo. v. Steams, 21 Wend., 409. • Peo. V. Rynders, 12 Wend., 425. • Ros. Cr. Ev.) 400; 3 Chit. C. L., 1042; 2 East P. C, 988. ' Noakes v. Pej)., 25 N. Y., 380. " 21 Wend., 409. C. p. Vol. 11—10. 146 OF THE INPICTMENT, The omission must be deemed a matter of form, and is cured by the provisions of the Eevised Statutes in relation to defects or imperfections in matter of form of indictments.^ In an indictment for forgery or counterfeiting, the omission to state, in setting forth the note, matter upon the face of the note, which would not be essential to the validity and binding force of such note, as against the ostensible maker, e. g-, the countersign- ing by public officers in the case of a bank note, is not a material variance ; and if the counterfeit note, which it is charged the prisoner had in his possession, is set forth in haze verba, it is unnecessary to allege, in addition, that the note purported, to be the act of another.^ So, also, whdn the forged instrument was a deed, pui-porting to be signed by the defendant, and his wife, and the indictment alleged that the defendant falsely made, forged and counterfeited an instrument within the description of the statute, and the instrument .alleged to be forged was set out in verbis ipsis, it was held to contain a sufficient description of the circumstances within the statute.* 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, e. .7., the certificate, was forged, it is immaterial that the indictment does not specify that the :forgery was of the certification, and not of the signature of the check itself. Such an indictment informs the accused of the entire instrument which he uttered, or of the precise .shape in which he had uttered it, and alleged it to be a false instrument.* An indictment for fgrgery of a certificate of acknowledgment to a deed, but setting forth a cwtificate without venue, and not averring that the commissioner of deeds, whose name was forged, had authority to take such an acknowledgment, is fatally defect- ive.® {I) False Pretences.— in this ofience the false pretences ou,^ tokens made use of must be set forth, and must be negatived by special averments.^ But in an indictment for obtaining goods by ' Tomlinson v. Peo., 5 Park., 313, ■ Wilson V. Peo., 5 Park., 178. ' Holmes v. Peo., 15 Abb., 154; ' Peo. V. Clements, 26 N. Y., 193. " Vineent v. Peo., 15 Abb., 234. • 2 Mod., 316; 2 T. E., 581; 2 Stra., 1127; 1 Camp., 495. INDICTMENTS FOR SPECIFIC OFFENCES. 147 false pretences, it is not necessary to negaitive in the indictment all the pretences used.^ But those which the pleader expects to prove must be negatived by express and specific averments suffi- cient to give the defendant notice of what he is to prepare to answer.^ Such an indictment must i^ow that the credit was given to the false pretence. An indictment which states that the prosecutor, trusting to the promises and assurances of the defend- ant, and being deceived by his false pretences, delivered his goods to him, is bad.* In such an indictment it is not necessary to state the particular way in which the property was obtained, whether by sale, bailment, or otherwise. An averment that it was deliv- ered to and obtained by the defendant is sufficiently explicit.* The goods obtained should be described, but the indictment need not specify all the property which the defendant obtained by false pretences.* And where the signature to a note has been obtained by false pretences, and the party defrauded has been obliged to pay the note, the indictment may charge the sum paid to have been obtained by false pretences, without setting forth the obtainiug of the signature.^ The indictment need not state any particular value of the property. The cases where it is necessary to allege the value of the property in the indictment are where the offence, or its grade, may depend on. the value.^ An indictment for obtaining the signature of a person to an instrument by means of a false writing must state the charge, with the circumstances, in such a manner as to show how the false writing operated to effect the fraud.^ An indictment for obtainiag, by false pretences, a signature to a conveyance of land must aver that the .person whose signature was obtained had some interest in the land, or that the deed con- tained covenants rendering him liable to an action. And it must ' Peo. V. Stone, 9 Wend., 182; Skiff v, Peo., 2 Park., 139. See II Wend., 657; 14 Id., 547; 13 Id., 311. • Peo. «. Stone, 9 Wend., 182. ' Peo. V. Dalton, 2 Whee. Cr. Cas.,161; 1 Id., 448; 4 City H. Ree., 65; 5 Id., 5. • Skiff I). Peo., 2 Park., 139. • Conger's Case, 4 City H. Rec., 65 ; 1 Whee. Cr. Cas., 448 ; Peo. v. Parish, 4 Den., 153; Russ. & Ry., 106. • Peo. V. Herrick, 13 Wend., 87. ' Peo. «. Stetson, 4 Barb., 151. ' Peo. V. Gates, 13 Wend., 311. 148 OF THE INDICTMENT. describe the deed so fully that it may be identified by the record iu case of a subsequent prosecution for the same oifence".^ In an indictment for obtaining the signature to a written instru- ment through false pretences, it is enough if the instrument appears on its face to have been valid and capable of being used- to the injury of the party.^ And it is not necessary to aver that the party was damnified.^ Nor if the instrument is a mortgage is it necessary to describe the premises contained in it.* Such an indictment must show that the instrument was not only signed and delivered, but a charge • that the defendant obtained the signature is sufficient in this respect ; " obtaining " imports, a delivery.® The intent to cheat should be stated in every material part of the indictment,® and the owner of the property obtained should also be stated with accuracy.'' An indictment alleged that the defendant obtained from A his indorsement, by means of false pretences, to a note; of which a copy was given, showing that the note was payable to A, and indorsed by him. The indictment was held bad, for want of an averment that such indorsement was made for the accommodation of the prisoner.^' (m) Homicide.-r— The provisions of the Revised Statutes rela- tive to murder do not make it necessary to change the common law form of the indictment. Where the statute creates an offence or alters the punishment of a common law offence to one of a higher degree, the indictment should be drawn with reference to the statute, but otherwise if it is only declarative of what was previously an offence at common law. And it was accordingly held that an indictment- for murder, charging the offence to have been committed "with malice aforethought," but not employing the words " premeditated design," was sufficient.^ An itidictment for murder may properly charge the act to have been committed with a weapon to the jurors unknown, where • Dord V. Peo., 9 Barb., 671. " Fenton v. Poo., 4 Hill, 126; Peo. v. Crissie, 4 Den., 525. ° Peo. V. Crissie, 4 Den., 125. • Fenton v. Peo., 4 HiU, 126. See ShotyreU's Case, 4 City H. Eec, 75. ' Fenton v. Pec, 4 Hill, 126. " Russ. & Ry., 317; 1 Stark. C. N. P., 390. ' 3 Chit. Cr. L., 999; Reg. v. Dart, 1 Car. S^E,., 239. ° Peo. V. Chapman, 4 Park., 56. • Peo. V. Enoch, 13 Wend., 159. INDICTMENTS FOR SPECIFIC OFFENCES. 149 there is no evidence at the time of the finding to show what weapon was used.^ The technical words used in the indictment for this offence are to state as a conclusion from the facts previously averred " that the said A B, him the said C D, in manner and form aforesaid, feloniously did kill and murder," a term of art which can in no case be dispensed with. And if these words, or the allegation that the offence was committed of the defendant's malice afore- thought, or from premeditated design, be omitted, or if the defendant be simply charged with killing and slaying the deceased, the offence will amount to no more than manslaughter.'' An indictment for murder described the stab as made by a sword " in and upon the body " of deceased, inflicting upon his body " one mortal wound of the breadth of one inch and of the depth of three laches," of which he instantly died. The term body in. such a connection clearly means only that part of the human frame to which the head and limbs are attached) and after trial and verdict it was held sufficiently certain.^ The object of the indictment is to give the party accused reasonable notice of the crime with which he is charged, in order that he may prepare for his defence and be protected against a second trial for the same offence, neither of which objects are approached by requiring specifications which need not be proved, and it is well settled that an allegation that the wound was inflicted on one part of the body is sustained by evidence showing that it was on a different part, and even if, by the common law rule, greater particularity was required in the indictment, the imperfection would be one of ^form, which could not prejudice the accused, and therefore would not invalidate the indictment or the proceedings thereoni* After a conviction of manslaughter under an indictment charg- ing a wounding on the 6th of February, and a death on the 14th of February, and that "on the day and year aforesaid" the prisoner did kill, etc., it was held that the prisoner could not take advantage of the uncertainty in the indictment as to time.* ' Colt V. Peo., 1 Park., 611. ' Whar.Cr.L.,§399; 1 Hale, 450-466 ; 4Bla.,307; East P. C, 345; Whar. on Horn., 260. • Sanchez v. Peo., 22 N. Y., 147. * Id. » Reynolds v. Peo., 17 Abb., 413. 150 OF THE INDICTMENT. (n) Larceny. — ^In larceny the technical averments are ''did steal, take and carry away," or, in the case of larceny of animals, •' did steal, take and lead away." ^ The questions of description and value of the stolen articles have already been spoken of. The general rule may be stated that the property must be stated in its quantity, number, quality, description and value, with certainty to a common extent.' The ownership of the property must be expressly laid in the owner of the goods, whenever he is known; and if the owner be unknown, then such averment should be made.^ The technical averment is "of the goods, chattels and property" of the true owner, if he be known, or if he be not known, then "of the goods, chattels and property of some person or persons to the jurors aforesaid unknown." "Where there is any doubt as to the ownership of the property, it is usual to insert several counts in the indictment, severally charging the ownership of the prop- erty to be that of one or several persons, according to the facts, to which is added a general count, charging it to be the property of some person or persons to the jurors unknown. If the prop- erty is charged to be that of a person imknown, and the owner is known, such allegation is improper, and on the discovery of his name on the trial, the prisoner will be' acquitted.* But it is the ignorance of the grand jury, and not of the petit jury, which authorizes the statement that the person is unknown. It does not sustain the objection that the evidence upon the trial discloses the name, unless it, at the same time, appears that the name was known to the grand jury.* (o) Lotteries. — An indictment for a violation of the act to sup- press gambling (Laws 1851, 943, ch. 504; amended, Laws 1855, 323, ch. 214) was drawn in the precise language of the act, and charged that the defendant, on a specified day, at the city of New York, sold to an individual named a piece of paper with certain specified letters and figures upon it, and that such piece of paper was commonly known as and called a lottery policy, it was held sufficient.* ' 1 Hale, 504; 2 Hale, 184; 2 Russ. on Cr., 167. « 3 Ohit. Or. L., 946; 1 Id., 202-235. • 14Mass.,217; 12 Pick., 173; 1 Hale, 512; 2 Leach, 578; 3 Chit. C.L.,947. * 3 Chit. Cr. L., 949 ; Roscoe's Cr. Bv., 518. ' 3 Camp., 264; Russ. & R., 372. See Noakes t). Peo., 25 N. Y., 380. ' Peo. 1). Borges, 6 Abb , 132. INDICTMENTS FOR SPECIFIC OFFENCES. 151 An indictment for setting on foot a lottery, contrary to the Eevised Statutes, should contain some description of the lottery beyond a mere general statement of the purpose for which it was made, unless it states that a more particular description is to the jurors unknown.^ The indictment charged the defendant with publishing an account of an illegal lottery, and set forth a descrip- tion of the lottery scheme, which shpwed that the prizes con- sisted of sums of money, and it was held good, although it was not otherwise averred that the lottery was set on foot for the disposing of money.^ It is not necessary to allege in the indict- ment that the lottery was not expressly authorized by law.'' (p) Nuisance. — An indictment for nuisance in maintaining a dam upon a private stream must show in what way such a dam became a nuisance.* . An indictment for a nuisance in keeping gunpowder stored near dwelling houses must allege it to have been negligently kept.* Though an indictment for selling unwholesome provisions must charge that the article was sold for consumption as food for man, the rule does not demand any precise form of words. It is enough if the language, used fairly and intelligibly,- expresses that idea. Thus, where the indictment alleged that the defend- ant, knowingly, etc., sold beef '^as good and wholesome beef and food," and then charged that the beef was unwholesome and not fit to be eaten by man, it was held sufficient. It is no defect in said indictment that the persons are not named to whom the meat was sold, if it is alleged that they are to the jurors unknown.^ An indictment for violating an order of a board of health (under Laws 1850, ch. 324, § 4), which does not aver that the order was published before the alleged violation, is fatally defective.'^ On an indictment for a nuisance, judgment for abatement of it cannot be sustained if there is no allegation in the indictment that the defendant continued the nuisance; for, upon an indict- ' Peo. V. Taylor, 3 Den., 91. ' Charles v.Vw., 1 N. Y. (1 Com.), 180. ' Id. * Peo. V. Townsend, 3 Hill, 479. ' Peo. V. Sands, 1 John., 78. ' Goodrich v. Peo., 19 N.' Y. (5 Smith), 574. ' Reed v. Peo., 1 Park., 481. 152 OF THE INDICTMENT. ment merely for erecting and maintaining, a personal judgment only can be inflicted.^ 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 corpora- tion to erect and maintain such fences; and if it is not necessary that the indictment should contain a formal averment of duty or oblisation to erect and maintain the fences, it should at least allege the obligation in the form of the statute by a recital of it, or some reference to it, in such a manner as to show the obliga- tion or duty of the defendant.^ (3) Official Misconduct. — ^An indictment under the ' statute against an attorney for buying a promissory note need not aver that it was bought with intent to prosecute it, nor that it has been prosecuted; nor need it set out the date of the note, amount, time when due, etc.'' An indictment against an attorney for extorting more than his legal fees must specify hoTv much he received on his own account, and how much for the officers and members of the court.* An indictment against a justice of the peace for discharging an offender brought before him without requiring sufficient sureties for his appearance to answer, etc., must charge the magistrate to have acted from a corrupt motiv* and with the intent to prevent 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 indictment must allege how and in what particular the offence was committed.* So, a;lso, it must be directly and posi- tively charged that the offender was discharged without taking sufficient sureties or sureties in a sufficient sum for his appear- ance. 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, fifty dollars. The offence cannot be charged argumentatively or inferentially, and in an indictment for cor- ruptly discharging on insufficient bail a person accused of a cheat, the cheat need not be set forth in the same formal manner as ' Munson v. Peo., 5 Park., 16. ■ • Peo. V. N. y. Central Railroad, 5 Park., 195. ' Peo. V. Walbridge, 6 Cow., 512. . * Peo. V. Rust, 1 Cai., 131. ' Peo, t>. Coon, 15 "Wend., 277. INDICTMENTS FOK SPECIFIC OFFENCES. 153 would be requisite in an indictment for it. It is enough if it be shown that he was charged with a criminal offence, and that the proceeding against him was not utterly void.* An indictment against officers of a turnpike company for mis- demeanor (by statute) in neglecting to keep their road in repair, recited the substance of the statute and charged that the road was out of order, that the defendants had notice to repair and neglected to do so. Held, a sufficient averment that all the officers had neglected their duty.** Where the having funds is a condition precedent to a statutory obligation imposed on an officer, e. g.^ the obligation of commis- sioners of highways to repair bridges, an indictment against him for neglect of duty must aver the existence of such funds as a substantive fact.^ (r) Perjury and Svbornation of Perjury. — In drawing an indictment for perjury the customary method is to state in the introductory part such circumstances as show that the oath was taken in a judicial proceeding, before a competent jurisdiction, and was material to the matter then before the court. The oath is then to be set out and the perjury assigned upon it; that is, some one or more of the affirmative assertions in it are negatived, or the negative assertions contradicted by the opposite affirmative.* It is essential that the technical words " willfully and cor- ruptly swore falsely" be used. The words were necessary at common law and are contained in our statute. The court by which the oath was administered should be correctly described.* It should also be averred that the defendant was regularly sworn and deposed, etc.® It need not be expressly averred that the matter alleged to have been sworn falsely was material. It is enough that the materiality appears on the face of the indict- ment.'^ In an indictment for perjury it is not necessary to set forth the facts giving jurisdiction to the court or officer before whom the ' Peo. V. Coon," 15 Wend., 277. '' Kane v. Peo., 8 Wend., 203. ' Peo. D. Adsit, 2 HiU, 619; 17 John., 439; 7 Wend., 474. * 2 Chit. Cr. L., 307. " Kuss. & Ey., 421 ; Ey. & Moo. C. C, 171 » 5 Bam. & Cress., 346; Ey. & Moo., 302; 9 East. E., 437; 7 T. E., 315. ' Camphell ». Peo., 8 Wend., 636; Peo. u. Burroughs, 1 Park., 211; Tomlin- son's case, 4 City H. Eec, 125. 154 OF THE INDICTMENT. defendant was sworn. It is enough to aver in general terms that such court or officer had authority to administer the oath. Prior to 23 Geo. n., ch. 11, § 2, the provisions of which were adopted in this State by 1 Eev. L. of 1813, .171, ch. 74, § 2, this was necessary. Since those acts it is only necessary to state the sub- stance of the offence and the name of the court, with a ^simple averment of the court's authority to administer the oath, and averments of the falsity of defendant's assertions. Although the provisions of the revised laws were not incorporated into the Revised Statutes, yet the omission to state the facts constituting jurisdiction is an omission in matter of form and not of sub- stance within the provisions of the Revised Statutes.^ In an indictment for perjury it is not necessary to set forth the language of the false oath with literal accuracy; it is enough if the substance and eifect are stated. So held, eVen where the offence, consisted in making a false affidavit in writing.^ And in an indictment for perjury by a voter at an election it is not neces- sary to set out the whole of the oath; such parts as are material are all it is requisite to state.'' If the pleading, although needlessly, undertakes to set out the false oath absolutely, he must be holden to a strict performance; but an allegation that it was "in substance and to the effect following " does not import an exact copy.* An indictment for perjury in making a false oath to a written complaint must aver that the complaint was in writing. Aver- ring that defendant did depose and swear is not enough, and it should set forth a copy or the substance.* The indictment should expressly contradict the matter falsely sworn to by the defend- ant, and a general averment that the defendant falsely swore, etc., upon the whole matter, is insufficient; but the indictment should negative, by particular words, that which is false. Thus, where an indictment for perjury committed in the insolvent debtors court alleged that the defendant falsely, etc., swore "that his schedule contained a full, true and perfect account of all debts owing to him, whereas, in truth, the schedule did not contain," ' 2 R. S., 728, § 52; Peo. v. Phelps, 5 "Wend., 9; approved Peo. v. Warner, Id., 271; disapproved, but followed, Peo. v. Tredway, 3 Barb., 470. ' Peo. V. Warner, 5 Wend., 27. See Tomlinson's Case, 4 CityH. Rec, 125. ' Campbell v. Peo., 8 Wend., 636. • Peo. V. Warner, 5 Wend., 271. ' Peo. V. Robertson, 3 Whee. Cr. Cas., 180. INDICTMENTS FOR SPECIFIC OFFENCES. 155 etc., without specifying any of the debts omitted, it was held that the indictment was bad.^ By our statute, where the oath has been taken, the words of the act, "unlawfully and corniptly," undoubtedly should be used; but it seems that the means need not be stated. The lan- guage of the statute is "by any means whatsoever;" and at com- mon law the means used need not have been stated. It was enough to state, generally, " by sinister and unlawful labors and means." ^ In attempts to induce perjury, under our statute, the indict- ment should either name the thing oflFered, with an averment that it was valuable, or felse follow the language of the statute, " valu- able consideration." An indictment for subornation of perjury should contain all the facts necessary to show that the false swearing of the witness suborned was legal perjury, and should aver that the magistrate who administered the oath had authority to do so, etc.* (s) Rape. — ^In an indictment for rape, the words did " forcibly ravish " the woman are necessary, and these words will not be supplied by an averment that the defendant did " carnally know," etc. The words "forcibly ravished" imply force and violence in the man and want of consent iu the woman, and it is not there- fore necessary to aver that the rape was committed against the vnll of the woman.* It has been suggested that the charge of carnal knowledge is included in the word "ravished," but it is the safer practice to insert both the charges of ravishing and carnally knowing.* (t) Rape on Children Within the Age of Ten Years. — Under this provision of the statute, the indictment should follow the language of the act, charging that the defendant unlawfully and carnally knew the female, she being under the age of ten years; the word "ravished," which implies violence, being omitted.^ (m) Receiving Stolen and Umbezzled Goods. — An indictment for receiving embezzled goods need not aver that the person • 1 Ry. & Moo., 210; 5 Wend., 10, 271. » 2 Leach, 796 ; 2 Ld. Raym., 886. > Elkin V. Peo., 28 N. Y., 177. • Gougleman v. Peo., 3 Park., 15 ; 1 Russ. on Or.; 561 ; 1 Hale, 632 ; 12 Serg. & R., 69. ' 3 Chit. Cr. L., 812. • Davis Just., 371. 156 OF THE INDICTMENT. by whom they were embezzled was the clerk or servant of the owner. Such an averment would be necessary in an indict- ment for embezzling; but the same averments are not neces- sary in an indictment for receiving embezzled goods as are necessary in an indictment for embezzling. An allegation of feloniously embezzling and receiving, with a description of the t property, and the name of the owner as well as of the person embezzling, is sufGicient, and the means by which the embezzling was accomplished need not be stated.^ In an indictment for receiving stolen goods it is not sufficient to allege merely that the defendant received the stolen property knowing it to be stolen. It must be averred that the property was received with a felonious and fraudulent intent.* It is not material that the thief should be named or described. Nor is the name of the thief, if given, an essential matter of description.^ The indictment need not set forth that the goods were received upon any consideration paid. If they are feloniously received, whether any consideration passed or not, it is within the statute.* 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.* In order 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 offence of the defendant was an existing corporation.^ (t;) Robbery. — At the common law the technical words "feloniously, violently and against the will," were essential; but it was said to be usual, though not essential, to allege a putting in fear.'' But where under our statute the putting in fear con- stitutes the means by which the offence is committed, this aver- ment should also be inserted in the indictment. (w) Selling Liquor Without License. — ^A count for selling ' Peo. V. Stein, 1 Park., 202. See 5 Den., 76. ' Peo. I). Johnson, 1 Park., 564. = Peo. V. Caswell, 21 Wend., 86. * Hopkins w. Peo., 12 Wend., 76. ' Chatterton v. Peo., 15 Abb., 147. • Cohen «. Peo., 5 Park., 330. ' 1 Hale, 534; Post., 128 ; 3 Inst., 68 ; 2 Euss. on Or., 87-90; 2 East P. C, 783, 784; 7 Mass., 242. INDICTMENTS FOR SPECIfIC OFFENCES. 157 liquor without a license, which specifies a great variety of liquors sold, is not objectionable as embracing more than one offence. The different liquors are to be regarded as having been sold at one and the same time, and as constituting but one transaction, the description of various sorts of liquor being given with a view to avoid the difficulty of a possible misdescription of the article sold.^ An indictment for selling on "June 1, 1836, and divers other days," etc., was held good as to the day specified, the uncertain time being rejected as surplusage.* In such an indictment it is not necessary to specify the persons to whom the sales were made.^ In an indictment for the unlawful sale of liquor without a license the defendant was alleged to have made the sale "without having obtained a license therefor, or without being in any way authorized to sell the same," it was held that the latter clause of the allegation being surplusage, the use of the disjunctive " or " did not introduce any uncertainty, and therefore was not fatal.* (oj) Seduction. — An averment of mutual promises of marriage is not necessary in an indictment, under the statute, for this offence. It is sufficient to aver, in the language of the act, that the prosecutrix was seduced under promise of marriage.^ (y) Second Offence. — ^In a prosecution for a second offence, in a case where an increased punishment is prescribed for a second offence, the indictment must set forth the first offence.® In an indictment for petit larceny, charged as a second offence, an avennent that at, etc., the prisoner " was convicted of petit larceny," is enough, without giving particulars.'' But such indict- ment must aver a pardon for the former offence, or other discharge. The statute requires not only a former conviction, but that the prisoner shall have been pardoned or discharged.^ But where the former conviction was before a court of limited jurisdiction, the indictment should be more specific. Thus, an indictment for ' Peo. V. Adams, 17 "Wend., 475. See Hodgman v. Peo., 4 Den., 235. ' 17 Wend., 475. " Id. See Peo. v. Hodgman, 4 Den., 235; Peo. v. Tounsey, 5 Id., 70 * Peo. V. Gilkinson, 4 Park., 26. ' Orozier v. Pec, 1 Park., 453. • Peo. V. Youngs, 1 Cai., 37. ' Stevens v. People, 1 HiU, 261. » Id. 158 OP THE INDICTMUNT. a second offence of petit larceny, the first conviction being before a court of special sessions, should show the facts necessary to give that court jurisdiction of the defendant's person. A general allegation that the court before which he was convicted, then and there had competent power and authority to try and convict him of the offence, is insufficient. The former conviction having been before a court of limited jurisdiction, the facts giving jurisdic- tion must be alleged.^ And an indictment for a second offence was held defective because it did not show that the offence was committed within the county where the court was holden, or that the accused requested a trial before the justices, or that he refused to give bail, without which the special sessions in that case had no jurisdiction. In settiog out the proceedings of a court of inferior or limited jurisdiction, the record should always state sufficient to show that such court had jurisdiction in the case.* But an objection to such an indictment, on the ground that, instead of setting out the facts giving jurisdiction upon the former conviction, it merely avers jurisdiction in general terms, is too late if made for the first time after conviction. The defect is one of form merely, and does not prejudice the defendant.^ . ' Peo. V. Powers, 6 N. Y. (2 Seld.), 50. = Peo. V. Oook, 2 Park., 12. See 4 Park., 226. ' 2 K. S., 728, § 52; Peo. v. Powers, 6 N. Y., 50; Peo. v. Golden, 3 Park., 330. CRIMINAL EVIDENCE. 159 CHAPTER IV. CRIMINAL EVIDENCE. The word evidence is a derivation from Words signifying to see, to know, and by a natural transition is applied to denote the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.^ It is not intended within the compass of this work to do more than state the principal leading rules which are most likely to occur during the progress of a criminal trial, with some few sugges- tions upon such questions as are most frequently met with in criminal practice. The first point in every trial is to establish the facts of the case, for he who fails in his proof fails in every- thing. Evidence and proof are often confounded, as implying the same idea. Proof is the eflfect of evidence; evidence is the means or medium of proof. They may be likened to cause and effect. Evidence is the legal process by which proof is made. Proof is the legal credence which the law gives to any statement by witnesses or writings, and the law admits of no proof except what is made by its own principles. The proof must be held to be complete on the part of prosecutor when he produces the best evidence which the case will afford, and such as shall induce the jury to believe the commission of the fact until it is refuted by opposite evidence on the part of the defendant. One story is good until another is told. When the evidence is believed, and it is sufficient to accoimt for the fact, no other proof is necessary. Every substantial affirmative allegation in the indictment material to the constitution of the offence must be made good by the prosecution. The court and jury must be satisfied by proof founded upon legal evidence that the material allegations of the indictment or warrant are true, and that the prisoner is guilty of the commission of the criminal accusation whereof he stands charged. Too much caution cannot be exercised; too little scrutiny cannot be had. The human mind, in the exercise of its • Wills on Cir. Ev., 2. 160 CRIMINAL EVIDENCE. iudgment, is always liable to be deceived, whatever may be the character of the evidence on which the judgment is to be formed, and as was remarked by a learned judge:^ "Whenever any one talks of disregarding any kind of evidence because it is possible that it may lead us into error, he casts to the wind the immortal mind which the Creator has given to us for the very purpose of reasoning and drawing just conclusions." Truth is said to be either abstract and necessary or probable and contingent.'' And each of these kinds of truth is discoverable by appropriate but necessarily different kinds of evidence. Evidence is therefore of two kinds: direct or' positive evidence, and circumstantial or presumptive evidence. The latter kind of evidence is • more' frequently met with in criminal prosecutions than in civil actions. Men conscious of criminal purposes and about the execution of criminal acts seek the security of secrecy and darkness. The necessity, therefore, of resorting to circumstantial evidence, if it be a safe and reliable proceeding, is obvious and absolute, and it is necessary in such cases to use all other modes of evidence besides that of direct testimony, providing such evidence may be relied on as leading to safe and satisfactory conclusions, and the laws of nature and the relations of thiugs to each other are so linked and combined together that a medium of proof is often furnished leading to inferences and conclusions as strong as those arising from direct testimony.^ A great deal of the confusion which has arisen in regard to the proper weight which should be attached to the testimony of a witness whose veracity is undoubted, has arisen from want of a proper discrimination between the witness' knowledge of the fact as testified to by him and his belief as to its having trans- pired. A witness may be said to know only that which he has derived through the medium of his senses; all else is the subject of his belief. What he sees with his eyes, hears with his ears, or tastes, touches, or smells, through the proper organs, he knows; and whatever is not conveyed to him through his senses is mere belief. This distinction between " knowledge " and " belief" is but little understood by witnesses, when they are once themselves satisfied of the truth of their statement, although there may not ' Peo. V. Bodine, 4 N. Y. Leg. OlJs., 90. » WiUs, 3. " Bemis' Webster's Case, 462. CRIMINAL EVIDENCE. 161 be the least ground for its assertion and not a particle of legal evidence to support it, though the conclusion may have been arrived at by the most fallacious process of reasoning, and although the premises from which the conclusion may have been illogically drawn are false and absurd, they will insist with the greatest pertinacity that they know it to be true. "Who has seen the female ^vitness that any amount of reasoning could induce her to vary from the positive assertion that she 7mew only what she believed; and how often have we seen her male counterpart who, with equal' stubbornness, would insist that he knew only what he believed, because, to use his own explanation, " it stands to reason." Thus, a witness may testify positively that he knows there is such a city as London, though he may have been bom and resided his whole life in the city of New York, without having ever stepped over its boundaries; and all the argument that cah be used will not induce him to vary from the statement he has made of his positive knowledge of the existence of such a city as London. Yet he has no knowledge of the truth of the statement he has made. He has never been in London, nor has he ever seen it, or derived any knowledge whatever of its existence through the medium of his senses. All that he is able to testify to is his simple belief of its existence, which belief is derived from a variety of circumstances of which he has a knowledge, that is, informa- tion derived through his senses. Thus, he may have seen many books, papers and letters, and read in them accounts of the city of London. He may have seen charts and maps upon which it was laid down and represented; and he may have seen and con- versed with credible persons, who may have told him that they had seen London, and have giVen him an account of it; and his grounds of belief derived from all these different sources may be as satisfactory to him as if he had actually been to London and seen it himself, and thus have derived actual knowledge of its existence through the medium of his senses. Too much caution cannot be exercised in guarding against the evils attendant upon the confounding of "knowledge" and "belief" by the witness. It is too often the case that inaccuracies, and even falsehoods, from being allowed to pass without examination, and from being often repeated, soon become notorious to every one. Their truth is not doubted, and the witness who has but a mere belief upon C. P. Vol. H— 11. 162 CRIMINAL EVIDENCE. ^ the subject (founded upon common rumor, or the hearsay state- ments of other persons, who have no means of knowledge what- ever themselves, and who, in their turn, have based their opinions upon the statements of other persons either unlmovra or forgot- ten) has become thoroughly imbued with the belief that they are true, and, however conscientious he may be, he is ready, by reason of an imperfect understanding of the diflference between " knowl- edge" and "belief," to testify that he kmws the matters he has related. Therefore the first point in the examination of a witness is to ascertain whether the statements to which he has testified are facts within his own knowledge, that is, information which he has derived through the medium of his own senses, or whether they are mere beliefs which he entertains, founded upon the exercise of his reasoning powers, and based upon the ocQurrence of other facts and circumstances. If they consist of the first, that is, of his own individual knowl- edge in relation to the matter, which in law is termed direct evidence (as where, in a case of homicide, the witness should testify that he saw the prisoner at the bar strike the deceased; saw the weapon in the hand of the accused, and its entry into the person of the deceased, and was present and witnessed his death), the jury may still resort to circumstantial evidence to test the credibility of the witness who has testified to the direct evidence. Thus, an inquiry may be had to ascertain the means of his knowl- edge; was his vision impaired so that he could not see distinctly; was the transaction at a distance from the witness; were there intervening objects likely to interfere with or obscure the vision; what is the general capacity of the witness; was he able to see and fully understand the transaction; was he careless or atten- tive; or was he laboring under undue excitement at the time, so as not to be able to remember distinctly what he saw. Again, after the jury have satisfied themselves that the state- ments of the witness are founded upon his knowledge find not his belief, and that his means of knowledge were sufficient and his organs of sense through which that knowledge was derived were perfect and in proper condition, and the witness in a suita- ble place and proper condition of mind to know what he has testified to, they may still farther resort to the surrounding f9,cts and circumstances to ascertain whether his statements are CRIMINAL EVIDENCE. " 163 genuine. Has he told what he considers the truth, or has he willfully either misrepresente^d the transaction which he saw, or is his statement a fabrication of what actually happened and which he did not see, or has some wicked motive led him to fabricate that which he did not see and which did not happen, and, as was remarked in the Peo. v. Bodine, 4 N'. Y. Leg. Obs., 98 : " We thus appeal to circumstantial evidence to test the degree of credit to which that wljjch is direct may be entitled, and it is universally true, in court and out of it, that we nevpr take posi- tive evidence as to any fact without looking for circumstances either to support or contradict it." Ifi however, the statements made by the witness should upon his examination be seen not to consist of his knowledge in the matter, that is, derived through the medium of his senses, but to consist simply in his belief, we are to inquire into that belief and see of what it consists and the grounds of its foundation. Hence, we have the general rule that the opinion of the witness is not evidence; he must speak as to facts. If; in our examination, it appears that the belief of the witness is founded upon the simple narrations of other persons, it is to be excluded; hence, again, hearsay evidence of a fact is not admissiblCj arid it is a general principle in the law of evidence that if a fact is to be substan- tiated against a person, he who is to be affected by the evidence is entitled to an opportunity of interrogating the witness as to his means of knowledge and concerning all the particulars of the fact. But if the statement of the witness should appear to be his belief, based upon conclusions or opinions formed by his reasoning upon collateral facts and circumstances, the court and jury are to ascertain what those facts and circumstances were; and if the same are admissible upon the trial as legal evidence, they are to arrive at their own determination and conclusion, instead of taking that of the witness* Those facts and circum- stances which are not direct or positive in their nature are generally designated by the name of presumptive or circumstan- tial evidence, or as Sir William Eussell has remarked, 'citing Chief Baron Gilbert:^ " When a fact, itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances that necessarily or usually attend such facts, and are called presumptions, not proofs, for they stand instead ' 2 Russ. on Cr. 72G; 1 Gilbert's Ev,, 142. 164 CRIMINAL EVIDENCE. of the proofs till the contrary be proved. In criminal cases, from the secret manner in which guilty actions are generally perpetrated, it is seldom possible to give direct evidence of the commission of the oflPence charged, i. e-, to produce a witness who saw the act committed, and therefore recourse must be had to presumptive (or as it is often called circumstantial) evidence; i. e., the direct evidence of circumstances from which the com- mission of the act may be presumed byjihe jury." Circumstantial evidence has sometimes been divided into Qertain circumstantial evidence and presumptive circumstantial evidence. Certain circumstantial evidence is said to be when a conclusion necessarily follows from the facts. A familiar case cited in the books is where a will is produced by a party bequeathing to him certain lands that had belonged to one of his ancestors. Wit- nesses-are brought forward who swear positively and directly to the fact that the will was executed by the party whose signature it bore, and executed at a certain time; that they were present when the ancestor signed it and affixed his seal, and that they signed their names at the tim^. The chain of direct evidence is complete. One of the witnesses swears that when the ancestor executed the will he put a sixpence in the wax of which the seal was composed, for the very purpose of having it identified. The seal is broken in court, and there indeed is the sixpence, but the coin is of the reign of George the Third, while the will is dated in the time of George the Second. Now, it may be urged that the circumstances stated above were those constituting a case of certain circumstantial evidence, betraying the whole fraud and forgery in the case. But why can it be said to be certain? Is it more than a violent or necessary presumption, under the known circumstances of the case, of such fraud and forgery? Who can tell, as the .case stands, but what, in reality, the testator never enclosed a sixpence in the wax of the seal at all, and that the will was a genuine instrument, but that some relative of the testator, who was not named in the will, and who, if the will was invalidated, would receive a portion of the property, had himself secretly caused a coin of a later date than the date of the will to be inserted in the waxen seal, and then bribed one of the witnesses, who really saw the testator sign the will, to swear falsely in regard to the placing of the coin in the seal, for the very purpose of drawing attention to the discrepancy in the dates, CRIMINAL EVIDENCE. 165 that the result of such discovery might impeach the validity of a genuine will, and thus inure to his benefit? Another case fre- quently quoted as illustrating the doctrine of certain circum- stantial evidence, and perhaps a strong one as can be selected, is that where the question arose whether the death was the result of suicide or of murder. The difficulty was to ascertain whether any person was present at the time death was inflicted. There was found upon the left arm of the deceased the mark of a bloody left hand. It certainly could not have been that of the deceased; there was a certainty about that. The fact was thus by circum- stances established that somebody besides the deceased had made this mark; that was a certain conclusion flowing from these cir- cumstances; but the conclusion was by no means certain that any person was present at the time of the death and participating in it, for some one might have stepped in while the suicide was in his last moments, or might have been present, even, when the act was perpetrated, and made the mark in an attempt to prevent the deed. The certainty gf a conclusion as arrived at in a juror's mind is based, in many instances, upon the frequency with which he has observed the same or a similar cause produce a given effect. Too much jcare cannot be exercised in the investigation of such cases. The number of times which a given cause must be required to produce a given effect, in order to warrant a man in arriving at the definite conclusion that a similar cause will, with absolute certainty, again produce a like effect, will depend upon the individual's observation and the degree and intensity of proof required by him. The result of human experience in witnessing the relation of cause apd effect in numerous instances has been so well ascer- tained and determined that it would be unwise to. question the propriety of the customary practice in courts of justice in this respect; for if this rule should be departed from, there is none left to guide us; and the best we can do is to use great strictness and caution by the observance of logical rules, and not haste to imperfect conclusions. The result of the operations of the calcu- lating machine constructed by Mr. Babbage presents matter on the subject of inductive reasoning, illustrating the necessity of using great caution in such instances. In the language of the 166 CRIMINAL EVIDENCE. inventor,* " let the reader imagine such an engine has been adjusted; that he sits down before it, and observes a wheel which revolves through a small angle round its axis, at' short intervals, presenting to his eye successively a series of numbers engraved on its divided circumference. Let the ligures thus seen be the series 1, 2, 3, 4, 5, etc., of natural numbers, each of which suc- ceeds its antecedent by unity. Now, reader, .let me ask you how long you will have counted before you are finally convinced that the engine has been so adjusted that it will continue, while its motion is maintained, to produce the same series of natural num- bers? Some minds are so constituted that, after passing the iirst five hundred times, they will be satisfied that they are acquainted with the law. After seeing five hundred terms, few will doubt; and after, the fifty thousandth term, the propensity to believe that the succeeding term will be fifty thousand and one' will be almost irresistible. That term will be fifty thousand and one, and the same regular succession Tvill continue; the five million and the fifty millionth term will still appear in their expected order, and the unbroken chain of natural numbers will pass before your eyes, from one up to one hundred million. True to this vast induction which has been made, the next succeeding term will be one hundred million and one, but the next number presented by the rim of the wheel, instead of being one hundred million and two, is one hundred million two thousand and two, and the law which seemed to govern the series fails at the one hundredth million and second term. This term is larger than we expected by ten thousand, and the next term is larger than we anticij)ated by thirty thousand. If we now continue to observe the numbers presented by the wheel, we shall find that they fol- low a law relating to triangular numbers; but after watching them for two thousand, seven hundred and sixty-one terms, we find that this law fails in the case of the_^two thousand, seven hundred and sixty-second term." It may, however, be said to be more humane to call all cir- cvunstantia,! evidence presumptive, and a precise and intelligible classification of presumptions may be made into those which are violent or strong, those which are probable and those which are slight. Mr. Wills defines a presumption to be a probable con- sequence drawn from facts (either certain or proved by di;reet ^ Ninth Bridgewater Treatise, Babbage. CRIMINAL EVIDENCE. 167 testimony) as to the truth of a fact alleged, but of which there is no direct proof.^ It follows, therefore, that a presumption of any fact is an inference of that fact from others that are known. ^ The word presumption, therefore, inherently imports a conclusion of the judgment, and it is applied to denote such facts or moral phenomena as from experience we know to be invariably or com- monly connected vrith some other related fact.* Chancellor Walworth, in this state, has classified presumptions in this respect into these three classes:* 1st. Violent presumptions, i. e., where the facis and circumstances proved would necessarily attend the fact presented. As if your horse had been shot in the stable by a musket ball, and it was proved that a. man was seen immediately before to load his gun and go into the stable, that the report of a musket was heard in the stable, and that the mau immediately came out with his gun unloaded and fled. These circumstances would raise a violent presumption that the man ishot the horse, because the loading of the gun, the report in the stable, and the gun being unloaded when he came out, are all facts which must necessarily attend the fact presumed, to wit, that he shot the horse. And upon such testimony unexplained it would be the duty of a jury to give a verdict against him, equally as it would be if the shooting of the horse was posi- tively sworn to by the same witness. For in either case, if the witness was to be credited, there could be no reasonable doubt of the guilt of the accused, although there was a possibility of his innocence. 2d. Probable presumptions, i. e., where the facts and circumstances proved usually attend the fact presumed. As if your horse is stolen and shortly thereafter he- is found in the possession of the accused, who refuses to give any explanation as to the manner in which the horse came into his possession. These circumstances raise a probable presumption that the accused committed the theft. It is every day's practice to con- vict on such circumstantial evidence if the transaction is unex- plained. 3d. Light or rash presumptions, i. e., where the facts and circumstances proved might probably attend the feet pre- sumed. As if a man gave medicine to his wife and she died' ' Wills' Cir. Ev., 17. ' Rex V. Burdett, 4 B. & Aid., 151. ' Wills, 17. * Peo. V. Videtto, 1 Park., 607. 168 CRIMINAL EVIDENCE. shortly afterwards, it would be a light presumption of the fact that he had given her poison instead of medicine, and could not legally authorize his conviction for murder. But there are many circumstances which, taken separately, would only amount to light or rash presumptions, and as such entitled to no weight, which, if they were well proved and connected together in one case, might amount to probable or even violent presumption of guilt. As if a wife die very suddenly, with the usual symptoms of having been poisoned; it is proved that she and her husband were on ill terms; that he had threatened her lif©; that he gave her liquor to drink shortly before those symptoms appeared; that he was seen to put something into the bottle of liquor; that he purchased arsenic the day before; that the bottle being inquired for he immediately threw away the liquor remaining therein; that he gave no satisfactory account of what had been done with the arsenic; that he caused her to be buried unusually soon after her death, and that the contents of her stomach, on being analyzed, were found to contain arsenic. Each of these circumstances taken by itself, and perhaps two or three of them together, would be nothing more than rash or light presumptions of the 'guilt of the husband. But if all the circumstances enume- rated were satisfactorily proven" by credible witnesses, and were left unexplained by the accused, they might, when taken together, carry irresistible convictipn to the minds of the jury that he had killed his wife by poison. This is what is called a chain of cir- cumstances, a,nd in proportion to the number, to the strength and to the close connection of the linlis of which that chain is com- posed, musf be its power' to draw the minds of the jury to the conclusion of fact which it is intended to establish. Presumptions are also divided into natural presumptions and legal presuniptions. All presumptions connected Avith human conduct are inferences founded upon the observation of man's nature a's a sentient being and a moral agent; and they are neces- sarily infinite in variety and number, differing according to the diversities of individual charaicter and to the innumerable and ever chpging situations and emergencies in which men are placed; heqce the importance of a knowledge of the instincts, affections, desires and moral capabilities of our nature to the correct deduction of such presumptions as are founded upon CRIMINAL EVIDENCE. 169 them, and which are therefore called natural presumptions.* Legal presumptions are founded upon natural presumptions, being such natural presumptions as are connected with human actions, so far as they are authoritatively constituted by the legislator or deduced by the magistrate.* Such as the presump- tion of innocence until the contrary be proved; the presumption of the incapacity of certain infants to commit crimes, and the the like, as well as those acts which are by statute made legal presumptions of guilt, and the burden of proving matters of defence, are expressly cast upon the party charged with the crime. As to what is meant by a natural presumption as distinguished from a legal presumption, let us take the case of Polly Bo dine. One question which arose was whether the front door was fastened at the time of the fire. The judge, in his charge to the jury, said: "You can judge only from the circumstances. The bar had not been up. If it had been, it would have been charred or marked by the fire, yet it was not. The end only of the bolt of the lock was discolored by the action of the fire, and not the other parts, which would have been marked if it had been thrown forward by the key. So, on the sliding bolt, the parts which would have been exposed to the action of the fire when the door was not bolted were discolored, while the other parts, which would have been thus exposed if the door had been bolted, were not. Now, here you have the direct evidence that certain parts of the fastenings were discolored, and you have the certain con- clusion drawu from the circumstances that the qther parts had not been exposed to the fire, and from those circumstances you are called upon still further to conclude, or to presume, that the door was not fastened — a point on which you cannot be certain, but on which you may draw safe and satisfactory conclusions." In the same case one of the witnesses felt the outside of the stove in the room where the fire was discovered, and found it warm; he had the good sense to open the door and feel the ashes inside- he found them cold. This is direct evidence that the ashes were cold. From that the inference follows that there was then no fire in the stove. This the learned judge stated to be certain circumstantial evidence. There is, however, another step " Wills, 18 ; 3 Mascardus de Pro Conclu. » WiUs, 19. 170 CKIMINAL EViDENCB. to be taken, and the jury were called upon to infer or presume that the fire in the house was not communicated from the stove. This is presumptive circumstantial evidence; yet it is not certain, and cannot be, because the jury could not know that the fire had not been removed from the stove and cold ashes put into it for the purpose of producing the very conclusion which the jury were invited to arrive at.* A great deal has been written and said in regard to the rela- tive strength and bearing of direct and circumstantial evidence, and it has been said that they ought not to be placed in contrast, since they are not mutually opposed, for, as it is remarked, evidence of a circumstantial and secondary nature can never be justifiably resorted to except where evidence of a direct and therefore of a superior nature is unattainable.^ And although it may be true tha^; either party is bound to produce the best proof which he can produce, yet the prisoner's mouth being closed, and he thus precluded from introducing direct evidence by his own testimony, in many cases the only evidence he can adduce is in its nature presumptive; and cases have arisen where the best balanced minds have inclined to consider strong circumstantial evidence, especially where many circumstances happen over which the prisoner could have no control, forming the connecting links in a transaction, as more satisfactory than the direct evidence of witnesses- to the contrary. And it is at this point that the diffi- culty has arisen. Legal writers say that direct evidence in its nature is superior to circumstantial, which is but secondary. Jurors will S9metimes refuse to convict upon circumstantial evidence at all; and again, throwing aside the opinions of the legal writers, will consider it as of the most satisfactory nature to them. Each of these modes has its advantages and disad- vantages; it is not easy to compare their relative value. The advantage of direct evidence is, that you have the direct testi- mony of a witness to the fact to be proved, and who, applying the tests previously laid down in cases wtiere the witness testifies to his knowledge, of having due capacity, being attentive, able to see, understand and explain what he saw and understood (if he speaks the truth), saw it done, and the only question is whether he is. efttitled to belief. The disadvantage is that the •^b^ ' 4 N. Y. Leg. Obs., 92. » Wills, 30. CRIMINAL EVIDENCE. 171 witness may be false and corrupt, and the case may not afford the means of detecting his falsehood. In the Webster case it was said that in a case of circunistantial evidence, where no witness can testify directly to the fact to be proved, you arrive at it by a series of other facts, which by experience we have found so associated with the fact in question as in the relation of cause and effect, that they lead to a satisfac- tory and certain conclusion. As where footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell, and from the form and number of the footprints it can be determined with equal certainty whether it was a man, a bird or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and co-incidences establishing a connection between the known and proved facts and the facts sought to be proved. The advantages are, that as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their pur- pose. The disadvantages are, that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them, iu doing which they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions — a source of error not existing in the consideration of direct or positive evidence.^ In the same case it was observed that strong circumstantial evidence in cases of crime committed for the most part in secret, is the most satisfactory of any from whence to draw the conclu- sions of guilt, for men may be seduced to perjury by many base motives to which the secret nature of the offence may sometimes afford a temptation, but it can scarcely happen that many circum- stances, especially if they be such over which the accused could have no control, forming together the links of a transaction, should all unfortunately concur to fix the presumption- of guilt on an individual, and yet such a conclusion be erroneous. Chancellor Walworth once said:'^ "In most cases, of convic- tion upon presumptive proof or circumstantial evidence there are many different witnesses swearing to several distinct circum- ' Bemis' Webster's Case, 462. ' Peo. V. Videtto, supra. ■ 172 CRIMINAL EVIDENCE. stances, all tending to the same result, each of which circum. stances is a necessary link in the chain of evidence required to produce a conviction of the accused, and there is, therefore, the less danger of perjury in such cases, in consequence of the num- ber of perjured witnesses which it would be necessary for the prosecution to produce to effect an unjust conviction. For, if one perjured witness should swear to a fact forming only one link in a chain of circumstances, the rest of the witnesses being honest, he will be in danger of detection from the discrepancy between his testimony and theirs, when he might have sworn positively but falsely to the commission of the crime by the accused with- out the possibility of being contradicted. For this reason, although from the imperfection and uncertainty which must ever exist in all human tribunals, I have no doubt that there have been cases in which innocent persons have been convicted on presump- tive proofs, yet from my knowledge of criminal jurisprudence, both from reading and from observation, I have no hesitation in expressing the opinion, that where there has been one unjust con- viction upon circumstantial evidence alone, there has been three innocent persons condemned upon the positive testimony of perjured witnesses. Wills, citing Buenett and Paley, says: " It has been said that circumstances are inflexible proofs; that witnesses may be mistaken or corrupted, but things can be neither. ' Circumstances,' says Paley, ' cannot lie.' It is astonishing that sophisms like these should have passed current without animadversion. The ' cir- cumstances ' are assumed to be, in every case, established beyond the possibility of mistake, and it is implied that a circumstance established to be true possesses some mysterious force peculiar to facts of a certain class. Now, a circumstance is nothing more or less than a minor fact; and it may be admitted of all facts that they cannot lie, for a fact cannot, at the same time, exist and not exist. So that, in truth, the doctrine is merely the expression of a truism- that a fact is a fact. It may also be admitted that ' cu-- cumstances are inflexible proofs,' but assuredly of nothing more than their own existence. So that this assertion is only a repe- tition of the same truism in different; terms. It seems, also, to have been overlooked that circumstances and facts of every kind must be proved by human testimony; that, although ' circum- stances cannot licj' the narrators of them may; and that, like CRIMINAL EVIDENCE. 173 witnesses of all other facts, they may be biased or mistaken. So far their circumstantial evidence possesses no advantage over direct evidence."^ And if the circumstances cannot lie, but the witnesses can, from whom are the circumstances obtained but from the witnesses? And here the juror is liable to two deceptions; first, in the narration of the witness, and, second, in his applica- tion of those circumstances. Where the fact is positively sworn to as seen by the witness, the conclusion or inference to be drawn from it is generally obvious; but where the inference is to be drawn from a long train of circumstances, it is a matter of judg- ment and an exercise of the understanding; and as all men do not understand alike, very opposite conclusions are sometimes drawn from the same shades of probability. As we only know facts through the medium of witnesses, the truth of the fact depends upon the truth of the witness, so that, although he furnishes us with a thousand facts, it is of no consequence if he himself is imsound. The statesman Bueke advanced in unqualified terms the propo- sition that, "when circumstantial proof is in its greatest perfec- tion, that is, when it is most abundant in circumstances, it is much superior to positive proof." ^ Pai-et, with more caution, says "that a concurrence of well authenticated circumstances com- poses a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually afibrds." ^ In the case of Mary Blandy, the judge told the jury that " where a violent pre- sumption necessarily arises from circumstances, they are more convincing and satisfactory than any other kind of evidence, because facts cannot lie." * Mr. Justice BuLtEE, in his charge to the jury in Captain Donnellan's case, declared "that a presump- tion which necessarily arises from circumstances is very often more convincing and more satisfactory than any other kind of evidence, because it is not within the reach and compass of human abilities to invent a train of circumstances which shall be so con- nected together as to amount to a proof of guilt without affording opportunities of contradicting a great deal, if not all, of these cir- cumstances." ^ ■ Wills' Cir. EV., 27; Burnett on C. L. of Scotland, 523; Paley M. & P. Philos., Bo. 6, ch. 9. ' 2 Burke's Works, 624. » Prin. of M. & P. Philos., bk. 6, ch. 9. * State Trials, vol. 18, p. 1187 * Gumey's Report, trial of John Donnellan for murder of Sir T. Broughton, Bart. 174 CRIMINAL EVIDENCE. Mr. Wills, in commenting upon the above authorities, says it is obvious that the doctrine laid down in these several passages is propounded in language which not only does not accurately state the question, but implies a fallacy, and that extreme cases, the strongest ones of circumstantial, and the weakest of positive evidence have been selected, for the illustration and support of a general position. " A presumption which necessarily arises from circumstances " cannot admit of dispute and requires no corrobo- ration, but then it cannot in fairness be contrasted with and opposed to positive testimony unless of a nature equally cogent and infallible. If evidence be so- strong as necessarily to pro- duce certainty and conviction, it matters not by what Teind of evidence the effect is produced, and the intensity of the proof must be precisely the same, whether the evidence be direct or circumstantial I It is not intended to deny that circumstantial evidence affords a safe and satisfactory ground of assurance and belief, nor that in many individual instances it may be superior in proving power to other individual cases of proof by direct evidence. But a jiidgnient based upon circumstantial evidence cannot in any case be more satisfactory than when the same result is produced by direct evidenccj free from suspicion of bias or mistake. Perhaps no single circumstance has been so often con- sidered as certain and unequivopal in its feflect as the anno domini water mark usually contained in the fabric of writing paper, and in many instances it has led to the exposure of fraud in the pro- pounding of forged as genuine instruments. But it is beyond any doubt, and several instances of the kind have occurred, that issues of paper have taken place bearing the water mark of the year succeeding that of its distribution — a striking exemplification of the fallacy of some of the arguments which have been remarked upon. How often has it been iterated in such cases that circum- stances are inflexible facts, and that facts cannot lie. Take again, the remarks of the court in the Webster case, citing the footprints discovered in the recent snow as evidence that some animated being had passed over the snow since it fell, and illustrate it by the case of the man who re-shod his horse, turning the shoes in a contrary direction, and of the Indian who placed his snow shoes upon his feet in a reversed position, for the purpose of causing the pre- sumption to arise that they had travelled in a different direction from the true course pursued j and also the cases of the thief who CRIMINAL EVIDENCE. 175 transferred marked money from his own pocket into that of another person, or surreptitiously put on the shoes of another person while engaged in the commission of crime, that the impressions of the footsteps might lead to the inference that the crime was committed by a third party. Baron McDonald has more accurately stated the proper effect of circumstantial as compared with direct evidence. Thus, in one case he said, " When circumstances connect themselves closely with each other, when they form a large and strong body, so as to carry conviction to the minds of a jury, it may he proof of a more satisfactory sort than that which is direct. In some lamentable instances it has been known that a short story has been got by heart by two or three witnesses; they have been consistent with each other, swearing positively to a fact, which fact has turned out afterwards not to be true. It is almost impossible for a variety of witnesses, speaking to a variety of circumstances, so to concert a story as to impose upon a jury by a fabrication of that sort, so that where it is cogent, strong and powerful, where the witnesses do not contradict each other, or do not contradict themselves, it may be evidence more satisfactory than even direct evidence, and there are more instances than one where that has been the case."^ And in another case the same judge said: " Where the proof arises from a number of circumstances which we cannot conceive to be fraudulently brought together to bear upon one point, that is less fallible than under some circumstances direct evidence may he? Direct and circumstantial evidence so closely hinge upon each other that it is often vexatious to attempt to discriminate between them. As before stated, circumstances are always looked to, to support or contradict direct evidence, and direct evidence is absolutely necessary to prove the facts upon which the inference in circumstantial evidence is based. One sustains and supports the other. Where, then, is the line to be drawn by which one is to be used and the other withheld? or how can any definite rule be laid down by which one is to be deemed more satisfactory than the other?. With the facts clearly proved, beyond a doubt, in either case, if a logical process of reasoning is adopted, and a soimd judgment exercised, the result must be the same in both. ' Rex v. Patch, Surrey Assizes, 1806. ' Rex V. Smith, Old Bailey, 1813. 176 CRIMINAL EVIDENCE. The danger of circumstantial evidence lies, first, in the liability of the senses to err where many facts are sought to be estab- lished, instead of one, as in direct evidence; and, second, in the danger of intended falsity where many witnesses are sworn to several facts instead of one to the main issue; and, third, in the danger of incorrect inferences and illogical conclusions from jurors not accustomed to close habits of reasoning, where the processes of inference and deduction are exercised, either upon several circumstances, or even a single one, remote from the main fact sought to be established. It has been said that, though, in most cases of circumstantial evidence, there be a •possibility that the prisoner may be innocent, yet the same often holds in cases of direct proof where witnesses may. err as to the identity of persons, or cormptly falsify for reasons that are at the time unknown.^ There are many cases where fatal mistakes have been discovered of persons too hastily convicted on mere circumstantial evidence, of which the judicial history of all countries afford many illustrations. Several inter- esting cases of this description will be found collected in Hale's Pleas of the Crown. But, in answer to them, it may be said that direct evidence, consisting of the testimony of the senses, though it afford the safest ground of moral assurance, cannot be explicitly depended upon, even where the veracity of the witness is above all suspicion. Many instances are upon record of the fallibility of human testimony, even as to matters supposed to be grounded upon the clearest evidence of the senses, aind where the miscon- ception has related to the substantive matters of judicial inquiry. Sir Thomas Davenant, an eminent barrister, a gentleman of acute mind and strong understanding, swore positively to the persons of two men whom he charged with robbing him in the open day- light. But it was proved, by the most conclusive evidence, that the men on trial were, at the time of the robbery, at so remote a distance from the spot that the thing was impossible. The con- sequence was that the men were acquitted, and some time after- wards the robbers were taken and the articles stolen found upon them. Sir Thomas, after seeing these men, candidly acknowl- edged his mistake.* Among the many cases of mistaken identity, where the evidence ' Burnett on C. L. of Scot., 524. ' R. D. Wood & Brown, 28 State Trials, 819. CRIMINAL EVIDENCE. 177 is direct and positive, which affqrd striking illustrations of the errors into which witnesses are led, where the medium of the senses is relied upon for forming the conclusion, may be men- tioned the following: Dr. KnuLOCK, of Drumoak, Aberdeenshire, relates a, case of mistaken identity, under extraordinary circum- stances. The body of a man, between sixty and seventy years of age, was found slightly imbedded in the sand on the bank of a river, both eyes having been picked out by hooded crows, but decom- position had made no progress. The left ear and the first finger of the left hand were wanting, having the appearance of having been lost in early life. The body was conveyed to a suitable place, and persons were requested by advertisements to come and identify it. After seme time, two young women claimed it as the body of their father, who they stated was a lawyer; that he was in the habit of leaving home for two or three weeks at a tipie, without informing them where he went, and that he had lost the left ear and first finger of his left hand. They apparently recog- nized the clothes and body, and gave vent to expressions of grief on the event. Subsequent doubts in the mind of one sister were overruled by the confident affirmations of the other. The funeral took place accordingly, and was attended by the daughters and friends of the supposed deceased lawyer. Eeturning from the funeral, the boatman of the ferry which they had to cross asked them for whom they were in mourning; and, upon receiving their answer, laughingly informed them that he had, only half an hour before, ferried their father over, alive and well, and directed them where they would find him. This, to their great joy, proved true. Whose was the body they had buried at Drumoak remained undiscovered. And cases might be indefinitely multiplied by citations from the annals of criminal procedure to show that nothing is more common than the failure of the nearest friends to identify the body of a deceased person, or than the most posi- tive judicial testimony in regard to the identity of persons found dead, but which subsequent events have proved to be utterly erroneous.^ Where the evidence is direct there must be proof of knowl- edge of the fact, and in Uke manner where it is circumstantial, there must be like direct proof of the facts and circmnstances • Whar. & Stelle. Med. Juris., 473; ed. Month. Jouin., 1850, 4 H. C. p. Vol. 11—12. 178 CRIMINAL EVIDENCE. upon which the conclusion is based, and upon -which the mind, through the exercise of its judgment in the investigation and acquisition of truth, may undergo the intellectual act by which one theory is affirmed and perceived of another, or the reverse. All proof must begin at a fixed point; the law never admits of an inference from an inference. Two imperfect things cannot , make one perfect. That which is weak may be made stronger, but that which has no substance cannot be corroborated. Where the evidence is direct, if the testimony be credible, belief is the necessary and immediate result. Whereas, in cases of circum- stantial evidence, processes of inference and deduction are essen- tially involved, frequently of a most delicate and perplexing character, liable to numberless causes of fallacy inherent in the very nature of the mind itself, and it is to these sources of fallacy and danger that circumstantial evidence is peculiarly liable, and of which it is necessary to be especially mindful. In circum- stantial evidence the circumstance and the presumption are too often confounded. The circumstance is always a fact; the pre- sumption is the inference drawn from that fact. It is hence called presumptive proof, because it proceeds merely on pre- sumption or opinion. The circumstance itself is never to be presumed, but must be substantially proved. An argument ought to consist in something that is itself admitted, for who can prove one doubtful thiug by another. Thus, it will not do to say that the deceased was supposed to be poisoned because it was believed that what he swallowed was arsenic, and that it was believed to be arsenic because he was supposed to be poisoned; for presumptions are consequences drawn from a fact that is known, to serve for the discovery of the truth of a fact that is uncertain and which one seeks to prove, and no presumption can be made but on a fact already known and ascertained. Thus, il the stains of blood on the coat of one tried for murder are to be presumed as evidence of his guilt, the fact of the stains being occasioned by blood must be first distinctly ascertained. The one presumption cannot be made to aid the other. The stains are not to be presumed from blood because he is presumed to have been the murderer; nor, on the other hand, is he to be believed the murderer because the stains are believed to be from blood, for this is reasoning in a circle and returning back to the point from whence the argument commenced. In law the argu- CRIMINAL EVIDENCE. 179 ment should be drawn from one reality to another, and not from reality to figure or from figure to reality. In the language of Mr. Baron Aldekson, " it is necessary to warn the jury against the danger of being misled by a train of circumstantial evidence. The mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little linlithat is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." ^ In a pamphlet review of Captain Donnellan's trial, mentioned above, it is stated that the following observation in the charge of Justice BuLLER, heretofore alluded to, deserves particular remark: " It is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof without affording opportunities of contradicting a great part, if not all, of these circumstances." The poet has said: " Oh, what a tangled web we weave When first we practice to deceive." But the judge's remark, above quoted, is one of those general sayings which, coming from high authority, is allowed to pass without examination. No other remark, however, was evermore refuted by experience. If the observation was just, we should find it illustrated by practice; but the instances of mistaken con- victions upon circumstantial evidence, as proven by judicial records, are more numerous than would be supposed.^ Sir J. HowLES, on College's trial, says that "reducing general words to particular facts clears the sophistry of them." ^ A regard to the peace and good order of society certainly requires that crimes should be proved by circumstantial evidence. But a regard to the well being of society likewise demands that the mode of proof should be regulated by some fixed rules, and ' See Rex v. Hodges, 2 Lew. C. C, 227; Best on Presumptions, 255; 3 Ben- tham's Jud. Ev., bk. 5, ch. 15, § 4; Wills' Cir. Ev., 32; Pamphlet review of Captain Donnellan's Case ; Novum Organum, lib. 1, alp., 41, 45. ' But see Videtto's case, cited supra. ' 3 State Trials, p. 621. 180 CEIlVnNAL EVIDENCE. among the most important of these rules may be stated the fol- lowing: 1st. A higher degree of certainty is necessary in criminal than in civil cases, because of the more serious and irreparable nature of the consequences flowing from the decision of the former, there must be an unbiased, moral conviction of guilt, not a prob- ability only.* 2d. The actual commission of the crime itself {the corpus delicti) shall be clearly established. Where the judgment of the law is passed in reference to a certain crime, the existence of that crime should be made, first, clearly to appear. Thus, on a charge of murder by poisoning, the fact of poisoning should be established beyond a shadow of a doubt before any person is convicted as the poisoner. Lord Hale said: " I would never convict any per- son for stealing the goods of a person unknown, merely because he would not give an account of how he came by them, unless there were due proof made that a felony had been committed. I would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead." * And it was likewise said by Lord Stowell that " to take presumptions, in order to swell an equivocal and ambiguous fact into a criminal act, would be an entire misapplication of the doctrine of presumptions."^ The proof must be clear and dis- tinct. Thus, in a case of horse stealing, a mere declaration in evidence that the horse had been stolen is not enough. The facts must appear, so that the judge and the jury may see whether such facts, in point of law, amounted to a felonious taking and carrying away of the property in question.* And it was also remarked by Chancellor Walwoeth that "no one should be con- victed of murder upon circumstantial evidence unless the body of the person supposed to have been murdered has been found, or unlesg there be other clear' and irresistible proof that such person is actually dead," * It is not necessary, however, that the corpus delicti should be established by direct evidence; but it may be proven by circumstantial evidence strong enough to leave ' 1 Euss. on Cr., 727. ' 2 Hale P. C, 290. ' Evans v. Evans, 8 Hogg. C-. R., 105. * Tyner v. State, 5 Humph., 383. • 1 Park., 609. CRIMINAL EVIDENCE. 181 no ground for reasonable doubt. Crimes, and especially those of the worst kinds, are naturally committed at chosen times and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present or admit, or society must be broken up; and it would be unreasonable to ■ reqtiire that the corpxis delicti should be proven by direct and positive evidence.^ 3d. Each circumstance shall be distinctly proved, for the grounds on which the inference is to be drawn must always of themselves be clear and certain. There is no presumption upon a presumption, and no inference from a fact not known. Care should be taken to distinguish suspicion from proof. A thou- sand suspicions do not form one proof. It is understood in common language by the term suspicion, the imagining of something ill without proof. It may therefore form a proper ground of accusation, but never of conviction. A suspicion is an impression on another man's mind; an inference is a logical deduction made from the fact itself. Presumptions cannot be founded on conjectures, and conjectures supposed from circum- stances never proved, and in the language of the chancellor above referred to, "Each circumstance should be satisfactorily estab- lished by evidence, and should not be presumed by an assump- tion of the fact that the accused is guilty; and if the existence of any circumstance against the accused is not established beyond all reasonable doubt, the jury should reject such circumstance." 4th. The circumstance relied on shall be such as is necessarily or usually incident to the fact charged. Says Chief Justice Hyde, speaking /)f homicide: "Nothing can be more dangerous or unjust in matters of this nature than to establish material dis- tinctions upon points which do not enter into the intrinsic merits of the case." '^ See also the remarks appended to the eleventh rule. 5th. When the number of circumstances depend on the testimony of one witness, that number shall not increase the strength of the proof ; for, as the whole depends on the veracity of the witness, when that fails the whole fails. Beccaria on Crimes^ says that, "when the proofs are dependent on each other, or when all the > Peo. V. Ruloff, 3 Park., 401 ; Wills, 159. « East P. C, 241. • Ch. 14. 182 CRIMINAL EVIDENCE, proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact; for the force of the whole is not greater than the force of that on which they depend, and if this fails they all fall to the ground; but when the proofs are distinct and independent of each other, the proba- bility of the fact increases in proportion to the number of proofs, for the falsehood of one does not diminish the veracity of another." 6th. The difficulty of proving the negative shall in all cases be allowed due weight; but the silence of the prisoner as to facts which, if innocent, he might have explained, shall be held an argument against him. This, however, is upon the supposition that he was apprised before his trial of what was intended to be produced. Where a prosecution is based ujaon circiimstantial evidence, and it appears that the accused has it in his power to produce evidence to explain it, and he omits to produce it, his omission affords a strong presumption against him. But such presumption does not arise from a mere omission to produce those persons as witnesses who might by possibility have knowl- edge on the subject, but those only who are proved to have been so circumstanced as to warrant the conclusion that they must have such knowledge.^ So, also, in a criminal trial, when circumstan- tial evidence has been adduced tending to show the guilt of the prisoner, and requiring him to show, if innocent, where he was at the time referred to, the fact that he makes no attempt to show his whereabouts, when it appears to be in his power to do so, creates a strong inference against him, and is a circumstance greatly corroborative of the truth of the evidence given on the other side, and in a doubtful case it would justify the jury in resolving the doubt against him; but the omission to produce such evidence is not absolute and conclusive evidence of guilt, and it is error for the judge to tell the jury that they should so regard it.^ 7th, Direct evidence shall not always be held refuted from being opposed to circumstances incongruous with that evidence, because a certain degree of incongruity is incident to every man's' conduct. 8th. The evidence of circumstances in every criminal trial • Peo. V. McWhorter, 4 Barb., 438. » Gordon v. Peo., 33 N. Y., 501. CRIMINAL EVIDENCE. 183 sJiouId be confined as much as possible to the actual commission of the fact. The intention always precedes the act, and is chiefly to be judged of by antecedent circumstances, and each of these circumstances are to be regarded as a. fact to be proved and established by evidence, and unless so established ought never to form a ground of conviction. Mr. WiLLS^ says that the facts alleged as the basis of any legal inference must be strictly and indubitably connected with the factum probandum, and this rule, intended to guard against falla- cies of appearance and generalization,^ is an indispensable condi- tion of all sound induction of which it is the object by proper rejections and exclusions, and after as many negatives as are necessary,^ to verify facts and clear them of all ambiguity, so that they may become the premises of logical argument and reasoning. The line of demarcation between conjecture and reality is sometimes so faint and indistinct as to be imperceptible. The facts frequently become blended with foreign and irrelevant circumstances, so that the verification of them and the establish- ment of their connection with the factum probandum become matter of considerable difficulty. No weight, therefore, must be attached to circumstances which, however they may excite con- jecture, do not warrant belief. " Where there is nothing but the evidence of circumstances to guide you," said Mr. Justice Baylet, "those circumstances ought to be closely and necessarily con- nected, and to be made as clear as if there were absolute and positive proof."* Every circumstance, therefore, which is not clearly shown to be really connected as its correlative, with the hypothesis it is supposed to support, must be rejected from the judicial balance. In other words, it must be distinctly estab- lished that there exists between the factum probandum and the facts which are adduced in proof of it, a real connection, either evident and necessary, or at least so highly probable as to admit of no other reasonable explanation.* But to this general rule there is the exception where the charge implies, the knowledge of the defendant of the nature and criminality of the act com- ' Page 137. » 2 Mills' Logic, bk. 5, ch. 2 and 3. ' Nov. Org., lib. 1, alp. 105. * Wills, 137 ; Bex v. Downing, Salop Summer Assizes, 1822. • Wills, 137 ; Mittermaier, ch. 55, 57. 184 CRIMINAL EVIDENCE. mitted. For example, on a charge of uttering a coimterfeit note, 'knowing it to be counterfeit, evidence that the defendant had been engaged in passing spurious bills before, will be received as evidence that he knew the note to be counterfeit.* So, also, on a charge of conspiracy, by false representations of a large fortune, to defraud an individual, other acts of false representa- tion to defraud others may be admitted to show a combination.'* So, also, in prosecutions for retseiving stolen goods, the receipt of goods stolen from the same person other than those laid in the indictment, if prior to those laid in the indictment, may be proved to show guilty knowledge in the receiving.* 9th, Th& jury shall be as fully convinced of the guilt of the prisoner, from the combination of the circumstances, as if direct iproof had been brought. The rule is often stated that the evi- dence must .exclude, to a moral certainty, every other hypothesis but that of guilt, and that if the facts that are proven can be reconciled with the belief or supposition that the prisoner is innocent, that somebody else committed the guilty deed, then that the hypothesis which the law requires does not exist. It should always be considered whether the connection between the circumstances and the crime is necessary or only casual and con- tingent, and whether, therefore, the circumstances necessarily involve the guilt of the prisoner, or only probably so; whether these circumstances might not all exist, and yet the accused be innocent? Eeferring to the definition of an indictable ofience, we find that there must be some act done to consummate the intent; that so long as it rests in the bare intent to commit an offence, it is not punishable; and it, therefore, seems desirable that sonje inchoate act approaching to the crime should be proven against the accused, and that he should not be convicted on gen- eral appearances, such as being found in a certain situation, or the like. Strong appearances, but without any act proved against the prisoner, have often turned out unfounded, and many improper convictions seem to have been had from a disregard of this rule. The rule is clearly settled that, in criminal cases, the testimony must be such as to satisfy the jury, beyond a rational doubt, that the prisoner is guilty of the chai-ge alleged against him in the ' 1 Camp., 324; 2 Leach, 983-987. ' 1 Camp., 399. ' 2 Arch. Cr. Pr., 480, n. See Motives to Commit Crime, post. CRIMINAL EVIDENCB. 185 indictment, or it is their duty to acquit. Such doubt, however, should be an actual and substantial one. In the language of Chief Justice Shaw: " It is not merely possible doubt, because everythiug relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consid- eration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding convic- tion to a moral certainty of the, charge."^ The above rule is stated by Mr. Wilzs^ in the following language: "In order to justify the inference of legal guilt from circumstantial evidence, the existence of the iuculpatory facts must be absolutely incom- patible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt." And the same author says that " this is the experi- mentum cruets by which the relevancy and effect of circumstantial evidence must be estimated." In the language of Mr. Baron Alderson, "to enable a jury to bring in a verdict of guilty, it was necessary, not only that it should be a rational conviction, but that it should be the only rational conviction, which those circumstances would enable them to draw.^ 10th. WTiere the hody of the act is distinctly sworn to, a varia- tion in the circumstances does not destroy the proof. If several independent witnesses of fair character should agree in all the parts of a story (in testifying, for instance, that a murder or a robbery was committed at a particular time, and in a particular place, and by a certain individual), every court of justice in the world would admit the fact, notwithstanding the abstract possi- bility of the whole being false. Again, if several honest mefl should agree in saying that they saw the King of France beheaded, though they should disagree as to the figure of the guillotine, or the size of his executioner, as to the King's hands being bound or loose, or as to his being composed or agitated in ascending the scaffold, yet every court of justice would think that such differ- ence respecting the circumstances of the fact did not invalidate the evidence respecting the fact itself.* ^ Bemis' Webster's Case, 190; Com. v. Webster, 5 Cush., 320. ' Page 149. • Eex V. Hodges, 2 Lew. C. C, 227. * Apolog7 for the Bible, p. 224. 186 CRIMINAL EVIDENCE. lltL The converse of the preceding rule is the following: Wlitre the leading fad or crime is only to be collected from cir- cumstances, a material variation in these will defeat the effect of the whole. A system of propositions is only true because each of the propositions of which it is composed is true; for as each particular is to have an effect on the general conclusion, a varia- tion in the circumstances may give a different color to the whole transaction. 12th. The absence of proof naturally to be expected is a strong argument against the existence of any fact alleged. This rule is particularly applicable to those cases where violence is charged. (/See the preceding sixth rule.) 13th. There being no repugnance in a chain of circumstances is a proof that a thing may be, not that it is, though there being a repugnance is a proof that it cannot be. Whatever does not involve a contradiction is possible; whatever involves one is impossible. {See ante.) 14th. Another general rule is that, in cases of doubt it is safest to acquit. {See rule nine.) As to what is to be considered doubt see the preceding eleventh rule. In the first place it is a legal presumption that all persons are to be presumed innocent until proven guilty, and in the next place it is better to let the guilty escape than to punish the innocent. And it may be said in addi- tion to the principles heretofore laid down as defining what this doubt should be, that it is not to be a capricious doubt — the mere quibble of an erring or a feeble mind — and it should be the result of calm and deliberate reason, and the rational doubt of a reasoning mind. It was observed by Lord Mansfield, in the Douglass case, that it is an undoubted truth that judges, in form- ing their opinions of events, and in deciding upon the truth or falsehood of controverted facts, must be guided by the rules of probability, and as mathematical or absolute certainty is seldom to be attained in human affairs, reason and public utility require that judges and all mankind, in forming their opinion of the truth of facts, should be regulated by the superior number of probabilities on the one side or the other, whether the amount of these probabilities be expressed in words or arguments, or by figures and numbers. The foregoing rule has been stated in the following appropriate words, viz: " If there be any reasonable doubt as to the reality CRIMINAL EVIDENCE. 187 of the connection of the circumstances of evidence with the factum frobandum, or as to the completeness of the proof of the corpus delicti, or as to the proper conclusion to be drawn from the evidence, it is safet to err in acquitting than in convicting, as (as the maxim is more popularly expressed) it is better that ten guilty persons should escape, rather than one innocfent man should suffer." ^ This rule follows irresistibly as a deduction from the consideration of the numerous fallacies necessarily incidental to the formation of the judgment in indirect evidence and contin- gent probabilities, and from the impossibility in all cases of drawing the line between moral certainty and doubt.* The jury should always act upon the presumption that the accused is innocent, and should endeavor, if possible, to reconcile all the circumstances of the case with that side of the question.^ 15th. In all cases, whether direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits. The suppression or non-production of pertinent and cogent evi- dence raises a strong presumption against the party who with- holds such evidence when he has it in his power to produce it. The application of this rule is not confined to the proof of the principal fact; it is "the master rule which governs all the sub- ordinate rules," and applies alike to the proof of every individual constituent fact, whether principal or subordinate.* 16th. The jury should give as much weight to each circumstance which is in favor of the accused as they do to circumstances of the same importance against him? 17th. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability. It has already been seen that, in a criminal case, the defendant's guilt must be made out by evidence sufficiently conclusive to exclude any reasonable supposition of his innocence. The above rule is said to be a universal rule of jurisprudence, founded upon evident principles of wisdom and justice; and it is a necessary conse- quence that the affirmant party is not absolved from its obliga- tion because of the difficulty which may attend its application. > wais, 153. ' Id.; Bonnier, 604. " Peo. V. Videtto, 1 Park., 609. * Wills, 148; 2 Burke's Works, 618; Mittermaier, ch. 57. See Suppression and Destruction of Evidence, post. ' 1 Park., 609. 188 OBIMINAL BVIDENOE. No man can be justly deprived of his social rights but upon satisfactory proof that he has committed some act which legally involves the forfeiture of them; and the law regards every man as legally innocent until the contrary be proved, and criminality is never to be presumed.^ The operation of the above rule may, however, be modified by circumstances which create a counter obligation and shift the onus probandi. It follows, from the very nature of circumstantial evidence, that, in drawing an inference or conclusion as to the existence of a particular fact from other facts that are proved, regard must always be had to the nature of the particular case and the facility that appears to be afforded either of explanation or contradiction.^ Thus, where the aver- ments of an indictment negative an exception or proviso in a statute, it is said in such cases that when the subject of the excep- tion relates to the defendant personally, or is peculiarly within his knowledge, the negative is not to be proved by the prose- cutor, but, on the contrary, that the affirmative must be proved by the defendant as a matter of defence; ..but, on the other hand, if the subject of the averment do not relate personally to the defendant, or be not peculiarly within his own knowledge, but. either relate personally to the prosecutor, or at least be as much within his knowledge as within the knowledge of the defendant, the prosecutor must prove the negative.^ Where an act is required to be done by one, the omission of which would make him guilty of a criminal neglect of duty, the law presumes the affirmative, and throws the burden of proving the negative on the party who insists on it.' But where the indictment is for retailing liquor, it is incumbent on the defendant to prove that he is licensed.^ And the defendant in an indictment for trading as a hawker and pedler, without a license, must prove that he has a license." So, also, indictments for violations of the game laws negative the defendant's qualifications to kill game, but the defendant must prove the affirmative of it as a matter of defence.' In cases siftiilar to those above mentioned, where the defend- • Wills, 145. ' Hex V. Burdett, 4 B. & Aid., 161 j WiUs, 145. = 1 Whar. Or. L., 614; Russ. on Cr., 769; 1 Greenleaf on Ev., § 79. '- 3 East, 192; 3 Camp., 10; 10 East, 216; 1 Green, on Ev., § 80. ' Com. V. Thurlow, 24 Pick., 374; 1 Lead. Cr. Cas., 347. ' R. V. Smith, 3 Burr, 1475. ' R. V. Turner, 5 M. & Selw., 205. CRIMINAL EVIDENCE. 189 ant, conceding the facts of the prosecution, sets up a matter of excuse or avoidance, the question whether the defendant must make out his defence beyond reasonable doubt, or whether the jury are to take the whole case altogether and give the benefit of any doubts as to any part of it to the defendant, or, in other words, whether, in such case, the burden of proof shifts, has been the subject of much discussion, and it seems to be the better opinion, in such cases, that the burden is on the defendant.^ In the consideration of the question whether doubts as to the validity of such matter of defence are to continue to weigh in the defend- ant's favor, or whether, on the other hand, a preponderance of evidence is not necesary to satisfy, in such respects, the jury, as, for instance, where on an indictment under the license laws, the defendant is shown to have retailed liquor, the question is whether, on his setting up a license to sell, the jury must acquit if they find reasonable doubt as to the existence of the license, or whether they are justified in convicting unless a preponderance of evidence shows such a license to exist? The law seems to be that, in such cases, the presumption of innocence no longer works for the defence, and that, as the defendant sets up an affirmative fact by way of confession and avoidance, he must satisfactorily prove such fact by a preponderance of testimony.* In cases where the defence is insanity, the burden, in this State, is ia the prisoner's favor; for sanity is a necessary condition to constitute the crime, and the proof thereof a part of the case to be made by the prose- cution.^ In conclusion, we may say that presumptive proof is often more satisfactory than the direct testimony of witnesses. The life, property and liberty of the citizen depends, perhaps, more upon the former than the latter. As to crimes, they are almost always committed in the dark, out of the sight of witnesses; and if the guilt or innocence of a person is not to be made out from a fair and impartial inference from facts and circumstances, a very great portion of crimes could not be punished at all, and the conse- quences would be the most fatal that could be conceived. It is true, presumptions can never amount to demonstrative proof, nor ' See 1 Whar. Cr. L., 614, and cases cited. ' Id., 708, and cases cited. ' > Peo. V. McCann, 16 N. Y. (2 Smith), 58. 190 CRIMINAL EVIDENCE. is it necessary that they should. If they induce a full and firm belief, a jury will have but little difficulty. Moral certainty is all that can be expected in this species of proof, and is all that is essential to the due and impartial administration of justice. Moral evidence (of the kind we have been speaking) is generally complicated. It depends not upon any one argument, but upon many independent proofs which, however, combine their strength and draw on the same conclusion. In point of authority, demon- strative evidence is superior; moral evidence is superior in point of impo7'tance. By the former the understanding is enlightened, and many of the elegant and useful arts are improved; by the latter society is supported, and the usual but indispensable affairs of life are regulated. If, by a concatenation of circumstances, au innocent man may have been convicted and executed upon circumstantial evidence, how many, it may be asked, have been sacrificed by the positive testimony of perjured vsdtnesses? The argument applies with equal force in each case, and only proves the imperfection of hijman nature in the conduct and intercourse of man with man; and the circumstance that individuals have occasionally suffered on presumptive testimony, whose innocence has been afterwards ascertained, ought not to prevent juries from attending with caution and deliberation to this species of evidence, for the evil is comparatively small to that general impunity which the worst offenders might obtain if this kind of proof were never to be regarded.^ There can be no question but what circumstantial evidence has the inherent capacity to produce moral certainty in its results. It is a principle of circumstantial evidence that it is never per- mitted to rise to the dignity of proof until it does produce moral certainty. It was said by Lord Ekskine, with the strictest philo- sophical truth, in the Banbury peerage ' case, that " proof is nothing more than presumption of the highest order." It is equally so whether the evidence be direct or circumstantial. If a witness swears directly to a fact, we r-egard the fact as proved because we presume the witness has told the truth, yet it is but a presumption after all.'' ' 1 "Whee. Cr. Cas., 410 ; 2 Wills' Lee, 64; 1 Chit. Cr. L., 459 ; McNaUy'sEv., 398, et seq.; 1 St. Tr., 181; 3 I(J., 399; 2 Hale P. C, 260, 289, 290. ' Peo. V. Ruloff, 4 'Park., 451. MOTIVES TO COMMIT CRIME. 191 ^ 1. MOTIVES TO COMMIT CEIME. ' As there must necessarily preexist a motive to every human action, it is proper to comprise in the class of moral indications those particulars of external situation which are usually observed, under given circumstances, to operate as motives and inducements to the commission of crime, as well as such wise, unequivocal indications, from language and conduct, as directly and pointedly manifest a relation between the deed and the mind of the actor. The usual inducements to crime are, the desire of avenging real or fancied wrongs; of obtaining some object of desire which rightfully belongs to another, or of preserving reputation, either that of general character or the conventional reputation of sex or profession. It is always a satisfactory circumstance of corrobo- ration when, in connection with convincing facts, an apparently adequate motive can be assigned; but as the operations of the mind are invisible and intangible, it is impossible to go further; and there may be motives which no human being beside the party can divine. Updue or even great stress must not be laid upon the existence of circumstances supposed to be indicative of motives, nor ought it, in any case, to supersede the necessity for the same quantity of proof as, would be deemed necessary in the absence of all evidenee of such stimulus. An action without a motive would be an effect without a cause; and as the particulars of external situation and conduct will, in general, correctly denote the motive for a criminal action, the absence of all evir dence of an inducing cause is reasonably regarded, where the fact is doubtful, as affording a strong presumption of innocence. Courts of justice, of necessity, interpret, by external indications, the secret motives of the mind, but as such conclusions must, in general, be inferential merely, they can never be properly made the subject of testimonial opinion; and when an unlawful act has been voluntarily committed, the motive and intention, though essential elements of criminality, are rightly matters of legal inference and presumption. In the majority of cases the natiire of the action is per se unequivocally indicative of guilty intention, and is not susceptible of two interpretations; but when the act is of such a nature as not necessarily to imply a guilty intention, and the knowledge of the party of the nature of his conduct is the specific point in issue, then the evidence of collateral circum- stances is of the highest importance as explanatory of his inten- 192 CKIMINAL EVIDBNCE. tions, and may be of vital moment, and it may be said that all such relevant acts of the party as are explanatory of his motives are admissible in evidence against him.^ The presumption is that a man intended the necessary consequences of his acts.*^ Thus, in a case of arson, the court said the prisoner must be presumed to have intended the ordinary consequences of his acts, and that it devolved upon him to show the absence of an intent to burn the building.' Upon this question of intent, evidence is allowed to be given of the prisoner's conduct on other occasions where it has no other connection with the charge upon inquiry, than that it tends to throw light on what were his motives and inten- tion in doing the act complained of. This cannot be done merely with the view of inducing the jury to believe that, because the prisoner has committed a crime upon one occasion, he is likely to have committed a similar offence upon another, but only by way of anticipation of an obvious defence, such as that the prisoner did the act of which he was accused, but innocently and without any guilty knowledge, or that he did not do it because no motive existed in him for the commission of such crime. In both of these cases it is competent for the prosecutor to adduce evidence which, under other circumstances, would not be admissible; such as the conduct of the prisoner on other occasions, his admissions, ' and other surrounding circumstances, in 'order to show, as the case may require, either that his ignorance was extremely improb- able or that he had ample motives of advantage or revenge for the commission of the crime. There are three classes of offences in which, from the nature of the offence itself, this species of evidence is frequently necessary, and these are conspiracy, the uttering of forged instruments and counterfeit coin, and the offence of receiving stolen goods. In these the act itself is almost always of an equivocal kind, and from which malus animus cannot, as in crimes of violence, be presumed, and almost the only evidence which could be adduced to show the guilt of the prisoner would be his conduct on other occasions.* * Wills on Cir. Bv., 38, 39, 41 ; 1 Mascardus de Prob. Conol., 95 ; Rex v. Voke, K. & R., 653. * ^an Pelt v. McGraw, 4 N. Y. (4 Com.), 110. ' Peo. V. Orcutt, 1 Park., 254. * Ros. Or. Et., 87; R. v. Cole, Phill. Ev., 477. DECLARATIONS OF INTENTION. 193 ,§ 2. DECLAEATIONS OF INTENTION. It is not uncommon with persons about to engage in crime to utter menaces, or to make obscure and mysterious allusions to purposes and intentions of revenge, or to boast to others^ whose standard of moral conduct is the same as their own, of what they will do, or to give vent to expressions of revengeful purposes, or of malignant satisfaction at the anticipated occurrence of some serious mischief. Such declarations or allusions are of great moment when clearly connected by independent evidence witli some subsequent criminal action. The just effect of such lan- guage is to show the existence of the disposition, from which criminal actions proceed, to render it less improbable that a per- son prdved to have used it would commit the offence charged, and to explain the real character and motive of the action ; but proof of such language cannot be considered to dispense with the obligation of strict proof of the criminal facts, for though malignant feelings may possess the mind, and lead to intemperate and even criminal expressions, they nevertheless may exercise but a transient influence, without leading to action.^ In the examination of cases of this kind, several considerations are laid down by Best in his Work on Presumptions,^ which are of importance to be remembered. {a) It must be recollected that the tendency of a threat or declaration of this nature is to frustrate its own accomplishment, for by threatening a man you put him on his guard. {b) It does not necessarily follow because a man avows an intention or threatens to commit a crime, that such intention really existed in his mind. The words may have been uttered through bravado, or with a view of annoying, intimidatiag, extorting money or goods, or other collateral objects. Mr.BEN- THAM,^ however, observes that such threats, by the the testimony of experience, are but too often, sooner or later, realized. To the intention of producing the terror, and nothing but the terror, succeeds under favor of some special opportunity, or under the spur of some fresh provocation, the intention of producing the mischief, and (in pursuance of that intention) the naischievous act. ' Wills' Cir. Bv.; 45 ; 3 Bentham's Jud. Ev., bk. 5, ch. 4. ' Best on Presumptions, 315. " Bentliam's Jud. Ev. C. p. Vol. 11—13. 194 CRIMINAL EVIDENCE. (c) The words supposed to be declaratory of criminal intention may have been misunderstood or misremembered. (d) Another person really desirous of committing the offence, may heve profited by the occasion of the threat to avert suspicion from himself; thus, a woman of extremely bad character and violent temper, one day in the open street threatened a man who had done something to displease her, that she would " get his hams cut across for him." He was found dead a short time after- wards, with his hams cut across. The woman was arrested, put to the torture, confessed the crime, and was executed. Another person was soon afterwards arrested for another offence, who confessed that he was the murderer, and stated that happening to be passing when the threat was uttered, he conceived the idea of committing the crime, as he knew the woman's bad character would be sure to tell against her.^ § 3. PKEPAKATIONS FOK THE COMMISSION OP CBIME. Premeditated crime must necessarily be preceded not only by impelling motives, but by appropriate preparations. Possession of the instruments or means of crime under circumstances of sus- picion — as of poison, coining instruments, combustible matters, picklock keys, dark lanterns, or other destructive or criminal weapons, iastruments or materials, g,nd many other acts of appa- rent preparation for crime — are important facts in the judicial investigation of imputed crime. Thus, where a man had in his possession a large quantity of counterfeit coin unaccounted for, and there was no evidence that he was the maker, it was held to raise a presumption that he had procured it, with intent to utter it ; but the personal character for probity, and the civil station of the party, are highly material in connection with facts of this kind. A medical man, for instance,' in the ordinary course of his profession, has legitimate occasion for the possession of poisons, and a locksmith for the use of picklock keys. Facts of the kind referred to become more powerful indications of guilty purpose if false reasons are assigned to account for them. The bare pos- session of the means of crime, or other mere acts of preparation, without more conclusive evidence, are not in themselves of great weight, for so long as the supposed offence consists in a bare intent, without some act done towards the commission of the ' 5 Causes Celebres, 437. THE POSSESSION OF THE FRUITS OF CRIMB. 195 erime, it is not punishable. But as preparation must necessarily precede the commission of premeditated crime, some traces of them may generally be expected to be discovered ; and if there be not clear and decisive proof of guilt, the absence of any evi- dence of such preliminary measures is a circumstance strongly presumptive of innocence. In the foregoing remarks it is, of course, assumed that the pajiy possessed the opportunity of com- mitting the imputed act, -without which neither the existence of motives, nor the manifestation of criminal intention, by threats or otherwise, followed even by preparation for its commission, can be of any weight.^ § 4. THE POSSESSION OF THE FETJITS OF CEIME. Since the desire of dishonest gain is the impelling motive to theft and robbery, it naturally follows that the possession of the fruits of crime, recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they were found was the real offender, unless he can account for such possession in some way consistently with his innocence.^ The foundation of this presumption is the obvious consideration that, if the possession has been lawfully acquired, the party would be able, at least, shortly after its acquisition, to give an account of the manner in which such possession was obtained, and his unwillingness or inability to afford such explar nation is justly regarded as amounting to strong self-condemnatory evidence.* In the consideration of this subject there are three thing's that require attention: 1st. The possession must be unexplained. If the party give a reasonable and probable account of the way in which he became possessed of the property, as by stating the name of the person from whom he obtained it, and such party is known to be a real person, it is then incumbent upon the prosecutor to show that such account is false. But if the account given be unreasonable or improbable on the face of it, then the accused must prove its truth, or otherwise he will not be relieved from the pressure of ' Wills' Cir. Ev., 46, 47. " WUls on Cir. Ev., 47; R. ». Burdett, 4 B. & Aid., 149; 2 C. & P., 459; 3 Star, on Ev., 933 ; Best on Pres., 44. ' Wills, 48. 196 CRIMINAL EVIDENCE. the general rule of presumption. Therefore, where a man was indicted for stealing a piece of wood, which was found, five days after the theft, in his shop, and he stated that he had bought it from a person whom he named, and who lived about two miles off, it was held that the prosecutor was bound to show that the account was false.^ 2d. The possession must be recent, for if the interval of time between the loss and the finding be considerable, the presump- tion, as it affects the party in possession, is much weakened, and the more especially so if the goods are of such a nature as, in the ordinary course of things, frequently to change hands. From the nature of the case, it is not possible to fix any precise period within which the effect of this rule of presumption can be limited, and it must depend not only upon the mere lapse of time, but upon the nature of the property and the concomitant circimistances of each particular case.^ 3d. The possession must involve the defendant's exclusive control. It is obviously essential to the just application of this rule of presumption that the house or other place in which the stolen property is found be in the exclusive possession of the prisoner. Where it is found in the apartments of a lodger, for instance, the presumption may be stronger or weaker, according as the evi- dence does or does not show an exclusive possession.' The force of this presumption is greatly increased if the fruits of a plurality or of a series of thefts be found in the prisoner's possession, or if the property stolen consists of a multiplicity of miscellaneous articles, or be of an uncommon kind, or from. its value, or other circumstances be inconsistent with or unsuited to the station of the party, or by the sudden glut of a person pre- viously poor.* In cases of burglary, the mere possession of the stolen goods, unaccompanied with other suspicious circumstances, is not even ' Reg. V. Smith, 2 0. & K., 207; WiUs' Cir. Ev., 48; R. w, Evans, 2 Cox C. C, 270; R. V. Dibley, 2 C. & K., 818. ' R.i>. Cockin, 2 Lewin, 235; "Wills, 48; 2 Cox C. C, 270; R. v. Dewhurst, 2 Stark. Ev., 614; R. v. Patridge, 7 C. & P., 551 ; Com. t). Millard, 1 Mass., 6. " Wills, 50 ; R. v. Mansfield, C. & M., 142; 2 Moo. & R., 524. Tide note to, 1 Bennett, and Heard's Lead. Cr. Cas., 360. * Wills, 50; R. v. Bowman, Allison Princ, p. 314; Com. v. Montgomery, 11 Mete, 234. THE POSSESSION OP THE FRUITS OF CRIME. 197 jpfrimafcuiie evidence of the burglary, although it may be of the larceny.' The possession of the fruits of crime are also used in other cases than those of larceny and robbeiy. Thus, in homicide it is admissible to trace to the possession of the defendant such articles as are identified.^ So, also, in cases of receiving stolen goods knowingly, the possession of the goods when accompanied by acts of their concealment, or of buying them at a price consider- ably below their value, is evidence from which the jury may infer guilty knowledge.' It is seldom, however, that juries are required to determine upon the effect of evidence of the mere recent possession of stolen property, as, from the very nature of the case, the fact is generally accompanied by other corroborative or explanatory circumstances of presumption. If the party have secreted the property; if he deny that it is in his possession, and such denial is discovered to be false; if he cannot show how he become possessed of it; if he give false, incredible or inconsistent accounts of the manner in which he acquired it, as that he had found it, or that it had been given or sold to him by a stranger, or left at his house; if he has disposed or attempted to dispose of it at an unreasonably low price; if he has absconded or endeavored to escape from justice; if picklock keys or other instruments of crime be foimd in his possession; if he were seen near the spot at or about the time when the act was committed, or if any article belonging to him be found at the place or in the locality where the theft was committed, at or about the time of the com- mission of the offence, or if the impressions of his shoes or other articles of apparel correspond with the marks left by the thieves; if he has attempted to oblitei-ate from the articles in question marks of identity, or to tamper with the party or the officers of justice, these and all the like circumstances are justly considered as throwing Ught upon and explaining the fact of possession, and render it morally certain that such possession can be referable only to criminal origin, and cannot otherwise be rationally accounted for.* » Peo. V. Frazier, 2 Whee. Cr. Cas., 55. ' R. o. Burdett, 4 Bam. & A., 122; WiUs, 241. » 1 Arch. Or. Pr., 480. * WilLs' Cir, £y., 57. 198 CRIMINAL EVIDENOB. § 5. THE SUPPRESSION, DESTRUCTION, SIMULATION AND FABRICATION , OF EVIDENCE. The suppression or destruction of pertinent evidence is always deemed a prejudicial circumstance of great weight, for as no action of a rational being is performed without a motive, it naturally leads to the inference that such evidence, if it was pro- dutJfed, would operate unfavorably to the party in whose power it is.i Among exaniples of this nature may be mentioned the common case of obliteration of marks of identity, as by filing away the engraving from articles of plate, or the removal or endeavor to remove from the person or clothes stains of blood or other marks. The shoeing of a horse backwards, so as to reverse the tracks, and many other instances of the obliteration or distortion of marks of identity.^ In the case of an indictment for murder by poisoning, the con- tents of the stomach, which had been placed in a jug for exam- ination, were clandestinely thrown by the prisoner into a vessel containing a large quantity of water. Upon this circumstance, the learned judge commented very forcibly in his charge to the tiry. " What pretence," said he, " was there for this ? And if the prisoner did it, why do it in secrecy ? Why place the jug in the precise condition in which it was left by the medical man? Why not allow it to remain in the situation in which a vessel may be placed in the progress of such an examination." ' The concealment of death by the destruction or attempted destruction of human remains falls within the same classificaition.* Prominent among the cases of suppression of evidence is the attempt to prevent post mortem examinations by the premature interment of human remains, under the pretext that it is neces- sary by the state of the body. In the case of violent or sudden death, and especially when caused by poison, it cannot but be known that the post mortem examination will always furnish important and generally conclusive evidentiary matter as to the cause of death." ' 1 Starkie on Ev., 437. ' Wills, 75 ; 1 Wh. Or. L., 723. " Donnall's Case, Frazier's Hep., 171. * Beniis' Webster Case; R. v. Gardelle, 4 Celebrated Trials, 400. • Wills, 76; R. v. Donnal, Fraz. Rep; Neue Pitaval, by Hitzig. UNEXPLAINED APPEARANCES OF SUSPICION, ETC. 199 Besides the suppression, destruction and fabrication of evidence by criminals, which, when detected, raises a strong presumption against them, facts are often simulated for the purpose of attract- ing suspicion in a direction different from the tsue one. Some- times the object of simulated facts is not merely to divert suspicion from the real culprit, but also to attract it toward a particular individual; and such is the weakness of human nature that there are even instances where innocence has degraded and betrayed itself by the simulation of facts, for the purpose of evading the force of circumstances of apparent suspicion.^ Mr. Wills makes the remark, in his treatise upon circumstantial evidence,^ that cunning is but a " sinister or crooked wisdom, and not unfrequently the means employed to prevent or avert suspi- cion lead to detection. Thus, where one partner, during the absence ^f the other partner from home, and a few evenings before tne murder, having sent a female servant, the only other inmate of the house, on an errand, fired a ball through the window of the room in which the deceased usually sat at night, doubtless with the intention of creating the impression that some other person was desirous of destroying him. But from the course of the ball through the shutter, and other circumstances, it was impossible that it could have been discharged elsewhere than from the deceased's own premises, or by any other person than the prisoner himself." ^ § 6. UNEXPLAINED APPEARANCES OF SUSPICION, AND ATTEMPTS TO ACCOUNT FOE THEM BY FALSE EEPEESENTATIONS. As a general rule, to which exceptions can be but rare; it is a reasonable conclusion that an innocent party can explain suspi- cions or unusual appearances connected with his person, dress or conduct ; and the desire for self-preservation, if not a regard for truth, will prompt him to do so. The ingenuous and satisfactory explanation of circumstances of apparent suspicion, always ope- rates powerfully in favor of the accused, and obtains for him more ready credence when the explanation may not be so easily veri- fied. On the other hand, the force of suspicious circumstances is augmented whenever the party attempts no explanation of facts, • Wills, 79-82; R. v. Coleman, 1 Remarkable Trials, 162; 4 Id., 344. ' Page 79. " Gui-ney's Rep., Rex v. Patch. 200 CRIMINAL EVIDENOE. which he may reasonably be presumed to be able and interested to explain.* The following case illustrates the doctrine laid down above : An old man, ojp his way home from Halifax market, where he had staid late, was attacked,^ thrown down and robbed by three men, one of whom he murdered in the struggle with a clasp knife. Upon the apprehension of one of the robbers at the house pf his mother, he was dressed in a new pair of trowsers, and the constable found in a room up stairs, between the bed and the mattrass, a pair of trowsers, with two long cuts in one thigh, one of which had penetrated through the lining, and was stained with blood at that spot, and the holes had been sewed with thread, which was not discolored, showing that the blood must have been applied to the cloth previous to the repair ;' and a cor- responding cut, bound over with plasters, was found oiLth'e pri- soner's thigh. The prisoner refused to give any explanation of the wound, or of the cuts in the garments, and he was convicted and transported.^ False or contradictory statements, for the purpose of account- ing for suspicious circumstances connected with the person, dress or conduct, when clearly disproved, become facts of a still more criminating effect ; and the allegations urged as reasons tending to defence and exculpation, are not neutralized merely, but become formidable, inculpatory facts.' As illustrative of the above, take the case of a man arrested upon suspicion of a homicide. Stains of blood are found upon his garments, which the prisoner endeavors to account for by saying that they are stains from the blood of chickens. A micro- scopic examination of the corpuscles of the blood in the stains, reveals the fact that the blood which produced the stains came from some animal, classified among the mammalia; and that although it may be uncertain whether it was human blood, or that of some other animal which suckles its young, yet it is cer- tain that the statement of the prisoner, that the stains were derived from the blood of chickens, is incorrect. » "WiUs' Cir. Ev , 58. ' Rex V. Dantrey, York Sp. Assizes, 1841. ' Wills on Oir. Bv., 59; Eex v. Richardson, Burnett's C. L., 524; Memoirs, Life of Sir W. «cott, vol. 4, p. 52, 3d ed. DEFENCE BY PROVING AN ALIBI. 201 ^ 7. DEFENCE BY PROVING AN ALIBI. Alibi is a latin word, signifying elsewhere, and, in law, means a defence interposed by the defendant, by which he proves that, at the time of the commission of the offence, he was at some other place than that where it was committed. It is obviously essential to the satisfactory proof of an alibi that it should cover the whole of the time of the transaction in question, so as to render it impossible that the prisoner could have committed the act; it is not enough that it renders his guilt improbable merely. A defence of an alibi was therefore disre- garded because all that the prisoners offered to prove was that they were in bed on the night in question at twelve o'clock, and were found in bed next morning after the arson with which they were charged had taken place, the distance being two miles, so that ttey might have arisen, committed the deed, and returned to bed.i Of all kinds of exculpatory defence, that of an alibi^ if clearly established by unsuspected testimony, is the most satisfactory and conclusive, and is absolutely incompatible with the possibility of the truth of the charge. This defence, however, is easily con- cocted and frequently resorted to falsely, and is therefore often entertained with much distrust; but though it may lie under a great and general prejudice, and should be heard with uncommon caution, yet, if it appear to be founded in truth, it is the best negative evidence that can be offered, and in many cases is the only evidence which an innocent man can offer. An unsuccessful attempt to establish an alibi is always a circumstance of great weight against the prisoner, because the resort to that species of defence implies an admission of the truth and relevancy of the facts alleged, and the correctness of the inference drawn from them if they remain uncontradicted ; and where the defence of alibi fails, it is generally on the ground that the witnesses are disbelieved, and the story considered to be a fabrication.^ ^ The credibility of an alibi is greatly strengthened if it be set up at the moment when the accusation is first made, and. consist- ently maintained throughout the subsequent- proceedings. On the other hand, it is a material circumstance to lessen the weight ' Rex V. Fraser, Alison's Princ, p. 625 ; Wills' Cir. Ev., 133. •^ Foster's Cr. L., 368; Rex ti. Brennan, 30 St. Tr., 79; Rex v. Robinson, Sess. Papers, 1824; ^^ills' Cir Ev., 83-133. 202 CRIMINAL EVIDENCE. of a defence of this kind, if it be not resorted to until sometime after the charge has been made ; or if having been once resorted to, a different and inconsistent defence is afterwards set up.' This defence often involves considerations of the most difficult and perplexing nature. It is not an uncommon artifice to endeavor to give coherence and effect to a fabricated defence of alibi, by assigning the events of another day to that on which the offence was committed, so that the events being true in themselves, are necessarily consistent with each other, and false only as they are applied to the day in question.* § 8. CHAEACTEE OF ACCUSED. Sir William Eussell says it has been usual to treat the char- acter of the party accused as evidence only to be taken into con- sideration in doubtful cases. Juries have generally been told that where the facts proved are such as to satisfy their minds of the guilt of the party, character, however excellent, is no sub- ject for their consideration ; but when they entertain any doubt as to the guilt of the party, they may properly turn their atten- tion to the good character which he has received. It is, however, , submitted with deference that the good character of the party accused, when satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the con- sideration of the jury, together with the otMr facts and circum- stances of the case. The nature of the charge, and the evidence by which it is supported, will often render such ingredient of little or no avail ; but the more correct course seems to be not in any case to withdraw it from consideration, but to leave the jury to form their own conclusion from the evidence, whether an indi- vidual, whose character was previously unblemished, has or has not committed the particular crime for which he is called upon to answer.' Mr. Sekgeanj: Talfoued, in his edition of Dickenson's Quarter Sessions,* says, to these remarks we may be permitted to add, that according to the language frequently adopted by judges in their charges, it may be proved that character in no case is of any • Wills' Cir. Et., 133. " Id., 83. = 2 Russ. on Or., 785. " 6 Ed., 563. CHARACTER OF ACCUSED. 203 value. They say that in a clear case character has no weight, but if the case he doubtful, if the scale hangs even, then the jury ought to throw the weight of character into the scale, and allow it to turn the balance in the prisoner's favor ; but the same ' judges will tell juries " that in every doubtful case they ought to acquit," stopping far short of the even balance, and that the "prisoner is entitled to the benefit of every reasonable doubt." In clear cases, therefore, the character is of no avail, and in doubtful cases it is not wanted ; it is never to be considered by the jury but when the jury would acquit without it. The sophism lies in the absolute division of cases into clear and doubtful, without considering character as an ingredient, which may render that doubtful which would otherwise be clear. There may certainly be cases so made out that no character can make them doubtful ; but there may be others in which evidence given against a person without character would amount to conviction, in which a high character would produce a reasonable doubt, nay, in which character will actually outweigh evidence which might otherwise appear conclusive. It is, in truth, a fact varying greatly in its own intrinsic value, according to its nature, varying still more in its relative value, according to the proofs to which it is opposed, but always a fact, fit, like all other facts proved in the cause, to be weighed and estimated by the jury. Although the prisoner may in criminal prosecutions call wit- nesses to speak generally to his character, he is not allowed to give evidence of particular acts, unless such evidence tend directly to disprove some of the facts put in issue by the pleadings.* In all criminal prosecutions the prisoner is always permitted to call witnesses to speak of his general character,, who are usually examined in his behalf, as to how long they have known him, and what his general character for honesty, humanity or peaceable con- duct (according to the nature of the offence charged) has been during that time. The inquiry ought manifestly to bear some analogy and reference to the nature of the charge against the pri- soner. On a charge of stealing, it would be irrelevant and absurd to inquire into his loyalty or humanity; on a charge of high treason, it would be equally rfbsurd to inquire into his honesty and punctu- ality in private dealings. The inquiry must also be made with • 2 Russ. on Cr., 784; R. v. Stannard, 7 C. & P., 673; Com. v. Hardy, 2 Mass., 307 ; Com. v. Webster, 5 Cush., 324. 204 CRIMINAL EVIDENCE. reference to the general character of the prisoner, for it is general character alone which can afford any test of general conduct, or raise a presumption that the person who had maintained a fair reputation down to a certain period would not then begin to act an unworthy part ; and therefore proof of particular transac- tions, in which the prisoner may have been concerned, ai^e not admissible.! If, however, a person on trial for an alleged offence does not offer evidence of his good character, no legal inference can arise from such omission, that he is guilty of the offence charged, or that his character is bad.* " There are cases of circumstantial evidence," says Chief Justice Shaw, " where the testimony adduced for and against a prisoner is nearly balanced, in which a good character would be very important to a man's defence. A strariger, for instance, may be placed under circumstances tending to render him suspected of larceny or other lesser crimes. He may show that, notwith- standing these suspicious circumstances; ^le is esteemed to be of perfectly good character for honesty in the community where he is known, and that may be sujEcient tb exonerate him. But where it is a question of great and atrocious criminality, the com- mission of the act is so unusual, so out of the ordinary course of things, and beyond common experience^ — it is so manifest that the offence, if perpetrated, must have been influenced by motives not frequently operating upon the human mind — that evidence of character and of a man's habitual conduct under common circum- stances, must be considered far inferior to what it is in the instance of accusations of a lower grade. Against facts strongly proved, good character cannot avail; It is, therefore, in smaller offences, in such as relate to the actions of daily and common life, as when one is charged with pilfering and stealing, that evi- dence of a high character for honesty would satisfy a jury that he would not be likely to yield to such a temptation. In such case, where the evidence is doubtful, proof of character may be given with good effect. But still even with regard to the higher crimes, testimony of good character, though of less avail, is com- petent evidence to the jury, and a species of evidence which the accused has a right to offer. But it behooves one charged with » 1 Phil. Ev., 469; 2 Russ. on Cr., 784. » Peo. V. Bodine, 1 Den., 281; Ackley c.Peo., 9 Barb., 609. CONFESSIONS BY THE PRISONER. 205 an atrocious crime like this, of murder, to prove a high character, and by strong evidence to make it counterbalance a strong amount of proof on the part of the prosecution. It is the privi- lege of the accused to put his character in issue or not. If he does, and offers evidence of good character, then the prosecution may give evidence to rebut or counteract it. But it is not com- petent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evi- dence of good character." ^ In cases of larceny, the possession of the stolen goods is not sufficient to convict, where the circumstances are doubtful, if a good character is shown.^ § 9. CONFESSIONS BY THE PEISONEE. The confessions of the prisoner are receivable in evidence, upon the presumption that a person will not make an untrue statement against his own interest.^ These may be divide^ iato direct and indirect confessions. By the term indirect confessions, is meant certain indications of mental emotion, such as acts of concealment, disguise, flight, and the like. These several acts, iu all their modifications, are indi- cations of fear, and it would be harsh and unreasonable invariably to interpret them as indications of moral consciousness ; and greater weight has sometimes been attached to them than they fairly warranted. Men are differently constituted, as respects both animal and moral courage, and fear may spring from causes very different from th'at of conscious guilt. A person, however conscious of innocence, might not have courage to stand his trial, but although innocent, think it necessary to consult his safety by ffight. It is not possible to lay down any express test by which these various indications may be infalliby referred to any more spe- cific origin than the operation of fear. Whether that fear proceeds from the consciousness of guilt, or from the apprehension of undeserved disgrace and punishment, and from deficiency of moral courage, is a question which can be judged of only by reference to concomitant circumstances. The consciousness that appear- ances have been suspicious, even where suspicion has been unwar- » Com. V. Webster, 5 Cush., 535; Bemis's Webster Case, 495. ' Peo. o. Turrill, 1 Whee. Cr. Cas., 34; Peo. v. Preston, Id., 41. » 1 Phil. £t., 9th ed., 397. 206 CRIMINAL EVIDENCE. rantable, has sometimes led to acts of conduct apparently incom- patible with innocence, and drawn down the unmerited inflic- tion of the highest legal penalty.^ If, however, the acts of concealmant, disguise or flight are committed by the prisoner before he has been charged with the commission of the offence, a strong presumption arises that they were done under the influence of fear, occasioned by conscious guilt, for otherwise, if he were innocent, and no accusation had been made against him, what ground of fear need he have. It is not competent for the defendant to show that though he had an opportunity to escape, he did not avail himself of it.^ In regard to direct confessions, it has been said that a voluii- tary confession of guilt, if it be full, consistent and probable, is justly regarded as evidence of the highest and most satisfactory order. Self-love, the mainspring of human conduct, will usually prevent a rational being from making admissions prejudicial to his interest and safety, unless when caused by the promptings of truth and justice.* i In England, a voluntary confession satisfactorily proved, when there is proof of the coi'pus delicti, is sufficient to convict without corroborating circumstances.* In The People v. Ruloff,^ it is said that in proving the confes- sions of a prisoner, it is required 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 when other evidence in the case proves part of the confession to be untrue. The confessions of a prisoner are a doubtful species of evidence, and should be received with great caution ; and no man can be convicted upon his own confession alone that a crime has been committed. Confessions are compe- tent evidence in the case, but alone are not suflScient. And the rule in this State may be stated that the confession of a party made not in open court, nor on an examination before a magis- trate, but to an individual, and uncorroborated by circumstances, will not justify a conviction ; there must be some independent evi- ' WiUs, 70. " Peo. V. Rathbun, 21 Wend., 509. ' Wills' Cir. Bv., 60; 3,Mascardus de Prob. Concl., 15, 16; Rex v. Warrick- shail, 1 LesKih, 129 ; 1 Green. L. of Ev., § 219. * 2 Haw. P. C, c. 46, c. 31; 2 Russ. on Or., 824. ' 4 Park., 401. CONFESSIONS BY THE PRISONER. 207 dence that the crime was committed, though when that is shown, a confession out of court may be enough to connect the prisoner with it.i There are several collateral circumstances which may, in a great measure, affect the admissibility of confessions made by a prisoner as evidence in the case. (a) Thus a confession is not admissible as evidence where it ' has been influenced by threats or menaces, or extorted by pain, or made under the influence of fear.* Thus a confession induced by saying, " if you do not tell me all you know, you will be taken in a dark room and hanged," was held inadmissible.^ So, also, a confession induced by saying, " unless you give us a more satis- factory account, I will take you before a magistrate," will not be received ; it amounts to a threat.* As a general rule, it may be said that confessions obtained through promises are inadmissible ; * and Mr. Eoscoe^ says it is usual to speak of a threat or inducement as excluding the confes- sion, and whether a man says, " if you do confess / will not do so and so," or whether he says, " if you do not confess / will do so and so," makes very little diflerence, if in substance the person accused is unduly influenced. In this State, where upon the trial of an indictment for larceny, it appeared that the owner of the goods, on the prisoner's express- ing contrition for the offence, 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, it was held that the prisoner's confessions, made afterwards, were admissible in evidence against him, notwithstanding the previous promise of the owner.'' The reported cases in which statements by prisoners have been held imadmissible, are very numerous. The English authorities will be found collected in the sisth edition of Eoscoe's Criminal Evidence, at page 39 et sequiter, • Peo. f). Heimesey, J5 Wend., 146; Peo. v. Badgely, 16 Id., 63; Peo. v. Ruloff, SPark., 401. ^ Whar! Cr. L., 685, and cases cited. ' Peo. V. Rankin, 2 Whee. Cr. Cas., 467. ' Rex. «. Thompson, Leach C. L., 325. ' 1 Whar. Cr. L., 686. ' Ros. Cr. Ev., 39. ' Ward V. Peo., 3 HiU, 395. , 208 CRIMINAL EVIDENCE. An inducement held out to a prisoner with reference to one charge will not exclude a confession of another offence, of which the prisoner was not suspected at the time the inducement was held out.^ Although a confession made under the influence of a promise or threat is inadmissible, yet there are many cases in which it has been held that, notwithstanding such threat or promise may have been made use of, the conJFession is to be received, if it has been made under such circumstances as to create a reasonable presump- tion that the threat or promise had no influence, or had ceased to have any influence, upon the mind of the party. Thus, if the impression that a confession is likely to benefit him has been removed from the mind of the prisoner, what he says will be evi- dence against him, although he had been advised to confess.* In regard to the ceasing of the inducements held out to the prisoner, it is said by Mr. Justice Buller that there must be very strong evidence of an explicit warning not to rely on any expected favor, and that it ought more clearly to appear that the prisoner understood such warning before his subsequent confes- sion can be given in evidence.^ Where the confession was made to a criminal after the magis- trate told the prisoner that it would be better for him to make a full confession, it was held not competent evidence, for such con- fession must be deemed to have been made under the hope of favor.* The term "voluntary," in the rule of the common law, which excludes confessions unless shown to be voluntary, does not embrace all confessions which are not " compulsory," but requires that the confession should have proceeded .from the spontaneous suggestion of the party's own mind, free from the influence of any extraneous disturbing cause. It is because the confession is unreliable, not on the ground of any impropriety in obtaining it, that it is excluded.® {b) The inducement or threat must be made by a person in ' Bos. Or. Bv., 43. " Id., 45. » 2 East. P. C, 658. * Peo. V. "Ward, 15 Wend., 231. ' Peo. «. McMahon, 15 N. Y. (1 Smith), 384. CONFESSIONS BY THE PRISONER. 209 authority ; and if not held out by a person in authority, the con- fession is admissible.^ The decisions are numerous and undoubted that the prosecutor or the person who, in the ordinary course of things will become so, the constable in charge of the prisoner, and any person hav- ing judicial authority over the prisoner, are persons in authority within the meaning of the rule. The rule also extends to the master or mistress of the prisoner, but only where the offence concerns the master or mistress.* A summary of the cases shows that a confession is not admis- sible in evidence where it is obtained by temporal inducement, by threa*, promise or hope of favor held out to the party in respect of his escape from the charge against him, by a person in authority, or where there is reason to presume that such person appeared to the party to sanction such a threat or inducement.' Although the promise was made in consequence of a promise of favor, rendering it incompetent, yet if it leads to other facts which, independent of such confession, establish the prisoner's guilt, such facts may be given in evidence,* for the rule which excludes evidence of confessions of persons charged with crimes, where such confessions have been made ilnder the influence of threats or promises, has never been held to exclude evidence of any facts which were ascertained in consequence of such confes- sions. The course pursued has usually been to admit proof of the words used by the prisoner, with reference to the extraneous facts, and then to receive proof of the facts themselves. It is not objectionable to receive evidence of facts discovered, in conse- quence of the confessions of the prisoner, the confessions them- selves being excluded, unless the prisoner should choose to have so much of his statement, as related to the facts discovered, given in evidence in coimection with the facts which he would undoubt- edly be entitled to.* ' (c) Legal imprisonment does not operate to exclude a confes- ' Ros. Cr. Ev., 41 ; R. v. Spencer, 7 C. & P., 776; R. v. Taylor, 8 C. & P., 733 ; R. V. Moore, 2 Den. C. C, 526; Joy's Tr. on Confes. and Chal., 23. ' Ros. Cr. Ev., 42. ' Joy on Confessions, &c.;*Whar. Cr. L., 692. See Peo. v. Burns, 2 Park., 34. * Jackson's Case, 1 City H. Rec, .28 ; Tucker's Case, 5 Id., 164. ' Dufly ff. Peo., 26 N. Y., 588. C. p. Vol. n— 14. 21P CRIMINAL EVIDENCE. sion made during its continuance, where no threats^ or promises were used; and a confession made to an officer who has a prisoner in custody, is admissible, providing it was not induced by impro- per means.*. (d) *A confession is admissible, although it is elicited by .ques- tions put to a prisoner by a magistrate, constable or other person. Nor will a confession under oath be excluded by the fact that it was elicited, by questions, even if they assumed the guilt of the prisoner, if no undue influence be used, and the party is not at the time under a criminal charge.^ The constable who arrested the prisoner said to him : "If you burnt the barn you had better tell me of it." The prisoner made no confession to the constable, but on being questioned by the magistrate confessed his guilt, and it was held admissible.* But the examination of an accused party, taken as such, is not admis- sible when such accused party is put on his oath and sworn and examined ; and the sworn statements of the prisoner are admitted or excluded as evidence against him, not upon the ground of immunity or privilege, nor upon the rule, whether the rule for- bidding a conunitting magistrate to examine upon oath the person charged with a crime has been violated, but whether the circum- stances of the prisoner when examined were such as to render his testimony reliable. A judicial oath administered when the mind is agitated and disturbed by a criminal charge, may prevent free and voluntary mental action, and this is the reason for excluding evidenpe thus given.'' But where the wife of a prisoner died under suspicious circumstances, and an inquest was held, at which the prisoner attended voluntarily, and was sworn and examined as a wd^ness, no charge having been made against him in his sub- sequent trial for the murder, it was held that this testimony before the coroner was admissible against him. It was to be deemed voluntary within the rule. The fact that the statements of the prisoner were made in the course of a judicial examination, does not make them inadmissible where the witness is not in custody, ' Peo. V. McMahon, 2 Park., 663; Peo. v. Rogers, 18 N. Y., 9; 5 Park., 522, 364. " Peo. V. Thomas, 3 Park., 256; Com. v. Mosher, 4 Barr., 204. ' 1 Whar. Cr. L., 690, and cases cited; Rex v. Thorton,'! Moo. C. C 27-8 0. &P.,176; Ros. Cr. Bv. ' Peo. V. Smith, 3. How., 226. ' Peo. V. McMahon, 15 N. Y., 384; reversing, 2 Pai-k,, 663. .CONFESSIONS BY THE PRISONER. 211 nor charged with the crime, and no threats or inducements are held out to induce a confession.^ (e) Where a confession has been obtaiued by artifice or decep- tion, but without the use x)f promises or threats, it is admissible. Thus it has been held that it is no objection that the confession was made under a mistaken supposition that some of the prisoner's accomplices were in custody, and even though some artifice had been used to draw him into that supposition.^ (/) It is quite settled, generally, that a confession is only evi- dence against the party making it, and cannot be used against others ; nor is the confesssion of the principal evidence to prove his guUt upon the trial of the accessory.^ But a difficulty has arisen where a confession by one prisoner is given in evidence which implicates the other prisoners by name, as to the propriety of suffering those names to be mentioned to the jury ; but it is considered 4hat the whole of the confession, whether verbal or written, ought to be presented to the juiy, not omitting . the names.* {ff) The whole of an admission made by the prisoner is to be given in evidence, and if on the part of the prosecution a con- fession or admission of the defendant, made in the course of a conversation with the witness, be brought forward, the defendant has a right to lay before the court the whole of what was said in that conversation, not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the amtter introduced ia the previ- ous examination, provided only that it relates to the subject mat ter of the suit, because it would not be just to take part of a conversation as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said on the same occasion. " There is no doubt," says Mr. Justice BosQUONET, " that if the prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another ; but if after the whole of the statement of the prisoner is given in evidence, the prosecutor is ' Peo. V. Hendrickson, 10 N. Y., 13; 1 Park., 416; 9 How., 155. ' Phil. Ev., 8th ed., 427; R. v. Burkley, East T., 1818; Ros. Or. Ev., 6th ed., 47. > R. 1). Turner, Moody 0. C, 347; Ros. Or. Ev., 48, 49. ■* Ros. Or. Ev., 49. See cases collected in 1 Lewiu C. C, 107; R.v. Fletcher, 4 0. & P., 250 ; R. v. Clewes, Id., 221. 212 CRIMINAL EVIDENCE. in a situation to contradict any part of it, he is at liberty to do so, and then the statement of the prisoner, and the whole of the other evidence, must be left to the jury for their consideration, precisely as in any other case, where one part of the evidence is contradictory to the other." ^ (A) An admission on the part of a prisoner is not conclusive ; and if it afterwards appear in evidence that the fact was other- wise, the admission will be of no weight. Thus, upon an indict- ment for bigamy, where the prisoner had admitted the first mar- riage, and it appeared at the trial that the first marriage was void, for want of the consent of the guardian of the woman, the prisoner was acquitted.^ (i) As to the mode of introducing confessions in evidence, it is unnecessary in general to negative any promise or inducement imless there is good reason to suspect that something of the kind has taken place. But if there be probable grotmcj to suspect that an officer, in whose custody a prisoner has previously been, has been guilty of collusion in obtaining a confession, such suspi- cion ought to be removed in the first instance by the prosecutor calling such officfer.* If, however, evidence of a confession should be received, and it afterwards appear from other evidence that an inducement was held out, which, had it been known at the time, would have ren- dered the evidence inadmissible, the proper course for the judge to take is to strike the evidence of confession out of his notes, and to tell the jury to pay no attention to it.* In proving a confession, proof of the identical language is not required. It is enough to prove substantially what was said, and all that was said on the point in question.® (k) On a prosecution for offering to vote when unqualified, the disqualification being that the ^ accused was under twenty-one years of age at the time, the fact that he was under that age, and knew himself to be so, may be proved by his admissions, for an infant is competent to confess the truth, although not to make a contract." ' R. V. Jones, 2 C. & P., 629 ; Ros. Cr. Ev., 51 ; 2 Brod. & Ring., 297. • 3 Stark. Ev., 1st ed., 1187. ' Ros. Cr. Ev., 53. * R. V. Garner, 1 Den. C. C, 329. " Peo. ads fowler, 18 How., 493. « Peo. «. Tripp, 4 N. Y. Leg. Obs., 344. • EVIDENCE OP ACCOMPLICES. 213 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 consan- guinity.^ On the trial of an indictment for bigamy, the confessions of the defendant, though supported by proof of cohabitation and repu- tatlbn, are not sufficient to establish the first marriage. Proof of actual marriage, either by the record or by evidence of an eye witness, is requisite.^ (?) Confessions made by a prisoner are not necessarily incom- petent because he was intoxicated at the time they were made. It belongs to the jury to say how far the prisoner was affected when he made the confessions, and so decide what weigit they will give them.^ (m) The foregoing remarks are intended to apply only to the confessions and admissions made by persons charged with offences, to third persons and not to those made to magistrates during the examination directed to be taken by the statute. § 10. EVIDENCE OF ACCOMPLICES. ' * An accomplice is a competent witness for the prosecution, although his expectation of pardon depend upon the defendant's conviction ; * and it has been repeatedly laid down that a convic- tion on the testimony of an accomplice, uncorroborated, is legal.^ In The People v. Costello,® Justice Beardslet said, although it has often been said by judges and elementary writers that no person should be convicted on the testimony of an accomplice unless corroborated by other evidence, still, there is no such inflexible rule of law. It is a question for the jury who are to pass upon the credibility of an accomplice, as they must upon that of every other witness. His statements are to be received with great caution, and the court should always so advise ; but if after all, Ms testimony carries conviction to the minds of the * Peo. V. Harriden, 1 Park., 344. ' Gohogan v. Peo., 1 Park., 378 ; Peo. v. Humphrey, 7 John., 314. ' JefFerds v. Peo., 5 Park., 622. * 1 Hale, 303; Gilb. Ev., 136; 2 Hawk., ch. 46, § 94. ° Ros. Or. Ev., 121; Peo. v. Eeeder, 1 Whee. 0. C, 418; 5 Rog. Eec., 94; 1 Denio, 83. * 1 Den., 83. 214 CRIMINAL EVIDENCE. jury, and they are fully conyinced of its' truth, they should give the same effect to such testimony as should be allowed to that of an unimpeached witness, who is in no respect implicated in the offence. Such testimony will authorize a conviction in any case. The court certa,inly should advise great caution on the part of the jury where the testimony depends upon the uncorroborated evi- dence of an accomplice; but they are not to be instructed- as matter of law that the prisoner in such case must be acquitted. Lord Ellenboeough thus expressed his views upon this ques- tion : " No one," said he, " can seriously doubt that a conviction is legal, though it proceeds upon the evidence of an accomplice alone. Judges, in their discretion, will advise ,a jury not to believe an accomplice unless he is confirmed, or in only so far as he is confirmed ; bjit if he is believed, his testimony is unques- tionably sufficient to establish the facts to which he deposes. It is allowed that he is a competent witness, and- the consequence is inevitable that if credit is given to his evidence, it requires no confirmation from another witness." ^ (a) But while the law is thus fully established that the testi- mony.of an accomplice is legal evidence, and sufficient upon which to found a conviction, the practice of the judges is almost inva- riable to advise juries not to convict upon the evidence of an accomplice who is uncorroborated ; and sometimes judges, where, the evidence of an accomplice is the only evidence, take upon themselves to direct an acquittal of the prisoner ; and as the law now stands, it is universally agreed by all the authorities that if the accomplice were uncorroborated, a judge should advise -a jury not to convict, although the advice of the court in such cases to acquit the prisoner, is a matter resting within its discretion.* But it is stated that the practice of requiring confirmation of the accomplice docs not extend to misdemeanors.'' (b) In regard to the question as to what is the nature of the corroboration which ought to be required, it is unnecessary that the accomplice should be confirmed in every circumstance which he details in evidence, for there would be no occasion to use ' Rex I). Jones, 2 Camp., 132. See R. v. Attwood, 1 Lea., 464; Peo. v. Davis, 21 Wend., 308 ; Haskins v. Peo., 16 N. Y., 344. ' Ros. Or. Ev., 6th ed., 121; Cow. and Hill's notes to Phil. Ev., 4th Am., from 7th Lond. ed., 1505; Whar. C. L., 5th ed., 783; Com. v. Grant, Thatch. Cr. Cas., 438; Peo. v. Davis, 21 Wend., 109. " Per Gibbs, Atty. Gen., Rex v. Jones, 31 How. St. Tr., 315. EVIDENCE OP ACCOMPLICES. 215 him at all as a witness if his narrative could be completely proved by other evidence, free from all suspicion.^ It may, indeed, be taken that it is almost the miiversal opinion that the testimony of an accomplice should be corroborated as to the person of the prisoner against whom he speaks.*^ Parke, B., said : " My practice always has been to tell the jury not to convict the prisoner unless the evidence of the accom- plice be confirmed not only as to the circumstances of the crime, but also as to the person of the prisoner." And Ceeswell, J., added : " You may take it for granted that the accomplice was at the committal of the offence, and may be corroborated as to the facts, but that has no tendency to show that the party accused was there." * And what appears to be required is, that there should be some fact deposed to, independently altogether of the evi- dence of the accomplice, which, taken by itself, leads to the infe- rence not only that a crime has been committed, but that the prisoner is implicated in it.* (c) The practice of requiring the evidence of an accomplice to be confirmed, seems to apply equally when two or more accom- plices are produced against a prisoner. Thus, in a case where two accomplices spoke distinctly to the prisoner, the court told the jury that if their statements were the only evidence, he could not advise them to convict the prisoner, adding that it was not usual to convict on the evidence of one accomplice without con- firmation, and that, in his opinion, it made no difference whether there were more accomplices than one.^ • ((?) A point about which the judges seem to have fluctuated, is as to whether, where several are indicted, and the evidence of the accomplice is confirmed as to some only, and not as to others, the jury ought to be advised to acquit those against whom there is no confirmation. The view taken in the majorily of the cases is, that when an accomplice speaks as to the guilt of several prisoners, and his tes- timony is confirmed as to a part of them only, it is proper for the judge to advise the jury that it is not safe to act on his testi- ' Cow. & H. notes to Phil. Ev., 1506; Peo. v. Davis, 21 Wend., 309. ' See eases cited in Roscoe's Ciimipal Eyidence, 122. = R. V. Stubbs, 25 L. J. M. C, 16. * Roscoe, 122. See Peo. v. Davis, 21 Wend., 109. ' R. V. Noakes, 5 0. & P., 326. See 21 Wend., 109. 216 CRIMINAL EVIDENCE. mony as to the prisoner or prisoners, in respect of whom he is not confirmed, for the accomplice may speak truly as to all the facts in the case, and at the same time substitute one of the pri- soners, against whom his testimony is unconfirmed, for himself, in his narrative of the transaction.^ ^11. DYESTG DEOLAEATIONS. The dying declai'ation of a person who has received a mortal injury, that is, declarations made under the apprehension of death, are constantly admitted in criminal prosecutions, when the death of the deceased is the subject of the charge against the prisoner ; * and this is so though the accused were not present, -and had no opportunity of cross-examination, and even where the declarar tions were those of the wife' against the husband.^ The constitutional provision, that the accused shall be con- fronted with the witnesses against him, does not abrogate the common law principle, that the declarations in extremis of the murdered person in such cases are admissible in evidence.* Evidence of this kind, which, is peculiar to the case of homi- cide, has been considered by some to be admissible from neces- sity, since it often happens that there is no third person present to be an eye witness to the fact, and the usual witness in other felonies, viz : the party injured himself is got rid of. But it is also said that the general principle, upon which evidence of this kind is admitted, is that of declarations made ui extremity, when the party is at the point of death, and when every hope of the world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn. and so awful, is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court, and probably it is the concur- rence of both these reasons which led to the admission of this species of evidence.® , (a) The deceased must have been competent as a witness, and ' Ros. Cr. Ev., 123; R. v. Stubts, supra; but see R. o. Dowber, 3 Stark N P. C.,34(n). ' 1 PhU. on Ev., 235. ' Peo. V. Green, 1 Park., 11; 1 Den., 614. * 1 Whar. Cr. L., 670, and cases cited. ° Ros. Cr. Ev., 6th ed., 29 ; 1 East P. C, 353 ; R. v. Woodcock, 1 Leach, 502. DYING DECLARATIONS. 217 the principle is laid down that in order to render these declarar tions in articvlo moris admissible, they should come from a wit- ness who would be competent, if alone and on the stand. Thus, where the declarations were made by a child only four years old to her mother, they were held inadmissible, because so young a person could not have had that idea of a future state which would render her competent.^ But where the child was eleven years old, of an intelligent mind, impressed with the nature of an oath, and expecting to die, the declaration was held receivable.^ (6) The evidence must have been admissible had the deceased been sworn, for nothing can be evidence in a declaration in articulo moris that would not be so if the party were sworn. On this rule, any thing the murdered person in articulo moris says as to facts is receivable, but not what he says as to matter of opinion or beKef.^ (c) Dying declarations are only admissible when made by a person who is under the influence of an impression that his disso- lution is impending. There must be no hope, not only of ulti- mate recovery, but of a prolonged continuance of life. If that impression exist in the mind of the sufferer, it will not render the statement inadmissible ; that death does not in fact take place until some time afterwards, and in order to judge whether or not such is the mind of the person in question, the whole of the cir- cumstances must be looked at.* With respect to the interval of time which may have elapsed between the dying declarations and the moment of death, there appears to be no rule founded on this circumstance alone ; nor is it consistent with the principle upon which dying declarations are received in evidence (which, as we have seen, depends on. the slate of the declarant's mind), that such declarations should be excluded if not made within any precise limit of time ; ^ but any hope of recovery, however slight, existing in the mind at the time of the declarations made, will render the declarations inadmissible ; ® and in order to render a dying declaration admissible, it must be shown to have been ' R. V. Pike, 3 C. & P., 598. » R. V. Perkins, 2 Moo. C. C, 135. ' 1 Whar. Or. L., 678. ' Ros. Cr. Bv., 6th ed., 31. ' 2 Ru8S. on Cr., 753; R. v. Reaney, Dears. & B. C, 15. • 2 RusB. on Cr., 755, and cases cited. 218 CRIMINAL EVIDENCE. made uader such circumstances as necessarily exclude the suppo- sition that the deceased might at the time entertain srnne hope of recovery ; and the absence of any settlement of affairs, of direc- tions as to his funeral, of taking leave of his friends and relatives, and such like, tends to show that all hope of recovery is not vanished from the mind, and may sometimes exclude a dying declaration.^ It is not necessary tha* the deceased should earpress any appre- hension of danger, for his consciousness of approaching death may be inferred not only from his declaring that he knows his danger, but from the nature of the wound, or his state of illness, or other circumstances of the case. And if it may be reasonably inferred from the nature of the wound, the state of illness and other circumstance that the deceased was sensible of his' danger, his declarations are admissible.** • (c?) The declarations in extremis of a person who, if living, would be a competent witness, are inadmissible in evidence, either in a civil action or a criminal prosecution, with the single excep- tion of cases of homicide, where the declaration of the deceased, after the mortal blow, as to the fact of the murder, is admitted.' Thus, in a case where the prisoner was indicted for administering savin to a woman pregnant, but not quick with child, with intent to procure abortion, the woman was dead, and the prosecution tendered evidence of her dying declaration upon the subject, the court rejected the evidence, observing that, although the decla- ration might relate to the causes of the death, still such declara- tions were admissible in those cases alone where the death of the party was the subject of the inquiry.* (e) The dying deelarations of the. deceased are as well admis- sible in favor of the accused as against him. Thus, upon an indictment for manslaughter, a surgeon stated that the deceased seemed perfectly sensible of the dangerous state which he was in, and said he knew he could not get better, and afterwards said, "I don't thinli he would have struck me if I. had not provoked him." CoLERiDGB, J., at first expressed some doubt, but after- ' 2 Buss, on Cr., 756. ' Id., 760; IPhil Bv., 235. ^ Wilson 11. Boerem, 15 John., 236. ' R. V. Hutchinson, 2 B. & C, 605. See 4 C. & P., 233. DYING DECLARATIONS. 219 wards received the evidence, observing that it might have an influence on the amount of punishment.^ (/) If tli6 f the complainant^ and did, at the time and place last above mentioned, to wit, on the said first day of January, A. D. 1868, at the drug store of James Miller, in the town of Greenbush aforesaid, make use of the following language, to wit : I" I will pound your head to a jelly"'], or [^'ifyou do not mode out of the house you now live in, I will bum it down over your head "], or [here state the threat- ening language used or words spoken]. And the said William Jones, being by me duly sworn, upon his oath says that he was present at the drug store of James Miller, in the town of Greenbush, in said county, on the first day of January, A. D. 1868; that the said John Doe was also present, and that, in the presence and hearing of the said William Jones, the said John Doe did threaten to [here state the nature of the offence threatened to be committed against the person or property of the complainant], and did on that occasion make use of the following language, to wit : [Here state the words, as near as may be, of the threatening language used.] And the said William Jones, upon his oath aforesaid, fiirther says that, at divers other times and places, and among others at the Hudson River Railroad depot, in said town of Greenbush, he, the said WilUam Jones, has heard him, the said John Doe, threaten to [" kill," or " beat," or " maim," or " commit a grievous assault and battery upon," or "wound"] him, the said James Brown [or "to bum the dwdline-hmise of him, the said Jarnes Brown "]. JAMES BROWN, WILLIAM JONES. Taken and subscribed before me, the day and year > ia this examination first above mentioned, 5 Hbnrt Goodbich, Justice of the Peace. No. 9. WAEKAKT OP AEHBST TO OBTAIN SUBKTT OP THE PEACE, ISSUED UPON THE FOEEGOING COMPLAINT AND EXAMINATION. See ante. Vol. I, p. 84. County of Rensselaer, ss. : The people of the State of New York, to any constable of said county, Greeting : Whereas, James Brown, of the town of Greenbush, in said county of Rens- selaer has this 1st day of January, A. D., 1868, at the town of Greenbush, in C. P. Vol.. 11—15. 226 APPENDIX OP FORMS. said county of Rensselaer, made complaint in writing and upon oath before me, Henry Goodrich, a justice of the peace of said county, that John Doe, of the city Troy, in said county, has threatened to commit an offence against the person [or " property "] of him, the said James Brown, to wit, to I" kill" him, the said James Brown] or [to "bwm the dwelling house of him, the said James Brovm,"'] or to [here state the specie offence threatened against the person or property of the comptainanf]] and has demanded surety of the peace against the said John Doe; and an examination upon oath haying been taken by me, as such justice of the peace, at the town of Greenbush aforesaid, in the county of Rensselaer, aforesaid, on the 1st day of January, A. D.,1868, of the said James Brown, and also of William Jones, and it appearing to me from the said examination, on oath of said James Brown and William Jones, that there is just cause to fear the com- mission of the said offence by the said John Doe. These are, therefore, to command you, in the name of the people of the State of New York, forthwith to apprehend the said John Doe, and bring him before me at my office in the town of Greenbush, in the said county of Rensselaer, to be dealt with according to law. Given " under my hand" or ["undermy ha,nd and seal "] at the town of Greenbush, in the county of Rensselaer aforesaid, the 1st day of January, A. D.,1868. . HENRY GOODRICH, Justice of the Peace. No. 10. KEOOGNIZANCE TO KEEP THE PEACE. See ante. Vol. 1, p. 84. County of Rensselaer, ss. . Be it remembered that at the town of Greenbush, in the county of Rensse- laer aforesaid, on this 10th day of January, A. D. 1868, John Doe, of the town of Greenbush, in the county of Rensselaer aforesaid, and John Christie, of the city of Troy, in said county, personally came before me, Henry Goodrich, a jus- tice of the peace in said county, and severally and respectively acknowledged themselves to be indebted to the people of the State of New York in the sum of two hundred dollars, to be levied of their respective goods and chattels, lands and tenements, to the use of the said people if default shall be made in the follow- ing condition : The condition of this obligation is such that if the above bounden, John Doe, shall personally be and appear at the next court of sessions, to be held in and for the said county of Rensselaer, at the court house, in the city of Troy, in said county, and shall not depart the same without leave, and shall, in the meantime, keep the peace toward the people of this State, and particularly towards James Brown, then this recognizance to be void and of no effect, otherwise to remain in full force and virtue. JOHN DOB, [l. s.] JOHN CHRISTIE, [l. s.] Subscribed and acknowledged before me, ) this 10th day January, A. D. 1868. 5, , Henry Goodbich, Justice of the Peace. SURETY OF THE PEACE. 227 Ho. 11. WAKRAXT OP COMMITMENT, WHERE THE PEISONEK JTBGLECTS OR REPUSBS TO GIVE THE FOREGOING RECOGNIZANCE. See ante, Vol. I, p. 84. County of Rensselaer, ss : The people of the State of New York, to any constable of the county of Rensselaer, and to the keeper of the common jail of the said county, Greeting : These are to command you, the said constable, forthwith to convey and deliver into the custody of the said keeper the body of John Doe, this day brought before me, Henry Goodrich, a justice of the peace of the said county of Rensselaer, and required by me as such justice to enter into a recognizance, with one sufficient surety, himself in the sum of two hundred dollars and the said surety in the sum of two hundred dollars, for his personal appearance at the next court of sessions to be held in and for the said county of Rensselaer, at the court-house in the city of Troy, in said county, and not to depart the same without leave, and in the meantime to keep the peace toward the people of the State of New York, and particularly towards James Brown, who has demanded surety of the peace against said John Doe, before me as such justice of the peace as aforesaid, by a complaint in writing and upon oath, the said John Doe having failed to find such security. And you, the said keeper, are required to receive the said John Doe into your custody in the said jail of your county, and him there safely keep until he shall find such security as aforesaid, or be otherwise discharged by due course of law. Given imder my hand and seal, at the town of Greenbush, in the said county of Rensselaer, this tenth day of January, A. D. 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 12. • A SIMILAR WARRANT WHEN NO COMPLAINT HAS BEEN MADE BY THE PARTY WHOSE PERSON OB PROPERTY IS THREATENED, BUT WHERE THE OFFENCE WAS COMMITTED IN THE PRESENCE OP THE MAGISTRATE. See ante. Vol. I, p. 86.. County of Rensselaer, ss : The people of the State of New York, to any constable of the said county of Rensselaer, and to the keeper of the common jail of said county. Greeting: These are to command you, the said constable, forthwith to convey and deliver into the custody of the said keeper the body of John Doe, charged by me, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, 228 , APPENDIX OF FOBMS. with having, on this first day of January, J^ D. 1868, at the town of Greenbilsh, in said county, and in my presence, made an affray with one James Brown, or [threatened to bnm and destroy the dweUing house of one James Brown,'] or [to kill one James Brown,] and the said John Doe having then and there been required by me, the said justice, without any other proof, to enter into a recog- nizance, with a sufficient surety, himself, in the smxi of two hundred dollars, and the said surety in the sum of two hundred dollars for his appearance at the next court of sessions, to be held in the said county of Rensselaer, and not to depart the same without leave, and in the meantime to keep the peace towards the people of this State, and palrticularly towards the said James Brown, the said John Doe having refused to find such security. And you, the said keeper, are hereby required to receive the said John Doe into your custody in the said jail, and him there safely keep imtU he shall find such security as aforesaid, or be otherwise discharged by due course of law. Given under my hand and seal in the town of Greenbush, in the county of Rensselaer aforesaid, this 10th day of January, A. D. 1868. . HENRY GOODRICH, [l. s.] Justice of the Peace. No. 13. WAREANT TO KBLBASB PIIISONBK, WHO IS COMMITTED UNDER EITHER OP THE PORBGOINS WARRANTS, HE HAVING SUBSEQUENTLY GIVEN THE SECURITY REQUIRED OP HIM. See ante. Vol. I, p. 85. County of Rensselaer, ss : The people of the State of New York, to the keeper of the common jail of the said county of Rensselaer, Greeting : These are to command you forthwith to release from your custody the body of John Doe, if detained by yoivin the said common jail, for no other cause than what is specified in the warrant of commitment made by Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, and dated the 10th day of January, A. D. 1868, for not finding sureties of the peace upon the com- plaint of James Brown, he, the said John Doe, having since his said commitment found such sureties before us. And for your so doing, this shall be your suffi- cient warrant. Witness, Charles J. Lansing and Thomas Neary, two of the justices of the peace of the said county of Rensselaer, at the ci(jy of Troy in said county, this 12th day of January, A. D. 1868. CHARLES J. LANSING, [l. s.] Justice of the Peace. TilOMAS NEARY, [l. s.] Justice of the Peace. SEARCH WARRANTS. 229 SEAECH WAERANTS. Js^o. 14. COMPLAINT TO OBTAIN SEARCH WABEANT. See ante. Vol. I, p. 93. To John Smith, Esq., one of the jiistices of the peace in and for the county of Rensselaer : John Brown, of the town of Greenbush, in said county, upon his oath, com- plains that on the 1st day of January, 1868, at the town of Greenbush, in said county, one silver watch, of the value of ten dollars, and one gold ring, of the value of five dollars, of the goods, chattels and property of this complainant, [or of one Sarah Srown, of Greenbush aforesaid, who is the sister of this deponent, and who is now sick (or absent from the said county of Rensselaer) arid unable, by reason thereof, to make this eomplaint,'] then and there being found, were felo- niously stolen, taken and carried away, to the great damage of this complainant, [or of the said Sarah Brovm] by John Doe [or by some person or persons who are to this complainant unknoten,'] and that he hath just and reasonable cause to suspect, and doth suspect, that the said goods, chattels and property, or some part thereof, are concealed in the dwelling house [or bam, 4rc.] of John Doe, situated upon lot No. 20, Main street, in the village of Greenbush, in said town and coimty, now occupied by the said John Doe, and that the grounds of this complainant's suspicion in regard thereto are as follows : [here state the grounds of the sv^cion at length, so as to satisfy themagistrate that they are reasonable grounds of suspicion; and if a search of the house or place is desired to be made in the night time, the proof of concealment, in the house or place desired to be searched, must be positive.'] Wherefore this complainant asks that a search warrant may be duly issued, according to the provisions of the statute in such case made and provided, and that such proceedings may be had thereon as to law and justice doth appertain. Dated at Greenbush, in said county, this 10th day of January, A. D. 1868. JOHl^ BROWN. Subscribed and sworn before me, ? this 10th day of January, 1868. 5 John Smith, Justice of the Peace. No. 15. SEARCH WARRANT AUTHORIZING SEARCH IN THE DAY TIME. See ante. Vol. I, p. 94. Rensselaer county, ss : To the sheriff of said county, or to any constable of the town of Greenbush, in said county. Greeting : Whereas, John Brown, of the town of Greenbush, in said county, has lAde oath before me, John Smith, a justice of the peace of said county, that on 230 APPENDIX OF FORMS. the first day of January, 1868, at the town of Greenbush in said county, one silver watch, of the value of ten dollars, and one gold ring, of the value of five dollars, of the goods, chattels and property of the said John Brown [or of Sarah Brawn of Greenbush aforesaid], then and there being found, were felo- niously stolen, taken and carried away, to the great damage of the said John Brown [or of the said Sarah Brovm] by John Doe [or hy some person or persons unknown to the said John Broum],* and that he hath just and reasonable ground to suspect, and doth suspect, that the said goods, chattels and property, or some of them, are concealed in the dwelling-house [or bam, &c.] of John Doe, situ- ated upon lot ^o. 20, Main street, in the village of Greenbush, in said town and county, and now occupied by said John Doe. And I, John Smith, justice of the peace as aforesaid, being satisfied that there is a reasonable ground for such sus- picion, do therefore command you to search the said dwelling house (or bam, 4"c.) of the said John Doe, situated upon lot No. 20, Main street, in the village of Greenbush, in the said town of Greenbush and county of Rensselaer, in the day time ; and if the said above mentioned goods, chattels and property, or any of them, shall be found upon such search, then that you bring the said goods, chattels and property, so found by you, before me at my office, in the town 'of Greenbush, in the county of Rensselaer aforesaid, to be disposed of according to law. Given under my hand and seal at the town of Greenbush, in the county of Rensselaer aforesaid, the 10th day of January, 1868. JOHN SMITH, [l. s.] Justice of the Peace. No. 16. SEARCH WAnEANT AUTHORIZING SEARCH IN THE NIGHT TIME. See ante. Vol. I, p. 94. Rensselaer county, ss : To the sheriff of said county, or to any constable of the town of Greenbush, in said county. Greeting : "Whereas, [continue as in the preceding' form to the *] ; and that the said goods, chattels and property, or some of them, are concealed in the dwelling house [or barn, ^c] of John Doe, situated upon lot No. 20, Main street, in the village of Greenbush, in said "town and county, and now occupied by said John Doe* And I, John Smith, justice of the peace as aforesaid, beiiig satisfied that there is positive proof that said goods, chattels and property, or some of them, are concealed in the dwelling house [or barn, Sfc.], above mentioned and described, of the said John Doe, do command you to search the said dwelling house [or bam, §-c.] of the sa,id John Doe, situated upon lot No. 20, Main street, in the village of Greenbush, in the said town of Qreepbush and county of Rensselaer, as weU in the night time as in the day time, and if the said above mentioned goods, chattels and property, or any of them, be found upon such search, then that you bring the said goods, chattels and property, so found by you, belbre SEARCH WARRANTS. 231 me, at my ofiBce, in the town of Greenbush, in the county of Rensselaer aforesaid, to be disposed of according to law. Given under my hand and seal at the town of Greenbush, in the county of Rensselaer aforesaid, the 10th day of January, 1868. JOHN SMITH, [L. S.J Justice of the Peace. No. 17. COMPLAINT FOB SBAKCH WAEBANT TO A JUSTICES' COUET IN CITIES. See ante. Vol. I, p. 93. County op Renssblaeb, ) . The Justices' Coubt op the Citt op Tbot, 5 " WilHam Briggs, of the city of Troy, in said county, being duly sworn, makes oath and complains before the justices of the justices' court, of the city of Troy, in said county, that on or about the let day of January, 1868, divers goods and chattels of the said William Briggs, to wit, one coat, of the value of ten dollars, and one gold watch, of the value of one hundred dollars, were feloniously stolen, taken and carried away from the possession of the said William Briggs, at Troy aforesaid, and that he has probable cause to suspect said goods and chattels, or part thereof, are concealed in the barn of one John Doe, on the comer of River and Eighth streets, in the city of Troy aforesaid, and upon his oath afofe- said, further states as th^|groimd of his suspicion [here state the grounds of suspicion] ; and the said William Briggs prays that a precept may be issued to make search for said goods and chattels aforesaid, according to law. WILLIAM BRIGGS. Subscribed and sworn this 2d day of? January, 1868, before me, 5 Thomas Neaet, Justice of the Peace. No. 18. SBAECH WAEEANT ISSUED BY A JUSTICES' COUET IN CITIES. See ante, Vol. I, p. 94. County op Rensselaer, > . The Justices' Court op the City op Teoy, 3 The people of the State of New York, by the grace of God, free and inde- jiendent, to the Capital police. Greeting: Whereas, James Brown, of the city of Troy, in said county, has this day made complaint on oath before the justices' court of the city of Troy, in said county, that divers goods and chattels of the said Brown, to wit, one coat, of the 232 APPENDIX OP POEMS. value of ten dollars, and one gold watch, of the value of one hundred dollars, were feloniously taken, stolen and carried away from the possession of the said James Brown, at the city of Troy aforesaid, on or about the 1st day of January, 1868, and that he has just and reasonable cause to suspect, and dol^h suspect, that said goods and chattels, or a part thereof, a^e concealed in the barn of one John Doe, situate on the corner of Eighth and River streets, in the city of Troy, in said county, and upon his oath states that the ground of his suspicions are [here state the grov/nds of suspicion]. You are, therefore, hereby commanded and required forthwith, in the name of the people of the State of New York, with proper and necessary assistance, to enter into the aforesaid premises, and there diligently search for said goods and chattels : and if the same, or any part thereof, shall be found upon such search, you are reqmred to bring the goods and chattels so found before said court, that further proceedings may be had in the premises, according to law. Witness — ^Uriel Dexter, Thomas Neary and Richard C. Jennyss, justices of [l. s.] the said court, and the seal thereof. Dated at Troy, this 2d day of January, 1868. By the court, . P. L. JONES, Clerk. No. 19. BETURN TO SEARCH WARRANT. See ante. Vol. 1, p. 96. Rensselaer county, ss : t I have executed the within search warrant, as I am within commanded, by making diligent search in the place designated in the said warrant, for the goods therein described [but cannot find the said goods or any'part thereof], [or / havt found the said goods and now have them, as I am tuithin commanded.] Dated January 5, 1868. GEORGE BENEDICT, Constable. CORONEES' INQUESTS. No. 20. SUBP(ENA FOR WITNESS. See ante. Vol. I, p. 104; State of New York, Rensselaer county, ss : The people of the State of New York to A B, C D, and E F, Greeting : We command youj and each of you, that all excuses and business being laid aside, y6u and each of you be and appear in your proper persons before the CORONERS' INQUESTS. 233 undersigned, one of the coroners of the said comity, at the court house, in the city of Troy, in the said county, on the 5th day of January, 1868, at 10 o'clock in the forenoon, to give evidence concerning the death of John Doe, [or of a per- son wnknouyn]. Hereof fail not at your peril. "Witness my hand, this 1st day of Januay, 1868. THOMAS HURLEY, Coroner. No. 21. OATH TO WITNESS. See ante. Vol. I, p. 104. The evidence which you shall give upon this inquest, touching the death [or wcmruUng] of John Doe, [or of the person whoseTiody has been viewed], shall be the truth, the whole truth, and nothing hut the truth. So help you God. No. 22. OATH TO INTBB.PKBTER. See ante. Vol. 1, p. 104. You shall truly interpret to the witness the oath that shall be administered to him upon this inquest,, and shall also truly interpret between the coroner, the jury and the witness, so help you God. No. 23. OATH TO BE ADMINISTERED TO THE FOEEMAN" OF A COEONER'S JURY. t See ante. Vol. 1, p. 103. You do swear that you will, well and truly, inquire how, and in what manner, Hnd when and where, the person lying here [or as the case may 6e] came to his death [or was wmmded], and who such person was, and into all the circumstances attending such death [or wownding'], and by whom the same was produced, and that you will make a true inqiiisition thereof, according to the evidence offered to you, or arising from an inspection of the body. So help you God. C. p. Vol. n— 16. 234 APPENDIX OF FORMS. No. 24. OATH TO THE OTHEK JUEORS. See ante. Vol. I, page 103. The same oath which A. B., the foreman of this inqjiest, hath, on his part, taken, you and each of you do now take, and shall well and truly ohserve and keep, on your parts. So help you God. No. 25. ATTACSMBNT AGAINST A WITNESS. See ante. Vol. I, page 104. The People of the State of New York: The sheriff or to any constable of the county of Rensselaer, Greeting: We command you that you attach Charles R. Mallory and bring him before the undersigned, one of the coroners of said county of Rensselaer, at the dwell- ng house of James Curley, in the city of Troy in said county, forthwith, to testify upon a certain inquest, then and there to be had, upon the body of John Doe [or of a person whose name is vmknown, or of a male infant child\, and also to answer aU such matters as shall be objected against him. For that he, having been duly subpoenaed to attend upon such inquest, has refused or neglected to attend in conformity to such subpcena, and have you then and there this writ. Witness the hand of the said corpner this 5th day.of January, 1868. THOMAS HURLEY, Coroner. No. 26. RBTUMf TO THE POaBGOING ATTACHMENT. See ante. Vol. I, page 104. I certify that I have arrested the within named Charles R. Mallory, and have him in my custody now here, as I am within commanded. Dated January 5, 1868. M. V. A. FONDA, Sheriff of Rensselaer county. CORONERS' INQUESTS. 235 No. 27. GENERAL FOEM OP INQUISITION. See ante. Vol. I, page 106. State of New York, Repsselaer county, ss : An inquisition, indented and taken at the American Hotel [or the dwelling house of A SX, in the city of Troy, in the county of Rensselaer, this fifth day of January, in the year of our Lord one thousand eight hundred and sixty-eight, before me, Thomas Hurley, one of the coroners for the county aforesaid, on the view of the body of John Doe [or of a person unknown, or of a male infant], then and there lying dead, upon the oaths and affirmations of A B, D, E F, etc. [state the names of the jwrorsl, good and lawful men of the State of New York, duly chosen, who being then and there duly sworn and charged to inquire, on behalf of the people of said State, where, when, how and after what manner the said John Doe [or the said person wnknown, or the said male chiM\ came to his death; do upon their oaths and afBrmations, say that the said John Doe [or the said person unknown, or the said male child. — Here state the finding of the jury, the appearance of the body, marks of violence, etc.'] In witness whereof, we, the said jurors, as well as the coroner aforesaid, have to this inquisition set our hands and seats, at the time and place aforesaid. X Y, Foreman, [l. b.] A B, [L.S.] O D, [l. s.] E F, [L. s.] ptc 6fiC cffC THOJMAS HURLEY, Coroner, [l. s.] No. 28. STATEMENT FOE INQniSITION WHEN THE DECEASED WAS MUEDBEED. See ante. Vol. I, page 106. "One A B, of the city of Troy, in the said county of Rensselaer, on the 26th day of December, 1867, at the said city of Troy, feloniously and of malice aforethought made an assault upon the body of the said John Doe, then and there present ; and the said A B, with a certain knife made of iron and steel [or, loith a certain sharp pointed instrument to the jurors aforesaid rnikruywn], violently and of malice aforethought inflicted a mortal wound upon the left side and breast of the said John Doe, of which said wound the said John Doe then and there instantly [or shortly thereafter, to wit : on the 27th day of December, 1867, at the city of Troy, aforesaid] died. And so the jurors aforesaid say that the said A B did then and there feloniously kill and miu-der the said John Doe 236 APPENDIX OF FORMS. [or ptrscm unknovyn], in manner and form aforesaid, against the peace of the people of the State of New York and their dignity. Or " -vrith a certain heavy club of wood about three feet long [or Klld of viood] or piece of iron about six feet long and two inches square, willftilly, felo- niously and of malice aforethought, inflicted a mortal wound upon the head of the said John Doe, of which he then and there died. And so the jurors aforesaid say," &c. (^Contmue as above. "] Or "with a certain pistol, known as a revolver [or vnth a rifle gun, shot gun or musket], then and there loaded with gunpowder and lead, he, the said A B, inflicted a mortal wound upon the lower part of the body or abdomen of the said John Doe, of which he then and there died. And so the jurors aforesaid say, &c. [Conclude as above.] Or "placed a certain pair of suspenders [or cord] about the neck of the said John Doe, and did then and there, violently, feloniously and of malice afore- thought, choke, strangle and suffocate the said John Doe, pf which choking, strangling and suffocation the said John Doe then and there instantly died; and so the jurors aforesaid say," &c. [Conclude as above.] Or " did mix and mingle a certain quantity of white arsenic, the said AB then and there knowing the same to be a deadly poison, in a certain quantity of coffee; and the said A B then and there contriving and intending the said John Doe with poison, feloniously to kill and murder, did feloniously, willfully and of his malice aforethought, give the poison so mixed and mingled as aforesaid to the said John Doe to take and drink' and swallow, and the said John Doe not knowing that the same was poison, by the procurement of the said A B, did drink and swallow the said poison, so as aforesaid mixed, whereof the said John Doe became sick and distressed in body, and afterwards, on the day aforesaid, at the city of Troy aforesaid, did die of the poison aforesaid : and so the jurors afore- said say, &c. [Conclude as above.] No. 29. A SIMILAR STATEMENT IN A CASK OP SELF-DEFENCE. See ante. Vol. I, p. 106. " The said A B made a violent assault upon one C D with force and arms and with the intent to kill, maimer dangerously wound the said D, and did thereby put him, the said C D, in imminent danger and bodily fear of his life; and the said D, then and there, in self-defence, seized a loaded pistol [or a knife, bhidgeon or other instrwnent] and shot [stabbed or struck] the said A B in his left breast, [or wounded the said AB inthe heaS], whereof he the said A B instantly, [or thereafter, on the 27th day of December, 1867, at the dty of Troy aforesaid] died-; and so the jurors aforesaid, upon their oaths aforesaid, say that the said CORONERS' INQUESTS. 237 shooting [or stabbing or blowi was not done feloniously or with malice afore- thought, or against the peace of the people of the State of New York and their dignity, but was so done by the said D in self-defence." No. 30. WHERE ONE COMMITS STJIOIDB. See ante. Vol. I, p. 106. "The said John Doe did, on the 30th day of December, 1867, at the city of Troy, in said county of llensselaer, voluntarily and of his own malice afore- thought, drown himself in the Hudson river [or, voluntarily and of his own malice aforethought hanged himself by a rope fastened to a beam in the garret of his dwelling-house, whereby he was choked and sufibcated, and of such hanging and choking did die]." No. 31. WHEKB THE PEBSON DIED FROM INTEMPBBANCB AND WANT OF FOOD. See ante. Vol. I, p. 106. " The said John Doe, being an intemperate person and having no home, but being of vagrant habits, and having take* no food for some time, but having drank of intoxicating liquors freely during that time, and being constantly drunk or intoxicated, did, on the 26th day of December, 1867, at the city of Troy in said county, die. And so the jurors aforesaid, upon their oath aforesaid, do say that the said John Doe did die in consequence of the use of intoxicating liquors, which death was hastened by abstinence from food, and not otherwise." No. 32. WHERE ONE IS ACCIDBNTALLT DROWNED. See ante. Vol. I, p. 106. " The said John Doe, on the 25th day of December, 1867, went into the Hudson river, in the city of Troy aforesaid, to bathe [or fell from a boat or 238 APPENDIX OF FORMS. bridge, or a boat was upset, or was skating upon the ice and the same broke through and the said John Doe iwnk in the water"], and then and there accidentally and by misfortune was suffocated and drowned in the waters of said river, of which suffocation and drowning the said John Doe then and there died. And so the jurors aforesaid, upon their oaths aforesaid, say that the said John Doe, in man- ner and form and by the means aforesaid, accidentally and by misfortune came to his death, and not otherwise." No. 33. STATEMENT FOB INQUISITION WHERE A BASTAKD CHILD IS DBSTROTED. See ante. Vol. I, p. 106. " One Sarah Turner, being pregnant with a female child, was, on the 26th day of December, 1867, at the city of Troy, in said county, alone and secretly delivered of the said female child, and brought forth the same alive, and the said Sarah Turner then and there feloniously and with malice aforethought, and with the intention of destroying the said new-born female child, threw the same into a certain privy there situated, by means whereof she, the said new-born female child, in the soil and filth therein contained, was then and there suffocated and smothered, and of which suffocation and smothering she, the said new-born female child, instantly died." No. 34. A STATEMENT WHERE ONE HAS DIED A NATURAL DEATH. See ante, Vol. I, p. 106. " The said John Doe, on the 30th day of January, 1868, at the city of Troy, in the county aforesaid, was found lying dead in the public highway known as River street, near the State dam, and that he had no mark of violence upon his body. And so the jurors aforesaid, upon their oaths aforesaid, say that the said John Doe died by the visitation of God, in a natural way, and not otherwise." CORONERS' INQUESTS. 239 No. 35. EXAMINATION OP WITNESSES BEPOBB A COBONBB'S JURY (tO BE ATTACHED TO THE INQUISITION.) See ante, Vol. I, page 108. Rensselaer county, ss : Examination of witnesses produced, sworn and examined on this 1st day of January, 1868, at the city of Troy in said county, before Thomas Hurley, one of the coroners of said county, and A B, C D, etc., jurors, good and lawful men of the said county, duly summoned and sworn by the said coroner, to inquire how, and in what manner, and when and where John Doe [or a person unknown, etcJ] came to his death [or was wounded], and who such person was, and into all the circumstances attending such death [or wowiding'], and to make true inquisition, according to the evidence, or arising from the investigation of the body. Charles R. Squire, being produced and duly sworn, says that : [^Here insert his testimony.] Signed, C. R. S. Subscribed and sworn before > me, January 1st, 1868. ^ Thomas Hublet, Coroner. [Add the evidence of the other witnesses in a similar manner.] I do hereby certify that the testimony of the several witnesses appearing upon the foregoing inquest was reduced to writing by me, and the same sub- scribed by said witnesses in my presence, and that the said testimony is the whole of the testimony taken on such inquest, and that the same is correctly stated as given by the witnesses respectively. Dated January 1st, 1868. THOMAS HURLEY, Coroner. [In a case where the accused has been arrested and examined by the coroner after the examination of the witnesses, conclude as follows :] After the examination of the foregoing witnesses, the said A B, the prisoner, was then and there examined by me (after having first been duly informed by me of the charge against him, and that he was at liberty to refuse to answer any question that might be put to him, and after being allowed a reasonable time to send for and advise with counsel), and on such examination the said A B answered that his name is A B; that he is by trade a mason, and [here state his further answers, or that, by the advice of his counsel, he declines answer- ing any further questions.] I certify that the foregoing is a correct statement and account of the exam- ination of the several witnesses, and of the prisoner, taken by and before me on the 1st day of January, 1868, at the city of Troy, and the whole of the testimony given by the said several witnesses, and of the statements and answers given by the said prisoner, A B ; and I ftirther certify that the statement and examination of the said A B were reduced to writing by me, and were read by me to the said A B, and were corrected by him, and made conformable to what he declared 240 APPENDIX OF FORMS. to be the truth, and that they contain all of the said statement made and answers given by the said A B, upon such examination. Dated January 1st, 1868. THOMAS HURLEY, Coroner. No. 36. coeonbr's waeeant fob the areest op the peeson who has been chaegbd bt the inquisition with muedbe. See ante. Vol I, p. 108. To the sheriff or any of the constables of the county of Rensselaer, Greeting : Whereas, by the inquisition of six [or ] good and lawful men of said county, taken upon their several oaths before me, Thomas Hui'ley, one of the coroners in and for said county, at the dwelling-house of Lawrence Smith, at the city of Troy in said county, A B is charged with having feloniously killed and murdered John Doe; you are, therefore, hereby commanded in the name of the people of the State of New York, forthwith to arrest the said A B, and bring him before me to be dealt with according to law. Hereof fail not at your peril. Given under my hand and seal at the city of Troy, in the said county of Rensselaer, this 9th day of January, 1868. THOMAS HURLEY, Coroner. No. 37. BBCOGNIZANCB BT WITNESS ON COEONER's INQUEST. See ante. Vol. I, page 108. Rensselaer county, ss : Be it remembered, that on this 1st day of January, 1868, A B, C D and E F, of the city of Troy in said county, personally came before me, Thomas Hurley, one of the coroners of the said county of Rensselaer, and severally acknowledged themselves to be indebted to the people of the State of New York, each sepa- rately, in the sum of one hundred dollars, to be made and levied of their goods and chattels, lands and tenements to the use of the said people, if default shall be made in the condition following : The condition of this recognizance is such; that if the above bounden A B, C D and JE F, shall personally be and appear at the next court* of sessions [or of oyer and terminer'], to be held in and for the said county of Rensselaer, to give evidence on behalf of the said people against Matthew Higgins, for feloniously CORONERS' INQUESTS. 241 killing and murdering John Doe, as well to the grand jury as to the petit jmy and do not depart the said court without leave, then this recognizance to be void and of no effect, otherwise to remain in full force. AB. CD. • E F. Subscribed and acknowledged before me } the day and year first above written. 3 Thomas Hublbt, Coroner. No. 38. A SIMILAR RECOGXIZAXOB WHERE THE WITNESS FURNISHES A -SURETT. See' ante. Vol. I, p. 108. County of Rensselaer, ss : Be it remembered that on this 1st day of January, 1868, A B, of the city of Troy, in said county, as principal, and C D, of the city of Albany, N. Y., as surety, personally came before me, Thomas Hurley, one of the coroners of the said county of Rensselaer, and severally acknowledged themselves to be indebted to the people of the State of New, that is to say, the said A B, principal, in the sum of one hundred dollars, and the said C D surety in the sum of one hundred dollars, separately to be levied of their respective goods and chattels, lands and tenements, to the use of the said people, if default shall be madp in the condition following : The condition of the above recognizance is such that if the above bounden, A B, shall personally be and appear at the next court, &c. ^CoTiclvde as in tlte foregoing form after the *.] No. 39. WARRANT OF COMMITMENT BT CORONEB. See ante. Vol. I, p. 108. Rensselaer county, ss : To the sheriff or any of the constables of the county of Rensselaer, and to the keeper of the common jail of said county : Whereas, A B having been charged upon inquisition taken before me, Thomas Hurley, one of the coroners of said comity, on the 1st day of January, 1868, on the oaths of C D, E P, &c. [the jwm-s], with having, on the' 21st day C. p. Vol. n— 17. 242 APPENDIX OP FORMS. of December, 1867, at the city of Troy, in said county, feloniously and of malice aforethought, killed and murdered John Doe, and the said A B having been brought before me as such coroner; and on the examination of A B andC D, witnesses upon said inquest, on oath, and on the examination of the said A B, without oath [he having been previously informed by me of the charge made against him, and that he was at liberty to refiise to answer any question that might be put to him, and after having been allowed a reasonable time to send for and advise with counsel], and upon the examination of the whole matter, it appearing to me that the said crime haS been committed, and that there is pro- bable cause to believe the said A B guilty thereof, as is stated and set forth iii the aforesaid inquisition. These are therefore io command you, the said sheriff and constables, and each of you, that you forthwith convey and deliver to the said keeper of the said jail the body of the said A B ; and you, the said keeper, are hereby required to receive the said A B into your custody in the said common jail, and him there safely keep until he shall be discharged by due course of law. Given under my hand and seal at the city of Troy, in the county of Rensse- laer, this 2d day of January, 1868. THOMAS HURLEY, [l. s.] Coroner. BASTAEDY. No. 40. APPLICATION TO BB MADB BT AN OVEESEER OR SUPEBINTBNDENT OP THE POOB FOB AN EXAIUNATION IN A BASTAEDY CASE. See ante. Vol. I, p. 116. County of Rensselaer, ss : To Henry Goodrich, Esq., one of the justices of the peace of the said county of Rensselaer: Whereas, Jane Doe is pregnant of a child, likely to be born a bastard, and to become chargeable to the said county of Rensselaer [or to the town of Green- hush in said county, or has been delivered of a bastard child, .which is chargeable, or likely to become chargeable, to the said coumty of Rensselaer, or to the tomn of Greenbush in said county}, the undersigned, one of the superintendents of the poor of said county [or one of the overseers of the poor of the said toum of Green- bush in said county], hereby makes an application , to you, pursuant to the statute in such case made and provided, to make an inquiry into the facts and circumstances of the case. Dated Greenbush, January 1st, 1868. JOHN CONWAY, Jr., Superintendent of the Poor of the county of Rensselaer, or Overseer of the Poor of the tovm of Greenbush in the cminty of Rensselaer.] BASTARDY. 243 No. 41. BXAMINATION OP MOTHEB OP A BASTAED CHILD BEFOKE ITS BIKTH. See ante, Yol. I, p. 115. County of Rensselaer, ss : The examination of Jane Doe, of the town of Greenhushin the said county of Rensselaer, taken on oath before me, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at the town of Greenbush in said county, on the first day of January, 1868. • The said Jane Doe, on her oath aforesaid, before me, as such justice of the peace as afoj-esaid, at the time and place aforesaid, says* that she is now preg- nant of a child, likely to be born a bastard, and to' become chargeable to the said county of Rensselaer [or to the town of Greenbush in the said county of Smsgelaer], and that T^illiam Gray, of the said town of Greenbush, is the father of said child. JANE DOE. Subscribed and sworn to before me > this 1st day of .January, 1868. S Hbxet GooDBicn, Justice of the Peace. No. 42. A SIMILAR EXAMINATION APTBB THB BIKTH OP THE BASTARD CHILD. See ante, Vol. I, p. 115. {As in the preceding form to the *] that on the twenty-sixth day of Decem- ber, 1867, at the town of Greenbush in said comity, she was delivered of a male [or femaW] child, which is chargeable [or likely to become chargeable'] to said county of Rensselaer [or to the town of Greenbush in said cmmty], and that William Gray, of the said town of Greenbush, is the father of said child. JANE DOE. Subscribed and sworn before me this ? first day of January, 1868. 5 HfiMar GooDBicH, Justice of the Peace. No. 43. WARllANT OP ABBESS FOR THB PUTATIVE FATHBB BEFOBE THE BIBTH OP THB CHILD. See ante. Vol. I, p. 115. County of Rensselaer, ss : To any constable of said county. Greeting : Whereas, upon the application of John Conway, one of the superintendents of the poor of Siud county [or one of tin overseers of the poor of the toum of 244 APPENDIX OF FORMS. Greenbush, in said county'}, duly made to me, Henry Goodrich, one of the jus- tices of the peace of the said county of Rensselaer, I have ascertained by the examination of Jane Doe, of the town of Greenbush, in said county,* that she, the said Jane Doe, is now pregnant of a child likely to be born a bastard, and to be chargeable to the said county of Rensselaer [or to the tovm of Greenbush, in said county}, and that WiUiam Gray, of the said town of Greenbush, is the reputed father of such child. These are therefore to command you forthwith to apprehend the said "William Gray, and bring him before me, at my office in the town of Greenbush, in the county aforesaid, for the purpose of having an adjudication respecting the fiha- tion of such child likely to be born a bastard. , Witness may hand and seal, at the town of Greenbush, in the county of Rensselaer aforesaid, this 1st day of January, 1868. HENRY GOODRICH, Justice of the Peace. No. 44. A SIMILAR WAEE*fT AFTER TEE BIRTH OP THE BASTARD CHILD. See ante. Vol. I, p. 115. \As in the preceding form'to the *] that on the 26th day of December, 1867, at the town of Greenbush, in said county of Rensselaer, sh^, the said Jane Doe, was delivered of a male [or female} bastard child, which is chargeable [or likely to become chargeable} to the said county of Rensselaer [or to the town of Green- bush, in said county}, and that WiUiam Gray, of the said town of Greenbush, is the reputed father of said bastard child. These are therefore to command you forthwith to apprehend the said Wil- liam Gray, and bring him before me, at my office in the town of Greenbush, in the county aforesaid, for the purpose of having an adjudication respecting the filiation of such child likely to be born a bastard. Witness my hand and seal, at the town of Greenbush, in the county of Rensselaer aforesaid, this 1st day of January, 1868. , , HENRY GOODRICH, Justice of the Peace. No. 45. A SIMILAR WARRANT ISSUED BEFORE BIRTH OF THE CHILD BT A SPECIAL JUS- TICES' COURT IN A CITY. See ante, Vol. I, p. 115. County of Rensselaer, The Justices' Court of the city of Troy, The people- of the State of New York, by the grace of God, free and inde- pendent, to the Capital police, Greeting : BASTAEDY. 245 Whereas, Jane Doe, of the city of Troy, upon her examination on oath •before Thomas Xeary, one of the justices of the justices' court of the city of Troy, had this 1st day of January, 1868, did declare that she is now pregnant of a child, likely to he horn a bastard, and to become chargeable to the city of Troy aforesaid, and that William Gray, of the said city of Troy, is the father of said child so likely to be bom a bastard as aforesaid. And whereas, John Conway, overseer of the poor of the city of Troy, in order to indemnify the said city in the premises, has applied to the justices of the said court to inquire into the facts and circumstances of the case, and to issue their warrant to apprehend the said Wdliam Gray. You are, therefore, hereby commanded, in the name of the people of the State of Xew York, forthwith to apprehend the said William Gray, and bring him before the justices of the said court, at their court room, in the city of Troy, for the purpose of haying an adjudication respecting the filiation of said child, so likely to be bom a bastard. Witness — Thomas Is eary, Richard C. Jenneyss and Wilham Dono- [l. s.] hoe, justices of the said court, and the seal thereof. Dated at Troy this 1st day of January, 1868. By the court. . THOMAS J. JENNIXGS, Clerk. Xo. 46. IXDOKSEMBXT TO BE MADE UPON THE WABEANT WHEN THE PHTATrvrE PATHEE IS IX ANOTHEB COUXTT, OP THE SUM IN WHICH BOND IS TO BE TAKEN. See ante. Vol. I, p. 116. I, Henry Goodrich, the justice of the peace named in the within warrant, do hereby direct that any bond which shall be taken of William Gray, within named, shall be in the sum of two hundred dollars. Dated Greenbush, January 1st, 1868. HEXRY GOODEICH, Justice of the Peace. No. 47. ISDOnSEMENT TO BE MADE UPON BT ANOTHEE JUSTICE, WHEN THE WAKHANT IS EXECUTED IN A CO.UNTT DIFFBBBNT PBOM THAT FEOM WHICH IT WAS ISSUED. See ante, Vol. 1, p. 117. County of Albany, ss : Due and proper proof upon oath having been made before me, Patrick Grat- tan one of the justices of the peace of the'said county of Albany, that the name 246 APPENDIX OF FORMS. of Henry Goodrich, purporting to be subscribed to the within warranty is in the handwriting of the said Henry Goodrich, the -within mentioned justice of tits peace. I do hereby authorize the arrest of the within named William Glay, in the said county of Albany. Dated, January 2d, 1868. PATRICK GRATTAK, Justice of the Peace. Ko. 48. BOXI> TO BE TAKESf BT JUSTICE WHO IXDOBSED THE WABBA2fT, OE BY SOME OTHER JUSTICE OF THE SAilE COUXTT. See ante. Vol. I, p. 117. County of Albany, sa: Know all men by these presents, that we, William Gray of the town Of Greenbush, in the county of Rensselaer, and A B and C D, both of the Tillage of Cohoes, in the said county of Albany, are held and fii-mly bound unto the people of the State of New York, in the sum of pAe amount directed by the indorsement on the warremt'] for the payment whereof to the said people we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by tiiese presents. Sealed with our seals, and dated this 3d day of January, 1868. Whereas the above hounden William Gray, has been arrested in the said county of Albany, upon a warrant issued by Henry Goodrich, one of the justices of the peace of the county of Rensselaer, and indorsed by Patrick Grattan, one of the jttstices of the peace of the said county of Albany, in which warrant the said William Gray is charged with being the reputed father of a male [op/emafc] bastard child, of which Jane Doe was lately delivered, at the town of Greenbush, in sMd county of Rensselaer, [or of a child likely to be bom a bastard, of tehich Jane Doe of the toon of Cfreenbush, in said courtly of Rensselaer, is pregnant}. Now, therefore, the condition of this obligation is such, that if the said Wil- liam Gray shall indemnify the said county of Rensselaer and the said town 0( Greenbush, and every other county, town or city which may have incurred any expense, or which may be put to any expense for the support of such child, or its mother during her confinement and recovery therefrom, against all such expenses, and shall pay the costs of apprehending the said William Gray, and of any order of filiation that may be made, then this obligation to be voidf otherwise to be and renuun in full force and virtue. [0r the condition of the bond may be as follows :] Now, therefore, the condition of this obligation is such, that if the said Wil- liam Gray shall appear at the next court of sessieng, to be holden in the said county of Rensselaer, and not depart the said county without its leave, then this obligation to be void ; otherwise to be and remain in fiill force aiid virtue. WILLIAM GRAY, [l. ».} A B, [L. 6.J C D. ft. s.l Signed, sealed and delivered in presence of Patkick Gkattast, Justice of the Peace. BASTARDY. 247 No. 49. CEaTIPICATE TO BE EJfDOBSED UPON WABBANT BT JUSTICE TAKING THE PORE- GOISTG BOyD. See ante, Vol. I, p. 117. County of Albany, ss : I, Patrick Grattan, one of the justices of the peace of the said county of Albany, before whom the within named William Gray was brought, the said ■William Gray having been arrested in said county of Albany, after it had been indorsed by me [or offer it had been indorsed hy Peter D. Niver, one of the jus- tices of the peace of the said county of Albany], do hereby certify that the said "William Gray has executed a bond, with two sureties, in the simi indorsed upon said warrant, and required according to the statute in such case made and pro- vided, and which is herewith delivered to George Benedict, the ofBcer who brought fhe within walrant, and that I have thereupon discharged the said "William Gray from his arrest upon the within warrant. Dated January 3, 1868. PATRICK GRATTAN, Justice of the Peace. No. 50. SUBPfflSTA FOR WITNESSES IX A BASTARDT CASE. See ante, Vol. I, p. 119. County of Rensselaer, ss : The people of the State of New York, 'to A B, C D and E F, Greeting : You are hei'eby commanded that, lajring all other matters aside, and not- withstanding any excuse, you and each of you.be and personally appear before Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, at the 'ofSce of the said Henry Goodrich, in the town of Greenbush, in said county, on the tenth day of January, 1868, at ten o'clock in the forenoon of that day, to testify the truth, and give evidence according to your knowledge touching the fether of a bastard child, of which Jane Doe has been lately delivered [or whereof Jane Doe aUeges she is now pregnanf]. Witness the said Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush in said county, this fourth day of January, 1868. HENRY GOODRICH, Justice of the Peace. 248 APPENDIX OF FORMS.. No. 51. ORDER OP FILIATION IN A BASTARDY CASE. See ante, Vol. I, p. 121. County of Rensselaer, ss : Whereas, we, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, have this day, in pursuance of the statute in such case made and provided, upon the application of John Conway, one of the superintendents of the poorW the said county of Rensselaer [or one of the overseers of the poor of the toim of Clreenbush in said county'], have associated at the town of Greenbush in said county, for the purpose of making • an examination and determination concerning and touching a certain child of which Jane Doe, of the said town of Greenbush, is pregnant, and which is likely to be bom a bastard [or concerning and touching a certain bastard child of which Jane Doe was lately delivered, in the said town of Greenbush'], and which is chargeable [or likely to become c'hargeable] to the said county of Rensselaer [or to the said town of Crreenbush], and of which said child William Gray, of the said town of Greenbush, was alleged to be the father. And, whereas, we have duly examined the said Jane Doe, on oath, in the presence of the said William Gray, concerning. and touching the father of said child, and have also heard the proofs and allegations offered to us in relation thereto, whereby it appears that the said Jane Doe is now pregnant of a child, likely to be born a bastard [or that the said Jane Doe was, at the town of Greenbush in said county, on the 26th day of December, 1868, delivered of a male (or female) bastard -child], and which said child is chargeable [or likely to become chargeable] to the county of Rensselaer aforesaid [or to the town of Greenbush in said county of Jiensselaer], and that the said William Gray is the father of said child. We, therefore, upon exam- ination of the matter, as well by the oath and examination of the said Jane Doe, in the presence of the said William Gray, as otherwise do adjudge him, the said William Gray, to be the father of said bastard child. And we, the justices aforesaid, do thereupon order* that the said WiUiam Gray pay to the superintendents of the poor of said county of Rensselaer [or to the overseers of the poor of the town of Greenbush in said county of Hensselaer], for the support of the said child, weekly, and every week, the sum of dol- lars, so long as the said child shall continue chargeable to the said county of Rensselear [or to the said town of Greenbush] . And, whereas, it also, appears to us, the justices aforesaid, that the said Jane Doe is in indigent circumstances, we do further order and determine that the said WiUiam Gray pay te the superintendents of the poor of the said county of Rensselaer [or to the overseers of the poor of the said town of GreenbusK], for the maintenance of the said Jane Doe, during her confinement and recovery there- from, the sum of dollars. And we, the justices aforesaid, do further certify the reasonable costs of apprehending and securing the said father, and of this order of filiation, at the sum of dollars. Witness the said Henry Goodrich and John Butler, two of the justices of BASTARDY. 249 the peace of the said county of Rensselaer, at the town of Greenbush in said county, this 14th day of January, 1868. HENRY GOODRICH, JOHN BUTLER, Justices of the Peace. No. 52. BOND ON ADJOUBNMBNT IN BASTABDT CASES. See ante. Vol. I, p. 119. Rensselaer county, ss : Kjiow all men by these presents that we, William Gray, and A B and C D, of the town of Greenbush, in said county, are held and firmly bound unto the people of the State of New York in the sum of two hundred dollars, for the pay- ment whereof to the said people we bind ourselves, our heirs, executors, admin- istrators, jointly and severally, flrmly by these presents. , Sealed with our seals, and dated this 10th day of January, 1868. Whereas, the above named William Gray has been this day brought before Henry Goodrich and John Butler, two of the justices of the peace of the county of Rensselaer, charged upon the oath of Jane Doe, of the said town of Greenbush, with being the reputed father of a bastard child, of which she was lately delivered at the town of Greenbush aforesaid [or of a child Kkely to be bom a bastard, with which the said Jane Doe alleges she is now pregTumt], the said justices having associated together pursuant , to statute to examine the matter and adjudicate respecting the filiation and maintenance of such bastard child [or of such child likely to be horn a bastard^ . And whereas, at the request of the said William Gray, and for sufBcient reasons given, the said justices have determined to adjourn the said examination and adjudication, upon the execution of this bond, until the 14th day of January, 1868, at 10 o'clock in the forenoon, at the office of the said Henry Goodrich, in the town of Greenbush, in said county. Now, therefore, the condition of this obligation is such that if the said Wil- liam Gray shall personally appear before the justices aforesaid, at the time and place last aforesaid, and not depart therefi-om without leave of said justices, then this obligation to be void ; otherwise, to remain in fuU force and virtue. WILLIAM GRAY, [l. s.J A B, [l. s.] C D. [L. s.] Sealed and delivered in presence } of, and approved by us, Henb John C. p. Vol. 11—18. Henet Goodrich,? J J John Butlee, 5 250 APPENDIX OF FORMS. No. 53. OBD£B OP FrLIATIOjr MADE VS THE ABSENCE OP THE BEPCTED PATHEE WHO WAS APPEEHENDBD IK A POBEIGN COUNTT. See ante. Vol. I, page 123. Rensselaer county, ss ': "William Gray of the town of Greenbush, in said covinty, having been appre- hended in the county of Albany, in the State of New York, by virtue of a war- rant, and the direction and authority thereon indorsed of which the following are copies, to wit : [here insert copy of the warrant and indorsement'\ was carried before Patrick Grattan, one of the justices of the peace of the said county of Albany, who took from him, the said WiUiam Gray, a bond to the people of the State of New York, in the sum directed on the indorsement on said warrant, conditioned that the said William Gray shall appear at the next court of sessions, to be holden in the said county of Rensselaer, and not depart the said court without its leave; and the said bond having been in due form of law returned to the undersigned Henry Groodrich, the justice who issued the said warrant, he thereupon immediately called to his aid the undersigned John Butler, smother justice of the peace of the same county, and the said justices proceeded to make an examination of the matter on the 14th day of January, A. D., 1868, at the town of Greenbnsh in s^d county of Rensselaer; and then and there heard the proo& that were offered in relation thereto, by which it was proved that the said Jane Doe, being in the said town of Greenbush, has been delivered of a bastard child, which is chargeable to the said county of Rensselaer, [or to the said toum of Greenbush'] and that the s^d William Gray is the father of such child £or that 'the said Jane Doe is now pregnant of a child, which when horn will be a bastard, and which is chargeable (or likely to become chargeable) to the said county of Rensselaer, (or to the said ioion of Greenbush) and that the said WiUiam Gray is the &ther of such child.] Now, therefore, we the justices aforesaid, do thereupon order [conclude as in form No. 51, from the *]. No. 54. WAEEAKT OP COMMITltENT POB PniATIVB FATHEB OP BASTABD. See ante. Vol. I, page 123. Rensselaer comity, ss : The People of the State of New York to any constable of the said county of Rensselaer, and to the keeper of the common jaQ of said county, Greeting: Whereas, an order of filiation has, this 14th day of Janu&ry, 1868, been made by us, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, whereby it is adjudged and determined that William Gray, of the town of Greenbush in said cd6nty of Rensselaer, is the BASTARDY. 251 reputed &ther of a male [ot female] bastard child, of Trhich Jane Doe was lately- delivered, at the town of Greenbush in the county of Rensselaer aforesaid [or of a (Mid likely to be bom a bastard, and of which Jane Doe, of the taum of Green- bush in said county of Rensselaer, is now pregnant]. And, whereas, in and by the said order of filiation, it was ordered that the said William Gray should pay to the superintendents of the poor of the said comity of Rensselaer [or to the overseers of the poor of the town of Greenbush in said county of Rensselaer], for the support of said child, weekly, and every week, the sum of dollars, so long as the said child should continue chargeable to the said county of Rens- selear [or to the said town of Greenbush] ; and, also, that the said William Gray should pay to the superintendents of the poor of the said county of Rensselaer [or to the overseers of the poor of the said town of Greenbush], for the sustenance of. the said Jane Doe, during her confinement and recovery therefi-om, the sum of dollars. And, whereas, due notice of the said order and requirements has been given to the said William Gray, and he has been required by us to pay the said costs, and to enter into a bond in the sum of dollars, with good and sufBlcient sureties, to be^pproved of by us, the justices aforesaid, according to the statute in such case made and provided; and, whereas, the said William Gray has whoUy neglected to pay the said costs [or to enter into such bond as aforesaid, or both, as the case may be]. These are, therefore, to command you, the said constable, to convey and deliver the said William Gray to the keeper of the common jail of the said county of Rensselaer, and you, the said keeper, are hereby commanded and required to receive the said William Gray into your custody in the said common jail, and him there safely keep until he shall be discharged by the court of sessions of the said county of Rensselaer, or until he shall execute such bond in the penalty so as aforesaid required by us, the said justices [or untU he shall pay the said costs, or both], or be discharged from your custody by due course of law. Witness Henry Goodrich and John Butler, two of the justices of the peace of the said covmty of Rensselaer, at the town of Greenbush in said county, the 14th day of January, 1868. (Vide Peo. v. StoweU, 2 Den. 127.) HENRY GOODRICH, [l. s.] JOHN BUTLER, [l. s.] Justices of the Peace. No. 55. WAEKANT POB DISCHABGB OF PUTATIVE PATHBE OF BASTABD CHILD AFTBH HIS COMMITMENT UPON AN OBDEB OF FILIATIONi See ante. Vol. I, p. 123. County of Rensselaer, ss : The people of the State of New York, to the keeper of the common jail of the said county of Rensselaer, Greeting : Whereas, the undersigned, two of the justices of the peace of the said county of Rensselaer, did, by their warrant, bearing date the 14th day of Jan- 252 APPENDIX OF FORMS. uary, 1868, commit to your custody as such keeper, in the common jail, William Gray, for that being charged as the reputed father of a bastard child, whereof it was testified that Jane Doe, of the town of Greei^bush, in the said county of Bensselaer, was pregnant, and which said child was likely to become chargeable to the said county of Rensselaer [or to the town of Greenbvsh, in said county of Rensselaer], he, the said WiUiam Gray, had not paid the costs by us certified as such justices as aforesaid, and executed the bond required by us upon our order of filiation thereupon made, as is required by the statute in such case made and provided. And whereas, it is now testified and appears to us, upon competent testimony, that the said Jane Doe appears not to have been pregnant [or Juis miscarried of said child, or has been married before her delivery of such child]. Tou are therefore hereby commanded, upon the receipt hereof, to dis- charge the said William Gray out of your custody in the said jail, if he is detained therein by you for no other cause than that specified in our aforesaid warrant. Witness, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, at the town of Greei^ush in said county, this 30th day of January, 1868. HENRY GOODRICH, [l. s.] JOHN BUTLER, [l. s.] Justices of the Pea<». No. 56. BOND TO BE EXECUTED BY FATHER UNDER THE ORDER OP AFFILIATION. See ante. Vol. I, p. 123. County of Rensselaer, ss : Know all men by these presents that we, William Gray, of the town of Greenbush, in the county of Rensselaer and State of New York, and A B and C D, both of the city of Troy, New York, are held and firmly bound unto the people of the State of New York in the sum' of three hundred dollars, for the payment whereof to the said people we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. -Sealed with our Seals. Dated the 14th day of January, 1868. Whereas, Henry Goodrich and John Butler, two of the justices of the peace of the county of Rensselaer aforesaid, have this day made and signed an order of fiUa- tion, wherein and whereby it is adjudged that the above bounden William Gray is the father of a male [or female] bastard child, of which the said Jane Doe was lately delivered, at the tovm of Greenbush, in said county [or of a certain child of which Jane Doe, of the said tovm of Greenbush, is pregnant, and which is likely to be bom a bastard], and which said child is chargeable [or likely to become chargeable] to the said county of Rensselaer [or to the town of Greenbush, in said county of Rensselaer], and wherein and whereby the said order of filiation, it is ordered that the said William Gray pay to the superintendents of the poor of the said county of Rensselaear [or to the overseers of the poor of the tovm of BASTARDY. 253 Greenbush, in said county] for the support of said child weekly, and every week, the sum of dollars, so long as the said child shall continue chargeable to the said county of Rensselaer [or to the town of Greenbush, in said coumy']. And whereas, it was also flirther ordered by the said order of filiation that the said William Gray pay to the superintendents of the poor of the said county of Rensselaer [or to the overseers of the poor of the town of Greenhush, in said covnty] for the sustenance of the said Jane Doe during her confinement, and recovery therefi'om the simi of dollars. Now, therefore, the condition of this obligation is such that if the said Wil- liam Gray shall pay the sums above mentioned for the support of said bastard child, and the sustenance of its mother, as ordered by the said justices as afore- said, or such sum as shall at any time hereafter be ordered by the court of sessions of the said county, and shall fully and amply indemnify the said county [or town], and every other county, town or city which may have incurred any expense, or may be put to any expense, for the support of such child or its mother during her confinement or recovery therefrom, then this obligation to be void ; otherwise, to be and remain in full force and virtue. WILLIAM GRAY, [l. s.] A B, [l. s.] D. [l. s.] The foregoing bond was signed, sealed and delivered in the presence of us, and the penalty and sureties were approved of by us this 14th day of January, 1868. HENRY GOODRICH, JOHN BUTLER, Justices of the Peace. No. 57. StTMMONS TO THE MOTHBK OP A BASTARD CHILD, TO SHOW CAtTSE WHT SHE SHOULD NOT BE MADE TO SUPPOET IT. ' See ante. Vol. I, page 124. County of Rensselaer, ss : To any constable of the said county of Renssdlaer, Greeting. You are hereby commanded and required to summon Jane Doe of the town of Greenbush, in said county of Rensselaer, to appear before us, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rens- selaer, at the ofllce of the said Henry Goodrich in the town of Greenbush in said county, on the 14th day of January, 1868, at 10 o'clock in the forenoon of that day, to show cause, if any she may have, why she should not make an order for the keeping of a certain bastard child, of which she the said Jane Doe was lately delivered, at the town of Gtreenbush in said county, and which child is chargeable [or likely to become chargeable] to the said county of Rensselaer [or to the town of Greenbush, in said covmty], by charging the said Jane Doe with the payment of a specified sum weekly, or other sustentation, the superintendent of the poor 254 APPENDIX OF FORMS. of the said county of Rensselaer [or the overseer of the poor of the said tovm of Greenbush}, having applied to us for that purpose. Witness, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, at the town of Greenbush in said county, this 14th day of January, 1868. HENRY GOODRICH, JOHN BUTLER, Justices of the Peace. No. 58. ORDEB TO COMPEL THE MOTHER OP BASTARD TO PAT FOB THE SUPPORT OP HER CHILD. See ante. Vol. I, page 124. County of Rensselaer, ss: / Whereas, John Conway, one of the superintendents of the poor of the said county of Rensselaer [or one of the overseers of the poor of the town of Green- hush in said cotwi/j/], has made application to us, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, com- plaining that Jane Doe, of the town of Greenbush in the said county of Rens- selaer, was lately delivered of a bastard child, at the said town of Greenbush, which said child is chargeable [or likely to become chargeable] to the said fcounty of Rensselaer [or to the town of Cfreenbush in said county of Rensselaer^, and that she, the said Jane Doe, is possessed of property in her own right, and is of sufficient abUity to support said child, and desiring that we should examine into the matter, and make an order for the support of such child. And, whereas, upon an examination into the matters contained in the said application, and upon due proof thereof, made on oath before us, the justices aforesaid, and the said Jane Doe neglecting to appear before us and show cause to the contrary, although duly summoned so to do by us [or the said Jane Doe, although present, not shMoing any svfficiedt cause to the contraryl, we, the justices aforesaid, do hereby order that the said Jane Doe pay to the superin- tendents of the poor of the said county of Rensselaer [or to the overseers of the poor of the town of Greenbush in said county of Jlensselaer'], weekly, and every week, the sum of , dollars for the support of said bastard child, unless she shall nurse, support and take care of the said child herself, so that it shall not be chargeable to the said county of Rensselaer [or to the said town of Green- bush]. Witness Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, at the town of Greenbush in said county, the 14th day of January, 1868. HENRY GOODRICH, JOHN BUTLER, Justices of Peace. •BASTARDY. 255 No 59. A WAERANT TO COMMIT THE MOTHBE OP A BASTABD. See ante. Vol. I, p. 125. County of Rensselaer, ss : The people of the State of New York, to any constable of the said county of Rensselaer, and to the keeper of the common jail of the said covinty, Greeting: Whereas, by an order dated on the 14th day of January, 1868, and duly made by us, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, we, the justices aforesaid, made direction for the keeping of a certain bastard child, of which Jane Doe was lately delivered at. the town of Greenbush, in said county, which was chargeable to the said county of Rensselaer [or to the town of Greenbush in said county'], by charging the said Jane Doe with the payment to the superintendents of the poor of the said county of Rensselaer [or to the overseers of the poor of the said town"] weekly, and every week, the sum of dollars for the support of said bastard child, unless she should nurse, take care of and support the said child herself, so that it should not be chargeable to said county [or said town], which said order was made upon the application of one of the superintendents of the poor of the said county of Rensselaer [or of one of the overseers of the poor of the said town of Gfreenbush], alleging that the said Jane Doe was possessed of property in her own. right, and was of sufficient ability to support said child ; and after due notice to the said Jane Doe to show cause before us, the justices aforesaid, if any she ha4, against the making thereof, and no sufficient cause to the contrary being shown; and whereas, a copy of the said order has been duly served upon the said Jane Doe, yet she has not performed the requirements thereof, nor executed a bond as by law authorized for her appearance at the next court of sessions, to be held in the said county; and whereas, it is now proved before us, the justices aforesaid, that the said Jane Doe refiises to nurse, take care of and support said child herself. These are, therefore, to command you, the said constable, forthwith to take the said Jane Doe and convey and deliver her into the custody of the keeper of the common jail of the said county of Rensselaer; and you, the said keeper, are hereby commanded to receive the said Jane Doe into your custody in the said jail, and her there safely keep, without bail, imtil she shall comply with said order, unless she shall execute a bond to the people of the State of New York in the sum of dollars, with good and sufficient sureties, to appear at the then next court of sessions of said county of Rensselaer, and not depart the said court without its leave. , Witness — Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, at the town of Greenbush, in. said county, this 14th day of January, 1868. HENRY GOODRICH, [l. s.] ^OHN BUTLER, [l. s.] Justices of the Peace. 256 APPENDIX OF FORMS. No. 60. BOND TO BE GIVEN BT MOTHER OP BASTARD TO APPBAE AT THE CO0RT OF SESSIONS. See ante. Vol. I, p. 126. County of Rensselaer, ss: Know all men by these presentSJ that we, Jane Doe, of the town of Green- bush in the comity of Rensselaer, N. Y., and A B and C D, both of the city of Troy, N. Y., are held and firmly bound to the people of the State of New York, in the sum of one hundred dollars, for the payment whereof to the said people we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. . Sealed with our seals. Dated the 30th day of January, 1868. Whereas, upon the application of John Conway, one of the superintendents of the poor of the said county of Rensselaer [or one of the overseers of the poor of the tovm of Greenhush in the comity of Renssetair], Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, did, on the 14th day of January, 1868, make an order concerning a male [or female\ bastard child, of which the above bounden Jane Doe was lately delivered, at the town of Greenbush aforesaid, which is chargeable [or likely to becoms chargeable] to the said county of Rensselaer [or to the town of Greenbush in said cowity'], it was ordered that the said Jane Doe should pay to the said superintendents [or overseers'], weekly, and every week, the sum of dollars for the support of said bastard child, unless she should nurse, take care of and support the said child herself, so that it should not be chargeable to said county [or town]. Now, therefore, the condition of this obligation is such that if the said Jane Doe shall personally appear at the next court of sessions to be held in said county of Rensselaer, and shall not depart the said court without its leave, then this obligation to be void and of no effect; otherwise, to be and remain in full force and virtue. JANE DOE, [L. s.] A B, [l. s.] C D. [L. s.] The foregoing bond was signed, sealed and/ delivered in the presence of us, and the penalty and sureties thereof were approved by us, this 30th day of January, 1868. HENRY GOODRICH, JOHN BUTLER, Justices of the Peace. BASTARDY. 257 No. 61. A WARRANT FOR THE COMMITMENT OP THE MOTHER OF A BASTARD FOR REFUSING TO DISCLOSE THE NAME OP THE FATHER. See ante. Vol. I, p. 124. County of Rensselaer, ss : The people of the State of New York, to any constahle of the said county of Rensselaer, and to the keeper of the common jail of said county, Greeting: Whereas, John Conway, one of the superintendents of the poor of the said county of Rensselaer [or one of the overseers of the poor of the town of Green- bush, in the said county of Jtensselaer'], has made complaint before me, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, that Jane Doe, of the said town of Greenbush, has lately been delivered of a male • [or female^ bastard child, which is chargeable [or likely to become chargeable'] to the said county of Rensselaer [or to the said town of Greenbush']. And whereas, the said Jane Doe has this day appeared before me, but, although required by me, has refiised and still refuses to disclose the name of the father of said bas- tard child. And whereas, it appears to me, upon due proof thereof given upon oath before me, that more than a month has elapsed since the said Jane Doe was delivered of such child, and that she is now suflBciently recovered from her con- finement. , These are therefore to command you, the said constable, forthwith to convey and deliver the said Jane Doe into the custody of the said keeper. And you, the said keeper, are hereby required to receive the said Jane Doe into yovu- cus- tody, in the said jail, and her there safely keep until she shall testify and disclose the name of the fether of said bastard child. Witness my hand and seal, the 14th day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No, 62. A WARRANT POB THE SEIZURE OP THE PKOPBBTT OF AN ABSCONDING FATHER OP A BASTARD. See antei. Vol. I. County of Rensselaer, ss: To the superintendents of the poor of the said county of Rensselaer [or to the overseers of the poor of the town of Greenbush, in the said county of Rensse- laer], Greeting: Whereas, it appears to us, two of the justices of the peace of said county of Rensselaer, as well by the application and representation by you made to us c. p. voi/. n-^19. 258 APPENDIX OF FORMS. as well as upon due proof of the facts before us made, that William Gray is the father of a bastard child [or of a child likely to be bom a bastard, and whereof Jane Doe, of the said town of Gremibush, is now pregnant^, and which said child is chargeable [or likdy to become chargeable'] to the said county of Rensselaer [or to the town of Greenbush, in said cownty of Sensselaer}, and that the said William Gray has absconded from the said town of Greenbush, which is the place of his ordinary residence, leaving in the said county some estate, real or personal. And whereas, you, the said superintendents [or overseers'], have applied to us, the justices aforesaid, for our warrant to seize the said estate. We therefore hereby authorize you to take and seize the goods, chattels, effects, things in action, and the lands and tenements of the said William Gray, wherever the same may be found in the county of Rensselaer aforesaid. And you are directed, immediately upon such seizure, to make an inventory of the property by you taken, and return the same, together with' your proceedings under this warrant, to the next court of sessions of the said county of Rens- selaer. Witness, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, at the town of Greenbush, in said county, this first day of January, 1868. HENRY GOODRICH, [l. s.] JOHN BUTLER, [l. s.] Justices of the Peace. No. 63. ORDEE REDUCING THE AMOUNT DIRECTED TO BE PAID BT THE PATHBB OP A BASTARD. See ante, Vol. I, page 125. County of Rensselaer, ss : Whereas, by an order of filiation, dated the 14th day of January, 1868, and made by us, Henry Goodrich and John Butler, two of the justices of the peace of the said coimty of Rensselaer, it was ordered that William Gray of the town of Greenbush, in said county, should pay to the superintendent of the poor of the said county of Rensselaer [or to the overseers of the poor of the town of Green- bush, in said eoimty. of Hensselaerl, weekly and every week the sum of dollars, for the support of a certain bastard child of which Jane Doe had been then lately delivered, at the town of Greenbush in said county, and of which it was determined that the said William Gray was the father; and whereas, upon the application of the said William Gray, due notice whereof has been given to the said superintendents [or overseers'], and after having heard the proofs and allegations submitted in relation thereto, it appearing to us that the circum- stances in relation to the said bastard child, render it proper and expedient that the sum required to be paid by the said William Gray by our former order should be reduced, we do hereby reduce the sum required to be paid weekly by the said William Gray by our said former order, to the weekly sum of dollars. BASTARDY. 259 Witness, Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, at the town of Greenhush in said county, this 5th day of February, 1868. HENRY GOODRICH, [l. s.] JOHN BUTLER, [l. s.] Justices of the Peace. No. 64. NOTICE BT SUPEKINTENDBJf T OB OTEBSEBB OF THE POOB THAT APPLICATION WILL BE MADE TO THE COUBT OF SESSIONS, TO INCBEASE THE AMOUNT MADE PAYABLE BT THE OBDEB OF FILIATION. See ante. Vol. I, p. 125. To William Gray : Sir — Take notice that I shall make application to the next court of sessions, to be held in and for the county of Rensselaer, at the court house in the city of Troy, on the second Monday of May, 1868, at the opening of the court on that day, or as soon thereafter as counsel can be heard for an order of said court, increasing the suiji directed to be paid by the order of filiation of which the annexed is a copy, for the support of the bastard child therein named; also, take further notice, that hereto annexed are copies of the afBdavits and papers upon which said application will be founded. Dated March 20th, 1868. Yours, &c., JOHN CONWAY, ' Superintendent [or merseer'\ of the Poor. ' [^nTMx to the above notice a copy of the order of filiation, and also of the affida- vits and papers upon which the application is based-l No. 65. NOTICE TO BE GIVEN TO THE SUPEBINTENDENT OB OVEBSBEB OF THE POOB, FOB THE PnBPOSB OP BEDUCING THE AMOUNT NAMED IN THE OBDEB OF FILIATION. See ante, Vol. I, p. 125. To John Conway, superintendent [or overseer'] of the poor : Sir — Take notice that I shall make application to the next court of sessions, to be held in and for the coimty of Rensselaer, at the court house, in the city of Troy, on the second Monday of May, 1868, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order of said court 260 APPENDIX OF FORMS. reducing the sum directed to be paid by the order of filiation, of which the annexed is a copy, for the support of the bastard child therein named. Also, take further notice, that hereto annexed are copies of the affidavits and papers upon which said application wiU be founded. i Dated March 20, 1868. Yours, &c., WILLIAM GRAY. l^nnex copy, order qfJUiation and of the affidavits, as in the preceding notice.'] No. 66. NOTICE OP APPEAL PEOM OKDBE OF FILIATION. See ante. Vol. I, p. 128. To Henry Goodrich and John Butler, two of the justices of the peace of the county of Rensselaer, and to John Conway, superintendent of the poor of the county of Rensselaer [or overseer of the poor of the town of Greenhush, in the county of Sensselaer'], and to Jane Doe : You wiU take notice that the undersigned, considering himself aggrieved by the order of filiation, of which a copy is hereto annexed, hereby appeals fi-om the said order, and each and every part thereof, to the next court of sessions, to be held in and for the said county of Rensselaer. Dated January 15th, 1868. Yours, &c., WILLIAM GRAY. [jSTWiec copy of the order of filiation. No. 67. SUBPCENA ON APPEAL IN A BASTABDT CASE. See ante, Vol. I, p. 128. Rensselaer county, ss : The people of the State of New York, by the grace of God free and inde- pendent, to A B, C D and E P : The court of Sessions, holden at the court-house in the city of Troy, in and for the county of Rensselaer, do command you, and each of you, in the name of the people of the State of New York, that (all excuses being laid [l. s.] aside) you and each of you be and appear before the said court of ses- sions, on the 12th day of May, 1868, at ten o'clock in the forenoon of SUMMARY CONVICTIONS. 261 said day, to testify the truth according to your knowledge, in a certain appeal then and there to be heard from an order of filiation in a bastardy case heretofore made by Henry Goodrich and John Butler, two of the justices of the peace of the said county of Rensselaer, and whereof you are not to &il on pain of fifty dollars. Witness, Hon. J. Romeyn, Rensselaer County Judge, at Troy, this ' 10th day of May, in the year of our Lord one thousand eight hundred and sixty-eight. J. THOMAS DAVIS, Clerk. SUMMAEY CONVICTIONS. No. 68. COMPLAINT AGAUrST A DISOEDBBLT PEBSON. See ante. Vol. I, p. 149. Rensselaer county, ss : To Henry Goodrich, one of the justices of the peace of the county of Rensselaer : * James Brown, of the town of Greenbush in said county, complains that John Doe, of the said town of Greenbush, is a disorderly person within the intent and meaning of the statute in such case made and provided; that he, the said John Doe, is a person pretending to tell fortunes and where lost or stolen goods may be found [or that the said John Doe is (here bring the person com- plained of within some of the provisions of the statutey]. The said James Brown prays that the said John Doe may be apprehended and proceeded against as a disorderly person. Dated January 1st, 1868. JAMES BROWN. Subscribed and sworn to' before me ? this 1st day of January, 1868. 5 Hbnet Goodeich, Justice of the Peace. No. 69. WABEANT FOE THE ABEEST OF A DISOEDEELT PEESON. See ante. Vol. I, pp. 140-150. Rensselaer county, ss: To any constable of the said comity of Rensselaer, Greeting : Whereas, complaint has this day been made by James Brown, of the town of Greenbush, on oath before me, Henry Goodrich, one of the justipes of the 262 APPENDIX OP FORMS. peace of the said county of Rensselaer, that John Doe, of the said town of Greenbush, is a disorderly person within the intent and meaning of the statute in such case made and provided, and that he, the said John Doe, is a person pretending to tell fortunes, and where lost and stolen goods may be foimd [or here state the charge as contained in the complaint}, and. thereupon the said James Brown prayed that, the said John Doe might be apprehended and pro- ceeded against as a disorderly person. You are therefore commanded forthwith to take the said John Doe, and bring him before me, at my oflce in the town of Greenbush, in the said county of Rensselker, for examination as a disorderly person, and to be dealt with according to law. Witness my hand and seal, at the town of Greenbush, in the county afore- said, this first day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace No. 70. BBCOBD OP CONVICTION OP A DISOKDBKLT PEKSON. See ante. Vol. I, pp. 145-151. Before Henry Goodrich, one of the justices of the peace of the county of Rensselaer. The People of the State of New York, 1 agt. V John Doe. ^ Be it remembered, that the above' named defendant, John Doe, having been brought before me, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush in said county, on the first day of January, 1868, charged on the oath of James Brown with having on the 26th day of December, 1867, at the town of Greenbush, aforesaid, [here setjorth the complaint thus : " been a disorderly person, to wit : a person pretending to tell where lost or ^stolen goods may be found"'] and the said charge having been dis- tinctly read and stated to the said John Doe, who then and there pleaded not guilty thereto, and who was then and there tried upon the said charge by the said justice, who did thereupon hear testimony on oath in support of said charge, and in the defence thereof on the behalf of said prisoner, and whereas, the following are the names of the witnesses sworn upon said trial, and the evidence given and proceedings had therein, that is to say: A B, was then and there produced, sworn and examined as a witness on behalf of the prosecution, and testified as follows, to wit : [here state his evidence and also any objections made to the testi- mony, and the rulings made thereon by the covH and exceptions taken by the prisoner, also state the testimony of the other witnesses both for the people and the prisoner,] and whereas the foregoing are aU the witnesses who were sworn on said trial, both for the prosecution and the defence ; and whereas, the foregoing is all the testimony given and proceedings had on said trial ; and whereas, the SUMMARY CONVICTIONS. 263 said testimony was given and proceedings were had in the presence and hearing of the said John Doe, he, the said John Doe, having previously thereto heen allowed a reasonahle time to send for and advise with counsel ; and whereas, it then and there appealed to me, the said justice, that the said John Doe was guilty of the offence of heing a disorderly person in this, to wit : that he, the said John Doe, at the town of Greenhush aforesaid, in the county of Rensselaer aforesaid, on the said 26th day of January, 1867, did [Aere set forth the peculiar circumstances of the case thus : "pretend to one James Brown of said town of Greenhush, that he could by a certain device and trick teith cards, and by means of a book and key tell him, the said James Brown, where he would find a certain gold watch that had on the 25tA day of December, 1867, been lost by the said James Brown in the dty of Troy, N. Y., provided that he, the said James Brown, would pay him, the said John Doe, the sum of one dollar for so doing"], and the said John Doe was thereupon duly convicted hy me the said justice, of the said charge, and of heing a disorderly person in that he, the said John Doe, was a person pretending to teE where lost and stolen goods might he found. And whereas, upon such conviction, the said John Doe was required hy me * the said justice, to enter into a recognizance with two sufficient sureties, himself in the siun of one hundred dollars, and such sureties in the sum of one hundred dollars each, for the good behavior of the said John Doe for the space of one year. And whereas, the said John Doe has made default in entering into such recognizance, and in finding sureties for his g6od behavior as aforesaid; I do, therefore, in pursuance of the statute in such case made and provided, make up this my record of conviction of the said John Doe, for the offence of heing a disorderly person as aforesaid, and do adjudge and determine that the said John Doe be committed to the common jail of the said county of Kensselaer, there to remain until such sureties be found, or until he be discharged by due course of law. In witness whereof, I have hereunto set my hand and seal, at the town of Greenhush, in said county of Rensselaer, this 1st day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 71. KECOfiD OP CONVICTION OF A DISOEDEELT PEESON UPON A PLEA OP GUILTY. ; See ante. Vol. I, pp. 145-151. Before Henry Goodrich, one of the justices of the peace of "the county of Rensselaer. The People of the State of New York j> agt. > John Doe. 5 Be it remembered that the above named defendant, John Doe, having been brought before me, Henry Goodrich, one of the justices of the peace of the 264 APPENDIX OF FORMS. county of Rensselaer, at the town of Greenbush in said county, on the 1st day of January, 1868, charged, on the oath of James Brown, with having, on the 26th day of December, 1867, at the said town of Greenbush aforesaid [here set forth the complfaint], and the said charge having been distinctly read and stated to the said John Doe, and he, the said John Doe, having been given a reasonable time to send for and advise with counsel, did then and there plead guilty to the said charge ; and, in the presence of the said court, by said plea of guilty, did voluntarily admit and confess that he, the said John Doe, at the town of Green- bush aforesaid, on the 26th day of December, 1867, did [here set forth the specific facts confessed and admitted by the prisoner'] . And, whereas, the said justice did then and there adjudge and determine that the said John Doe was a dis- orderly person, and was thereupon duly convicted by the said justice of being a disorderly person, in that, etc. [Set forth the specific facts admitted by the prisoner's plea and confession.'] Andy whereas, upon such conviction, the said John Doe was required by me [conclude as in No. 70, q/ier the *]. No. 72. RECOSNIZANCE BT DISaRDBBLT PERSON. See ante. Vol. I, p. 150. County of Rensselaer, ss : We, John Doe, of Greenbush, in said county, and C D and E F, of Troy, in said county, acknowledge ourselves indebted to the people of the State of New York, that is to say, the said John Doe in the sum of one hundred dollars, and the said D and E F, each, in the sum of one hundred dollars, to be levied of our respective goods and chattels, lands and tenenfents, to the use of the said people, if default shall be made in the following condition : The condition of this obligation is such, that if the said John Doe shall be and continue of good behavior towards the people of the State of New York for the space of one year from and after this day, then such recognizance to be void; otherwise, of force. Taken, subscribed and acknowledged before > me, this 1st day of January, 1868. \ Henry Goodrich, Justice of the Peace. JOHN DOE, [L. S.] CD, [L. S.] EP. [L. S.] SUMMARY CONVICTIONS 265 No. 73. WARKANT OP COMMITMENT UPON CONVICTION IN A SUMMAET PROCEEDING FOE BEING A DISOBDEKLT PERSON. See ante, Vol. 1, pp. 147-151. County of Rensselaer, ss.: By Henry Goodrich, one of the justices of the peace of the said county of Rensselaer. To any constable of the said county of Rensselaer, and to the keeper of the common jail of said county : These are, in the name of the people of the State of New York, to command you, the said constable, to convey to the common jail of the county of Rensselaer the body of John Doe, who was charged before me with being a disorderly person, viz. : (a person who had abandoned and neglected to sup- port his wife, Jane Doe, in the town of Greenbush, in said county of Rensse- laer) ; and upon examination of the said matter in presence of said John Doe, it appearing to me by competent testimony, and from the facts and circumstan- ces of the case, that his conduct amounted to such abandonment and neglect to support his said wife, I did adjadge and determine that he was such a disorderly person, whereupon he was ordered to find surety in the sum of two hundred dollars for his good behavior for the term of one year; and having neglected to find such surety, and I having made up, signed, and filed a record of convic- tion of the said John Doe as a disorderly person, according to the statute in such case made and provided, you, the said keeper, are hereby commanded to receive into your custody the body of the said John Doe, and him safely keep in the said common jail until he shall find such surety as aforesaid, or be thence delivered by due course of law. Given under my hand and seal at the town of Greenbush, in said eounty of Rensselaer, this first day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 74. ANOTHER WARRANT OP COMMITMENT POR A DISOBDEELT PERSON AFTER CONVICTION. See ante. Vol. I, pp. 147-151. Rensselaer county, ss : To any constable of the said county of Rensselaer, and to the keeper of the common jail of said county, Grteeting: Whereas, on the 1st day of January, 186.8, John Doe was brought before me, Henry Goodrich, one of the justices of the peace of the said county of Rens- C. p. Vol. it— 20. 266 APPENDIX OP FORMS. selaer, at the town of Greenbush, in said county, charged on the oath of James Brown with haTing, on the 26th day of December, 1867, at the town of Green- bush aforesaid [here set forth the statement of the offence, as contained in the com- plainf] ; and whereas, the said charge was then and there distinctly read and stated to the said John Doe, who then and there pleaded not guilty thereto, who was then and there tried upon the said charge by the said justice, who did there- upon hear testimony on oath in support of said charge, and in defence thereof, and on the behalf of the said prisoner; and whereas, the said testimony was given and evidence had in the presence and hearing of the said John Doe, he, the said John Doe, having previously thereto been allowed a reasonable time to send for and advise with counsel ; and whereas, the said justice did thereupon adjudge and determine that the said John Doe was guilty of the aforesaid charge, and the said John Doe was thereupon duly convicted of the offence aforesaid, to wit, of being a disorderly person, in that he, the said John Doe, at the town of Greenbush aforesaid, on the said 26th day of December, 1867, did [here state the particulars of the offence, as in the record of conviction'] ; and whereas, upon such conviction, the said John Doe was required to find two sureties, to be recognized with the said John Doe, the sureties in. the snm of one hundred dollars each, and the said John Doe in the sum of one hundred dollars, for his good behavior for the space of one year from the time of his conviction as aforesaid ; and inasmuch as the said John Doe has made default in finding such sureties, and I, the said justice, having duly made up and signed a record of such conviction of the said John Doe. , These are, therefore, to command you, the said constable, forthwith to con- vey and deliver the said John Doe into the custody of the keeper of the said jail, and you, the said keeper, are hereby commanded to receive the said John Doe into your custody in the said jail, and him there safely keep until he shall find such sureties as aforesaid, or until he shall be discharged according to law. Given under my hand and seal, at the town of Greenbush, in said county of Kensselaer, this 1st day of January, 1868. HENRY GOODRICH, [l. s.] , Justice of the Peace. No. 75. WABKANT OF COMMITMENT OP A DISORDERLY PERSON AFTER A PLEA OF GUILTY. See ante, Vol. 1, pp. 147-151. Rensselaer County, ss:. To any constable of the said county of Rensselaer, and to the keeper of the common jail of said county, Greeting : "Whereas, on the 1st day of January, 1868, John Doe was brought before me, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at the town of Greenbush, in said county, charged, on the oath of James Brown, with having, on the 26th day of January, 1867, at the town of SUMMARY CONVICTIONS. 267 ' Greenbush aforesaid [here set forth the stateTnent of the offence as contained in the complaint^, and whereas, the said charge was then and there distinctly read and stated to the said John Doe, and he, the said John Doe, was given a rea- sonable time to send for and advise with counsel; and whereas, he, the said John Doe, did then and there plead guilty to the said charge, and in the pres- ence of said court, by said plea of guilty, did voluntarily admit and confess that he, the said John Doe, at the town of Greenbush aforesaid, on the 26th day of December, 1867, did [here set forth the specific facts admitted and confessed by the prisoner] ; and whereas, the said justice did thereupon adjudge and determine that the said John Doe was guilty of the aforesaid charge, and the said John Doe was thereupon convicted of the offence aforesaid, of being a disorderly per- son, in that he, the said John Doe, at the town of Greenbush aforesaid, on the said 26th day of December. 1867, did [here state the particulars of the offence as in the record of convictimi] ; and whereas, upon such conviction the said John Doe was required to find two sureties to be recognized in the sum of one hun- dred dollars each, and the said John Doe, in the sum of one hundred dollars for his good behavior for the space of one year fi-om the time of his conviction as aforesaid, and inasmuch as the said John Doe has made default in finding such sureties, and I, the said justice, having made up and signed a record of such con- viction of the said John Doe. These are, therefore, to command you, the said constable, forthwith to con- vey and deliver the said John Doe into the custody of the keeper of the said jail, and you, the said keeper, are hereby commanded to receive the said John Doe into your custody, and bim there safely keep until he shall find such sure- ties as aforesaid, or vmtil he shall be discharged according to law. Given imder my hand and seal at the town of Greenbush, in said county of Rensselaer, the first day of January, 1868. HENRY GOODRICH, [l. s.] ' Justice of the Peace. No. 76. EBCOGNIZANCB BT DISOEDBBLT PEESOIf AFTEK HIS IMPRISOXMBNT, UPON WAE- SANT OF COXnCTION. See ante. Vol. I, p. 152. County of Rensselaer, ss: Be it remembered that on this 4th day of January, 1868, John Doe, of the town of Greenbush, in the said county of Rensselaer, and Edward Hopkins and Jeremiah D. Green, both of the city of Troy, New York, personally came before us Henry Goodrich and Charles J. Lansing, two of the justices of the peace of the said county of Rensselaer, and severally and respectively acknowledged them- selves to be indebted to the people of the State of New York, that is to say, the said John Doe, in the sum of two hundred dollars, and the said Edward Hopkins and the said Jeremiah D. Green in the sum of two hundred dollars each, to be ?68 APPENDIX OF FORMS. levied of their respective goods and chattels, lands and tenements, if default shall 1)6 made in the condition following : Whereas, John Doe was, on the 1st day of January, 1868, duly convicted before Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, of being a disorderly person [state the offence briefy, as mentianed Hk the warrant of com'mitjfix,nt\, and for want of sureties of his, good behavior the said John Doe was conunitted to, and still remains in, the common jail of the said county. Now, therefore, the condition of this recognizance is such that if the ssyd John D,oe shajl be of good behavior for the space of one year from the tjwe of the said conviction, then this recognizance shall be void, and of no effect; otherwise, to be and remain in full force and virtue. JOHN DOE, EDWARD HOPKINS, • JEREMIAH D. GREEN. Subscribed, and acknowledged before us, the ? day and year'first above written. 5 Henet Goodrich, Ohaelbs J. Lansing, ' Justices of the Peace of Rensselaer county. No. 11, ■ WABRANT TO DISCHAKGE DISOEDBRLT PBESON UPON THE EXECUTION OP THE FOKBGOING RECOGNIZANCE. See ante. Vol. I, p. 152. Rensselaer county, ss : To the keeper of the common jail of said county. Greeting: Whereas, John Doe was lately committed to your custody, in said jail, by the warrant of Henry Goodrich, a justice of the peace of said county [which said warrant bears date January 12, 1868], upon the conviction of the said John Doe before the said justice of being a disorderly person, and upon the failure of the said John Doe to procure sureties for his good behavior, according to law; and whereas, the said John Doe has given such sureties before' us, the undersigned, two of the justices of the peace of the said county of Rensselaer, as were origi- nally required by the said justice from him. Now, therefore, we, as such two justices of the peace of the said county of Rensselaer, do hereby command you, upon the receipt hereof, to discharge the said John Doe out of your custody in the said jail, if detained there for no other cause than what is specified in the said warrant of commitment, and for so doing this shall be your sufficient w;arrant. Given imder our hands and seals this 4th day of January, 1868. HENRY GOODRICH, [l. s.] CHARLES J. LANSING, [l. s.] Justices of the Peace of the county of Rensselaer. SUMMARY CONVICTIONS. 269 No. 78. WARRANT AND COMMITMENT OF A DISOEDBRLT PERSON UPON A HECOVEET BEING HAD FOR A BREACH OP HIS RECOGNIZANCE FOR GOOD BEHAVIOR. See ante Vol. I, p. 152. County of Rensselaer, ss : To any constable of said county of Rensselaer, and to the keeper of the common jail of said county. Greeting: Whereas, on the 4th day of January, 1868, a recognizance was entered into before Henry Goodrich, a justice of the peace of the said comity, by John Doe, complained of on oath before him as a disorderly person, with two sureties, himself in the sum of one hundred dollars, and the said sureties in the sum of one hunared dollars each, conditioned for the good behavior of the said John Doe for the space of one year from the time of the said convictioil; and whereas, a recovery has this day been had before me, John Butler, a justice of the peace of the said county, upon a suit brought before me by Martin Miller, one of the overseers of the poor of the town of Greenbush, ia said county, for a breach of said recognizance, in [feere state matters in which the breach consists']. These are, therefore, to command you, the said constable, forthwith to convey and deliver the said John Doe into the custody of the keeper of said common jail. And you, the said keeper, are hereby required to reeeive the said John Doe into your custody in said common jail, and biTn there safely keep for the period of [_not to exceed six calendar months'}, or until he be discharged according to law. Given under my hand and seal, at the town of Greenbush, in said county, this 6th day of March, 1868. JOHN BUTLER, [l. s.] Justice of the Peace. No. 79. COMPLAINT FOR VAGRANCY. See ante, Vol. I, p. 157. Rensselaer coimty, ss : To Henry Goodrich, one of the justices of the peace of the county of Rens- selaer. James Brown, of the town of Greenbushj in said county of Rensselaer, upon his oath, complains that John Doe, at present in the said town of Green- bush, is an idle person, not having visible means to maintain himself, and living without employment, and is, as complainant believes, a vagrant within the intent and meaning of the statute in such case made and provided. Dated January 1st, 1868. JAMES BROWN. Subscribed and sworn to before me this ? 1st day of January, 1868. 5 Hhnbt Goodeich, Justice of the Peace. 270 APPENDIX OF FORMS. No. 80. WARRANT OF ARREST OP A VAGRANT. See ante, Vol. I, pp. 140-157. Rensselaer county, ss : To any constable of the said county of Rensselaer, Greeting : Whereas, James Brown, of the town of Greenbush, in said county of Rens- selaer, has this 1st day of January, 1868, made complaint on oath before me, Henry Goodrich, one of the justices of the peace of the said county of Rensse- laer, that John Doe, at present in the said town of Greenbush, is an idle person, not having visible means to support himself, and living without employment. You are therefore hereby commanded forthwith to take the said John Doe, and bring him before me, the said justice, at my office in the town of Greenbush, in the said county, to answer to said complaint, and to be otherwise dealt with in the premises as the law requires. Hereof fail not at your peril. Witness my hand and seal, at the town of Greenbush, in the county afore- said, this first day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 81. RECORD OF CONVICTION OF A VAGRANT. See ante. Vol. I, pp. 145-158. Before Henry Goodrich, one of the justices of the peace of the county of Rensselaer. The People of the State of New York ^ agt. V John Doe. J Be it remembered that the above named defendant, John Doe, having been brought before me, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush, in said county, charged on the oath of James Brown with, on this present day, at the town of Greenbush aforesaid [Aere state the offence, thus : " being an idle person, who, not having the means to maintain himself, lives mthout employment"}, and with being a vagrant within the intent and meaning of the statute,, which complaint on oath was believed by me, the said justice, and the said charge having been distinctly read and stated to the said John Doe, who then and there pleaded not guilty thereto, and who was then and there tried by the said justice, who did thereupon hear testimony on oath in support? of said charge, and in the defence thereof on the behalf of the said prisoner ; and whereas, the following are the names of the witnesses sworn upon the said trial, and the evidence given and proceedings had. SUMMARY CONVICTIONS. 271 that is to say : The counsel for the prisoner moved to dismiss the complaint against the prisoner upon the ground that [here state the grounds'], -Hrhich motion was denied by the said justice, to which denial and ruling the counsel for the prisoner then and there duly excepted. A B was then produced, sworn and examined on behalf of the people, and testified as follows, to wit : [Here state his evidence, also the objections made to the testimony, and the rulings thereon, and exceptions taken ; also, the evidence of all the witnesses, both Jor the people and the prisoner."] And, whereas, the foregoing are all the witnesses who were sworn on said trial, and the foregoing is all the testimony given, and proceedings had, on said trial ; and, whereas, the said evidence was given, and proceedings were had, in the presence and hearing of the said John Doe, he, the said John Doe, having previously thereto been allowed a reasonable time to send for and advise with counsel ; and, whereas, it then and there appeared to me, the said justice, that the said John Doe was guilty of the offence of being a vagrant, in this, to wit, that he, the said John Doe, at the town of Greenbush aforesaid, on this present day, was [here briefly state the pecvliar circumstances of the case as proven by the mtnesses^, and the said John Doe was thereupon duly convicted by me, the said justice, of the said charge, and of being a vagrant, in that he, the said John Doe, was an idle person, not having the means to maintain himself, and living without employment. And it appearing to me that the said John Doe is not a uotorious offender, and that he is a proper object for relief, I adjudge and determine that the said John Doe be committed to the county poor house of the said county, [or to the alms house or poor house of the said touni] for the term of thirty days, there to be kept at hard labor [or if appearing to me that the said John Doe is an impro- per person to be sent to the poor house, I do adjudge and determine that said John Doe be committed to the common jail of said county for the term of twenty days and to be kept for the first ten days of said term on bread and water only.] "Witness my hand and seal, at the town of Greenbush in said county of Rensselaer, this 1st day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 82. WAKEANT OF COMMITMENT OF A VAGBANT. See ante. Vol. I, pp. 147-157. i Rensselaer county, ss : To any constable of the said county of Rensselaer, and to the keeper of the county poor house of said county. Greeting : Whereas, on the first day of January, 1868, John Doe was brought before me, Henry Goodrich, one of the justices cf the peacd of the said county of Rens- selaer, at the tovm of Greenbush in said county, charged on the oath of James Brown, which oath was believed by me, the said justice, with, on this present day. 272 APPENDIX OF FORMS. at the town of Greenbush (here state the offence thus: "being an idle person who, not having the means to maintain himself, lives without employment"), and with being a vagrant within the intent and meaning of the statute; and whereas, the said charge was then and there distinctly read and stated to the said John Doe, who then and there pleaded not guilty thereto, who was then and there tried upon the said charge by the said justice, who did thereupon hear testimony on oath in support of said charge, and in defence thereof and on behalf of said prisoner : and whereas, the said testimony was given and evidence was had in the presence and hearing of the said John Doe, he, the said John Doe, having previously thereto been allowed a reasonable time to send for and advise with counsel, and whereupon the said justice did thereupon adjudge and dete^^- mine that the said John Doe was guilty of the aforesaid charge, and the said John Doe was thereupon convicted of the offence aforesaid, to wit : of being a vagraiit, in that he, the said John Doe, on this present day at the town of Greenbush aforesaid, was [here state the grownd» upon wbieh the charge of vagrancy was basedi] . * And whereas it appeared to me that the said John Doe was not a notori- ous offender, and was a proper subject of relief, I did, upon such conviction, adjudge and determine that the said John Doe should be committed to the county poor house of the said county, there to be kept at hard labor for the term of thirty days. And whereas, I have duly made, signed, and filed a record of such conviction of the said John Doe. These are therefore to command you, the said constable, forthwith to convey and deliver the said John Doe into the custody of the said keeper, and you, the said keeper, are hereby commanded to receive the said John Doe into your cus- tody in the said poor house, and him there safely keep for the said term of thirty days at hard labor. Witness my hand and seal, at the town of Greenbush, in said county, this ■ 1st day of January, 186&. HENRY GOODRICH, [i.. s.] Justice of the Peace. No. 83. A SIMILAR WABRANT WHERE THE SENTENCE IS THAT THE PRISONER BB CON- FINED IN THE COMMON JAIL OF THE COUNTY INSTEAD OF THE COUNTY POOR r HOUSE. See ante. Vol. 1, p. 158. Rensselaer County, ss : To any constable of the county of Rensseltter^ and to the k«eper of the com- mon jail of the said county. Greeting: [Commence as in the foregoing form, and continue down to the *] And whereas it appeared to me that the said John Doe was an improper person to be sent to the poor house, ,1 did, upon such conviction, adjudge and determine that the said John Doe be committed to the county- joil of said county SUMMARY CONVICTIONS. 273 for the term of thirty days, to be kept for the first ten days of said term on bread and water only. These are therefore to command you, the said constable, forthwith to convey and deUver the said John Doe into the custody of the said keeper ; and you, the said keeper, are hereby commanded to receive the said John Doe into your cus- tody, in the said jail, and him there safely keep for the said term of thirty days, and to keep biTn for the first ten days of said term on bread and water only. Given under my hand and seal at the town of Greenbush, in said county of Rensselaer, this 1st day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. Ko. 84. COMPLAINT FOB PROFANE CURSING AND SWEARING. ■ See ante. Vol. I, p. 162. Rensselaer county, ss : To Henry Goodrich, one of the justices of the peace of the county of Rens- selaer : James Brown, of the town of Greenbush, in said county, upon his oath, complains that on the 29th day of December, 1867, at the town of Greenbush, in said county, John Doe, of the said town of Greenbush, did, in the presence and within the hearing of the said James Brown, profanely curse and swear, and did then and there, to wit, at the time and place aforesaid, utter the following oaths and curses, to wit, [here iTisert the profane language^. Dated January 21st, 1868. JAMES BROWN. Subscribed and sworn to before me, ? this 1st day of January, 1868. 5 Henbt Goodrich, Justice of the Peace. No. 85. complaint for the disturbance of a religious meeting. See ante. Vol. I, p. 162. Rensselaer county, ss : To Henry Goodrich, one of the justices of the peace of the county of Rens- selaer: James Brown, upon his oath, complains that on the 29th day of December, 1867 at the town of Greenbush, in the said county of Rensselaer, John Doe, of the said town of Greenbush, did wiUfully interrupt, distvu-b and disquiet an assemblage of people, then and there met for religious worship, in a certain C. p. Vol. n— 21. 274 APPENDIX OF FORMS. building situate in said town of Greenbush, to wit, the Methodist Ohurch, by profane discourse [or by rude and indecent behavior, or by making a noise so near the said place of worship as to disturb the order and solemnity of the meeting. "l Dated January 1st, 1868. JAMES BROWN. Subscribed and sworn to before me, i this 1st day of January, 1868. Henry Goodrich, Justice of the Peace. No.' 86. WABBANT TO ARREST A PERSON UPON A COMPLAINT FOR DISTtTBBING A RELIGIOtrS MEETING. , See ante. Vol. I, pp. 140-162. Rensselaer county, ss : To any constable of the said county of Rensselaer, Greeting : Whereas, a complaint has this day been made, on oath, by James Brown, of the town of Greenbush, in the said county of Rensselaer, before me, Henry Goodrich, one of the justices of the peace of said county, that John Doe, of the said town of Greenbush, at the town of Greenbush aforesaid, on the 29th day of December, 1867, did willfully interrupt, disturb and disquiet an assemblage of people then and there met for religious worship, in a certain building situate in said town of Greenbush, to wit, the Methodist ChurcK, by profane discourse [or by rude and indecent behavior, or by making a noise so near the said place of worship as to disturb the order and solemmty of the meeting^ . These are, therefore, to command you forthwith to take the said John Doe and bring him before me, at my ofiBce, in the town of Greenbush, in said county of Rensselaer, to be dealt with according to law. Witness my hand and seal, at the town of Greenbush, in said county of Rensselaer, this 1st day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 87. VENIRE FOB JURY ON COMPLAINT FOR DISTURBING A RELIGIOUS MEETING. See ante. Vol. I, p. 164. Rensselaer County, ss : To any constable of said county, Greeting : You are hereby commanded to summon twelve good and lawful men, qualified to serve as jurors, and not exempt from such service, and who are nowise of kin to SUMMARY CONVICTIONS. 275 John Doe, to be and appear before me, Henry Goodrich, a justice of the peace of said county, at my office, in the town of Greenbush, on the 30th day of January, 1868, at 10 o'clock in the forenoon of that day, for the trial of the said John Doe for an alleged violation of the provisions of the revised statutes in relation to the disturbance of rehgious meetings, the said John Doe being charged on oath be- fore me with an offence under the said provisions of the statutes, and he having demanded that he be tried by a jnry. And have you then and there this pre- cept, together with a panel of the jurors summoned. Given under my hand, at the town of Greenbush, in said county, this 1st day of January, 1868. HENRY GOODRICH, Justice of the Peace. No. 88. KEOOBD OF CONTICTION FOB DISTtTBBING A BELIGIOUS MEETING, WHEBB TKIAL IS HAD BY A JUBT. See ante, Vol. I, pp. 144-162. Before Henry Goodrich, one of the justices of the peace of the county of Rensselaer. The People of the .State of New York, ^ ogt. V John Doe. J Be it remembered, that the above named John Doe, having been brought before me, Henry Goodrich, one of the justici-s of the peace of the county of Rensselaer, at the town of Greenbush, in said county, on the 1st day of January, 1868, charged on the oath of James Brown, with having on the 26th day of December, 1867, at the town of Greenbush aforesaid, willfully interrupted, disturbed and disquieted an assemblage of people then and there met for religious worship, in a certain buUding situate in said town of Greenbush, to wit : the Methodist church by {here state the disturbance thus : " by profane discourse,'' etc.], and the said charge having been distinctly read and stated to the said John Doe, and he, the said John Doe, having been given a reasonable time to send for and advise with counsel, did then and there plead not guilty to the said charge, and did then and there demand to be tried by a jury, whereupon a venire was issued in accord- ance with the statute in such case made and provided, and a jury was duly and legally summoned, drawn, tried and sworn, and the said John Doe was then and there tried upon the charge and accusation aforesaid, and testimony was there- upon given on oath in support of said charge, and ajso on the defence thereof and in behalf of the said John Doe; and whereas, the said testimony was given and the said proceedings were had in the presence and hearing of the said John Doe ; and whereas, the said jury sat together and heard the proofs and allega- tions in the case, which were declared in public and in the presence of the said 276 APPENDIX OF FORMS. John Doe ; and after hearing the said proofs and allegations, the jury retired and were kept together in a convenient place, under the charge of a constable duly sworn for that purpose, until they had agreed upon their verdict. And" the said jury when they had agreed upon their verdict, cam^ into the said court and declared the same pubMcly, and by such verdict they found the said John Doe guilty of the offence wherewith he was charged as aforesaid. Now, therefore, it is by me, the justice aforesaid, considered and adjudged that for the offence aforesaid the said John Doe forfeit the sum of [not exceeding twenty-five dollars'^ for the benefit of the poor of said county. And the costs of said conviction are hereby ascertained and adjudged to amount to the sum often dollars. In witness whereof I have hereunto set my hand and seal this 3d day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 89. RBCOKD OF CONTICTION WHERE THE TRIAL IS HAD BEFORE THE JUSTICE WITH- OUT A JURY. See ante. Vol. I [See records of conviction of disprderly persons. No. 70, and of vagrants. No. 81.] No. 90. WARRANT OP COMMITMENT UPON CONVICTION FOE DISTURBING A RELIGIOUS MEETING WHEN THE TRIAL IS HAD BEFORE A JUSTICE WITHOUT A JURT. See ante. Vol. I, pp. 140-162. [Similar to a warrant of commitment in case of vagrancy, No. 82, down to the *, then as follows ;] And whereas, upon such conviction I did adjudge and determine that the said John Doe should forfeit the sum of twenty dollars for "the benefit of the poor of said county ; and whd^eas, the costs of said conviction were ascertained and adjudged by me to amount to the sum of ten dollars ; and whereas, the said John Doe, although required so to do, has not paid the said penalty and costs, nor given security for the payment thereof within twenty days, as required by law. SUMMARY CONVICTIONS. 277 These are therefore to command you, the said constable, forthwith to convey and deliver the said John Doe into the custody of the said keeper. And you, the said keeper, are required to receive the said John Doe into your custody in the said jail, and him there safely keep until he shall pay the said penalty and costs, or for the term of {not exceeding thirty'] days. Witness my hand and seal, at the town of Greenbush, in said county, this 1st day^ of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 91. A SIMILAR WAEBANT OF COMMITMENT WHERE THE TRIAL IS HAD BT A JURY. See ante. Vol. I, p. \_SimUar to a warrant of commitment when trial is had before a jury in a court of special sessions, JVo. , down to the *. Then conclude as in the fore- going form.'] No. 92. WARRANT OP ARREST FOR CONTEMPT. See ante, Vol. I, p. 168. Rensselaer Coimty, ss : To any constable of the said county,. Greeting : Whereas, on this day, during the examination of John Doe on a criminal complaint [or during the trial of a cause between the People of the State of New York, plaintiff, and John Doe, defendant], before me, Henry Goodrich, a justice of the peace of said county, at my office, in the town of Greenbush, in said county, Patrick McCarthy was guilty of disorderly, contemptuous, and insolent behavior towards me, the said justice, while engaged in the said examination [or [while engaged in the trial of said cause], by [here state the particulars of the con- duct of the offender], which behavior tended to interrupt such proceedings before me, and to impair the respect due to my authority as such justice [or was guilty of committing a breach of the peace, or of making a noise and disturbance tending to interrupt my proceedings as a justice, or was guilty of willfully offering resistance, in my presence, to the execution of a lawful order (or process") made (or iasv^d") by me as such justice] ; and being ordered by me to cease from such 278 APPENDIX OF FORMS. disorderly, contemptuous and insolent behavior [ox from committing such breach of the peace, oi from making such noise and disturbance, so tending to interrupt my proceedings as such justice, or frmn loillfully offering such resistance, in my presence, to the execution of such Umfvi order (or process') so made (or issued^ by me as such justice'], he, the said Patrick McCarthy, refused so to do, and told me that he did not regard me or my authority. These are, therefore, in the name of the people of the State of New York, to conmiaud you forthwith to apprehend him, the said Patrick McCarthy, and bring him before me, at my ofBce, in the town of Greenbush, to answer for the said contempt, and to be dealt with according to law. Hereof fail not at your peril. Given under my hand and seal, the 1st day of January, 1868. HENEY GOODRICH, [l. s.] Justice of the Peace. No. 93. KBCOED OP CONVICTION FOB CONTEMPT. See ante. Vol. I, p. 168. Rensselaer county, ss : Be it remembered that on this day, on the trial of a cause between the people of the State of New York, plaintiffs, and John Doe, defendant [or dwring the examination of one John Doe, on a criminal complaint], before me, Henry Good- rich, a justice of the peace of the said county, at my office, in the town of Green- bush, Patrick McCarthy was guilty of disorderly conduct, contemptuous and insolent behavior towards me, the said justice, while thus engaged in the trial of the said cause,, [or in the said examination] by \here state the particulars of the conduct of the offender] which behavior tended to interrupt the proceedings before me, and to impair the respect due to me as such justice, and being ordered by me to cease from such disorderly, contemptuous and insolent behavior, he, the said Patrick McCarthy, refused so to do, and told me that he did not regard me or my authority [or state the other matters constituting the contempt, as in the pre- ceding warrant] ; and the said Patrick McCarthy having been brought before me to answer for the said contempt [or having been forthwith called upon by me to answer for the said contempt], and not having purged himself therefrom, I do hereby convict the said Patrick McCarthy of a contempt, and do adjudge and determine that for the said contempt the said Patrick McCarthy pay a fine of ten dollars, and that he also be imprisoned in the common jail of the said county of Rensselaer ten days, and until he pay the fine aforesaid, or be discharged accord- ing to law. In witness whereof I have hereunto set my hand this 1st day of January, 1868. ; HENRY GOODRICH, Justice of the Peace. SUMMARY CONVICTIONS. 279 No. 94. WAEBANT OP COMMITMENT FOR CONTEMPT. See ante, Vol. I, p. 168. Rensselaer county, Ss : To any constable of the said county of Rensselaer, and to the keeper of the common jail of said county, Greeting : Whereas, Patrick McCarthy has this day been convicted before me, Henry Goodrich, one of the justices of the peace of said county, of a contempt, for that, on this day, on the trial of a cause between the people of the State of New York, plaintiffl, and John Doe, defendant [or during the examination of one John Doe upon a criminal complainf}, before me, at my office, in the town of Greenbush, he, the said Patrick McCarthy, was guilty of disorderly, contemptuous and insolent behavior toward me, the said justice, while thus engaged in the trial of the said cause [or in the said examinationi, by \here state the particulars of the conduct of the offender], which behavior tended to interrupt the proceedings before me, and to impair the respect due to me as such justice ; and being ordered by me to cease from such disorderly, contemptuous and insolent behavior, he, the said Patrick McCarthy, refused so to do, and told me that he did not regard me or my ~ authority [or state the other matters constituting the contempt, as inform No. 92] ; and the said Patrick McCarthy having, previous to such conviction, been brought before me to answer for said contempt, and not having purged himself there- from ; and, whereas, upon such conviction, I did adjudge and determine that the said Patrick McCarthy pay a fine of ten dollars, and that he also be imprisoned in the common jail of the said county ten days and until he should pay said fine or be discharged according to law. And, whereas, the said Patrick McCarthy, although fully notified of said conviction and judgment, has not paid the said fine. These are, therefore, in the name of the people of the State of New York, to command you, the said constable, to convey and deliver into the custody of the said keeper of the said common jail the body of the said Patrick McCarthy, and him there safely keep during the said term of ten days, and until he pays the said fine or is duly discharged according to law. Hereof fail pot. Given under my hand and seal, at the town of Greenbush, in the said county of Rensselaer, this 1st day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 95. WABBANT OP COMMITMENT OF A WITNESS FOE REFUSING TO BE SWOEN. See ante, Vol. I, p. 169. Rensselaer county, ss : Henry Goodrich, Esq., a justice of the peace of the said county, to any constable of the said county of Rensselaer, and to the keeper of the common jail of said county, Greeting : 280 APPENDIX OF FORMS. Whereas, on the trial of a cause this day before me, the said justice, between the people of the State of New York, plaintiffs, and John Doe, defend- ant [or upon the examination of John Doe v/pon a criminal complainti, Edward Magerry, being called as a witness ori the part of the said people [or of the said John Doe}, and being present, refused to be sworn as such witness in any form prescribed by law; and John H. Peck, on the part of the' said people [or the said John Doe}, having made oath before me that the testimony of the said Edward Magerry was material in the said cause [or upon the said examination}. These are therefore", in the name of the people of the State of New York, to command you, the said constable, forthwith to convey ajid deliver the said Edward Magerry into the custody of the said keeper of the said common jail. And you, the said keeper, are hereby required to receive the said Edward Magerry into your custody in the said common jail, and him there safely keep until he shall submit to be sworn as such witness as aforesaid, or shall be dis- charged by due course of law. Hereof fail not. Given under my hand and seal this 1st day of January, 1868. HENRY GOODRICH, JIl. s.] Justice of the Peace. No. 96. WARKANT OP COMMITMENT OP A WITNESS FOB BBPUSING TO TESTIFY. See ante. Vol. I, p. 169. Rensselaer county, ss : Henry Goodrich, a justice of the peace of the said county, to any constable of the said county of Rensselaer, and to the keeper of the common jail of the said county. Greeting : Whereas, on the trial of a cause before me, the said justice, between the people of the State of New York, plaintiffs, and John Doe, defendant [or upon the examination of one John Doe, upon a criminal complaint}, Patrick Crough' was called and sworn as a witness upon the part of the people [or of the said John Doe}, and, on his examination as such witness, he, the said Patrick Crough, was asked by the said John Doe [or by James Lansing, on the part of the said people} whether [here state the question asked}, to which question the said Patrick Crough refused to make any answer. And the said John Doe [or the said James Lansing on the part of the said people} having made oath before me that the tes- timony of the said Patrick Crough was material on the trial of said cause [or upon such examination}. These are therefore, in the name of the people of the State of New York, to command you, the said constable, forthwith to convey and deliver the said Patrick Crough into the custody of the said keeper of the said common jail. And you, the said keeper, are hereby required to receive the said Patrick Crough into your custody in the said common jail, and him there safely keep until he SUMMARY CONVICTIONS. 281 shall submit to answer the said question so put to him on the said trial [or examination'] or shall be discharged by due course of law. Given under my hand and seal, this 1st day of January, 18B8. ^ HENRY GOODRICH, [l. s.] Justice of the Peace. [/br an affidavit upon which to move for a common law vyrit of certiorari, see affidavit to obtain certiorari to court of special sessions, form No. , post."] No. 97. OBDER FOR A COMMON LAW WRIT OF CEETIOKARI TO REVIEW PROCEEDINGS ON A SUMMARY CONVICTION. See ante. Vol. I, p. 148. At a special term of the supreme court held for the State of New York, at the city hall in the city of Albany, on the 15th day of January, 1868, Present, Hon. Theodore W. Miller, Justice. . The People of the State of New York, 1 on the relation of John Doe, against Henry Goodrich, a justice of the peace of the county of Rensselaer. On reading and filing affidavits, with proof of due service thereof, and on motion of Francis Rising, attorney and of counsel for the above named relator, John Doe, it is ordered that a writ of certiorari directed to the above named Henry Goodrich, a justice of the peace of the county of Rensselaer, be issued out of and under the seal of this court, to remove into this court the decision made by, and the proceed- ings had before said justice upon the trial of the said John Doe, upon a complaint against him for being a disorderly person, which trial was had before said Heqjy Goodrich as such justice, at the town of. Greenbush in the county of Rensselaer, on the 12th day of January, 1868, and that said writ be made returnable before the justices of this court, at the Capitol in the city of Albany, on the last Tues- day of March, 1868. And it is further ordered, that upon the said John Doe becoming bound in a recognizance in the sum of ' dollars, and with satisfactory sureties to be approved of by a justice of this court, to appear on the return day of said writ at the general term of this court, to be held at the Capitol in the city of Albany, on the said last Tuesday of March, 1868, to abide the judgment or order of that court in the premises, the keeper of the common jail of the county of Rens- selaer, shall discharge the said John Doe from imprisonment therein, imless he, the said John Doe, shall be detained in his custody by some other reason than the warrant of commitment issued upon the trial and conviction aforesaid, (see Lounitz V. Dixon, 5 Sandf., 254; Patchin v. Meyer, 13 Wend., 664; Gardner v. Commissioners of Highways, 10 How., 181; 19 Wend., 641. [For form of recognizance under the foregoing order, see form No. 187.] C. p. Vol. II.— 22. 282 APPENDIX OF FORMS. No, 98. OOMMON LAW WBIT OF OBRTIOEAEI TO KBVIBW SUMMAET CONVICTIOIf. See ante, Vol. I, p. 148. The people of the State of New York to Henry Goodrich, one of the justices of the peace of the county of Rensselaer, Greeting : Whereas, by a certain decision made by you, as such justice, upon the trial of John Doe, lately had before you, upon a complaint against him for being a disorderly person, manifest error hath intervened to the great damage [l. s.] and injury of the said John Doe, as by his complaint we are informed, we being willing for certain causes, to be certified of the said decision, and bf your sentence and proceedings thereon, do command you that the original complaint^ the proceedings, objections made, and the testimony given and offered to be given, and your decision thereon, and the judgment thereon, and all things touching and concerning the same, by whatsoever name the party thereto is called, you send and return to our justices of our Supreme Court, at the City Hall, in the city of Albany, on the last Tuesday of March, 1868, together with this writ, that our said court may thereupon further cause to be done what of right ought to be done ; and that in the said return you, also state and set forth whether or not upon the said trial of said John Doe before you, upon said charge [jkere st(Ue specifically the errors assigned in the moving affidavit, upon which the order for the lurit was granted'] . Witness — Hon. Henry Hogeboom, one of the justices of our Supreme Court, at the city of Albany, this 10th day of January, 1868. J. T. DAVIS, Clerk. H. J. King, Attorney. No; 99, EETUEN TO THE POEEGOING WRIT. See ante. Vol. I, p. 148. To the Justices of the Supreme Court of the State of New York : The undersigned, Henry Goodrich, a justice of the peace of the county of Rensselaer, in obedience to a writ of certiorari issued out of and under the seal of the Supreme Court of the State of New York, directed to him, and which writ is hereto annexed, does reiturn to the justices aforesaid that [here set, out at length, and in detail, the varimts proceedings had before the justice. See justices' return to writ, of certiorari directed to court of special sessions, form No. .] Which aforesaid matters and things are all things touching and concerning the same before the undersigned. Dated January 30th, 1868. HENRY GOODRICH, Justice of the Peace. SUMMARY CONVICTIONS. 283 No. 100. PETITION FOR WRIT OP HABEAS CORPUS IN A CASE OP COMillTMBNT ON A SUM- HART CONVICTION WHERE THE MAGISfTRATB HAD NO JURISDICTION, oi WHERE THE WARRANT OP COMMITMENT IS NOT IN DUB FORM. (PeO. V. McCormick, 4 Park., 9.) See ante. Vol. I. To the Hon. Charles R. Ingalls, one of the justices of the supreme court of the State of New York. The petition of John Doe, shows that he is now detained and imprisoned in the common jail of the county of Rensselaer, by Matthew V. A. Fonda, sheriff of the county of Rensselaer and keeper of the common jail of said county, and that he is not committed or detained by virtue of any process issued by any court of the United States, or by any judge thereof; nor is he committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree; that the cause or pretence of such imprisonment according to the best of the knowledge and belief of your petitioner is, that he was here- tofore arrested upon a criminal warrant issued by Henry Goodrich, one of the justices of the peace of the county of Rensselaer, upon a charge of being a dis- orderly person, in that \^set forth the substance of the charge,'] and that in pursu- ance of such arrest and the proceedings had thereon, the said Henry Goodrich, as such justice as aforesaid, did commit your petitioner to the said common jaU, and that he is now illegally confined therein and restrained of his hberty by virtue of the warrant of commitment, a copy whereof is hereto annexed and marked "A," wherefore your petitioner prays that a writ of habeas corpus issue, directed to said Matthew V. A. Fonda, the sheriff of the county of Rensselaer and keeper of the common jail thereof, commanding him to produce the body of your petitioner together with the time and cause of such imprisonment and detention, to the end that he may be relieved of his present illegal imprisonment. Dated the 5th day of January, 1868. JOHN DOE. Rensselaer county, ss : John Doe of Greenbush, in said county, being duly sworn, doth depose and say, that the facts set forth in the above petition, subscribed by him are true. JOHN DOB. Sworn before me, this 5th day ) of January, 1868. S • A. Van Tutl, Notary Public, Troy, N. Y. . ' [^jinnex a copy of the warrant of commitment.] No. 101. HABEAS CORPUS ISSUED ON THE FOREGOING PETITION. See ante. Vol. I. The people of the State of New York to Matthew V. A. Fonda, sheriff of the county of Rensselaer, and keeper of the common jail of said county, Greeting: 284 , APPENDIX OF FORMS. We command you that you have the body of John Doe, by you imprisoned and detained, as it is said, togetber with the time and cause of such imprison- ment, and detention, by whatsoever name the said John Doe shall be [l. s.] called or charged, before the Hon. Charles R. Ingalls, a justice of the Supreme Court of the State of New York, at his chambers, in the city of Troy, on the 5th day of January, 1868, at three o'clock in the afternoon of that day, to do and receive what shall then and there be considered concerning him, and have you then and there this writ. Witness — Hon. C. R. IngaUs, a justice of the supreme court of the State of New York, this 5th day of January, 1868. • J. T. DAVIS, Clerk. I. Gbant Thompson, Attorney. llndorsed.J I allow the within writ January 5th, 1868. 0. R. INGALLS, Supreme Court Justice. No. 102. EETUKN TO THE POEEGOING WKIT. See ante. Vol. I. I, Matthew V. A. Fonda, sheriff of the county of Rensselaer, and keeper of the common jail of said county, hereby return to the annexed writ that I hold and detain the said John Doe, therein named, in my custody, under and by virtue of a certain warrant of commitment, a copy whereof is hereto annexed, and the original whereof I now produce. Dated Troy, January 5, 1868. M. V. A. FONDA, Sheriff of Rensselaer county, and keeper of the common jail in said county. [dnnex copy of the warrant of ammitment.'] No. 103. TKAVBKSB OP POEEGOING EBTUEN. See ante. Vol. I. In the matter of the detention of John Doe ■} The answer of John Doe to the return to the annexed writ of habeas corpus, shows that this defendant denies that Henry Goodrich, the justice of the peace COMPLAINTS FOR ARREST. 285 therein named, and tvIxo has subscribed the same, had any jurisdiction whatever to pronounce the sentence of commitment stated in said warrant, and that the said warrant is not in due form of law, and upon its face is insufBicient to autho- rize the detention or imprisonment of this defendant. JOHN DOE. COMPLAINTS FOR AREEST. No. 104. GENERAL FOBM OP COMPLAINT FOB WAEEANT OP AKRBST. See ante, Vo.l. I, p. 173. To Henry Goodrich, one of the justices of the peace in and for the county of Rensselaer : James Brown, of the town of Greenbush, in the said county, being duly sworn, says that on the 26th day of December, A. D. 1867, at the town of Greenbush, in said county, John'Doe, late of the city of Troy, in the county of Rensselaer aforesaid, did [here state the offence committed'] . He therefore prays that proper legal process may be issued, and that the said John Doe be appre- hended and held to answer to said complaint, and dealt with as to law and justice shall appertain. Dated at Greenbush, in the comity of Rensselaer, this 1st day of January, A. D. 1868. JAMES BROWN. Subscribed and sworn before me, } this 1st day of January, 1868. 5 Hbnet Goodrich, Justice of the Peace. No. ]^05. COMPLAINT TO OBTAIN WARRANT OP ARREST POB LARCENY. See ante. Vol. I, page 173. To John Smith, Esq., one of the justices of the peace in and for the county , of Rensselaer : John Brown, of the town of Greenbush, in the said county of Rensselaer, upon Ms oath complains that, on the first day of January, A. D. 1868, at the town of Greenbush, in said county, one silver watch, of the value of ten dol- lars, and one gold ring, of the value of five dollars, of the goods, chattels and property of the said John Brown [or "of Sarah Brown, of the town of Cfreen- buah aforesaid, who is the sister of this complainant, but who is sick," or "absent 286 APPENDIX OF FORMS. frwn the said ccmnty of Renssdaer, and therefor'e unable to make this complaint "], then and there being found, were feloniously stolen, taken and carried away, to the great damage of the said John Brown [or "of the said Sarah JBroum "], and that the said John Brown ha§ probable cause to suspect, and does suspect [or if the fact of the larceny by the accused is within the actual knowledge of the complainant, then make the charge positively] that John Doe, of the city of Troy, in said county of Rensselaer, did feloniously steal, take and carry away the said goods, chattels and property, in maimer and form, and at the time and place aforesaid. The complainant therefore asks that the proper legal process may be issued, that -the said John Doe may be arrested thereon, and held to answer this complaint, and that such further and other proceedings may be had thereon as may become necessary, and that the said John Doe may be dealt with in the premises as to law and justice shall appertain. Dated at the town of Greenbush, in the county of Rensselaer, this 10th day of January, 1868. JOHN BROWN. Subscribed and sworn to before me, > this 10th day January, 1868. J John Smith, Justice of the Peace. [Other complaints for any felony or misdemeanor may be drawn in a similar manner, being careful, where the offencte is created by statute, that a proper description of the crime is made, so as to bring it within the statutory definition of the offence. The statements of offences, hereafter contained under the forms for warrants, will be found useful in charging the offence in the complaint, where particularity is required.] No. 106. ANOTHER POBM OP COMPLAINT MADE TO A JUSTICES' COURT IN A CITY. See ante. Vol. I, p. 173. County of Rensselaer, ) , The Justices' Court of the city of Troy. \ ^^' James Bro^ro, of the city of Troy, in said county, being duly sworn, makes oath and complains before the justices of the justices' court, of the city of Troy, in said county, that on or about the 1st day of January, 1868, at said city of Troy, one John Doe did, feloniously, with and by means of a certain deadly weapon, to wit : a butcher knife, then and there in his hands, make an assault upon said James Brown, with intent him, the said James Brown, then and there to kiU. JAMES BROWN. Sworn this 2d day of ) January, 1868, before me. 3 Thomas Neart, Justice. WARRANTS OF ARREST. 287 No. 107. EXAMINATION OP COMPLAINANT AND WITNESSES UNDER THE FOBBGOING COM- PLAINTS, PKBLIMINAKT TO THE ISSUING OP THE WASEANT OF AEBEST. See ante. Vol. I, p. 175. County of Rensselaer, ss : The examination of the con^plainant and his witnesses, taken upon oath before me, Henry Goodrich, a justice of the peace of the county of Rensselaer, at the town of Greenbush in said county, on the first day of January, A. D., 1868, touching the complaint of James Brown against John Doe for grand larceny [or ^br assault and battery]. James Brown, the said complainant, being duly sworn and examined before me as such justice of the peace, doth depose and say [h^e. insert his evidence"]. [Signed] JAMES BROWN. Samuel Tappin of the city of Troy, in said county of Rensselaer, a witness for the said complainant, being duly sworn and examined before me as such jus- tice of the peace, doth depose and say [here insert his evidence] . [Signed] SAMUEL TAPPIN. Taken, subscribed and sworn before me, at the^ town of Greenbush aforesaid, the day and year > in this examination first above written. j ;^Hbnkt Goodrich, Justice of the Peace. No. 108. OATH TO BE ADMINISTBEED TO COMPLAINANT AND WITNESSES ON THE FOBEGOING EXAMINATION. See ante. Vol. I, p. 174. You do swear, in the presence of Almighty God, that you will true answers make to such questions as I shall put to you, touching this complaint against John Doe for burglary [or assault and battery]. WAEEANTS OF AEREST. No. 109. GBNBBAL POBM OF A WAEBANT OF AEBEST ISSUED BT A JUSTICE OP THE PEACE. See ante, Vol. I, p. 177. County of Rensselaer, ss : To any constable of the county of Rensselaer [or to any constable of the town of Greenbush, in said county of Rensselaer, or to Michad A. Gwy, or to 2B8 APPENDIX OF FORMS. the sheriff, constables and other peace officers of said cov/nty of Rensselaer, whom these presents may concern], Greeting: Whereas, complaint has this day been made by James Brown, on oath before me, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, that divers goods, chattels, and property of the said James Brown [or of Sarah Brown], to wit : one silver watch, of the value often doUars, were, on the 26th day of December, 1867, stolen, taken and carried away from the possession of the said James Brown [or of the said Sarah Brown], at the town of Greenbush in said county, and that he hath just cause to suspect and believe, and does suspect and believe, that John Doe, of the city of Troy, in said county of Rensselaer, did steal, take and carry away the same. And I, the said justice, having examined on oath the said complainant, James Brown, touching the said offence and accusation {and A B and C D, loitnesses produced by him], and it appearing therefrom that the said offence has been committed, you are therefore commanded forthwith to apprehend the said John Doe, and brin^ him before me, the said justice, at my office in the town of Greenbush, >in said county of Rensselaer, to be dealt with according to law. Hereof fail not at your peril. Given under my hand [or under my hand and seal], at the town of Green- bush, in the county of Rensselaer aforesaid, this 1st day of January, A. D. 1868. HENRY GOODRICH, / Justice of the Peace. No. 110. ASrOTHSa FORM, WHERE THE WARRANT IS ISSUED IN THE NAME OP THE PEOPLE. See ante. Vol I, p. 177. County of Rensselaer, ss : The people of the State of New York, to any constable of the county of Rensselaer [or to any constable of the town of Greenbush, in said county of Rens- selaer, or to Michael A. Guy, or to the sheriff, constables and other peace officers of said county of Rensselaer, whom these presents may concern]. Greeting: Whereas, complaint has this day been made by James Brown, on oath before Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, that [here state the offence which has been committed]. [See the last form.] We therefore command you forthwith to take the said John Doe, and bring him before the said Henry Goodrich, a justice of the peace of the said county of Rensselaer, at his office in the town of Greenbush, in the said county of Rensse- laer, to be dealt with according to law. Hereof fail not at your peril. Witness the said Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at the town of Greenbush in said county, the third day of January, A. D. 1868. ' HENRY GOODRICH, Justice of the Peace. WARRANTS OF ARREST. 289 No. 111. GENERAL PORM OP WARRANT OP ARREST ISSUED BY A JUSTICES' COURT IN CITIES. See ante, Vol. I, p. 177. County of Rensselaer, J The Justices' Court of the city of Troy, 3 ®^ • The people of the State of New York, by the grace of God, free and inde- pendent, to the Capital police. Greeting : Whereas, James Brown did this day make oath before the justices' court of the city of Troy, in said county, that 6n or about the 1st day of January, 1868, at said city of Troy, in said county, John Doe, of the said city of Troy, did [here state the offence committed']. You are therefore hereby commanded, in the name of the people of the State of New York, forthwith to apprehend the said John Doe, and bring him before the police justice of the city of Troy, at his court-room in said city, to answer said complaint, and be dealt with according to law. Witness, Thomas Neary, Richard C. Jennyss and William Donohue, [l. s.] justices of said court, and the seal thereof. Dated at Troy, this third day of January, 1868. By the court, THOMAS J. JENNINGS, Clerk. No. 112. INDORSEMENT UPON WARRANT WHERE THE DEPENDANT IS- TO BE ARRESTED IN A COUNTY DIPPBRENT PROM THAT IN WHICH THE WARRANT WAS ISSUED. See ante, Vol. I, p. 182. County of Albany, ss : Due proof upon oath, having been made before me, Patrick Grattan, one of the justices of the peace of the county of Albany aforesaid, that the name of Henry Goodrich, purporting to be signed to the within warrant of arrest is the handwriting of the said Henry Goodrich, the justice of the peace in said war- rant named ; I do hereby authorize and direct any officer to whom the said war- rant is directed to execute the same within the said county of Albany. Dated January 10th, 1868. PATRICK GRATTAN, Justice of the Peace. C. p. Vol. II,— 23. 290 APPENDIX OF FORMS. No. 113. RETURN TO WARRANT OP ARREST. See ante, Yol. I, p. 186. I have arrested the within named defendant, and have him now here in my custody, as I am within commanded. Dated Januaj'y 4th, 1868. GEORGE BENEDICT, Constable. No. 114. THE SAME WHERE ALJ, THE DEFENDANTS CANNOT BE FOUNJB. See ante, Vol. I. I have arrested the within named John Doe, as I am commanded, and have him now here in my custody, but the within named Jacob King cannot be fouijd. Dated January 4th, 1868. G. B., Constable. No. 115. RETURN, WHERE THE MAGISTRATE ISSUING THE WARRANT IS ABSENT. See ante, Vol. I, p. 186. I have arrested the within named defendant as I am commanded, and I fur- ther return that on making such arrest, I forthwith brought the said defendant to the office of the magistrate before whom the within warrant is made return- able, but that said magistrate was then absent therefrom, and could not be found to proceed upon the said warrant. Dated January 4th, 1868. G. B., Constable. No. 116. RETURN WHEN THE MAGISTRATE ISSUING THE WARRANT HAS GONE OUT OP OFFICE. See ante. Vol. I, p. 1^6. I have arrested the within named defendant as I am commanded, and I fiir- ther return that at the time of such arrest, Henry Goodrich, the ma^strate WARRANTS OF ARREST. 291 issuing the withia warrant, had ceased to he such magistrate hy the expiration of his term of the office, [by resignation of his said office, or removal from office or removal from the town or county^ . Dated January 4th, 1868. G. B., Constahle. No. 117. NEW WABRANT OP ARRBST ISSUED AFTER THE DEFENDANT HAS BEEN ARRESTED UPON THE ORIGINAL WARRANT, BUT HAS ESCAPED OR BEEN RESCUED. See ante. Vol. I. County of Rensselaer, ss : The people of the State of New York, to any constahle of the said county of Rensselaer, Greeting: Whereas, on the first day of January, A. D. 1868, complaint was made on oath before me, Henry Goodrich, one of the justices of the peace of the said county of Raisselaer, hy James Brown, that on the 26th day of December, A. D. 1867, at the town of Greenhush in said county, John Doe, late of the city of Troy, in said county, did [Aere state the offence alleged in the complaint']. And whereas, I, the said Henry Goodrich, as such justice as aforesaid, did examine on oath the said James Brown [and A B, a witness produced by him], and did determine that said oflfence had been committed, and did then and there issue my warrant in due form of law under my hand, and directed to any con- stable of the said county of Rensselaer [or directed otherwise, if such be the fact], commanding him forthwith to apprehend the said John Doe, and bring him before me, at my office in the town of Greenhush, in said county, to be dealt with according to law. And whereas, proof has, this third day of January, 1868, been made before me by Michael A. Guy, the constable to whom the said warrant was delivered to be executed, that he had arrested the said John Doe by virtue thereof, and as he was therein and thereby commanded to do, and that the said John Doe had afterwards, to wit, at the city of Troy, in said county of Rensselaer, on the 2d day of January, A. D. 1868, been rescued [or escaped] from the custody of the said Michael A. Guy, as such constable as aforesaid, you are therefore again commanded to forthwith apprehend the said John Doe, and bring him before me, at my office in the town of Greenhush, in the county of Rensselaer aforesaid, to be dealt with as to law and justice shall appertain. Hereof fail not at your peril. Witness, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenhush, in the said county of Rensselaer, this third day of January, 1868. HENRY GOODRICH, Justice of the Peace. 292 APPENDIX OF FOP.MS. No. 118. WAEBANT OP COMMITMENT OP A PUGITIVE PROM JUSTICE, WHO HAS FLED PKOM ANOTHER STATE OB TERRITORY AND BEEN POUND WITHIN THIS STATE. See ante, Vol. I, p. 204. County of Rensselaer, ss : The people of the State of New York, to any constable of said county of Rensselaer, and to the keeper of the common jail of said county. Greeting: Whereas, John Doe has, this 10th day of January, A. D., 1868, been brought before me, Henry Goodrich, a justice of the peace of the said county of Rensselaer, charged on the oath of James Brown, with having committed a criminal offence, to wit : murder in one of the States of the United States, to wit : in the Sate of Vermont, and with having been charged therewith in said State, and having fled from justice, and been found in this State, and it satisfac- torily appearing to me as such justice of the peace as aforesaid, from the exami- nation thereupon had before me, that the said John Doe has committed the crim- inal offence charged, to wit : the crime of murder, and is a ftigitive from justice, these are therefore to command you the said constable, forthwith to convey and deliver into the custody of the said keeper the body of the said John Doe. And you, the said keeper, are hereby required to receive the said John Doe into your custody in the said jail, and him there safely keep for the space of thirty days [or Jor such time as the magistrate may deem reasonabW], or until he shall be discharged by due course of law. Witness, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush in said county, this 10th day of January, A. D., 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 119. WARRANT FOB DISORDERLY CONDUCT. See ante. Vol. I. County of Rensselaer, ss. The people of the State of New York, by the grace of God free and inde- pendent, to any constable of said county. Greeting : Whereas, James Brown did, this day make oath before Henry Goodrich, one of the justices of the peace of said county, that on or about the first day of January, 1868, at the town of Greenbush in said county, John Doe and Richard Roe were disorderly persons, in that they did then and there disturb the public peace by noisy and tumultuous conduct. You are, therefore, hereby commanded in the name of the people of the State of New York, forthwith to apprehend the said John Doe and Richard Roe, WARRANTS OF ARREST. 293 and bring them before the said Henry Goodrich, a justice of the peace of said county of Rensselaer, at his office in the town of Greenbush, in said county, to answer said complaint, and be dealt with according to law. Witness, the said Henry Goodrich, one of the justices of the peace of said county of Rensselaer. Dated at Greenbush, this 3d day of January, 1868. HENRY GOODRICH, Justice of the Peace. No. 120. WARRANT FOB ASSAULT AND BATTERY. See ante. Vol. I. County of Rensselaer, ss: The people of the State of New York, by the grace of God free and inde- pendent, to any constable of said county. Greeting : Whereas, complaint on oath has this day been made before Henry Goodrich, one of the justices of the peace of said county, by James Brown, that John Doe, of the city of Troy, N. Y., on the first day of January, 1868, at the town of Greenbush in said county, with force and arms, did grievously assault and beat him, the said James Brown. And I, the said justice, have examined the said complainant on oath touching said offence and accusation, and it appearing to me, from such examination, that such offence has been committed. You are therefore hereby commanded, in the name of the people of the ' State of New York, forthwith to apprehend the said John Doe, and bring him before me, the said Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at my office in the town of Greenbush, in said county, to answer said complaint, and be dealt with according to law. Witness, the said Henry Goodrich, one of the justices of the peace of said coimty of Rensselaer. Dated at Greenbush, this 3d day January, 1868. HENRY GOODRICH, Justice of the Peace No. 121. WARRANT FOB EXCHANGING AND DBLIVEKING A COUNTERFEIT BANK NOTE. See ante. Vol. I. County of Rensselaer, ss : The people of the State of New York, by the grace of God free and inde- pendent, to the sheriff of the county of Rensselaer, or any of his deputies, or any constable of said county. Greeting : 294 APPENDIX OF FORMS. Whereas, James Brown did this day make oath before Henry Goodrich, one of the justices of the peace of said county, that on or about the first day of January, 1868, at the town of Grreenbush, in said county, John Doe did feloni- ously exchange and deUver, for a valuable consideration, to wit : \_state the con- sideration], a certain forged and counterfeit negotiable note, commonly called a bank note, purporting to be a promissory note of, and to have been issued by the Mutual Bank, of Troy, for the payment of the sum of ten dollars, he, said John Doe, well knowing said bank note to be forged and counterfeited, with intent to deceive and defraud said Mutual Bank, of Troy. You are therefore hereby commanded, in the name of the people of the State of New York, forthwith to apprehend the said John Doe, and bring him before the said Henry Goodrich, one of the justices of the peace of said county, at his ofBce in the town of Greenbush, in said county of Rensselaer, to answer said complaint, and be dealt with according to law. Witness the said Henry Goodrich, one of the justices of the peace of the county of Rensselaer. Dated at Greenbush, this 3d day of January, 1868. HENRY GOODRICH, Justice of the Peace. No. 122. WARRANT FOB KEEPING A DISOKDBKLT HOUSE. See ante. Vol. I. County of Rensselaer, ss : The people of the State of New York, by the grace of God, free and inde- pendent, to any constable of the county of Rensselaer, Greeting : Whereas, James Brown did this day make oath before the undersigned, Henry Goodrich, a justice of the peace of said county, that, on the 20th day of December, 1867, and on divers days and times between that day and the 1st day of January, 1868, at the town of Greenbush, in said county, John Doe did unlawfully keep and maintain, and still doth keep and maintain, a certain com- mon, ill-governed and disorderly house, and in the said house, for his own lucre and profit, did and still doth permit and procure divers evil and ill-disposed persons, as well men as women, of ill-name and fame, and of dishonest conver- sation, to frequent and come together, and there to be and remain, playing at cards, drinking ardent spirits, and otherwise misbehaving themselves. You are, therefore, hereby commanded, in the name of the people of the State of New York, forthwith to apprehend the said John Doe, and bring him before the said Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at his office in the town of Greenbush, in the county of Rensselaer, to answer said coinplaint, and be dealt with according to law. Witness the said Henry Goodrich, one of the justices of the peace of the county of Rensselaer, this 2d day of January, A. D. 1868. HENRY GOODRICH, Justice of the Peace. WARRANTS OP ARREST. 295 No. 123. WAHBANT FOR LAECBNT ISSUED BY A JUSTICES' COURT IN CITIES. See ante, Vol. I. County of Rensselaer, The Justices' Court of the city of Troy, ' ss: To the Capital Police, Greeting : Whereas, complaint has this day been made before the justices' court of the city of Troy, in said county, by , that on or about the day of , 186 , at Troy, in said county, divers goods and chattels of , of the Talue of ^ dollars and cents, - that is to say were feloniously stolen, taken and carried away from the possession of the said , and that he has just cause to suspect and believe, and does suspect and believe, that did steal, take and carry away the same ; and having examined the said on oath touching said offence and accusation; and it appearing that such offence has been commit- ted; you are tiierefore hereby commanded, in the name of the people of the State of New York, forthwith to apprehend the said and bring him before the police justice of the city of Troy, at his court-room in said city, to answer said complaint, and be dealt with accord- ing to law. Witness — Thomas Neary, Richard C. Jeimeyss and William Dono- [l. s.] hoe, justices of the said court, and the seal thereof. Dated at Troy, this day of , 1868. By the court. THOMAS J. JENNINGS, Clerk. [In general, where complaints are made before a justice of the peace, it wiU be srfttcient for the justice in charging the offence in the body of the warrant to refer to the statute creating the offence, and foUow the language of the statute ; where more than ordinary particularily is required, the following statements of the criminal offences most frequently occurring in practice will be found useful, and besides being used for a statement of the offence in a warrant of arrest, they • are sufficiently explicit for the charging of the offence in an indictment.] 296 APPENDIX OF FORMS No. 124. BAFE. See ante, Vol. I, p. 684. That John Doe, late of the town of Greenbnsh, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord, one thousand eight hundred and sixty-eight, with force and arms at the said town of Green- bush in the county aforesaid, in and upon one Sarah Brown, she then and there being a woman of the age of ten years and upwards, in the peace of God and of the said people, then and there being Tiolently, forcibly and feloniously, did make an assault, and her the said Sarah Brown then and there violently, forcibly and against her will feloniously did ravish and camaEy know against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 125. ASSAULT WITH INTENT TO UNLAWFULLY AND CARNALLY KNOW A FEMALE CHILD UNDBE THE AGE OP TEN YEARS. See ante,- Vol. I, p. 497. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight with force and arms at the said town of Green- bush, in the county of Rensselaer aforesaid, in and upon one Sarah Brown, she then and there being a female child under the age of ten years, to wit : of the age of seven years, in the peace of God and the said people then and there beiag, did make and assault, and her the said Sarah Brown, then and there did beat, wound and ill-treat so that her. life was greatly despaired of, with an intent her the said Sarah Brown then and there feloniously to unlawfully and carnally know, against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity. No. 126. HAVING A COUNTERFEIT BANK NOTE IN ONB'S POSSESSION, WITH INTENT TO PASS IT. See ante, Vol. I, p. 574. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand WARRANTS OP ARREST. 297 eight hundred and sixty-eight, at the town and county aforesaid, -wilifully and feloniously had in his possession a certain forged and counterfeited negotiable promissory note for the payment of money, commonly called a bank note, pur- porting to have been issued by a certain corporation and company called the Mutual Bank of Troy, duly authorized for that purpose by the laws of the State of New York, which said last mentioned forged and counterfeited negotiable promissory note for the payment of money, so possessed as aforesaid, and so purporting as aforesaid, was dated on the third day of May, 1855, and was for the sum of ten dollars [give description of the note'], with intaition then and there to utter and pass the said note as true, and to permit, cause and procure the said note to be so uttered and passed, with the intent then and there to injure and defraud one John Brown, he, the said John Doe, then and there well knowing the said last mentioned forged and counterfeited promissory note for the payment of money to be forged and counterfeited as aforesaid, against the form of the statute in such case made and providedj and against the peace of the people of the State of New York and their dignity. No. 127. ASSAULT AND BATTEKT. See ante. Vol. I, pp. 15-18- That John Doe, late of the tpwn of Greenbush and in the county of Rens- selaer aforesaid, on the first day of January, in the year of our Lord, one thousand eight hundred and sixty-eight, at the town of Greenbush, and in the covinty of Rensselaer, in and upon one John Brown, in the peace of God and of the people of the State of New York then and there being, with &roe and arms, did make an assault, and him, the said John Brown, did then and there beat, wound and ill-treat, and other wrongs and injuries to the said John Brown then and there did, to the great damage of the said John Brown, to the eyil example of all others in like case offending, and against the peace of the people of the State of New York and their dignity. No. 128. ASSAULT WITH INTENT TO KAVISH. See ante. Vol. T, p. 497. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms, at the said town of Green- C. p. YoL. II.— 24. 298 APPENDIX OF FORMS. bush, in the county of Rensselaer aforesaid, in and upon one Sarah Brown, she then and there being a woman of the age of ten years and upwards, in the peace of God and the said State then and there being, did make and assault, and her, the said Sarah Brown, then and there did beat, wound and iU-treat so that he life was greatly despaired of, with an intent her the said Sarah Brown, against her will, then and there violently, forcibly and feloniously to ravish and carnally know, and other wrongs to her, the said Sarah Brown, then and there did, to th9 great damage of the said Sarah Brown, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 129. ASSAULT WITH INTENT TO DO BODILY HARM. See ante. Vol. I, p. 494. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, with.force and arms, at the town of Greenbush, in the county of Rensselaer aforesaid, in and upon the said John Brown, then and there being, did make an assault, and him the said John Brown, with a certain knife, the said knife being then and there a sharp, dangerous weapon, which the said John Doe then and there, in his right hand had and held, then , and there did beat, strike, cut, stab and wound, with intent upon him, the said ^ John Brown, then and there, feloniously to do bodily harm, without justifiable or excusable cause, so that his life was greatly despaired of, and other wrongs to the said John Brown then and there did, to the great damage of the said John Brown, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 130. ASSAULT WITH INTENT TO KILL. See ante. Vol. I, p. 496. That John Doe, late of the town of Greenbush in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms, at /the town and county aforesaid, in an upon the body of John Brown in the peace of the said people, then and there being, feloniously did make an assault, and to, at, toward, and agamst him the said John Brown, a certain pistol then and there loaded and WARRANTS OF ARREST. 299 charged with gunpowder and lead, which he, the said John Doe, in his right hand then and there had and held, the same being then and there likely to pro- duce death, willfully and feloniously did then and there shoot off and discharge, with intent him the said John Brown, thereby, then and there feloniously and willfully to kill, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 131. ASSAULT WITH A DEADLY WEAPON. See ante. Vol. I, p. 500. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms at the town of Greenbush in the county of Rensselaer aforesaid, in and upon the said John Brown, then and there being, feloniously did make an assault, and him the said John Brown, with a certain axe which the said John Doe then and there in his right hand had and held (the said axe being then and there a deadly weapon, and such means and force as was then and there likely to produce death), feloniously did beat, strike, cut and wound, with intent him the said John Brown then and there feloniously and willfully to kill, and other wrongs to the said John Brown, then and there did to the great damage of the said John Brown, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of Xew York and their dignity. No. 132. EIOT AND ASSAULT AND BATTEEY. See ante. Vol. IT, pp. 18-93. That John Doe, Richard Roe and Joseph Brewer, late of the town of Green- bush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms, at the town of Greenbush, in the county of Rensselaer aforesaid, together with divers other evil disposed persons to the number of ten, whose names are unknown, unlawfully, riotously and routously did assemble and gather together, to disturb the peace of the people of the State of New York, and being so then and there assembled and gathered together, in and upon John Brown, in the peace of the people of the State of New York, then and there being, unlawfully, riotously and routously did make an assault, and him, the said John Brown, 300 APPENDIX OP FORMS. then and there riotously, rootously and unlawfiilly did beat, wound and ill-treat, so that bis life was greatly despaired of, and other wrongs to the said John Brown, then and there unlawfully, riotously and routously did, to the great dis- turbance and terror of the good people of the State of New York, then and there being in contempt of the said people, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 133. BBSCUING A PKISONER ABBESTBD UPON AN INDOHSBD WARRANT. That John Doe, late of the town of Greenbush, in the county of Rensse- laer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the town of Greenbush and in the county of Rensselaer aforesaid, did unlawfully, designedly and feloniously forcibly rescue from the custody of one John Malloy, then and there being deputy sheriff in the county of Albany, Richard Roe; a prisoner then and there held in the legal cus- tody of him, the said John Malloy, upon a criminal charge, to wit : upon the charge of an assault and battery committed by him, the said Richard Roe, upon one Jane Doe, the said John Malloy haying at the time of the arrest of the said Richard Roe by the said John Malloy, and at the time of such forcible rescuing of the said Richard Roe from the legal custody of him, the said John Malloy as aforesaid, a criminal warrant duly issued by one John 0. Cole, a justice of the peace in and for the county of Albany ia,foresaid, and duly indorsed by one of the justices of the peace in and for the said county of Rensselaer, by virtue of which indorsement the said warrant might lawfully be executed in the county of Rens- selaer aforesaid, said warrant charging the said Richard Roe with an assault and battery committed by him, the said Richard Roe, upon the said Jane Doe, and commanding that the said Richard Roe be arrested and brought before the said John 0. Cole, justice of the peace as aforesaid, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 134. BIGAMY. See ante, Vol. 1, p. 509. That John Doe, late of the town of Greenbush, and in the county of Rens- selaer, heretofore to wit, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-seven, at the town of Berlin in the county WARRANTS OP ARREST. 301 of Rensselaer aforesaid, did marry one Sarah Brown, and her the said Sarah Brown then and there had for his wife ; and that the said John Doe, afterwards, and whilst he was so married to the said Sarah Brown as aforesaid, to wit, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the town of Greenbush in the county of Rensselaer, and State of New York, feloniously and unlawfully did marry and take to wife one Jane Roe, and to her the said Jane Roe was then and there married, whilst the said Sarah Brown his former wife was then living, and he, the said John Doe, having her the said Sarah Brown then living, against the form of the statute in such case made and provided and agfiinat the peace of the people of the State of New York and their dignity. No. 135. INTOXICATION IN A PUBLIC PLACE. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the 1st day of January, in the year of our Lord one thousand eight hundred and sixty-eight, was found intoxicated in a public place, to wit : in Main street, in the village of Greenbush, in the town of Greenbush and county afore- said, in contempt of the people of the State of New York, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 136. RECEIVING STOLEN GOODS KNOWINGLY. See ante. Vol. I, page 695. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, being a person of evil name and fame, and of dishonest conversation, and common buyer smd receiver of stolen goods, on the 1st day of January, in the year of ovir Lord one thousand eight hundred and sixty-eight, with force and arms, at the said town of Greenbush, in the county of Rensselaer aforesaid, one gold watch, of the value of one hundred dollars, of the goods and chattels of John Brown, by Richard Roe [ot by some person who is to complainant imknmm], then lately before feloniously stolen of the said John Brown, unlawfully, unjustly and for the sake of wicked gain, did feloniously receive and have, the said John Doe then and there well knowing the said goods and chattels to have been feloniously stolen, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. 302 APPENDIX OF FORMS. No 137. BOBBBRT, FIEST DEGBEB. See ante, Vol.- 1, p. 698. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the ist day of January, in the year of our Lord one thousand eight hundred and sixty-«eight, at the town of Greenbush and county aforesaid, with force and arms in and upon one John Brown, in the peace of God and of the said people, then and there being, feloniously did make an assault, and him, the said John Brown, did then and there feloniously put in fear of some immediate injm'y to his person, and in danger of his life, and did then and there feloniously and violently steal, take and carry away, from the person and against the will of the said John Brown, one gold watch of the value of one hundred dollars, of the goods, chattels and property of the said John Brown, to the great damage of the said John Brown, against the form of the statute in such case made and pro- vided, and against the peace of the people of the State of New York and their dignity. No. 138. BUBGLABT IN THE FIEST DEGREE AND LARCENY. See ante. Vol. I, p. 516. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms, about the hour of eleven in the night time of the same day, at the town of Greenbush aforesaid, in the county of Rensselaer aforesaid, the dwelling house of another, to wit, of one John Brown there situate, feloniously and burglariously did break into and enter by forcibly bursting and breaking an outer door of the said dwelling house [or by unlocking the outer door thereof by means of false keys, or by picking the lock of an outer door^ thereof or by some other method prescribed by the statute, naming if], in which said dwelling house there was then and there at the same time some human being, to wit, the said John Brown, with intent feloniously and burgla- riously to commit some crime therein, to wit, then and there the goods and chattels of the said John Brown, in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away,* and one gold w'atch of the value of fifty dollars, of the goods, chattels and property' of the said John Brown [or of one Sarah Brown], in the said dwelling house then and there being, feloniously and burglariously did steal, take and carry away* to the great damage of the said John Brown, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity. WARRANTS OF ARREST. 303 No. 139. BURGLABT IN THE FIRST DEGREE WITHOUT CHARGE OP LARCE*fT. See ante, Vol. I, page 516. [^The same as in the last form, omitting the portion between the **.] No. 140. BURGLARY IN THE THIRD DEGREE AND LARCENY. See ante. Vol. I, p. 534. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms, at the town of Greenbush and in the county of Rensselaer aforesaid, the shop [or store, or booth, or tent, or warehouse, or railroad car, or ship, or vessel, OT canal boat, or some other building, naming if] of one John Brown there situate, feloniously and burg- lariously did break into and enter, the same being a shop for store, or etc., as abovel in which divers goods, merchandise and valuable things were then and there kept for use, sale and deposit, to wit, the goods, chattels and personal pro- perty hereinafter described, with intent the goods and chattels of the said John Brown [or of Sarah Brown'] in the said shop [or store, or etc., as above] then and there being, then and there feloniously and burglariously to steal, take and carry away, and one gold watch, of the value often dollars, of the goods, chattels and property of the said John Brown [or of one Sarah Brown], in the said shop [or store, or etc., as above] so kept as aforesaid then and there being, feloniously and burglariously did steal, take and carry away, to the great damage of the said John Brown [or Sarah Brown], against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 141. ARSON, FIRST DEGREE. See ante. Vol. I, p. 487. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the 1st day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the town of Greenbush aforesaid, and in the county of Rensselaer aforesaid, with force and arms, in the night time of the same day, 304 APPENDIX OF FOKMS. a certain dwelling house of one John Brown, then and there situate [there being then and there within the said dwelling house some human being, to wit : the said John Brown], feloniously, willfully and maliciously did set fire to [or bvim, or set fire to and 6wr7i], against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their ■ dignity. No. 142. ARSON, SECOND DEGREE. See ante. Vol. I, page 488. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the 1st day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the town of Greenbush aforesaid, and in the county of Rensselaer aforesaid, with force and arms, in the day time of the said day, a certain dwelling house of one John Brown, then and there situate [there being then and there, within the said dwelling house, some human being, to wit : one Sarah Brown], feloniously, willfully and maliciously did set flre to [or bum, or set fire to and burn'], against the form of the statute in such case made and pro- Tided, and against the peace of the people of the State of New York and their dignity. No. 143. AKSON, THIRD DBGSREB, WITH INTENT TO PREJUDICE THE INSURER. See ante. Vol. I, p. 4&9. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the 1st day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the town of Greenbush ^foresaid, and in the county of Rensselaer aforesaid, with force and arms, a certain building [or ship, or vessel, or certain goods, wares, merchandise or chattels, describing theni], to wit, &c., the property of John Brown, did willfiilly, feloniously and maliciously bum, with intent by such burning to prejudice the Continental Insurance Company, of the city of New York, a corporation duly formed and organized under the laws of this State, who had then and there duly given insurance against loss or damage by fire upon the said building [or ship, or vessel, or said goods, wares, merchandise or chattels, to wit, ^c, or vpon divers goods, wares, merchandise and chattels, contained in said building, or ship, or vessel], then and there situate, against the form of the statute in such case made and provided, and against the peace of the people of the Stat* oif New York and their dignity. WARRANTS OF ARREST. 305 No. 144. LAKCENT PROM THE PBBSON. See ante. Vol. I, p. 668. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the 1st day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the town of Greenbush aforesaid, and in the county of Rensselaer aforesaid, with force and arms, from the person of John Brown, one silver watch, of the value of ten dollars, of the goods, chattels and personal property of the said John Brown [prof one Sarah Brown], then and there being found, feloniously did steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. No. 145. / SEDUCTION. See ante. Vol. I, p. 712. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the first day of January, in the year of our Lord, one thousand eight hundred and sixty-eight, at the town of Greenbush and in the county aforesaid, with force and arms, under promise of marriage, did seduce and have illicit connection with one Sarah Brown, she, the said Sarah Brown, then and there being an unmarried female of previous chaste character, contrary to the form of the statute in such\case made and provided, and against the peace of the people of the State of New York and their dignity. No. 146. EESCUING A PBISONEB. That John Doe, late of the town of Greenbush, and in the county of Rens- selaer aforesaid, heretofore, to wit, on the first day of January, in the year of our Lord, eighteen hundred and sixty eight, with force and arms at the town of Greenbush, in the covmty of Rensselaer aforesaid, did nnlawfiilly, designedly and feloniously forcibly rescue from the custody of the said Michael A. Guy, he then and there being a deputy sheriff of the county of Rensselaer aforesaid, one Richard Roe, a prisoner then and there held in the legsd custody of him the said C. p. Vol. n— 25. 306 APPENDIX OF FORMS. Jlichael A. Guy, upon a criminal charge, to wit, upon the charge of an assault and battery committed by him the said Richard Roe, upon one Jane Doe, against the form of the statute in such case made and provided, and the peace of the people of the State of New York and their dignity. No. 147. DISOEDBHLY HOUSE. See ante. Vol. II, p. 74. That John Doe, late of the town of Greenbush, in the county of Rensselaer aforesaid, on the 1st day of January, in the year 1868, and on divers other days and times between that day and the date of making this complaint, at the town of Greenbush, and in the county aforesaid, unlawfully did keep and maintain, and yet continues to keep and maintain, a certain common, ill-governed and dis- orderly house, and common bawdy house, and in the said house for his Own lucre and gain, certain persons, as well men as women, of evil name and fame, and of dishonest conversation and common prostitutes, to frequent and come together, then and on the said other days and times, there unlawfully and will- fully did cause and procure, receive and entertain, and the said men and women and common prostitutes in the said house at unlawful times, as well in the night as in the day, then and on and said other days and times, there to be and remain, drinking, tippling, gambling, whoring, committing fornication, rioting, disturbing the peace, cursing, swearing, quarreling and otherwise misbehaving themselves, unlawfully and willfully did permit and procure and yet continues to permit and procure, to the great damage and common nuisance of the people of the State of New York, there inhabiting, residing and passing, to the evil example of all others in like case offending, and against the peace of the people of the State of New York and their dignity. EXAMINATION OF OFFENDERS. No. 148. BECOGNIZANOB WHERE PRISONER WAIVES AN EXAMINATION. See ante, Vol. I, p. 190. County of Rensselaer, ss : "We, A B, D and E P, all of the city of Troy, in said county, acknowledge ourselves indebted to the people of the State of New York each in the sum of five EXAMINATION OF OFFENDERS. 307 hundred dollars, to be made and levied of our respective goods and chattels, lands and tenements, to the use of the said people if default shall be made in the condi- tion following : The condition of this obligation is such, that whereas, the said A B has this day been brought before the undersigned, one of the justices of the peace in said county, upon the charge and accusation of the eriminaal offence of having, on the 1st day of January, 1858, at the town of Greenbush, in said county [Aere state the offence charged], and thereupon the said A B waived an examination touching the said offence, and offered to enter into a proper recognizance for his appear- ance at the next criminal court having cognizance of the offence above stated, to answer to the same, and any indictmennt that might be found against him for the offence aforesaid. Now, therefore, if the said A B shaU personally appear at the next court of oyer and terminer [or sessions], to be held in and for the said county, at the court house, in the city of Troy, on the 2d day of March, 1868, then and there to answer any indictment that may be preferred against him for the offence aforesaid, and to do and receive what shall by the court be then and there enjoined upon him, and shall not depart from the court without leave, then this recognizance is to be void, otherwise of force. A B, C D, E F. Subscribed and acknowledged before me } this first day of January, 1868. 5 Henet Goodrich, Justice of the Peace. Jso. 149. THE EXAMINATION OP THE COMPLAINANT AND WITNESSES UPON THE KETUEN OP A WAEEANT OP ABREST BBFORB A JUSTICE OP THE PEACE. See ante. Vol. I, page 187. The People of the State of New York, ^ agt. > John Doe. j County of Rensselaer, ss : The examination of the complainant and of the witnesses before me, Henry Goodrich, one of the justices of the peace of said county of Rensselaer, upon the complaint on oath of James Brown, charging John Doe with having on the 26th day of December, 1867, at the town of Greenbush in said county [here set forth the offence charged in the complaint and warrant]. The said John Doe, having been duly arrested and brought before me to answer to said charge, and such examination being taken in his presence and hearing, the said James Brown, upon his oath before mc, the said justice, and 308 APPENDIX OF FORMS. in the presence and hearing of the said John Doe, says that [insert the com- plainant's testimony]. [Signed] JAMES BROWN. Samuel Tappin, a witness upon the part of the people, upon his oath before me, the said justice, and in the presence and hearing of the said John Doe, says ■that he resides at No.. 26 North Fourth street, in the city of Troy, N. Y., that [insert his testimony]. [Signed] SAMUEL TAPPIN. [^dd the testimmiy of the other mtnesses, if any, in a similar Tnanner.] I certify that the foregoing examination was taken before me as such justice of the peace, as is above mentioned, at the town of Greenbush in said county of Rensselaer, on the first day of January, 1868, and that each of the above men- tioned witnesses, to wit, James Brown and Samuel Tappin, respectively, signed the same in my presence, and that said examination was at the time reduced to writing by me [or mider my direction.} HENRY GOODRICH, Justice of the Peace. [ Where the examination of different loitnesses is taken on different days, the certificate of the magistrate may he added at the end of the examination of each witness]. No. 150. TEMPOEAEY COMMITMENT. See ante. Vol. I, p. 188. County of Rensselaer, sa: To any constable of the said county of Renssulaer, and to the keeper of the common jail of said county. Greeting: These are, in the name of the people of the State of New York, to command you, the said constable, to convey to the said common jail the body of John Doe, and deliver him to the keeper thereof; and you, the said keeper, are hereby commanded to receive into your custody, in the said common jail, the body of the said John Doe, who stands charged before me, on the oath of James Brown with the offence of committing grand larceny; and that you safely keep the said John Doe in your custody, in the said common jail, until the above said charge be investigated and determined by me, according to the statutes in the case Of arrest and examination of offenders made and provided. Given under my hand and seal at the town of Greenbush, in said county of Rensselaer, the 1st day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. EXAMINATION OF OFFENDERS. 309 No. 151. A SHORTER FORM. See ante. Vol. I, p. 188. County of Rensselaer, ss : To the keeper of the jail of the county of Rensselaer : You will receive into your custody and safely keep for further examination the hody of John Doe, who is charged before me, Henry Goodrich, one of the justices of the peace of th^ county of Rensselaer, upon the oath of James Brown, with grand larceny. Witness — IJenry Goodrich, one of the justices of the peace of the said county of Rensselaer. Dated at Greenbush, January 1st, 1868. HENRY GOODRICH, Justice of the Peace. No. 152. ORDER TO BRING THE DEFENDANT BEFORE A JUSTICE OF THE PEACE FOR FURTHER EXAMINATION. See ante, Vol. I, p. 190. County of Rensselaer, ss: To the keeper of the common jail of the said coimty of Rensselaer, Greeting : You are hereby commanded forthwith to bring before me, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at my ofSce in the town of Greenbush in said county, the body of John Doe, a prisoner now in your custody, by virtue of a warrant of commitment signed by me, and dated January 1st, A. D. 1868, for the purpose of a further examination of the said John Doe upon a charge of grand larceny made against him, the said John Doe, upon the oath of James Brown. Witness, Henry Goodrich, a justice of the peace of the said county of Rensselaer, at the town of Greenbush in said county, this 10th day of January, A. D. 1868. HENRY GOODRICH, Justice of the Peace. • No. 153. SUBPffiNA FOR WITNESSES ON EXAMINATION OP ACCUSED. See ante. Vol. I, p. 190. County of Rensselaer, ss : The people of the State of New York, by the grace of God free and inde- pendent, to A B, D and E F : 310 APPENDIX OF FOEMS. You and each of you are hereby commanded and required, that (all excuses being laid aside) you personally be and appear before the undersigned, a justice of the peace of the county of Rensselaer, at his ofiBce in the town of Greenbush, in said county, on the 10th day of January, 1868, at ten o'clock in the forenoon of the same day, to give evidence respecting a certain complaint on oath against John Doe, for burglary, on the part of the people [or on the part of said John Doe]. Hereof fail not at your peril. Witness, Henry Goodrich, Esq., a justice of the peace of the county of Rens- selaer, at the town of Greenbush in said county, this fifth day of January, 18G8. HENRY GOODRICH, Justice of the Peace. No. 154. ATTACHMENT ABAINST WITNESS FOB DISOBEDIENCE OF THE FOREGOING SUBPCENA ON EXAMINATION OF ACCUSED. See ante. Vol. I, p. 190. County of Rensselaer, ss : The people of the State of New York, by the grace of God free and inde- pendent, to any constable of said county. Greeting : In the name of the people of the State of New York, you are hereby com- manded to attach John Barron and bring him before the undersigned, a justice of the peace of said county, at his of&ce in the town of Greenbush, in said county, on -the 12th day of January, 1868, at 10 o'clock in the forenoon of said day [oT forthmthl, to testify th^ truth, accordiiig to his knowledge, respecting a certain complaint on oath against John Doe for burglary, on the part of the said John Doe [or on the part of the people of the State of New York], and also to answer all such matters as shall be objected against him, for that the said John Barron, having been duly subpcened to attend at the examination upon the said complaint on oath, has neglected or refused to attend in conformity to such subpoena; and have you then and there this precept. Witness the hand and seal of Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush in said county, the 10th day of January, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. EXAMINATION OF OFFENDERS. 311 No. 155. THE EXAMINATION OP THE PKISONEE UPON THE RETURN 01? A WAERANT OF ABBEST BEFORE A JUSTICE OP THE PEACE. See ante, Vol. I, pp. 191, 192. The People, &c., agt. John Doe. County of Kensselaer, ss : The voluntary examination of John Doe, who is charged before me, Henry Goodrich, a justice of the peace of the county of Rensselaer, upon the oath of James Brown, with having, at the town of Greenbush, in the county of Rensse- laer aforesaid, on the 26th day of December, 1867 [fere set forth the statement of the offence, as alleged in "the complaint and warrant^ . The said John Doe, having been duly arrested and brought before me to answer to said charge, and having, before and at the commencement of the examination, been informed by me of the charge made against him, and that he • was at liberty to refuse to answer any question that might be put to him, and having been allowed a reasonable time to send for and advise with his counsel upon his examination now taken before me by said justice, says : [here insert the statement made by the defendant]. [To he signed by the defendant at this place, if he desires to do so.] I certify that the foregoing examination was taken before me, as such justice of the peace, as is above mentioned, at the town of Greenbush, in the said county of Rensselaer, on the first day of January, A. D. 1868, and that the foregoing is the whole of the statement so made as aforesaid by the said John Doe, and that the same was reduced to writing, and was read by me to the said John Doe, and was corrected by him and made conformable to what he declared to be the truth. Dated January 1st, 1868. HENRY GOODRICH, Justice of the Peace. [jidd the examination of the witnesses for the accused, if any, with certificate, the same as in the examination of the complainant's witnesses. See No. 149.] No. 156. BECOGNIZANCB ENTERED INTO BY A WITNESS, WITHOUT SURETIES, TO APPEAR AND GIVE EVIDENCE ON BEHALF OP THE PEOPLE BEFORE THE GEAND AND PETIT JURIES IN A COUBT OF RECORD. RECOGNIZANCE TAKEN BT THfe JUSTICE BEFORE WHOM THE WARRANT OF ARREST WAS RETURNED. See ante, Vol. I, p. 196. County of Rensselaer, ss : Be it remembered that on this 1st day of January, A. D. 1868, Samuel Tappin, of the city of Troy, New York, personally came before me, Henry Good- 312 APPENDIX OF FORMS. rich, a justice of the peace of the said covinty of Rensselaer, and acknowledged himself to be indebted to the people of the State of New York in the sum of thi-ee hundred dollars, to be made and levied of his goods and chattels, lands and tene- ments, to the use of the said people if default shall be made in the condition following : The condition of this obligation is such that if the above bounden, Samuel Tappin, shall personally be and appear at the next court of oyer and terminer [or court of sessions], to be held in and for the said county of Rensselaer, at the court house, in the city of Troy, in said county, to give evidence on behalf of the said people against John Doe, for grand larceny, or for [here state the offence], as well to the grand jury as to the petit jury, and shall not depart from the said court without leave, then this recognizance to be void and of no effect, otherwise to be and remain in fiill force and virtue. SAMUEL TAPPIN. Subscribed and acknowledged before me, tRe day and > year in this obligation first above written. J Henry Goodrich, Justice of the Peilce. No. 157. A SIMILAR RECOGNIZANCE WHERE THERE IS MORE THAN ONE WITNESS. See ante. Vol. I, p. 196. The People, &c., ) agt. > John Doe. ) County of Rensselaer, ss : Be it remembered, that on the first »day of January, A. D., 1868, A B of Troy, N. Y., D of Albany, N. Y. and E P of the town of Nassau, in said county of Rensselaer, personally came before me, Henry Goodrich, a justice of the peace of said county of Rensselaer, and severally acknowledged themselves indebted to the people of the State of New York, each for himself separately, in the sum of one hundred dollars, to be made and levied of his respective goods and chattels, lands and tenements to the use of the said people, if default shall be made in the condition following : The condition of this obUgation is such, that if the said A B, C D and E F shall severally be and appear, &c. [conclvde as in the last form.'] EXAMINATION OF OFFENDERS. 313 No. 158. RBOOGNIZASrCB BT A WITNESS TO THE SAME EFFECT ■WHBBB A SURETY JOIJfS WITH HIM IN EXECUTING THE KBCOGNIZANCB. See ante, Vol. I, p. 196. The People agt. John Doe. County of Rensselaer, ss : Be it remembered that on this 1st day of January, A. D. 1868, Samuel Tappin and Jeremiah D. Green, both of the city of Troy, N. Y., personally came before me, Henry Goodrich, a justice of the peace of the said county of Rensse- laer, and severally and respectively acknowledged themselves indebted to the people of the State of New York each in the sum of one hundred dollars, to be made and levied of their respective goods and chattels, lands and tenements, to the use of the said people if default shall be made in the condition following : The condition of this obligation is such that if the said Samuel Tappin shall personally be and appear, &c. [^Conclude as inform No. 156.] No. 159. A WARBANT COMMITTINS A WITNESS TO JAIL, WHO HAS KEPUSBD TO ENTER INTO A EBCOGNIZANCB TO APPEAR AND TESTIFY. See ante, Vol. I, p. 196. County of Rensselaer, ss : The people of the State of New York to any constable of said county of Rensselaer, and to the keeper of the common jail of said county. Greeting: Whereas, a charge upon oath has been made before me, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, by James Brown against John Doe^, that he, the said John Doe, on the 26th day of December, 1867, at the town of Greenbush in said county of Rensselaer, did [state the offence,] and whereas, it appears by the examination of Michael P. Hogan, this day taken on oath by me as such justice as aforesaid, as a witness upon the aforesaid crimi- nal charge and accusation, that he, the said Michael P. Hogan, is a material witness upon the part of the people of the State of New York, against the said John Doe, upon such criminal charge and accusation; and whereas, the said Michael F. Hogan, on being required by me, as such justice of the peace, to enter into a recognizance in the sum of one hundred dollars for his personal appearance at the next court of oyer and terminer [or court of sessions], to be held in and for the county of Rensselaer, at the court house in the city of Troy in said county, to give evidence on behalf of the people against the said John Doe for the criminal charge and accusation aforesaid, did refuse and still does refuse to enter into such recognizance. C. p. Vol. n.— 26. 314 APPENDIX OF FORMS. These are, therefore, to command yotfthe said constable, forthwith to conTcy and deliver into the custody of the said keeper of the common jail, the body of the said Michael F. Hogan. And you the said keeper of the said jail, are hereby required to receive the said Michael F. Hogan into your custody in the said jail, and him there safely keep. Until he shall enter into such recognizance as aforesaid, or be otherwise disch4rged according to law. Witness Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush in said county of Rensselaer, this tenth day of January, A. D. 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 160. A SIMILAR WAREANT IN A CASE WHERE THE WITNESS WAS EBQUIEBD TO FURNISH SURETIES AND REFUSED TO DO SO. See ante. Vol. I, p. 196. County of Rensselaer, ss : The people of the State of New York, to any constable of the county of Rensselaer, and to the keeper of the common jail of the said county. Greeting : Whereas, a charge, upon oath, has been made before me, Henry Goodrich, one of the justice of the peace of the county of Rensselaer, by James Brown against John Doe, that he, the said John Doe, on the 26th day of December, 1867, at the town of Greenbush, in said county of Rensselaer, did [state the offence'] ; and, whereas, it appears by the examination of Michael Hogan, this day taken on oath by me as such justice as aforesaid, as a witness upon the aforesaid criminal charge and accusation, that he, the said Michael Hogan, Is a material witness upon the part of the people of the State of New York against the said John Doe upon such criminal charge and accusation ; and, whereas, being satisfied by due proof that there was good reason to believe that the said Michael Hogan would not fulfill the condition of a recognizance to appear and testify as a witness on the trial of the said John Doe, imless security was required for that purpose, I, the said justice, did require the said Michael Hogan to enter into a recognizance, with two sufficient sureties, in the sum of one hun- dred dollars each, conditioned for his appearance at the next court of oyer and terminer [or court of sessions'], to be held in and for the said county of Rens- selaer, at the court house in the city of Troy, in said county, to give evidence in behalf of the said people against the said John Doe for the criminal charge and accusation aforesaid ; whereupon the said Michael Hogan neglected and refused, and still does neglect and refuse, to enter into such recognizance with such sureties as aforesaid. These are therefore to command you, the said constable, forthwith to con- vey and deliver into th? custody of the said keeper of the common jail the body of the said Michael Hogan. EXAMINATION OF OFFENDERS. 315 And you, the said keeper of the said jail, are hereby required to receive th'e said Michael Hogan into your custody in the said jail and him there safely keep until he shall enter into such recognizance with such surety as aforesaid, or be otherwise discharged according to law. Witness Henry Goodrich, one of the justices of peace of the county of Rensselaer, at the town of Greenbush, in the said county of Rensselaer, this 10th day of January, A. D. 1868. HENRY GOODRICH, [i,. b.] Justice of the Peace. No. 161. RECOGNIZANCE BEFOKB JUSTICE OP THE PEACE TO AWAIT ACTION OP THE GEAND JUKT, TAKEN APTEB THE EXAMINATION. ~ See ante-. Vol. I, p. 197. Rensselaer county, ss : We, John Doe, John Brown and James Mann, of the town of Greenbush,- in said county, acknowledge ourselves indebted to the people of the State of New York, each in the sum of five hundred dollars, to be made and levied of our respective goods and chattels, lands and tenements, to the use of the said people if default shall be made in the condition following : The condition of this obligation is such, that whereas, said John Doe has been brought before the undersigned, one of the justices of the peace in said county, upon the charge and accusation of tho criminal offence of having, on the 1st day of January, 1868, at Greenbush, in said county, feloniously stolen, taken and carried away one gold watch, of the value of fifty dollars, of the goods, chat- tels and property of Henry Jones, then and there being found; and the said court, after having examined witnesses on oath, and the said John Doe without oath, in the due form of law, touching such charge and accusation, did adjudge that the said ofience had been coromitted, and that there was probable cause to believe the said John Doe to be guilty thereof. Now, therefore, if the said John Doe shall personally appear at the next court of sessions [or of oyer and ter- miner], to be held in and for the said county, at the court house, in the city of Troy, on the 12th day of March, 1868, then and there to answer any indictment that may be preferred against him for the offence aforesaid, and to do and receive what shall by the court be then and there enjoined upon him, and shaU not depart from the court without leave, then this recognizance is to be void; other- wise of force. JOHN DOE, JOHN BROWN, JAMES MANN. Subscribed and acknowledged before me ? this 10th day of January, 1868. 5 HENBr GooDBicu, Justice of the Peace. 316 APPENDIX OF FORMS. No. 162. ANOTHBE FOEM OF A EECOGNIZANCB, STATING THE PKOCEBDINGS HAD BBPOEH THE JUSTICE AT LENGTH, UPON WHICH HE BASES HIS AUTHOEITT TO TAKE BAIL. See ante, Vol. I, p. 197. County of Rensselaer, ss: Be it remembered that John Doe, of the town of Greenbush, in said county, and Chaxles Mason, of Cohoes, in the county of Albany and State of New York, on this tenth day of January, A. D. 1868, both personally came before me Henry Goodrich, one of the justices of the peace of the said coimty of Rensselar, at the town of Greenbush, in said county, and severally and respectively acknowledged themselves each to be indebted to the people of the State of New York, that is to say, the said John Doe as principal in the sum of five hundred dollars, and the said Charles Mason as surety in the sum of five hundred dol- lars, to be levied of their respective goods and chattels, lands and tenements, to the use of the said people if default shall be made to the condition following : Whereas, James Brown, on the first day of January, A. D. 1868, before Henry Goodrich, one of the justices of the peace of the county of Rensselaer, upon his oath did charge that the said John Doe, at the toym of Greenbush aforesaid, on the 26th day of December, 1867, did [here insert the offence as sta- ted in the complaint and warranf] ; and whereas, the said John Doe having been duly apprehended and regularly brought before the said justice to answer to the said charge, and it appearing to the said justice, from the examination of the said James Brown [and of James Cv/rley] on oath in the presence of the said John Doe in regard to the said criminal charge and accusation, and from an examination of the said John Doe without oath in regard thereto (he, the said John Doe, having been previously informed by the said justice of the said crimi- nal charge and accusation made against him, and that he was at liberty to refuse to answer any question that might be put to him, and he, the said John Doe, having been allowed a reasonable time to send for and advise with counsel), and from an examination of the whole matter, that the said offence had been com- mitted, and that there was probable cause to believe the said John Doe to be guilty thereof, the said justice did thereupon order the said John Doe to enter into a recognizance with one surety, in the sum of five hundred dollars, for his appearance at the next court of oyer and terminer [or court of sesswas"], to be held in and for the said county of Rensselaer, at the court-house, in the city of Troy, in the said county of Rensselaer, to answer to any indictment to be pre- ferred against him for the said offence, and to do and receive what should by the said court be then and there enjoined upon him, and not to depart the said court without leave. Now, therefore, the condition of this obligation is such, that if the said John Doe shall personally be and appear, at the next court of oyer and terminer [or court of sessions], to be held in and for the said county of Rensselaer, at the court- house in the city of Troy, in said county, then and there to answer to any indictment to be preferred against him for the criminal charge and accusation above mentioned, and to do and receive what shall by the said court bo then and EXAMINATION OP OFFENDERS'. 817 there enjoined upon him, and shall not depart the said court without leave, then this recognizance to he void and of no effect ; otherwise to. be and remain in full force and virtue. JOHN DOE, CHA.RLES MASON. Taken, subscribed and acknowledged before me, 1 at the town of Greenbush, in said county, > this 10th day of January, A. D. 1868. / Henkt Goodrich, Justice of the Peace. No. 163. WAKRANT OP COMMITMENT TO AWAIT THE ACTION OF THE GRAND JUKT, AFTER AN EXAMINATION UPON A CHARGE FOR A FELONT, EITHER WHERE BAH- IS NOT GIVEN OR THE OFFENCE IS NOT BAILABLE BT A JUSTICE. See ante. Vol. I, p. 198. The People, f agt. V John Doe. ) County of Rensselaer, ss : To any constable of the county of Rensselaer, and to the keeper of the com- mon jail in said county, Greeting : These are to charge and command you, the said constable, in the name of the people of the State of New York, forthwith to carry and deliver into the cus- tody of the said keeper of the common jail of the county of Rensselaer the body of John Doe, this day brought before the undersigned, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, charged, upon the oath of James Brown, with having, on the 26th day of December, 1867, at the town of Greenbush, in said county [here state offence committed]. And the said justice of the peace, after having examined witnesses on oath, and the said John Doe without oath, in due form of law, touching said charge and accusation, did adjudge that the said offence had been committed, and there was probable cause to believe the said John Doe to be guilty thereof; and the said John Doe not having offered sufBcient bail for his appearance at the next court having cogni- zance of such offence, and in which he may be indicted [or the said offence not being bailable by the said justice of the peace], you, the said keeper, are hereby required to receive the said John Doe into your custody in the said jail, and him there safely keep for want of sureties, and until he shall be discharged according to law. Witness — ^Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush, in said county, this 1st day of Jan- uary, A. D. 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. 318 APPENDIX OF FORMS No. 164. , A SIMILAR FORM 'WHBRB THE EXAMINATION IS HAD BEFOEB A POLICE JlTaTIOB IN A CUT. See ante, Vol. I, p. 198. The Justices' Court of the city of STroy, and Troy Police Court. The People, agt. John Doe. County of Rensselaer, ss: To the sheriff of the county of Rensselaer, and to the capital police, and to the keeper of the common jail in said county. Greeting. These are to charge and command you, the said sheriff, and capital police, in the name of the people of the State of New York, forthwith to carry and deliver into the custody of the said keeper of the common jail of the county of Rensselaer, the body of John Doe, this day brought before the police justice of said court, charged upon the oath of James Brown, with having at the said city of Troy, on the 1st day of January, A. D., 1868, \here state the offence']; and the said police justice, after having examined witnesses on oath, and the said John Doe without oath, in due form of law touching said charge and accusation, did adjudge that said offence had been committed, and there was probable cause to believe the said John Doe to be guilty thereof; and the said John Doe, not having offered sufficient bail for his appearance at the next court, having cogni- zance of such offence, and in which he may be indicted [or the said offence not being bailable by the said police justice], you, the said keeper, are hereby required to receive the said John Doe into your custody in the said jail, and him there safely keep for want of sureties, and until he shall be discharged, according to law. Witness, Thomas J. Cornelius, Uriel Dexter and Thomas Neary, justices of [l. s.] said court, and the seal thereof. Dated at Troy, this 3d day of January, 1868. By the court, THOMAS J. JENNINGS, Clerk. No. 165. WARRANT TO RELEASE THE DEPENDANT WHERE HE HAS ENTERED INTO A RECOGNIZANCE SINCE HE WAS HELD IN CUSTODY UNDER THE WARRANT OP COMMITMENT. See ante, Vol. I, p. 200. County of Rensselaer, ss : • The people of the State of New York to the keeper of the common jail of the said county of Rensselaer, Greeting : ' COMPROMISE OP CERTAIN MISDEMEANORS, ETC. 319 Whereas, John Doe, now in your ciistody in the said jail, hy virtue of a warrant of commitment signed by Charles J. Lansing, a justice of the peace of said county [or by me], for grand larceny [or state the offence], which said war- rant is dated the 1st day of January, A. D. 1868, has this day given bail before me, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, to appear and answer to said accusation at the next criminal court having cog- nizance thereof, you are hereby reqiiired forthwith to discharge the said John Doe from your custody in said jail, unless he be detained by you therein for some other cause. Witness, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at the town of Greenbush, in said county, this 10th day of January, A. D. 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. COMPEOMISE OF CERTAIN MISDEMEANOES BEFORE INDICTMENT. No. 166. ACKyOWLEDGMENT OP SATISFACTION BY PBOSBCUTOE. See ante. Vol. I, p. 206. County of Rensselaer, ss : I, James Brown, of the town of Greenbush, in the county of Rensselaer and State of New York, do hereby acknowledge to have received of John Doe, of the city of Troy, N. Y., the sum of fifty dollars, in full satisfaction for the injury and damage done to me at the said town of Greenbush, on the 26th day of December, 1867, by the said John Doe, in assaulting and beating me, and for which assault and battery I made a complaint on oath, on the 1st day of Jan- uary, 1868, to Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, and which said complaint is now pending and undeter- mined. And I desire that no further proceeding be had thereon against the said John Doe. JAMES BROWN. County of Rensselaer, ss. : I hereby certify that on this 10th day of January, 1868,' before me person- ally came James Brown, of the town of Greenbush, in the said county, to me personally known to be the same person mentioned in and who executed the foregoing acknowledgment of satis&otion, and who acknowledged before me the due execution thereof. HENRY GOODRICH, Justice of the Peace. 820 APPENDIX OF FORMS. No. 167. ■WAEEANT TO DISCHARGE THE DEFENDANT PROM O0STODY UPON SETTLEMENT, WHEN HE IS IMPRISONED AT THE TIME. See ante, Vol. I, p. 206. Rensselaer county, ss : The people of the State of New York, to the keeper of the common jail of said county, Greeting : Whereas, James Brown, upon whose oath John Doe was charged before me, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, with having, at the town of Greenbush, in the said county of Rensselaer, on the 26th day of December, 1867, committed an assault and battery upon him, the said James Brown, and for the commission of which said assault and battery the said John Doe was by my warrant, dated January 1st, 1868, committed to your custody, has appeared before me as such justice as aforesaid, and acknowl- edged in writing that he had received full satisfaction for the injury and damage complained of, and having desired that no further proceedings be had against the said John Doe, you are hereby required, upon the receipt of this warrant by you, to discharge the said John Doe from your custody in the said jail, unless he be detained by you for some other cause than that stated in the above men- tioned warrant of commitment. Witness — Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, at the town of Greenbush, in said county, this 10th day of January, A. D. 1868. HENRY GOODRICH, [i,. s.] Justice of the Peace. No. 168. ORDER DISCHARGINa EKOOGNIZANCH OP THE PRISONER UPON SETTLEMENT OP THE CASE, WHERE THE DEPENDANT HAS BEEN HELD TO BAIL [TO BE INDORSED UPON THE RBCOGNIZANOB] . See ante, Vol. I, p. 206. County of Rensselaer, ss : The within named complainant, James Brown, having this day appeared before me, Henry Goodrich, one of the justices of the peace of the county of Rens- selaer, and acknowledged in vrriting that he had received full satisfaction of the within named John Doe for the damage and injury within complained of, and prayed that no further proceedings be had thereon against the said John Doe, I, the said justice, do hereby order this recognizance to be discharged. Witness, Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush in said county, this 10th day of January, A. D. 1868. HENRY GOODRICH, Justice of the Peace. SPECIAL SESSIONS. 321 No. 169. A WABHANT TO DISCHARGE A WITNESS FBOM OUSTODT WHO HAD BEEN COM- MITTED TO JAIL FOE KBFirSING TO ENTBB INTO A KECOGNIZANCE FOB HIS APPBABANCB, THE CASE HATING AFTBBWAKDS BEEN SETTLED. See ante, Vol. I, p. 206. County of Rensselaer, ss : The people of the State of New York to the keeper of the common jail of the said county. Greeting : Whereas, on the first day of January, A. D. 1868, Patrick T. Heagany was committed to your custody by a warrant signed by me, Henry Goodrich, one of the justices of the peace of the said county of Rensselaer, for neglecting and refusing, on being required by me, the said justice, to enter into a recogni- zance for his personal appearance at the next court of oyer and terminer [or court of sessions] to be held in and for the said county of Rensselaer, at the court house in the city of Troy, in said county, to give evidence on behalf of the people against John Doe, charged on the oath of James Brown before me, the said justice, with having, at the town of Greenbush, in said coimty of Rensselaer, on the 26th day of December, 1867, committed an assault and battery upon him, the said James Brown [or here state the offence}, it appearing to me irom the examination of the said Patrick T. Heagany, taken on oath before me, the said justice, that he was a material witness on behalf of the said people against the said John Doe, in regard to the said offence. And whereas, since the commit- ment of the said Patrick T. Heagany to your custody as aforesaid, the said James Brown has appeared before me, the said justice, and acknowledged in writing that he has received full satisfaction of the said John Doe for the injury and damage charged on oath to have been done by him as aforesaid, and has prayed that no further proceedings be had thereupon against the said John Doe. These are, therefore, to command you, on the receipt hereof, to discharge the said Patrick T. Heagany from your custody in the said jail, unless he be detained by you therein for some other cause than that expressed in the aforesaid war- rant of commitment signed by me. Witness — Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush, in the said county of Rensselaer, this 10th day of January, A. D. 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. SPECIAL SESSIONS. No. 170. STJBPCENA FOE WITNESS BEFOEB A COITET OF SPECIAL SESSIONS. See ante. Vol. I, p. 212. County of Rensselaer, ss : The people of the State of New York, by the grace of God free and inde- pendent, to A B and C D : C. p. Vol. n.— 27. 322 APPENDIX OF FORMS. You are hereby commanded and required to appear before the undersigned, a justice of the peace of said county, at his office in the town of Greenbush, in said covmty, on the 2d day of January, 1868, at ten o'clock in the forenoon of the same day, to give evidence in a case then and there to be tried between the people of the State of New York, plaintiff, and John Doe, defendant, on the part of the people [or " of the said defendant."'] Hereof fail not at your peril. Given under my hand at the town of Greenbush, in said county, this first day of January, A. D. 1868. HENRY GOODRICH, Justice of the Peace. No. 171. SITBPCENA FOB WITNESS BEPORB A POLICE JUSTICE OP A JUSTICES' COUBT IN CITIES. See ante. Vol. I, p. 212. County of Rensselaer, } The Justices' Court of the city of Troy, i The people of the State of New York, by the grace of God free and inde- pendent, to William Strong and Samuel Morris : You are hereby commanded and required to appear before the police justice of the city of Troy, at the police court-room at the court-house in said city, on the 2d day of January, 1868, at ten o'clock in the forenoon of the same day, to give evidence in a case then and there to be tried between the people of the State of New York, plaintiff, and John Doe, defendant, on the part of the people [or "of the defendant"']. Hereof fail not at your peril. Witness, Thomas Neary, Richard 0. Jennyss and William Donohue, [l. 3.] justices of said court, and the seal thereof. Dated at Troy, this first day of January, 1868. By the court. THOMAS J. JENNINGS, Clerk. No. 172. ATTACHMENT AGAINST WITNESS FOR DISOBEDIENCE OP A SUBPffiNA IN A COUBT OP SPECIAL SESSIONS. See ante. Vol I, p. 212. County of Rensselaer, ss : The people of the State of New York, by the grace of God free and inde- pendent, to the sheriff, any of his deputies, or any constable of the county of Rensselaer, Greeting: SPECIAL SESSIONS. 323 In the name of the people of the State of New York, you are hereby com- manded to attach Richard Hurley, and bring him before the undersigned, a justice of the peace of said county, at his ofBce in the town of Greenbush, forthwith, to testify the truth, according to his knowledge, in an action now pending before the said justice of the peace, between the people of the State of New York, plaintiff', and John Doe, defendant, on the part of the people [or of the defendanf], and also to answer all such matters as shall be objected against him, for that the said Richard Hurley haying been duly subpoenaed to attend the said trial, has neglected or refused to attend in conformity to such subpoena ; and have you then and there this precept. Witness — Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush, in said county, the 2d day of January, A. D. 1868. HENRY GOODRICH, Justices of the Peace. No. 173. ATTACHMENT AGAINST WITNESS FOE DISOBEDIENCE OP A SUBPCENA EETUENABLB BBFOEB A POLICE JUSTICE IN CITIES. See ante, Vol. I, p. 212. County of Rensselaer, ) The Justices' Court of the city of Troy, 3 The people of the State of New York, by the grace of God free and inde- pendent, to the Capital police. Greeting : In the name of the people of the State of New York, you are hereby com- manded to attach Richard Hurley, and bring him before the police justice of the city of Troy, in said county, at his court room in said city of Troy, forthwith, to testify the truth, according to his knowledge, in an action now pendiag before the said police justice, between the people of the State of New York, plaintiff, and John Doe, defendant, on the part of the people [or of said defendanf], and also to answer aU such matters as shall be objected against h im, for that the said John Doe, having been duly subpcenaed to attend the trial, has neglected or refused to attend in conformity to such subpoena; and have you then and there this precept. Witness, Uriel Dexter, Thomas Neary and Richard C. Jennyss, [l. s.] justices of said court, and the seal therof. Dated at Troy this 1st day of January, 1868. By the court. THOS. J. JENNINGS, Clerk. 324 APPENDIX OF FORMS. No. 174. VENIRE POE jnET IN COUBT OF SPECIAL SESSIONS. See ante, Vol. I, p. 210. Rensselaer county, ss: The people of the State of New York, by the grace of God, free and inde- pendent, to the sheriff of the county of Rensselaer, or any of his deputies, or any constable of said county. Greeting : You are hereby commanded to summon twelve good and lawful men, qualified to serve as jurors, and not exempt from such service by law, and who are in no wise of kin to either James Brown or John Doe, to be and appear before the undersigned, a justice of the peace of the said county, acting as a court of special sessions, at his office in the town of Greenbush, in said coimty, on the 2d day of January, 1868, at ten o'clock in the forenoon of the same day, to make a jury for the trial of the said John Doe on a charge of having com- mitted an aSsault and battery upon the said James Brown, whereof complaint on oath has been made by the said James Brown to the undersigned, Henry Goodrich, justice of the peace ; and have you then and there this precept, together with a list of the jurors by you summoned. Witness — Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at the town of Greenbush, in said couuty, this 1st day of January, A. D. 1868. HENRY GOODRICH, Justice of the Peace. No. 175. VENIKB POR JURY BBPOEE POLICE JUSTICE IN CITIES. See ante "Vol. I, p. 210. County of Rensselaer, ) The Justices' Court of the city of Troy, 3 ®®- The people of the State of New York, by the grace of God free and inde- pendent, to the Capital police. Greeting : You are hereby commanded to summon twelve good and lawful men of the city of Troy, qualified to serve as jurors, and not exempt from such service by law, and who are in no wise of kin to either James Brown or to John Doe, to be and appear before the police justice of the city of Troy, at his court room, at the court house in said city, on the 2d day of January, 1868, at ten o'clock in the forenoon of the same day, to make a jury for the trial of the said John Doe on a charge of petit larceny, whereof complaint on oath has been made by the said James Brown to this court ; and have you then and there this precept, together with a list of the jurors by you summoned. SPECIAL SESSIONS. 325 Witness, John L. Flagg, Thomas J. Cornelius and Franklin J. Par- [l. s.] menter, justices of the said court, and the seal thereof. Dated at Troy this 1st day of January, 1868. By the court. THOMAS J. JENNINGS, Clerk. No. 176. MDTtJTES TO BE KEPT BY A COURT OF SPECIAL SESSIONS. See ante. Vol. I. Before Henry Goodrich, a justice of the peace of the county of Eensselaer. The People, &c. ^ agt. V John Doe. J Rensselaer Comity, ss : Minutes of a court of special sessions, held at the town of Greenhush in the said county, before Henry Goodrich, a justice of the peace of said county, for the trial of John Doe, charged on the complaint of James Brown, with having, at the said town of Greenhush, on the 1st day of January, 1868, com- mitted an assault and battery upon him the said James Brown. 1868, January 10th. — The court met and opened at the office of the under- signed in said town of Greenhush, at 10 A. m. The complainant and prisoner were both present. The said John Doe was arraigned and the warrant of arrest read to him [or if a complaint has been made in writing, " the complaint was read to him"], whereupon the said John Doe plead not guilty thereto, and demanded that he he tried by a jury; a venire was issued and the same dehvered to George Benedict, one of the constables of the said covmty, returnable forth- with ; the venire was returned by the constable, and the following jurors were sworn, viz: Oliver Twist was called, sworn, and examined as a witness on behalf of the people, and testified as follows : [insert his testimony. 1 Arthur Pendennis was called, sworn and examined as a witness on behalf of the said defendant John Doe, and testified as follows : [insert his testimony.'] [Here insert the evidence of the other witnesses, objections made by counsel to evidence, the decisions of the court thereon, the exceptions taken by counsel, motions to dismiss proceedings and the other proceedings had and taken on the trial.] The jury having heard the proofs and allegations of the parties, retired, imder the charge of George Benedict, a constable of said county, who was duly sworn. They shortly returned into court, and rendered a verdict against the prisoner of guilty of assault and battery. Whereupon the said court of special sessions did then and there adjudge. 326 APPENDIX OF FORMS. that the said John Doe shoiild pay a fine of ten dollars, and be imprisoned in the common jail of said county of Rensselaer, for the period of twenty days. HENRY GOODRICH, Justice of the Peace. No. 177. EECOBD OP CONVICTION IN A COURT OP SPECIAI. SESSIONS HELD BT A JUSTICE OP THE PEACE. See ante, Vol. I, p. 218. Before Henry Goodrich, a justice of the peace in and for the county of Rensselaer. The People agt. John Doe. Be it remembered that the aboye named defendant, having been brought before the above named justice of the peace, charged on oath of James Brown with having, on the 1st day of January, 1868, at the town of Greenbush, in the county of Rensselaer aforesaid, "stolen, taken and carried away from the said James Brown one silver watch of the value of ten dollars, of the goods, chattels and property of the said James Brown," and having been required to be tried by the above named Henry Goodrich, justice of the peace, according to the statute in such case made and provided, for and on the charge aforesaid; where- upon the said Henry Goodrich, justice of the peaee, held a court for the trial of the said John Doe, at the town of Greenbush aforesaid, on the 2d day of Jan- uary, 1868 ; and the said charge was stated to the said John Doe, who then and there pleaded not guilty to the charge aforesaid, and was tried by the said Henry Goodrich, justice of the peace, then holding a court for the trial of the said John Doe, and, after hearing the testimony on oath, the said Henry Goodrich, justice of the peace, did thereupon adjudge and determine the said John Doe was guilty of the said charge, and did adjudge and determine that the said John Doe should pay a fine of ten dollars, or be confined in the common jail of the county of Rensselaer for the period of ten days, unless discharged by due course of law. I, Henry Goodrich, one of the justices of the peace of the county of Rens- selaer, do hereby certify that the foregoing is a record of the conviction of John Doe upon the charge of [here state the offence'] had before me as such justice, holding a court of special sessions at the town of Greenbush, in said county, on the 2d day of January, 1868. Dated January 2d, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. SPECIAL SESSIONS. 327 No. 178. ANOTHBB PEECEDENT FOB A EECOBD OF CONYICTION BEFOBE A COCBT OF SPECIAL SESSIONS. See ante, Vol. I, p. 218. County of Rensselaer, ss : I, the undersigned, a justice of the peace of said county, do hereby certify that at a court of special sessions duly held at the office of the undersigned, in the town of Greenbush, in said county, before the undersigned, on the 2d day of January, A. D. 1868, for the trial of John Doe, charged on the oath of James Brown, before the undersigned, Henry Goodrich, a justice of the peace of said county, then and there holding a eourt of special sessions, with having, on the first day of January, at the town of Greenbush, in the county of Rensselaer aforesaid, " stolen, taken and carried away from the said James Brown one silver watch of the value of ten dollars, of the goods, chattels and property of the said James Brown, and having been required to be tried by the undersigned, Henry Goodrich, justice of the peace, then and there holding such court of special sessions according to the statute in such case made and provided, for and on the charge aforesaid, whereupon the undersigned justice of the peace held a court of special sessions for the trial of the said John Doe, at the office of the undersigned, in the town of Greenbush aforesaid, and the said charge was stated to the said John Doe, who then and there pleaded not guilty to the charge afore- said, and was tried by the undersigned justice of the peace, then holding said court of special sessions for the trial of the said John Doe; and after hear- ing the testimony on oath, the undersigned justice of the peace, as such court of special sessions, did thereupon adjudge and determine the said John Doe was guilty of the said charge, and did adjudge and determine that the said John Doe should pay a fine of ten doUars or be imprisoned in the common jail of the said county of Rensselaer for the period of ten days. I, Henry Goodrich, &c. [add certificate as in the preceding form.'] No. 179. EECOBD OF CONVICTION IN A COUBT OP SPECIAL SESSIONS, HELD BT A POLICE JUSTICE IN A CITY. See ante. Vol. I, p. 218. The Justices' Court of the city of Troy, and Troy Police Court. Before Thomas Neary, police justice of the city of Troy, and justice of the peace in and for the county of Rensselaer. The People "i agt. > ;Joltn Doe. j Be it remembered that the above named defendant, having been brought before the above named police justice, charged on oath of James Brown with 328 APPENDIX OF FORMS. having, on the 1st day of January, 1868, at the city of Troy, in the county of Rensselaer aforesaid, "stolen, taken and carried away from the said James Brown one silver watch, of the value of ten dollars, of the goods, chattels and property of the said James Brown," and having heen required to be tried by the above named Thomas Neary, police justice, according to the statute in such case made and provided, for and on the charge aforesaid ; whereupon the said Thomas Neary, justice, held a court for the trial of the said John Doe, at Troy aforesaid, on the 2d day of January, 1868 ; and the said charge was stated to the said John Doe, who then and there pleaded not guilty to the charge aforesaid, and was tried by the saic^ Thomas Neary, police justice, then holding a court for the trial of the said John Doe, and after hearing the testimony on oath, the said Th'omas Neary, police justice, did thereupon adjudge and determine the said John Doe was guilty of the said charge, and did adjudge and determine that the said John Doe should pay a fine of ten dollars, or be confined in the common jail of the comity of Rensselaer for the period of ten days, imless discharged by due course of law. Rensselaer county. City of Troy, I, Thomas J. Jennings, clerk of the justices' and poUce court of said [l. s.] city, do certiiy that the foregoing is a record of conviction had before the said poUoe court, and that the seal affixed is the seal of the said justices' and police court. THOMAS J. JENNINGS, Clerk of the Justices' and Police Court. Dated at Troy, this 3d day of January, 1868. No. 180. KBCOED OP CONVICTION UPON JUET TEIAL, IN A COUET OP SPKCIAI, SESSIONS. See ante. Vol. I, p. 218. Before Henry Goodrich, a justice of the peace, in and for the county of Rensselaer. The People, &c. "l agt. ^ John Doe. J Rensselaer county, ss : , Be it remembered, that the above named defendant, having been brought before the above named justice, charged on oath of James Brown with having on the 1st day of January, 1868, at the town of Greenbush in said county [ftere state the chargel, and having been required to be tried by the above named jus- tice according to the statute in such case made and provided, for and on the charge aforesaid ; whereupon the said justice held a court for the trial of the said SPECIAL SESSIONS. S29 John Doe, at Greenbush, on the 2ii day of January, 1868 ; and the said charge was stated to the said John Doe, who then and there pleaded not guilty to the charge aforesaid, and demanded to be tried by a jury; whereupon a venire was issued according to the statute in such case made and provided, and a jury duly and legally summoned, drawn, tried and sworn, and the said jury having sat togeth^ and heard the proofe and allegations in the case, which were delivered in pubUc and in the presence of the accused, and after healing the said proo& and allegations the said jury retired, and were kept together in a convenient place, under the charge of a constable duly sworn for that purpose, until they had agreed upon a verdict ; whereupon the said jury when they had agreed upon their verdict came into the said court and delivered the same publicly, and by such verdict they found the said John Doe guilty of the offence wherewith he was charged as aforesaid;, and the said justice did thereupon adjudge and determine the said John Doe was guilty of the. said charge, and did thereupon sentence him, the said John Doe, to be confined in the common jail of the said county of Rens- selaer, for the period of thirty days, unless discharged by due course of law. I, Henry Goodrich, one of the justices of the peace of the county of Rens- selaer, do hereby certify that the foregoing is a record of the conviction of John Doe, upon the charge of [gfoie Che offence], had before me as such justice, holding a court of special sessions at the town of Greenbush in said county, on the 2d day of January, 1868. Dated, January 2d, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 181. WAKEANT OF COMMITMENT OX MITTIMUS AFTEK CONVICTION BT A COUBT OF SPECIAL SESSIONS. See ante. Vol. I, p. 217. The People agt. John Doe. County of Rensselaer, ss : To the sheriff of the county of Rensselaer or any constable of said county, and to the keeper of the common jail of said county. Greeting: Whereas, at a court of speciri- sessions held this day at the ofBce of Henry Goodrich, at the town of GreenbuBh, county of Rensselaer, before Henry Good- rich, a justice of the peace of said county, for the trial of John Doe, charged on the oath of James Brown before the said justice, with having on the first day of January, 1868, at the town of Greenbush, in the county of Rensselaer aforesaid, " stolen, taken and carried away from the said James Brown [or from Sarah BromnA one silver watch of the value eftendollars, of the goods, chattels amd property C. p. Vol. n— 28. 330 APPENDIX OF FORMS. of the said James Brown [or of the said Sarah Brown]," and having been required to be tried by the above-named justice, according to the statute in such case made and provided, for and on the charge aforesaid; whereupon the said justice did hold a court for the trial of the said John Doe, at the town of Greenbush aforesaid, on the second day of January, 1868, and the said charge was stated to the said John Doe, who then and there pleaded not guilty thereto, and was then and there tried on said charge by the said justice, who, after hearing the testimony on oath relative to said charge, did thereupon adjudge and determine the said John Doe was guilty thereof; the said John Doe was thereupon, by the judgment of said court, duly convicted of the offence aforesaid ^ and whereas, upon such conviction, the said court did adjudge and determine that the said John Doe should pay a fine of twenty dollars or be confined in the common jail of the county of Rensselaer, at hard labor, for the term of twenty days. • These are, therefore, to command you forthwith to convey and deliver the said John Doe to the keeper of said jail ; and you, the said keeper, are hereby commanded to receive the said John Doe into your custody in the said jail, and him there safely keep until the expiration of the said term, or until the said John Doe shall be thence discharged by due course of law. Witness my hand (or my hand and seal) this second day of January, A. D. 1868. HENRY GOODRICH, Justice of the Peace. No. 182. WAKEANT OF COMMITMEIfT OB MITTIMCTS, AFTEB CONVICTION UPON A TRIAL BT JUBT IN A COUET OF SPECIAL SESSIONS. See ante. Vol. I, p. 217. The People, &c. ^ agt. V John Doe. 3 County of Rensselaer, ss : To the sheriff or any of the constables of the county of Rensselaer, and to the keeper of the common jail of said county. Greeting : Whereas, at a court of special sessions, held this day at the office of the undersigned, in the town of Greenbush iathe county of Rensselaer, before Henry Goodrich, a justice of the peace of said county, for the trial of John Doe, charged on the oath of James Brown before the said justice, with having on the first day of January, 1868, at the town of Greenbush in the county of Rens- selaer aforesaid [here state the offence], and having been required to be tried by the above-named justice, according to the statute in such case made and provided, for and on the charge aforesaid; whereupon the said justice did hold a court for the trial of the said John Doe, at Greenbush aforesaid, on the 2d day of January, 1868, and the said charge was stated to the said John Doe, who then and there pleaded not guilty thereto, and demanded to be tried by a jury ; whereupon a SPECIAL SESSIONS. 331 venire was issued according to the statute in such case made and provided, and a jury duly and legally summoned, drawn, tried and sworn, and the said jury having sat together and heard the proofe and allegations in the said case, which were delivered in public and in the presence of the accused, and after hearing the said proofs and allegations retired, and were kept together in a convenient place, under the charge of a constable duly sworn for that purpose, until they had agreed upon a verdict; whereupon the said jury when they had agreed upon a verdictj came into the said court and delivered the same publicly, and by such verdict they found the said John Doe guilty of the offence wherewith he was charged as aforesaid ; and whereas, the said justice did thereupon adjudge and determine the said John Doe was guilty thereof; and the said John Doe was thereupon, by the judgment of said court, duly convicted of the offence afore- said ; and whereas, upon such conviction, the said court did adjudge and deter- mine that the said John Doe should pay a fine of twenty dollars, or be confined in the common jail of the county of Rensselaer, at hard labor, for the term of twenty days. These are therefore to command you forthwith to convey and deliver the said John Doe, to the keeper of said jail; and you, the said keeper, are hereby com- manded to receive the said John Doe into your custody in the said jaU, and him there safely keep until the expiration of the said term, or imtil the said John Doe shall be thence discharged by due course of law. Witness the hand and seal of the said Henry Goodrich, one of the justices of the peace of the coimty of Rensselaer, at the town of Greenbush in said county, this 2d day of January, 1868. HEXRY GOODRICH, [l. s.] Justice of the Peace. Xo. 183. MITIIJHTS AETEE CO^TICTION■ IN A COUfiT OP SPECIAL SESSIONS, HELD BT A POLICE JOSTICE IN A CITY. ' See ante. Vol. I, p. 217. The Justices' Court of the city of Troy, > and Troy Police Court. 5 The People "i agt. > John Doe. 5 County of Rensselaer, ss : To the sheriff of the county of Rensselaer, or any of his deputies, or the . capital police, and to the keeper of the common jail of said county, Greeting : Whereas, at a court of special sessions, held this day at the police court of the city of Troy, in the couilty of Rensselaer, before Thomas Neary, police jus- tice of said city, for the trial of John Doe, charged on the oath of James Brown, before the said justice, with having, on the first day of January, 1868, at the city of Troy, in the county of Rensselaer aforesaid [here state the offence}, and 332 APPENDIX OP FORMS. having been required to be tried by the above-named justice, according to the statute in such case made and provided, for and on the charge aforesaid ; where- upon the said justice did hold a court for the trial of the said John Doe, at Troy aforesaid, on the second day of January, 1868, and the said charge was stated to the said John Doe, who then and there pleaded not guilty thereto, and was then and there tried on said charge by the said justice, who, after bearing the , testimony on oath relative to said charge, did thereupon adjudge and determine the said John Doe was guilty thereof; the said John Doe was thereupon, by the judgment of said oourtj duly convicted of the offence aforesaid; and whereas, upon such conviction, the said coxfft did adjudge and determine that the said J aim Doe should pay a. fine of ten dollars, or be confined in the common jail of the county of Eensselaer, at hard labor, for the term of ten days. These are therefore to command you forthwith to convey and deliver the said John Doe to the keeper of said jail ; and you, the said keeper, are hereby commanded to receive the said John Doe into your custody iia the said jail, and him there safely keep until the expiration of the said term, or until the said John Doe shall be thence' discharged by due course of law. Witness, Uriel Dexter, Thomas Neary and Biohard C. Jennyss, jus- [e. s,] tioes of the said court, and the seal thereof. Dated at Troy, this second da^ of January, 1868. By the court. THOMAS J. JENNINGS, Clerk. CERTIOEAEI TO SPECIAL SESSIONS. No. 184. ArFlDAVIT FOB CBRTIORAEI TO COUBT OF SPECIAL SESSIONS. See ante. Vol. I, p. 227. The People of the Stata of New York J agt. [ John Doe. > Rensselaer county, ss : John Doe, of the town of Greenbush, in said county of Rensselaer, being duly sworn, says that on the first day of January, 1868, he was arrested by George Benedict, one of the constables of said county, and taken before Henry Goodrich, one of the justices of the peace of said county, at the ofSce of said Goodrich, in the town of Greenbush, and was thereupon, to wit : at the time and place last afor«said informed by said Goodrich that he was arrested by virtue of a criminal warrant issued by the said Goodrich as such justice as aforesaid, upon a eoinplajnt theretofore made by one James Brown^ charging this deponent with havjngi at the town of Greenbush aforesaid, on tiie 27th day of January, 1868j been guilty of an assault and battery upon the said J«mes Brown. De- ponent fwther says that he thereupon plead not guilty, to the said criminal charge or accusation, and that the issue so joined afterwards came on to be tried CERTIORARI TO SPECIAL SESSIONS. 833 before the said Henry Qoodrich, justice of the peace as aforesaid, acting as a court of special sessions at the town of Greenbush aforesaid, on the third day of January, 1868. That upon the said trial this deponent was convicted by the said justice acting as sudi. court of special sessions as aforesaid, of having been gulilty of the said offence of assault and battery as stated in said warrant, and was thereupon, to wit, on the day and year last aforesaid, sentenced by the said justice acting as such court of special sessions as aforesaid, t me, this 15th day of January, 1868. ) G. Robertson, Jr., Rensselaer County Judge. [^Indorsement on above recognizance.'] I hereby approve of the foregoing recognizance as to its form and manner of execution, and the sufficiency of the sureties therein named. Dated January 10th, 1868. G. ROBERTSON, Jr., Rensselaer County Judge. 336 APPENDIX OF FORMS. No. 188. OBDfiB TO BELBASB FBISOIfBK UFOK THB BXEOUTION OP THB FOBEOOIKS JLECOGtHaZASCS. See ante. Vol. I, p. 230. To the keeper of the common jail of the county of Rensselaer : I, Charles R. Ingalls, one of the justices of the supreme court of the State of New York, do hereby certify that a writ of certiorari, removing into the court of sessions of the county of Rensselaer, the proceedings and judgement had upon the conviction of John Doe, upon a charge of assault and battery upon James Brown, which said conviction was had before a court of special sessions held by Henry Goodrich, one of the justices of the peace of the county of Rensselaer, at th^ town of Greenbush in said county, on the 3d day of January 1868, has this day been allowed by me. And I also further certify that the recognizance directed to be given in such cases by the statute, in such case made aad provided, has been furnished by the said John Doe with sufficient stireties ; you are there- fore hereby directed to forthwith discharge the said John Doe from your custody, unless he be detained therein for some other reason than the warrant of commit- ment issued upon the aforesaid conviction, and this shall be a sufficient warrant to you therefor. Dated Troy, January 5th, 1868. 0. R. INGALLS, Supreme Conrt Justice. No. 189. AFFIDAVIT FOB WKIT OF CBETIORAEI TO REVIEW .CONVICTION HAD BEFOKH A COURT OF SPECIAL SESSIONS HELD BY A POLICE JUSTICE IW A CITY. In the Justices' Court of the city of Troy. The People of the State of New York, 1 William Snyder. J County of Rensselaer, ss : William Snyder^ of the town of Greenbush, in said county of Rensselaer, being duly sworn, doth depose and say that on or about the 26th day of Decem- ber, 1867, he was arrested upon a criminal warrant issued out of and from the justices' court of the city of Troy, in said county, signed by Thomas J. Jennings, the clerk of said court, and the seal thereof, upon the complaint of Thomas Kin- ney, charging deponent with having, on or about the 25th day of September, 1867, at the city of Troy in said county, committed the offence of assault and battery upon said Thomas Kinney, upon wlfich said warrant deponent was CERTIORARI TO SPECIAL SESSIONS. 337 brought before Thomas Neary, Esq., then a justice of said court, and claiming to act as police magistrate thereof, and as a court of special sessions within and for said county of Rensselaer. That on the 26th day of December, 1867, deponent -was tried before said Justice Neary, claiming to act as such police magistrate and court of special sessions, upon the said charge above set forth, upon which he was so arrested as aforesaid, and convicted thereof, and sentenced to be imprisoned thirty days in the common jail of the county of Rensselaer. And this deponent further states, that on his being arrested and brought before said Justice Neary, and before any witnesses had been sworn or examined upon the trial, and upon deponent being arraigned upon sa,id warrant, deponent, to wit, on the 26th day of December, 1867, at the police court-room, in the court-house of said city of Troy, where said Justice Neary was then and there sitting, and claiming to act as such court of special sessions, did not request to be tried before said Justice Neary, then and there claiming to act as su(^ court of special sessions, but objected to such trial, and offered to ^ve, and did then and there offer and tender good and suffi- cient bail, upon the warrant aforesaid, for the appearance of this deponent at the next court having cognizance of the offence therein charged, to be held in the county of Rensselaer, where the said offence was aJleged to have been commit- ted, to answer the said charge, and any indictment for the said charge or com- plaint that might be found against the prisoner, but that the said Justice Neary, then and there claiming to act as such court of special sessions as aforesaid, held and decided that he would, and did, refuse to take or accept of bail, and held and decided that he would proceed with the trial of deponent, to which ruling and decision the counsel for deponent did then and there duly except, and the said Justice Neary, as such court of special sessions, did thereupon proceed with said trial, and convict and sentence deponent as aforesaid. Whereupon the counsel for deponent upon said trial did then and there, and before the said Justice Neary, claiming to act as such court of special sessions as aforesaid, had rendered said judgment and pronounced said decision, ask the said Justice Neary, then and there claiming to act as such court of special ses- sions, to dismiss the said warrant and the said prooceedings thereon against deponent, upon the ground that said Justice Neary had no authority to proceed further, either to conviction or sentence, which the said Justice Neary, then and there claiming to act as such court of special sessions as aforesaid, refiised to do, and held and decided that he would not dismiss said warrant and the proceed- ings thereon, to which ruling and decision the said counsel for deponent upon said trial then and there duly excepted. Wherefore deponent, in pursuance of the provisions of the statute in such case made and provided, hereby makes an appUcation for a writ of certiorari to remove into the court of sessions of the county of Rensselaer the conviction so had as aforesaid of deponent, before said Justice Neary, claiming to act as such court of special sessions as aforesaid. WILLIAM SNYDER. Subscribed and sworn before me, this P 26th day of December, 1867. S Edwin L. Cole, Commissioner of Deeds, Troy, N. Y. C. p. Vol. n.— 29. 338 APPENDIX OF FORMS. No. 200. WRIT OF CEKTIORABI TO RBYIBW CONVICTION HAD BEFORE A COURT OP SPECIAL SESSIONS HELD BT A POLICE JUSTICE IN A CITT. See ante. Vol. I, p. 227. The people of the State of New York, to Thomas Neary, Esq., one of the justices of the justices' court of the city of Troy, acting as a police [l. s.] magistrate and court of special sessions, and to Thomas J. Jennings, clerk of said court, Greeting : We having been informed that "William Snyder of the town of Greenhush, was lately in a court of special sessions held before you, the said Thomas Neary, convicted of assault and battery, and being willing for certain causes to be certi- fied of said conviction and of the complaint, proceedings and judgment againtt the said William Snyder, do command you that the said complaint, proceedings, conviction, sentence and judgment with all things touching the same by what- ever name the same may be called therein, you send to our justices of our court of sessions to be held in and for the county of Rensselaer, distinctly and plainly under your hand and seal, and that you likewise cause this writ and the affldavit delivered by you therewith, and your return to be filed in the office of the Rens- selaer county clerk within twenty days after the service of this writ. Witness, Hon. G. Robertson, Jr., Rensselaer county judge, at the city of Troy, on the 10th day of January, 1868. J. THOMAS DAVIS, Clerk. T. S. Banker, Attorney. (^Indorsement upon the writ.) I certify that the within writ of certiorari was allowed this 10th day of January, 1868, by me upon the affidavit heretd annexed. GILBERT ROBERTSON, Jr., Rensselaer County Judge. No. 201. RETURN TO WRIT OF CERTIORARI TO A COURT OP SPECIAL SESSIONS. See ante, Vol. I, p. 228. County of Rensselaer, ss. The undersigned, a justice of the peace within and for the said county of Rensselaer, named in the annexed writ, hereby certifies and returns to the court of sessions of the county of Rensselaer, that, on the 1st day of January, 1868, 'John Doe was brought before the undersigned as such justice as aforesaid, upon a criminal warrant issued by the undersigned as a justice of the peace of said county of Rensselaer, charged vrith assault and battery, upon the complaint on oath and in writing of James Brown (copies of which said complaint and war- rant are hereto annexed, marked respectively "A" and "B"), and the said John Doe thereupon elected and required to be tried for said alleged ofience by a court of special sessions in said county. The undersigned further returns that, CERTIORARI TO SPECIAL SESSIONS. 339 on the 3d day of January, 1868, at the town of Greenbiish, in said county, the undersigned held a court of special sessions for the trial of the said John Doe, upon the charge aforesaid, and caused the said John Doe to be brought before him for trial for the ofifence specified in said complaint, and the charge was then and there distinctly read to him, and he was required to plead thereto ; where- upon the said John Doe plead not guilty to the said charge, which plea the said court entered on his minutes. The undersigned, as such court, thereupon pro- ceeded to try the said issue, and the following proceedings were thereupon had, to wit : James Brown, the compl&.inant, was called, sworn and examined as a wit- ness upon the part of the prosecution, and testified as follows : \_Here insert the evidence given by the witness ; the objections made to receiving testimony ; the rviings thereon, and exceptions thereto, and aU the proceedings had upon the trial.'} And after hearing the proofs and allegations in the case as above, the under- signed, holding such court of special sessions as aforesaid, foimd and determined that the said John Doe was guilty of the offence charged in said complaint, and that he should be imprisoned in the common jail of the county of Rensselaer for the term of thirty days. A copy of the record of conviction and judgment of the said court of special sessions is hereto annexed, marked "C." In witness whereof I have hereunto set my hand and seal this 8th day of January, 1868. HENRY GOODRICH, [t,. s.] Justice of the Peace. No. 202. BETUEN TO WBIT OP CBRTIOEARI TO SPECIAL SESSIONS, WHEBE THE TBIAL WAS HAD BEFORE A JUBT. See ante. Vol. I, p. 228. Rensselaer county, ss : The undersigned justice of- the peace named in the annexed writ, hereby certifies and returns to the court of sessions of Rensselaer county, that John Doe of said county, was on the 1st day of January, 1868, arrested and brought before the undersigned, as such justice as aforesaid, by virtue of the war- rant hereto annexed and marked "A," which was issued upon the complaint on oath and in writing of James Brown, which is also hereto annexed, marked "' B," and that the said John Doe, after having been required by him, omitted for twenty-four hours thereafter to give bail for his appearance at the next criminal court having cognizance of said offence, and thereupon the undersigned on the 3d day of January, 1868, at the town of Greenbush in said county of Rensse- laer, duly organized a court of special sessions for the trial of the said John Doe, for the offence specified in said complaint and warrant, and the said court having been organized, the undersigned caused the said John Doe to be brought before him for trial and the charge made against the said John Doe was then and there distinctly read to him, and he was required to plead thereto; and the said John 340 APPENDIX OF FORMS. Doe plead n6t guilty thereto, which plea the said court entered on Ms minutes. Thi3 coanBel for the said John Doe, then moved that the prisonier be discharged, on the -ground that [hefe state the grounds]. The motion was denied and the prisoner's counsel duly excepted thereto. The said John Doe thereupon demanded to be tried by a jury, and a yenire was issued according to the statute in such case made and provided, and a jury duly and legally summoned, drawn, tried a,nd sworn, and the said jury sat together and heard the proofs and allega- tions in the case, which were delivered in public and in the presence of the defendant. John Myers was offered as a witness on the part of the people, who, being duly sworn and examined, testified as follows : [Here insert the testimony of the imtnesses, the objections, rulings and exceptions, and various proceedwgs had on the trial.] The foregoing is all' the testimony which was given upon the trial of said John Doe upon the criminal charge aforesaid. The prisoner's counsel then moved to have the prisoner discharged upon the ground that [here state the ground]. The motion was denied, and the prisoner excepted to such denial. The case was then submitted to the jury, who, after hearing the said proofe and allegations, retired under the charge of a constable duly sworn for that purpose, until they had agreed upon their verdict j and the said jury, when they had agreed upon their verdict, came into said court and delivered the same publicly, and by^such verdict they found the said John Doe guilty of the offence whereof he was charged as aforesaid. Whereupon the said court did adjudge and order that the said John Doe should pay a fine of thirty dollars or be imprisoned in the common jail of the county of Eensselaer for the period of twenty days. All of which the undersigned send as by the said writ he is commanded. Dated at Greenbush, in said county of Rensselaer, January 10, 1868. HENRY GOODRICH, [l. s.] Justice of the Peace. No. 203. OEDER TO FILE RETURN TO WRIT OP CERTIORARI OR SHOW CAUSE. See ante, Vol. I, p. 228. At a court of sessioiis held in and for the bounty of Rensselaer, at the court- house, in the city of Troy, on the'Mt day of Janua^y,^1868. PreseUt — Hon. Gilbert Robbr^tson, Jr., Rensselaer County Judge. WiLLlAM R m Freest, ) ^^^^^^ ^^ j^^ g^^.^^^_ William Moul, j The Peojile ^ vs, ■> John Dcie. J On reading and flliUg the iiffidavit of R. A, Lbttridge, district attorney, and the certificate of the clerk of Rensselaer county, together with the papers on file in this matter with the clerk of this court, and on motion of R. A. Lottridge, district attOSf ney, ordered, that Henry Goodrich, the justice before whom the conviction and CERTIORAfil TO SPECIAL SESSIONS. 341 sentence herein was had, file with the clerk of this county, within five days from the service of a copy of this order upon him, his return to the writ of certiorari allowed hy John Moran, recorder of the city of Troy, remoying the complaint, proceedings and judgment agadnst said John Doe to the court of sessions ; and in default thereof it is further ord:M'ed that the said Henry Goodrich show cause hefore this court, at the court-house in the city of Troy, on the 26th day of January, 1868, why he should not he .punished for a contempt of court. No. 204. NOTICE OF AKGUMENT OP EETUKN TO WRIT OP CEETIQRABI. See ante. Vol. I, p. 229. Rensselaer Sessions. The People of the State of New York, defendants in error, agt. John Doe, plaintiff in error. To Moses Warren, attorney for John Doe, plaintiff in error. Please to take notice, that the writ of certiorari and return thereto in the above cause will be brought on for argument before this court, at the next term thereof, to be held at the court house, in the city of Troy, on the 2d Monday of April, 1868, at the opening of the court on that day, or as soon thereafter as counsel can be heard. Dated the 20th day of March, 1868. Tours, &c., R. A. LOTTRIDGE, District attorney of Rensselaer county, and attorney for defendants in error. No. 205. OBDEB SBTTUrO ASIDE CONVICTION HAD IN A OOUET OP SPECIAL SESSIONS. See ante, Vol. I, p. 231. At a court of sessions held in and for the county of Rensselaer, at the court-house in the city of Troy, on the 15th day of January, A. D. 1868. Present— Hon. Go-bbbt Robeetson, Jr., Rensselaer County Judge. John H. Bonestbel, Esq., 3 .. ,. - . , o • Jabed a. Wells, Esq., \ ^'^"'^ "^ *^«' S^^""^" The People of the State of New York ^ agt. > John Doe. ) The defendant, John Doe, having been convicted of an assault and battery upon one James Brown, on the 26th day of Decemoer, 1867, at the town of 342 APPENDIX OP FORMS. Greenbush, in said covmty, and sentenced to pay a fine of fifty dollars, or be imprisoned in the common jail of the county of Rensselaer for the period of twenty days, at a court of special sessions held for that purpose at the town of Greenbush, in said county, on the 27th day of December, 1867, by and before Henry Goodrich, Esq., a justice of the peace of said county of Rensselaer, and a -writ of certiorari having been duly granted by the Hon. Charles R. Ingalls, one of the Justices of the Supreme Court of the State of New York [or by the Hon. Cfilbert Robertson, jr., JRensselaer County Judged, removing such conviction into this court, and the said justice, before said conviction was had, having made and filed his return thereto, and after hearing R. A. Parmenter, of counsel for the said defendant, John Doe, and R. A. Lottridge, Esq., district attorney, on behalf of the people, and due deliberation being had thereon, it is ordered that such trial, conviction and sentence be, and the same are hereby, reversed, dis- missed, set aside, and altogether held for nothing, and that the said defendant, John Doe, be, and he is hereby, discharged. No. 206. AFFIDAVIT TO QUASH WRIT OP CBRTIOBAHI. See ante, Vol. I, p. 232. Rensselaer Sessions. The People, 1 agt. r John Doe. J Rensselaer county, , ss : R. A. Lottridge, bemg duly sworn, says, that he is the district attorney of said county of Rensselaer. That, on the 26th day of August, 1867, the said John Doe was, in a court of special sessions, held by John Butler, at the town of Greenbush in said county, convicted of the offence of assault and battery ; that on the 27th day of August, 1867, a writ of certiorari was allowed by Hon. Gilbert Robertson, jr., Rensselaer county judge, removing the complaint, proceed- ings, conviction and judgment against the said John Doe to the court of sessions of Rensselaer county, as appears from the records and files of the clerk of Rens- selaer county, and of the said court of special sessions. Deponent further says, that no notice for the argument of the return to said writ of certiorari ha,s ever been served on this deponent, as such district attorney as aforesaid. Deponent further says, that no certified copy of the said writ of certiorari, nor of the afloidavit upon which the said writ was allowed, nor of the return CERTIORARI TO SPECIAL SESSIONS. 343 thereto, has heen served hy the party prosecuting the said writ upon this depo- nent, as such district attorney as aforesaid. E. A. LOTTRIDGB. Subscribed and sworn before me, this ) 26th day of December, 1867. 5 H. J. King, Commissioner of Deeds, Troy, N. Y. No. 207. OBDBE QUASHING CEETIOKARI. See ante, Vol. I, p. 232. At a court of sessions held in and for the county of Rensselaer, at the court house in the city of Troy, on the 1st day of January, 1868, Present — Hon. Gilbert Robertson, Jr., Rensselaer County Judge. John H Bonbsteel, J j^^^.^^ ^^ ^^^ g^^^.^^^ Rupus S. Wait, 3 The People, ^ agt. > John Doe. j On reading and filing the affidavit of R. A. Lottridge, district attorney, together with the papers in this matter filed in the office of the Rensselaer county clerk, ordered that the writ of certiorari allowed herein from the decision and sentence of a court of special sessions, held by Charles J. Lansing, at the town of Lansingburgh, in said county, on the 26th day of December, 1867, wherein and whereby said John Doe was convicted of assault and battery, be and that the said writ hereby is quashed, and that the said sentence and convic- tion be and that the same hereby is in ail things affirmed. No. 208. mittimus on affirmance op conviction bt court op special sessions. See ante. Vol. I, p. 231. Rensselaer county, ss : To the sheriff of the county of Rensselaer, any of his deputies, or any constable of said county, and to the keeper of the common jail of the county of Rensselaer, Greeting: 344 APPENDIX OF FORMS. Whereas, at a court of special sessions, held at the town of Greenbush in said county, on the 1st day of December, 1867, by and before Henry Goodrich, a justice of the peace of said county, for the trial of John Doe, charged on the oath of James Brown with having at the town of Greenbush aforesaid, on the 26th day of August, 1867 [here state the offence'], the said John Doe was by the sentence, decision and judgment of the said court of special sessions, duly con- victed of the offence aforesaid ; and whereas, upon such conviction the said court of special sessions did adjudge and determine that the said John Doe should pay a fine of twenty dollars, or be confined in the common jail of the said county of Rensselaer, at hard labor for the term of thirty days ; and whereas, the said John Doe was released on bail to await the action of the court of sessisos of the said county of Rensselaer, on a writ of certiorari, granted and allowed by Hon. John Moran, recorder of the city of Troy, removing the complaint, proceedings, conviction and judgment against the said John Doe, for the consideraticm of said court of sessions ; and whereas, at the late term of the said court of sessions, held at the court house in the city of Troy, in said county of Rensselaer, on the 20th day of January, 1868, on motion of R. A. Lottridge. district attorney of said county of Rensselser, an order was made by said court of sessions, quashing the said writ of certiorari and in all things affirming the said sentence and con- viction of the said court of special sessions [or a return to said tvrit having been made and filed, and the same having come on for argument and been heard by said court of sessions, and said court of sessions having made cm order affirming the said sentence and conviction of the said court of special sessions]. These are therefore to command you, the said sheriff, deputies, and consta- bles, forthwith to arrest, convey and deliver the said John Doe to the said keeper of the common jail of the said county of Rensselaer, and you, the said keeper, are hereby commanded to receiv« the said John Doe into your custody in the said common jail, and him there safely keep until the expiration of the said term of thirty days, or until the said John Doe shall be thence discharged by due course of law. And in case the said John Doe shall have been in your cus- tody in pursuance of the terms of said conviction and sentence of said court of special sessions, prior to his release upon bail to await the action of said court of sessions, upon said writ of certiorari, and shall have served out or been impris- oned for any portion or period of said term of said sentence and conviction of said court of special sessions, you, the said keeper are to take the same into con- sideration and abate from the period and term of such sentence and conviction of said court of special sessions, such period and time as said John Doe may have served out or been imprisoned under said sentence and conviction of said court of special sessions, prior to his release upon bail, to await the action of said court of sessions, upon said writ of certiorari, and deduct the same from the said term of thirty days, for which you were hereinbefore required to keep the said John Doe in your custody, in the said common jail, until discharged by due course of law. Witness, Hon. Gilbert Robertson, Jr., Rensselaer county judge, and John H. Bonesteel and Kufus S. Wait, justices of the sessions, in and for the said county of Rensselaer, at the city of Troy, this 24th day of January, 1868. By the court, [l- s.] R. a. LOTTRIDGE, District Attorney, J. Thomas Davis, Clerk. CERTIORARI TO SPECIAL SESSIONS. 345 No. 209. AJFIDAVIS FOE WBIT Qt PROHIBITION. See ante. Vol. I. County of Rensselaer, ss: William Snyder, of the village of Greenbush, in the county of Rensselaei-j being duly swom, says that on the complaint of one Patrick Klnriey of the said village, Henry Goodrich a justice of the peace of the county of Retissfelaer, issued a criminal warrant upon the 2d day of January, 1368, against this depo- nent, which warrant alleges that this deponent On the 25th day of December, 1867, at the town of Greenbush in the said county of Rensselaer, did assault and beat one Thomas Kinney. That upon said warrant this deponent was brought before the said police justice Goodrich, on the said 2d day of January, 1868, at the town of Greenbush aforesaid, and that this deponeai then and there offered and tendered to the justice aforesaid good and sufficient bail upon the warrant aforesaid for the appearance of this deponent at the next court having criminal jurisdiction of the said matter in the said county, viz., to either the next court of oyer and terminer, or the sessions to be held in and for the said county of Rensselaer, to answer the said charge and any indictment for the said charge or complaint that might be found against this deponeni. That there- upon the said justice decided that he would and did refuse to take ajiy bail for the appearance of this deponent in any other court, and refused to alloy the case to be sent to any other court for trial of decision, and then and ther« held and decided that he would try the case, and that this deponent must be tried before him on said charge, and claimed to do so on the sole ground that he had the exclusive power to do so, and that deponent was not entitled to bail, and had no right to give bail in said case for his appearance at any other court or tribunal. That said court so held by said justice has no power to try said complaint, nor to force this deponent to go to trial before him after bail was tendered him as aforesaid, as deponent is advised and believes true. That said justice has no jurisdiction of the matter set forth in said warrant, as deponent is also informed and beUeves. That said justice insists he will proceed to try this deponent, and proceed to judgment in said matter and punish this deponent if found guilty of the acts complained of, by imposing a fine or by imprisonment, as the case may require against this deponent. That whatever was done by deponent was done in self- defence against an assault of the complainant, and to open a highway laid out and used by the public of the said village of Greenbush for many years, said Kianey having run a fence across the road to prevent passage upon said road. That in pursuance of the said purpose of the said justice, he compelled this deponent to give bail before him for trial on the 10th day of January, 1868, on said complaint. WILLIAM SNYDER. Subscribed and swom to before me this > 9th day of January, 1868. ^ John BniLBB, Justice of thp Peace. C. p. Vol. n— 30. 346 APPENDIX OF FORMS. No. 210. OKDHR TO SHOW CAUSE. See ante, Vol. I. At a special term of the Supreme Court, held at the chambers of his Honor Charles R. Ingalls, one of the justices thereof, in the city of Troy, on the 10th day of January, 1868. Present — Hon. 0. R. Ingalls, Justice of the Supreme Court. The People of the State of New York ' on the relation of "William Snyder, agt. Henry Goodrich, a justice of the peace of Rensselaer county, and Thomas Kinney. Let the above-named defendants show cause before me at my chambers, in the city of Troy, on the 16th day of January, 1868, at 3 o'clock in the afternoon of that day, why a writ of prohibition should not be granted in the above action prohibiting the said defendant Goodrich from trying or proceeding with the action now pending before him for assault and battery against the above-named relator, and forbidding said Kinney from proceeding with said prosecution; and it is further ordered that all further proceedings upon the criminal warrant issued by said Goodrich against said Snyder for assault and battery, and now pending be- fore said Henry Goodrich, as a justice of the peace of the county of Rensselaer, be stayed until the said 16th day of January, 1868, and the return of this order to show cause before me, and that said defendants then show cause before me why said proceedings be not further stayed imtil- the decision of the applica- tion herein for a writ of prohibition. C. R. INGALLS, Justice Supreme Court. No. 211. WRIT OP PROHIBITION TO RESTRAIN JUSTICE OP THE PEACE FROM THE TRIAL OP DEFENDANT ON A CRIMINAL CHARSB. See ante, Vol. I. The people of the State of New York, to Henry Goodrich, a justices of the peace of the county of Rensselaer, and to Thomas Kinney, Greeting : Whereas, William Snyder has lately, in our supreme court, before the CERTIORARI TO SPECIAL SESSIONS. 347 Hon. Charles R. Ingalls, a justice of said court, come and gave the said court to understand and be informed that, on or about the 2d day of January, 1868, said Thomas Kinney caused complaint to be made before Henry Goodrich, a Justice of the peace of the county of Rensselaer, in this State, that William Snyder had, on the 28th day of December, 1867, at the town of Greenbush, in said county, assaulted and beaten Thomas Kixmej ; and that, on said complaint, you, said Henry Goodrich, issued a criminal warrant for the arrest of the said WilUam Snyder, and on which said warrant he was arrested and brought before you, said Henry Goodrich, acting as a justice of the peace in said town and county, and that on the appearance of said accused person before you in open court, on the 2d day of January, 1868, he offered and tendered you, said justice, good and sufficient bail for his appearance at any court having criminal jurisdiction in your county of said charges and matters, to then and there answer any indictment that might be found against him ; and that you, said justice, then and there held, adjudged and decided you had the exclusive power and jurisdic- tion to try said complaint and charges, and that you would not take any bail in the said matter or complaint, and that you were about to proceed, on the 10th day of this said month of January, 1868, at your office in said town of Green- bush, and try the accused person aforesaid on the criminal charge aforesaid, and proceed to judgment in the premises, and fine or imprison him, as the case might demand ; and it appearing that you have no right or jurisdiction to try the same, and that you were bound to take bail for the appearance of the said accused person to some court having criminal jurisdiction of said offence or matter, if any ; and that you are about to exercise power beyond and over which you have no jurisdiction; and that your proceedings will be illegal and void; nevertheless, you, said Henry Goodrich, well knowing the premises, yet contriving the said accused person unjustly to aggrieve and oppress by proceeding to try, determine and render judgment in the said matter, and criminally punish the said accused person ; and you, the said Thomas Kinney, with like knowledge and contrivance, and movinf the said court to act and decide as aforesaid, in contempt of us, against the laws and customs of our State, and to the manifest damage and grievance of the said accused. Wherefore, said William Snyder, humbly imploring in said court, hath prayed relief and our writ of prohibition in that behalf. We, therefore, being willing that the laws and customs of our said State should be observed, and that our good and faithM citizens should in no wise be oppressed, do prohibit and finally enjoin you that you do not in any manner proceed concerning the premises before you, nor attempt or presume to attempt to hear said matter or complaint, nor in any manner proceed or attempt to try the said matter recited in said warrant, or give any judgment upon, of or concerning said matter in said com- plaint or warrant set forth, until the next special term of this court, to be held at the city hall in the city of Albany, on the last Tuesday of February, 1868, and that you then show cause before said court why you should not be abso- lutely restrained from any further proceedings in the aforesaid premises, and have you then and there this writ. Witness Hon. C. R. Ingalls, one of the justices of the court, at the city of Tror. January 16, 1868. CHARES E. PATTERSON, Attorney for Relator. 348 APPENDIX OF FORMS. PROCEEDINGS IN COURTS OF RECORD. Na 212. DisTKiCT attohnbt's prbobpt for oyer and terminek. See ante, Vol. I, p. 234. The people of the State of New York, to the sheriff of the county of Rensse- laer, Greeting : Whereas, a court of oyer and terminer and jail delivery is to be [l. S.J h&ld in and for the county of Rensselaer, at the court-house in the city of Troy, on the first Monday of January, 1868. We command you, in pursuance of the provisions of the Revised Statutes in that case made and provided, l«t. That you summon the several persons who shall have been drawn in said county of Rensselaer pursuant to law to serve as grand jurors and petit jurors at the said court to appear thereat. 2d. That you bring before the said court all prisoners then being in the jail of said county, together with all process and proceediDgs any way. concerning them in your hands as Such sheriff. 3d. That you make proclamation in the manner prescribed by law, notifying all persons bound to appear at the said court by recognizance or otherwise, to appear thereat, and requiring all justices of the peace, coroners and other officers who have taken any recognizance for the appearance of any person at such covurt, or who shall have taken any inquisition or the examination of any pris- oner or witness to return such recognizances, inquisitions and examinations to the said court at the opening thereofi on the first day of its sitting. Witness — Hon. Charles R. Ingalls, one of our supreme court justices, at the city of Troy, this second day of December, in the year one thousand eight hun- dred and sixty-seven. J. THOMAS DAVIS, Clerk. R. A. LoTTRiDSE, District Attorney. No. 213. PROCLAMATION ON FOREGOING- PRECEPT. See ante, Vol. I, p. 235. Proclamation. Whereas, a court of oyer and terminer is appointed to be held at the court- house, in the city of Troy, in and for the county of Rensselaer, on the day PROCEEDINGS IN COTJRTS OF RECORD. 349 of , 1868, proclamation is therefore hereby made in conformity to a precept to me directed and delivered by the district attorney of Rensselaer covinty, on the day of , 1868, to aU persons bound to appear at the said oyer and terminer by recognizance or otherwise, to appear thereat, and all justices of the peace, coroners and other officers who have taken any recog- nizance for the appearance of any person at such court, or who have taken any inquisition or the examination of any prisoner or witness, are required to return such recognizance, inquisition and examination to the said court, at the opening thereof, on the first day of its sitting. Given under my hand at the sheriff's office, in the city of Troy, this day of , 1868. M. y. A. FONDA, Sheriff of Rensselaer county. No. 214. RETURN TO THE DISTRICT ATTORNEY'S PRECEPT. gee aate. Vol. 1, p. 2S4. Rensselaer county, as : I have executed the within precept as I am within commanded, by having duly summoned the jurors draw® for the court mentioned therein to appear thereat, by making immedfate proclamation as therein commanded, and causing the same to be published in a public newspaper printed in said county, once a week from the receipt of said precept until the time appointed for said court, and by having the prisoners in jail brought before the court [or that I am ready to hring before the court now Itere the prisoners in jaU, as it may di/recf] with all process and proceedings in any way concerning them in my hands. . f Dated ,1868. M. V. A. FONDA, Sheriff of Rensselaer county. No. 215. CALENDAR OP PRISONERS IN JAIL. See ante. Vol. I, p. 236. To the court of oyer and terminer [or of sessions'], now here : I, tl>e imdersigned, sheriff of the county of Rensselaer, do hereby certify that the ifollowing calendar ia a cprrect Ust of the prisoners now detained in the 350 APPENDIX OF FORMS. jail of said county, the times when committed, by what process, and the cause of commitment. Dated January 1st, 1868. M. V. A. FONDA, Sheriff. Priaonara' names. When oommitted. The prooeaa. Nature of the offence. AB.... Dec. 10, 1867. District Attorney's warrant. Burglary. No. 216. GRAND JUET SUBPCElfA FOR OTBE AND TERMINER. See ante, Vol. L, p. 247. Rensselaer County, ss : The People of the State of New York, to A, B and 0, D. We command you, that laying aside all pretences and excuses whatsoever, you be and appear in your proper person, before our court of oyer and terminer, to be held at the court house, in the city of Troy, in and for the said county of Rensselaer, on the 1st day of January, 1868, at 10 o'clock in the forenoon of that day, then and there to testify the truth, and give evidence before the grand jury, of the said county of Rensselaer, concerning a certain complaint to be preferred before the grand jury, against John Doe for robbery, and this you are not to omit under the penalties provided by law. Witness — Hon. C. R. Ingalls, one of the justices of the supreme court, at the court house, in the city of Troy, the 24th day of December, 1867. R. A. L., District Attorney. No. 217. ArriDAVIT OP SERVICE OP GRAND JURY SUBP(ENA. See ante, Vol. I, p. 247. Rensselaer Oyer and Terminer [or Sessions]. The People of the State of New York I agt. 't John Doe. J County of Rensselaer, ss : Michael A. Guy, being duly sworn, says, that on the 10th day of January, 1868, at the village of West Troy, in Albany county in this State, he served PROCEEDINGS IN COURTS OF RECORD. 351 upon James E. Kirk and Charles Allen, witnesses ^in the above cause the original subpoena issued therein by the district attorney of said county, and hereto annexed, by showing to said witnesses said original subpoena, and stating to them and each of them the substance thereof, and by which subpoena said witnesses were commanded to appear at the court house in the city of Troy, on the 12th day of January, 1868, at 10 o'clock in the forenoon, to testify before the grand jury concerning a certain complaint then and there to be preferred against the defendant above named, for burglary. M. A. GUY. Sworn before me, this 11th day ) of January, 1868. ^ John H. Peck, Commissioner of Deeds, Troy, N. Y. No. 218. ATTACHMENT FOB DISOBEDIENCE OP GRAND JUKT SUBPOENA. See ante. Vol. I, p. 247. County of Rensselaer, ss : The people of the State of New York, to the sheriff of the county of [l. s.] Rensselaer, and each and every, of the constables of said county. Greeting : We command you, and each of you, that you attach Wallace P. Mains, and him forthwith bring before the judges of the court of oyer and terminer [or of sesswns], in and for the county of Rensselaer (exercising criminal jurisdiction according to the statute in such case made and provided), at the court-house in the city of Trov, then and there to answer for a certain contempt in refusing or neglecting to attend the said court and give evidence before the grand jury of the said county, in obedience to a subpoena duly served on him as a witness on the behalf of the said people concerning a complaint preferred before said jury' against John Doe for burglary, and have you then and there this writ ; and you are further commanded to detain him in custody until he shall be discharged by our said court. Witness — Hon. A B, supreme court justice, [or C D, Rensselaer county judge'], at the court-house, in the city of Troy, on the 2d day of January, J868. By the court. R. A. LOTTRIDGE, District Attorney. J. T. DAVIS, Clerk. [7b he indorsed {] Allowed this 2d day of January, 1868. A B, Justice of the Supreme Court [or C D, Rensselaer County Judge']. 352 APPENDIX OP tORMS. No. 219. OEDBB TO BE MADE BY THE COURT, WHBBB THE aHAND JURT HAVE CEBTIFIED THAT A PBI30NBB BSOAPBD INDIOTMBNT BT BBA30Jf OS INSANSTY. See ante, Vol. t, p. 247. At a court of sessions of the county of Rensselaer, in the State of New York, held in and for said county, at the coxirt house in the city of Troy in said county, on the first day of January, 1868. Present— Hon. Gilbebt Robbbtsow, Jr., Rensselaer county judge. Alson G. Niles, Esq > j y^^^ f ^^ ^^^^.^^^^ Nathan N. Seaman, Esq., 5 In the matter of Lucy Brown, a person "] who has escaped indictment for the I crime of killing her chUd, on the [ ground of insanity. J The grand jury of said county of Rensselaer, now sitting at the said term of this court, having made and certified to this court under their hands, a certifi- cate or presentment that Lucy Brown of the town of Greenhush in said county, has escaped indictment by said grand jury for the crime or of the criminal charge of murder, in killing, at the said town of Greenbush, on the 20th day of Decem- ber, 1867, her infant daughter (of the age of eleven' months), on the ground of insanity, which certificate or presentment is on file with the clerk of this court ; and this court having thereupon carefully inquired and ascertained whether her insanity in any degree continues, and being fuEy satisfied that her insanity does continue, it is ordered, and this court hereby does order, in pursuance of the statute in such case made and provided, that the said Lucy Brown be kept in safe custody, and for that purpose be sent to the State Lunatic Asylum, and the sheriff of said county is hereby empowered and commanded to carry this order into effect, and to take the said Lucy Brown to the State Lunatic Asylum, to be there kept and detained until discharged tiience by due course of law. Mo. 2^0. distbiot attobnbt's ob bench wareant. See ante, Vol. I, p. 260. ss. District Attorney's Office, State of New York, County of Rensselaer, The people of the State of N«w York, to the sheriff and constables of the county of Rensselaer : PROCEEDINGS IN COURTS OF RECORD. 353 We command you, and each of you, to take John Doe, who stands indicted in the court of sessions in and for the said county of Rensselaer, for grand larceny,t and him bring before said court, at the court-house in the city of Troy, m said county, if the said court shall then be in session, together with this war- rant. But if the said court be not in session, you are hereby commanded to deliver said John Doe, together with this warrant, to the keeper of the Rensse- laer county jail. And you, the said keeper, are hereby required to receive the said John Doe into your custody in the said jail, and him safely keep until he be discharged by due course of la^w. In witness whereof the district attorney of the county of .Rensselaer has hereunto set his hand, at, the court-house in the city of .Troy, this 1st day of January, 1868. " ^ . ■ R. A. LQTTRIDGB,, District Attorney. t In cases jwhere more than ording,ry precision is required, it is advisable, to charge the offence. specially as in the indictment. No. 221. SUMMONS TO CORPORATION TO ANSWER INDICTMENT. See ante,jVol, I, p.. 262. Court of Sessions,. Rensselaer county. The People of the State. pf, New York agt. The President, Directors and Com- pany , of the Bensselaer and Colum- bia Turnpike Road. To the President, Directors and Company of the Rensselaer and Columbia turnpike road : You are hereby summoned and required to answer the indictment in this action, of which a copy is hereto annexed, within twenty days after the service hereof, exclusive of the day of such service ; and if you fail to answer the indictment as aforesaid, you will be proceeded against according to the statute in such case made and provided. Dated Troy, January 1, 1868. Yours, &o., R. A. LOTTRIDGE, District Attorney of Rensselaer county, and Attorney for the People of the State of New York. C. P. Vol. n— 31. 354 APPENDIX OF FORMS. PLEAS, DEMUEREES AND REJOINDEES. No. 223. PLEA OP MISNOMEK. See ante, Vol. I, p. 271, et seq. And John Doe, who is indicted by the name of George Doe, in his own proper person cometh into court here and having heard the said indictment read, says that he was baptized by the name of John, to wit, at the town aforesaid, in the county aforesaid, and by the Christian name of John has always ^nce his baptism hitherto been called or known without this, that he the said John Doe now is or at any time hitherto has been called or known by the Christian name of George, as is by the said indictment supposed, and this hafthe said John Doe is ready to verify, wherefore he prays judgment of the said indictment, and that the same may be quashed, &c. No. 224. BEPLICATION TO THE POBEGOING PLEA OF MISNOMER. See ante. Vol. I, p. 288. And hereupon, Robert A. Lottridge, district attorney of the said county of Rensselaer, who prosecutes for the said people of the State of New York, in this behalf says : that the said indictment by reason of anything by the said John Doe in his said plea above alleged ought not to be quashed, because he says that the said John Doe, long before and at the time of the preferring of the said indict- ment, was, and still is known as well by the name of George Doe as by the name of John Doe, to wit : at the town aforesaid in the county aforesaid, and this he, the said Robert A. Lottridge, prays may be enquired of the country, &c. No. 225. PLEA TO THE JURISDICTION. See ante. Vol. I, p. 288. And the said John Doe in his own proper person, cometh into court here, and having heard the said indictment read, says that the said court here ought not to take cognizance of the (grand larceny) in the said indictment above speci- PLEAS, DBJiIURRERS AJ^D REJOINDERS. 355 fled, because protesting that he is not guilty of the same ; the said John Doe says, that [here state the matter of the plea!]. (See 1 Went., 10-18 ; 4 Went., 63, for precedents.) And this he, the said John Doe, is ready to verify ; wherefore, he prays judgment if the said court now here wiU or ought to take cognizance of the indictment aforesaid, and that by the court here he may be dismissed or dis- charged, &c. , Xo. 226. EBPLICATION TO THE FOBEGOING PLEA TO THE JUBISDICTION. See ante. Vol. I, p. 288. And hereupon Robert A. Lottridge, district attorney of the said county of Rensselaer, who prosecutes for the said people of the said State of New York in this behalf, says that notwithstanding anything by the said John Doe above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment aforesaid, because he says that [here state the matter of the repli- cation]. And this he, the said Robert A. Lottridge, prays may be enquired of by the country, &c. [^nd if it conclvde with a ver^cation, add as follows :] And this he, the said Robert A. Lottridge, is ready to verify; wherefore he prays judgment, and that the said John Doe may answer to the said indictment. No. 227. PLEA OF AUTKBFOIS ACQUIT. See ante. Vol. I, p. 276. And the said William Sheen being brought to the bar of this court, and having heard the said indictment read, and the matters therein contained, says that he ought not to be put to answer the said indictment, he having been here- tofore in due manner of law acquitted of the premises, in and by the said indictment above specified and charged upon him, and for plea to the said indict- ment he says that heretofore, to wit, at &c., [here set forth the caption of the former indictment verbatim], he the said WiUiam Sheen was duly arraigned upon a certain indictment which charged him, the said William Sheen by the name and description of William Sheen, late of, &c., in the county of Rensselaer, not having the fear, &c., [here set out the former indictTnent verbatim] to which said last mentioned indictment, he did then and there plead not guilty, and there- upon a jury then and there duly summoned, empanneled and sworn to try the 356 APPENDIX OP FORMS. said issue so joined between the said people of the State of New York, and the said William Sheen, upon their oaths did' say that the said William Sheen was not guilty of the said felony and murder by the said indictment supposed and laid to his charge, w"hereupon it was then and there considered by the said court that the said WilUam Sheen should go thereof acquitted without day, as appears by the records of the said proceedings now here remaining in court. And the said William Sheen avers that the said William Sheen mentioned in the former indictment, and he the said William Sheen who is charged by this present indictment are one and the same person, and not divers and different persons, and that the said infant mentioned in the first indictment, and the male child in the present indictment mentioned are one and the same male child, and not divers and different children. And the said William Sheen further avers that the felony and murder in the said former mentioned indictment mentioned, and the felony and murder in this present indictment mentioned are one and the same felony and murder, and not divers and different felonies and murders. And the said William Sheen further avers that the said male child described by the name of Charles William Beadle, in the said former indictment mentioned, was as well known by the name of Charles William Beadle as by any of the several names and descriptions of Charles William, William, Billy, Charles, or William Sheen, or a certain male child, or a certain male bastard child as he is in and by the present indictment described, and this he is ready to verify, whereof he the said William Sheen prays the judgment of the court, here, if he ought to be put further to answer this present indictment, and whether the said people ought further to prosecute or impeach him the said William Sheen, on account of the premises in this present indictment contained, and that he may be dis- missed vhe court and go without day, (See E. v. Sheen, 2 C. & P., 634; also R. V. Bird, 5 Cox C. C, 12.) No. 228.. REPLICATIOlf TO THE FOREGOING PLEA. See ante, Vol. I, p. 288. And Robert A. Lottridge, who, for the said people of the State of New York, , prosecutes in this behalf, says that the said people ought not to be barred from further prosecuting the said indictment, because he saith that the said William Sheen was not heretofore acqmtted of the premises charged in and upon hiin by this present indictment, for although true it is that the said William Sheen was acquitted upon the said indictment in this said plea mentioned, and although true it is, that the said infant in the said former indictment mentioned, and the male child in this present indictment mentioned, is the same child and not another and different child, yet for replication in this behalf he says that the said male child was not known, as well by the name of Charles William Beadle as by any or either of the several names by which he is named in the present indictment, and the said Robert A. Lottridge on behalf of the said people, prays may bo enquired of by the country. PLEAS, DEMURRERS AND RllJOINDERS. 357 No. 229. GBNEKAL FORM OF A SPECIAL PLEA. See ante, Vol. I, p. 271. And the said John Doe, in his own proper person, cometh into court here, and having heard the said indictment read, says that the said people ought not further to prosecute the said indictment against him, the said John Doe, because he says that, etc. \^Here state the matter of the plea.'] And this he, the said John Doe, is ready to verify. Wherefore, he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment above specified. No 230. KEPLICATION TO THE SAME. See ante. Vol. I, p. 288. And, hereupon, Robert A. Lottridge, district attorney in and for the said county of Rensselaer, vrho prosecutes for the said people in this behalf, says, by reason of anything in the said plea of the said John Doe, above pleaded in bar alleged, the said people ought not to be precluded from prosecuting the said indictment against the said John Doe, because he says that [Jiere state the matter of the replicatioTi]. And this he, the said Robert A. Lottridge prays may be inquired of by the country [or (if it conclude trith a verification), add, and this he the said Robert A. Lottridge is ready to verify.'] Wherefore, he prays judg- ment, and that the said John Doe may be convicted of the premises in the said indictment above specified. * TTie following will answer for a general statement of the matter of replica- tion to he inserted in the foregoing form : " That at the time in said indictment alleged, he, the said John Doe, com- mitted the several assaults, batteries and trespasses in said indictment set forth, of his own wrong, and without any such cause as he hath in pleading alleged." No. 231. FORM OF A REJOINDER TO THE ABOVE EEPLIOATION. See ante. Vol. I, p. 288. And the said John Doe, as to the said replication of the said Robert A. Lot- tridge, to the said plea by him, the said John Doe, pleaded, says that the said 358 APPENDIX or FORMS. people, by reason of anything by the said Robert A. Lottridge in that replication alleged, ought not further to prosecute the said indictment against him, the said John Doe, because he saith that, &c. \here state the matter of the rejomder] ; and of this he, the said John Doe, puts himself upon the country. [If the rejoinder conclude with a verification, then conclude as in thepha.] No. 232. rEMUREEE TO INDICTMENT. See ante. Vol. I, p. 273. And the said John Doe, in his own proper person, cometh into court here, and haying heard the said indictment read, says that the said indictment and the matters therein contained in maimer and form as the same are above stated and set forth, are not sufficient in law, and that the said John Doe is not bound by the law of the land to answer the same, and this he is ready to verify. Wherefore, for want of a sufficient indictment in this behalf, the said John Doe prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment specified. No. 233. JOINDEB TO SAME. See ante, Vol. I, p. 288. And Robert A. Lottridge, who prosecutes for the said people in this behalf, says that the said indictment and the matters therein contained in manner and form as the same are above stated and set forth, are sufficient in law to compel the said John Doe to answer the same, and the said Robert A. Lottridge who prosecutes as aforesaid, is ready to verily and prove the same as the court here shall direct and award; wherefore, inasmuch as the said John Doe hath not answered to the said indictment, nor hitherto in any manner denied the same, the said Robert A. Lottridge for the said people, prays judgment that the said John Doe may be convicted of the premises in the said indictment specified. PLEAS, DEMURRERS AND REJOINDERS. 359 No. 234. DKMUEEEK TO A PLEA OF AUTBEFOIS ACQUIT. See ante. Vol. I, p. 273. And Robert A. Lottridge, who prosecutes for the said people in this behalf, Cometh and saith that for and notwithstanding anything in the said plea of the said John Doe, by him above pleaded, our said people ought further to prosecute him, the said John Doe, by reason of the premises in the said indictment, to which the said plea is above pleaded mentioned, because he saith that the said plea and the matters therein contained are not sufficient in law to bar the said people from further prosecuting him, the said John Do6, by reason of the premises in the said indictment, to which the said plea is above pleaded, men- tioned; and this the said Robert A. Lottridge is ready to verify. Wherefore, he prays judgment, that the said people may further prosecute him, the said John Doe, by reason of the premises in the said indictment, to which the said plea is above pleaded mentioned, and that the said John Doe may answer over to the same indictment. No. 235. JOINBEK m DBMUKBEE TO THE SAME. See ante. Vol. I, p. 288. And the said John Doe, now being here as aforesaid, in his proper person, under the custody of the said sheriff of the county of Rensselaer, says that the said plea of him, the said John Doe, in form aforesaid above pleaded, and the matter therein contained, are sufficient in law to bar the said people from further prosecuting him, the said John Doe, by reason of the premises in the said indict- ment to which the said plea is above pleaded, mentioned, and this he is ready to verify, &c., wherefore as before he prays judgment, and that the said people may be barred from further prosecuting by reason of the premises mentioned in the said indictment, to which the said plea of him, the said John Doe, is above pleaded, and that he may be dismissed this court without day, &c. No. 236. DEMUSEBH TO A PLEA IN BAR. See ante. Vol. I, p. 273. And Robert A. Lottridge, who prosecutes for the said people in this behalf as to the said plea of the said John Doe by him Indictment for Burglary. John Doe. J I hereby certify that Darius AUen, the surety given on the arrest of the above-named defendant upon the indictment now pending against him for bur- glary has this day surrendered the said defendant in exoneration of him as bail by delivering him into my custody, together with a certified copy of the recogni- zance given by the said surety. Dated Troy, 'January 10, 1868. M. V. A. FONDA, Sheriff of Rensselaer County. 366 APPENDIX OP FORMS. No. 245. OBDEB TAOATIITG OEDEB BSTEEATING KBCOGNIZANCB AND DIEECTING PEOSB- C0TION OP BAIL. See ante, Vol. I, p. 304. At a term of the county court of the county of Eensselaer, held at the court- house, in the city of Troy, on the 20th day of January, 1868. Present — Hon. Gilbert Robertson, Jr., Rensselaer county judge. In the matter' of the estreated recog- > nizance of Wells Cronk. ) Upon reading and filing affidavits and notice of motion on the part of the said Wells Cronk, with proof of due service thereof, and after hearing Francis Rising in hehalf of said motion, and R. A. Lottridge, Esq., district attorney of Rensselaer county, in opposition thereto, and it appearing that the above-named Wells Cronk had renewed his bail for appearance at the court of sessions to be held in and for the said county of Rensselaer, at the court-house in the city of Troy, on the first Monday of May, 1868, to answer an indictment against him for an assault with intent to kill, and the recognizance heretofore signed by the said Wells Cronk, to answer to said indictment with AUen Way and Amos Morse as his sureties, having been heretofore, to wit, at a court of sessions held in and for, the said county of Rensselaer, at the court-house in the city of Troy, on the 3d day of November, 1867, been estreated, and the same ordered to be prosecuted. It is now on motion of Francis Rising, of counsel for said Wells Cronk, ordered that the said order estreating the said recognizance and directing the same to be prosecuted, be vacated and set aside ; that said last-mentioned recognizance be remitted, and the action conunenced thereon by the district attorney of the said county of Rensselaer be discontinued, upon the said Wells Cronk, Allen Way and Amos Morse paying the costs add expenses incurred thereon. No. 246. A SIMILAR ORDER ENTERED ON MOTION OP THE DISTRICT ATTORNEY, AT THE SAME TERM OF THE COURT AT WHICH THE RECOGNIZANCE WAS ESTREATED. See ante, Vol. I, p. 804. At a term of the court of sessions held in and for the county of Rensselaer, at the court house in the city of Troy, on the first day of January, 1868, Present — Hon. Gilbert Robertson, Jr., Rensselaer Coimty Judge. William R. Db Freest, ? t *■ r ii. o ™. ., > Justices of the Sessions. William Moul, > RECOGNIZANCES, ETC. 367 The People of the State of New York, f against v Indictment for assault loith intent to kill. Patrick Sherry. ) The recognizance of the above named prisoner with James Fleming as hail, having been estreated at the present term of the court of sessions, now being held in and for the county of Rensselaer, and the said Patrick Sherry having renewed his bail for his appearance at the next (September) term of this court ; on motion of R. A. Lottridge, district attorney, ordered that the order estreating said bail above mentioned and any order for the prosecution thereof be vacated without costs. No. 247. SUJCMOXS TO ACCOMPANT COMPLAINT OIT ESTBBATBD EECOGNIZANCB. See ante. Vol. I, p. 000. Supreme Court, Rensselaer county, to A B, C D and E F, defendants : Ton are hereby simimoned to answer the complaint of the people of the State of New York, plaintiffs (of which a copy is hereto annexed), and to serve a copy of your answer on me at my office, in the city of Troy, within twenty days after the service of this summons, exclusive of the day of service, and if you fail to answer said complaint, as hereby required, the plaintiffs will take judgment against yon for one thousand dollars, besides costs. R. A. LOTTRIDGE, District Attorney of Rensselaer County, Plaintiffl' Attorney, Troy, N. Y. No. 248. COMPLAINT UPON ESTHEATBD BECOGNIZANCB BAIL TAKEN ATTEE INDICTMENT FOUND, BBPOBE COUNTY JUDGE. See ante. Vol. I, p. 305. Supreme Court — County of Rensselaer. The People of the State of New York, plamtiffe, _^ > Complaint. A B, C D and E F. J The plaintiffs complain against the defendants above named that, on the 1st day of January, 1868, at the city of Troy, in the county of Rensselaer, a certain 368 APPENDIX OF FORMS. indictment was pending, undetermined, in the court of sessions, ag^in^t the said defendant, A B, for grand larceny [or for having; at the town of Greenbush, in said county, on the 20th day of December, 1867, felonvriialy stolen, taken and carried aviay one gold watch, of the value of fifty dollars, of the ■gopds, chattels and property of John Brown, thenan^ihere being found.'\ And thereupon the said defendants personally came beforp 5on. Gilbert Robertson, Jr., Rensselaer county judge, the said judge then and there being lawfully authorized and empowered to act in the premises, and then and th^e, before the said judge, duly entered into a recognizance, by -which the said defendants then and there acknowledged themselves indebted to the people of the State of New York in the sum of one thousand dollars, which said recognizance was and is subject to a certain condition thereunder written, which condition was that if the said defendant, A B, should personally 'appear at the next court of sessions which was to be held in and for the county of Rensselaer, then and there to answer to the said indictment, and also what should then and there be objected against him on, behalf of the said people, and should not depart until discharged by the said court, then the said recognizance, in and by the said con- dition thereof, was to be void; otherwise, of force, as by the said recognizance and the said condition thereof now remaining on record in the office of the clerk of the said -county of Rensselaer, at the court-house in the city of Troy,' refer- ence being thereunto had, will more fuUy and at large appear. And the said plaintiffs say that the court of sessions, to be holden and held next after the signing and acknowledgment of the said recognizance as aforesaid, was holden at the court-house, in the city of Troy, in and for the said coimty of Rensselaer, on the 20th day of January, 1868, before the judges of the same court, and that said last mentioned court commenced its session on the said last mentioned day, and continued and remained in session until after the 13th day of January, in the year last aforesaid, and at the said last mentioned court held at the place and on the day aforesaid. And the said plaintiffs say that at the said term of the said last mentioned court, holden at the place last aforesaid, in and for the.county of Rensselaer, the said indictment then being pending undetermined in the said court before the judges thereof, the said A B failed in the performance of the condition of the said recognizance in this, to wit, that the said A B, being then and there called in open court, and during the sitting of said court, to wit, on the thirtieth day of January, 1868, did not be and personally appear iu the said court then and there to answer the said indictment, and what should then and there be objected against him on behalf of the said people, but wholly failed and made default. Whereupon an order was mads and entered by the said court forfeiting the said recognizance and directing the same to be prosecuted according to law, the said court having full power and authority to make' such order as by the record thereof now remaining in the said court before the judges thereof, reference being thereunto had, will more fiilly and at large appear. And the said plaintifis say that the defendants in this action have not paid the said sum of one thou- sand dollars, so as aforesaid acknowledged by them to be indebted to the said plaintiffs, nor any part thereof, and the said plaintiffs say that the said recogni- zance remains in full force, strength and effect, and in no manner reversed, vacated or satisfied, and that they the said plaintiffs have not yet obtained satis faction of the same nor any part thereof. Whereupon the. said plaintiffs demand RECOGNIZANCES, ETC. 869" judgment against the said defendants for the sum of one thousand dollars, besides costs. R. A. LOTTRIDGE, District Attorney, Plaintiff's Attorney, Troy, N. Y. Rensselaer county, ss : R. A. Lottridge, being duly sworn, says, that he is the district attorney of said county of Rensselaer, and pMntLff's attorney in this action, and that the foregoing complaint is true of his own knowledge, except as to those matters which are therein stated on his information and belief, and as to those matters he believes it to be true. R. A. LOTTRIDGE. Sworn before me this first ? day of March, 1868. 5 H. J. King, Commissioner of Deeds, Troy, N. Y. No. 249. COMPLAINT ON ESTKBATED EBOOGNIZANOE, BAIL TAKEN BEFOBE INDICTMENT FOUND BT COUNTY JUDGE. See ante. Vol. I, p. 305. Supreme Court — County of Rensselaer. The People of the' State of New York, plaintiffs, ] agt. ^Complaint. A B and C D, defendants. j The plaintiffs complain against the defendants above named, that on the 3d day of March, 1868, at the city of Troy in the county of Rensselaer, a certain complaint on oath had been made before E P, one of the justices of the peace of the county of Rensselaer, against the said defendant A B for having at, &c., [here state the offence charged]. And thereupon the said defendants personally came before Hon. Gilbert Robertson Jr., Rensselaer county judge, the said judge then and there being law- ftdly authorized and empowered to act in the premises, and then and there befors the said judge duly entered into a recognizance, by which the said defendants C. p. Vol. n.— 33. S70 APPENDIX OF FORMS. then and there aokowledged themselves indebted to the people of the State of New York in the sum of five hundred dollars, which said repognizance was and is subject to a certain condition thereunder written, which condition was that if the said defendant A B shovdd personally appear at the next court of sessions, which was to be held in and for the county of Rensselaer, then and there to answer to any indictment that might be preferred against him for the offence aforesaid, and also what should then and there be objected against him on behalf of the said people, and should not depart until discharged by the said court, then the said recognizance in and by the said condition thereof was to be void, other- wise of force as by the said recognizance and the said condition thereof, now remaining on record in the office of the clerk of the said county of Rensselaer, at the court house in the city of Troy, reference being thereunto had, will more fully and at large appear. And the said plaintiffs say that the court of sessions to be holden and held next after the signing and acknowledgment of the said recognizance as aforesaid, was holden at the court house in the city of Troy, in and tor the said county of Rensselaer, on the first Monday of April, 1868, before the judges of the same court, and that the said last mentioned court commenced its session on the said last mentioned day, and continued and remained in session until) after the 17th day of April in the year last aforesaid, and at the said last mentioned court held at the place and on the day aforesaid. And the said plaintiffs say that at the said term of the said last mentioned court, the grand jury for said court duly found, preferred and presented an indictment to said court against the said A B, for the offence aforesaid. And the said plaintiffs say that at the said term of the said last mentioned court holden at the place last aforesaid, in and for the county of Rensselaer, the said indictment then being pending undetermined in the said court before the judges thereof, the said A B failed in the performance^ the condition of the said recognizance in this, to wit : that the said A B being then and there called in open coiirt, and during the sitting of said court, to wit : on the 17th day of April, 1868, did not be and personally appear in the said court then and there to answer the said indictment, and what should then and there be objected against him on behalf of the said people, but wholly failed and made default. Whereupon an order was made and entered by the said court, forfeiting the said recognizance and directing the same to be prosecuted according to law, the said court having full power and authority to make such order, as by the record thereof now remaining in the said court before the judges thereof, reference being thereunto had, will more fuUy and at large appear. And the said plaintiffs say that the defendants in this action have not paid the said sum of five hundred dollars, so as aforesaid acknowledged by them to be indebted to the said plaintiffs nor any part thereof, and the said plaintiffs say that the said recognizance remains in full force, strength and effect and in no manner reversed, vacated or satisfied, and that they the said plaintiffs have not yet obtained satisfaction of the same nor any part thereof. Whereupon the said plaintiffs demand judgment against the Eaid defendants for the sum of five hundred dollars, besides costs. R. A. LOTTRIDGE, District Attorney, Plaintiffs' AttOTney, Troy, N. Y. RECOGNIZANCES, ETC. 871 No. 250. COMPLAINT ON BSTEEATED EBCOGNIZANOE AFTER mDIOTMBNT, BAIL TAKEN IIT OPEN COUKT. See ante. Vol. I, p. 305. [^TltU of cause}. The plaintiff's complain of the defendants , and allege that at a court of , held in and for the county of Rensselaer, in the month of , 183 , one was indicted for , and such indictment «ral thereupon sent by order of the said court to the next court of appointed to be held in and for the said county of Rensselaer, at the court house in the city of Troy, on the day of , 186 ; that at the said last mentioned court of the said indictment was continued to the ilext court of , to wit, commencing on the day of 186 , at which said court, to wit, commencing on the day of 186 , and on the day of in the year last aforesaid, the said was arraigned and plead not guilty to such indictment; that the trial of said indictment was thereupon, on motion of R. A. Lottridge, district attorney of the said county of Rensselaer, [or of the counsel for the said the prisoner], postponed to the next court of appointed to be held in and for the said county of Rensselaer, on the day of , 186 ; that thereupon, on the said day of , 186 , in the year last aforesaid, the said as principal, and the defendant , as bail appeared in open court, and before the judges and the clerk- thereof, acknowledged themselves in a recognizance indebted to the people of the State of New York, each in the sum of dollars, to be levied of their respective goods and chattels, lands and tenements, to the use of the said people, if default should be made in the following condition, that is to say, if the above bounden , the prisoner, should personally appear at the next court of to be holden in and for the said county of Rens- selaer aforesaid, to answer to the indictment found against him as aforesaid, and should not depart without leave of the court, and should abide its order and decision, then the recognizance -aforesaid should be void, otherwise of full force and virtue. And the plaintiffs further allege that default has been made in the condition of the said recognizance in this, to wit, that the said ^ at the said next court of , namely, the term commencing on the day of , 186 , did not personally appear at the said court of , and did not abide the order and decision of said court of , but being called, at the said term of the court to answer to said indictment, failed to appear or answer, and his said bail being also called, failed to produce said in said court, where- upon on motion of the district attorney, the said recognizance was duly ordered by the said court to be estreated, and was also ordered to be prosecuted, by 372 . APPENDIX OF FORMS. means whereof the said defendants have become and are indebted to the said plaintiffs, the people of the State of New York, in the said sum of dollars with interest from the day said recognizance was estreated, which the plaintiffs claim. Wherefore the plaintiffs demand judgment against the said defendants for the sum of dollars, with interest thereon from the day of , , 186 , besides costs. R. A. LOTTRIDGB, District Attorney, Troy, N. T. No. 251. COMPLAINT ON E3TEBATBD BECOGNIZANCB, BAIL TAKEN BEFOKB INDICTMENT FOUND BT A JUSTICE, OP THE PEACE. See ante, Vol. I, p. 305. [T^le of cause.] I That heretofore, to wit, on the day of 186 , was brought before , one of the justices of the peace is said county, at the town of in said county, upon the charge and accu- sation of the criminal offence of having, on the day 186 , at in said county. That thereupon the said justice examined witnesses on oath, and the said without oath, in the due form of law, touching such charge and accusation, and did thereupon adjudge that the same offence had been committed, and that there was probable cause to believe the said to be guilty thereof. And thereupon the said at the town of in said county, personally came before , Esq., one of the justices of the peace of said county, the said justice being then and there lawfully authorized and empowered to act in the premises, and then and there before the said justice, duly entered into a recognizance by which the said defendants then and there acknowledged themselves to owe to the people of the State of New York the sum of dollars, which said recog- nizance was and is subject to a condition thereunder written, which condition was that if should personally be and appear at the next court of to be holden in and for the said county of Rengselaer, at the court-house in the city of Troy, on the day of , 186 , then and there to answer any indictment that might be preferred against him for the offence aforesaid, and to do and receive what should by the said court then and there be enjoined upon him, and should not depart from the said court without leave, then the said recog- POSTPONING TRIAL, SUBPOENAS, ETC. 373 nizance in and by the said condition thereof was to be void, otherwise of force, as by the said recognizance and the said condition thereof now remaining on record in the office of the clerk of the county of Rensselaer, at the court- house in the city of Troy, reference being thereto had, will more fuUy and at large appear. And the said plaintiff say that the next court of to be holden and held next after the signing and acknowledg- ment of the said recognizance, was held at the court-house in the city of Troy, in and for the county of Rensselaer, on the day of 186 , before the judges of the same courtj and that the said last mentioned court com- menced its session on the said last mentioned day, and continued and remained in session until after the day of , in the year last aforesaid, and at the said last mentioned court, held at the place and on the day aforesaid. And the said plaintiffs say, that at the said term of the said mentioned court, the grand jury of Said court duly found and preferred and presented an indictment to the said court against the said for the offence aforesaid. And the said plaintiffs say, that at the said term of the said last mentioned court, holden at the place last aforesaid, in and for the covmty of Rensselaer, the said indictment then being pending undetermined in the said court before the judges thereof, the said foiled in the performance, &c. to^ \C Bill of exertions. Stephen Costar. J At a court of general sessions, held in and for the county of Rensselaer, at the court-house in the city of Troy, before Hon. Gilbert Robertson, Jr., county judge of said county, and Alson G. Niles and Henry Kirby, justices of the peace of said county, designated according to the statute in such case made and provided as members of the court of sessions, on the twenty-third day of September, 1866, an indictment against the said Stephen Costar, of which the annexed, marked A, is a copy, came on to be tried, and a jury having been empanneled and sworn, the following testimony was then and there given, and the following proceeding were then and there had, to wit : Peter G. Brandow, a witness on behalf of the people, being duly sworn, testified as follows : I reside at Athens, Greene county ; am a farmer. On the 29th September, 1863, I was the owner of a bay horse, valued at §200; he was taken on the night of the 29th. {Insert sucfi other testimony and exertions as are contained in the Mil of exceptions.] The evidence here closed, and the above was all the evidence taken on said trial. The court charged the jury, among other things, that the resistance made by the prisoner at the time of his arrest by Sergeant Allen upon the bench war- rant, was competent evidence tending to prove the guilt of the prisoner, and might be considered by them for that purpose. To which portion of said charge the counsel for the prisoner duly excepted. And the counsel for the prisoner thereupon requested the court to charge the jury that in the circumstances attending the arrest, as detailed by the witness Allen, there was no evidence tending to show the prisoner guilty of the oifence charged. The court refused so to charge, and the counsel for the prisoner then an4 there excepted. And the said cause was, on the said 23d day of September, 1866, submitted to the jury, who, on the same day, returned into court and reiidered their verdict, by which they found the said prisoner guilty of the felony wherewith he was charged, in and by the said indictment. And because none of the said exceptions so offered and made do appear upon the record of said trial, therefore, in the presence of the defendant, the said court WRITS OF ERROR AND CERTIORARI, ETC. 407 have set their seals to these exceptions according to the statute in such case made and provided, this 15th day of October, 1866. G. ROBERTSON, Je., Rens. Co. Judge, [l. s.] A. G. NILES, Justice of Sessions, [l. s.] H. KIRBY, Justice of Sessions. [l. s.] R. A. Paementee, Attorney for Defendant. A, 1. At a court of oyer and terminer, held at the court house in the city of Troy, in and for the county of Rensselaer, on the fourth Monday of May, in the year, &c. IThis schedule consists of a copy of the indictment which is generally attached to the bill of exceptions, and reference to the schedule made in the bill itself.'} {^Certificate indorsed on bill of exceptions.'] I hereby certify that, in my opinion, there is probable cause for the within bill of exceptions, or so much doubt as to render it expedient to take the judg- ment of the supreme court thereon. Dated October 23, 1866. G. ROBERTSON, Je., Rensselaer County Judge. And upon this, to wit : At the said court of sessions, held open and continued until the 23d day of October, 1866, at the court-house, in the city of Troy, in said county of Rensselaer. Present — Hon. Gilbbrt Robeetson, Jr., Rensselaer county judge. Hon. Alson G. Nilbs, } t .- , ,, Hon. Hbnet Kiebt, 5 •^"**'<=^ °^ ^^^ sessions. The People, J agt. > Indictment for grand larceny. Stephen Costar. ) As well comes R. A. Lottridge, district attorney for the county of Rensse- laer, who prosecutes for the people of the State of New York, in their behalf,, and R. A. Parmenter, counsel for said Stephen Costar, doth the like. And thereupon the said R. A. Parmenter, counsel for the said Stephen Costar, moves upon the bill of exceptions settled and sealed herein, as well as upon the afBda- vits now on file with the clerk of the county of Rensselaer, for a new trial herein, and of the said Stephen Costar upon said indictment. [jy«re insert copies of the affidavits upon which the motion for a new trial was made.} [Order denying new trial.] At a court of sessions held in and for the county of Rensselaer, at the court- house, in the city of Troy, on the 23d day of October, 1866. Present — Hon. Gilbbet Robbetsom, Jr., County judge. 408 APPENDIX Of FORMS. I- The Peojte, agt. ^ R. A. LoTTEiBGB, District Attorney. Stephen Costor. On reading and filing the bill of exceptions herein and affidavits on behalf of the prisoner, and after hearing R. A. Parmenter, of counsel for the prisoner, on a motion for a new trial, and R. A. Lottridge, the district attorney, in oppo- sition thereto, and duly considering the matter, ordered that a new trial herein be and the same is hereby denied. [02a£iU of exceptions. John Williams and Arthur McGoff. j At a court of oyer and terminer, held in and for the county of Rensselaer, at the court-house in the city of Troy, before Charles R. tigalls, a justice of the supreme court, and Alson G. Niles and Henry Kirby, justices of the peace of said county, designated according to the statute in such case made and provided, as members of the court of sessions, on the 2d day of June, 1866, an indictment against the said John Williams and Arthur McGoff, of which the annexed (marked A) is a copy, came on to be tried, and a jury having been empanneled and sworn, the following testimony was then and there given, and the following proceedings were then and there had > Peter Sullivan, a witness on behalf of the people, being duly sworn, testi- fied as follows : I reside in Lansingburgh. [^Insert evidence of other tmtnesses.J The people here rested, and Jhe following witnesses were called, sworn and examined, and testimony given upon the part of the defendants : [/nsert it.'] The counsel for the defence here offered the defendant Williams as a witness in his own behalf. The district attorney objected upon the ground that the wit- ness was incompetent and his evidence inadmissible. The court excluded him as a witness j to which ruling the counsel for the defendants dvdy excepted. The counsel for the defence also offered the defendant McGoff as a witness in his own behalf Same objections, ruling, and same exceptions. The evidence here closed. And the said cause having, on the 2d day of June, 1866, been submitted to the said jury, they retired to deliberate thereupon, and on the same day returned into court and rendered their verdict, by which they found the said defendants g-nilty of the felony wherewith they were charged, in and by said indictment. And because none of the said exceptions so offered and made do appear upon the record of said trial, therefore, in the presence of the said defendants, the said court have set their seals to these exceptions, according to the statute, this 3d day of June, 1866. C. R. INGALLS, [l. s.] •A. G. NILES, [L. s.] H, KIRBY. [I., s.] I hereby certify that, in my opinion, there is probable cause for the within bUl of exceptions, or so much doubt as to render it expedient to take the judg- ment of the supreme court thereon. 0. R. INGALLS, Justice Supreme Court. Dated June 3d, 1866. WRITS OF ERROR AND CERTIORARI, ETC. 417 [A.] At a court of oyer and terminer, held, &c., [insert copy indictment^. State of Xew York, Rensselaer county. Clerk's oflce, ss : I, Edwin BroTTTiell, clerk of the said county of Rensselaer, do hereby cer- tify that I have compared the foregoing copy certiorari, allowance thereof, judgment record, certificate staying judgment, and bill of exceptions, with the originals remaining on file ia this office, and that they are correct transcripts thereof, and of the whole of said originals. In testimony whereof I have hereunto set my hand and affixed my official [l. 8.] seal, this 27th day of June, 1866. EDWIN BROWNELL, Clerk of Rensselaer county. And now at this day to wit : on the 4th day of December, 1866, at the city of Albany, before the justices aforesaid, came the said attorney for the people of the State of New York. And the said court now here having seen and fully understood all and singular the premises, and made and entered an order upon said writ of certiorari, and return thereto in the words and figures following, that is to say : At a general term of the supreme court of the State of New York, held in and for the third judicial district of said State, at the Capitol in the city of Albany, on the 4th day of December, A. D., 1866. Present — Hox. Hbitiit Hogbboom, j> " Theodose Milles, > Justices. " Chables E. Ixgalls. j The People i agt. > John WiUiams and Arthur McGofF. 3 This cause having heretofore been brought on to argument, and after hear- ing Mr. William A. Beach, of counsel for the defendants, and Mr. B. A. Lott- ridge, of counsel for the people, in reply, and the court having duly deliberated thereon. It is ordered and adjudged that the motion for a new trial in the above en- titled cause be and the same hereby is denied, and the conviction had before the Rensselaer county oyer and terminer be and the same hereby is affirmed. And it is further ordered that the proceedings herein be and the same hereby are remitted to the Rensselaer county oyer and terminer with directions to pro- ceed thereon. Copy, G- K. WINNE, Clerk. Therefore, it is considered that the said proceedings and adjudication, writ ' of certiorari and return thereto be remitted to the court of oyer and terminer within and for the county of Rensselaer, and that the said court of oyer and terminer thereupon proceed to sentence John Williams and Arthur McGofF, the C. P. Vol. n.— 39. 418 APPENDIX OF FORMS. said plaintiff in error, for the offence of robbery Ti^hereof they were convicted at the court of oyer and terminer, held in and for the said county of Rensselaer, on the second day of June, 1866. Judgment signed this 13th day of December, 1866. EDWIN BROWNELL, Clerk. No. 295. waiT OF ERROR PROM COURT OF APPEALS TO THE OOUBT OF OTBS AND TBB- MINEB AFTER JUDGMENT ENTBEBD UPON ORDER OP THE SUPREME OOUBT DENTING A NEW TBIAL. See ante, Vol. I, p. The people of the State of New York, to our judges of our court of oyer and terminer in and for the county of Rensselaer, Greeting : Because in the record and proceedings, and also in the giving of judgment upon a certain indictment made against John "Williams and Arthur McGoff for robbery, in our said court of oyer and terminer and jail delivery before you, as it is said, manifest error hath intervened to the great damage of the said John Williams and Arthur McGoff, as by their complaint we are informed. We being willing that the error, if any there be, should in due manner be corrected and full and speedy justice done to the said John Williams and Arthur McGoff, in this behalf do command you that you send to our justices of our court of appeals, distinctly and openly, under your seal, the record of that judgment, with all things touching the same, and this writ, so that they may have them at the Capi- tol, in the city of Albany, on the first Tuesday of January next, that the record and proceedings aforesaid, being inspected, our said justices of our said court of appeals aforesaid may cause to be further done thereupon for correctiug that error what of right and according to law and custom of the State of New York ought to be done. Witness — Hon. Theodore Miller, one of our justices at the Capitol in the city of Albany, this 13th day of December, 1867. EDWIN BROWNELL, Clerk. Beach & Smith, Attorneys. [Certificate indorsed upon writ.] I allow the vsdthin writ of error, and I expressly direct that this allowance is to operate as a stay of proceedings on the judgment and affirmance thereof, upon which the said wril is brought. THEODORE MILLER, Justice of Supreme Court. Edwin Bbownbll, Clerk. WRITS OF ERROR AND CERTIORARI, ETC. 419 No. 296. BBTOBK TO THE FOBEGOIKG WRIT OF BEEOR. See ante. Vol. I. The record and proceedings whereof mention is within made, appear in a certun schedule to this writ annexed. EDWIN BROWNELL, Clerk. The answer of the judges of the court of oyer and terminer, held in and for the county of Rensselaer within named, a transcript of the record whereof men- tion is within made, with aU things touching the same, we send distinctly and openly vmder our seal of the said court to the judges of the court of appeals of the State of New York as within it is commanded. By the court, [L. s.] EDWIN BROWNELL, Clerk. [Annex to the foregoing the judgment, record on affirmance, upon writ of certiorari. Form No. .] ADDENDA. "While the foregolnig pages were in the hands of the printer, the Legislature passed the acts relating to criminal offences which are mentioned below. Chap. 280. An Act for the better pfotectiod of persons letting, loaning or hiring out chattels. Passed April 22, 1868, tlireo-fiftha being present. The People ofths State of New York, represented in Senate and Assembly, do enact cm follows : Section 1. If any person who shall, by the hiring, loaning or letting thereof to him, receive from any other person any chattel, shall, without the consent of the owner thereof, sell and deliver the same, or any part thereof, or to obtain for himself a loan or any other advantage, shall pawn or pledge the same, or any part thereof, he shall, on conviction thereof, be held guilty of a misdemeanor, and be punished accordingly. But nothing herein contained shall prevent any person from leasing or loaning any chattel for the time that the same was hired or leased to him. § 2. This act shall take effect inmediately. Chap. 430. Au Act for the suppression of the trade in and circulation of obscene literature, illustrations, advertisements, and articles of indecent or inlnioral use, and obscene advertisements of patent medecines. Passed April 28, 1868. The People of the State of New York, represented in Senate and Assembly, do enact as follows : SBcnoN' 1. If any person shall sell, or offer to sell, or shall give away, or offer to give away any, or have in his or her possession with intent to sell or 422 ADDENDA. give away, any obscene and indecent book, pamphlet, paper drawing, painting, lithograph, engraving, daguerreotype, photograph, stereoscopic picture, model, cast, instrument or article of indecent or immoral use, or article, or medecine> for the prevention of conception or procuring of abortion, or shall advertise the same for sale, or write, or cause to be written, or print, or cause to be printed, any circular, handbill, card, book, pamphlet, advertisement, or notice of any kind, stating where, how, or of whom, or by what means any of the said inde- cent and obscene articles and things, hereinbefore mentioned, can be purchased or otherwise obtained, or shall manufacture, draw and expose, or draw with intent to sell or to have sold, or print any such articles, every such person shall, on conviction thereof, be imprisoned in the county jail not more than one year, or be fined not more than one thousand dollars for each offence, one-third of said fine to be paid to the informer upon whose evidence the person so offending shall be convicted, one-third to the school ftmd of the county in which such offence shall be committed, and the remaining third to the treasurer of the Female Guardian Society, in the city and county of New York, if the conviction is in the said city and county, to be by said treasurer applied to the uses and pur- poses of said society, as set forth in their charter or act of incorporation ; and if the conviction is in any other county of this State, then said remaining third shall be paid to the treasurer of the orphan asylum in said county, if there be one, or in equal portions to all of said asylums, if there be more than one", to be applied to the pvirposes of said asylum, or asylums, and if there be none, to the superintendent of the poor of said county, to be applied to the benefit of the poor of said county. § 2. If any person shall deposit or cause to be deposited, in any post of&ce within this State, or place in charge of any express company, or person con- nected therewith, or of any common carrier or other person, any of the obscene and indecent articles and things mentioned in the first section of this act, or any circular, handbill, card, advertisement, book, phamphlet, or notice of any kind, stating where, how or of whom such indecent and obscene articles or things can be purchased or otherwise obtained, with the intent of having the same conveyed by mail or express, or in any other manner, or if any person shall knowingly or willfuUy receive the same with intent to carry or convey, or shall carry or convey the same by express or in any other manner (except in the United States mail), every person so offending shall, on conviction thereof, be subject for each offence to the same fines and penalties as is prescribed in the said first section of this act for the offences therein set forth, and said fine shall be divided and paid in the same manner as therein provided. § 3. All magistrates are authorized on due complaint, supported by oath or affirmation, to issue a warrant, directed to the sheriff of the county within which such complaint shall be made, or to any constable, marshal or police ofBcer, within said county (provided, nevertheless, that nothing in this act con- tained shall be construed to affect, alter diminish or extend, or in anywise inter- fere with the powers and authority of the board of the Metropolitan police), direetiag him, them or any of them, to search for, seize and take possession of such obscene and indecent books, papers, articles and things, and said magis- trates shall transmit, enclosed and under seal, specimens thereof to the district attorney of his county, and shall deposit within the county jail of his county. ADDENDA. 423 or Buch other secure place &g to him ehall seem me«t, enclosed and under seal, the remainder thereof, and shall upon the eonviction of the person or persona offending under any of the provisions of this act, forthwith destroy or cause to be destroyed, the remainder thereof so seized as aforesaid, and shall cause to be entered upon the records of his court the fact of such destruction. § 4. It shall be the duty of the presiding judge of eyery court of sessions or oyer and terminer wit'nin this State, especially to charge the grand jury, at each term of said court, to take notice of all offences committed in violation of any of the provisions of this act. § 5. This act shall take effect on the first day of July, eighteen hundred and siity-dght. Chap. 64.5. An Act to provide for tho more effectual protection of fruit growers against trespassers. Passed May 6, 1868, three-fifths being present. The People of ihe State of New York, represented in Senate and Assembly, ■do enact as as follows : Sectiox 1. Any person 'vrho shall at any time enter upon any orchard, fruit garden, vineyard or any field or enclosure wherein is cultivated any domestic fruit whatever, and which is kept for such purpose, without the consent of the owner or occupant thereof being previously had and obtained, and with intent to take, or destroy, or injure anything there growing, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished as is in such cases provided by law. § 2. Any person who shall willfully cut down, destroy, or in any way injure any tree, shrub or vine within any enclosure or field wherein is cultivated any domestic fruit whatever, and which is kept for such purpose, or shall injure any building, trellis, frame work or any appurtenance belonging to or upon any such field or enclosure, shall be deemed guilty of a misdemeanor, and on con- viction thereof shall be punished as is in such case provided by law. § 3. It shall be lawful for the owner of any orchard, fruit garden, vineyard or any field or enclosure wherein is cultivated any domestic fruit whatever, or for any person employed in the cultivation of, or rightfully in the possession of any such field or enclosure, to arrest and detain in custody and convey before any macistrate of the county wherein such arrest is made, any person who may be found violating any or either of the provisions of this act. & 4. All fines imposed under the provisions of this act when collected shall be paid, one-half to the owner of the field or enclosure wherein the offence was 424 ADDENDA. committed, and one-half to the overseer of the poor for the use of the poor of the county in which conviction is had, and on non-payment of any such fine, the defendant shall be committed to the common jail of the county for a period of not less than thii-ty days, and at the rate of tvro days for each dollar of the amount of the said fine, and costs in addition thereto. § 5. This act shall take effect immediately. Also, Chap. 785 of the Lavs of 1868, entitled "An act to amend and con- solidate the several acts relating to the preservation of moose, wild deer, birds and fresh water flsh. Also, Chap. 793 of the Laws of 1868, relative to immigrants and other pas- sengers arriving at, or departing from the port of New York. IIDEX TO YOLTJIE II. Paos. ACCOMPLICE, EVIDENCE OF (/See Evidence). ADULTERY , 15 AFFRAY : Trhat is 12 may be assault, not amounting to afiray. 12 hov it differs from riot ,..,. 12 ALIBI (See Evidence). ARSENAL (Taking Aems feom) 13 ARMORIES : willful injuries to, &c. , .,.,.., 15 ASSAULT : common law offence • 15 definition of 15, 16 instances of assaults 16 striking at prosecutor 16 riding towards him with intent to injure. ., 16 direct attempt at violence, not necessary.. 17 when indirect preparation sufficient. . .". 17 presenting loaded pistol 17 firing loaded gun through house • • • 17 pursuing man with dangerous weapon 17 pointing cane at one in street • 18 striking at person at a distance • 18 ASSEMBLY, UNLAWFUL... 103 ATTEMPTS TO COMMIT MISDEMEANORS 11 ATTEMPT TO EXTORT •• •••• 15 ATTORNEYS GUILTY OP DECEIT^ &0 ...._• • • • • • • 15 AUCTIONEERS : violation of law by 13 disqualified from acting as such •.• 14 neglecting to report. 14 BARRATRY 26 C. P. Vol. 11—40. 426 INDEX. Faob. BAREETRY 26 BATTERY: common law offence 18 definition of 18 actual infliction of injury 18 least touching of person willfully or in anger 18 instances of. 18, 19 improper act unaccompanied with violence 19 the injury need not be immediate 19 nor literally by the hand of the defendant 19 Self-defence 19 general principle in relation to 20 force may be repelled by. force 20 force used must not exceed necessity of case 20 words wiU not Justify assault and battery 20 person ordered out of house 20 Defence of others 21 defence of wife, child or servant 21 rule in relation to 21 Lawful correction 21 master correcting scholar 21 parent, his child : 21 guardian, his ward 21 master of vessel, his seamen , 21 rule as to husband and wife 21 Jn making an arrest ; 22 rule as to ofScers 22 as to private persons 22 Preservation of the peace 22 Defence of possession of property , 22 unlawful attempt to dispossess another 22 when firing of pistol not justified by civil trespass 22 rule as to resistance to trespassers 23 party holding over after expiration of term 23 collection of railroad tickets 23 defence of possession by owner of goods ,' 23 property seized. on attachment. 24 ri^t of recapture of personal property 24 unreasonable or unnecessary violence to trespasser 25 Accident '• 25 when accidental injury, no battery 25 by sudden fright of horse , 25 other instances of 25 Amicable contest 26 injury by, no battery 25 BAWDY HOUSES {See Nuisance). BUILDING AND LOAN COMPANIES : fraud by of&cers of 27 BUYING LANDS : in suit , . . 25 when grantor is out of possession 20 CAPTION {See Indictment). INDEX. 427 CAUCUSES AND PRIMARY MEETINGS : ^^™' interfering with .* 33 CEMETERIES : destroying tombs in rural, &c 32 injxiring fences, &c., in private 32 killing birds in 32 buying or selling birds IdUed in 32 CHAMPERTY: what is 37 provisions of statutes 37, 38 CHARACTER OF ACCUSED (&c Evidence). CHEATS : at common law 27 must injure the public 28 COMMON SCOLD {See Nuisance). COMPOUNDING MISDEMEANORS 30 CONCEALING ESTATE : by insolvent debtor 29 CONCEALING DEATH OF CHILD , 29 CONCEALING PRISONERS ENTITLED TO HABEAS CORPUS .... 30 CONFESSIONS BY THE PRISONER (See Evidence). CONSPIRACY: definition of, at common law 33 objects of indictable conspiracy 34 the gist of a conspiracy 34 New York statute concerning 34 conspiracies to prejudice ♦.. 35 combination to commit trespass 35 obstructing course of justice 35 causing men to he executed for robbery 35 conspiracy to indict person 35 conspiracy to raise wages 35 by proprietors of canal boats .• 36 to manufacture spurious indigo 36 overt acts 36 conspiracy, to be collected from all the circumstances of the case. ... 37 to commit a misdemeanor 37 COUNTERFEITING OWNERS' BRANDS, &c 30 COUNTS (_See Indictment). COURT-HOUUB : selling liquors in 30 428 INDEX. Faoe. CRIMINAL CONTEMPTS , 31 CRUELTY to ANIMALS 28 (See Peize, Dog, Bull, btc. Fighting.) DANGEROUS ANIMALS (.See NuiSiifdB). DECLARATIONS OF INTENTION (See Evidbncb). DESCRIPTION OF PERSONAL PROPERTY (See Indictment). DISCLOSING FAtlT OF INDICTMENT FOUND : statute 38 does not extend to district attorney, &c 39 duty of court in charging grand juries 39 DISOBEYING COMMAND OF OFFICERS, &c 39 DISORDERLY HOUSES (See NblSANdB). DUPLICITY (See Indictment). DYING DEGLARATIONS (See Evidence). EAVES DROPPERS (See Nuis^ob). ELECTION LAWS, VIOLATION OP: by bribery, inenace, &c. '. 39 by calling out militia i 39 furnishing entertainment, &c <. , 40 hiring party to build log cabin 40 changing or altering ballot 40 disobeying command of inspector 40 obstructing elector 41 voting by non-resident of district 41 aidiiig and assisting non-resident to vote '. 41 persons voting not qualified 41 violation of law by inspectors of election 41 corrupt conduct hy officers at elections 42 'EMBRACERY (See JtrEOBS, Attjbmpts to Coebupt). ENGROSSING 44 ESCAPES (See Vol. I) : . aiding in escape from officer 42 aiding in escape from jail 42 attempts to escape from jail 43 rule as to lawful commitment laid down by Sir Wm. Russell. , 43 void warrant 43 EXCISE LAW: violation of 43 when it does not apply to unlicensed person 44 EXTORTION (See Opfioial Misconduct). ■ imysx. 429 EVIDENCE: ^*®=- derivation of word "evidence"..... J5g distinctions between proof and evidence I59 of what court and jury must be satisfied , 159 evidence of two kinds jgQ direct and positive , _ , ^ jgQ or circumstantial and presumptive jgg distinctions between knowledge and belief 160 161 first point in the examination of a witness , . . . 162 of what individual knowledge consists , 162 jury to inquire into belief of witness and grounds of its foundation . '. 163 division of circumstantial evidence into <^rtain and presumptive evidence 164 certainty of conclusion, how arrived at , 164 sulyect of inductive reasoning illustrated by calculating machine 165, 166 division of presumptions into violent or strong, probable and slight . .' 166 violent jiresumptions....' 167 probable presumptions 167 light or rash presumptions 167 instances of 168 division of presiunptions into natural and legal presumptions 168 what are meant by legal presumptions 169 by natural presumptions 169 relative strength and bearing of direct and circumstantial evidence . . 170 observations upon 17I-I75 attempt to discriminate between direct and circumstantial evidence 175 176 examples of cases of mistaken identity 176, 177 distinctions between a circumstance and an inference 178 higher degree of certainty necessary in criminal than in civil actions 180 actual commission of the crime should be clearly established 180 each circumstance shoiild be distinctly proved 181 the circimistance relied upon should be such as is necessarily or usually incident to the fact charged 181 • rule when the number of circumstances depend on the testimony of one witness , 181 difficulty of proving the negative to be allowed due weight 182 when direct evidence not to be held refuted 182 evidence of circumstances to be confined to actual commission of the fact 183 jury to be convinced of guilt fi-om combination of circumstances. . . . 184 when variation of circumstances does not destroy proof 185 converse of preceding rule 186 absence of proof, a strong argument 186 no repugnance in chain of circumstances, of what jiroof 186 in cases of doubt, safest rule is to acquit 186 the best evidence.to be adduced 187 weight to be given to circumstances in favor of accused 187 On whom the burden of proof rests 187 when the burden sMfts 188 rule when the indictment negatives an exception or proviso 188 rule in relation to proving a license 188, 189 rule in relation to insanity 189 remarks upon circumstantial and direct evidence 190 Motives to commit crime 191 remarks upon 191 relevant acts of party, explanatory of motives, evidence against him. 192 presumption is, that necessary consequences of acts were intended. . 192 how evidence allowed on question of intent 192 430 INDEX. EVIDENCE (Continued) : Declarations of intention 193 remarks upon : , 193 considerations in regard to, laid down by Mr. Best 193 Preparation for the commission of crime. 194 JPossession of the fruits of crime 195 foundation of the presumption 195 the possession must be unexplained 195 it must be recent 196 the possession must involve the defendant's exclusive control 196 how force of the presumption increased 196 possession of stolen goods, not evidence of burglary 196 possession of fruits of crime, now used as evidence 197 2%e sigtpression, destruction, simulation and fabrication of evidence. . . 198 deemed a prejudicial circumstance of great weight 198 examples of this nature 198 case of murder by poisoning 198 concealment of death 198 attempts to prevent post mortem examination. 198 remarks of Mr. Wills upon , 199 Unexplained appearances of suspicion and attempts to account for them by false representations 199 general rule '. -• 199 cases, illustrating doctrine 199 false and contradictory statement 200 Defence by proving an alAbi 201 what it is 201 when satisfactory and conclusive 201 credibility of an aUbi when strengthened 201 what the defence involves ' 202 Character of accused 202' remarks of Sir Wm. Russell, upon 202 remarks of Mr. Sergeant Talfourd 203 when evidence of particular acts, not allowed 203 prisoner may call witnesses to his general character , 203 no legal inference can arise from omission of witnesses to character. 204 remarks of Ch. Justice Shaw, in regard to evidence of character. . . . 204 prosecution cannot give evidence of bad character, unless inquiry opened by defence 205 when good character a defence in prosecution for larceny 205 Confessions by the prisoner 205 upon what grounds receivable 205 confessions divided into direct and indirect confessions 205 what are indirect confessions 205 voluntary confession of guilt, when satisfactory evidence 206 acts of concealment, disguise or flight 206 confessions should iDe taken together 206 a doubtful species of evidence 206 to be received with great caution 206 how to be corroborated, 206 confession influenced by threats, menaces, &c., not admissible 207 so, also, when obtained by promises 207 inducement with reference to one charge, will exclude confessions of another ofience 208 cases where promises or threats ceased to have influence upon prisoner 208 prisoner should understand warning not to rely upon favor 208 what is meant by term " voluntary " 208 inducement or threat must be by a person in authority 208 INDEX. 431 EVIDENCE (Continued): who are persons in authority 209. incompetent promises . .' , . 209 how legal imprisonment affects confession 210 question put to prisoner hy magistrate 210 instances of rule , 210 confessions made upon a judicial examination ^ 210 confession obtained by artifice or deception 211 confession evidence only against the party mahing it 211 when it implicates other prisoners 211 whole of admission to be given in evidence 211 prisoner's admission not conclusive 212 mode of introducing confessions in evidence 212 generally not necessary to negative promise or inducement 212 proof of identical language not required > 212 admissions of infant evidence against him 212 prisoner's declarations, evidence on questions of consanguinity 213 rule, as to admissions made by intoxicated prisoner 213 Evidence of accomplices 213 accomplice competent witness for prosecution 213 conviction on uncorroborated testimony of accomplice is legal 213 credibility, of accomplice a question for the jury 213 when practice of judges to advise juries not to convict 214 what corroboration should be required 214 accomplice should be corroborated as to person of prisoner 215 same rule applies when two or more accomplices are sworn 215 rule where evidence of accomplice is confirmed as to only some of the prisoners 215 Dying declarations 216 when dying declarations are admitted 216, 217 peculiar cases of homicide 216-218 deceased must have been a competent witness 216 evidence must have been admissible, had deceased been sworn 217 interval of time between declarations and death 217 not necessary that apprehension of danger should be expressed 218 declarations admissible in &vor of accused 218 the rule, when declaration is in writing 219 same rules apply to dying declarations as to examination of witness on oath 219 open to direct contradiction 219 court to declare on admissibility of declarations 220L PACTOKS AND AGENTS : frauds by 47 FALSE IMPRISONMENT: by officers 47 FALSE BRANDS, LABELS, TRADE MARKS, &c 49 FERRIES : ferrying without a license 48 on Niagara river 48 remedy for by statute penalty ; 48 violation of ferry recognizance 48 432 INDEX. Faob. FIRING WOODS: setting fire to 49 refuBing to help estinguish 49 FORCIBLE ENTRY AND DETAINER: defmition of 1)y Blackstone 44 how made at common law • 44 statute concemmg 45 peaceable, entry, detainer by force. 45 keeping unusu^ number of people in house 45 placing men at a distance from house 45 lessee opposing entry of lessor 45 court may award restitution 46 FOREIGN CONVICTS: bringing of, to this State 46 FORNICATION : not an indictable olfence 47 FRAUDULENT CONVEYANCES : statute concerning...... 47 GAMING : frauds in 52 winning or losing at play 52 keeping place for gambling 52 permitting of, by owner of boat, &c 22 gaming houses (See NuiSAlfOE). GAS: injuring gas metre 53 throwing gas tar in certain waters 53 GUNPOWDER (&e Nuisaitct), HIGHWAY: obstructing {See NuiSAjfCB): not requiring (See Nuisancb). running horses on 97 wild animals in 108 HOPS : adulteration of • 53 ICE: cutting of, in Hudson river 54 INN AND HOTEL KEEPERS : frauds on 54 INFJICTED PERSONS (See Nuisance). INDEX. 433 INDICTMENT (See Vol. I) : what is 110 is framed either at common law or statute 110 whether common law or statute to he followed 110 TTie caption : definition of caption Ill no part of the indictment ^ Ill is a part of the record. Ill practice in this State in attaching caption Ill should show jurisdiction of court Ill and that indictment was found hy twelve jurors Ill when indictment transmitted to superior tribunal, caption is attached 111 omission of words "then and there" 112 caption not necessary in court of sessions 112 description of justices of sessions in 112 whether names of the grand jurors are to he mentioned 112 objections taken by motion to quash or by demurrer 112 General frame of the indictment and the particularity thereof: general result of the rules of pleading 112 what the indictment should show upon its face 112 objects for which particularity is required 112 objects stated by Mr. Starkie 113 describing offence in words of the statute 113 should state all facts and circumstances constituting statute offence. 114 the general rule laid down 114 The statute of jeofails: omission of defendant's title, &c 115 ' omission of residence 115 of words "with force and arms" 115 omission to charge offence to have been committed contrary to statute 115 defects and imperfections in matter of form 115 Commencement of the indictment : practice stated 115, 116 Counts in the indictjnent : when advisable to insert more than one count 116 definition of word " count" ■• 116 how different counts are commenced 116 use of word " afterwards" 117 how repetitions may be avoided 117 object of using different counts 117 Duplicity : what is 118 joinder of two or more offences in one count not allowed 118 joinder of capital offence and misdemeanor in one count 118 distinct offences requiring different pvmishments 118 one offence charging several smaller ones not multifarious 119 alleging offences cumulatively 119 instances of such pleading 119, 120 describing one offence and insufficiently describing another 120 duplicity a fault in form only 120 whether within the statute of jeofails 120 Joinder of offences : no objection in law to the insertion of several distinct felonies, of the same degree 121 and no ground of demurrer or arrest of judgment 121 but no more than one distinct offence should regularly be charged.. . 121 C. p. Vol. n.— 41. 434 INDEX. Pxol. INDICTMENT (Continued) : and in such case court may quash indictment or compel election ( See Election, Vol. I.) .' 121 •where only one criminal transaction is involved 121 instances of most common joinder of counts for felonies 121 counts for different degrees of the same offence 121 joinder of two or more misdemeanors 122 practice of quashing or compelling election does not apply in such cases ; 122 joinder of felonies and misdemeanors 122 felony may be joined with constituent misdemeanor 122 misdemeanor in nature of corollary to the felony 122 Surplusage : in an indictment will not vitiate. . ; 122 indictment for misdemeanor stating other facts falling short of felony 122 unnecessary words may be rejected , 123 when indictment explains what is meant by general allegation ..... 123 Joinder of defendants : several may be indicted jointly 123 or each separately 123 instances of such cases 123 duty thrown on several, each individual bound 124 where offences are distinct, two or more defendants cannot be joined 124 Clerical errors : mere verbal or grammatical error? not fatal 124 illustrations of the rule 124 Technical averments : better course to describe offence in words of act 125 citation of cases illustrating the subject , . 125 word not in statute substituted for one that is 125 when phrase " unlawful" not essential 126 words " wrongfully," " unjustly," etc 126 word " feloniously," essential in indictments for felony 126 use of word "knowiiigly" 126 Stating the defendant's name : when prisoner's name is unknown , 127 practice to indict prisoner by some specific name 127 name should be repeated to every distinct allegation 127 when plea of abatement will lie 127 omission of middle name no error 127 "junior" no part of a name 128 mistakes in spelling name 128 if sound not affected error not material 128 cases illustrating the rule 128 two names the same in original derivation 128 what is meant Ijy " idem sonans" 128 a question for the jury to determine 128 use of an " alias dictus," whether "alias dictus" of a christian name 128 statement of addition, degree or mystery of no importance 128 usual to name defendant's residence 128 when correct statement of residence not material 129 corporation how described , 129 Statement of the names third parties : no addition necessary at common law ; , 129 when described as persons unknown 129 property of partners or several owners 129 not necessary to name aU partners or owners 129 INDEX. 436 INDICTMENT (Continued): ^^'' -ifllegations of time and date : as a general rule time not material 130 but some time should be averred to each material fact 130 in matters of record true date should be stated 130 in perjury day should be truly laid ; 130 so, also, where time is limited for finding the indictment 130 in cases of murder, death to be laid within a year and a day 130 m burglary in first degree, night time should be alleged 130 dates may be stated in Arabic figures 130 phrase "year of our Lord " may be dispensed with 130 so, also, "A. D.," in initials ' 130 if date be laid in blank it is insufficient 130 an averment of " divers days," or two distinct, days is bad l30 allegations as to time in nuisance 130 in allegations of neglect or non-performance, timfe unnecessary 131 time subsequently referred to by words " then and there" 131 Venue : oflFence should be shown within jurisdiction of court 131 venue should in all cases correspond with jiu-isdiction 132 venue laid in a ward in city 131, 132 in burglary, situation of premises should be truly stated 132 so, also, in forcible entry and detainer 132 when offence committed within five hundred yards of boundary of county 132 Description of personal property in : chattels to be specifically described by their appropriate names 132 the certainty should be to a common intent 132 particular description not necessary in larceny 133 principles upon which the doctrine is founded 133 bank notes how described 133 whether number of bills stolen should be stated 133 description of gold coins 134 description of five animals 134 description of handkerchiefs 134 a loose and indeterminate designation bad 134 description of chattels which are the subject of larceny only, under peculiar circumstances 134 a lamping description will not answer 134 description of animals 135 Value of articles : some value milst be attached to article stolen , 135 when several articles of the same kind, are stolen at the same time.. 135 better way to give a separate value to each distinct article 135 not necessarry that property should be of value to third persons 135 Written instruments : where written instrument enters into gist of offence, it should be set • out 136 how written instrument set out in forgery 136 may be omitted when forged instrument is lost or destroyed 136 or when last traced to the accused 136 in forgery not necessary to insert vignettes, figures in margin, etc.. . 136 when indecent libel need not be set out at large 136 instrument in foreign language should be translated and explained. . . 137 indorsement on note or bill need not be set out 137 account need not be set out when indictment for for^g a receipt upon it 137 in libels, when part may be stated and part omitted 137 436 INDEX. Fxs*. INDICTMENT (Continued): instrument preceded by words " to the tenor following, etc." 137 explanation of these words 138 explanation of "in the words and figures following" 138 explanation of ".in manner and form following" 138 explanation of the word. " purport" 138 variance of a letter where "the tenor is set out 138 in larceny of written instruments not necessary to set out copy 138 Conclusion of the indictment : how made 139 not necessary to charge as committed contrary to the statute 139 concliision of indictment at common law 139 Indictments for specific offences : Assaults 139 for assault with intent to kill, enough to state assault and bat- tery, and aver the intent 139 but it should state the means used 139 assault upon ofScer in the discharge of his duties 140 Arson 140 description of building as a " dwelling bouse " 140 how building described as regards possession 140 barn upon farm worked on shares 140 goods in building burned althojigh building not burned 140 with intent to defraud insurance company, must allege house insured > . . . 140 not enough to allege intent to defraud insurance company 140 Burglary 141 technical words are "broke" and "entered," "feloniously" and "burglariously" 141 technical averment at common law, how stated 141 how stated, where doubts as to the ownership of the building. . 141 building rented in separate apartments 141 statement of time in burglary in third degree < 141 property taken by burglary or robbery in one county and brought into another 141 in first degree the entry should be charged in one of the modes pointed out by statute , 141 unnecessary to state the kind of felony intended 141 Bigamy 142 indictment should state both marriages 142 and that former consort was alive at second marriage 142 unnecessary to allege first marriage still subsisting 142 Conspiracy 142 should either set forth the object specifically, or show that the means intended are criminal. 142 where the object is a legal crime the means intended need not be stated 142 conspiracy to cheat must set out the means intended 142 conspiracy to obstruct the course of justice 142 prisoner conspiring with others unknown 142 the words " falsely and maliciously" are not essential 143 conspiracy to procure party to be arrested for larceny 143 Disorderly house 143 indictment for, not vitiated. by charging as bawdy house and tip- 'pling house in same count 143 what is a sufficient charge for w . , . 143 INDEX. 437 INDICTMENT (Continued) : ^^"' Disinterring dead body 143 not necessary to allege body that of a human being 143 need not designate a particular grave yard 143 Duelling 143 need not set out the words of the letter 143 nor the substance thereof 143 Embezzlement , 143 must charge that defendant received the property as clerk or servant 143 alleging that money was received as an agent, bad 143 a single count may charge goods over andimder twenty-five dol- lars in value 143 Fraud 143 must give the names of the persons defi-auded 143 or state that they are imknown 144 Forgery 144 what is a good allegation of forgery 144 what a sufficient statement for forgery in third degree 144 unnecessary to state letters or marks in margin of bill 144 where forged instrument is lost or destroyed 144 check drawn in name of partnership 145 letter directed to cashier 145 forgery of two distinct instruments 145 forging a mortgage 145 not vitiated by pursuing forms of old statute 145 the intent to defraud must be charged 145 intent to defraud a bank 145 having counterfeit note in possession 145 when omission not a material variance 146 certified check on bank 146 certificate of acknowledgment to a deed 146 False pretences 146 the false pretences must be set forth 146 and negatived by proper averments 146 not necessary to negative all the false pretences 147 not necessary to state the particular way property was obtained 147 signature to note obtained by false pretences 147 need not state particular value of property 147 signature of person obtained to false instrument 147 obtaining signature to conveyance of land 147 cases cited upon indictments for 148 Homicide '■ 148 imnecessary to change common law form of the indictment .... 148 may state commission with weapon to the jurors unknown 148 technical words used in indictment for. . .*. 149 when by omission of proper allegations, the ofience will be man- slaughter 149 object of the indictment 149 when no advantage taken as to uncertainty for time 149 Larceny 150 technical averments 150 how the ownership of property laid. 150 when owners unkoown 150 course to be pursued when doubts as to ownership 150 Lotteries 150 citation of authorities upon indictments for 150, 151 438 INDEX. Pagi. IJTDICTMENT (Continued): Nuisance 151 -maintaining dam upon private stream 151 storing gimpowder near dwelling houses 151 contents of indictment for selling unwholesome provisions 151 violating order of board of health 151 unless allegation of continuance, no judgment for abatement. . . . 151 railroad company neglecting to maintain fences, &c 152 Official misconduct 152 attorney buying promissory note 152 extorting more than legal fees 152 justice of the peace discharging offender 152 neglect to keep turnpike in repair ....>.. 153 neglect to repair bridges, &c '. 153 Perjury and subornation of perjury 153 oath, how stated 153 how perjury assigned upon it 153 court to be correctly described 153 need not be avered that false matter was material 153 enough that the materiality appears on face of indictment 153 need not set forth facts giving jurisdiction 153 enough if substance and effect of both are stated 154 so, also, if false oath be in writing 154 false oath to written complaint 154 false matter should be expressly contradicted 154 words " unlawfully and corruptly" to be used 155 attempts to induce perjury 155 indictments for subornation of perjury 155 Rape 155 the technical words 155 on children within the age of ten years 155 the word " ravished" in such cases omitted 155 Receiving stolen and embezzled goods 155 ■ need not aver that prisoner was clerk or servant 156 what allegations are necessary 156 should aver property received with a felonious and fraudulent intent 156 Robbery 156 technical words used in indictment for 156 Selling liquor without license 156 specifying great-variety of liquors sold , 157 uncertain words -when rejected as surplusage 157 Seduction 157 averment of mutual promise not necessary 157 Second offence 157 when increased 'punishment, iirst offence to be set out 157 allegations in indictment for petit larceny, second offence 157 should aver pardon or other discharge 157 what should be set out when first conviction was before, a court of limited jurisdiction 157 in such cases facts giving jurisdiction should be alleged 158 JAILS : selling and bringing liquor into 56 JEOFAILS : statute of (See iNDiCTMENt). JOIKDER : INDEX 439 Page. of offences (See Indictment). of defendants (See Indictment). JURORS : improper conduct of. 55 ■ improper conduct in drawing of 55 LEWDNESS (See Nuisance). LETTERS : opening and reading sealed letters 88 publishing contents of 88 LIBEL: ground of criminal proceeding in 56 what is _fy - 56 may be expressed in printing, writing, signs or pictures 57 may be by circumlocutions 57 is either a writing or without writing 57 publications of obscene or indecent writings 57 citation of cases illustrating the doctrine as to what has been held libellous 58 to complete the offence there must be a publication 59 printer liable for printing 59 party liable by distributing copies 59 or by employing agent for that purpose 59 letter addressed to plaintiff and opened by his clerk 59 rule laid down by Hawkins ■ 59 reading contents of 59 showing contents to another 59 in prosecutions for libel the truth may be given in evidence 59 jury to determine law and fact 60 changing place of trial of 60 rule as to reporters, editors, ifcc, of newspapers 60 comments on - - . — 60 LOGS AND LUMBER: defacing marks on 62 LOTTERIES : forbidden by the constitution 61 carrying on, statute in relation to 61 printing and publishing notices of 61 publishing account of lottery to be drawn in another State 61 selling or procuring tickets in 62 LUNATICS : improper confinement of • 62 MAINTENANCE : definition of . . . - • ■ 72 440 INDEX. MALICIOUS MISCHIEF : general statute in relation to 63 common la,w offence as defined by Blackstone 64 of what the common law offence may be said to consist 64 collection of cases illustrating the doctrine of 64, 65 disposition in this State to narrow down this class of indictable offences 65 comments on conflict of authority in these cases 66 killing a horse r 66 secretly committing mischief 67 essence of the crime is the injury to property 67 unhooking traces to a harness 67 MALICIOUS TRESPASS : statutes concerning 68 MARRIAGES : solemnizing in certain cases 71 MILITIA LAW: violation of 69 refusing to obey officers of i 69 retaining military property 69 MILE STONES AND GUIDE BOARDS : destroying them, &c 67 MILK : adulteration of 70 MILL DAMS: destroying them 68 MISCARRIAGE : attempting to produce 68 administering drugs for 68 soliciting medicines for 68 MISDEMEANORS : definition of, at common law 1 what are 1 of two kinds, mala in se and nutla prohibita I division of statutory misdemeanors 1 wlien remedy by statute law and when at common law 2 statutory provision must be strictly followed 2 statute prohibiting an act which was before lawful 2 act prohibited which was not criminal at common law 2 what offences are penal at common law 3 the act must be done 3 it must be with a criminal intent 3 it must be to the injury of the public 3 public wrongs '"!".' ^ injuries to private rights not indictable 4 instances of 4 list of misdemeanors 5 attempts to commit ,. . . 11 INDEX. 441 MONUMENTS IN BOUNDARIES : ^"'' destroying them 67 MOTIVES TO COMMIT CRIME (See EviDENCi;). NUISANCE : what it is 72 how divided 72 public nnisances subject of critninal jurisprudence 72 instances of private nuisances not indictable •. 72 tinman carrying on trade 72 erecting a coke oven 72 definition of, by commissioner's of penal code. 73 when common law nuisance not changed by statute 73 Bawdy houses : keeping o^ a common nuisance. 73 bawdy house defined. 73 residence of single prostitute not a bawdy house • 73 case of a lodger , , 73 feme covert may be guilty of keeping 73 where she acts in conjunction with her husband 73 renting house for prostitution , 74 lease, upon conviction for, void , 74 Disorderly houses : keeper of inn harboring thieves, &c 74 disorderly play houses, booths, stages, &c 74 house disturbing and disquieting neighborhood, &c 74 tending to corruption of public morals , 74 common tippling houses 74 Gaming houses : are a nuisance 74 public inn with devices for gambling 75 keeping billiard room without noise or bets 75 bowling alley kept for gain 75 paying for table by the rub 75 what illegal gaming implies 75 Eaves droppers : who are 75 Common scold : is a pubUc nuisance 75 particular expressions need not be proved _ 75 Play houses : in certain cases are a nuisance 76 Infected persons going in public : exposing person with contagious disorder 76 infectious sheep on one's own land 76 sick person in his own house 76 immigrant depot 76 Selling unwholesome food : mixing alum in bread 77 flesh of diseased cow 77 Combustive and explosive materials : manner of keeping may be a nuisance 77 erecting mills and magazines for gunpowder 77 putting combustible materials on ship • -.- 77 C. p. Vol. 11—42. 442 INBEX. Fagb. NUISANCE (Continued) : carrying gunpowder through streets' 77 keeping it in an exposed place 77 Obstructing a highway : a nuisance at common law .*. 78 rendering it less commodious to the public 78 any unauthorized continuous obstruction 78 raUroad company erecting building and leaving cars in hightray .... 78 distiller obstructing by carts and teams 78 not essential that road should be unsafe or impassable 78 stall for fruit on public street 78 distributing handbills in street 78 throwing down skins, &c 78 efEigies in shop window 79 collecting crowds of idle people : i . 79 vessel sunk in river 79 Not repairing a highway : permitting public highway to be grossly out of repair 79 allegations necessary agaiiist plank road company 79 Offensive trades and business : carrying on unwholesome and iojiiriOus business , 80 manufacture of acid spirit of sulphur 80 steeping stinking skins in water - 80 brew houses, glass houses and swine yards. 80 refusing to bury dead body 80 smells ofTensive to the senses 80 how far annoyance necessary 80 slaughter and boiling housed . . 80 business of a horse boiler 80 duration of business > 81 increase of annoyance 81 habitations subsequently built near offensive trade 81 no length of time will legalize public nuisance 81 establishments erected prior to adjacent buildings 81 Open lewdness : punishable at common law 82 the intent always material. 82 ^hat facts jury to .find 82 when doors are shut and windows closed, not sufficient 82 bathing near habitations 82 urinal not a public place 82 Keeping dangerous and troublesome animals , ...: ■, 82 ferocious dog attacking persons 82 keeping a crowing cock 83 OFFENSIVE TRADES AND BUSINESS («ee NciSANCE). OFFICIAL MISCONDUCT : statute concerning. g3 ofSoer neglecting duty at common law ; . 83 what an acceptance of ofiice implies 83 magistrate acting partially or oppressively 83 offence by commissioners of excise. ••••...... 83 extortion by public officers 83 officers receiving unlawful fees. . . . .■ 83 justice leaving blanks in process 83 law partners of district attorneys 84 OFFICERS : INDEX. 443 PasIs. neglecting duty.. ., 85 conniving at escapes 85 omitting to execute process • 85 receiTing rewards 86 neglecting to deliver books to successors, &c 86 OFFICES : selling oflSces 86 procinring appointments to •••••• 86 when grants and deputations to, void 87 agreements to receive fixed salary 87 reserving part of fees • , 87 agreement to witlidraw*applicatipn for.. , 87 OPENING AND READING SEALED LETTERS 88 OVERSEERS OF POOR: neglect of, in relation to bastards 87 OYSTERS : unlawful taking of. 88 PASSENGER TICKETS : illegal sale of. 92 PAWNBROKERS : persons acting as 90 PAUPERS : removal of 98 PERSONS FOUND ARMED, ETC.: at nigbt, with dangerous weapons 90 having implements of burgla^ 90 PETIT LARCENY: statute in relation to 89 same general rules apply as to grand larceny • . . , 89 a felony at common law ,. . • 89 rule not changed by Revised Statute^ ..,., 89 PLAY HOUSES (5'e« ,Nw5.«fCR). POISONS: neglecting to label • 92 safe and labelling of, in cities ...>.. 93 POSSESSION OF THE FRUITS OF CRIME (See Etidbncb). 444 INDEX. Paos. POSTING FOK NOT FIGHTING DUEL 90 PRACTICING MEDICINE : hj persons not licensed 89 PREPARATIONS FOR THE COMMISSION OF CRIME (See Evidence). PRESCRIBING MEDICINE: by intoxicated persons , 89 PRIZE FIGHTING: statute in relation to '. 90 duty of sheriffi, &c '. 91 holding offenders to keep the peace 91 instigating and promoting prize fights 91 acting as umpire or judge at 91 PROCESS: unauthorized, granting of ■ . . 104 RACING: of horses or other animiils 96 racing horses in certain places 96 RAILROADS : engineers and conductors intoxicated 97 neglect to ring befl. or blow whistle 98 forming of railroad trains 98 willful injury to 98 REMOVING HUMAN REMAINS 97 RESISTING THE EXECUTION OF PROCESS 99 RUNNING HORSES: on highways > 97 RIOT: described by Hawkins 93 must be by at least three persons 94-96 difference between riot and rout , ^ 94 distinctions between and trespass 94 must be laid in terrorem populi 94 person joining, with rioters 94 persons encouraging or promoting riots 95 joint responsibility of rioters . . -. 95 Mr. Wharton's remarks on riotbus homicide 95 passive spectator after order for dispersion 95 ROUT: what it is .- 96 INDEX. 445 SCHOOL MEETINGS: ^*''"' making false deelarations at 100 SHAKERS : secreting child 100 SLUNG SHOT: making and selling 100 SPIRITS : adulteration of 100 STATE PRISON: bringing or conveying letters to or from 99 STEAMBOATS: mismanagement of 101 SUING IN NAME OP ANOTHER 99 SUPPRESSION OP EVIDENCE (SeeEvmBNCB). SURPLUSAGE (S«e Indictment). TELEGRAPH: opening and reading sealed telegraph dispatches 88 trillfullj divulging contents of telegraph dispatches 101 injuries to telegraph posts 102 TOLL BRIDGES : destroying ■ 102 TURNPIKE GATES : destroying 102 TRESPASS : malicious 68 on lands in cities and villages 102 UNWHOLESOME POOD, SELLING OP (5^ee Nuisance). UNLAWFUL ASSEMBLY 103 USURY 104 VALUE: of articles (^See Indictment). VKNTJE (See Indicimbnt). 446 INKEX. Page. VESSELS (See Steamboats). attaching landing line to mAchinery of.. « ^,...-,... .... 105 racing and creating an undue quantity of steam 105 negligence in lading 105 WAREHOUSEMEN AND WHARFINGERS : issuing false receipts 106 fraudulently transferring property 106 WEIGHT MARKS: &lse on casks and packages 106 WILD ANIMALS: in public highways <. 108 WRECKED PROPERTY 109 WRITTEN INSTRUMENTS {See iNDiciMBirr). lEDEX TO FORMS. Page. ATTACHMENT (See titles Spbciai, Sessions, Sdmmabt CoNnoriONS, Bastaedt, Cokoneks' Inquests, Gkanb Jubt, Etc.) : attachment against -witness for disobedience of subpoena, upon trial of an indictment , 376 attachment against witness bound by recognizance to appear and testify on trial of indictment 377 return to attachment against witness 378 BAIL (iSee Recognizances, Etc.)- BASTARDY: application to be made by an overseer or superintendent of the poor, for an examination in a bastardy case 242 examination of mother of a bastard child before its birth 243 a similar examination, after the birth of a bastard child 243 warrant of arrest for the putative father before the birth of the child 243 a similar warrant after the birth of the bastard child 244 " a similar warrant issued before birth of the child, by a special jus- tices' court in a city 244 indorsement to be made upon the warrant, when the putative father is in another county, of the sum in which the bond is to be taken. 245 indorsement to be made by another justice, when the warrant is executed in a county different from that from which it was issued. 245 bond to be taken by justice who indorsed the warrant, or by some other justice of the same county 246 certificate to be indorsed upon warrant, by justice taking the fore- going bond .^ 247 subpoena for witnesses in a bastardy case 247 order of filiation in a bastardy case 248 bond on adjournment in bastardy cases 249 order of filiation, made in the aJbsence of the reputed father, who was apprehended in a foreign county 250 warrant of commitment for putative father of bastard. 250 warrant for discharge of putative father of bastard child after his commitment, upon an order of fiUation 251 bond to "be executed by father upon the order of filiation 252 summons to the mother of a bastard child, to show cause why she should not be made to support it 253 order to compel the mother of bastard to pay &r the support of her child 254 a warrant to commit the mother of a bastard 255 bond to be given by mother of bastard to appear at the court of sessions 256 a warrant for the commitment of the mother of a bastard for refusing to disclose the name of the father 257 448 INDEX TO FORMS. Page. BASTARDY (Continued) : a warrant for the seizure of the property of an absconding father of a bastard 257 order reducing the amount directed to be paid by the father of a bastard ■ • • • 258 notice by superintendent or overseer of the poor that application will be made to the court of sessions to increase the amount made pay- able by the order of filiation 259 notice to be given to the superintendent or overseer of the poor for the purpose of reducing the amount named in the order of filiation 259 notice of appeal from order of filiation 260 siibpcBna on appeal in a bastardy case 261 BENCH WARRANT 352 BILL OF EXCEPTIONS. .• 410 certificate staying proceedings to be indorsed on bill of exceptions . . 413 CALENDAR OF PRISONERS IN JAIL '. 349 CAPTION TO INDICTMENT \ 392 CERTIORARI, "WRIT OP: writ of certiorari to remove conviction on indictment from the court of sessions to the supreme court 402 return to writ of certiorari where a motion has been made for a new trial on the ground of newly discovered evidence 403 notice of argument of return to writ of certiorari 408 judgment record of afiSrmance upon writ of certiorari 413 CERTIORARI TO SPECIAL SESSIONS : affidavit for certiorari to court of special sessions 332 indorsement to be made upon the foregoing affidavit 334 writ of certiorari to court of special sessions 334 recognizance to be given by prisoner upon the removal of a conviction had before a court of special sessions into the court of sessions .... 335 order to release prisoner upon the execution of the foregoing recog- nizance 336 affidavit for writ of certiorari to review conviction had before a court of special sessions held by a police justice in a city 336 writ of certiorari to review conviction had before a court of special sessions held by a police justice in a city 338 return to a writ of certiorari to a court of special sessions 338 return to writ of certiorari to special sessions, where the trial was had before a jury 339 order to file return to writ of certiorari, or show cause 340 notice of argument of return to writ of certiorari 341 order setting aside conviction had in a court of special sessions ..... 341 affidavit to quash writ of certiorari 342 order quashing writ of certiorari 343 mittimus on affirmance of conviction by court of special sessions. . . . 343 CLERK'S STATEMENT: in regard to indictments at criminal courts to be transmitted to the Secretary of State 390 INDEX TO FORMS. 449 Pagb. COMPLAINTS (iSfee titles Search "Warrants, Surety of the Peace, Summary Convictions, Special Sessions, Etc.). COMPLAINTS FOR ARREST : general form of complaint for warrant of arrest 285 complaint to obtain warrant of arrest for larceny 285 another form of complaint made to a justices' court in a city. 286 examination of complainant and witnesses under the foregoing com- plaints preliminary to the issuing of the warrant of arrest 287 oath to be administered to complainant and witnesses on the foregoing examination 287 {See Warrants or Arrest, p. 295.) COMPROMISE OF CERTAIN MISDEMEANORS BEFORE INDICT- MENT : acknowledgment of satisfaction by prosecutor 319 warrant to discharge the defendant from custody upon settlement, when he is imprisoned at the time 320 order discharging recognizance of the prisoner upon settlement of the case, where the defendant has been held to bail (to be indorsed upon the recognizance) 320 a warrant to discharge a witness from custody, who had been com- mitted to jail for refusing to enter into a recognizance for his appear- ance, the case having afterwards been settled 321 CONTEMPTS (See Summary Convictions). CONVICTIONS (for records of convictions, see Summary Convictions and Special Sessions) : statement of by district attorney ." 387 transcript of convictions and sentences by clerk of court •. 389 clerk's return of certificates of conviction, made by courts of special sessions < 391 CORONERS' INQUisSTS : subpoena for witness 232 oath to witness , 233 oath to interpreter 233 oath to be administered to the foreman of a coroner's jury 233 oath to the other jurors 234 attachment against a witness 234 return to the foregoing attachment 234 general form of inquisition 235 statement for inquisition when the deceased was murdered 235 a similar statement in a case of self defence 236 where one commits suicide 237 where the person died from intemperance and want of food 237 where one is accidently drowned 237 statement for inquisition where a bastard child is destroyed 238 statement where one has died a natural death 238 examination of witnesses before a coroner's jury (to be attached to the inquisition) 239 coroner's warrant for the arrest of the person who has been charged by the inquisition with murder 240 C. p. Vol. n.— 43. 450 INDEX TO FORMS. Page CORONERS' INQUESTS (Continued): recognizance by witness on coroner's inquest 240 a similar recognizance where the witness furnishes a surety 241 warrant of commitment by coroner 241 CORPORATION : summons to corporation to answer indictment 353 plea of not guilty by 361 DEMURRER (See Pleas, Etc). DISORDERLY PERSONS {See Summabt Coijtictions). DISTRICT ATTORNEY'S PRECEPT FOR OYER AND TERMINER . . 348 proclamation on foregoing precept 348 return to the foregoing precept 349 ERROR, WRIT OF: writ of error after conviction and sentence in court of sessions 409 return to the foregoing writ 409 writ of error from court of appeals to the court of oyer and terminer after judgment entered upon order of the supreme court denying a new trial 47 8 return to the foregoing writ of error , 419 EXAMINATION (See Cobonbrs' Inquests, Examination op Complain- ant [title Complaints], etc., and Examination of Offenders). EXAMINATION OF OFFENDERS : recognizance, where prisoner waives an examination 306 the examination of the complainant and witnesses upon the return of a warrant of arrest before a justice of the peace ■. . . . 307 temporary commitment 308 a shorter form 309 order to bring the defendant before a justice of the peace for further examination 309 subpoena for witness on examination of accused 309 attachment against witness for disobedience of the foregoing subpoena on examination of accused 310 the examination of the prisoner upon the return of a warrant of arrest before a justice of the peace 311 recognizance entered into by a witness without sureties to appear and give evidence on behalf of the people, before the grand and petit juries in a court of record, recognizance taken by the justice before whom the warrant of arrest was returned 311 a similar recognizance when there is more than one witness 312 recognizance by a witness to the same effect where a surety joins with him in executing the reco^izance 313 a warrant committing a witness to jail who has refused to enter into a recognizance to appear and testify 313 a similar warrant in a case where the witness was required to furnish sureties and refused to do so 314 recognizance before justice of the peace to await action of the grand jury taken after the examination , 315 another form of recognizance stating the proceedings had before the ustice, at lejjgth, upon which he bases his authority to take bail.. 316 INDEX TO FORMS 451 Page. EXAMINATION OF OFFENDERS (Continued): warrant of committment to await the action of the grand jury after an examination upon a charge for a felony, either when bail is not given, or the offence is not bailable by a justice 317 a similar form when the examination is had before a police justice in a city 318 warrant to release the defendant when he has entered into a recogni- zance, since he was held in custody under the warrant of commit- ment 318 EXECUTION OF CRIMINALS : warrant of execution 385 certificate of execution of a criminal 385 GRAND JURY: subpoena for oyer and terminer 350 affidavit of service of grand jury subpoena 350 attachment for disobedience of grand jury subpoena 351 order to be made by the court where the grand jury have certified that a prisoner escaped indictment by reason of insanity 352 HABEAS CORPUS: to review Summary conviction (See Summary Convictions). petition for 283 writ 283 return to 284 traverse of 284 INDICTMENTS : caption to indictment 392 caption and indictmei^t for robbery ^ . . . . , 392 indictment for obtaining money by false pretences 394 for seUing liquor without a license 395 for selling hquor on Sunday 396 for keeping a bawdy house 397 for forgery, passing counterfeit notes ,..-.. 398 for grand larceny 399 (/See Forms foe Warkants, p. 295.) Memoval of. 378 application for the removal of an indictment, before trial, from the court of sessions to the court of oyer and terminer 378 affidavit to be annexed to foregoing application 380 order to be indorsed upon the foregoing application 380 recognizance to accompany the foregoing order, where the defendant is not in confinement ., 381 INQUESTS (