author: Johnson, J.

text:
    Supreme Court. At Chambers, Auburn,
    June 8, 1858.
    Before Johnson, J.
    The People v. Isaac L. Wood.
    It is the duty of the officer to whom an application is made for an allowance of a writ of error and a stay of execution in a capital case, to deny the same if he is satisfied, of the legality of the conviction.
    On a trial for felony, separate and distinct felonies cannot be proved for the purpose of establishing the fact directly, that the prisoner commited the offence for which he is on trial, or for the purpose of raising any direct inference in the affirmative as to the principal issue; but such evidence is competent for the purpose of proving the existence of a motive to commit the crime in question, in cases where there is some apparent connection or relation between the imputed motive and the felonies proposed to be proved.
    Motive is a minor or auxiliary fact, from which, when established in connection with other necessary facts, the main or primary fact of guilt may be inferred, and it may be established by circumstantial evidence, the same as any other fact.
    It does not lie with the prisoner to object that the fact proposed as a circumstance is so heinous in its nature, and so prejudicial to his character, that it shall not be used as evidence against him, if it bears upon the fact iu issue.
    The proper inquiry when the circumstance is offered is, does it fairly tend to raise an inference in favor of the existence of the fact proposed to be established 1 If it does it is admissible, whether such circumstance be innocent or criminal in its character.
    The prisoner had been convicted of murder at the Livingston Oyer and Terminer, and sentenced to be executed, and an application was made in his behalf for the allowance of a writ of error, and a stay of the execution of the judgment.

      James Wood, for the prisoner.

      A. A. Hendee (District Attorney), for the people.
   Johnson, J.

The principal ground on which the application for the writ of error in this case rests is, that upon the trial evidence was allowed against the prisoner, tending to prove that both previous and subsequent to the time of the alleged murder, for which he was then on trial, he had been guilty of other and separate acts of a felonious character, for which indictments were then pending against him.. Such evidence was allowed on the trial of the indictment upon which the prisoner was convicted, but it was not offered or allowed upon the principal issue, nor for the purpose of raising any direct inference in regard to the existence of the main fact in controversy. It was offered and allowed distinctly and solely for the purpose of establishing the quo anima, the motive existing in the mind of the prisoner, which the prosecution assumed incited and moved him to commit the offence charged against him, and for no other purpose.

The indictment was for the murder of Mrs. Rhoda Wood, the wife or widow of David J. Wood, in whose family the prisoner resided. The theory of the prosecution was, that the prisoner’s motive in committing the alleged murder was to obtain the property and estate of D. J. Wood, or some considerable portion of it. The prisoner was the brother of D. J. Wood, and, as the prosecution assumed, he supposed and believed that D. J. Wood was possessed of a large estate, which he coveted; and that a portion of this estate would come to him as one of the heirs, if D. J. Wood and his wife and children could be put out of the way ; that to accomplish this object, and to enable himself to appropriate a still larger share of the estate, by meditated forgeries and ialse claims against his brother, he commenced by murder-. lug D. J. Wood, by administering to him arsenical poison, and shortly after, as the next step, he administered at the sáme time, the same poison, with the like intent, and for the same object, to Mrs. Wood and the two children, upon whom the law, at the death of D. J. Wood, had cast the whole estate^ that having succeeded in destroying the life of Mrs. Wood, but failed in the attempt upon the lives of the two children, he immediately procured himself to be appointed guardian of the persons and estate of the children, and then commenced creating, and uttering various false and forged claims against the estate, one of which was a note for $2650, purporting to have been given by D. J. Wood to the prisoner over a year before the death of the former, which the prisoner turned out to his creditors in the city of New-York, soon after the death of Mrs. Wood and his assumption of the guardianship of the children.

It was assumed and claimed by the prosecution, that these several felonious acts were but parts of a single transaction, influenced by a single motive, and designed to accomplish a single object. That they were all connected by unity of plot and design, and, if proved, would tend to show the motive which actuated the prisoner in taking the life of Mrs. Wood. Accordingly, evidence was allowed tending to show the commission of all these alleged felonious acts by the prisoner, for the purpose of establishing the assumed motive. The case being one of circumstantial evidence .wholly, proof of the existence of a criminal motive in the mind of the prisoner to commit the act was essential to making out a case against him which would justify a verdict of guilty. -That the evidence tended directly to uphold the theory, and to establish the imputed motive, cannot, I think, be denied or doubted, and the only question is, whether evidence of that character is admissible for the purpose for which it was allowed to be given in this case. There can be no question that the acts, the declarations, and the conduct generally, of a party charged with the commission of an offence, both before and after its alleged commission, are competent to be proved upon the trial, to establish any fact essential to be proved, if they tend legitimately to establish such fact, and they are as competent to establish the existence of motive as any other fact. Motive is a minor or auxiliary fact, from which, when established in connection with other necessary facts, the main or primary fact of guilt may be inferred, and it may be established by circumstantial evidence the same as any other fact. The proper inquiry, when the circumstance is offered, is, does it fairly tend to raise an inference in favor of the existence of the fact proposed to be proved. If it does, it is admissible, whether such fact or circumstance be innocent or criminal in its character. It does not lie with the prisoner to object that the fact proposed as a circumstance is so heinous in its nature, and so prejudicial to his character, that it shall not be used as evidence against him if it bears upon the fact in issue.

The atrocity of the act cannot be used as a shield under such circumstances, or as a bar to its legitimate use by the prosecution. If it could, many criminals might escape just and merited punishment solely by means of their hardened and depraved natures. The rule appears to me to be well settled, both by elementary writers and by adjudged cases, that separate and distinct felonies may be proved upon a trial for the purpose of establishing the existence of a motive to commit the crime in question, even though an indictment is then pending against the prisoner for such other felonies. I might cite many elementary books and numerous cases where the rule is thus laid down, but it is unnecessary. Indeed, there is no authority to the contrary., It is quite true that the prosecution cannot prove the cotiamission of another and distinct felony by the prisoner for the purpose of establishing the fact directly that he committed the one for which he is then on trial, or for the purpose of raising any direct inference in the affirmative of the principal issue. The civil law allows such evidence against a criminal on trial for the purpose of rendering it more probable that he is or may be guilty of the offence charged. But the common law, with more humanity and better logic, forbids such evidence in support of the principal issue, and limits its admission to minor issues, such as motive and scienter, and even then confines it to cases where there is some apparent connection or relation between the imputed motive or guilty knowledge and the felony proposed to be proved. There is no pretence that the jury were not fully and carefully instructed as to the proper object and office of the evidence complained of, nor is there the slightest reason to apprehend that it was either misunderstood or misapplied by them. I am clearly of opinion, therefore, that no error was committed in admitting the evidence for the purpose for which it was offered, and that no injustice has been done to the prisoner in its application by the jury./" One or two other minor grounds were suggested on the application for the allowance of the writ, but they do not seem to me to raise any serious question for consideration, and could not, obvi.ously, have operated in the slightest degree to the prejudice of the prisoner. Such being the case, as 'it presents itself to my mind, I am unable to see upon what grounds I can allow the application. The true rule to be observed, in granting or refusing such applications, by the judge to whom they are made, is well stated by Chancellor Walworth, in considering the application of John C. Colt to him for a similar writ, after his conviction for the murder of Adams, where he says that “ it is the duty of the officer to whom the application is made to disallow the same, if he has no reason to doubt the legality of the conviction.” (1 Park. Cr. R., 611.) This is obviously the- intention of the statute in causing the application to be made upon notice to the district attorney or to the attorney-general, and in not allowing the writ, as matter of right to the prisoner, after conviction.

If I entertained any reasonable doubt as to the legality of the conviction, I should certainly give the prisoner the benefit of it, and allow the writ and stay the execution. But the case has been twice tried before me at the Oyer and Terminer, and I have been previously led to examine all the questions now presented, with much care and I may add with no little solicitude; and I entertain no doubt whatever, either of the legality of the conviction or of the justice of the verdict. Thus viewing the case and the questions involved in the application, I have not, as I conceive, the right to interpose and arrest the due execution of the judgment.

The application is therefore denied.


source: Caselaw Access Project

author: By the Court, Pratt, J.

license: Public Domain

text:
    Court of Appeals. Albany,
    June, 1858.
    Before Johnson, chief judge, and Comstock, Selden, Denio, Roosevelt, Harris, Pratt and Strong, Judges.
    Alexander Behan, plaintiff in error, v. The People, defendants in error.
    A violation of section thirteen, chapter six hundred and twenty-eight of the Laws of 1857, by selling strong or spiritous liquors or wines in quantities less than five gallons at a time, without license, is a misdemeanor, for which the offender may be proceeded against by complaint before a magistrate, or by indictment.
    Behan was indicted and convicted, at the Onondaga G-eneral Sessions, of the offence of selling strong and spiritous liquors and wines, without having any license therefor, under section thirteen of chapter six hundred and twenty-eight of the Laws of 1857,. being the act to suppress intemperance, and to regulate the sale of intoxicating liquors. The judgment was, on appeal, affirmed by the Supreme Court

      at general term in the fifth district, and the defendant appealed to this court.

      Sheldon & Brown, for plaintiff in error.

      Henry S. Fuller (District Attorney), for the defendants in error.
   By the Court, Pratt, J.

It is well settled that where an act is prohibited by statute, which is not criminal at common law, and a penalty is imposed in the same statute, declaring such prohibition, the act is not indictable. The principle was distinctly recognized in the case of The People v. Smith (13 Wend., 341). It is based upon the assumption that the legislature, having fixed the penalty at the same time of prohibiting the act, designed that there should be no other punishment. But where the act was criminal at common law, or already prohibited by a former statute, the imposition of a civil penalty would not take away the power to punish by indictment. So, when the statute itself contains any provisions showing that the legislature did not intend that the civil penalty should constitute the only punishment, the remedy by indictment would not be taken away.

Hence, if a statute direct that the prosecutor may proceed in a certain way, or otherwise, as “ if a statute give a recovery by action of debt, bill, plaint or information, or otherwise,” it authorizes a proceeding by indictment. (Arch. Cr. Pl., 1, 2; Hawk., ch. 25, § 4; Griffith v. Wells, 5 Denio, 227.)

In fine, it is simply a question of legislative intent. In looking, therefore, at the statute in question in its whole scope and bearing, and in connection with previous legislation upon the same subject, can we infer an intention on the part of the legislature to confine the remedy for a violation of its provisions in selling without a license, to the civil penalty therein imposed, or is the intention manifest that the offender shall also be punishable by indictment. Upon a careful examination of the statute, it seems to me that the conclusion is irresistible that the latter was the intention of the legislature.

First. It has been the policy of the state, at least since the year 1801, if not before, to make offences against the excise laws punishable by indictment. By the seventeenth section of the Act of 1801, to lay a duty on strong liquors, “ and for regulating inns and taverns,” all offences against any of the provisions of the act were declared to be misdemeanors. This provision has been continued from that time down to the enactment of the prohibitory law in 1855. The presumption, therefore, is against the design on the part of the legislature, in the restoration of the license laws, to change a policy so long adhered to. It should require a clear expression of the legislative will to that effect to justify the courts in holding that offences against those laws are no longer indictable.

The act under consideration, in its leading characteristics, is very similar to the old excise laws, both in its prohibitions and its penalties. Under those laws, the selling in quantities less than five gallons was prohibited by penalties in substantially the same form as in the present act; and the Supreme Court, in the cases of The People v. Stevens (18 Wend., 341), and The People v. Brown (16 id., 561), held that selling the prohibited quantities without license, were offences against the provisions of the act, and therefor, misdemeanors, and indictable.

If, therefore, selling without license constituted offences against the provisions of that act, it is difficult to find any good reason why similar violations of the present statute should not also be deemed offences against its provisions; and if they are to be deemed offences no one will deny that they are indictable.

Second. The whole scope and character of the act shows . that the term “ offence,” when it is used in connection with . those directions which are only applicable to misdemeanors, is not used in a limited sense, but was used to define all substantial violations of the provisions of the act.

By section sixteen, it is made the duty of certain officers therein enumerated, to arrest “ all persons found actually engaged in the commission of any offence in violation of this act, and forthwith to carry such person before any magis- ' trate,” &c., who is to try them, or hold them to bail, as for any other misdemeanor triable by a Court of Special Sessions.

In a subsequent part of the same section it is made the duty of the magistrate to entertain any complaints of a violation of this act made by any person under oath, and forthwith to issue a warrant and cause such offender to be brought before him to comply with the provisions of this section,” &c. Here the term used is uany complaint of a violation of this act,” and upon such complaint being made a warrant is to be issued. The term “ offence,” which the counsel for the prisoner insists only means those violations of the laws declared in the act itself to be misdemenors, is not used, but the more general term, 11 violation of this act,” and the proceedings directed to be taken by the magistrate are such as are applicable to cases of misdemeanors only.

So, by section twenty-ninth, it is made the duty of courts “to instruct grand jurors to inquire into all offences against the provisions of this act, and to present all offenders under this act.” Now, it is not to be assumed that the legislature would have inserted so carefully in the act these special directions to police officers, magistrates and courts, in order to secure extraordinary vigilance in the detection and conviction of offenders against the three or four comparatively unimportant provisions of the act, which are specially declared to be misdemeanors.

Third. The act of selling without license is called, in those sections of the statute imposing the penalties, “offences.”

By section thirteenth, it is declared that “whoever shall sell any strong or spiritous liquors or wines, in quantities less, &c., shall forfeit $50 for each offence.” By section fourteenth, “ whoever shall sell, to be drank in his house, &c., shall forfeit $50 for each offence.” In fine, all through the statute, violations of the provisions of the act are termed “ offences.” And it is a primary rule for the interpretation of statutes that when the same term or expression is used in different parts of the same statute it shall be deemed to have the same meaning, unless the contrary very plainly appears to have been the intention of the legislature. (Smith on Stat., 673; James v. Dubois, 1 Har., 285.)

The general statutory definition as given in the Revised Statutes, which is invoked by the prisoner’s counsel in aid of the construction insisted upon by him, throws but little light upon that point. By that statute, the term “ offence,” when used in a statute, shall be construed to mean any offence for which any criminal punishment may by law be inflicted. Now, the question in controversy is, whether this particular violation of the act is punishable criminally. If so, the term “offence” applied to it would be in strict accordance with the statutory definition of the term. Again, as it already appears, the act itself calls this violation an “ offence.” Now, if the statutory definition of that term is of any force whatever to settle the question under examination, it is against the construction contended for on behalf of the prisoner; for the term, when used in any statute, is to be construed to mean any offence for which any criminal punishment may be inflicted. (2 R. S., 886, § 37.)

Fourth. The only reasons which have been suggested in opposition to the views above .expressed, worthy of consideration, are based upon the fact that the act itself declares some three or four of the violations of its provisions misdemeanors. It is insisted that the maxim “ expressio unius est exclusio alterius,” in its legal application to this statute would exclude the assumption that any other offences were designed to be deemed misdemeanors. In a statute which appears to have been carefully drawn up, and all its provisions carefully considered, I should be inclined to give great force to that maxim. But the statute under consideration appears upon its face to have been very carelessly framed, and to have been adopted without a very careful consideration of its provisions. In such case it would not be safe to give that maxim much force. It would be much safer to look at the general scope and purpose of the act, and to search there for an expression of the legislative intention; and in looking over all the provisions of the act in their general scope and tenor, I cannot resist the conviction that offences against its provisions were designed to be punishable as misdemeanors.

Upon the whole, we are satisfied that it was not the design of the legislature to limit the punishment of the violation of the act in question to the penalty imposed therein, but to authorize a proceeding by complaint before a magistrate, or by indictment.

Judgment affirmed.


author: By the Court, Mitchell, J.

text:
    Supreme Court. New York General Term,
    June, 1857.

      Mitchell, Roosevelt and Peabody, Justices.
    The People v. John McCormack.
    On a complaint against a person as a disorderly person, for neglecting to support his wife, evidence showing that the parties had for many years lived as husband and wife, is competent to prove the marriage.
    It is not the province of a writ of habeas corpus to review errors in an adjudication of an inferior tribunal, nor the sufficiency of evidence before it; it is only to ascertain whether there was jurisdiction to pronounce the sentence of commitment, and whether the commitment is in due form.
    Forms of writ of certiorari to review, before the General Term, proceedings on habeas corpus, before Judge at Chambers, of affidavit on which it was allowed, and of return thereto.
    Also forms of habeas corpus and certiorari issued by Judge at Chambers, and of petitions on which they were allowed, and returns thereto.
    This case came before the General Term on a certiorari directed to Mr. Justice Peabody, for the purpose of reviewing proceedings had before him on a writ of habeas corpus.

      The writ of. certiorari was allowed upon the following affidavit:
    New York Supreme Court.
    In the matter of The People of the State of New York vs. John McCormack.

      State of New York, Otty and County of New York, ss:

      Robert Johnstone, being duly sworn, saith: That a certain writ of habeas corpus, and also a certain writ of certiorari, were issued on or about the 19th day of February, 1857, by Charles A. Peabody, Esq., one of the Justices of the Supreme Court of the State of New York, returnable before him, directed respectively to the keeper of the city prison, and Michael Connolly, Esq., one of the police justices of said city, requiring them to produce before him, the said justice, the body of John McCormack, detained by him, the said keeper, with the time and cause of his imprisonment, and to certify fully and at large the records and proceedings had and taken in and about such imprisonment and detention; that returns were duly made to said writs, by which it appeared that said John McCormack was detained by the said keeper, under and by virtue of a certain warrant of commitment issued by said Michael Connolly, as such police justice, as being a disorderly person, and also by virtue of a certain commitment issued by said police justice to hold said McCormack for examination upon a charge of bigamy, and that said returns were traversed, and such proceedings were thereupon had that said Charles A. Peabody, justice as aforesaid, did remand said John McCormack ; and this deponent further saith, said order and direction of said justice, remanding said John McCormack, was, as deponent believes, erroneous, and said John McCormack should have been discharged, inasmuch as according to deponent’s opinion and belief, there was no competent evidence whatever showing that any criminal offence had been committed, of which there was any probable or any cause to believe said McCormack guilty, and that said commitments were wholly without jurisdiction and void.
    ROBERT JOHNSTONE.
    Sworn to before me, this 3d) day of March, 1857, )
    W. H. Dusenberry, Commissioner of Deeds.

    The writ of certiorari was as follows.
    . The People of the State of New York to Charles A. Peabody, Esq., one of Justices of the Supreme Court of the State of New York, Greeting:

    Whereas, we have been informed that certain proceedings were had before you on behalf of John McCormack, lately convicted of being a disorderly person, that is [l. s.] to say, a person who had abandoned his wife and child in the city of New York, without adequate support, and in danger of becoming a burden on the public, and neglected and refused to provide for them according to his means, whereby an order was made by you on the 21st day of February, 1857, allowing a certain writ of habeas corpus, directed to John Gray, keeper of the city prison of the city and county of New York, commanding him to bring before you, the said justice, the body of the said John McCormack, together with the time and cause of his imprisonment, and also allowing a certain writ of certiorari, directed to Michael Connolly, Esq., one of the police justices of the said city, commanding him to certify fully and at large to the justices of our Supreme Court, the day and cause of his imprisonment aforesaid, and whereby a certain other order was made by you in said proceedings, upon the return of said writs, on the 21st day of February, in the year aforesaid, remanding the said John McCormack, and we being willing, for certain reasons, to be certified of the said proceedings, writs and orders, and all things appertaining thereto, do command you that you certify the same, with all things appertaining thereto, unto our justices of our Supreme Court, at the City Hall, in the city of New York, on the 16th day of March, 1857, under your seal, •as fully and amply as the same remain before you, that our said justices may cause to be done further thereupon what right and according to law ought to be done, and have you then there this writ.
    Witness, William Mitchell, Esq., Justice of the Supreme Court, at the City Hall, in the city of New York, the 3d day of March, 1857.
    RICHARD B. CONNOLLY, Glerh.

    Egbert Johnstone, Attorney.

    Within writ allowed this 3d day of March, 1857.
    HENRY E. DAVIES.
    To which Mr. Justice Peabody made the following return: ■
    The proceedings hereinafter set forth constitute my return to the within writ.
    C. A. PEABODY.
    PETITION FOR HABEAS CORPUS.

      To the Hon. Charles A. Peabody:

    The petition of Martha Jane McCormack shows that John McCormack is now detained and imprisoned in the city prison of New York city, 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 has been arrested on a warrant issued by Michael Connolly, one of the police justices for the city of New York, on a charge of abandoning one Bridget Moore, who claims to be his wife. That on an examination before said Michael Connolly, Esq., on the testimony of said Bridget, uncorroborated, as your petitioner -is informed and believes, the said Michael Connolly decided the said John McCormack to be the husband of the said Bridget, and remanded Mm to the city prison until he can give security for her support. Whereas, your petitioner avers that she, your petitioner, is the wife of the said McCormack; wherefore your petitioner prays that a writ of habeas corpus issue directed to the keeper of said prison, commanding him to produce the body of the said John McCormack before this honorable court, that he may be relieved of his present illegal imprisonment. • _
    _ MABTHA JANE McCORMACK.
    Dated the 14th day-of February, 1857.

      City and County of New York, ss:

      Martha Jane McCormack, being duly sworn, doth depose and say, that the facts set forth in the above petition, subscribed by her, are true.
    MABTHA JANE McCORMACK.
    Sworn before me tMs 14th 1 day of February, 1857, j
    Thomas Pearson, Commissioner of Deeds.

    WRIT OF HABEAS CORPUS.
    The People of the State of New York, to John Gray, Esq., Warden of the City Prison, Greeting:

    We command you that you have the body of John McCormack, by you imprisoned and detained, as it is said, together with the time and cause of such imprison-[l. S.] ment and detention, by whatsoever name he shall be called or charged, before the Hon. Charles A. Peabody, Justice of the Supreme Court, at the Chambers thereof, on the 16th day of February, 1857, at 10 o’clock, A. M., to do and receive what shall then and there be considered concerning him; and have you then there this writ. Witness, William Mitchell, Esq., Justice, the 14th day of February, 1857.
    RICHARD B. CONNOLLY, Clerk.

    Egbert Johnstone, Attorney.

    I allow the within writ.
    C. A. PEABODY, Justice.

    February 14,1857.

      The return to said writ of habeas corpus was as follows:
    To the said writ of habeas corpus return was duly made by the said John Gray,' in the words and figures following, to wit: I, John Gray, Warden of the City Prison of the city of New York, hereby return to the annexed writ, that I hold and retain the said John McCormack, 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. .
    JOHN GRAY, Warden.

    „_x COMMITMENT ON CONVICTION AS A DISORDERLY PERSON.

      State of New York, City and County of New York, ss :

    By Michael Connolly, Esquire, one of the police justices for preserving the peace in the city of New York, to the constables and policemen of the said city, and every of them; and to the keeper of the city prison of the city of New York:
    These are in the name of the People of the State of New York, to command you, the said constables and policemen, to convey .to the said city prison the body [l. s.] of John McCormack, who was charged before me with being a disorderly person, viz.: a person who had abandoned his wife, Bridget McCormack, in the city and county of New York, aforesaid, without adequate support, and who refused and neglected to provide for her and his two children according to his means: and upon examination of said matter, in the presence of said John McCormack, it appearing to me, by competent testimony, and from the facts and circumstances of the case, that his conduct amounted to such desertion and neglect to provide for his wife and children, I did adjudge and determine that he was such a disorderly person; whereupon, he was ordered’to find surety in the sum of five 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 in the county clerk’s office a record of the conviction of the said John McCormack as a disorderly person, according to the statute, you, the said keeper, are hereby commanded to receive into your custody the body of the said John McCormack, and him safely keep in the said prison, 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 first district police police court, in the said city, this 14th day of February, 1857.
    (Signed)
    MICHAEL CONNOLLY.
    TRAVERSE OF THE RETURN
    In the matter of the detention / of John McCormack. C
    The answer of John McCormack to the return to the annexed writ of habeas corpus shows, that this defendant denies that the magistrate had any authority to issue a warrant for the arrest of this defendant, or that there was any competent evidence before him showing that this defendant had been guilty of any criminal offence, to authorize or justify the issuing of said warrant of commitment.
    JOHN MoCORMACK.
    PETITION FOR CERTIORARI.

      To the Hon. Charles A. Peabody:

    The petition of Martha Jane McCormack shows that John McCormack is now detained and imprisoned in the city prison, in the city of ¡New York, and that he is not committed or detained by virtue of any process issued by any court of the United States, or by any judge thereof; 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 has been, on the 14th day of February, 1857, arrested, on a warrant issued by Michael Connolly, Esq., police justice for this city, on a charge’ of abandoning one Bridget Moore, who alleges herself to be his wife; that on an examination before said Michael Connolly, and on the testimony of the said Bridget, uncorroborated, as your petitioner is informed and believes, the said Michael Connolly, Esq., decided the said John McCormack was legally married to said Bridget, and his marriage to deponent was void, notwithstanding your petitioner produced a certificate of marriage between herself and said McCormack, duly authenticated,, and remanded said McCormack to prison until he will give security to support said Bridget, wherefore your petitioner prays that a writ of certiorari issue, directed to Michael Connolly, Esq., commanding him to certify before this honorable court, the day and cause of his imprisonment, and the affidavits on which he, the said McCormack, is detained.
    MARTHA J. McCORMACK.
    Dated the 14th day of February, 1857.

      City and County of New York, ss:

      Martha J. McCormack, being duly sworn, doth depose and say, that the facts set forth in the above petition, subscribed by her, are true.
    MARTHA J. McCORMACK.
    Sworn before me this 14th day) of February, 1857. f
    Thomas Pearson, Commissioner of Deeds.

    WRIT OF CERTIORARI.
    The People of the State of Mew York to Michael Connolly, Esq., Police Justice, Greeting:

    We command you that you certify fully and at large to Charles A. Peabody, Esq., Justice of the Supreme Court, at the Chambers thereof, in the City Hall, on [l.' s.] the 16th day of February, 1857, at 10 o’clock, A. m., the day and cause of the imprisonment of John McCormack, by you detained, as is said, by whatsoever name the said John McCormack shall be called or charged; and have you then this writ.
    Witness, William Mitchell, Esq., Justice, the 14th day of February, 1857.
    RICHARD B. CONNOLLY, Clerk.

    Egbert Johnstone, Attorney.

    I allow the within writ.
    C. A. PEABODY.
    February 14, 1857.
    To the said writ of certiorari, the said Michael Connolly, police justice, did certify and return that he had committed the said John McCormack, in default of finding sureties to be of good behavior to the People of the State of ¡New York for one year, as recited in the foregoing commitment, and that the depositions and testimony taken before him, upon which said warrant of commitment was founded, were as follows—upon which it appeared to him, the -said police justice, that the conduct of said John McCormack amounted to such abandonment and refusal to provide for his wife and child in the city of ¡New York, as mentioned in the statute in such case made and provided.
    [Here followed the testimony of Bridget McCormack, the complainant, stating that she was married to John McCormack in Ireland, in 1848, that she had lived with him since, both in Ireland and this country, several years, and that since the 9th of December last he had neglected to support her. There was also the testimony of several witnesses, showing that the parties had lived together several years as husband and wife, and the examination of the defendant.]
    Mr. Justice Peabody concluded his return as follows:
    That upon due consideration of the matter aforesaid, I did decide and adjudge that the warrant of commitment issued by the magistrate was regular and sufficient upon its face, and that nothing appeared to show that the magistrate acted without his jurisdiction; and thereupon I did remand the said John McCormack, as provided by law.
    C. A. PEABODY.
    Dated Mew York, 1857.

      Robert Johnstone, for the defendant,
    cited The People v. Cavanagh, 2 Park. Cr. R., 650; ex parte Taylor, 5 Cowen R., 39; 2 Kent Com., 28, 29; People v. Tompkins, 1 Park. R., 233, 237; People v. Martin, Ib., 188; 1 Phil. Ev., 79; Gilb. Law of Ev., 257; 3 Russ, on Cr., 206; 1 Phil. Ev., 79; Davies' N. Y. City Laws, 746, § 7; King v. Cleviger, 2 T. R., 263; Bishop on Divorce, § 324.

      George H. Purser, corporation attorney for the People,
    cited 2 R. S., 4 ed., 802, § 67; Bennac v. The People, 4 Barb. S. C. R., 31, 164; 1 Hill R., 377; 3 Hill R., 658, 661, note; People v. Cassels, 5 Hill R., 161; People v. Cavanagh, 2 Park. Cr. R., 656; People v. Martin, 1 Park. Cr. R., 195; People v. Tompkins, Ib., 234; Downing v. Ruger, 21 Wend. R., 185; Barnes v. Camack, 1 Barb. S. C. R., 395; 1 Phil. Ev., 78, 79; 1 Greenl. Kv., § 343 ; The People v. Chagary, 18 Wend. R., 642.
   By the Court, Mitchell, J.

The defendant was complained of as a disorderly person, for neglecting to support his wife. The justice received the affidavit of the wife, but there was also other evidence showing that the parties had for many years lived as husband and wife, both here and in Ireland. That was competent evidence of the marriage. The justice convicted the defendant, and issued his commitment in due form of law. The defendant then was brought before a justice of this court on habeas corpus. It is not the province of that writ to review errors in the adjudication of an inferior tribunal, nor the sufficiency of evidence before it; it is only to ascertain whether there was jurisdiction to pronounce the sentence of commitment, and whether the commitment is in due form. The judge allowing-the syrij; of habeas corpus, accordingly remanded the defendant to custody, and if he could have inquired into the sufficiency of the evidence, he should have made the same decision.

The statute (2 R. S., 717, § 42), in case of convictions before the Special Sessions, allows a certiorari to the Supreme Court, on which, if there was no trial by jury in the court below, the evidence may be looked into. That course was not taken here.

The decision of the judge remanding the defendant to prison, must be affirmed.

Proceedings affirmed.


author: By the Court, Brown, County J.

text:
    Genesee Sessions.

      Joshua, L. Broum, County Judge.
    February 1857.
    The People v. Wilber.
    In an indictment under the first section of chap. 109 of the Laws of 1854, entitled “An act for the protection of Gas Light Companies,” it is not sufficient to charge the act complained of in the words of the statute.
    The relations of the party, whom it is alleged the defendant intended to defraud, to the means by which the fraud is sought to be perpetrated, must be alleged, so that the court can judicially see that the act complained of is calculated, as well as intended, to defraud; and where an indictment alleged, in the words of the statute, that the defendant connected certain pipes, &c., &c., with intent to defraud a gas company, and contained no allegation that the company supplied the gas consumed at the burners; Held, that the indictment was defective.
    Whether the bare mention of the name of a gas company in an indictment, necessarily implies an allegation of its corporate existence, quere.

    The general rules of pleading, and the exceptions thereto, as applicable to an indictment under this statute, and what such an indictment should containi discussed and stated.
    DEMURRER TO AN INDICTMENT.
    The defendant was indicted under the 1st section of the act, chap. 109, of Laws of 1854, entitled “An act for the protection of Gas Light Companies,” which enacts “ that 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 illuminating gas to any burner or orifice by or at which illuminating gas is consumed, around or without passing through the meter provided for the measuring and registering the quantity of gas there consumed, shall be guilty of a misdemeanor.”
    The first count of the indictment alleges that the defendant, “ on the fifteenth day of December, in the year of our Lord one thousand eight hundred and fifty-six, at the town of Batavia, in the county aforesaid, did unlawfully and maliciously connect a pipe in his dwelling house with a certain other pipe, then and there being for conducting and supplying illuminating gas, in such manner as to connect with and be calculated to supply'illuminating gas to a large number of burners, to wit: ten burners, then and there being in said dwelling house, at which illuminating gas is consumed, without passing through the meter provided for measuring and registering the quantity of gas in said dwelling house consumed, with intent to injure and defraud the Batavia Gas Light Company, contrary to the form of the statute,” &c.

      George Bowen (District Attorney) and Moses Taggart, for the people.

      H. Wilber, for the defendant.
   By the Court, Brown, County J.

An indictment must allege all the facts and circumstances constituting the offence, iin4 necessary to be proved on the trial. It must allege them with .certainty, to a certain intent in general; and everything which fhe pleader should have stated and which is not expressly alleged, or by necessary implication included in what -js'sq alleged, must bp presumed against him. And an indictment for an offence created by statute must, in conformity to these rules, allege all the facts and circumstances necessary to bring the act, charged as an offence, within the statute, and must^also, in charging the offence, keep close to and follow the words of the statute itself. (Archibald's Cr. Pl., 38, 48;. Chitty's Cr. Law, 171, 173, 281, 289.) It is obvious that these rules necessarily exclude all argumentative pleading.

In an indictment for a misdemeanor created by a statute, as a general rule, it is sufficient to allege the act in the words of the statute. But this rule is subject 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 its 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.

One reason for this is, that if the facts and circumstances constituting the relations of the parties (or more strictly speaking, the relation of the party intended to be defrauded, to the means by which the fraud is to be perpetrated), do not exist, the act is not within the statute, and hence they must be alleged in order that it may be apparent to the court, as matter of law, that the act is within the true intent and meaning of the statute.

The section of the statute above quoted is evidently intended to prevent frauds upon parties supplying to other parties illuminating gas for consumption, passing, by the ordinary means of conducting it, through a meter provided (pursuant to the contract between the parties), for measuring and registering the quantity consumed. The language of this section is plainly elliptical, leaving the words, which are expressive of the relations of the parties, to be supplied by intendment or construction. It is apparent that if the defendant were himself supplying the gas consumed at the burners, the act of connecting the pipes, so as to supply it 'to them without passing through the meter, would not be within the statute.

To convict the defendant upon this indictment, the prosecution would be bound to prove:

1. The incorporation of the Gas Light Company.

2. That the company was supplying. him, by means of a pipe for conducting it, with illuminating gas, which was consumed at the burners mentioned in the indictment.

S. That a meter was there provided, for the measuring and registering the quantity of gas consumed at the burners.

4. That the defendant connected the pipe which supplied the burners, with the service pipe, in such manner as to be calculated to supply the gas to the burners without passing through the meter.

5. That the act of so connecting the pipes was done with intent to injure or defraud the company.

In order, therefore, to bring the act within the statute, it must appear that some person other than the defendant himself was supplying the gas consumed. There is no express allegation to that effect, nor any from which it can be inferred, unless it be found in the allegation of the intent to injure and defraud the Gas Light Company. It may doubtless be argumentatively inferred from this allegation, that the company were supplying the gas, but an argumentative inference is not sufficient. The intent to injure or defraud, is the ingredient of the offence created by this statute, which gives character to the act, and is necessary to be alleged for that purpose alone. The allegation of its existence, therefore, does not by necessary implication include the allegation of any other fact, or of any circumstance necessary to bring the act within the statute.

The fact that the company supplied the gas would, doubtless, afford evidence that the act of connecting thé pipes, so as to consume it without its passing through the meter, was intended to injure and defraud them, upon the principle that a party is presumed to intend the consequences which naturally flow from his acts. This, however, would not make the fact mere evidence of the intent to defraud.

This being one of the facts and circumstances necessary to be alleged in order to bring the act within the statute, cannot be mere evidence of the intent to defraud. The mere evidence of such intent is to be sought for and found in the presence or absence of a variety of circumstances, which it would be improper to spread upon the record.

Matter not necessary to be alleged in a pleading, may generally and with but few exceptions, applicable to peculiar cases when found there, if inconsistent with, or repugnant to, mate rial and necessary allegations, be rejected as mere surplusage. It will hardly be pretended, however, if an indictment should allege that the gas was supplied by A., and that the defendant committed the act with intent to defraud B., that the former allegation could be rejected as mere surplusage, and a conviction had for doing the act with the intent to defraud B.

If a defendant should be found guilty upon such an indictment, there can be no doubt that the judgment would be arrested.

Where a statute imposes a pecuniary penalty, to be sued for and recovered in the name of the people, or of any public officer, or in a qui tarn action by an informer, it is material in all cases that the offence or acts charged to have been committed or omitted by the defendant, appear to have been within the provision of the statute relied upon, and all circumstances necessary in support the action must be alleged. (1 Chitty's Pl., 372, Springfield edition of 1844, and cases cited in note 4.)

It will hardly be pretended, if this statute gave such a penalty, that a complaint in an action to recover it would be sufficient, if it omitted to allege that the company supplied the gas consumed at the burners. An indictment should at least be as complete in this respect as a complaint in a civil action for the recovery of a penalty.

If the count contained the allegation that the gas consumed at the burners was supplied by the company, it would then be apparent that the act of connecting the pipes so as to pass the gas around the meter to the burners, was directly calculated to defraud them. It is such an act, thus evidently calculated to defraud another party, that is to be punished under this statute, provided it be accompanied by the fraudulent intent; for the law is not guilty of the folly of dealing with acts, unless it be apparent that they are calculated, as well as intended, to injure or defraud another party or the public.

The court must be able to see judicially that the act was calculated to defraud the company, otherwise the intent to do so cannot appear. This principle is clearly recognized in the following cases: The People v. Stone, 9 Wend., 182, 191; The People v. Williams, 4 Hill, 9, 12; The People v. Thomas, 3 Hill, 169, &c. Indeed, the circumstances which show that the act was calculated to defraud the company, constitute the only foundation whereon the allegation of the intent can be legally predicated.

The decision of this point is put upon the broad ground, that to bring the act of connecting the pipes within the statute, and make it an offence, the relations of the parties must be shown, so that it shall appear, aside from the alleged intent, that it was calculated to injure or defraud the company; and this could only appear by means of an allegation in some form within the established rules of pleading, that they supplied the gas consumed at the burners.

But it does not affirmatively appear in this indictment, that there was any gas consumed there at the time of the commission of the act, or that any person then supplied gas for consumption. The act is alleged to have been committed on the 15th of December last, and the allegation touching the consumption of gas, is in the present tense.

Again, it is by no means clear that the count includes, by necessary implication in what is alleged, any allegation of the incorporation of the gas company, bare as it is of any allegations that they either owned the service pipe or supplied the gas; though, if it contained either of these allegations, it would, perhaps, in connection with the other allegations, sufficiently imply the existence of the artificial legal entity. The line of safe precedents, however, would dictate the propriety of stating the fact of incorporation in some appropriate manner; as, for example, by using the words “ a certain corporation called The Batavia Gras Light Company,” which would doubtless be a sufficient allegation in this respect.

There are other defects in the count under consideration, the most prominent of which is the entire want of any allegation, except an argumentative one, that a meter was provided for measuring and registering the quantity of gas consumed by or at the ten burners mentioned in it. It does not appear that these ten burners are all there were in the dwelling house. There may have been twenty other burners there at first, and the meter may have been provided, as alleged in the count, to measure and register the quantity of gas consumed in the dwelling house; but notwithstanding all this, it may be that when the pipe which supplied these ten burners was connected with the service pipe, there was another meter provided expressly for the purpose of measuring and registering the quantity of gas consumed at these ten burners. It is nowhere plainly alleged that the meter was “ then and there being,” or that it was “ provided for the measuring and registering the quantity of gas there,” at the burners aforesaid, “consumed.”

It is against all authority and all safe precedent, to sustain, in criminal cases, pleadings which are open to such serious objections as are apparent in the count under consideration.

Judgment for the defendant.


text:
    Dutchess Oyer akd Terminer.
    September, 1857.
    Before Dmott, Justice of the Supreme Court, and the Justices of the Sessions.
    The People v. Thomas Gilkinson.
    It is no objection to an indictment for selling spirituous liquors without license^ to be drank on the premises of the person selling, against the provisions of the act of April 16,1857, that the act is charged to have been done “without having obtained a license therefor as a tavern keeper, or without being in any way authorized to sell the same as aforesaid.”
    The use of “ or,” instead of “and,” is fatal in an indictment only where it renders the statement of the offence uncertain.
    If one count in an indictment be good, it will sustain a judgment, though the other counts be defective.
    Where, in an indictment for selling liquors without license, the acts were charged to have been committed “on the first day of August, 1857, and on divers other days and times between that day and the day of finding the indictment, to wit: the first day of July, 1857,’’ and the count was demurred to on the ground that the offence was thus alleged to have been committed after the finding of the indictment, it was held that all the continuando might be rejected, and the demurrer was overruled.
    Form of an indictment for selling spirituous liquors without license, against the provisions of the act of April 16, 1857.
    The sale of liquors, by an unlicensed person, is an indictable offence under the act of 1857, the punishment of which, as a misdemeanor, is fixed by the statute at three months’ imprisonment in the penitentiary, work house, or jail, and a fine of one hundred dollars. No discretion, as to the extent of punishment, is left to the court, as in other misdemeanors.
    The defendant was indicted for a misdemeanor in selling spirituous liquors without license, in violation of the act of April 16, 1857.
    The indictment was as follows:

      County of Dutchess, ss:

    The Jurors of the People of the State of New York, in and for the body of the county of Dutchess, upon their oaths and affirmations, present:
    That Thomas Gilkinson, late of the city of Poughkeepsie, in the county of Dutchess aforesaid, on the 12th day of September, 1857, at the city of Poughkeepsie, county aforesaid, sold by retail to divers citizens of this State, and to divers persons to the jurors aforesaid unknown, and did deliver, in pursuance of such sale, to the said divers citizens and the said divers persons to the jurors aforesaid unknown, strong, intoxicating and spirituous liquors and wines, to wit: one gill of brandy, one gill of rum, one gill of gin, one gill of whiskey, one gill of cordial, one gill of bitters, one gill of wine, one gill of ale, to be drank in the house, store, shop and grocery of the said Gilkinson, at the city of Poughkeepsie aforesaid, without. having obtained a license therefor as a tavern keeper, or without being in any way authorized to sell the same as aforesaid, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York, their laws and dignity.
    And the jurors aforesaid, upon their oaths and affirmations aforesaid, do further present: That the said Thomas Gilkinson, late of the city of Poughkeepsie, in said county of Dutchess and State of New York, at the said city of Poughkeepsie, on the 1st day of August, in the year one thousand eight hundred and fifty-seven, and on divers other days and times between that day and the day of the finding of this indictment, to wit: the 1st day of July, 1857, did sell by retail to divers citizens of this State, and to divers persons to the jurors aforesaid unknown, and did then and there deliver, in pursuance of such sale to the said divers citizens, and the said divers persons to the jurors aforesaid unknown, strong and spirituous liquors and wines, to wit: one gill of brandy, one gill of rum, one gin of gin, one gill of whiskey, one gill of cordial, one gill of bitters, one gill of wine, one gill of ale, to be drank in the house, store, shop or grocery of the said Thomas Gilkinson, in the city of Poughkeepsie aforesaid, without having obtained a license therefor as a tavern keeper, and without being in any way authorized, 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, their laws and dignity.
    0. WHEATON, Acting District Attorney.

      The defendant interposed the following demurrer:
    Dutchess Oyer and Terminer.
    Thomas Gilkinson adsm. The People.
    And the said Thomas Gilkinson, by L. B. Saokett, his attorney, comes into court here and defends the wrong and injury, and saith that the said indictment, and the matters therein stated and set forth, are not sufficient in law, and that he, the said Thomas Gilkinson, is not bound by the law of the land to answer the same; and this he is ready to verify.
    Therefore, for want of a sufficient indictment in this behalf, the said Thomas Gilkinson prays judgment, and that by the court here he may be dismissed and discharged from the premises in the said indictment specified.
    And the said Thomas Gilkinson shows to the court here the following causes of demurrer to the said indictment, that is to say: the statement of the alleged offence in the first count in said indictment is in the disjunctive form, and not made with sufficient certainty.
    And also, for that there is not in all or any of the counts of the said indictment any offence shown or stated by or for the people, to have or maintain a criminal action against the said Gilkinson, inasmuch as the sale of the spirituous and other liquors mentioned and set forth in the said counts, is not a crime or misdemeanor, and is not an indictable offence.
    And also, for that it appears by the said indictment that the alleged offences therein charged, and each and every of them, were committed since the finding of the said indictment, and that the presentment of the said Gilkinson was made before the commission of the alleged offences, or either of them. And also that the said indictment is in other respects uncertain, informal and insufficient.
    L. B. SACKETT, Attorney for Gilkinson,

      L. B. Sackett and John Thompson, for the defendant.

      C. Wheaton and J. F. Barnard, for the People.
   The following opinion was delivered by Emott, Presiding Justice:

There are two counts in this indictment, to each of which a formal or technical objection is taken. The first count charges the sale of liquor by the defendant, to be drank on his premises, “ without having obtained a license therefor as a tavern keeper, or without being in any way authorized to sell the same as aforesaid.” The objection is, that the word “or” vitiates the statement of the offence; that the word 16and” should have been used, so as to make the sentence read: “ without having obtained a license, &c., and without being in any way authorized,” &c. The rule as to the effect of a disjunctive is, that where it introduces uncertainty in the statement of an offence, it will be fatal. For instance, if in an indictment like the present it were alleged that the defendant sold rum, or gin, or brandy, that would leave it entirely uncertain what precise offence he had committed, or in what particular he had violated the law. But here the #act of selling liquor to be drank on the premises is charged with all necessary certainty, and in the first branch of the sentence which we have quoted, these sales are alleged to have been made by the prisoner “ without having obtained a license therefor according to law.” The pleader might have stopped here; all that follows is surplusage. There is no other way in which a man can be legally authorized to sell intoxicating liquor to be drank upon his premises, than by a license to him as a tavern keeper. The addition of the words, “or without being authorized,” &c., cannot have any effect upon the indictment; they do not alter the statement of the offence, nor can they mislead the defendant, and it would be pushing nicety in pleading to an extreme, to suffer the insertion of such a superfluous allegation to defeat the ends of justice.

If the first count of the indictment be good, that will sustain a judgment although the second count should be held defective. (Kane v. The People, 8 Wend., 210.) It is not there fore actually necessary for us to consider the objection made to the form of the second count. The answer to this objection, however, is also quite obvious. The demurrer is that in the second count the offence is alleged to have been committed after the finding of the indictment, and this is said to be made out by the fact that" the offence is laid in this count to have been committed not only on the first of August, 1857, but also with a continuando: “on divers other days and -times between that day and the' day of the finding of the indictment, to wit, the first day of July, 1857.” If the day which is here named under the scilicet, were the true date of the finding of the indictment, there would be an obvious repugnancy or absurdity in the statement of the offence in the continuando. And if this were the only statement of an offence in the second count, the objection might be formidable, although I do not mean to say it would not admit of an answer. But the answer to the demurrer on this point is, that the count is sufficiently certain as to time, which is all that is requisite, in stating an offence to have been committed on the first day of August. As that was in fact befor^ the finding of the bill, as appears from the indorsement of its filing, the count contains one sufficient statement of the offence, and the residue may be re-< jected. All the continuando may be rejected as surplusage, and with it the statement of the time of the finding of the indictment, which is only material in the continuando, if at all. This view is sanctioned by the case of The People v. Adams (17 Wend., 475), and by the authorities of Hawkins and Ohitty, cited by Oh. J. Nelson in that case.

All that remains is the main question, whether the sale of liquor by an unlicensed person is an indictable offence under the act off April 16, 1857. After the most careful examination which I have been able to give to this question since it was argued, I cannot entertain any more doubt upon this than the other points. It may be well to observe, in the first place, that little or no reliance was placed at the argument upon the objection that no indictment could be found until a complaint had been entered with a magistrate, and the party had given bail. I think the counsel for the defendant wisely declined to rest his case upon this defence. It does not strike me with sufficient force to need an argument to show that there is nothing in it, and I only mention it to preclude the inference that it had not been considered in giving judgment.

Section 29th of the act in question is as follows: “ It shall be the duty of courts to instruct grand jurors to inquire into all offences against the provisions of this act, and to present all offenders under this act, and also all persons who may be charged with adulterating imported, or other intoxicating liquors, with pernicious or deleterious drugs or mixtures, which offences are hereby declared to be misdemeanors, to be punished by imprisonment in the penitentiary, work house, or jail, for a period of three months, and by a fine of one hundred dollars.” The first, and I think the principal question is, whether the word “offences,” in the latter clause of this section, extends to and includes all violations of the statute, or only to that particular class of forbidden acts, the mention of which immediately precedes the phrase. I cannot see anyreasonto doubt that the words, “ which offences,” are here used as correlative and with reference to the phrases, “ all offences," which it is made the duty of grand juries to inquire into, and “ all offenders,” who are to be presented, that is, indicted by the grand inquest. Certainly the most natural and obvious reference of the phrase “ which offences,'" is to those acts which are described and included by the words “ all offences ” against the statute. The adulteration of liquors is not an offence against the act at all, unless it is made so by this very clause, which it is contended declares it, and it alone, a misdemeanor, but which certainly would seem to refer to some thing which had been made or declared offences by some preceding part of the act. The clause in question makes certain offences misdemeanors; but it was not intended, I think, to make any acts offences which were not otherwise and already in that category. How, the adulterating liquor is no where else referred to in the law in question. It is neither prohibited in terms nor in effect by inflicting a penalty for doing it. On the other hand, there are other acts which are offences against this statute upon well settled principles of law, without reference to this section to make them suck. It seems to me a forced construction of the clause in question to say that it does not refer to nor include these acts which are offences by force of other parts of the law, whether they are here made misdemeanors or not, but that it is to have the double effect of making the adulteration of liquor an offence against the law, and of making that offence a misdemeanor.

Upon a rigid construction of this section as I view it, this phrase might rather be restricted to the offences and the offenders mentioned in the first clause of the section. But I cannot agree that such a construction should be put upon so plain and so plainly beneficial a statute as this. I think it more in accordance with the meaning of the legislation and with sound principles of construction, to hold that the effect of this portion of this section is to make both the adulteration of liquor and all other acts which are legally offences against the act, to be misdemeanors. At all events, where the statute speaks of “ all offences,” against its provisions as subjects of examination and indictment, and then using the same term with a relative, proceeds to say, 11 which offences ” are declared misdemeanors, it seems to me unwarrantable to insist that the offences spoken of in the second and relative sentence, are different from such, as are included in the antecedent. The samé word is used in both, and in the latter clause it must include all acts which are legally considered offences against the law.

If then all acts which are offences against the statute, and not merely adulterating liquors, are declared to be misdemeanors by the clause in question, and there can be little doubt such was the design of the Legislature, the only question which remains is, whether the sale of liquor by a person not having a license, is an offence against the act. This precise question was raised and decided under the former excise law, as I read the cases and the statutes. Section 28th of that law (1 R. S., 682), was to this effect: “All offences against the provisions of this title shall be deemed misdemeanors, punishable with fine and imprisonment.” The statute contained no express prohibition of sales without license, but only sections declaring that whoever should sell without a license should be liable to a penalty, almost totidem verbis with the 13th and 14th sections of the present act. The question was passed upon by the Supreme Court in two cases, whether this amounted to a prohibition so as to make an unlicensed sale a criminal offence. In The People v. Stevens (13 Wend., 341), it was held that an indictment would lie for a violation of these sections. Again, in The People v. Brown (16 Wend., 561), the counsel supposing that it might have been overlooked in deciding The People v. Stevens, the point was distinctly presented that an indictment will not lie for an act for which a penalty is inflicted, but which is not expressly prohibited in terms. It was the only point in the case, and, after advisement, Judge Cowen pronounced the opinion of the court that they were clear there was nothing in it. In Griffith v. Wells (3 Denio, 226), it was held that one who sold liquor without a license, could not recover against the purchasers on the same ground, that the act was unlawful because a penalty was inflicted for doing it, although it was not in terms prohibited. Oh. J. Bronson said: “ Our excise law does not in terms prohibit the sale of strong or spirituous liquors without a license, nor declare the act illegal, but only inflicts a penalty upon the offender.” But he says, “ it was laid down long ago that where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful.” (Bartlett v. Viner, Skin., 322.) In the report of the same case in Carihew, 222, Holt, Ch. J., said “ a penalty implies a prohibition ihough there are no prohibitory words in the statute. Although this was but a dictum, the doctrine has been fully approved.” These cases and their reasoning leave no room to doubt that under the present law a sale of liquor to be drank on his premises by a person not licensed, is an unlawful act, and a criminal offence just as if it had been expressly prohibited. The present and former statutes are, as I have said, alike in this respect, and there is as much in the present law as in the former statute to make a sale of liquor by an 'Unlicensed person an offence, and to sustain an indictment against the offender. The only difference in the two acts in this particular is, that in the present law a sale which is an offence against the law is not only declared a misdemeanor, but the amount of the punishment is fixed in every case, and nothing is left to the discretion of the court as in other misdemeanors. Who: ever is convicted must suffer three months’ imprisonment and a hundred dollars fine. I am unable to see how we can refuse to sustain an indictment for selling liquor without a license under the present statute, without overthrowing principles which have been long and thoroughly settled, and overruling cases which were well considered and have been steadily adhered to in the administration of this portion of the criminal law, not to go further back, at least from 1830 down to 1855.

The demurrer is overruled, and there must be judgment for the People.


author: Emott, Presiding Judge.

text:
    Dutchess Oyer and Terminer.
    September, 1857.
    Before Emott, Justice of the Supreme Court, and the Justices of the Sessions.
    The People v. Benjamin Cole.
    Character is important in a criminal case where it is doubtful, upon the evidence, whether the prisoner committed the act, and where a jury have a right to weigh the probabilities; its bearing is more remote where the act is clearly proved, and where the question is, with what intention and at what suggestions the act was done.
    To justify the taking of life in self-defence, it is necessary that the prisoner himself should have been attacked; that he should have had reasonable ground to suppose that the object of the attack was to kill him or to do him great bodily harm; that he should have been unable to withdraw himself from such imminent danger, and therefore should have been compelled to kill his assailant to protect himself against his attack.
    A person is not responsible for a mistake which he makes in self-defence, in supposing a deadly design which does not exist. But he must be actually assailed, and he must show reasonable ground for supposing that his only recourse was to kill his assailant.
    To a certain extent a person must be his own judge in such a case; but if he act honestly and upon reasonable ground, he will not be held accountable for a mistake made under such excitement, and in great apparent personal danger to himself.
    Where the prisoner justifies on the ground that the act was committed “necessarily in lawfully keeping and preserving the peace,” ’as where he interferes to prevent A.’s taking the life of B., and to that end kills A., he must show, to establish a defence, not that he had reasonable ground to believe the act necessary, but that it was actually necessary, and that he had no other way to prevent the commission of a felony.
    In a case of a mere affray or beating with fists, it cannot be necessary for a third person to resort to firearms, or take life in any case, for the purpose of protecting one combatant from being injured by the other.
    If life be unnecessarily taken by a third person interfering between two combatants, for the purpose of preserving the peace, in protecting one against the other, the offence is manslaughter.
    The prisoner was tried on an indictment for the murder of Aaron Cole. The defence was, that the homicide was justifiable. The facts are sufficiently set forth in the charge of the judge to present the questions of law decided.

      S. Wodell (District Attorney) and H. Hogeboom, for the People.

      A. Wager and J. F. Barnard, for the prisoner.
   Emott, Presiding Judge.

After some remarks upon the importance of the cause, and the relative duties of the court and jury in such cases, the judge proceeded as follows:

This indictment is for the killing of Aaron Cole by the prisoner, Benjamin Cole, by shooting him with a gun, on the 7th day of June last, and it is charged by the prosecution to have been done willfully, and with premeditation. The taking of the life of Aaron Cole by the prisoner, as also the killing of Chas. Salpaugh,' at the same time, by the discharge of the other barrel of the gun, is proved, and indeed admitted, and the only questions for you are, under what circumstances, and with what design, the prisoner destroyed the life of Aaron Cole. The circumstances attending the death of Salpaugh are only important as affecting these questions.' So also the quarrels between these parties of fishermen, the interference of one party with the nets of the other, and any invasion or threatened invasion of such property, can have no other bearing, bio such quarrels, threats or invasions of property can justify or excuse the taking of life, and you must remove all these facts from your consideration, except so far as they go to show the intention of the prisoner, or characterize the acts of the deceased, and thus to justify or mitigate the homicide, which they do but remotely, if .at all.

The character of the prisoner has been proven to have been good. He is spoken of as a quiet and peaceable man. Character is important in a case where it is doubtful upon the evidence whether the prisoner committed the act, and where the jury have a right to weigh probabilities. As this case stands, although we did not feel justified in excluding the evidence, its bearing is more remote, and the fact of the prisoner’s previous good character can only aid you in deciding with what intention and at what suggestions he fired the fatal shot, if it can aid you at all.

The defence assert that this act is justified by the facts proved in the case, and the first question for you will be whether it is so.

So it is said that the prisoner was justified in killing Aaron Cole in seZ/-defence. The right of self-defence is a right which is inherent in man; it is the instinct of our nature to assert it when we are in peril, and it would be in vain for human laws to attempt to oppose its exercise. Our law recognizes,and defines it. To justify the prisoner in killing Aaron Cóle in seif-defence, it is necesssary that the prisoner himself should have been attacked—that he should have reasonable ground to suppose that the object of the attack was to kill him, or to do him great bodily harm; that he should have been unable to withdraw himself from this imminent danger, and therefore should have been compelled to kill Aaron Cole to protect himself from the attack.

You will now recur to the facts, some of which are undisputed, and upon some of which there is a conflict of evidence. It will not probably be necessary for you to go further back in the history of this transaction than to the approach of the boat of Cole and Salpaugh to Kipp. The alleged threats against Kipp are of no importance in this part of the case.

It would seem that when Salpaugh and Aaron Cole came up, having been informed of Kipp’s threatening and brandishing his gun, they rowed up to his boat. One, or both—it is disputed which—struck with oars, either at Kipp or at his gun, or first at the gun and then at him. Kipp and other witnesses for the defence swear that he was knocked down with the oar; he says he was stunned. There were undoubtedly outcries and threats of some kind; Salpaugh and Aaron Cole sprang into Kipp’s boat, and attacked, and probably beat him with their fists; and some of the witnesses for the defence say they dragged him to the side of the boat as if to plunge him in the river. It is also said that the prisoner called to Cole and Salpaugh to desist. Whether they were engaged in this attack upon Kipp, or were leaving the boat when the shots were fired, is disputed; and this point it will be important for you to determine in this and also in another part of the case. It is also disputed, and it is also important for you to ascertain, how far the prisoner was from these parties, that you may determine whether he was in instant danger from these men, and to what extent he was surrounded so as to prevent his escaping if he were in danger. The witnesses are in conflict upon this question, and you must decide which is the correct account of the transaction. You have evidence of the character and appearance of the wounds inflicted upon Salpaugh and Cole, and the extent to which the shot scattered; and this may assist you in ascertaining how far they must have been from the muzzle of the gun when it was discharged.

Bui the question for you is whether the prisoner ivas attacked by Aaron Gole, and, unable to escape, was in imminent danger from his attack, so that he was driven to take Ms life to save his own. Mere threats of what would be done after the design upon another was effected, are not enough. Mere apprehension of danger is not enough. There musí be an attack by the person killed upon the prisoner, and imminent instant danger. It is true that a man will not be responsible for a mistake which he makes in self-defence, in supposing a deadly design which does not exist. But he must be actually assailed, and he must show reasonable ground for supposing that his only recourse is to kill his assailant.

1. It is for you to say whether the facts of this case sustain such a belief. If you come to that conclusion you will acquit the prisoner.

2. If you are not convinced that such a necessity, real or reasonably apparent, existed for the prisoner to take the life of Aaron Cole, then you must inquire if the act can otherwise be justified.

It is claimed to be justified as necessary and lawful for the protection of Kipp. This depends upon a different clause of the statute, and upon different principles. At the common law, if A. was attacked by B., and was in urgent and immediate peril of his life, and C. interposed to preserve the peace, or even to aid A., and it was actually necessary to kill B. to terminate the affray and save the life of A., a third party would be excused for killing him. This principle is preserved in the statute.

Homicide is justifiable when committed “ necessarily in lawfully Iceeping and preserving the peace" You will observe that the language of this section is very different from that of the former. In the section or clause justifying seZ/'-defence, all that is required is that the jury should see that the man had reasonable ground for believing himself in instant peril. To a certain extent a man must be his own judge in such a case, and if he acts honestly and upon reasonable ground, he will not be held accountable for a mistake made under such excitement and in great apparent personal danger to himself.

But where a man interposes when another is attacked, it must be to keep the peace, and the protection of another must be incidental to this.

And if he killed another under such circumstances, it must be shown that it was actually necessary for him to do so, not that he had reasonable ground for believing it necessary, but that there was really no other %oay to prevent the commission of a felony.

The aspect in which this principle is said to be applicable to the present issue, is that the killing of these two men was necessary to prevent them from taking the life of Kipp. It is said that this is a dangerous defence to be allowed, and there is force in the remark. The principle of the proposed defence, however, is true and right; it has always been a maxim of the common law, and we cannot believe that it has been designedly omitted from our statute book. If one of you were to be passing in our streets, and see an assassin with the knife or the pistol at the breast of another, it cannot be that the law would hold you guilty for even the homicide of the assailant, if necessarily committed to arrest his act. But there is danger in the application of the principle to cases, and juries must be on their guard and be sure that a case comes clearly and beyond all doubt within the rule before they apply it.

It cannot be said that to keep the peace in a mere affray, a fist fight, it can be necessary to resort to firearms or to take life in any case. It would not be justifiable for a person assailed with the mere naked fists to use deadly weapons himself, much less can a third person excuse such an act.

You must therefore be satisfied in the present instance, in the first place, that Salpaugh and Aaron Cole designed and were attacking Kipp to kill him, to drown him, or to take his life in some other way, or to maim him. If the actual purpose of these men was, in your opinion, only to beat Kipp with their fists—to have a fight or an affray—it could not have been necessary, and it cannot be justifiable for the prisoner to use firearms.

It is contended that the proof shows an actual intention by these men to take Kipp’s life, either (1) with his gun, which they were proceeding to take away from him, or (2) by drowning him. The testimony relied upon to show this, consists of the threats sworn to, and the alleged dragging Kipp to the side of his boat to throw him over. On the other hand, it is said that the only design upon the gun was to make it go off by striking it, and thus render it harmless to these men themselves ; and the purpose in getting into Kipp’s boat was merely to have a fight.

This is a question for you. If you think that nothing more than a beating with fists was designed and perpetrated, or about to be inflicted on Kipp, then this justification fails. If, however, you are satisfied that the design and attempt was to put him overboard or kill him, then you will have to inquire in the second place whether it was actually necessary in point of fact for the prisoner to kill these men—to kill Aaron Cole, as he did, to prevent the death of Kipp. In this inquiry it will become important for you to determine the relative position and distance apart of these parties at the time of the shot. It is said by the prosecution, that when these shots were fired these men had left Kipp, and were leaving his boat; and that this is shown by the place and manner in which the shot entered their bodies. The"'witnesses disagree as to the distance apart, the position of other boats, and the number surrounding Kipp and the prisoner. If this affair had occurred on land, where actual manual interference could have been resorted to, it is not easy to see how any necessity for the use of firearms could have arisen. The fact that the parties were upon the water in boats is undoubtedly to be considered.

It is for you to say how controlling an element this circumstance shall become. You must be satisfied that it was actually necessary, to prevent the commission of a homicide of Kipp, at the time the shots were fired, for the prisoner to kill Aaron Cole, in order to sustain this defence. If you think so, you will acquit the prisoner. But if this act was not necessary, clearly and strictly necessary, you will be unable to acquit the prisoner. He has then taken human life without necessity, and therefore without justification, and he is morally and legally guilty of a crime, a high crime, and you must say so, and say what the crime is. This will depend upon his design in the act.

1. You may perhaps regard this affair as a fight or affray between these parties-of fishermen. If you come to the conclusion that the prisoner interfered merely designing to take the part of Kipp and to fight the party of Peter Cole; that he acted in the heat of passion, and did not design to kill Cole when he discharged his gun, you may find him guilty of manslaughter in the third degree. In considering such a view of the case, it will again be important for you to consider the distance apart and relative positions of the parties. The difficulty in the way of such a view of the case, is the deliberate use of a deadly weapon by the prisoner, and a weapon provided and prepared beforehand, as is claimed by the People. This clause of the statute was intended and is usually applied to deaths caused by stabbing or the like in the heat of a fight.

2. If the design of the prisoner in discharging his gun was to prevent the commission of a crime upon Kipp; if the shooting was in the mere resistance of the attempt, and with that purpose only, but in malting this interference or resistance, the prisoner unnecessarily killed Aaron Cole, you may find him guilty of manslaughter in the second degree.

As I have already observed in reference to an absolute justification of such an act, it would be difficult to apply this section of the statute to the deliberate shooting of a man upon the land without actual necessity, when manual interference might have been resorted to, and where no firearms were used by the assailants of the party attacked. The fact that these parties were on the water in boats at a distance from each other, may make a difference. It is for you to say whether this fact is sufficient to show that in discharging his gun the prisoner intended to interfere and prevent the murder of Kipp, and intended nothing else, and thus discharged his gun as he would have struck a blow had he been at hand.

If you are convinced of this, then, if it was really unnecessary for him to use firearms, his responsibility for the act will be for an act of manslaughter, as if he had used undue violence or harsh weapons unnecessarily in a case where he was at hand. But to make the killing manslaughter of this grade, it must have been done simply in resistance of the attempt to kill Kipp, and not with the design to kill Cole.

3. If you cannot bring this homicide within either of these definitions; if it was neither done in self-defence, nor necessarily to prevent the killing of Kipp; nor without a design to take the life of Cole in the heat of passion in an affray; nor with, the mere purpose of protecting Kipp, but without any actual necessity, then it was a willful murder. And if it is not justified, and was done with the formed and deliberate purpose to take life, it is murder. It is not necessary that the purpose should have been formed days or hours or minutes before the act. It may have been adopted just before the shooting of the gun. If the prisoner11 discharged his gun simply intending to kill Cole, and under circumstances which will not justify the act, he is guilty of murder, and it will be your duty to say so. A stern and a painful duty it may be, but one from which you cannot escape, and must not shrink. You are bound to look at all the circumstances attending the act in deciding this final issue. On the one hand, it is said that the prisoner did not discharge his gun until appealed to by Kipp, nor until he had called on the others to desist, and that he discharged the gun twice almost without a pause. On the other hand, it is urged, and you cannot help considering it, that he came there with a deadly weapon in an unusual way, and that weapon heavily loaded.

These, gentlemen, are the issues in this case, and to the consideration and trial of these you have now for these three days been secluded from your ordinary occupations and from intercourse with the world outside.

It is an old and a wholesome rule of law that this should be so in capital cases. It is sometimes relaxed: but the court have not felt at liberty to relax its strictness in the case before us. There is an evident interest felt in this cause by the community around us. Ko doubt there is a similar interest elsewhere, where the cause and the parties are known. There is a public opinion here, how formed, or for whom, should be wholly immaterial to us; but which has endeavored to make itself manifest even within these walls. The object of separating you from all ordinary intercourse, is not only that you may give your whole minds and deliberate and intelligent thought to so momentous a trial, but that you should be kept from knowing or feeling what the sentiment of the public, or any part of it, is. Your duty here is the most solemn, the most important you can be called upon to discharge. You have been kept here at much inconvenience, I know, and it may be at more or less actual loss to some of you to perform it. Your only recompense for your labor and your loss will be the consciousness hereafter that you have discharged it aright; not to the satisfaction of any man or men of the community about you, or of any part of it, but so as to answer the dictates of your consciences and the obligations of your oaths. God forbid that either you or I should ever take a part in depriving an innocent man of his liberty or his life. Kone of us need to be admonished to be careful for this. The feeling of mercy, the disposition to forget the past, the guilty act and its consequences, and to think only of the present and the future, with the unhappy man. before us, is so strong that we are all of us liable, consciously or unconsciously, to be swerved to the side of mercy when we administer justice.

The law directs you to give the prisoner the benefit of every reasonable doubt of his guilt. And I cannot but feel for myself that I have in this case given this man the benefit of the most merciful construction of the statutes I have read. But we must not forget that mercy is not your prerogative nor mine. We can only recommend its exercise. We must shut our eyes to everything but the law and the testimony. This duty must fall somewhere, stern and painful though it may be. It has fallen now upon me and upon you. I am bound to expound to you the law as it is; you must apply it to the facts as they are. We have to deal with j ustice, and not mercy; to act on the truth, and not by our sympathies. It is unnecessary to remind you of the awful interests which this case involves to the prisoner, or to exhort you not to do more than your oaths and your consciences demand to punish this man, But the life or death of the prisoner is not all that is involved here. The protection and security of life, the most vital interests of society, require of you that you should not, for fear, or favor, or affection, or sympathy, do less than the law and the testimony put before you. If juries will depart from the paths of their duty to render verdicts which are dictated by other considerations, such verdicts will surely return, if not in their day, in that of their children, to punish their authors; -it may be in their dearest concerns.

I commit this cause to your deliberate, intelligent and conscientious judgment, and may Grod Almighty guide you to the truth.

The jury found a verdict of “ not guilty.”