author: By the Court. Welles J.

text:
    Supreme Court. Monroe General Term.
    December, 1865.

      Johnson, Welles and E. Darwin Smith, Justices.
    The People v. Salem Standish.
    It is necessary to the validity of an indictment, under the statute, for illegal voting at a general or special town or charter election, that it should contain an allegation of the facts which render the act of voting criminal.
    Where the indictment contained only the general allegations that the defendant was not a qualified voter at the time he gave his vote, and the defendant was convicted on evidence that he had, prior'to the election, made a het on the election, the conviction was reversed.
    The defendant was indicted for illegal voting at the general election in November, 1864. The indictment charged: “That Salem Standish, late of the town of South Bristol, in the county of Ontario and State of New York, on the 8th day of November, A. D., 1864, at South Bristol aforesaid, at a general election held at the house of Joel Sutton in said town for the election, among other officers of electors of President and Vice-President of the United States, Governor and Lieutenant-Governor of the State of New York, a sheriff, clerk and judge in and for said county, then and there duly holden according to law, he, the said Salem Standish, then and there not being a qualified voter as he the said Salem Standish did then and there well know, did willfully, knowingly and corruptly give in a vote for the officers aforesaid, being officers to be chosen, against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity.”
    The trial of the indictment came on before the Court of Sessions of Ontario county, in the month of June, 1865. After the jury were empannelled for the trial, the district attorney opened the case on the part of the People, and stated to the said court and jury, that he intended to prove and establish under said indictment that the said defendant had voted at the last general election held in Ontario county, in the State of New York, in November, 1864, and that the defendant was not a legal voter at said election for the reason that he had, prior to said election being held, made a bet upon the result of said election:
    And thereupon the counsel for the defendant moved the court to quash the said indictment upon the ground,
    1st. That said indictment did not set forth any offense upon which the defendant could be tried.
    2d. That inasmuch as the statute sets forth different offenses, the particular offense with which the defendant is charged must be set forth in the indictment.
    The court denied the motion and the defendant, by his counsel excepted to the decision. The defendant’s counsel then objected to any evidence being given that the defendant had made a bet upon the election upon the ground that so such offense was- set forth or charged in the indictment. The court overruled the objection and the defendant’s counsel excepted to the decision.
    The trial then proceeded, when evidence was given on the part of the People tending to show that the defendant, on the day previous to the general election held on the 8th day of November, 1864, had made a bet on the result of that election and that at the election he voted for persons to be elected at such election. In the course of the trial a number of exceptions were taken by the defendant’s counsel to rulings and decisions of the court. The jury by their verdict found the defendant guilty of the crime charged in the indictment.

      H. C. Cheesebro, for the defendant.

      Edwin Hicks (District Attorney), for the people.
   By the Court. Welles J.

By § 15 of chapter 240 of the Laws of 1847 (Sess. L. of that year, p. 266), it is provided that, “ No persons shall be permitted to vote at any election who, previous thereto, sháll have been convicted of bribery or any infamous crime, unless he shall have been pardoned and restored to all the rights of a citizen; or who shall make any bet or wager, or be directly or indirectly interested in any bet or wager depending on the result of any election at which such person may offer to vote.”

It is also provided by statute that “ Any person not duly qualified to vote under the laws of this State, who shall knowingly vote or offer to vote at any general or special, town or charter election in this State, shall be adjudged guilty of a misdemeanor, and on conviction shall be imprisoned for a period not exceeding six months, at the discretion of the court before which the offense is tried,” &c., &c. (1 N. Y. St. at Large, 147, § 13; 1 R. S., 5th Ed., p. 449, § 13.)

There are various other disabilities which will disqualify a person from voting at the elections; such, for example, as those which relate to his citizenship, age, the time in Which he has been an inhabitant of the State, county and election district, &c.

The rule in regard to the forms of indictments for crime is that the offense charged must be clearly and particularly set forth and stated, so that the individual charged may understand precisely what he is to meet and answer. The simple act of voting at an election is no crime; it is other facts connected with or attending that act which constitute its criminality. Those facts which give character to. the act, and which render it criminal, should be alleged in the indictment, otherwise the great object of pleading—that of informing a party what he is' called upon to answer'—• will be defeated. The indictment in the present case does, in general terms, negative the fact of the defendant's being a qualified voter; but what he had done or omitted, or what had happened to deprive him of the franchise, is not stated or alluded to. Prima fade, every white man of the age of twenty-one years is entitled to vote, and when he offers a vote it must be received, unless some fact is shown or appears which disqualifies him; and when charged with voting without being legally qualified, the indictment should show the fact or facts which disqualify him. I am clearly of the opinion that the indictment was fatally defective in omitting to set forth the fact which disqualified the defendant from voting. The conviction should therefore be reversed; and as there can never be a legal conviction upon this indictment, there is no occasion for directing the proceedings remitted.

Conviction reversed.


source: Caselaw Access Project

author: By the Court, Balcom, J.

license: Public Domain

text:
    Supreme Court. Broome General Term.
    May, 1867.

      Mason Balcom and Boardman, Justices.
    Patrick Mackesey, Plaintiff in Error, v. The People, Defendants in Error.
    Where it was proved that the prisoner gave matches to D, and hired him to set fire to the prisoner’s shop, in which the prisoner had goods and chattels which were insured, and D. .set the shop on fire, the prisoner not being present, but the fire was extinguishéd and neither the shop nor the goods and chattels were consumed, held, that the prisoner was properly convicted of an attempt to burn the shop and goods with intent to prejudice the insurer.
    In an indictment for such an oifense, it is not necessary to state the particular manner in which the attempt was made; a"general allegation that the prisoner and D. did feloniously and willfully set fire to and burn the' prisoner’s shop with intent to burn the prisoner’s goods and chattels in the shop which were insured, &c., is sufficient.
    It was alleged in the indictment that the property was insured “by the North American Eire Insurance Company ” and it was not alleged that such company was a corporation or had the right to insure the property. Held, that the allegation was sufficient to authorize the introduction of evidence on the trial to prove the incorporation and the right to insure the property.

      It was also held that' D, who had been indicted jointly with the prisoner, and had pleaded guilty, was a competent witness for the prosecution against his co-defendant.
    The court charged that if the prisoner made an agreement with D. that the latter should set fire to the shop and gave him matches with which to do the act and told D. to set the shop on fire and D. did so, with intent to burn the insured goods and chattels of the prisoner, he was guilty of an attempt to burn the goods and chattels, held, that the’ charge was correct.
    The prisoner was tried in the Court of Sessions of Chemung county, in December, 1866, and found guilty of an attempt to commit the crime of arson in the third degree, and was sentenced by that court to be imprisoned in the State prison, at hard labor, for the term of one year and four months. .
    The indictment, on which the prisoner was tried, contained three counts; but he was convicted under the first count; which charged, ‘ ‘ That Patrick Mackesey and Patrick Dempsey, late of the city of Elmira, in the county of Che-mung aforesaid, on the 25th day of April, 1866, at the city and county aforesaid, with force and arms a certain shop of him the said Patrick Mackesey, and in his possession, there situate, feloniously and willfully did set fire to and burn, with intent to burn the goods, wares, merchandise and chattels of him the said Patrick Mackesey, to wit: a stock of boots, shoes, leather and other materials, and the tools, a more particular description of which is to the jurors unknown, in the said shop then and there being and remaining; which said goods, wares and merchandise and chattels were then, to wit, at the time of committing the felony aforesaid, insured against loss or damage by fire, by ‘.The North American Eire Insurance Company of New York,’ with intent thereby to injure, prejudice and defraud the said Insurance Company, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.”
    The exceptions taken by the prisoner on his trial, and the indictment and record, were brought before this court by writ of error; and the Judge, who allowed the writ, ordered that the execution of the sentence pronounced against the prisoner be stayed until the further order of this court.
    The questions raised on the trial of the prisoner are sufficiently noticed in the following opinion.

      S. B. Tomlinson for plaintiff in error.

      E. F. Babcock (District Attorney), for defendants in error.
   By the Court, Balcom, J.

It is provided by statute, that “ every person who shall willfully burn any building, ship or vessel, or any goods, wares, merchandise or other chattel, which shall be at the time insured against loss or damage by fire, with intent to prejudice such insurer, whether the same be the property of such person or of any other, shall upon conviction be adjudged guilty of arson in the third degree.” (3 R. S., 5 Ed., p. 946, § 5.) It is further provided by statute, that “ every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof shall, in all cases, where no provisión is made by law for the punishment of such attempt, be punished,” &c. (3 R. S. 983, § 3.)

The evidence showed the prisoner attempted to burn his insured goods and chattels with intent to prejudice the insurer. The attempt was made by the prisoner giving Patrick Dempsey matches and hiring him to set fire to the prisoner’s shop, in which the insured goods and chattels were situated. Dempsey set the shop on fire, but the fire was extinguished; and neither the shop nor any of the goods or chattels were consumed by the fire. The prisoner was not present when Dempsey set the shop on fire; but, notwithstanding his absence, he was equally guilty with Dempsey of the attempt to burn the shop and insured goods and chattels, (The People v. Bush, 4 Hill, 133.)

The prisoner’s counsel raised the question on the trial that the indictment did not charge any offense upon the prisoner; and that point has been made in this court by the prisoner’s counsel. The first count in the indictment charges, in substance, that the prisoner and Dempsey feloniously and willfully did set fire to and burn the prisoner’s shop, with intent to burn the prisoner’s goods and chattels in the shop, which were insured against loss or damage by fire, by “ The North American Fire Insurance Company,” with intent, thereby, to injure, prejudice and defraud that company, against the form of the statute, &c. This is a plain charge against the prisoner, of attempting to burn his insured goods and chattels, with intent to prejudice the insurer, by setting fire to his shop and burning it. It was unnecessary for the district attorney to allege in the indictment the particular manner in which the prisoner .attempted to burn his insured goods and chattels, with intent to prejudice the insurer. (4 Hill, 133; 3 Cushing, 529; McDermot v. People, 5 Parker, 102.) It was, therefore, unnecessary to set out in the indictment in this case that the prisoner employed Dempsey to set fire to the shop, or that he furnished Dempsey with matches to enable him to start the fire. The form, of the indictment would have been much better if it had charged directly that the prisoner and Dempsey attempted to burn the insured goods and chattels, instead of charging that they set fire to the prisoner’s shop with intent to burn the insured goods and chattels, &c. But it is sufficient in substance, notwithstanding its form, to charge the prisoner with the offense of attempting to commit arson in the third degree. (3 Parker, 208; Lohman v. The People, 1 Comstock, 379.)

The. prisoner’s counsel asked the court to compel the district attorney to elect upon which count of the indictment the prisoner should be tried, which the court refused to do, and the prisoner’s counsel excepted. The indictment contains. .three counts. The second count does' not charge the prisoner with any offense; and the court charged the jury that the prisoner could not be convicted under that count. That count only charges Dempsey with setting fire to the prisoner’s shop, with intent to burn the insured goods and chattels, &c. The third count charges the prisoner with being accessory before the fact, by inciting and soliciting Dempsey to commit the offense charged upon him in the second count. The court charged the jury the prisoner must be found guilty under the first count or not at all; and that he could only be convicted under that count of an attempt to commit arson in the third degree. Dempsey had pleaded guilty to the indictment; but that fact was not shown or mentioned to the court when the court was asked to compel the district attorney to elect upon which count the prisoner should be tried. .But if that fact had been shown, I am unable to perceive that it would have affected the question as to whether the district attorney should be required to make the desired election. The prisoner was not prejudiced in the least by the refusal of the court to compel the district attorney to elect upon which count the prisoner should be tried; and I am of the opinion the ruling of the court upon that question does not entitle the prisoner to a new trial.

The question was raised by the prisoner’s counsel on the trial that the indictment was insufficient for the reason that it does not allege that “The North American Fire Insurance Company of New York,” was a corporation or had the right to insure the goods and chattels of the prisoner. The prisoner’s counsel has raised the same question in this court. But he has not cited any authority to sustain his position. The district attorney has cited chapter 151 of the Laws of 1862 (Laws of 1862, p. 318), to show no such allegation was necessaiy. But, whether the act of 1862 is applicable to the case or not, I think the indictment was not defective for the reason alleged against it. The facts that the insurance company, named in the indictment, was a corporation and had the right to make the alleged insurance were proved on the trial; and the allegation in the indictment was sufficient to authorize that proof.

Patrick Dempsey was called as a witness by the district attorney. He was objected to by the prisoner’s counsel on the ground that he was an incompetent witness against his co-defendant, he having already pleaded guilty upon the same indictment. The fact that he had so pleaded to the indictment was conceded by the district attorney, The court admitted him as a witness for the people, and he gave material evidence against the prisoner. The prisoner’s counsel has not made the point that the court erred in admitting Dempsey as a witness; and if the case of Nixon v. The People (5 Parker, 119), was' correctly decided, Dempsey was a competent witness for the people against the prisoner.

The court charged the jury, in substance, if the prisoner made an agreement with Dempsey that the latter should set fire to the shop and gave him matches with which to do the act, and told Dempsey to set the shop on fire, and Dempsey did set it on fire with intent to burn the insured goods and chattels of the prisoner, the prisoner was guilty of an attempt to burn the goods and chattels; to which the prisoner’s counsel excepted. This portion of the charge was correct according to the decision in The People v. Bush (supra).

The prisoner’s counsel asked the court to charge, that unless che jury shall find that the prisoner attempted to set fire to or burn the goods, wares and merchandise insured, he must be acquitted. To which the court responded: “ So far as the setting fire to the shop is concerned, that alone is no offense, the act must have been an attempt to burn the goods. As I have already charged you, the indictment charging a setting fire to the building, with intent to burn the goods, is a sufficient charge of the crime of attempting to burn the goods.” The prisoner’s counsel excepted to the refusal to charge as requested, and to the remarks of the court upon the request. I am of the opinion the court did not commit any error in the refusal to charge, or in the charge made. The charge was that the act of the prisoner must have been an attempt to burn the insured goods. That certainly was the meaning of it, and the jury must have so understood it.

For these reasons I am of opinion the judgment of the Court of Sessions should be affirmed.

Judgment affirmed.


author: By the Court, Balcom, J. Welles, J.,

text:
    Supreme Court. Broome General Term.
    January, 1867.

      Mason, Balcorn and Boardman, Justices.
    Thomas Donoghoe, Plaintiff in Error v. The People, Defendants in Error.
    A knowledge of handwriting obtained from having seen, at different times, the signatures of from eight to twelve chattel mortgages, which had been recognized as genuine by the person whose name purported to be signed to them, is sufficient to authorize a witness to express an opinion as to the fact whether an instrument shown to the witness in court, is the handwriting of the same person.
    Where, on the trial of an indictment, the court charged that the fact that the prisoner had failed to introduce evidence as to his previous good character was an element in the case which the jury had a right to take into consideration in determining his guilt or innocence, it was held to be error, for which the conviction was reversed.
    The prisoner, Donoghoe, was convicted at the Broome County Court of Sessions, in December, 1865, of placing obstructions on the railroad track .between Binghamton and Syracuse, and was sentenced to be imprisoned in the State prison for the term of two year’s. The execution of the sentence was stayed by the judge who allowed the writ of error by which the record of the trial in the case has been brought into this court.
    On the trial, one Powers, a witness for the people, testified that he had known Donoghoe five or six years—that he, witness, was town clerk and had held that office three years—that when he took the office, from eight to twelve personal mortgages were on file purporting to have been given by Donoghoe.

      Question by the Counsel for the People: Did Donoghoe come to the clerk’s office at any time in reference to any of those mortgages?
    Donoghoe’s counsel objected to the evidence as irrelevant and immaterial. The court overruled the objection and admitted the evidence, to which decision .Donoghoe’s counsel excepted.
    This evidence was admitted for the purpose of showing Powers was acquainted with the handwriting of Donoghoe.
    Powers answered that Donoghoe came to the clerk’s office two or three different times—once or twice he and one McMahon took some of the mortgages, which were of later dates, than the old ones which were left—that Donoghoe came to take up the old mortgages just before the court, a year ago, which was after he was indicted for the crime in question. Powers was now shown, some papers by counsel for the people purporting to be chattel mortgages given by Donoghoe. He then testified, “There are four among these Donoghoe called for, I refused to let him have them; he claimed he was entitled to them; I told him I could not give them up without a written order; I told him I had no authority to give them up; I examined the signatures to the mortgages before anybody called for them; afterwards I was subpoenaed to bring them to court; I showed them to him I think; he requested me to give up the old mortgages as they were of no use; I became acquainted with his handwriting from examining his signatures to the mortgages.” This evidence, was objected to by Donoghoe’s counsel as irrelevant and immaterial. The objection was overruled and the decision of the court was excepted to. A paper found upon one of the ties forming a part of the obstructions upon the railroad track mentioned and referred to in the indictment, was here shown Powers, and he was asked if that was in defendant’s handwriting. Donoghoe’s counsel objected to Powers answering the question on the grounds: 1. That Powers had never seen Donoghoe write. 2. That he had not sufficient knowledge of Donoghe’s handwriting to give an opinion or testify as to his handwriting. 3. He cannot base an opinion on a. comparison of the signatures to the mortgages with the writing on the paper shown to him. The court overruled the objection, to which decision Donoghoe’s counsel excepted. Powers answered: “My opinion is that the. paper is in Donoghoe’s handwriting. There are similar letters—S, the capital D and T, and the letter O.
    The following is a copy of the paper referred to:
    “ Good morning, sir! A warning take by me to pay that Irishman for his grass, and tell the superintendent of to send 300 dollars, or we will fix him. There was twelve of us this morning; we were going to tare the track up; we will if you don’t settle up. So good by.”
    The court charged the jury, among" other things, as follows: “ The prisoner stands charged with the crime of placing obstructions upon the track of the Syracuse, Binghamton and New York railroad. The case is one of mainly circumstantial evidence, wherein the defendant is at liberty and has the right to give evidence as to his previous character. But this he has neglected or failed to do; and the fact that the defendant has neglected or failed to introduce evidence as to his previous good character is an element in the case which the jury have the right to take into consideration in determining the guilt or innocence of the prisoner.” To which portion of the charge Donoghoe’s counsel excepted, so far as it relates to the general character of Donoghoe.
    Donoghoe’s counsel then requested the court to charge the jury “ that in the absense of any proof as to the defendant’s general character, the jury have no right to take that fact into consideration in determining his guilt.” The court refused so to charge, to which refusal Donoghoe’s counsel excepted.

      George Bartlett, for plaintiff in error,
    cited and commented on the following authorities on the questions respecting the evidence as to Donohoe’s handwriting: Boyle v. Colman, 13 Barb., 42; People v. Spooner, 1 Denio, 343.
    On the questions touching the charge, Mr. Bartlett cited and commented on the following authorities: People v. Bodine, 1 Denio, 282; People v. White, 24 Wend., 520; Ryan v. People, 19 Abb., 232; Ackley v. People, 9 Barb., 609; State v. O'Neil, 7 Iredell, 251.

      O. W. Chapman (District Attorney),
    for tne people, cited and commented upon the following additional authorities: 1 Greenl. Ev., 77; People v. Vane, 12 Wend., 83; People v. White, 14 Wend., 112; 43 Barb., 449; 33 N. Y. Rep., 508; State v. McAllister, 11 Shepley's Rep., 139.
   By the Court, Balcom, J.

No error was committed upon questions respecting the handwriting- of the prisoner. Gkeenleaf says: “ It is agreed that if the witness has the proper knowledge of the party’s handwriting he may declare his belief in regard to the genuineness of the writing in question. He may also be interrogated as to the circumstances on which he founds his belief.” (1 Greenl. Ev., § 576.) Gbeenleae also says one mode of acquiring this knowledge is “from having seen letters or other documents purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, or acted upon them as his, the party having known and acquiesced in such acts, founded upon their supposed genuineness, or by such adoption of them in the ordinary business transactions of life, as induces a reasonable presumption of their being his own writings.” (1 Greenl. Ev., § 577.) Powers acquired a knowledge of the prisoner’s handwriting by seeing his signature at different times to from eight to twelve personal mortgages, which the prisoner recognized as instruments he had‘executed. The weight due to his opinion that the paper found upon the obstruction was in the handwriting of the prisoner was for the jury to determine.

The people had not the right to prove the general character of the prisoner was bad; and neither the court nor jury had the right to infer or presume it was bad because the prisoner did not prove it was good. The people were bound to prove the prisoner guilty, whether his general character was good' or bad. The fact that a prisoner’s general character is shown to be bad, after he attempts to prove it good, creates no presumption that he is guilty of the offence with which he is charged. The people must still establish his guilt by other evidence. Prisoners may be innocent of the crimes charged upon them though their general characters be bad. It is true the force of circumstances may be weakened by proof of the prisoner’s good character. But his failure to give such proof does not add anything to the weight justly due to the circumstances. The criminal law requires the prosecutor in all cases to prove facts and circumstances from which the concluson may be justly drawn that the prisoner is guilty before he can be pronounced guiltv No proper fact or circumstance can be omitted because the character of the prisoner is bad. Were the rule otherwise, persons whose general characters are bad might be convicted of crimes of which they are innocent, for the reason that their characters are not good. When the prisoner does not go into the question of his character, the only inquiry for the jury is, whether the evidence establishes his guilt; and not whether his guilt would have been less probable if he had proved his general character was good. The tenderness of the criminal law is such that the bad character of the prisoner adds nothing to the force of the facts and circumstances against him, while it allows that proof of his' good character may weaken the effect of the same. It is not allowable to show, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offense as that for which he stands indicted. Nor is it competent for the prosecutor to give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference that the prisoner has committed the offense in question. (Barb. Cr. Tr., 353.)

The rule was laid down by the Court for the Correction of Errors, in The People v. White (24 Wendell, 520), that it is error for the judge to call the attention of the jury to the absence of proof of the prisoner’s good character. And in The People v. Bodine (1 Denio, 281), Beardsley, J., said, where no evidence of general character has been given, the subject of character is not one for the consideration of the jury. As to the weight that should be given to evidence of the prisoner’s good character, see Cancemi v. The People (16 N. Y. Rep., 501).

Welles, J.,

in delivering the opinion of the court in Ackley v. The People (9 Barb. 609), said: “A prisoner on trial may show What his reputation is, and then the question is open to the prosecution, and for the jury to determine, like all other controverted facts. But if the prisoner chooses to give no evidence on the subject, the jury are are not at liberty to indulge in conjecture that his character is bad, in order to infer that he is guilty of the particular crime charged.”

The decision in The People v. Vane (12 Wend. 78) was disregarded in Robb v. Hackley (23 Wend. 50), and in Dudley v. Bolles (24 id. 465). And the other cases I have cited show it is not to be followed. It is in conflict with a well-settled principle of criminal law, and it must be regarded as overruled.

The charge of the court in this case was in substance that the fact that the prisoner had neglected or failed to introduce evidence as to his previous good character was an element in the case which the jury had the right to take into consideration in determining his guilt or innocence. This was clearly erroneous, and entitles the prisoner to a new trial.

The judgment of the Broome Court of Sessions should be reversed, and a new trial of the prisoner directed in that court.

Judgment reversed, and new trial ordered.


author: By the Court, Welles, J.

text:
    Supreme Court. Monroe General Term.
    December, 1864.

      Johnson, J. G. Jmith and Welles, Justices.
    Ann Jones, Plaintiff in Error v. The People, Defendants in Error.
    On the trial of an indictment for burglary and larceny, it is not erroneous for the court to charge that the finding of the stolen property in the possession of a person shortly after it was taken, is presumptive evidence of the guilt of the person in whose possession it was found, it being competent, under the indictment, to convict the prisoner either of a simple larceny or of burglary and larceny.
    Nor, is it erroneous for the court in such a case to refuse to charge that the finding of the property in the possession of the defendant, unaccompanied by any suspicious circumstances, was no evidence that she committed the burglary, such a request may he properly refused on the ground that the proposition is too broadly stated. The possession, in such a case, would be some evidence, though not sufficient prima facie, of her guilt of the burglary.
    Where a witness was called, who was nine years of age, and who stated that he did not know the nature of an oath, or the obligation of a witness, and had never been sworn, he was properly'excluded as incompetent; and it is not error, in such a case, for the court to refuse to instruct the witness as to the nature and obligations of an oath.
    This was a writ of error to the Livingston County Court of Sessions—the questions raised are sufficiently stated in the opinion of the court.

      T. W Havens, for plaintiff in error.

      G. J. Davis (District Attorney), for defendants in error.
   By the Court, Welles, J.

The plaintiff in error was indicted, tried and convicted in the court below for burglary and larceny. She was sentenced to be imprisoned in the State prison at .Sing Sing for two years at liard labor. The burglary was committed on the night of April 15,1863, by breaking into the house of Walter E. Lauder-dale, at Geneseo, Livingston county, and stealing several articles of personal property belonging to said Lauderdale. The evidence on the part of the people tended to show that the house of Dr. Lauderdale had been broken open and the personal property referred to stolen and carried away by some person or persons, some time during the night of the said 15th of April, 1863. About the 20th of the same month of April, the stolen property was found in the possession of the plaintiff in error who lived in the same village with Dr. ■ Lauderdale. The accused had washed for his family about six weeks before the property was taken.

When the stolen goods were found in her possession, it' does not appear that she made any attempt to explain how she came in possession of them, nor was any such attempt made at the trial. After the evidence was closed, the court charged the jury that the finding of the stolen property shortly after it was taken, is presumptive evidence of the guilt of the person in whose possession it was found, to which the counsel for the plaintiff in error excepted.

The counsel for the prisoner then asked the court to charge the jury: that the finding of the property in the possession of the defendant unaccompanied by any suspicious circumstances, was no evidence that she committed the burglary. The court refused so to charge, to which the counsel for the plaintiff in error excepted.

No error, as it seems to me, was committed either in the , charge or refusal to charge as requested. In regard to the .charge, it must be borne in mind that it was competent under the indictment to convict the prisoner either of a simple larceny, or of the burglary and larceny. It never was doubted that on a trial for larceny, after the corpus delicti was proved, and evidence given that the stolen goods were found in the possession of the accused, that such possession, unexplained, was prima facie evidence that the person in whose possession they were so found was the person who committed the larceny. The charge went no further than that.

The request to charge was too broad. It was that such possession, unaccompanied by any suspicious circumstances was no evidence that she committed the burglary. It certainly was some evidence of that fact, even if not sufficient prima facie of her guilt of the burglary. The request was to charge that it was no evidence of such guilt. A request to charge must as a proposition of law be perfect and embrace nothing more than the party is entitled to. The court was therefore right in refusing to charge as requested.

On the trial, after the plaintiff had rested, the defendant called as a witness, William Butler Jones, a boy nine years old, who stated that he did not know the nature of an oath or the obligations of a witness, and had never been sworn. The court ruled that he was not competent as a witness, and the prisoner’s counsel excepted. The prisoner’s counsel then requested the court to instruct the witness as to the nature and obligations of an oath, which the court declined, and the prisoner’s counsel excepted. In all this I think the court was right, and that the judgment should be affirmed.

Judgment affirmed.


text:
    Supreme Court. Monroe General Term.
    March, 1864,

      J. C. Smith, Welles and E. Darwin Smith, Justices.
    The People v. Daniel S. Parshall.
    An indictment for abduction, under section twenty-six, article one, title two, chapter one, part four of the Revised Statutes, will be sustained, though it be alleged therein, that the .female was taken for the purpose of prostitution, concubinage and marriage, instead of making the allegation in the alternative in the language of the statute, and' will be supported by proof of a taking for either of these purposes.
    An additional allegation in such indictment, charging an intent to do further acts not mentioned in the statute, will not vitiate the indictment, but will be regarded as surplusage.
    To constitute a “ taking” under the statute there must be some positive act to get the female away from the person having the legal charge of her; mere seduction does not amount to a “ taking.”
    To establish' a purpose of prostitution it must be shown that there was a design to introduce her to an indiscriminate criminal intercourse wth men. (Carpenter v. The People, 8 Barb., 603.) c
    A purpose of concubinage will not be inferred where the defendant was a married man living with his wife and keeping house at the place where the offense was charged to have been committed, and when the girl was underfourteen years of age and physically undeveloped;'nor under such circumstances and without further proof, can there be any inference of a purpose of marriage.
    Where a verdict of conviction was found on the second count only, leaving the fifth, third and fourth counts undisposed of, the judgment was reversed

      Certiorari to Monroe County Court of Sessions.
    The defendant was indicted, tried, and convicted in the court below for the crime of abduction.
    The first count of the indictment charged that the defendant on the 23d day of January, 1862, at the city of Rochester, in the county of Monroe, with force and arms, in and upon one Hannah Naughton, in the peace, &c., then and there being, and being then and there an unmarried female of previous chaste character, under the age of twenty-five years, feloniously did make an assault, and her the said Hannah Naughton, then and there, feloniously did take, inveigle and entice away from Mary Quine and Ann Regan, they the said" Mary Quine ' and Ann Regan being the persons having then and there the legal charge of her the said Hannah Naughton, and without the consent of the said Mary Quine and Ann Regan, the said persons having the legal charge of the person of her the said Hannah Naughton as aforesaid, with intent to compel her the said Hannah Naughton by force, menace and duress, to be defiled and for the purpose of prostitution;' and other wrongs, &c., against the form of the statute in such case made and provided, and against the peace of the people, &c.
    The second count charged that the defendant, on the day and year aforesaid, at the city of Rochester, in the county of Monroe, with force and arms in and upon the said Hannah Naughton, in the peace, &c., then and there being, did feloniously make an assault, she the said Hannah Naughton being then and there a female under the age of fourteen years, and her, the said Hannah Naughton, then and there did feloniously take away from Mary Quine, the said Mary Quine being the person having then and there the legal charge of the person of her the said Hannah Naughton, and without the consent of the said Mary Quine the person having the legal charge of the person of her the said Hannah Naughton, as aforesaid, with the intent to compel her the said Hannah Naughton, by force, menace and duress, to be defiled, and for the purpose of prostitution, concubinage and marriage, and other wrongs, &c., against the form of the statute in such case made and provided, and against the peace of the people, &c.
    The third count was precisely like the second, with the exception that the name of Ann Regan is substituted for that of Mary Quine wherever the latter áppears in the second count, as the person having the legal charge of said Hannah Naughton.
    The fourth count was against the defendant for a simple assault and battery upon the said Hannah Naughton.
    The defendant having appeared and plead not guilty to the indictment, the trial came on before the court below on the 13th day of March, 1863, when the defendant was convicted as above stated.

      Geo. F. Danforth, for defendant.

      Wm. F. Bowman, for the people.
   By the Court, Welles, J.

The court charged the jury, after the evidence was closed, that if they believed the evidence of the girl (the said Hannah Naughton), they should find the defendant guilty of abduction under the second count of the indictment, or should acquit him; that he could only be found guilty under the second count of the indictment; and according to the bill of exceptions, the conviction was under that count, although the record states that the defendant “ was found guilty of abduction.”

I think, therefore, that as the court instructed the jury in no event to convict the defendant unless they believed the evidence of the girl, and in that case to convict of abduction under the second count of the indictment, we should confine our examination to the questions whether the second count contains the statement of an indictable offense; and if it does, whether it was sustained by evidence sufficient to be submitted to the jury.

1. Does the second count set forth an indictable offense?

It cannot be pretended that there is any statute creating the offense stated in the count in question, unless it be-section twenty-six of article one, of title two, of chapter one, of part four, of the Revised Statutes.- (2d R. S. 664, § 26.) That section provides “That every person who shall take away any female under the age of fourteen years, from her father, mother, guardian, or other person having the legal charge of her person, without their consent, either for the purpose of prostitution, concubinage or marriage, shall upon conviction thereof, be punished,” &c.

The second count contains substantially a charge of the offense aimed at in this section. It states also, in addition to the offense described in the section that the female was taken with intent to compel her, by force, menace and duress, to be defied, and for the purpose of prostitution, &c. The section omits the intent charged in the count, but states the purpose. I incline to think the intent stated may be regarded as surplusage, and the count would then be sufficient without it. The crime is the taking a female under fourteen years of age from certain persons mentioned, for one of three purposes stated, and the second count alleges that the female was taken for all of those purposes. This, in my opinion, does not vitiate the count.

2. The remaining question is, whether the second count in the indictment was sustained by evidence sufficient to be submitted to the jury. In considering this question we are confined to the testimony of the female Hannah Haughton, who was alleged to have been taken away, as the court below put the case to the jury solely upon her evidence, as applied to the second count. In my opinion the evidence of the girl fell short in several respects, of being sufficient to produce a conviction under that count— and first, as to the taking away. The evidence of the girl in question does not show that she was taken away from any one according to her testimony, The first she ever saw of the defendant was on Clinton street, in the city of Rochester; that a little girl, Mary Brock, was with her after Christmas, 1861, in the morning, eight or nine o’clock or at noon; they had no conversation—she states “We girls laughed at his long beard.” He turned round; the next time the said Hannah Haughton saw him was in Buffalo street about a month after that; she was alone; defendant passed by her and then came back and said to her he thought he knew her. She told him he was mistaken in the person. He told her he had seen her before; she then said to him she had seen him in Clinton street. Then follows a long statement of conversations and meetings between her and the defendant, and transactions between them tending to show a brutal desire on the part of the defendant to have carnal intercourse with the girl, and a gradual yielding on her part, which resulted in his attempt to consummate his design, but which according to her account failed of success, in all of which there was no compulsion on his part, nothing but coaxing and persuasion, to which she appears to have voluntarily yielded; she was during these transactions living with her sister Mrs. Quine. It does not appear that the defendant was ever at Mrs. Quine’s; all the meetings he had with her were in the streets. His conduct shows an attempt to seduce her, and the testimony of the girl does not tend to show .that there was any taking of her in the sense of the statute, which contemplates some positive act to get the female away from the person having the legal charge of her; nothing of that kind appears.

Second. There is an entire absence of evidence tending to show either of the purposes mentioned in the act to characterize the taking, if there had been one. It is impossible to believe from the testimony of the girl, that there was a purpose of her prostitution, as that term is to be understood in the statute. In Carpenter agt. The People (8 Barb. S. C. R. 603), we had occasion to consider carefully the sense in which the same word was used in a cognate statute, and we there held that it meant the practice of a female offering her body to the indiscriminate intercourse with men; the common lewdness of a female— we think the word was used in the same sense in the statute under which the defendant was convicted.

Was there a purpose of concubinage? A purpose to make of her his concubine? Such an inference from the girl’s testimony it seems to me is preposterous. The defendant was a married man living with his wife and keeping house in the city of Rochester, and the girl under fourteen years of age, too young and physically too undeveloped, as her evidence shows, to be able to afford him any of that gratification which the presumed motive for such a relation implies; and, when finally, he discovered this fact, in an attempt to have sexual intercourse with her, and failed for that reason, he abandoned his pursuit, as it does not appear that he met or saw her afterwards.

Third and last; was there a purpose of marriage ? This question is too plain for argument. There is not a syllable of evidence to warrant a suspicion of the existence of such a purpose.

There is, however, another fatal objection to the conviction in this .case, and that is that the first, third and fourth counts are entirely undisposed of by the verdict. This was held by this court in Baron agt; The People (1 Park. Cr. R. 246), to be an error for which the judgment should be reversed.

For each of the foregoing reasons the conviction should be reversed. Judgment reversed.


author: By the Court, Masten., J.

text:
    Superior Court of Buffalo. March General Term,
    1868.

      Masten, Clinton and Verplanck, Justices.
    The People v. James Graham.
    Forgery may be committed, under the statute, as well by making a material alteration, erasure, insertion or addition to a true instrument, although only in a letter or figure, as by the entire false making of an instrument.
    Where the agent of a foreign insurance company called “ The Traveler's Insurance Company,” held in his hands policies of insurance executed by the officers of the company, and which, by the terms thereof, insured the owner from date against personal injuries caused by accident, and which such agent was authorized to issue and give validity to, by stamping upon the face of the policy, in a blank left for that purpose, the words “ Gen'l R. R. Ticket office, J. Graham, Buffalo,” together with the date of the issue and such agent, on the láth day of November, 1866, with the intention to defraud such company, stamped on one of the policies in his hands the words, “ Gen’l R. R. ticket office, November 13,1866, J. Graham, Buffalo,” and delivered it to one Warner, for the purpose of having it enforced against said company as having been issued to one Hunt, who had been killed on a railroad on said 13th day of November, 1866, it was held that such agent was guilty of forgery.
    Where, in an indictment for forgery,- it was averred that the instrument altered purported to be the act of another, to wit, of'“ The Traveler’s Insurance Company, of Hartford, Connecticut,” and that the intent was to defraud “ The Traveler’s Insurance Company, of Hartford, Connecticut, which was then and there a corporation duly organized,” &e., with no other averment of £he name of the corporation, it was held to be a sufficient description of the corporation named “ The Traveler’s Insurance Company,” and that the other words, viz: “of Hartford, Connecticut,” were to be taken not to be a part of the corporate name, but only a description of the place where the corporation, was located.
    This case came before the general term, under the thirty-fifth section of the act authorizing the Superior Court at general term to review upon the indictment and a bill of exceptions the decisions of the trial term. (Laws 1854, p. 96; Laws 1857, p. 752.) ■ The indictment contained four counts.
    The first count charged the prisoner with having, at the city of Buffalo, forged a certain instrument purporting to be the act of another, to wit, of the Travelers’ Insurance Company of Hartford, Connecticut, which said forged instrumend is in the words and figures following, to wit:

    And that the prisoner forged said instrument “ with intent to defraud the Traveler’s Insurance Company, of Hartford, Connecticut, aforesaid, which was then and there a corporation duly organized and existing under and by virtue of the laws of State of Connecticut,” &c.
    The third count charged the prisoner with having uttered as true, at the city of Buffalo, a certain false, forged and counterfeited instrument, purporting to be the act of another, to wit, of the Traveler’s Insurance Company, then and there being a corporation organized under the laws of the State of Connecticut, which said false, forged and counterfeited instrument is in the same words and figures as the instrument which is in the first count of this indictment set forth, with the intent then and there to injure and defraud the Traveler’s Insurance Company aforesaid, he, the said James Graham, then and there knowing the said instrument to be false, forged and counterfeited,” &c.
    The second count charged the prisoner with having forged the said instrument, and the fourth count charged the prisoner with having uttered the same with intent to defraud “ The Eailway Passenger’s Assurance Company.”
    Upon the trial it appeared that there was at Hartford, in the State of Connecticut, a corporation created by the laws of said State, under the name of the Traveler’s Insurance Company, for the purpose of insuring persons against the accidental loss of life or personal injury sustained while traveling by public conveyance; that the prisoner was the agent of said corporation at the city of Buffalo, to issue policies, and for that purpose was entrusted with policies in the form of the instrument set out in the indictment, complete in every respect but the date; that when the prisoner issued policies he stamped upon the face of them, in a blank left for that purpose, “ Gen’l E. E. Ticket office, J. Graham, Buffalo,” together with the date of their issue; that, on the 13th day of November, 1866, one Thomas C. Hunt, in company with one Warner, took passage at Buffalo, on the Lake Shore railroad, for the west, and in the afternoon of that day an accident, near Erie, happened to the train in which they were traveling, by which the said Hunt was killed; that on the next day (November 14) the said Warner returned to Buffalo with the corpse of said Hunt; that the prisoner, conspiring with said Warner to defraud the said Traveler's Insurance Company, stamped upon one of said blank policies, in his hands as above stated, the words “Gen’l E. E. Ticket office, Nov. 13, 1866, J. Graham, Buffalo,” and delivered such policy to said Warner; that such policy was so stamped and delivered by the prisoner to said Warner in the city of Buffalo, on the 14th day of November, 1866, after said Warner had brought the corpse of said Hunt to Buffalo, and was dated back and delivered as aforesaid, that it might be enforced against the insurance company as a policy which had been duly issued to said Hunt before his death, insuring him against the accidental loss of life while traveling by public conveyance.
    When the prosecution rested, and again when the proofs were closed, the prisoner’s counsel asked the court to-charge the jury to find a verdict of not guilty upon the indictment, upon the following grounds:
    1. The prosecution had failed to prove that the prisoner had committed the forgery, as charged, in the indictment, or any forgery.
    2, That the prosecution had failed to prove that there was any such corporation as “The Traveler’s Insurance Company, of Hartford, Connecticut.”
    But .the court refused to charge as requested, and instructed the jury that the prisoner was guilty of forgery if he stamped the ticket on the 14th day of November, 1866, with the date of the 13th day of November, 1866, with intent to injure and defraud the said insurance company, and thereupon issued the same. To which refusals to charge, and to which charge and to each of them, the prisoner separately excepted.

      J. Cook and A. P. Laning, for prisoner.

      Lyman K. Bass (District Attorney), for people.
   By the Court, Masten., J.

The questions presented for our consideration by the prisoner’s exceptions are:

First. Was the insertion by the prisoner, under the circumstances stated in the bill, of the words “ Gen’l JR. JR. Ticket office, Nov. 13, 1866, J. Graham,, Buffalo,” into the blank policy ticket, with intent to defraud, forgery within the statute?

Second. Is there a misnomer in the indictment of the corporation, which it is alleged the prisoner intended to defraud?

1. The statute enacts that “ every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be created, increased, discharged or diminished, or by which any rights or property whatever shall be or purport to be transferred, conveyed, discharged, diminished, or in any manner affected, sháll be guilty of forgery.” (2 R. S., 673.)

Forgery may be committed under this statute either by entirely false making an instrument described by the statute, or by making a material alteration, erasure or insertion in, or addition to, a true instrument, although but in a letter or figure, or by misapplying a genuine signature as by writing over it in whole or in part an instrument for which it was never intended.

It is said in Bacon's Abridgment (title “Forgery." A), that “ the notion of forgery doth not so much consist in the counterfeiting of a man’s hand and seal, which may often be done innocently, but in the endeavoring to give appearance of truth to a mere deceit and falsity; and either to impose that upon the world as the solemn act of another which he is not privy to, or at least to make a man’s own act appear to have been done at a time when it was not done, and by force of such a falsity to give it an operation which in truth and justice it ought not to have.”

The putting into the policy ticket the words “ Nov. 13, 1866,” as its date, was the making of a material addition to the instrument. • By the terms of the instrument its date is made material, for it provides that “ This ticket will be good for three days, commencing at 12, noon, on day of date.” The day written in the instrument as the day of its date raises the presumption, at least as between the parties to it, that such day is the true date of the instrument and of its delivery, and is therefore material.

. It is quite plain that the alteration of the date of a promissory note or of a bill of exchange, payable a certain length of time after date, would be an alteration of the terms thereof in a material particular. It would either hasten or protract the day of payment. It is well settled that the alteration, malo animo, of the date of such instrument is forgery. (Master v. Miller, 4 T. R., 320; affirmed on error, 2 H. Black R., 140; Powell v. Divett, 15 East R., 29; Hinfore v. Bromley, 6 East R., 309; Chitty on Bills, 204; U. S. Bank v. Russell, 3 Yeates, 391; Miller v. Gilleland, 19 Penn, R., 119; Byles on Bills, 253; Rex v. Atkinson, 7 C. & P., 669; 32 E. C. L., 679; Coke's 3 Institute, 169.)

I am of the opinion that the whole matter that the prisoner stamped into the blank ticket was material as giving the appearance to the ticket of having ■ been regularly issued, and of being of binding force.

But it is said the prisoner was at the time the agent of the insurance company, and that his offense was at most a fraudulent use of a contract fully executed and entrusted to him. His agency was to effect insurance on living persons against accidental loss of life or personal injury while traveling by public conveyance, and to that end to fill up the blank policy tickets entrusted to him. He had no authority to do what the jury have found he did do. He acted mala fide and beyond what he knew to be the scope of his authority. With intent to defraud his principal he stamped the policy ticket with a false date, and issued it, that it might be enforced as a policy upon a person who he knew had been accidentally killed while traveling by public conveyance.

The case of R. v. Wilson (2 Carr & Kirwan [61 E. C. L.], 527), decided in 1847, was this: Mr. Nicholl gave to the prisoner, who was his clerk, a blank check on his bankers, with directions to ascertain the amount and expenses thereon of a certain bill for which Mr. Ificholl was bound; to fill up the check with that amount, get the money from the bank and take up the bill. The amount of the bill and expenses thereon was £156. The prisoner filled up the check for £250, obtained that amount thereon from the bank, and retained it for salary, which he claimed to be due to ' him from his employer, and immediately gave notice by letter to his employer of what he had done. The prisoner was convicted of forgery. The fifteen judges sustained the conviction, and held that it was clearly forgery, even if the prisoner believed that £250 were due to him, or even if it were really due to him.

- In R. v. Hart (7 Carr & P. [32 E. C. L.], 672), decided in 1836, it was held that if a person having the blank acceptance of another, be authorized to write on it a bill ■ of exchange for a certain limited amount, and write on it a bill of exchange for a larger amount, with intent to defraud, it is forgery.

In R. v. Bateman (1 Cox’s Criminal Cases, 186), it was ruled that if a person to whom a blank check is delivered fill it up with a different amount, or for a different purpose than that which • his authority warranted, or if, after the authority is at an end, he fill it up with any amount, with intent to defraud, it is clearly forgery. (Vanduzer v. Howe, 21 N. Y. R., 531.)

2. Misnomer. “ The name of incorporation,” says Sir Edward Coke, “is a proper name, or name of baptism; and, therefore, when a private founder gives his college or hospital a name, he does it only as a god-father, and by that same name the King baptizes the corporation.”

It is said in Angel <& Ames on Corporations {page 77"), upon authority, that though the name of a corporate body is compared to the Christian name of a natural person, yet the comparison is not in all. respects perfectly correct. A Christian name consists in general but of a single word in which the alteration or omission of a single letter may make a material alteration in the name.

The name of a corporation frequently consists of several descriptive words, and the transposition of them, or an interpolation or omission of some of them may make no essential difference in their sense.

The first count of the indictment does not aver the corporate name of the insurance company to be “The Traveler’s Insurance Company, of Hartford, Connecticut.” It avers that the instrument purported to be the act of another, to wit: of “The Traveler’s Insurance Company, of Hartford, Connecticut,” and that the intent was to defraud “The Traveler^ Insurance Company, of Hartford, Connecticut, which was then and there a corporation duly organized,” &c.

It describes the artificial person whose act it purported to be, and whom it was intended to defraud by its corporate name, with the addition of the place in which it is created. To describe a natural person by his full name, with the addition of his place of residence, would certainly be unobjectionable.

To aver that the instrument purported to be the act of and was made with the intent to defraud John Doe, of Hartford, Connecticut, would lead to no embarrassment, or be the ground of any reasonable objection. I am unable to see any reasonable ground of objection to thus describing an artificial person.

I am of the opinion that none of the exceptions are well taken.

I have thus far considered the case under the first count.

In the third count, which charges the prisoner with having uttered, &c., the corporation is described by its corporate name, without the addition of the name of the place at which it is created. It is not claimed that there is a misnomer of the corporation in that count. I think the delivery of the policy tickets by the prisoner to Warner, at the city of Buffalo, was an uttering at that place within the statute. It does not appear that it was objected upon the trial that it was not.

But I do not deem it necessary to decide whether the delivery to Warner, at Buffalo, was an uttering, for I am clearly of the opinion that the conviction must be sus- . tained if the first count were the only count in the indictment. Conviction affirmed.


author: By the Court, Mason, J.

text:
    Supreme Court. Broome General Term,
    November, 1865.

      Baloom, Parker and Mason, Justices.
    The People v. Henry Gardiner.
    A bill of exceptions in a criminal case brings np for review no questions except those which arise on the trial of an indictment. It is not available to review a decision made on demurrer to a plea to the jurisdiction of the court.
    A court of Oyer and Terminer has jurisdiction to try all cases of murder committed within the county. A murder committed by a soldier in the military service of the United States, in time of war, insurrection or rebellion, forms no exception.
    The act of Congress of March 3, 1863, which declares that certain offenses, including murder, committed in time of war, insurrection or rebellion, by persons who are in the military service of the United States, and subject to the articles of war, shall be punishable by the sentence of a general court martial or military commission, is constitutional and valid; but the jurisdiction thus conferred is not exclusive and does not divest the State courts of concurrent jurisdiction in similar cases.
    Where, to an indictment for murder pending in the court of Oyer and Terminer of the county of Chemung, the defendant interposed a plea to the jurisdiction, alleging that at the time the offense charged was alleged to have been committed he was a soldier in the military service of the United States, during war, insurrection and rebellion, and subject to the articles of war, and that the place where the offense was alleged to have been committed was in the Western Military District of the State of New York, which was occupied by the United States military forces with whom the defendant was in actual military service, and that a general court- . martial was in session in said district, and the district attorney demurred to such plea, the court of Oyer and Terminer held the demurrer to be well taken, and the decision was approved by the Supreme Court.
    Form of a plea to the jurisdiction, setting up facts to bring the case within the 3d section of the act of Congress of March 3, 1863, providing for the trial of offenses by courts martial and military commission; of a demurrer to such plea, and of a certiorari to remove the decision on the demurrer to the Supreme Court.
    This case was brought before this court from the Oyer and Terminer of Chemung county by a writ of certiorari, in the following form:

      The People of the State of New YorJc:

    To the court of Oyer and Terminer,' in and for the county of Chemung:
    We, having been informed that Henry Gardiner, a soldier in the service of the United States Governmént, was lately in said court arraigned for the crime of murder, upon an indictment therein before found against the said Henry Gardiner, and that, upon the said arraignment, the said Henry Gardiner interposed a special plea to the jurisdiction of the court, over the person of the said Henry Gardiner, and that upon the decision of the said court, overruling said plea, and in sustaining a demurrer thereto, exceptions to certain decisions of said court were made by the said Henry Gardiner, and a bill of said exceptions has been settled by the persons composing said court, and that the indictment, plea and demurrer thereto, and stipulations constituting said bill of exceptions, being filed with the clerk of said court, and great doubt being entertained as to the validity of the ruling of said court thereon, and we, being willing, for certain reasons, that the said indictment, plea and demurrer, and stipulations constituting said bill of exceptions, and all other proceedings thereon, remaining in the said court, should be certified by the said court to, and removed into our Supreme Court, do hereby command you that you do certify and return, without . delay, said bill of exceptions, constituted as aforesaid, and all other proceedings thereon, into our Supreme Court, so that the said Supreme Court may act thereon, as of right and according to law ought to be done.
    Witness, John M. Parker, Esquire, one of the Justices of the Supreme Court, at the court-house, in the
    [l. s.] city of Elmira, in and for the comity of Chemung, on this fifteenth day of September, in the year of our Lord, one thousand eight hundred and sixty-five.
    ' S. 0. TABES, Deputy Clerk.

    Smith, Eobeetson & Fassett,

      Attorneys for Henry Gardiner

    (ikdobsed.)
    “ The within writ of certiorari allowed.

      3. M'. PABKEE,

      Justice Supreme Court.” _
    The return to this writ showed that an indictment against Henry Gardiner, for the murder of Amasa Mulock, on the 29th December, 1864, had been found in the Che-mung County Sessions, and sent to the Chemung County Oyer and Terminer for trial.
    To such indictment the defendant interposed the follow- . ing plea to the jurisdiction:
    CHEMOTG OTEE ATO TEEMITOB.
    Henry Gardiner ads.

    The People.
    The said Henry Gardiner named .in the indictment now produced, and upon the files of the court, after having heard the same read, says that this, court ought not to take cognizance of the murder and offenses in said indictment charged; because (protesting that he is not guilty of the same) he says that at the time the offenses charged are alleged to have been committed, he was a soldier in the military service of the United States, during war, insur rection and rebellion, and subject to the articles of war; and the place where such offenses are alleged to have been committed was within the Western Military District of the State of New York, which was occupied by the United States military forces, with whom this defendant was in actual military service, and a general court martial was at the same time, and now is, in session in said district, to wit: at the city of Elmira, in the said county of Chemung, and said military district was under the command of Brevet Brigadier General A. S. Diven, and is now uúder command of Brevet Major General J. C.. Bobinson, both of the United States army. Wheréfore this defendant says the offenses in said indictment charged are triable in the military courts, which have sole and exclusive jurisdiction, •and not elsewhere. And this the said Henry Gardiner is ready to verify. Wherefore he prays judgment that the court will or ought not to take cognizance of the indictment aforesaid, and the offenses therein charged, and prays that he may be dismissed and discharged.
    his
    HENRY H GARDINER, mark.

      In the same case:

    Henry Gardiner, defendant, being sworn, deposes that the facts stated in the foregoing plea are true.
    his
    HENRY M GARDINER, mark.
    Subscribed and sworn before me ) this 11th September, 1865. £ ■
    S. C. Tabee, Notary Public.

    The following stipulation accompanied' the plea, and was made part of the record:
    CHEMUNG OYER AND TERMINER.
    The People )

      v. >
    Henry Gardiner. \
    On the argument of the demurrer to the plea to the jurisdiction in this case, and upon any writ of error or certiorari in this case from the decision on such plea, it shall be admitted that Amasa Mulock, charged in this indictment to have been murdered by the prisoner, was a citizen of Chemung county, and was not in the military service of the United States, and that the alleged offenses in the indictment charged, are charged in the indictment to have been committed and were in fact committed, if committed at all, outside of any military post or camp. That the court shall take judicial notice of the character and extent of the war, as if annexed in the plea. And the principal duties of defendant’s regiment at the time in question were in guarding a rebel prison camp at the military post at Elmira, but they did other miscellaneous duties occasionally, and were liable to be ordered to any point by the military authorities. And' upon a warrant being issued by the civil authorities for the apprehension of the prisoner upon this charge in question, his arrest was allowed without objection, by Capt. Smith, then commanding the regiment; the military authorities having taken no steps for his apprehension or punishment; the military authorities not knowing until that time that the prisoner was charged with or suspected of the crimes in the indictment charged. And since the alleged offense the prisoner’s regiment has been ordered to Virginia, where it now is.
    The foregoing stipulation, and the matters therein admitted and conceded for all purposes of this plea, are to be regarded as part of the plea of the defendant hereto annexed, to the jurisdiction of the Court of Oyer and Terminer to try said defendant upon said indictment.
    his
    HENRY N GARDINER, mark.
    Witness—S., C. Tabee.v
    The district attorney of Chemung county, in behalf of the prosecution, put in the following demurrer:

      CHEMUNG OYER AND TERMINER.
    The People of the State of New York ) n. >-
    Henry Gardiner. I
    John Murdock, district attorney for said county, in behalf of said people, as to the plea of said defendant to the jurisdiction of this court as pleaded by him, says that the matters therein contained in manner and form as therein pleaded and set forth, are not sufficient in law to bar or preclude the prosecution and trial of said defendant in the said Court of Oyer and Terminer upon the indictment against said defendant for murder, and said district attorney demurs to the same; and further, that said plea of defendant fails to set forth any matters whereby the said court is deprived of jurisdiction of the defendant. That the military courts mentioned in said complaint have not exclusive jurisdiction to try said defendant for the offense charged in said indictment. That the said people are not bound to answer the said plea of the defendant. Wherefore, for want of a sufficient plea in his behalf, he, the said district attorney, in behalf of the said people, prays judgment, and that the said Henry Gardiner may be convicted of the premises in the said indictment specified.
    JOHN MURDOCK,

      District Attorney for Chemung County.

    And after argument by counsel, the Court of Oyer and Terminer decided that the demurrer was well taken, and that the plea to the jurisdiction of the court was not sustained; to which decision the prisoner excepted; and the prisoner’s counsel thereupon moved for time to prepare a bill of exceptions or writ of error or certiorari to the general term, whereupon the court ordered that the trial of the indictment go over to the next Court of Oyer and Terminer, to be held in Chemung county, in order that the writ of error or certiorari might be presented at the general term, and its decision obtained thereon.

      The following certificate was appended to the return:
    “ The within bill of exceptions containing indictment, plea, demurrer and stipulation, and the entries of the clerk in said cause, is hereby settled and certified by us.
    J. M. PARKER, [i. s.]

      Justice of Supreme Court. JESSE ROSECRANOE, [n. s.] JOHN A. MoKET, [n. s.]

      Justices of Sessions.”

      H. B. Smith, for the defendant.

      E. F. Babcock (District Attorney), for the people.
   By the Court, Mason, J.

This court has no jurisdiction to review the question here raised on this bill of exceptions. Bills of exceptions, by which questions of law made and decided on criminal trials may be brought up and reviewed in a higher court, were unknown to the common law; and although allowed by our statutes, yet the statute limits the right to exceptions taken on the trial of the main issue, and does not reach such questions as are raised by this plea on the preliminary question of jurisdiction. The words of the statute are: “ On the trial of any indictment, exceptions to any decisions of the court may be made by the defendant, in the same cases and manner as pro- . vided bylaw in civil cases.” (2 R. S., 736, § 21.) A trial of this plea to the jurisdiction, is not a trial of the indictment, but is preliminary thereto, and to ascertain and determine whether the court has jurisdiction' to • try the defendant upon the indictment. The case of Freeman v. The People (4 Denio R., 10) decides this question.

But assuming that the argument of the people’s demurrer to the defendant’s plea to the jurisdiction of the court to try this prisoner for the offense charged in the indictment, is the trial of the indictment (which is much easier assumed than maintained), then the question arises: Has the court of Oyer and Terminer jurisdiction to try this defendant for this alleged murder ? • Murder is .one of the highest crimes known to the common law, and the court of Oyer and Terminer of this State had general jurisdiction of the offense long before the adoption of the Constitution of the United States; and their jurisdiction to try such offenses has never hitherto been questioned where the offense was committed within the jurisdiction of the State and against the laws of the State. This murder is alleged- to have been committed in the county of Chemung, in which the prisoner is charged to have murdered a citizen of the State, and the indictment is preferred against him by the grand jury of the county of Chemung, charging him with this offense, against the laws of the State.

The defendant’s plea to the jurisdiction of the court is predicated on the twentieth section of the act of Congress of March 3d, 1863 (U. S. Statutes at Large, p. 737, vol. 12), which declares “ that in time' of war, insurrection or rebellion, murder, assault and battery with intent to kill, manslaughter, mayhem, wounding by shooting with intent to commit murder, robbery, arson, burglary, rape, assault and battery with intent to commit rape, and larceny, shall be punishable by the sentence of a general court martial or military commission, when committed by persons who are in the military service of the United States, and subject to the articles of war; and the punishment for such offence shall never be less than those inflicted by the laws of the State, or territory, or district, in which they may have been committed.” The plea sets up that the defendant was a soldier in the military service during war, insurrection and rebellion, and subject to the articles of war at the time the said offense is alleged to have been committed; and that he is only amenable to military commission or general court martial, which have sole and exclusive jurisdiction of the offense.

The first question to. be considered is, whether this act of Congress is a constitutional and valid act. The thirteenth subdivision of- section eighth of the Constitution declares that Congress shall have power “ to malee-rules for the government and regulation of the land and naval forces;" and the fifth article of the amendment of the Constitution declares that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, “ except in cases ansing in the land and naval forces, or in the militia, when in actual service in time of war or public danger." There can be no doubt, I think, that in time of war or public dang&r Congress has the power to provide for the government of the land and naval forces of the United States, and to declare what shall be military offenses, when committed by those in the military service of the-government, and to provide for tlieir punishment by military commission or general court martial. This power seems to be clearly contained in sub-section thirteen of section eight, and in the fifth article of the amendments referred to; and the executive branch of the government have certainly decided in the case of Reuben Staal, convicted by military court martial in the State of Ohio, that this act of Congress is valid. On the advice of Judge Advocate Holt, I fully concur in the result of this opinion of Judge Holt, holding this act constitutional.

The next and more important question is, whether this act of Congress, conferring this jurisdiction upon the military courts martial, is exclusive, and divests the State courts of jurisdiction in similar cases. This depends upon the question whether this act of Congress supersedes and nullifies the State statutes and the common law, so far. as it applies to the crime of murder committed by soldiers in the military service of the United States. If it be conceded that Congress has exclusive jurisdiction or control over this subject, it does not follow that the jurisdiction of the State courts are excluded, unless by the act in question they have assumed to exclude the jurisdiction of the State courts by the clear language of the act itself. ■ There is no reference to the State courts in the act, and nothing said in reference to them. The act simply says such offenses shall be punishable by general court martial or military commission, which means nothing more than they may be punishable by general court martial or military commission.

All that is meant by the act is to confer jurisdiction upon those military courts to try such offenses, and to declare them military offenses. It merely creates ttose cases enumerated in the act into military offenses, and provides for their punishment by military courts. It was never intended to abolish the crime of murder at common law, or as defined by State statutes. On the contrary, the act itself seems to contemplate the existence and continuance of the State laws, for the act of Congress itself provides that the punishment to be imposed by such military courts for such offenses shall not be less than those inflicted by the laws of the State, territory or district in which they have been committed; and as the act of Congress does not define the punishment, but refers to the State laws for the prescribed punishment, I think it is very clear that it was never intended by this act to supersede or nullify the State laws; and this should not be inferred or intended except upon the most clear and explicit language. It was held by the court of dernier resort in this State, in the case of The People v. Enoch (13 Wend. R., 159), that our statutes defining murder and homicide did not supersede or abolish the common law crime of murder, and that notwithstanding the change created by those statutes, an indictment at common law for murder would lie. The act of Congress not having superseded our State laws upon the subject of murder, this indictment is well found by alleging this murder to be against the peace “ of the people of the State of New York, their laws and dignity; ” and there can be no doubt, I think, as to the jurisdiction of the court of Oyer and Terminer to try the prisoner for this

offense. It is only necessary to advert to some few principles which have been adjudged by the courts of this State, and sanctioned by the Federal courts themselves, to settle this matter. It' was held by the Court of Errors of this State, in Delafield, v. The ¡State of Illinois (2 Hill R., 160), that the Constitution of the United States has not, by its own force, divested the State courts of any of their former jurisdiction, and that a mere grant of jurisdiction to a particular court Without words of exclusion as to other courts previously possessing the like powers, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter also. (26 Wend. R., 192.) The same principle is affirmed by the Court of Appeals of this State in the case of Teal v. Felton (1 Comst. R., 539), where the case of Delafield v. The State of Illinois is .commented upon and affirmed; and the case of Teal v. Felton was affirmed by the Supreme Court of the United States in 12 How. R., 284, and for the reasons assigned by Judge Wright in our State court. Chancellor Kent, in his Commentaries, in discussing this matter, says that, without an express provision to the contrary, the State courts will retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject matter. (1 Kent's Com. 400, marg. page; p. 444, 9th ed.) There are many crimes made punishable by the laws of the United States which are also made punishable by the laws of the State. In such cases it has been held that the State courts have jurisdiction of the crime. (8 Metcalf R., 313; 9 Ohio R., 133; 2 Comst. R. S. C., 77; Curt. Com. on the Const., § 133.) And there is another class of cases, embracing crimes punishable at common law, in which the State, courts had jurisdiction before the adoption of the Federal Constitution, although such crimes are brought under the cognizance of the Federal courts by the Constitution of the United States and the legislation of Congress. The jurisdiction of the State courts still continues, unless such jurisdiction is made exclusive in the Federal courts by the, Constitution or by the acts of Congress. (3 Park. Cr. R., 372, 373; 8 Metcalf R., 313; 12 How. U. S. R., 284; Curt. Com. on Const., § 121; 7 Conn. R., 244, 248; 1 Wheat. R., 337; 1 Kent’s Com., 402; marg. p. 402; p. 447, 9th ed.)

The counsel for the prisoner relies upon the eleventh section of the judiciary act of the United States, passed September 24,1789, which provides that the circuit courts of the United States shall have exclusive jurisdiction of all crimes arid offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct.'

Chancellor Kent, in considering this eleventh section of the judiciary act, says, the judiciary act in no instance excluded the previously existing jurisdiction of the State courts,- except in a few specified cases of a national nature; and he adds, but their jurisdiction was excluded in all criminal cases with respect to offenses arising under the • acts of Congress. In such cases, the Federal jurisdiction was necessarily exclusive; but he adds, it was not so as to pre-existing matters within the jurisdiction' of the State courts. (1 Kent’s Com., 402, marg. p.; page 447, 9th ed. See also, 7 Conn. R. 248; 1 Wheat. R., 337; 5 U. S. Cond. R., 562.)' It is proper to remark in this connection that the prisoner is indicted under the State statutes or laws, and for an offense committed against the State, and therefore the judiciary act has nothing to do with the question. It seems to follow that the jurisdiction of the State courts is not affected by this act of Congress, and that this alleged crime of murder against the prisoner may be tried in the court of Oyer and Terminer; and I am really not able to see how the question of the jurisdiction of the State courts can be seriously doubted. The crime is alleged to have been committed against the State, and not against the United States; and when the prisoner is indicted in the State court, the military officers having jurisdiction in the premises voluntarily surrendered the prisoner to the State authorities for punishment, according to the, directions of the articles of war; and I think his plea to the jurisdiction of the State court was properly' overruled. But as there was no judgment given against the prisoner, and no record brought up which we can review, I advise that the writ of certiorari be superseded and the case remitted to the Oyer and Terminer, and the prisoner be required to plead to the indictment.

Certiorari superseded and case remanded.