author: By the Court, Pratt, J.

text:
    Supreme Court. Oswego General Term,
    April, 1855.

      Pratt, W. F. Allen and Bacon, Justices.

    John McCarron pl’ff in error vs. The People def’ts in error.
    It is not error for a Justice of the Supreme Court to preside at the Oyer and Terminer, during the year in which he is a Judge of the Court of Appeals.
    Although he is a Judge of the Court of Appeals, he is also still a Justice of the Supreme Court, and may exercise all the powers and discharge all the duties of a Justice of the Supreme Court.
    This was a writ of error to the Oneida Oyer and Terminer.. The prisoner had been tried and convicted of murder in that court and had been sentenced to be executed. The indictment had been found in the Court of Sessions and sent to the Oyer and Terminer for trial. On the trial, which took place in October, 1854, the Hon. William F. Allen, one of the Justices of the Supreme Court presided, and passed sentence of death on the prisoner, after his conviction. During the year 1854 Judge Allen was a Judge of the Court of Appeals.
    J. A. Spencer, for the plaintiff in error.
    I. Courts of Oyer and Terminer can only be held by a Justice of the Supreme Court, the County Judge and the two Justices designated by law, or any three of them, of whom a Justice of the Supreme Court must always be one. (2 R. S. 377, § 9, 4th ed.)

      II. The offices of “ Judge of the Court of Appeals ” and of “ Justice of the Supreme Court,” are distinct and separate offices, charged with duties alike distinct and separate; requiring the whole time of each officer for the proper discharge of his duties. Those “ selected ” from the Supreme Court are as much and exclusively Judges of the Court of Appeals, for the time being, as arc those “ elected ” by the electors of the State. If neither of the four judges “ elected ” can discharge the duties of a Justice of the Supreme Court, then it is submitted that neither of the four judges “ selected ” from the class of Justices of the Supreme Court having the shortest time to serve, Can discharge those duties.
    They are selected from,, taken out of, the Supreme Court, and placed in another court. Taken from' one office and put in another — relieved from one duty and charged with another — shorn of one power and clothed with another.
    “ The Judges of the Court of Appeals and Justices of the Supreme Court shall not hold any other office or public trust.” (Const, art. 6, § 8.)
    “ The court for the trial of impeachments, shall be composed of .the President of the Senate, the Senators, or a major part of them, and the Judges of the Court of Appeals, or the major part of them.” (Const, art. 6, § 1.)
    The judges “ selected ” are members of this high court.

      “ There shall be a Court of Appeals composed of eight judges, of whom four shall be elected by the electors of the state for eight years, and four selected from the class of Justices of the Supreme Court having the shortest time to. serve.” (Const, art. 6, § 2.)
    Here is one court, created, constituted, composed of eight officers, forming one body, set apart by different methods, each equally efficacious, and producing the same things — court offices, officers'for the same duty and object. How can any sensible distinction be made! This court is exclusively appellate in its jurisdiction; while the Supreme Court has general original jurisdiction in laiV and equity. (Const, art. 6, § 3.)
    The seventh section of the same article provides for the compensation of the Judges of the Court of Appeals and Justices of the Supreme Court. Suppose the law provided that the Judges of the Court of Appeals should annually receive $3,500, and the Justices of the Supreme Court $3,0.00, would any one say that the eight Judges of the Court of Appeals should not each receive an equal amount?
    If they be at the same time Judges of the Court of Appeals and Justices of the Supreme Court, why are they not entitled to compensation" in both? Why, would they not hold more than one office at the same time, in violation of the eighth section already cited?
    The sixth section of the same article is somewhat obscurely worded, but it is submitted that the ellipsis, “ who is not a Judge of the Court of Appeals,” should be supplied in every following member of the section, and then its reading will be clear and consistent, and in harmony with all other provisions of the article. If this he not the true reading, then will be found the absurd provision, that an officer who has served the longest and has the largest experience, and at the same time fills another office of higher dignity, is to be presided over by a junior and inferior officer.
    Suppose a Judge of the Court of Appeals “ selected ” from the Justices of the Supreme Court, should be" removed by concurrent resolution of both houses of the Legislature, pursuant to the eleventh section of this article, would it not be from the office he filled at the time of the action of the removing power? It may be that the removal would be held to vacate both offices, but it is submitted that the record of such action would show him removed from the office, of “ Judge of the Court of Appeals ” held at the t.ime.
    But little light is thrown upon the question involved by the legislation for the execution of the Constitution,
    The fourth section of the Judiciary Act of 1847, (Laws of 1847, p. 320,) provides for the election of Judges of the Court of Appeals and their classification and term of office. The fifth section declares who shall be “ chief judge.” The sixth section provides for the selection of four Justices of the Supreme Court every year, and that “they shall enter upon their duties as Judges of the Court of Appeals on the first day of January, and serve as judges of said Court one year.” And provides also that “ six Judges of the Court of Appeals shall he necessary to constitute a quorum for holding any term of said court.”
    This legislation distinctly recognizes the four “ selected” officers as Judges of the Court of Appeals ’and makes the presence of at least two necessary to its jurisdiction. It is certainly true that the class of men is small from which this “ selection ” is to be made, and that to be eligible they must hold a particular office; in other words, possess certain qualifications; but this involves no other principle than do the provisions of the" United States' Constitution prescribing the age and other qualifications for Representatives, Senators and President. When properly “ selected,” it is equivalent to an election, appointment, &c., and his powers and duties are exactly equivalent to those of the “ elected ” judges with a single exception — that of presiding in the court. He then holds an office, and can hold no other.
    The fifteenth section of said act (p. 323,) provides for a presiding justice of the Supreme Court, and in the language" of the constitution excludes one who is a judge of the Court of Appeals and other classes. Here, again, he is called a' “judge of the Court of Appeals,” and it makes one of the next class a “ justice having the shortest time to serve in th¿t court,” while the other is out of it.
    It is, therefore, with great respect for the doubtful impressions and practice to the contrary, submitted that' “ Judge ” Allen had no jurisdiction to hold the Court of Oyer and Terminer for the trial of the plaintiff in error, and that therefore the trial, conviction and judgment are void, and should be reversed.

      H. T. Utley, (District Attorney,) for the people.

      I. Any one of the justices of the Supreme Court, may hold courts of Oyer and Terminer.
    “ Any one of the justices of the Supreme Court may preside in courts of Oyer and Terminer in any county.” (Const. Art. 6, § 6-).
    “ Each justice of the Supreme Court shall have power to hold any Circuit Court, and to preside in any court of Oyer and Terminer in this state, either for the whole time for which such court shall continue, or for any part of that time.” (2 R. S. § 4, page 376, 4th ed.)

    “ Courts of Oyer and Terminer of the respective counties, except in the city and county of. New York, shall be composed of a justice of the Supreme Court, who shall preside, and the county judge and the justices of the peace, designated as members of the Court of Sessions; and the presiding justice and any two of other officers above mentioned, shall have power to hold said court.” (Sec. 38, ch. 280,1847; 2 R. S. § 9, page 377, 4th ed.)

    II. The Court of Appeals shall be composed of eight judges, of whom four shall be elected by the electors of the state for eight years, and four selected from the class of justices of the Supreme Court, having the shortest time to serve. (Const, art. 6, §2.)
    “Four justices of the Supreme Court to he judges of the Court of Appeals, shall every year be selected from the class of said justices having the shortest time to serve; and alternately, first from the first, third, fifth and seventh judicial districts, and then from the second, fourth, sixth and eighth judicial districts, and shall enter upon their duties as judges of the Court of Appeals, on the first day of January, and serve as judges of that court one year.” (Sec. 6, ch. 280, 1847; 2 R. S. § 5, pages 311-12.)
    In providing for justices of the Supreme Court, being “ selected” to act as judges of the Court of Appeals, the constitution does not contemplate depriving the justices to be selected of their original jurisdiction as such justices, while acting as judges of the Court of Appeals. On the contrary, the constitution expressly recognizes the judges of the Court of Appeals, selected from the justices of the Supreme Court, as being clothed with the power, and with a single exception, possessed of all th°e rights of s.uch justices still, while acting as judges of the Court of Appeals.
    “ The sfate shall be divided into eight judicial districts. There- shall b.e four justices of the Supreme Court in each dis trfct.” (Const, art. 6, §4.)
    “ Provision may be made by law for designating from time to time, one or more of the said justices, who is not a judge of the Court of Appeal?,, to preside at the general terms of the said court, to be held in the several districts. Any three or more of the said justices, of whom one of the said justices so designated, shall always be one, may hold such general terms. And any one or more of the justices may hold special terms and Circuit Courts, and any one of them may preside in courts of Oyer and Terminer in any county.” {Const, art. 6, §6.)

      “ The justice of the Supreme Court, in each judicial district, having the shortest time to serve, and who is not a judge of the Court of Appeals, nor appointed or elected to fill a vacancy in the first class, shall be a presiding justice in the Supreme Court.” (Sess, Laws, 1847, ch. 280, § 15, as amended, 1848, ch. 170.)
    By the foregoing provisions of the constitution, the. justices who are authorized to hold general and special terms of the Supreme Court and Circuit Courts, “ and to preside in courts, of Oyer and Terminer in any county,” arp those whose number and wdiose elections are provided for in sections 4 and 12 of • art, 6 of the constitution; and the only power taken from them as such justices, either by the constitution or statute law, is the right to preside at the general terms, while judge of the Court of Appeals. A justice of the Supreme Court, selected to be a judge of the Court of Appeals, does not “ hold any other office or trust,” than that of such justice, while discharging the duties of a judge of the Court of Appeals,
    Justices of the Supreme Court can not be divested of the powpr and authority conferred upon them by the constitution and statute law* without some positive and affirmative enactment. Whenever any justice of the Supreme Court is selected to be a judge of the Court of Appeals, he is thus made such judge ex officio; and while serving in that court as one of its judges, he performs in fact, thereby, one of the duties of a justice of the Supreme Court.
    Every justice, before he enters upon the discharge of the duties of his office, takes the constitutional oath required of him, which is to discharge the duties of the office of justice of the Supreme Court. And when such justice is selected to be a judge of the Court of Appeals, no oath is required of, or taken by him, as a judge of that court; but he acts in that court, under the constitutional oath taken by him, as a justice of the Supreme Court.
    " If he is taken out of the Supreme Court, and placed in the Court of Appeals, and thus made a judge of the Court of Appeals in fact, he would be required to take the constitutional oath of a judge óf that court, before he entered upon the discharge of his duties as such judge. Again, if he were taken out of the Supreme Court, he could not be placed back, without being selected, appointed or elected.
    Should the office of any Justice of the Supreme Court become vacant before the expiration of the regular term for which he was elected, and while acting as a judge of the Court of Appeals, the vacancy would be filled by the appointment of a justice of the Supreme Court for the unexpired term, and not by the appointment of a judge of the Court of Appeals. (Const, art. 6, § 13.)
    If Justice Allen, who presided at the said court of Oyer and Terminer, became exclusively a judge of the Court of Appeals, when selected, his office of justice thereby became vacant, and might have been filled by appointment.
    , Again, had Justice Allen resigned the office of judge of the Court of Appeals, Avhile acting in that court, it is submitted that such resignation avouM not have caused any vacancy in bis office. The legislature regards the justices of the Supreme Court as such justices during the entire term for which they are elected. It annually appropriates $ 10,000 for salaries of four judges of the Court of Appeals, and' $82,500 for salaries of thirty-three justices of the Supreme Court; thus specifying the sum apportioned and the object to which it is to be applied, as required by the constitution. (Const, art. 7, § 8; Sess. Laws, 1853, p. 417; id. 1854, p. 621.)
    The late court for the correction of errors consisted of the president of the senate, the senators, the chancellor and the justices of the Supreme Court. (2 R. S. 93, 2d ed.; 2 Wend. 218.)
    Those officers did not lose the power or jurisdiction of the respective offices to which they were elected or appointed, on becoming members of the court for the correction of errors. Each continued to perform the duties of the office to which he was elected or appointed, while acting as a member of that court. The late constitution, under which they held their, respective offices, prohibited the justices of the Supreme Court “ holding any other office or public trust.” (Const. 1822, art. 5, § 7.)
    The court for the trial of impeachments is a court of record, having original jurisdiction not possessed by any other court in the state. This court is composed of the president of the senate, the senators, or a major part of them, and the judges of the Court of Appeals, or the major part of them. (Const, art. 6, § 1; 2 R. S. 347.)
    The judges of the Court of Appeals, and the senators, become members of the court for the trial of impeachments, ex officio, in the same manner as the justices of the Supreme Court, selected, become judges of the Court of Appeals. The justices of the Supreme Court, selected, on becoming judges of the Court of Appeals, do not lose their original powers as such justices, anymore than the judges of the Court of Appeals and the senators lose theirs, on becoming members of the court for the trial of impeachments.
    The seventh section of article six of the constitution, provides that the judges of the Court of Appeals and justices of the Supreme Court, shall severally receive at stated times for their services, a compensation to be established by law. It is submitted that by this provision the salary of judges of the Court of Appeals and justices of the Supreme Court, severally, must be equal in amount.
    But suppose the compensation of judges of the Court of Appeals, could be and were established at $3000, and of’ the justices of the Supreme Court at $2500 annually. A justice of the Supreme Court, under such a law, would not be entitled to $3000 for his services as judge of the Court of Appeals, any more than a judge of the Court of Appeals would be restricted to the compensation of a senator, which is $3 per day, while sitting as a member of the court for the trial of impeachments.
    The judges of the Court of Appeals, who are such in fact, are elected by the electors of the state; and without such election, or an appointment by the governor to fill a vacancy, a judge of the Court of Appeals can not be made.

      “ The judges of the Court of Appeals shall be elected by the electors of the state, and the justices of the Supreme Court by the electors of the several judicial districts, at such times as may be prescribed by law.” (Const, art. 6, § 12 and 13.)
    It is therefore submitted that Justice Allen, who was a judge of the Court of Appeals, selected from the fifth judicial district, at the time of holding the court of Oyer and Terminer aforesaid, was in fact a justice of the Supreme Court by virtue of his election as such, and had jurisdiction to preside at said court of Oyer and Terminer; and the trial and conviction of the plaintiff in error by such court was valid.
   By the Court, Pratt, J.

constitution in creating and organizing the Court of Appeals, provides that it shall be composed of eight judges, four of whom shall, be elected by the people directly, as judges of that court; and four shall be selected from the class of justices of the Supreme Court having the shortest time to serve. The judiciary act provides that the justices of the Supreme Court, selected to be judges of the Court of Appeals, shall enter upon their duties as such judges on the first day of January, and serve as such one year. It is insisted on the part of the plaintiff in error, that during such year, the justice of the Supreme Court, thus selected, has no jurisdiction to perform any of the duties of a justice of the Supreme Court; that during the time he is authorized to act as judge of the Court of Appeals, his powers as a justice of the Supreme Court are suspended. I do not find any authority for this proposition, either in the constitution or statutes of the state.

■ First.—It is "as justice of "the Supreme Court, that he is entitled to act as judge of the Court of Appeals. To sit as judge of that court during the year designated by the statute, is as clearly one of the duties Cast upon him as a justice of the Supreme Court, as to preside in a Court of Oyer and Terminer. The one is a court superior and the other inferior to the Supreme Court; but the constitution and statutes make it, nevertheless, the duty of justices of the Supreme Court, under certain circumstances, to act as judges in either court, and the performance of such duty does not suspend or impair their jurisdiction to perform the other duties which the law imposes upon them. Although judge of the Court of Appeals, he does not cease to be justice of the Supreme Court, with all the powers attached to that office, and amenable to the laws as such. His power to act as judge of the former court is one of the attributes of the office of justice of the Supreme Court. Suppose he should resign while thus acting as judge of the .Court of Appeals! He could not resign that office, because that is not the office which he holds or to which he was elected, but simply a, duty pertaining to his office. He must resign, if at all, the office of justice of the Supreme Court, and that would carry with it the right to sit as judge of the Court of Appeals. So, in filling, the vacancy, the governor would not appoint a judge of the Court of Appeals, but a justice of the Supreme Court, and after qualifying as such, the appointee might take his seat in the former court.

Again: he could not be impeached as judge of the Court of Appeals. He might as well be impeached as a judge of a court of Oyer and Terminer. If impeached at all, he must be impeached as a justice of the Supreme Court, although the particular dereliction in office specified might be mal-conduct as judge of the Court of Appeals or as judge of a court of Oyer and Terminer.

In fine, he takes the oath of office as justice of the Supreme Court, receives his salary as such, and all the powers and duties conferred upon him, in whatever court to be performed, are powers and duties appertaining to that office. They rest upon him so long as he holds that office, and no longer; and I do not perceivé how the discharge of the one affects the jurisdiction to discharge the others. They are simply an accumulation of duties cast upon a class of public officers by the law, somewhat various and diversified in their nature and character, but not necessarily inconsistent' with each other.

Secondly.—The language of the constitution, prescribing the various duties of Justices of the Supreme Court, raises a strong implication that it was not the design of the framers of that instrument that their ordinary powers should be suspended while acting as judges of the Court of Appeals: provision may be made by law for designating, from time to time, one or more of the said justices, who is not a judge of the Court of Appeals, to preside at the general terms of the said court to be held in the several districts. Any three or more of the said justices, of whom one of the said justies so designated shall always be one, may hold such general terms. And any one or more of the justices may hold special terms and Circuit Courts, and any one of them may preside in courts of Oyer and Terminer.” (Constitution, art. VI. sec. 6.)

By this section, the presiding justices at general terms in the Supreme Court, are not to be judges of the Court of Appeals; but no restriction or limitation is imposed in regard to the performance of any other duty. “ Any one of them may preside in courts of Oyer and Terminer.” The broad terms here used in connection with the restriction, in regard to the justices who are to preside at general terms, precludes the idea that the same restriction was designed to be extended to justices presiding in courts of Oyér and Terminer. Expressio unius est exclusio alterius.

Thirdly.—This limitation of power is clearly not found in the general scope of the constitution, as developed in the powers and duties appertaining to other judicial officers. The judges of the Court of Appeals are also judges of the court for the trial of impeachments, when that court is in.session; yet they do not, while acting as judges of the latter court, lose any of their powers as judges ol the former court. Neither do the senators, while acting judges of that court, cease to be senators.

County judges are not only judges of the County Courts, in their respective counties, but they are judges in the courts of Oyer and Terminer and of Sessions in their counties, and in some counties surrogates. The discharge of judicial duty in one court, by no means suspends their power to act as judges' of other courts.

An example, still more anal'agous, may be found in the selection of justices of the peace, through the medium of an election to act as judges of the courts of Oyer and Terminer and of Sessions in the several counties. . Although, by this selection, they become in name and in fact, judges in those courts, still their power to act as justices of the peace and to hold justice’s courts, is not thereby suspended. Various other examples might be cited, both under the old constitution and the new, of judicial officers being required to act as judges in different courts; but I have been unable to find any case in which the performance of duty in one capacity, suspends the power to act in others, in the absence of any special provision limiting their powers.

It is evident, therefore, that a justice of the Supreme Court, while a judge of the Court of Appeals, is not deprived of . his jurisdiction to preside in a court of Oyer and Terminér, or to discharge any of the ordinary duties 'appertaining to that office. The judgment of the court of Oyér and Terminer must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Orleans Oyer and Terminer.
    May, 1855.
    Before W. F. Allen, Justice of the Supreme Court, Curtis, County Judge, and the Justices of the Sessions.
    The People vs. Benjamin Mosher.
    Bigamy is not punishable as an offence against this State, unless the second marriage took place within the territorial limits of this State.
    Where the prisoner married a wife in Pennsylvania and lived with her in that State for several years, and then left her and went to Canada, and there married another woman and came to reside with her in this State, his wife being still living in Pennsylvania, it was held that the bigamy complained of was not an oifence against the laws of this State and the prisoner was acquitted.
    The statutory provision (2 R. S. 688, 5 10) merely regulates the venue or place of trial, and does not enlarge the jurisdiction of the State courts.
    The prisoner was indicted for Bigamy. The facts alleged in the indictment were that Mosher married a wife in Pennsylvania and lived with her in that state for several years and left her and went to Canada and there married another woman, his wife being still living in Pennsylvania. After his second marriage in Canada he came to Orleans county and resided there.

      J. S. Smith, for the prisoner,
    claimed that he was entitled to an acquittal for the reason that no offence against the laws of this state was charged.

      B. L. Bessac, (District Attorney) contra,

    insisted that by statute the offence was recognized as a crime against the laws of a place where the party was apprehended, and relied upon 2 R. S. 688, § 10.
   The Court held that the laws of this state had no extra territorial force, and that the second marriage in Canada was not therefore an offence against the laws of this state; and although the marriage was void by the law of the place where it was entered into, the subsequent cohabitation of the parties within this state was merely an offence against good morals, but was not indictable as a-crime. The marriage being void, the parties were living together in a state of adultery, which was not recognized as a crime punishable by indictment under oui laws. That the law against bigamy was not only to preserve the public morals, but it was made criminal, in order to protect the innocent party against the wiles of the guilty and this state owed no duty and could afford no protection to the subjects of a foreign state dwelling and remaining within the territory of their own government.

The statutory provision, to the effect, that an indictment may be found against any person, for a second or other prohibited marriage, in the county in which such person shall be apprehended, and like proceedings had as if the offence had been committed therein, merely regulates the venue or place of trial, and does not enlarge the jurisdiction of the State courts, or give .them cognizance of offences committed without the state. It presupposes an offence to have been committed within the state against the laws of the state and regulates the place of trial.

The statute which defines the jurisdiction of criminal courts (2 R. S. 697, § 1) restricts their jurisdiction to offences and crimes committed within the boundaries of the state. (1 R. S. 65, § 1.) An attempt of the legislature to- subject individuals to trial and .punishment within this state, for acts done without the territorial limits of the state would be fruitless and the legislation designed to accomplish the purpose would be simply void.

The defendant was acquitted.


author: By the Court, Welles, J.

text:
    Supreme Court. Monroe General Term,
    December, 1854.

      Johnson, T. R. Strong and Welles, Justices.

    The People vs. Samuel Miller.
    On the trial of an indictment for obtaining an endorsement of a note by false pretences, it is proper for the prosecutor to state, as a witness, what influence the representations of the defendant had upon him, by way of inducing him to endorse the note.
    Where, on such trial, it had been charged in the indictment and was proved on the trial, that the defendant obtained the endorsement by representing, among other things, that all his last year’s debts had been settled and paid, it was held that such representations could not be shown to be false, by proving a specific indebtedness existing at the time, unless the existence of such specific indebtedness had been alleged in the indictment.
    On the trial of an indictment in the Court of Sessions, the County Judge, presiding at the trial, can not be sworn and examined as a witness; he can not act at the same time in the capacity of both judge and witness,

      Certiorari to Monroe County Sessions. The defendant was tried and convicted in the court below for obtaining the signature of one Nelson Peet as endorser thereof to a promissory note made by the defendant, dated August 26th, 1851, payable to said Peet or order at the Farmers’ and Mechanics’ Bank, in the city of Rochester, at sixty-three days for one thousand dollars, by false and fraudulent pretences.
    The pretences charged were, that the defendant had not any notes in bank except two several promissory notes for the payment of one thousand dollars each endorsed by the said Peet, innuendo, See., and that all his last year’s debts,—(innuendo, all the debts contracted by the said Samuel Miller in his business of milling during the year previous to said 26th of August, 1851,) were settled up (meaning thereby, paid) and also that he, the said Samuel Miller, was then solvent, well able to pay all his debts, and also then had the means and was fully able to pay the said promissory note first mentioned; and that Peet, believing these representations, was thereby induced to sign the said note as endorser thereof. The negations of tKesé~representations were that the defendant was at the time they were made, to wit: on the 26th day of August, 1851, and for a long time previous the sole maker and liable to pay besides the several notes mentioned two several promissory notes in and held by the Farmers’ and Mechanics’ Bank of Rochester, one for the payment of $2000 and the other for $500.
    That all of the debts contracted by the defendant in his business of milling during the year previous to said 26th of August, 1851, were not at the time, &c., settled up and paid, but on the contrary said- defendant at the time, &c. (26th of August, 1851) owed a large amount of debts contracted" by him during the year preceding the 26th of" August, 1851, to wit: the two several notes of $2000 and $500 before set forth, and also a large amount, to wit: $900, to one Thomas Stratton, &c., all of which debts were contracted by defendant in his business of milling during the year preceding the 26th day of August, 1851, &c.
    That said defendant was not at the time, &c. (26th of August, 1851) solvent, nor able to pay his debts, but on the contrary, &c., was utterly and wholly unable to pay his debts, arid utterly and wholly insolvent, &c., &c.
    That the defendant well knew the said representations to be utterly false and untrue at the time of making the same by means of which he obtained the signature of said Peet as endorser, &c.
    There were two counts in the indictment, but substantially alike.
    Upon the trial in the court below evidence was given, in support of the indictment and on the part of the defendant-various objections and exceptions were taken, which it is unnecessary to state, as the following opinion states enough of the proceedings for the right understanding of the points decided.

      S. Matthews, for defendant.

      E. A. Raymond, (District Attorney) for the people.

       One of three referees, before whom a cause is tried can not be sworn and examined as a witness on the trial. Morss v. Morss, 11 Barb. S. C. Rep. 510.

   By the Court, Welles, J.

The note in question, the endorsement whereof by the prosecutor, Peet, is charged to have been obtained by false and fraudulent pretences, was made and endorsed for the purpose of renewing a previous one of the same amount endorsed by the prosecutor, and was so stated and understood at the time it was endorsed; and the bill of exceptions shows it was so used and appropriated. It may be questionable whether such a case comes within the spirit and object of the statutes to punish false pretences. The prosecutor’s liability was not increased by the transaction, and it may be difficult to perceive how he could be injured' by it, or that the defendant thereby intended to commit a fraud upon him. I do not, however, propose to place the decision of the case upon that ground.

The witness, Peet, testified, that he was induced to endorse the note by the defendant’s statement to him that he was good; that he had paid all his debts; that he had property and means that he could pay him with; that he could pay the notes, and had money and property That he would and could pay him with. This evidence was objected to in season, and an exception to the decision of the court admitting it, was duly taken. We do not perceive any legal objection to this ruling. It was proper for the jury to know what influence the representations of the defendant had upon the witness by way of inducing him to endorse the note. If they had none at all, the prosecution must have failed on that ground; for although the representations were false and fraudulent, if they had no influence upon the mind of the witness, it could not be said that, he was induced by them to endorse the note; which was indispensable to the consummation of the crime charged.

Amongst other evidence given by the district attorney upon the trial, was that of the witness, Nathan Calhoun, who testified that during the spring and summer of 1851, he sold the defendant a quantity of wheat, and that on the 26th of August of that year, the defendant owed him a balance for the wheat delivered, of $790-81. This evidence, when offered, was duly objected to and an exception duly taken to its admission. Among other grounds of objection specified was the one that no such debt was mentioned in the. indictment. It could only be material by way of contradicting the representation charged and claimed to have been proved that all the defendant’s last year’s debts had been settled and paid. If admissible at all, it could only be-so, under a proper allegation or averment, alleging the fact. It would be contrary to well-established principles, to allow evidence to be given upon a material issue, tending to fasten fraud and falsehood upon the party, without any averment or notice in the indictment, of the fact sought to be proved. Indeed, this seems to have been the view entertained by the district attorney in drawing the indictment; for we find that it alleges an indebtedness of the defendant in favor of one Stratton, under which evidence was given. The same particularity is also observed in the negation of the representations charged respecting notes given by the defendant other than those endorsed by Peet. It seems to me they were necessary in those cases in order to authorize the evidence given in support of them, and equally so in regard to the evidence under consideration.

In the course of the trial, the defendant offered as a witness in his behalf the Hon. Harvey Humphrey, county judge of Monroe county. It was objected on the part of the prosecution that Judge Humphrey, being a member of the court, could not be sworn as a witness. The objection was sustained, and the defendant excepted. We think this decision was correct. The court could not be held without the county judge, and it would have broken up the court for the time being for him to take his stand as a witness. He could not act in the double capacity at one and the same time of judge and witness. To make this apparent, it is only necessary to suppose a claim of privilege by the witness in regard to answering a question put to him, or his refusal to answer a question which his associates of the court decide he is bound to answer, with a motion for his commitment, as being in contempt, until he should answer, or of evidence introduced to contradict or impeach him. Such things are possible in the nature of the case.

If it should be said that the defendant might in this way be deprived of valuable evidence and exposed to a conviction for want of it, it is sufficient to say, that the indictment might be removed to the Oyer and Terminer for trial; and if the presiding judge on the trial in that court was a material witness, it might be good ground for an adjournment until a judge should take his seat who was not wanted as a witness.

Upon the ground, however, of the admission of the evidence of the witness Calhoun, without noticing any of the other objections raised upon the trial, we think the conviction should be reversed and a new trial granted in the court below.

Ordered accordingly.


author: By the Court, Parker, J.

text:
    Supreme Court. Albany General Term,
    May, 1855.

      Parker, Wright and Harris, Justices.
    The People vs. Warren Benjamin.
    On a trial for an assault and battery before a court of Special Sessions, a former trial and sentence can not be given in evidence under the plea of not guilty.

    Under the plea of not guilty, the defendant can only give in evidence whatever negatives the allegations in the indictment or complaint, and matters of excuse or justification.
    Where, after pleading not guilty, any thing occurs available as a defence, the defendant can only avail himself of it by a subsequent plea.
    A conviction before a court of Special Sessions must be proved by the record of conviction, or a duly certified copy thereof, if a record has been filed; and secondary evidence of a conviction can not be received, unless it is shown that no record of conviction has been filed.
    Forms of a writ of certiorari to bring up the proceedings and judgment from a court of Special Sessions, and of return thereto, and of warrant to bring the .accused before a magistrate.
    This was a certiorari to a court of Special Sessions. The writ of certiorari was as follows;

      The People of the State of New York, to Daniel C. Stewart, one of the Justices of the Peace in and for the County of Albany, Greeting:
    We haying been informed that Warren Benjamin, of said county, was lately, in a court of Special Sessions held before you, convicted of having assaulted and beaten William H. Smith, and being willing for certain causes to be certified of the said conviction, and of the complaint, proceedings and judgment against the said Warren Benjamin, do command you that the said complaint, proceedings, conviction and judgment, with all things touching the same, by whatsoever name the party may be called therein, you send to our justices of the Supreme Court distinctly and plainly under your hand and seal, and that you cause this writ and the affidavit delivered to you herewith and your return, tó be filed in the office of the clerk of the Supreme Court at the city of Albany, within twenty days after the service of this writ. Witness, Samuel L. Selden, Esq., Justice, the 12th day of April, 1854.
    R. Harper, Clerk.

    Peter Johnson, Jltt’y.

    The above writ of certiorari is allowed by me this 12th day of April, 1854. Samuel L. Selden,

      Justice of the Supreme Court.

    The application for the writ of certiorri was made on the affidavit of William Benjamin, who stated that he was the father of Warren Benjamin, in whose behalf the application was made, that said Warren Benjamin could not make the affidavit himself, as he was then imprisoned in the Albany Penitentiary, on the sentence which it was the object of the certiorari to reverse. The affidavit contained a history of the proceedings and trial before Daniel C. Stewart, justice of the peace, and a statement of the points made and relied upon to show the proceedings to be erroneous, and also the exceptions taken at the trial in the court below.
    The return of the justice was as follows:

      State of New York, Albany County:

    I, Daniel C. Stewart, the justice named in the annexed writ, do certify and return to the Supreme Court, that Warren Benjamin of said county, was on the 17th day of February, 1854, brought before me by virtue of a warrant hereunto annexed marked A, which was issued on a complaint made by William H. Smith on oath, I acting as a court of Special Sessions, read over the said complaint as stated in said warrant to'the said Benjamin, to which he pleaded not guilty, the plea was duly entered by me in the minutes of the court, the said Benjamin then stated that he was not ready for trial, and made application for an adjournment until the 24th of February, at 9 o’clock a. m., which application was in accordance with the provisions contained in the 2d section of an act to amend the revised statutes in relation to courts of Special Sessions, and to regulate the police in the town of Watervliet, passed April 2d, 1850, allowed, the said Benjamin filing with me, the said justice, a bond in the penalty of three hundred dollars with William Benjamin surety as conditional for the personal appearance of the said Warren Benjamin, at a court of Special Sessions, to be held by me on the 24th day of February, at 9 o’clock in the forenoon, to answer said charge, or on a subsequent day to which said trial should be adjourned, which bond was duly approved by me, and is hereto annexed marked B.
    February 24th, 9 o’clock a. m., defendant Benjamin appeared with his counsel Peter Johnson, court held open until 4 o’clock p. M., when defendant was sworn on application for adjournment to March 17th, at 9 o’clock A. M. March 17th, 9 o’clock a. hi., adjourned to March 18th, a. m., 9 o’clock. March 18th, at 9 o’clock a. m., defendant appeared and was sworn on application for adjournment to April 1st, 9 o’clock a. m. April 1st, 9 o’clock a. m., defendant appeared, Andrew Alexander, Attorney for the People, made application for an attachment for Martin King, a defaulting witness, whereupon I issued an attachment returnable, April 8th, at 9 o’clock a. m., to which time said trial was adjourned. April 8th, 9 o’clock a. m. defendant, complainant and witnesses appeared. Defendant stated he was ready for trial whereupon, William H. Smith, the complainant, was duly sworn and testified as follows: I reside in West Troy; know defendant Warren Benjamin; he is or was a resident of West Troy recently. On the night of the 16th of Dec. last, he grievously assaulted and beat me; made an attack on me on the covered bridge near the West Troy side cut; it was between 12 and 1 o’clock at night; I was not alone; my mother, Miss Hill, my sister, two young men and two young women of Schenectady were with me; defendant was with some five or six others; I had been to Troy and was returning home; my sister lives some ten or fifteen rods from the bridge; after the attack on the bridge, myself and those with me fled to mother’s house; defendant and those with him came, rushed into the house, threw me down and kicked and struck me; some one of them said drag the damned son of a bitch out of the house and kill him; they dragged me out; defendant and John Dunn kicked me in the face several times, when at the canal bridge, they tried to throw me off the bridge into the canal; I could not tell whether the defendant tried to or not, as I could not see all behind me; heard them say “ throw the son of a bitch off the bridge.”
    Cross-examined.—I have been married; can’t say whether my wife is living or not; do not know where she is; have not seen her for some six years; we broke up keeping house at that time; I am a son of Miss Hill; did not board with her at the time of the affray; I boarded at the widow Potter’s; I remained at my mother’s some days after the fracas, and finally went to my boarding place; we had been to Troy that night; I went there after my mother and sister, they wanted me to come home with them; they were at a dance at Mr. McCoy’s; when coming home, the ladies from Schenectady were with us; I think I saw defendant at the dance that night; I understood that the dance was got up for the benefit of my mother; defendant and Dunn came with us from the east end of the Troy bridge; can’t say that any angry words or threats of violence were used by them towards me, until we arrived at the covered canal bridge in West Troy; the fight commenced about one third the length of the bridge from the west end; can’t positively swear that defendant struck me at the bridge; can’t swear that he did not; the first time I can swear that defendant laid violent hands on me was after they pulled me out of the house; and don’t know which ones pulled me out except John Dunn; defendant kicked me several times in the face, and injured me so that my face was swollen all over; he kicked me three or four times; the top of my head was cut through the scalp very severely; it had to be sewed up; this wound was made in the house; defendant was not in the habit of going to my mother’s house that I know of; several persons had hold of me while on the walk beside defendant; defendant had not committed an assault and battery on me previous to Dec. 16, 1853; have no, recollection of speaking to defendant before that time; I knew him by sight; he has not assaulted me since; the one on the 16th Dec. 1853, is the only one he ever committed on me; don’t recollect that I ever swore in court that the fight was commenced at the bridge by defendant and continued to the house; can’t swear that I did not swear so; I think that I did not swear so before Esquire Winne; when I went to McCoy’s where the dance was, I went up some three or four street? then went some distance up a hill; think it was not a brick house; it was on the left side of the road going east.

      Question.—-D,o you recollect of giving in your testimony some two or three weeks ago, on a Saturday evening, before Justice Winne in regard to an assault and battery on you?
    ' This question was objected to by the people’s counsel on the following grounds: '
    I. That it is irrelevant and not material to this issue to inquire what witness swore to before Justice Winne, some two weeks since.
    II. That this defendant had been arrested on the 17th of February, by virtue of a warrant regularly issued by this court and brought into court, arraigned and plead not guilty to the charge, and gave bail for his- appearance at trial, and that any subsequent arrest and trial could have nothing to do with this issue, as the jurisdiction of this court could not be ousted or affected by such subsequent proceedings.
    Defendant’s counsel then stated his only object in examining witness in regard to what he swore to before Justice Winne, to be the laying of the groundwork for contradicting and impeaching the witness.
    Examination on that point allowed for purpose of impeaching witness.
    Ruling of the court excepted to by the people’s counsel.
    Answer.—I do, I had been subpenaed there; I think it was about eight o’clock in the evening when I was sworn; defendant was there; they called it a trial; I suppose it was a trial; don’t know whether Esquire Winne called it a trial or not, on that evening; I swore that defendant kicked me some three or four times in the face; I think that I did not at that time say any thing about the light at the bridge; think that I did not say that the fight commenced at the bridge, and continued to my mother’s house. I think I heard "Justice Winne say that Warren Benjamin was arrested and brought into court for an assault and battery committed on me in December last; Winne asked Benjamin what he had to say, guilty or not guilty; 1 think Benjamin said not guilty; I was sworn after that. Esquire Winne asked me what Benjamin did to me; I answered that he kicked me three or four times in the face, down at the house; I think it was all that I swore, to the assault and battery; what I then swore to is the same that I swore to here; I left immediately after being sworn. I swore on that occasion that defendant kicked me three or four times in the lace on the night of the sixteenth of December last; I left McCoy’s about 12 ^o’clock, the night of the dance.

      Direct examination resumed.—At the time I went before Esquire Winne, on the Saturday evening spoken of, I did not go voluntarily, I was subpenaed; I do not recollect that l ever made a complaint against defendant before Esquire Winne for an assault and battery; I did not authorize any person to make a complaint for me. Defendant was then on trial before this court for the same offence, that he had been arrested for, brought into court, arraigned plead not guilty, and gave bonds for his appearance for trial on said charge; on the Saturday evening spoken of, Mr. Alexander, my counsel, objected to my swearing on that occasion, for the reason that the same matter was being investigated before this court, and Mr. Alexander also informed Esquire Winne that I had made no complaint before him, Esquire Winne, and did not wish to -make one; did not wish to testify against defendant, to prosecute him before him; this was done before I was sworn. The court compelled me to testify, notwithstanding my unwillingness; I simply stated in. as few words as possible what had been done; I was not cross-examined; Esquire Winne asked me the questions. I left the court immediately after I testified; don’t know what occurred after I left; defendant’s father, William Benjamin, and Peter Johnson, defendant’s counsel, were there. No one seemed interested in the matter on the part of the people, except Esquire Winne; I would not have gone before Esquire Winne on that occasion if I had not been subpenaed, and would not have testified had I not been compelled to.
    Cross-examined.—I mean that Esquire Winne handed me the book and told me to swear; he did not threaten to commit me for contempt.

      Ann Hill, sworn on part of people, and testified as follows: I know defendant, Warren Benjamin; William H. Smith, complainant, is my son; I was in company with him on the evening of the 16th December last; two ladies and two gentlemen were with us; when about two thirds across the canal bridge in West Troy, I heard John Dunn say that there was going to be a fight, and he wanted a hand in; John Collossy put out his foot to stop our passing on the sidewalk of the bridge; my daughtér said, “ take your foot away, let us go along, and mind your own business.” William H. Smith then said he wished they would let the women pass and behave themselves; defendant, Benjamin, then reached over Dunn’s head, struck at Smith’s and knocked his hat off; Dunn then caught Smith by the hair and knocked him in the face; I got Smith’s hat and we started, I ran to Mr. Busby’s for help, Busby and his wife came, and the rowdy party on the bridge ran; we then went to the house and I went for Andrew Morrison, a constable; the crowd had rushed into the house and broken the door; soon after I came back with Morrison, the crowd had left the house; we went in and found my son, William H. Smith, badly cut, bruised and bleeding.
    Cross-examination.—The ball at McCoy’s was given for my benefit; I have done a great many hard day’s work for McCoy; his house is in the city of Troy, and is called the United States Hotel; defendant was there at the dance that evening. McCoy’s house is in Hoosic street, a short distance from River street in Troy. The dance was in a house opposite the United States Hotel.

      Catharine Bushy, was then sworn on part of the people, and testified as follows: I know the fracas spoken of; I was in bed with my husband on the night of- the 16th of December last; we heard a man hallooing murder; we started to go down to the bridge; we_saw persons running away; saw women there; saw Miss Hill there and Mary; she was hallooing murder; I went to Miss Hill’s house; saw several, say four or five boys or young men breaking into the door and glass; I recognized Maloy’s boy, John Dunn and Warren Benjamin, the defendant; I went as far as the door; saw Benjamin standing just in the door; the crowd all went in; saw Colossy strike Smith; he also struck me; I did not see Benjamin strike. Smith while I was in the room; this was between twelve and one o’clock in the night; the boys were threatening to throw some person into the canal when at the bridge.
    The people’s counsel here rested.

      Martin Winne, was then sworn on behalf of the defendant Benjamin, and testified as follows: I am a justice of the peace in and for the county of Albany; I know William H. Smith and Warren Benjamin; I went to Smith’s house; he was so badly hurt that he could not get out of bed; he was the worst looking man I ever saw; I thought he would die. Miss Hill, Smith’s mother, came to me, said that Smith was about to die, and that she wanted his examination taken before he died. Smith then made a statement, charging Warren Benjamin and others with having assaulted and beaten him; this was on the morning of the 16th December, 1853; he made the statement under oath; I issued a warrant for Benjamin’s arrest on the 19th of December, -1853.
    Question.—Did you try Benjamin for that offence on the 25th day of March, 1854?
    Objected to by the people’s counsel on the following grounds:
    I. That it was not material whether witness had tried Benjamin on that day or not, as that arrest and trial took place more than a month after defendant had been arrested and brought before this court, on a warrant regularly issued and was arraigned, plead not guilty and gave a bond -for his appearance for trial, and to all intents and purposes was on trial before this court and that this court could not be deprived or ousted of its jurisdiction by any such subsequent proceedings.
    II. That the witness had no legal jurisdiction of the defendant at the time of said trial, he, the defendant, being already under bonds for the said offence, and consequently said trial was null and void.
    Defendant’s counsel then stated that his only object in examining the witness on this point was to contradict and impeach the witness, William H. Smith. The evidence was allowed for that purpose. »
    Answer..—I tried Benjamin on the 25th day of March, 1854, on the same day on which he was arrested for assault and battery, on complaint of William H. Smith, made on the 16th day of December, 1853. Smith was sworn on the trial. He swore that Benjamin and others commenced a fight with him at the canal bridge and ended at the house.
    Question—Did you convict and sentence Benjamin?
    Objected to by the people’s counsel on the following grounds:
    I. That the former trial and conviction had not been specially pleaded.
    II. That it is not the proper evidence in form. It should have been the record of conviction duly filed according to law

      Objection sustained. Defendant’s counsel excepted cto the ruling of the court.
    Defendant’s counsel then offered in evidence a paper, which he said was a transcript of the docket of Esquire Winne of the trial of said Benjamin, and offered to prove the correctness of the same by witness.
    Objected to on the same grounds by the people’s counsel and the objection was sustained by the court and defendant excepted.
    Defendant’s counsel then offered to prove by the witness, that upon the trial before him, the defendant was convicted and sentenced to pay a fine of $10 or in default thereof to be imprisoned in the penitentiary of the county sixty days and that said fine had been paid.
    Objected to by people’s counsel on the same grounds. Objection sustained and defendant excepted.
    The cause was then submitted, whereupon from the evidence I . found defendant guilty of said offence, and I did adjudge and order that the said defendant, Warren Benjamin, should pay a fine of $50 or in default thereof to be imprisoned in the penitentiary of the county for the term of six months. All of which is returned as by the said writ commanded.
    Given under my hand and seal this 9th day of May, 1854.
    Daniel C. Stewart, Justice of the Peace.

    The following is a copy of the warrant annexed to the re-' turn:

      Albany County,. Town of Watervliet, ss:

    To any constable of said county—Greeting: Whereas, complaint has this day been made before Daniel C. Stewart one of the justices of the peace in and for said county, by William H. Smith that one Warren Benjamin on the 16th day of December, 1853, at the town of Watervliet in said county, with force and arms did grievously assault and beat him, the said William H. Smith, and we having examined the said complainant on oath touching the said offence and accusation, and it appearing to us from such examination, that such offence has been committed. You are therefore hereby commanded, in the name of the people of the state of New York, forthwith to apprehend the said Warren Benjamin and bring him before the said justice, to be dealt with according to law.
    Witness the said Daniel C. Stewart at West Troy in said county, this 16th of February, 1854.
    Daniel C. Stewart, Justice,

      Peter Johnson for the defendant.
    I. The proceedings of a Justice’s Court may be proved by the justice, who is a competent witness to verify his minutes, which must be produced and can not be proved by parol. Though not technically a court of record, the proceedings are in the nature of a record. (11 John. R. 166.) The proceedings in any cause had before a justice may be proved by the oath of the justice. (2 R. S. 456, 4th ed; 15 Wend. R. 237.)

    II. The judgments and proceedings of inferior courts, not of record, may be proved by the minute book in which the proceedings are entered. So an examined copy of the minutes will be sufficient. If the proceedings of an inferior court are not entered in the books, they may be proved by the officer of the court, or some person conversant with the facts. (Roscoe Cr. Ev., 204; 2 Ohio R. 17; 1 Starkie Ev. 303, 3d ed.) A Justice’s Court is not a court of record. (23 Wend. 374.)
    III. The former trial and sentence might be proved under the plea of not guilty. A former recovery may be proved in trover under the general issue. (6 Hill 114, 2 ib. 478.)
    IV. A magistrate’s warrant continues in force until fully executed, during the term of office of the magistrate granting it. (1 Ch. Cr. L. 46 50; Peake’s N. P. Cases, 234.)

      H. Harris (District Attorney,) for the people cited, 2 R. S. 804; 3d ed. § 45; 1 Green. Ev § 513..
   By the Court, Parker, J.

It is apparent in this case that the trial before Esquire Winne, was carried on more for the benefit of the defendant than of the public. The injured person was not complainant, but was a very reluctant witness, and his counsel objected to the whole proceeding. It was evidently an attempt to get off the defendant with a very light punishment for a very atrocious offence. But it failed of its object.

Under the plea of not guilty, the defendant had no right to prove a former trial and sentence, nor even that a proceeding was then pending before a different tribunal for the same of-fence. (Arch. Cr. Pl. 92, 94.) The rule is that under a plea of not guilty, the defendant may give in evidence everything which negatives the allegations in the indictment or complaint and all matters of excuse or justification. Where a defendant wishes to avail himself of a former trial and judgment, he must plead auterfois acquit or auterfois convict, as the case may be.

In this case the defendant pleaded not guilty, and the cause was tried upon that issue alone. If, after the joining of issue, any thing occurred which might be available as a defence, the defendant could only avail himself of it by a subsequent plea, and by presenting a new issue for trial. That was not done, and the evidence of the trial and sentence before Esquire Winne, was properly excluded upon the merits.

We think the objection to the species of evidence, by which the facts were offered to be proved, was also well taken. The record of conviction, if it had been filed, or a duly certified copy of it, would have been the proper evidence. (2 R. S. 717, § 38,39, 40.) If it had been shown that no record of conviction had been filed, the secondary evidence might have been received. (2 R. S. 739, § 10: Barb. Cr. L. 407, 2d ed.)

The judgment must be affirmed.


author: B. L. Bessac, (District Attorney)

text:
    Orleans Oyer and Terminer.
    May, 1855.
    Before W. F. Allen, Justice of the Supreme Court, Curtis, County Judge, and the Justices of the Sessions.
    The People vs. James Randolph.
    A boy under fourteen years of age, indicted for rape, being presumed to be physically incompetent to commit the crime, can not be convicted of an assault and battery with intent to commit a rape, though he may be convicted of a simple assault and battery.
    The prisoner was indicted for a rape and had been once tried and convicted. He was under the age of fourteen at the time of the alleged commission of the offence charged. Upon the former trial, the question was submitted to the jury, whether the prisoner was capable of committing the offence. Upon error Drought upon that conviction, the Supreme Court sitting in the eighth district decided that the presumption of the incapacity of an individual under fourteen to commit the offence of rape was not conclusive, but might be overcome by evidence that the party charged had attained to puberty, but that there was no evidence of that fact upon the trial of this indictment which should have been submitted to the jury and reversed the conviction, granting a new trial to the prisoner,

    Upon the second trial, no additional evidence was offered tending to show the competency of the prisoner to commit the offence charged, and the court held, under the decision of the Supreme Court, that a conviction for the crime of rape could not be had.

         See case reported page 174.

   B. L. Bessac, (District Attorney)

urged that notwithstanding the age of the prisoner and his presumed inability to perpetrate the offence, he might lawfully be convicted of an assault with intent to commit a rape, and that it should be submitted to the jury with proper instructions to pass upon the guilt or innocence of the party, of this offence.

Church & Davis, for the defendant,

insisted that the prisoner could only be convicted of a simple assault and battery upon the ground that the law adjudging that he could not commit the offence charged, he could not be guilty under the law of a criminal intent to commit the offence, and cited Rex v. Eldersham, 3 C. & P. 396; Grovenbridge’s case, 7 id. 582 and Regina v. Phillips, 8 id. 736.

: The Court ruled that the guilty intent, which, under the statute, aggravated a simple assault and battery and made it punishable as a felony, could not exist where there was a physical incapacity presumed by law of the person .charged, i to consummate the offence alleged to have been intended. The intent was simply a thought or desire, which could not in the nature of things produce any result, the highest offence of ■which the party was capable being a mere assault and battery, as determined by the law itself. The circumstances attending the assault are to be considered in awarding a punishment for the offence.

In Eldersham’s case, Vaughan, B., held that a boy, under the -' age of fourteen, could not be convicted of an assault with intent to commit a rape, Gaselee, J., held the same, after consulting Lord Abinger, C. B., in Rex v. Grovenbridge, and Patterson, J., made the same ruling in Phillips’ case. The reverse had been, before either of these cases, decided by the Supreme Judicial Court of Massachusetts in Commonwealth v. Green, 2 Pick. 380, Parker, C. J., dissenting The reasons assigned in the prevailing opinion are not sufficient, against the dissent of the Chief Justice, to overcome the force of the English cases and the principle upon which they are based. If the offence deserves a higher penalty than can be imposed for a simple assault and battery, the remedy is with the legislature, who can provide such a punishment as will most effectually protect females from boys of vicious propensities. That the presumption of impotency is in England absolute, while, as held by the Supreme Court in this case it is only prima facie in this state, does not affect the question. It is conclusive until overcome by evidence.

Under the direction of the court, the prisoner was found guilty of an assault and battery.


text:
    Dutchess Oyer and Terminer,
    May, 1855.
    Before Dean Justice of the Supreme Court and the County Justices.
    The People vs. George Lake
    Rules and directions to govern a jury on trial of the question of present insanity, on an indictment for murder,

    The prisoner in this case had been tried and convicted of murder at the Dutchess Oyer and Terminer. The conviction was afterwards reversed by the Supreme Court, and a new trial awarded. (1 Park. Cr. R. 495.) When the public prosecutor moved on the cause for the second trial, the prisoner’s' counsel alleged present insanity, and a jury was impanneled to try the question. Fifteen witnesses (physcians) were examined.

      M. & H. Hale, for the prisoner

      T. C. Campbell, (District Attorney,) for the people.

         No insane person can be tried, sentenced to any punishment, or punised for any crime or ofiFence while he continues in that state. (2 R. S. 697, Freeman v. The People, 4 Denio, R. 9.)

   The following charge was given to the jury by the presiding judge.

Gentlemen of the Jury—The statute declares that no insane person can be tried, sentenced to any punishment, or punished for any crime or offence, while he continues in that state.”

The prisoner stands indicted for the highest offence known to the law, murder, and that, too, committed upon his own wife and offspring. He has been once tried and convicted on this . charge, and a new trial granted him, not because the court believed him insane, but wholly on the ground of error arising on the admission and rejection of improper testimony. The new trial was set down for this time, the public prosecutor moved it on, the prisoner’s counsel alleged his insanity, and the court deemed it proper to try that question first and distinct from his crime. It is for this purpose, to determine whether he is now insane, that you are impanneled. You will not allow' the atrocity of the offence, nor the supposed effect of your verdict, either on the prisoner or the community, to influence you in the least, but, unswayed by prejudice and unbiased by feeling, you will pass upon the question of his present sanity; if you find that he is sane, we shall then proceed to try him on the indictment; if, on the contrary, you find him insane, the humanity of the law interposes for the protection of his life until he is restored to reason. In the mean time, he will be kept in close confinement, and society protected from his fury.

Before proceeding to call your attention to rhe law as ap plicable to this case, I will make a passing remark on the strange objection that has been made by one of the counsel in reference to the propriety of the request made by the court for physicians to examine the prisoner, so as to be able to testify as to his state of mind. The court did not do this; I did it, and assume its full responsibility. And I only allude to the subject on the prisoner’s account, lest you might not, if you supposed there was any thing improper in the selection of these men, give to their testimony the weight it would otherwise have. The defence on the former trial had been insanity, respectable physicians had then testified that he was insane, others, that he was not. The alleged insanity continued and physicians it was said, would not make an examination. Knowing that the object of a trial was to elicit truth, and that truth could only be obtained by knowledge, and that knowledge was acquired by investigation, that you might have some evidence, some rational opinions, founded upon sufficient facts, I made the request for four medical men to make an examination satisfactory to themselves. The four physicians were of my' own selection, one of them, Dr. John Cooper, Sen., had, on the former trial, given his opinion that he was sane, another, Dr. * Varick, had on that trial testified that in his opinion he was insane, while the other two, Doctors Hughson and Bockee, had never seen him, and were consequently uncommitted. I need not tell you, gentlemen, what is the professional standing of these four men among their brethren in this county' or in the community. If the object of this trial is, however, to go into the matter blindfold, rather than to elicit truth, then it is very improper to have any body examine him enough to form an opinion. It has been said that this looks like an attempt of the court to have the man found insane. Is it possible that the district attorney will make such an admission, that an investigation by competent physicians must lead to a verdict of insanity! You •should not take it as such, and I hope you will not allow even his mistakes to prejudice the rights of the people on the one side, nor any thing that the court may do, to affect the prisoner. You are not trying the court or any of its officers, but the sanity of the prisoner. Whenever any issue is made against me, I shall be glad to meet it here or elsewhere. If the public, or any one who represents it, desires to see any one hung with' out an opportunity to know whether he is in a proper state of mind to be tried, or a fit subject of punishment, they must not ask me to assist at the execution.

To return to the question to be tried, is the prisoner now insane! To determine this, it will probably be unnecessary to give you a definition of insanity; it is a condition of mental existence which is known and recognized in the laws of all civilized states, and which exempts the person subject to it from punishment. Its symptoms or outward manifestations, are well known by those who have devoted their time and attention to its study ....

Insanity is as various in its phases and effects as the person? in whom it appears, yet there are four general classes into which, for convenience it is divided.

1. Mania, where the hallucination or delusion is general, extending to all objects.

2. Monomania, in which the hallucination is confined to a single object, a class of objects, or to a limited number of objects.

3. Dementia, or madness, where the person afflicted is rendered incapable of reasoning, in consequence of functional disorder of the brain, not congenital, or born with the person.

4. Idiotism, total want of the reasoning powers from malconformation of the organ of thought at the time of birth.

It is not pretended that the prisoner is an idiot, and has never . been of sound mind; nor do I think it can be claimed that he is absolutely demented, or rendered incapable of reasoning upon all subjects; his lunacy, if it exists at all, is in the form of a mania or monomania, probably the latter.

Your position in a case of this kind is peculiar. In ordinary trials, you are to hear the testimony of witnesses as to the existence of certain facts, and on them find a verdict. Here you are to form an opinion, on the evidence of opinions. This results from the nature of the subject of inquiry, the mind, an existence which is invisible, imponderable, intangible, and immeasureable. The minutest filament of matter, the air itself, can be weighed, but there are no scales in which the mind can be balanced,

If the title to land is in dispute the deeds and conveyances, the surveyor’s compass and chain can determine the question. So of almost any action or prosecution, the facts as detailed by the witnesses will enable a jury to determine the question at issue. But here the point in dispute is the existence or non existence of a certain mental state. It is not even the amount but the soundness of mind.

Ordinary persons, no matter how intelligent, can not give an opinion, but any man who has acquired, as an addition to his name, the letters M D., be he" ever so ignorant, can give vou his opinion.

Another question arises, are you to base your verdict upon the opinion of medical men or your own?

On this subject, the whole theory of jury trials, and the reason of the case, satisfy me that it is your opinion, and not that of the doctors, which is to make up the verdict.

How much reliance you should place on the opinion of a medical witness, depends upon his skill, his means of judging of the true mental condition of the prisoner, and the facts he details to you as the basis of that opinion.

Mathematics, chemistry, philosophy and surgery are sciences, but medicine, unfortunately, can not be ranked among them. Between Allopathy and Homoeopathy, and the various other systems, every nostrum and every humbug has its practitioners and its victims, but there are nevertheless among those who pursue this profession scientific men, whose opinions on mental or physical diseases are entitled to consideration. There are certain things which are settled, the state of the pulse and skin in fever; the effects of certain articles, used medicinally, on the human system; so there are certain phenomena, which when they exist, are admitted to be symptoms of insanity. Among these are wakefulness, want of appetite, or the reverse, an excited pulse with cold extremities during the absencp of any inflammation, heat of the head, melancholy, an expression of the eye, hard to describe, but which, while it shows intellectual dullness, exhibits a stare or wildness easily discernible by those acquainted with insanity, alternate laughter and weeping, without any perceptible or sufficient cause, a suspicion of friends. These symptoms, even with those known to be insane, are rarely if ever all present in the same person, but the existence of any number of them, accompanied by incoherent conversation and unusual conduct, ordinarily prove the patient insane.

Do these symptoms, or any of them, exist in the case of the prisoner? The sheriff has testified in reference to his wakefulness; that he had watched him, and never found him sleeping, and never but once when he seemed to have been sleeping. Houghtaling has given evidence in reference to his want of sleep the night following the murder. The only proof we have as to the pulse shows that it is accelerated or faster than in a person of his age in ordinary health. It is shown that he-has been known to laugh and weep alternately, and without any apparent cause. That he is and has been, ever since the homicide, suspicious of his friends, and that he refuses to confide in or consult with his counsel. It is also in evidence that just before the homicide, he was seen while in the public highway to stop his horse, take him by the head, lead him around in a circle, then drive a few rods, and repeat the same thing; that he was seen sitting on the top of the bureau in his house, with his feet in the drawer, laughing, crying, talking incoherently, and striking his head against the wall. These symptoms and actions are all consistent with insanity. I do not say that they are controlling, but should be carefully weighed and considered by you in deciding this question.

Every one who has heard the evidence, and observed the conduct of the prisoner during this trial, will agree that this is a case either of simulated or real insanity. Which is it? In determining this, you should take into view his circumstances in life; the opportunity he has had for learning the real symptoms of insanity. If he were a physician and had committed crime, it would be far easier for him, knowing the symptoms, to imitate them. The only evidence we have as to his situation is that he has lived in the interior of the country, that his circumstances are very humble, and that he can not write even his name. The probabilities are, therefore, that he has little if any learning of books, and consequently, if he feigned, does it without knowing the precise symptoms necessary to accomplish his object.

There was a fact stated by Dr. Upton, which in my mind weighed very strongly in favor of the reality of his madness. You will remember that we yesterday took a recess of the court to allow the physicians subpenaed against the prisoner to examine him. This examination was conducted by Dr. Upton, who. asked the prisoner why he traveled so much in the night, just before the homicide. To this he replied that he could get no rest at home, and in describing the methods resorted to, to obtain rest, said he was in the 'habit of going down stairs and leaning against the bags of oats to sleep, instead of sleeping in a bed. Beck, in his Medical Jurisprudence, quoting from Hasam, says: “The symptoms are aggravated by being placed in a recumbent position; and patients, when in the raving state, seem, of themselves, to avoid the horizontal position as much as possible, and when so confined that they can not be erect, will keep themselves seated. This remark applies equally to mania and monomania ” If Lake, prior to the murder, could not sleep nights, could find no rest, went instinctively to a place where he could lean against the bags of oats, instead of lying down upon a bed to sleep—here is a very strong evidence of insanity. . It is scarcely possible that he yesterday, when stating this fact to the physicians, knew its effect as evidence, for it seemed to attract no attention from them, and had not been alluded to by counsel; but to my mind it is a most controlling circumstance in the case, and irreconcilable with the theory of simulated insanity. Again, we find that yesterday, when the court adjourned, it was announced in the prisoner’s presence that the object was to allow physicians to make a personal examination, and testify in reference to him. They did make that examination; then, if ever, he would have feigned insanity, or would have refused to answer. But, on the contrary, he answered every question, was accurate in dates, -and exhibited no aberration of mind until he was asked in reference to the homicide, and as to that said if his “ wife was black, then it was all right; if not then he was accountable,” and as a reason for killing his children, that, “ when the body went down to the ground it needed neither food nor raiment.” This to me resembles delusion far more than simulation. oAgain, wakefulness can not be feigned for any continued length of time. Dr. Beck says: “ Pretenders are unable to prevent sleep. That wakefulness which is so constant an attendant on the insane, is scarcely to be preserved for any length of time by those who are in actual health.” He then cites the case of a seaman, who to escape punishment, enacted the part of a furious maniac; sound sleep overpowered him on the second night of attempt. This must be so; for sleep is not a voluntary state. No man, by his mere volition, can put himself to sleep, nor can the strongest will, unaccompanied by mental and physical ex citement, prevent it. Both body and mind require it, and r comes unbidden.

The counsel for the prisoner insists that the homicide itself proves the insanity of the perpetrator. To hold this sufficient evidence to establish insanity would be dangerous; but it is proper to examine the act with all its attendant circumstances, and see whether it is most consistent with real or pretended insanity; see if you could discover a motive, or a sufficient motive; whether these victims stood in his way, whether there was any jealousy of his wife. And in doing this, you are to regard the prisoner as a human being, possessed of moral, intellectual and physical faculties swayed by passions and actuated by affections. But you will not allow the atrocity of the act alone to satisfy you of the insanity of the perpetrator.

I regret that you have not had more aid from professional men of sufficient skill to determine the prisoner’s actual condition. The same author from whom I have before quoted, says: Madness is most commonly feigned for the purpose of escaping the punishment due to crime, and the responsibility of the medical examiner is consequently great. It is his duty, and should be his privilege, to spend several days in the examination of a lunatic, before he pronounces a decided opinion.” This has been neglected in this case, though the prisoner has for nearly two years occupied .a cell in your jail. But you are now, on all the evidence that has been produced, to find a verdict. In coming to a conclusion, you will remember that every man is presumed sane, and responsible for his acts, until the contrary is proved, and therefore that the affirmative of the issue is with the prisoner. If the evidence satisfies you that he is insane, so that he can not make a rational defence to the indictment, you will say so, and he will then be placed where he will be treated for his disease, and if restored to sanity, will be tried for the offence. If, on the contrary, the evidence fail:; to satisfy that he is insane, you will pronounce him sane, and we will then proceed to his trial for the crime.

You will not fail to remember during your deliberations that it is you who are to settle this question, and not the court; that if any intimation of an opinion has inadvertently escaped, that' you will only regard it in as far as it was supported by satisfactory reasons. The prisoner, if insane, is most unfortunate in having been so long confined, and treated merely as a criminal; if he is not insane, he is still more unfortunate in being the perpetrator of a murder which in its atrocity is scarcely paralleled in the dark annals of crime.

The jury found the' prisoner insane.


text:
    New York Oyer and Terminer.
    April, 1855.

      Edward P. Cowles, Justice of the Supreme Court, presiding.
    The People vs. Terrence Hammill.
    On the trial of the prisoner for the murder of his wife, it having been proved that he killed her by stamping upon her, the court charged the jury that the crime was murder, if the prisoner intended to take the life of his wife ; but that if he intended only to wound and bruise her, it was manslaughter in the second degree.
    The court further charged, that, if the prisoner designed to take the life of the deceased, it made no difference as to the offence, whether he was drunk or sober at the time.
    That though intoxication does not excuse crime, yet that the jury might take into consideration the fact of intoxication, so far as it would aid them in determining with what intent the act was done.
    It is a rule of the common law, that a person is held to intend that which in the ordinary course of things would be the natural result of his own acts.
    Illustrations of this rule given by the presiding judge, in his charge to the jury, with explanations as to its applicability in a case of intoxication.
    In cases not free from doubt, the jury are at liberty to consider the pris< ner’s previous good character; but such a defence is not available where the guilt of the accused is clearly established.
    The prisoner was brought to trial under an indictment charging the murder of his wife on the first day of January, 1855. He was a laboring man of an unusually powerful frame and of great physical strength.
    On the evening of January 1st, 1855, he was discovered in his house in the act of stamping upon his wife, who, on being raised from the floor, was found to be dying, and survived for a few moments only. No one before this discovery had witnessed the scene. His wife’s person exhibited marks of the most brutal violence, the head and chest being covered with bruises and blood. She had evidently been stamped to death by the prisoner, who wore heavy iron-nailed shoes. No cause was shown for the prisoner’s acts, further than that both tne prisoner and his wife had returned some two hours before from a visit to one of their neighbors, in'a state of partial intoxication. A bottle of liquor, known to have been partially filled on their return, was found in the house empty.
    For the defence the prisoner was proved to have been a man of previous excellent character, unusually industrious and frugal. Except when under the influence of liquor, he was shown to have been habitually and uniformly kind, attentive and affectionate to all of his family; that his habits were, with few exceptions, strictly temperate. Occasionally (and generally only on anniversaries or holidays) he would give way to intoxication. When under the influence of spirituous liquors, he generally became infuriated and ungovernable, attacking any one who came in his way, not distinguishing, and apparently incapable of distinguishing, between friends and strangers. That, except on such occasions, he was mild, peaceable, quiet and inoffensive in his manners,
    The prosecution claimed a verdict for murder. The defence urged that it should be only for manslaughter in the second degree.
    A. Oakey Hall, (District Attorney) for the people.

      H. L. Clinton, for the prisoner
   The court charged the jury as follows:

Gentlemen.—The case now to be committed to your hands is an unusually painful one. The prisoner is not a man who has been familiar with vice or hardened by crime. Though in the humble walks of life he is proved by men of the highest standing who have known him well, to have sustained the most irreproachable character for honesty, integrity and industry, and on all occasions, except when infuriated by intoxication, for kindness, and attention, and affection to all his family. With that single exception, no better character in all these respects, or for quietness and unobtrusiveness of manners, could have been shown than has been established for him.

But he stands before you now charged with the murder of his wife. So clear is the proof that she died by violence and that violence inflicted by the prisoner, that his counsel does not insist to the contrary, but urges that the crime is less in degree than that of murder.

This is a question for you. Your duties are first to determine whether the deceased came to her death by violence. If so, then next whether it was inflicted by the prisoner. If you; find in the affirmative on both of these questions, your next, inquiry will be whether these acts of yiolenee were, in the language of the statute, perpetrated from a premeditated design to effect the death of the person killed.” If so, then the prisoner is guilty of the crime of murder.

The important question for you to determine, if you find that the prisoner caused this death, will be the intent with which he did this violence. What did he intend? What did be design should be the result of his acts? Did he mean to kill? Was that idea in his mind as he gave the blows! If so, the crime is complete and your verdict must pronounce it murder.

And it matters not what was his state as respects sobriety or intoxication at the time, provided you find he gave the blows with the design to kill; for, if he meant that, then, whether at the time he was drunk or sober, in either case, his crime is murder.

Whether he was intoxicated or otherwise, the question will still be, What was his intent? Was it to kill or only to wound and bruise? On the solution of that question rests your verdict, for intoxication is no excuse for crime. For an act designedly perpetrated although done when drunk, the law holds the perpetrator to the same responsibility as if done when sober.

But while intoxication does not excuse crime, in other words does not excuse a party from the consequences of acts which he purposely perpetrates, although drunk at the time, nevertheless the jury may always take into consideration the fact of the intoxication of the accused just so far as it will aid them in determining with what intent the a’ct was done. We do not always attribute the same motives or intentions to the acts of a drunken, that we do to those of a sober man. We act upon this rule in every day life, and wre act upon it because our experience teaches its correctness.

A familiar example from such scenes as you have probably all of you witnessed will illustrate my meaning.

A person in a state of intoxication approaches us in a rude and boisterous or in an unduly familiar manner. Do we not often feel and indeed know that in all this there is an entire absence of the remotest idea of insulting or offending, that such conduct results from an impaired judgment or power of discrimination or sense of propriety caused by the state of inebriety in which we see him. Yet the same acts perpetrated by the same person in a state of sobriety would lead us to no other inference than that insult and outrage were intended. Intoxication partially impairs the judgment, as is exemplified when we see a man in his cups sometimes give blows which in their effects are far more severe than he intends or is conscious of. It arises from his inability to measure the strength he is putting forth with the same accuracyhe does when sober. All these things in every day life we consider when determining how far a party has intended the full effect produced by his acts.

In so far then as the fact of this man’s intoxication may aid you in solving the question whether, when he gave his wife these blows, he only intended to hurt, to bruise, or meant that they should kill, you are at liberty to consider it, but not otherwise. In looking in upon his mind, in analyzing its secret workings, motives and intent, during that fatal hour, this fact may throw some light upon what he meant should be the consequences of his brutality and violence. So far and with that view, you may consider it; but no further.

It is an old and salutary general rule of the common law that a man is held to intend that which in the ordinary course of things would be the natural results of his acts.

This rule is based upon sound reason and universal experience. Thus, if one raises his rifle and deliberately fires its contents into the bosom of another, or by a blow with an axe which might fell an ox buries it in the brain of another, the inference from the act is irresistible that death was meant, and so the law presumes.

The inferences of the mind which are equally presumptions of law are certain and conclusive in proportion as the acts from their nature and character are certain to result in death.

Thus the plunging of a poniard into the heart of another we do not doubt was meant to kill, but if aimed only at the arm or leg, though death may be the result, yet the mere fact of giving such a blow so long as that is the only criterion by which we judge, renders the intent more doubtful and the inference less strong.

So if one beat a full grown man with his fist and death ensues we would ordinarily feel far more doubt that death was intended, than if it had been produced by the use of a dangerous weapon.

So too regard may be had to the relative strength and powers of endurance of the parties as well as to the mode in which the violence is applied.

A powerful blow given by the fist alone (but not repeated) •upon the head of a full grown man would not ordinarily be regarded as intended to produce death; but what else could be inferred than an intent to kill, if the same blow were planted upon the temple of an infant child.

In many cases the inference that death is intended is as strong when the act is perpetrated. by a drunken. as when perpetrated by a sober man.

Thus, if by a deadly weapon, as by a rifle or bowie knife, a bullet or blow is sent directly or designedly to some vital spot, we should infer, that death was intended Avith almost equal certainty whether the perpetrator were drunk or sober.

So too when death is produced by poison, and we see in the mode of its administration stealthy calculation, we would infer that death was intended, whether he who administered the poison was in a state of sobriety or intoxication, since, in the very character of the act, Ave could read design.

But we also, know that intoxication produces, more effect upon the nervous system of some than of others. It clouds and .obscures the judgment of one more than it does another.

It produces greater extravagance of exertion, and action in some than it does in others, and sometimes consequences result, from such extravagant exertion and action, of which the party himself had no idea. All these things are to be considered by this jury when determining upon this question of intent.

Had this prisoner, in a state of entire sobriety, thus deliberately kicked and stamped upon his wife, and for that length of time Avhich thejnutilations of her person showed must have been the case, this jury might not have hesitated in believing that such brutality so long continued Avas the prompting of a murderous mind.

If however you find that he was in a state of intoxication which was affecting his whole nervous organization; that in consequence his judgment was impaired and to such an extent that he was in a measure incapable of knowing the degree of violence he Avas perpetrating or of properly and accurately calculating its effects to their full extent, all this the jury may take into consideratian so far as it enables them to judge whether, at the time of the violence, he meant only to beat or to kill.

'If he perfectly understood what he was doing and either designed her death, or if he well knew that suchwas likely to be the consequence of his acts and yet kept on neither consid* ering nor caring what the result of his violence might be, his crime is that of murder.

But if his judgment was in part obscured and his only intention was to severely beat his wife but with no thoughts that death was either certain or possible, then the jury may convict of a less offence. His crime would then be of that species which the statute defines as the “ killing of a human being without a design to effect death, in a heat of passion, but in a cruel and unusual manner.”

The prisoner has proved an excellent previous character. In many cases this is of great importance, in others none whatever. »

Where the intent to kill is clearly proved, if that is the only question, then character avails nothing in defence. Wanton killing is as much murder in the virtuous as in the vicious. But when the intent is not certain, when the minds of the jury feel that the scales are nearly poised, then the jury may do that which the prisoner humbly asks them to do here, throw the weight of his good character into the scales and thus secure a preponderance in his favor. In cases not free from doubt, the law allows it. The prisoner may, if you are not entirely satisfied by the testimony, point to his past life and urging the fact with all the force to which it is entitled say I have been a man of peace and quiet, not of turbulence and blood; I have been uniformly honest, faithful and industrious, kind and affectionate in my family, attentive to all their wants and reputable and respectable in society. He asks you to remember all this and then to say whether he has from “premeditated design” killed the wife of his youth and the mother of his children. If he has, it is murder and on your oaths you must so pronounce it. If you find otherwise but are still satisfied that she has died by his violence, you may find a verdict of manslaughter in the second degree.

The jury found a verdict of manslaughter in the second degree.