author: By the Court, Emott, J.

text:
    Supreme Court. Dutchess General Term,
    July, 1861.
    Mnott, Brown and Sorugham, Justices.
    William M. Wait v. Duncan C. Green.
    A Court of Special Sessions, held under the act of 1857, ch. 769, § 1 (3 B. S., 5th ed., 1000), has no jurisdiction of a charge of “ malicious mischief.”
    G., a justice of the peace, issued a warrant for the arrest of W., on a charge that he “ did willfully and maliciously unhook the traces of the harness on a span of horses, and then hitched to the wagon, then owned or in the possession of one L.” W. was arrested under the warrant, and tried before G. at a Court of Special Sessions, and convicted of the offense charged, which was recited in the warrant and in the commitment in the words above quoted, and was held in custody under the commitment until discharged on habeas corpas. Held, that G. acted without jurisdiction, and was liable to an action for false imprisonment for the arrest.

      Held, also, that on the trial of the action for false imprisonment, it was not competent for G. to prove that it was shown before the Court of Special Sessions that L. was in the wagon at the time the traces were -unhooked, for the purpose of establishing an assault on L., and thus showing jurisdiction in the court, there being no such offense charged in the warrant or commitment.
    The willful trespasses over which jurisdiction is given to courts of Special Sessions, by the act of 1857, ch. 769, § 1 (3 B. S., 5th ed., 1000), do not include cases of “ malicious mischief;" they refer only to such willful trespasses upon real estate as are made indictable and punishable as misdemeanors by statute.
    A malicious act, however wanton or dangerous, which does not result in any destruction or even injury to property, does not amount to the misdemeanor known as “ malicious mischief.”
    This was an action for false imprisonment. The defendant, who was a justice of the peace, justified under proceedings before him as a Court of Special Sessions.
    The action was tried at the Dutchess Circuit.
    It appeared on the trial that on the 22d day of March, 1860, the plaintiff was arrested on a warrant, of which the following is a copy:
    “ Town of Pawling, Dutchess county, ss: To any constable of the said county: Whereas Daniel Luddington hath" this day made complaint upon oath before me, Duncan 0. Green, one of the justices of the peace of the said town, that on the 30th day of April, one thousand eight hundred and fifty-nine,. at the town of Pawling, in the said county, one Wm. M. Wait did willfully and maliciously unhook the traces of the harness on a span of horses, and then hitched to the wagon them owned or in possession of said deponent, therefore the People of the State of New York command you forthwith to apprehend the said William M. Wait and bring him before me, to be dealt with as the law directs. Dated the 20th day of March, 1860.
    DUNCAN C. GREEN, Justice of the Peace."

    The warrant had been issued on the following affidavit:

      “State of New York, Dutchess county, ss: Daniel Luddington being duly sworn, doth depose and say, that on the 30th day of April, one thousand eight hundred and fifty-nine, at the town of Pawling, in said county, one Wm. Wait did willfully and maliciously unhook the traces of the harness on a span of horses, and then hitched to the wagon then owned or in possession of said deponent; wherefore this deponent prays that the said offender may be dealt with according to law.
    DANIEL LUDDINGTON. •
    Sworn before me this 20th ) day of March, 1860, $
    Duncan C. Green, Justice."

    The trial took place before the defendant, holding a Court of Special Sessions, on the 24th day of March, 1860, when the following commitment was issued:
    “ State of New York, Dutchess county, ss: To any constable, of the said county, greeting: At a Court of Special Sessions duly held by the undersigned, a justice of the peace of the said county, this 24th day of March, 1860, at his office in the town of Pawling, in said county, William M. Wait was. brought before the said court, charged on oath of Daniel Luddington with having on the 30th day of April, 1859, at the town of Pawling, in said county, willfully and .maliciously unhooked the traces of the harness on a span of horses, and then hitched to the wagon then owned or in the possession of said Luddington, which charge being stated in the warrant by me issued, was distinctly read to the defendant in open court, to which he pleaded not guilty. Whereupon such proceedings were had in said court that the defendant was convicted of the charge above specified, and the court having rendered judgment thereon that said William M. Wait should pay a fine of ($8.00) eight dollars, and the said Wait having refused to pay said fine, therefore the People of the State of New York command you to convey the said William M. Wait to the common jail of the said county, the keeper whereof is hereby required to keep him in safe custody in the said jail until the judgment so rendered be satisfied, or he be discharged by due course of law.
    Witness my hand, this 24th day of March, 1860.
    DUNCAN 0. GREEN, Justice of the Peace.” .

    Under this commitment, the plaintiff was arrested and brought to Poughkeepsie^ and kept in custody until discharged on the same day, on a writ of habeas corpus.

    It was proved that the plaintiff paid his counsel five dollars for his services in procuring his discharge. This evidence was objected to by the defendant, and its admission excepted to.
    A motion for a nonsuit was made and refused, and the defendant excepted.
    The defendant was then called as a witness, and testified ' that he was . a justice of the peace, residing in the town of Pawling, in the county of Dutchess. That Daniel Luddington made the complaint before him on which the warrant was issued.
    That it was proven before the defendant at.the time, before the warrant was issued, that the plaintiff unhooked the traces of the harness on a pair of horses belonging to Luddington, in the night time, when said Luddington was in a wagon, to which the horses were hitched, driving the same at the depot. That Wait admitted on the trial that he did unhitch the traces, as claimed by Luddington. The evidence as to what was proved on the issuing of the warrant, and on the trial, was objected to by the plaintiff’s counsel, and received subject to exception.

      It appeared that on the trial before the Court of. Special Sessions, Wait presented a paper containing written objections to the proceeding, in which, he asked to be discharged on the grounds:
    1st. That the court had no jurisdiction of the case, or of the person of Wait, as there was no offense alleged in the warrant, and it did not show that any crime had been committed.
    2d. That to constitute malicious mischief or injury, it must be done out of malice to the person, and to his damage. That unless there was actual injury committed, there was no crime.
    3d. That a Court of Special Sessions had no jurisdiction to try any offenses, except those enumerated in Session Laws of 1857, 2d vol., p. 705.
    The court, afterwards, on motion, ordered all the testimony . of Green, as to what was proved before him at the time of issuing the warrant, and on the trial before the Court of Special Sessions, to be struck out of the case, to which the defendant’s counsel excepted.
    The court charged the jury that there was no authority to make the arrest, that the fajse imprisonment was established, and the only question for the jury was, the amount of damages which the plaintiff should recover.
    The jury rendered a verdict for the plaintiff for fifty-two dollars and fifty cents, and the case was brought before the general term, on an application for a new trial.

      J. F. Barnard, for the defendant.
    I. An attempt, with force or violence, to do a corporeal injury, is an assault, and may consist of any act tending to such injury. There need not be a direct attempt at violence. (Rays v. The People, 1 Rill R., 351.)
    Striking a horse on which' plaintiff’s wife was. riding, and starting a squib which was thrown from hand to hand until it struck a person, held in both cases assault and battery. (2 Petersdorf Abr., tit. Assault and Battery.)

      II. A court holding jurisdiction of all criminal cases is protected if it judges that criminal which is not (3 Cowen & Hill's Notes, vol. 2, note 993, and cases there cited.)

    III. Malicious mischief is a misdemeanor, punishable at common law, and is defined to be an act injurious to private ■persons, committed through a spirit of wanton cruelty or revenge, which tend to create resentments. (4 Black. R., 243; Barb. Cr. Law, 208.)
    IV. Justices of the peace can issue criminal warrants in all criminal cases. (2 R. S., 706, sec. 1.)
    After arrest he must hear charge read and demand examination in misdemeanors, and if, after prosecutor and witnesses are examined, he be held and offer no bail, he shall be committed to jail. (2 R. S., 709, sec. 26.)
    The officer granting writs of habeas corpus to disregard irregular commitments, and, if no bail be offered, to remand. (2 R. S, 568, sec. 43;)
    V. If the offense charged is an assault, then the justice had jurisdiction to try.
    If the justice erroneously held it to be an assault, it cannot be reviewed collaterally.
    If the offense was malicious mischief, the justice had jurisdiction of the offense, and the arrest was legal, and the defendant in warrant (plaintiff) could not be discharged, except by offer of bail or discharge by the justice. The discharge of plaintiff is void, for want of jurisdiction in him, and the plaintiff is yet in custody under the justice’s commitment.
    VI. The justice w;ho heard the action erred in admitting evidence of money paid by plaintiff upon habeas carpus proceedings, it not having been specially stated in complaint. (Strong v, Whitehead, 12 Wend. R., 64.)

      H. A. Nelson, for the plaintiff.
    I. Neither the complaint, warrant or commitment sets forth any criminal offense. (2 R. S, 711, § 1; Laws of 1857, vol. 2, p. 705.)
    The judge was right in striking out the evidence. All the defendant claimed in his answer was, that a complaint was made to the defendant, as a magistrate, that a criminal offense had been committed, “to wit, a malicious trespass,” and this was the only issue to be tried. And the defendant, on the trial, did not ask to have the answer amended.
    The charge.did not come within any of the provisions of the statute making certain trespasses misdemeanors. (2 R. S., 693.)
    II. The cause of action was fully established, and there was no question of fact to be passed upon by the jury, except as to the amount of plaintiff’s damages. (3 Phil. Ev., 515, 4th Am. ed.; 1 Bald. R., 571, 600; Percival v. Jones, 2 Johns. Cas., 49; Reynolds v. Orvis, 7 Cow. R., 269; Taylor v. Trask, Id., 250, 251; Perry v. Mitchell, 5 Denio R., 537; Curry v. Pringle, 11 Johns. R., 444; Bigelow v. Stearns, 19 Id., 39; Vredenburgh V. Hendricks, 17 Barb. R., 179.
    III. Plaintiff was.entitled to recover the amount he necessarily paid in regaining _ his liberty. Such expenses were sufficiently averred iii the complaint. Defendant not having asked that plaintiff make the allegation more definite and certain, could not object on the trial. (12 Wend. R., 64; Code, % 160.)
   By the Court, Emott, J.

This was an action, for false imprisonment, tried before me at the Dutchess Circuit. The plaintiff, was arrested on a warrant issued by the defendant, who was a justice of the peace, and, although objecting to the jurisdiction, was tried, convicted and sentenced by a Court of Special Sessions, held by the defendant, to a fine, and to be imprisoned until it was paid. He was released upon habeas corpus, and subsequently brought this action.

The warrant of arrest and the commitment recited the offense tó be, that the prisoner, the present plaintiff, “ did willfully and maliciously unhook the traces of the harness on a span of horses and then hitched to the wagon then owned or in the possession of” one Luddington.

At the trial of this action, the imprisonment was defended on the ground that, by the evidence before the magistrate, Luddington was shown to have been in the wagon at the time, and it was contended that the plaintiff had therefore committed an assault, an offense of which a Court of Special Sessions, pf course, has jurisdiction. But neither the warrant nor the record of conviction or commitment, specify any such offense as an assault, nor do they state sufficient'facts to constitute an assault. The offense for which the plaintiff was tried and convicted was maliciously unhooking the traces from horses, when harnessed to the complainant’s wagon. If Luddington, the owner, was in the wagon at the time, the act of the plaintiff was an assault upon him; or if some one else was there, then upon such other person. But no such person was specified, and no such offense was charged in the warrant or .commitment; and the plaintiff may have committed the act charged in the warrant and commitment, and still have committed no assault. He could not, however, be arrested, tried and convicted for an act which, if it were an offense, was one of which the court had no jurisdiction, and his imprisonment afterward justified by showing that the evidence at the trial would have convicted him of another offense which was triable in a Court of Special Sessions.

Assuming that a Court of Special Sessions has no jurisdiction to try a man for malicious mischief, or for the act charged in these proceedings, if it were a criminal offense, we are all clearly of opinion that this was a case of false imprisonment ; and that evidence of what took place on the trial in the Sessions, tending to make out an assault, was irrelevant, and that it was properly struck out of the case, and excluded from the consideration of the jury. We do not think it necessary to discuss the proposition which was advanced, that inasmuch as the defendant could have arrested the plaintiff and held him to bail for committing an act of malicious mischief, he can therefore justify proceeding to a trial which resulted.in a conviction and sentence. We are also of opinion that the evidence which was objected to upon the question of damages, was properly received. The utmost which this objection in volves, would be an amendment of the complaint.

These embrace all the questions raised at the trial or on the argument One of the members of the court, however, has entertained doubts whether Courts of Special Sessions are not authorized to try cases of malicious mischief under the existing statute (2 R. S., 711, § 1; 2 R. S., 5th ed., 1001), and I have, therefore, considered that question. The fifth subdivision of this section of the statute gives to the Special Sessions jurisdiction to try “ charges for committing any willful trespass, or for severing any produce or article from the freehold, not amounting to grand larceny.” I am unable, after careful consideration, to agree to a construction,, of this statute which would bring the act charged in the proceedings against the plaintiff within its provisions, for various reasons which seem to me sufficient.

The offense of malicious mischief has been recognized in this State as a misdemeanor at common law, although the multiplicity of the statutes to punish such offenses in England has led to the impression that the offense is created by statute^ The language used by Blackstone (4 Black. Com., 243), in the passage cited by the defendant’s counsel, to prove that malicious mischief is an offense at common law, would perhaps lead to that conclusion. But the line which separates a mere trespass from a criminal act, has been by no means clearly defined. In The People v. Smith (5 Cow. R., 258), an indictment for maliciously killing a cow was sustained. In Loomis v. Edgerton (19 Wend. R., 419), maliciously breaking to pieces a sleigh was held to be a criminal offense. On the other hand, in Kilpatrick v. The People (5 Denio R., 277), maliciously breaking two windows in the house of another person, was held not to be a criminal offense. In the latter case stress was laid upon the fact that the act complained of was not committed secretly, nor in the night time, and was not an act of cruelty to a domestic animal. In England, as has been already intimated, the limits of this class of offenses, and their punishment, are defined by numerous statutes, so that but few, if any, cases can be found which were decided by the common law. The statutes of Great Britain make many trespasses criminal offenses, which, without them, would be only wrongful acts, to be redressed by damages in a civil action. So there are various statutes with us making certain trespasses punishable criminally. But it is obvious that every trespass is not a criminal offense, although every trespass is in the eye of the law “ willful,” and even “ malicious.” Judge Beardsley, in Kilpatrick v. The People, says, very justly and pointedly, •that malice is an ingredient in every intentional wrong, but that even a malicious intent to do an act of injury, without hope or expectation of profit to the wrongdoer, will not make the act indictable. It is quite clear, I think, that there is no such criminal offense at common law as a willful trespass.” Every wrongful act to the person, or personal or real property of another, is a willful trespass, and this, as a generic term, will include all crimes to. the person, and some offenses against property. But the term" defines a class of wrongful acts merely, and not of crimes. It is not the same as “ malicious mischief,” which describes acts criminal at common law. On the ■contrary, the two classes of wrongs are plainly and broadly distinguishable. In the clause of the statute now in question, the phrase, willful trespass, does not, therefore, describe any crime, except as such an act is made such by statute. There , are certain willful trespasses which are indictable and punishable, and the present statute refers to these only.

The context and connection of the words in the statute are also sufficient, to my mind, to show that the trespasses referred to are acts of trespass upon lands. The statute confers jurisdiction upon Courts of Special Sessions to try various specified acts of wrong to persons and property, which are crimes by common law. and by statute, and which would be included within willful trespasses, if that term should.be construed in its ordinary or full legal sense. In the clause in question, the word trespass is directly connected with the freehold, in such a way as to show that the meaning of the whole clause is, any willful trespass upon the freehold, or any severance of property therefrom, which is not a larceny. This is to me the obvious, and, I believe, has been the universal construction of this part of the statute.

The statute was intended to refer to certain trespasses which are made misdemeanors by the statute of misdemeanors. (2 R. S., 693, § 15.) The language of the latter statute is identical with that before us, describing the offenses referred to as willful trespasses, and all the trespasses which the statute of misdemeanors makes criminal, are trespasses upon real estate. It is these willful trespasses, made criminal by positive statute., which are triable in Courts of Special Sessions, and not a totally different class of acts which might be described as acts of malicious mischief, and which are only criminal when they come within the cases or the definition of acts of malicious mischief, and are thus more than merely willful trespasses.

If, therefore, the act described in this commitment, were an act of malicious mischief at common law,, it would not be included within the provisions of this statute, or the jurisdiction which it confers upon Courts of Special Sessions.

But I must add that it is very clear to me that the act specified by the proceedings was not an act punishable criminally as a malicious mischief. Even if it had been committed while •the owner of the horses, or any other person was in the wagon, it could hardly have been construed a malicious mischief, because no harm appears to have ensued. It is not alleged that any injury was done to the horses or the wagon, the whole charge being that the harness of the horses was maliciously unhooked. The essence of the crime of malicious mischief, is the injury to property, and this must be marked by some peculiar features to convert it from a trespass into a crime. An act which, however wanton and dangerous, is not, and does not result in the destruction, or even the injury of property, is not an act of malicious mischief or a misdemeanor, under this head of the law.

I am of opinion that the warrant of arrest, and the commitment, recited no offense whatever, and that if any were' committed, taking all the facts proved, or alleged to have been proved at the trial before the magistrate, it was a constructive assault upon the person in the wagon at the time, which was not the offense for which the plaintiff was tried or convicted, and cannot, therefore, justify his imprisonment.

The plaintiff is entitled to judgment upon this verdict, in my opinion, beyond any question.

Judgment for plaintiff.


source: Caselaw Access Project

author: By the Court, Marvin, J.

license: Public Domain

text:
    Supreme Court. Erie General Term,
    September, 1861.

      Marvin, Davis and Grover, Justices.
    The People v. The New York Central Railroad Co.
    In an indictment against a railroad company, for an unlawful and willful neglect to erect and maintain fences on the sides of the road, it is necessary to aver that it was the duty of the corporation to erect and maintain such fences.
    ' This case came before this court on a certiorari to the Court of Sessions of the county of Genesee. On the trial in that court, the defendant objected that the indictment, which was for an unlawful and willful neglect to erect and maintain fences on the sides of the road, contained no averment that it was the duty of the defendant to erect and maintain such fences. The objection was overruled, and the defendant convicted, and the case was afterwards brought up for review by a writ of certiorari.

      M. H. Peck, for the plaintiff in error.

      Geo. Bowen, for the defendant in error.
   By the Court, Marvin, J.

The indictment against the plaintiff in error, was for an unlawful and willful neglect to erect and maintain fences on the sides of its railroad. The indictment is sufficiently formal, and contains all the necessary averments, unless it is necessary to aver that it was the duty of the corporation to erect and maintain the fences.

As the statute requires railroad corporations to erect and maintain fences, the counsel for the people supposes that no averment of a duty is necessary in an indictment for neglecting to erect and maintain such fences, and the Court of Sessions so held by overruling the objection of the counsel for the corporation, and holding the indictment sufficient. In my opinion the court erred. I find, on consulting the precedents of indictments for neglecting to repair highways,, bridges, &c., that they all contain an averment that the defendant “ ought to have repaired and amended, and still of right ought to repair and amend when and as often as it should or shall and may be necessary.” (See the forms, 3 Chitty Cr. L., 578, et seq.; Archbold Cr. Pl., 643.) When the indictment is against a parish, Archbold says, it is not necessary to aver the liability of the. parish to repair, for the law presumes that until the contrary'is shown. (Archbold Cr. Pl., 645.) The parish may, by a special plea, show that others ought to repair and amend the highway. (Id., 646.) When the indictment is against an individual, or a township or class of persons not of common right bound to rppair, the mode in which the defendant became liable must be stated. (3 Chitty Cr. L., 571; 5 Burr., 2700; 2 Saund., 158, n. q; 2 T. R., 513.)

In the cases referred to, the common law imposed the duty, and the presumption was that the parish was bound to repair, and in all other cases the mode in which the defendant became liable must be stated. It was argued in this case that the duty was imposed by statute, ánd that no averment of duty was therefore necessary. Perhaps it was not necessary that the indictment should contain a formal averment of duty or obligation to erect and maintain the fences, but it should, at least, have alleged the allegations in the form of the statute by a recital of it, or some reference to it in such a manner as to show the obligation or duty of the defendant.

In Kane v. The People (3 Wend. R., 363), the indictment set forth the substance of the act of incorporation, and the duties and liabilities of the president and directors were described. The neglect to repair the road, as they were and still are required to do, is alleged. In a second count, the duty to keep the road in good order and repair is alleged. (S. C., 8 Wend. R, 205, 206.) The statute, in that case, made it the duty of the president and directors of the corporation to maintain and keep the road in good repair, and a neglect of that duty was made a misdemeanor in the president and individual directors. Kane and two others, directors, were indicted under the statute incorporating the company. It was objected in the Court for the Correction of Errors, that the indictment was not sufficiently specific. To this objection the Chancellor says, the indictment recites the substance of the statute, which shows that it was the duty of the directors to keep the road in repair, and he might have added that it also averred the duty. • In the present indictment, there is no reference to the statutef except that it concludes, “contrary to the form of the statute in such case made and provided,” without having recited any portion of the statute, or averring any obligation or duty on the part of the defendant to erect or maintain fences. Tn my opinion, the indictment is defective, and for this reason the judgment should be reversed.

The principal question discussed upon the argument was, whether' the indictment would lie against the defendant for neglecting to erect and maintain fences. Having come to the conclusion that the indictment is defective, I abstain from expressing any opinion upon the question, whether an omission to erect and maintain fences is an indictable offense.

Proceedings reversed, and indictment quashed.


author: By the Court, Clerke, P. J.

text:
    Supreme Court. New York,
    November Term, 1861.

      Clerke. Sutherland and Ingraham, Justices.
    Frederick Freund, plaintiff in error, v. The People, defendants in error.
    Under an indictment for arson in the first degree, a prisoner may he convicted of arson in the third degree, when he is proved to have set on fire a house, as well as the goods in it, for the purpose of prejudicing the insurer.
    On the trial of such a charge, evidence that the prisoner had procured an insurance is competent for the purpose of showing motive. *
    Where the certificate of an insurance company had been introduced on the trial, for the purpose of showing that the prisoner had effected an insurance on the property, and the only objection made to it was that evidence of the fact sought to be proved was not admissible under an indictment for arson in the first degree, Held,' that no error had been committed by receiving the paper in evidence.
    And where the execution of such a certificate had been duly proved, it was held not erroneous to permit also to be read in evidence a policy of insurance annexed to the certificate, and referred to in it, without proof of the execution of the policy, it appearing that no injury could possibly have resulted to the prisoner from its being put in evidence, the motive for the firing having been already abundantly proved.
    This was a writ of error to the Court of General Sessions of the city and county of New York, in which court the prisoner had been convicted of arson in the third degree, under an indictment charging arson in the first degree.
    The questions raised on the trial sufficiently appear in the opinion of the court.

      H. Morrison, for the plaintiff in error.

      N. J. Waterbury (District Attorney), for the defendants in error.
   By the Court, Clerke, P. J.

The decision of the Court of Appeals in Dedieu v. The People (22 N. Y. R., 178), has no application to the .case before us. In that case it was decided that, under an indictment charging arson only in the first' degree, the prisoner cannot be convicted of the third degree of arson, when the proof shows that he merely burned goods with intent to defraud the insurer. In this case, the proof shows that the house itself was set on fire, not merely the goods; and the only resemblance between the two cases is that the object of the perpetrator of the act in each was to-defraud an insurer.

II. Evidence that the prisoner had insured was properly allowed, as showing the intent, which can never, in such cases, be as satisfactorily inferred from the mere act itself as from • other circumstances additional to the act.

HI. The certificate of the Rutger’s Insurance Company was proved sufficiently by the secretary of the company; the counsel for the prisoner made no specific objection to it, only that it was inadmissible under the indictment for arson in the first degree. He did not object at the trial, as he did in the argument before us, that there was an absence of any proof that the certificate had ever been in the possession of the prisoner, or its existence known to him. With regard to the policy of the Wall street Fire Insurance Company, which was annexed to the certificate, the objection, taken was, that-its execution had not been specifically proved-. This would seem to be the most plausible objection in relation to the admissibility of these papers; but we cannot tell from what appears in the bill'of exceptions, whether it was a distinct and separate instrument, requiring additional proof of its execution, or whether it was merely referred to in the certificate, and constituting a part of it. At all events, the latter was the contract of insurance, upon which it may be well-supposed that the assured relied; and proof of that alone-was sufficient .to justify the jury in inferring the criminal, intent. They, no doubt, would have inferred it, whether the original policy had or had not been introduced. The prisoner could not, therefore, have been possibly injured, even if proof of its execution, as an independent document, was necessary. But as it was annexed to the .certificate, and was referred to by that instrument, the execution of which was sufficiently proved, further proof of the execution of the policy does not appear to have been necessary.

' The other exceptions are all clearly untenable.

The judgment should be affirmed.


author: By the Court, Scrugham, J.

text:
    Supreme Court. Dutchess General Term,
    May, 1861.

      Knott, Brown and Scrugham, Justices.
    George W. Lambertson, plaintiff in error, v. The People, defendants in error.
    Eorm of an indictment for the crime against nature.
    The allegation that the defendant 11 had a venereal affair ” is not indispensable in an indictment for the crime against nature. The omission may be supplied by an allegation of “carnal knowledge." or some other equivalent allegation.
    In empanneling a jury for the trial of a felony, at the Oyer and Terminer in the county'of Kings, it is not erroneous for the court, after failing to get a jury ■ from the thirty-six jurors summoned for the first six days of the court, under the special act of April IT, 1858, applicable to that county, to refuse to summon talesmen, and to proceed to complete the jury from the thirty-six jurors summoned for the next six days of the court.
    An indictment for the crime against nature was found in the Court of Sessions for Kings county, against George W. Lambertson, in the following words:

      Kings County, ss:

    The jurors of the People of the State of New York, in and for the body of the county of Kings, upon their oath present, that George W. Lambertson, now or late of the city of Brooklyn, in the county of Kings aforesaid, on the fifteenth day of January, in the year of our Lord one thousand eight hundred and sixty, at the city and in the county of Kings aforesaid, in and upon the body of Peter Cohen, in the peace of God and of the said people, then and there being with force and arms, did feloniously make an assault, and him, the said Peter Cohen, then and there feloniously, wickedly, diabolically, and against the order of nature, carnally knew, and then and there feloniously, wickedly and diabolically, and against the order of nature, with the said Peter Cohen, did commit and perpetrate the detestable and abominable crime of buggery, against the statute in such case made and provided, to the evil example of all others in like case offending, and against the peace of the People of the State of New York, and their dignity.
    JOHN WINSLOW, District Attorney.

      The defendant pleaded not guilty, and the issue came on for trial in that court, on the 15th of February, 1860.'
    When the district attorney moved on the trial, the prisoner, by his counsel, asked that the panel of jurors be called, and it was done by the clerk, under the direction of the court. Only thirty-four jurors answered to their names, and the’ counsel for the prisoner then requested that the names of the full panel be put into the jury box. The court denied the application, and the prisoner’s counsel excepted.
    The clerk then proceeded to call the jury. After the panel of jurors was exhausted, no jury having been obtained, the counsel for the prisoner insisted that, as a matter of law, the residue of the said jury should be summoned, as talesmen, by the sheriff of the county. But the court decided that the first class of jurors having been exhausted, the names of the second class of jurors who were present, and had been summoned by the commissioner of jurors as required by the statute, should be put into the jury box, to which decision the prisoner’s counsel excepted.
    The counsel for the prisoner then requested that the panel of jurors for that term of the court, be produced and read, which was done, when the counsel for the prisoner moved to set aside the panel by way of challenge, upon the following grounds:
    1. That it did not appear by the proof of service that the jurors were notified by the commissioner, on at least three days’ previous notice.
    2. That the numbers opposite the names of the jurors, were not in conformity to the statute.
    The court denied the motion, to which decision the prisoner’s counsel excepted.
    The court then directed the clerk to deposit the'names of the second class of jurors in the jury box, and the clerk drew enough additional jurors to complete the jury.
    The prisoner’s counsel then moved the court to confine the testimony on the part of the prosecution, to a simple assault and battery, on the ground that the indictment was defective iii not describing the offense with more particularity. The motion was denied, and the prisoner’s counsel excepted.
    After hearing the evidence, the jury found a verdict of ' guilty;
    The prisoner’s counsel then moved in arrest of judgment on the grounds that the indictment was defective, because it did not state, with particularity, the place where the offense was committed; because it joined a misdemeanor and a felony in one count; because it did not describe the offense with precision, and because it did not state that the prisoner had a “ venereal affair ” with Peter Cohen, and because the crime was not designated nor described on the face of the indictment in -the words of the statute.
    The motion in arrest of judgment was denied, and the court sentenced the prisoner to confinement in the State prison for nine years and six months.
    A writ of error was then sued out in behalf of the prisoner, and the record was removed into this court.

      N. F. Waring, for the prisoner.
    I. The panel of jurors having been exhausted, the defendant was entitled to have talesmen summoned (3 R. S., 5th ed., 718, § 120, 121), and the act organizing the commissioners of jurors in Kings county, does not repeal this section of the act. (Sess. L. 1858, ch. 342, §42, Sc.)

    The court erred in not setting aside the second panel, for the following reasons:
    1. By section eighteen of the act of 1858, the commissioner and the judges must sign a certificate at the end of the list. In this case none was signed.
    2. And the court had no right to put into the box the second class of jurors; the jurors’ names being all drawn out of the box, the defendant was entitled to have talesmen summoned.
    II. The court erred in not' confining the testimony of the People to a simple assault and battery, for the reasons referred to on the motion in arrest of judgment.

      III. The court erred in not arresting the judgment.
    The form of the indictment is laid down in 2 Chitty's Cr. L., 48, and the words, “ had a venereal affair,” are made part of the indictment, and this form was settled, says Chitty, on great advice. (East P. Crown, 480, note A.) When on a youth under age, it must be so stated in the indictment (see form referred to), and when upon a female, it must be so stated.
    The indictment has the words, “ contra natures ordinem rem iiabuit veneream et carnaliter cognovit,” and Justice Fosteb says this alone was never thought sufficient. (2 Foster, 424.)

      John Winslow (District Attorney), for the respondent.
    I. The allegations of the indictment are sufficient. The expression “ venereal affair,” adds nothing to the force of the indictment.
    The words “carnal knowledge,” “carnaliter cognovit,” are essential, and include the meaning of “venereal affair,” and more. There could be no carnal knowledge which did not include “ a venereal affair; ” but the latter does not necessarily include the former.
    It is said in Foster (Crown Law, 4231,4 Appendix), that the word “ buggery ” must be used to describe the offense. The indictment conforms to this rule.
    H. The omission of the expression, “ venereal affair," could not, in any sense, tend to the prejudice of the defendant. He could not be prejudiced, for the indictment informed him as to the offense" for which he would be tried. (See statute of Jeofails, R. S., part 4, ch. 2, title 4, § 52; 3 R. S, 5th ed., 1019, § 54.).
    III. The proceedings of the court in organizing the jury, were correct. It was the duty of the court to draw from the second class, upon the exhaustion of the first, rather than to resort to talesmen.
    It is the spirit and purpose of the Kings County Jury Act (Session Laws, 1858), to discourage and prevent a resort to talesmen, when regularly drawn jurors are in court ready for service, as they were in this case.

      IY. The objection that the jurors had not received three days’ notice, could only be taken by a juror. The provision is for the benefit and protection of the jury.. If a. juror appears for service in court upon a shorter notice, he may serve.
   By the Court, Scrugham, J.

There are certain technical words essential to the statement of some offenses in an indictment, and the omission of which would be fatal before or after verdict; as in murder, the word murdered; in rape, the word ravished; and in larceny, feloniously took and carried away.” These are spoken of by Blackstone (4 Bl. Com., 307), as “ particular words of art which are so appropriated by the law to express the precise idea which it entertains of the offense, that no other words, however synonymous they may seem, are capable of doing it.”

The words usual in indictments for the offense of which the defendant was convicted, and which were omitted in this case, are not words of this character, and the indictment contains all of the words of art required.

Neither is the use of the omitted words essential to make

the statement of the offense certain to a certain intent in general, which is all that is required in such pleadings (Co. Lit., 303, a), for all that the pleader should have stated in charging the offense, is expressly alleged or by necessary implication included in what is alleged in the indictment in question, and therefore nothing can be presumed against him by reason of the omission of these words.

The trial of the defendant took place at the term of the Court of Sessions of Kings county, appointed to be held on the first Tuesday of February, 1860, under the act in relation to jurors, and to the appointment and the duties of a commissioner of jurors, in the county of Kings, passed April 17, 1858. One hundred and forty-four jurors had been drawn to serve at that term of the court, and pursuant to •section twenty-three of that act the thirty-six jurors first drawn had been notified to be present on the first six days of said term, and the thirty-six jurors next drawn had been notified to be present on the second six days of said term.

In empanneling a jury for the trial of this indictment, the names of all of the jurors in attendance, who had been notified to attend for the first six days of the term, were exhausted before a full jury could be obtained, and the court directed that the panel should be completed by putting in the box the names of the jurors who had been- notified to attend for the second week of the term, and who were present.

It is now urged that this was error, and that the court should have directed the sheriff to summon talesmen.

Trials of fact by jury, in every court of common law jurisdiction, must be had by jurors drawn, summoned and returned in the manner directed by statute (in the county of Kings in the manner specially directed in the act referred to), provided a sufficient number of such jurors can be obtained.

It is the object of the law to secure, in all cases, persons to serve as jurors who possess all the qualifications of condition and character specified in the statutes regulating the manner in which jurors are to be selected and returned, and of these qualifications in respect to the persons returned, the town or ward officers who are charged with the duty, and to whom such persons are likely to be personally known, can more deliberately, and doubtless more correctly judge, than can the sheriff, in respect to talesmen, whom he must summon in haste from bystanders or others, with whom in many instances he is not acquainted, and of whose qualifications he will be too apt to judge by personal appearances, and from only such information as he may in his haste find it convenient to obtain.

From these considerations, and because the practice admits of great abuse, and renders it comparatively easy for interested and unscrupulous persons to get upon juries, the necessity for summoning talesmen is always to be avoided if possible.

This necessity only arises when a sufficient number of jurors duly drawn and summoned do not appear and cannot be obtained, and it certainly did not exist in this case,.for the jurors who "were notified to appear for the second six days were jurors duly drawn, and summoned to attend that term of the court, and they did appear and were obtained.

It is true that, under their notice, they were not obliged to appear until the second week of the term, but this division of the jurors is intended only for the convenience of themselves and of the court. They are jurors, not of the week but of the term; and this is shown, not only by their being drawn as such, but also by the provision in § 28 of the act for allowing their days of service to be changed.

. The judgment should be affirmed.


author: Campbell, J. Parker, J.

text:
    Supreme Court. Broome General Term,
    May, 1862.
    Palcom, Campbell, Parker and Mason, Justices.
    William W. Goodell, plaintiff in error, v. The People, defendants in error.
    The statutory provision (2 R. S., 288), which declares it a misdemeanor for an attorney, counselor or solicitor, to buy any bond, bill, promissory note, bill of exchange, &c., with the intent, and for the purpose of bringing any suit thereon, is not applicable to a demand purchased with the intent of prosecuting it in a justice's court.
    This case -came up on a writ of error to the Court of Sessions of Madison county. The plaintiff in error had been indicted in that court for a violation of the provisions of the statute (2 i?../S'.,'288), which forbids the buying of demands for the purpose of prosecution. He pleaded that he received the note, &c., without any intent to prosecute it in a court of record. The public prosecutor demurred, because it did not deny an intent of prosecuting it in a justice’s court. Judgment on-the demurrer was given in favor of the People, and Goodellsized out a writ of error. s

      M. J. Shoecraft, for the plaintiff in error.

      A. N. Sheldon (District Attorney), for the People.
   Campbell, J.

The simple question is this: is it an indictable offense for an attorney of.this court to buy a promissory note, with the purpose or intent to prosecute the same in a , justice’s court ?

The present language of the statute is this (p. 478, § 58, 3 R. S., 5th ed.): “No attorney, counselor or solicitor, shall, directly or indirectly, buy, or be in any manner interested in buying any bond, bill, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for iho purpose of bringing any suit thereon.”

' The statute of 1818, which was entitled “An apt to prevent abuses in the practice of the law, and to regulate costs in certain cases,” decided “ that no attorney or counselor-at-law of any court of record in this- State, shall, directly or indirectly, buy, &c., any promissory note.” Under this statute, it was said in People v. Walbridge (6 Cowen R., 516), “ the act of buying constitutes the offense.” That the law of 1818, and previous laws on this subject, were intended to reach a class of men who make a practice, either directly or indirectly, of buying small notes of fifty dollars and upwards, and then prosecuting them in courts of record, in the old common pleas, or in the Supreme Court, and make the defendants pay large bills of costs, even when the suit was undefended, there can be, I think, no doubt. Hence, it was entitled an act to prevent "abuses, and to regulate costs. The law was aimed at attorneys in courts of record, who were the parties receiving the costs, and who thus often oppressed debtors by. unexpected and unnecessary prosecutions. But the statute of 1818 did not reach another court and another class of officers who were also charged with oppression, namely : the courts of justices of the peace and the constables who serve process issuing out of such courts. Accordingly, in 1820, another statute was passed, and closely following that of 1818, found now in 3 B. A, 454,5th ed., § 161. That statute declares that “ no justice of the peace or constable shall, directly or indirectly, buy, or be interested in buying any bond, note, or other demand or cause of action, for the purpose of commencing any suit thereon before a justice, &c.also, as in case of attorneys and counselors, making it a misdemeanor. These two statutes covered the whole ground of abuse and costs in what may be called common law courts. It placed the restraining hand on the attor* • neys and counselors who were entitled to costs in courts of record, and upon justices and the constables who were entitled to costs in courts of justices of the peace, and solicitors in chancery were afterward added. The statute, in relation to justices’ courts, was passed in 1820, after the statute of 1818,' relating to attorneys and counselors, and adopts the language of the act of 1818, and meets and provides for- correction of abuses- that may have crept into justices’ courts. Reading the two acts together, and looking at the title of the act of 1818, there can be no doubt, I think, that that act and the subsequent alterations and provisions, were intended to prevent abuses practiced by attorneys in the courts of record. The attorney may not buy a note, with the intent and for the purpose of bringing any suit thereon. Of bringing a suit where ? Why, clearly in some court of record, where he recovers costs. So the justice and the constable may not buy for the purpose of prosecuting in a court where they are entitled to fees and costs. The act of the defendant charged as an offense, may be within the letter of the law; but, in my judgment, it is not within its spirit. It may be noted, too, that there is no such officer as attorney or counselor-at-law known in the courts of - justices of the peace; the statutes nowhere provide for such. I think the defendant’s plea was good, and the deinurrershould be overruled and the judgment of the Court of Sessions reversed.

Parker, J.

In this case, the judgment of the Madison County Court of Sessions, upon a demurrer interposed by the People to the special plea of the defendant, is brought here by writ of error for review; and the question presented is, whether the statute which forbids the buying of promissory notes, &c., by attorneys, counselors and solicitors, with intent to bring suits thereon, was intended to apply to and include suits in justices’ courts.

The defendant, being an attorney and counselor of this court, was indicted for a violation of that statute. He pleaded, in substance, that he received the note in payment for property sold, without any intent to bring any suit thereon in any court of record. The district attorney, on behalf of the People, demurred to the plea, because it does not deny that the note was received with intent to prosecute the same in a court of a justice of the peace. The indictment alleged that the defendant bought the note with the intent and for the purpose of bringing a suit thereon,” using the language of the statute.

If that language in the statute was intended to include suits in justices’ courts, the plea is not broad enough, and the demurrer is well taken; but if suits in justices’ courts are not within the prohibition, the plea is good in substance, and the demurrer should have been overruled, and judgment thereon given for the defendant.

I am of the opinion that the statute in question does not reach this case; that the prohibition extends only to the buying of notes, &c., “ with the intent and for the purpose of bringing suits thereon ” in courts of record.

In the first place, the article of the Revised Statutes, in which the prohibition is found, is entitled, “ Of the officers of courts of record, their duties, privileges and liabilities ” (2 B. S., 288, Is# ed.); and then the whole scope of the article is in conformity with the title, and contemplates merely the duties, privileges and liabilities of officers of courts of record with reference to proceedings in such courts. This, I think, will be evident to any one reading the several provisions of the article. It begins with declaring that “ all attorneys, solicitors and counselors shall be regulated by the rules and orders of the courts in which they shall respectively practice.” It goes on to provide for the admission of attorneys, &c.; proceedings on the death of an attorney or solicitor; prescribes penalties for deceit, willful delay, extortion, and lending his name, by an attorney or solicitor, in the prosecution of suits. So far, there will be no dispute but that the acts prescribed and inhibited, and the suits mentioned, are acts and suits in courts of record. Then comes the section containing the prohibition in question ; it is as follows: “ § 71. No attorney, counselor or solicitor shall, directly or indirectly, buy, or be in any manner interested in buying, any bond, bill, promissory note, bill of exchange, book debt, or other thing in action, with intent, or for the purpose, of bringing any suit thereon.”

By the seventy-third section the doing of the act above prohibited is declared a misdemeanor, and the penalty, fine and imprisonment, and removal from office in the several courts in which the guilty-party is licensed. Subsequent sections provide for setting up as a defense “ in any suit ” brought on a note, &c., bought in violation of this statute, the fact that it was so bought, and for compelling the plaintiff to testify touching that fact. Section seventy-seven authorizes the defendant to apply to a judge of the court in which the suit is pending, or to some officer authorized to exercise the powers of a justice of the - Supreme Court at Chambers, for an order that the plaintiff attend the trial of the cause to be examined. Section seventy-nine provides that such order shall be served on the plaintiff or .his attorney at the time of serving a plea tendering an issue in the cause. Section eighty provides that if the plaintiff fails to attend the trial, he shall be nonsuited, unless his failure is'accounted for to the satisfaction of the court, in which case the court may postpone the trial until its next sitting.

It is plain that none of these provisions are applicable to a suit in a justice’s court, and yet they are all made applicable to any suit brought on a demand procured in violation of the provisions of this article. It seems to me to follow that suits in justices’ courts are not contemplated by the article, nor included in its prohibition; and consequently, that a note bought with intent to bring a suit upon it in a justice’s court, is not forbidden by it.

The fact that there is a similar prohibition in one of the articles of the Bevised Statutes, relating to justices’ courts, by which justices and constables, the only officers of those courts, are prohibited from buying notes, &c., for the purpose of commencing any suit thereon before a justice of the peace, strengthens the position that the section under consideration was not intended to apply to suits in justices’ courts. (2 R. S, 267, § 235, 1st ed.)

Again, if we consider the object of the statute, I think we shall be led to the same conclusion. The Chancellor, in Baldwin v. Latson (2 Barb. Ch. R., 308), states the object to be “to prevent attorneys and solicitors from purchasing debts or other things in action for the purpose of obtaining costs by a prosecution thereof.” . So Mr. Justice Strong, in Mann v. Fairchild (14 Barb. R., 554), says: “ The main object of the statute in question was to prevent litigation by prohibiting the purchase of choses in action by those whose pecuniary interests might be peculiarly advanced by instituting suits upon them, and who, in consequence of their position, might conduct their suits upon unequal terms.” It is evident, I think, that the object of the statute is correctly stated in these two cases. The purchasing of debts by attorneys, with the intent to bring suits upon them in justices’ courts, does not seem to me to be within the mischief which the statute was intended to guard against. Mo costs being allowed to an attorney in a justice’s court, he has no object in buying debts to sue in that court, and I can see neither opportunity nor temptation for him to attempt to advance his pecuniary interests by so doing. As he has no temptation to litigate, as a party, in justices’ courts, no litigation is induced by his freedom from restraint in that direction ; and I conclude, therefore, that the prohibition of the statute was not intended to restrain him from acts which are not productive of the evils which it was intended to remedy. Upon the whole, I am of the opinion that the judgment of the court below was erroneous, and should be reversed.

Judgment reversed.


author: By the Court, Davis, J.

text:
    Supreme Court. Erie General Term,
    February, 1862.

      Davis, Grover and Hoyt, Justices.
    James S. Kuckler, plaintiff in error, v. The People, defendants in error.
    The provisions of the act of April 14, 1860, entitled “An act in relation to capital punishment, and to provide for the more certain punishment of the crime of murder,” so far as they apply to offenses committed before the act took effect, are ea post facto, and, therefore, unconstitutional and void.
    Where a conviction had taken place under that act, for an offense committed before the act took effect, and sentence had been pronounced by the Court of Oyer and Terminer, in pursuance of the provisions of the act, no bill of exceptions having been returned with the record, and the only error committed having been in the giving of judgment, it was held, on reversing the judgment, that this court had no power to order a new trial, but that the prisoner must be discharged.
    To grant a new trial, in such a case, would be a violation of the constitutional provision which protects the prisoner from “being twice put in jeopardy for the same offense,” and on the second trial the plea of autrefois convict would be a good defense.
    This ease came up on a writ of error to the Court of Oyer and Terminer of the county of Erie. Ho bill of exceptions was returned with the record. The questions arising in the case are sufficiently stated in the opinion of the court.

      E Cook, for the plaintiff in error.

      F. J. Fithian (District Attorney), for the defendants in error.
   By the Court, Davis, J.

Before the passage of the act of April 14th, 1860, entitled “An act in relation to capital punishment, and to provide for the more certain punishment of the crime of murder,” James S. Kuckler, the plaintiff in error, committed murder by poisoning his wife. He was indicted, and after that act went into effect was tried and convicted, and sentenced to be imprisoned and executed, pursuant to its provisions. It is now established by the Court of Appeals, in Hartung v. The People (22 N. Y., 95), that the provisions of the act under which judgment was pronounced on the plaintiff in error, in so far as they apply to offenses committed before that law became operative, are ex post facto, and therefore unconstitutional and void. This determines, without further discussion, that the judgment in this case is erroneous, and must be reversed.

The important question then arises, what disposition should be made of the case upon the reversal of the judgment?

The trial of the prisoner and his .conviction were in all respects regular and legal, and no exceptions to them are brought before us. The writ of error has brought up the record alone, and no question is made except upon the illegality of the judgment pronounced upon a proper conviction. Untrammeled by statutes or decisions, there would seem to be no difficulty in holding that the true course in such a case would be, on reversing the erroneous judgment, to direct the court below to pronounce the proper judgment on the conviction. So far as we have decisions on this question, they are based on the English cases, without pausing to inquire whether those cases are applicable to our system or not. In Quimbo Appo's Case (19 N. Y., 531), it is settled that the Oyer and Terminer of the several counties of this State “ is a permanent and continuous court, and its successive sessions are terms of the same and not of distinct tribunals,” and the difference between it and the English Courts of Oyer and Terminer, which are held by virtue of special commissions from the Crown, which expire with each session, is very clearly shown. When, under the English system, a judgment was reversed on writ of error, because the Oyer and Terminer had given an illegal judgment upon a regular conviction, there remained no court below which could be directed to pronounce the proper judgment. It is not so with us, and, therefore, the reason for the rule failing, the rule itself is not applicable, and never ought to have been brought into our practice.

But while the decisions would not have restrained us from directing the Oyer and Terminer to proceed to give the proper judgment in this case, the provisions of the statute, regulating the practice on writs of error in such cases, must be respected. The statute provides (2 R. S., 741, § 24) that, “if the Supreme Court shall reverse the judgment rendered, it shall either direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case.

One of the alternatives of this statute—either to direct a new trial, or to discharge the defendant absolutely—must be pursued, and this necessarily precludes us from directing the- court below to proceed to the proper sentence; and relieves us also from inquiring whether there was any sentence that could have been lawfully pronounced, left by the blind and sweeping changes of the act of 1860. The question for our examination is therefore narrowed to this: Can we direct a new trial, or must the prisoner be absolutely discharged ? It is insisted by the co'Unsel for the plaintiff in error, that it is Authoritatively settled in'this State, that where the writ of error brings up the record alone, without a bill of exceptions, and the judgment is reversed for error manifest in the record, this court cannot order a new .trial, but must discharge the prisoner Absolutely. Before bills of exceptions were extended by statute to criminal cases, the court had no power to grant' new trials, in cases of felony and treason, where the proceedings appeared by the record to have been regular. Neither the merits nor the proceedings in the progress of the trial weré reviewable on writ of error. (People v. Comstock, 8 Wend. R., 549; 3 Black. Com., 388; 13 East R., 416; Chit. Crim. Law, 532.) This. rule, of the common law has been followed since our statute, and it has been said that new trials can be granted now only where the judgment is reversed upon bill of exceptions. (People v. Taylor, 3 Denio R., 91; O'Leary v. People, 4 Park. Cr. R., 193.) In the People v. Taylor, the point was not at all involved, and the very eminent judge who pronounced the opinion, was evidently only stating the common law rule, without respect to any statute. He neither referred to the statute, nor in any wise considered its effect upon the former rule, and ought not to be regarded as-holding, in his merely incidental dictum, that the statute had not changed the common law. In O'Leary v. The People, the court, so far as this point was considered, followed the People v. Taylor, without considering the question in the light of the statute. In Hartung's Case, the Court of Appeals (as the reporter informs us in notes), on reversing the judgment, ordered a new trial, “not being able judicially to see that, upon a new trial, the prisoner might not be convicted of manslaughter in some inferior degree.” A bill of exceptions was, in that case, annexed to the record, but no error was found in the bill, and the judgment was reversed solely because of the effect of the law of 1860 on the case. It would be impeaching the good sense of 1 that court to say that, in a case where no error appeared in the bill of exceptions, it held it to be proper to grant a new trial for error found only in the record, simply because a bill was attached to the record. It must have been considered that the statute had given the court power to order a new trial “according to the circumstances of the case,” and in that respect had changed the common law rule, or, which is possible, the order was entered without considering this point at all. In either view, the case is perhaps not to be considered as an authority on this question.

The statute in plain terms embraces all criminal cases brought before the court by writ of error, whether the alleged error is in the judgment record or in a bill of exceptions annexed to it, and, in my opinion, the true test to determine what order shall be made on a reversal, is whether a new trial can be legally effective or not. It is sometimes apparent on the record that no conviction can lawfully be obtained, as where the indictment is fatally defective, or where the circumstances are such that the prisoner cannot be retried without a violation of his constitutional or legal rights; and in all such cases it is the duty of the court to discharge the prisoner absolutely ; but where the error, though apparent in the record only, is of a character that renders the trial and conviction illegal, so that the prisoner cannot legally be said to have been in jeopardy, the statute, in my judgment, authorizes this court to order a new trial.

But in the case at bar the conclusion is forced upon' my mind that there can be no new trial. The trial and conviction that have taken place were in all respects regular and legal. When the verdict was rendered the prisoner stood lawfully convicted of murder. (4 Black. Com., 362.) The legislature (to that purpose omnipotent, both in wisdom and folly) had repealed all statutes prescribing his sentence and punishment, under circumstances where the common law was not revived. Hartung v. People, 22 N Y. R.) The sentence attempted to be substituted was unconstitutional; and we are compelled, by reverence for the Constitution, as well as for the adjudication of the Court of Appeals, to reverse it. But the legal conviction upon a regular trial remains a fact, of which the prisoner is entitled to avail himself.

His plea of autrefois convict would be a bar to a new trial, and would, as it seems to me, be established by producing the record now brought before us. “The plea of autrefois convict or a former conviction for the same identical crime, though no judgment was ever given or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment.” (4 Black. Com., 336.) In The State v. Benham (7 Conn. R., 414), it was held that the verdict itself constitutes the bar; and in The State v. Morrell (2 Yerg. R., 24), that this is so even when the judgment is improperly arrested upon a good indictment. (2 Cow. & Hill’s Notes, 955.)

The prisoner could not be deprived of the benefit of that plea by the answer that the judgment pronounced on the conviction was illegal. It was no fault of his that the legislature had deprived him of his well earned deserts — to be hanged; nor that the court, obedient to the letter of the act, pronounced the sentence it prescribed.

It is á familiar maxim of the common law, “ Nemo debet bis vexari pro eadem. causa." This maxim is embodied in the Constitutions of this State and of the United States. The former declares that no person shall be subject twice to be put in jeopardy for the same offense (sec. 6, art. 1, Const, of N. Y.); the latter, “nor shall any persoii be subject for the same offense to be twice put in jeopardy of life or limb.” (Art. 5, amend. Const. U. S.) It needs neither argument nor authority to show that these provisions are applicable to a case where, upon a regular trial, there has been a lawful conviction of a felony. They protect the prisoner from another trial; and the result, under the statute, is his absolute discharge.

To discharge the prisoner, so justly convicted of his appalling crime, is a most painful duty; but in our view, the law leaves us no alternative. If the result in his case, and in the parallel one of Mrs. Hartung — in one of which a faithful wife, in the other a confiding husband, was deliberately poisoned to death, to give scope to the embraces of a paramour and prostitute — shall prove beacons to warn against future imitations of the folly and stupidity of the act of 1860, they will not be wholly without benefit to the community.


author: By the Court, Rosekrans, J.

text:
    Supreme Court. New York General Term,
    May, 1862.
    Ingraham, Leonard and Losekrans, Justices.
    John A. Cantor, plaintiff in error, v. The People, defendants in error.
    Form of an indictment for forgery in passing a counterfeit bank bill after a previous conviction for a similar offense.
    On the trial of an indictment for forgery in passing a counterfeit bill, it had been proved, without objection, that after the prisoner and B., his companion, had been arrested and brought to the station house, a boy came in and produced a roll of sixteen counterfeit bank bills, which he said B. threw away when in the company of the prisoner, while they were ia custody on their way to the station house. Afterward the public prosecutor offered to put such counterfeit bank bills in evidence, but the evidence was objected to by the prisoner’s counsel, field, that it was still in time to object to the introduction of the bills in evidence, notwithstanding the hearsay evidence of the boy had been6 received without objection; and the counterfeit bills having been received in evidence, and the prisoner found guilty, the conviction was reversed and a new trial ordered.
    This case came up on writ of error to the H. Y. General Sessions. On the 23d day of October, 1861, the prisoner was indicted in that court, in the words and figures following:

      City and County of New York, ss:

    The jurors of People of the State, of New York, in and for the body of the city and county of New» York, upon their oath, present:
    That heretofore, to wit, at a Court of General Sessions of the Peace, holden in the city of New York, in and for the city and -county of New York, on the sixth day of July, in the year .of our Lord one thousand eight hundred and fifty-three, before Welcome . E. Beebe, Esquire, city judge and justice of the said court, assigned to keep the peace of the said city and county of New York, John A. Cantor, by the name and description of Charles Day, was, in due form of law, tried • and convicted of forgery upon a certain indictment then and there depending against the said John A. Cántor, by the name and description aforesaid; for that the said John A. Cantor, on the eighteenth day of June, in the year of our Lord one thousand eight hundred and fifty-three, at the city of New York, in the county of New York,' aforesaid, with force and arms, feloniously had in his custody and possession, and did receive from some person or persons to the jurors aforesaid unknown, a certain false, forged and counterfeited negotiable promissory note, for the payment of money, commonly called a bank note, purporting to have been issued by a certain corporation or company, called Bank of Hallówell, duly authorized for that purpose, by the laws of the State of Maine, which said last mentioned false, forged and negotiable promissory note, for the payment- of money, is as follows, that is to say: With intention to utter and pass the same as true, and to permit, cause and procure the same to be so uttered and. passed, with the intent to injure and defraud one John Lawitz and divers other- persons to the jurors aforesaid unknown, he, 'the said John A. Cantor, then and there well knowing the said last mentioned false, forged and counterfeited promissory note, for the payment of money, to be false, forged and counterfeit, as aforesaid, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity; and, therefore, it was'considered by the said court then, that the said John A. Cantor, otherwise called Charles Day, should be imprisoned in the State prison for the term of eight years, as by the record thereof doth more fully appear. And the jurors aforesaid, now here sworn upon their oath aforesaid, do further present, that the said John A. Cantor, otherwise called" Charles Day, having been so convicted of forgery, and having been duly discharged and remitted of such judgment and conviction, afterward, to wit, on the 20th day of July, in the year 1861, with force and arms, at the ward, city and county aforesaid, feloniously had in his possession a certain forged and counterfeited negotiable promissory note, for the payment of money, 'commonly called a bank note, purporting to have been issued by a certain corporation or company called The Mechanics’ Bank, duly authorized for 'that purpose, by the laws of the State of Connecticut, which said last mentioned forged and counterfeited negotiable promissory note, for the payment of money, is as follows, that is to say:

      “5. No. 1198. 5. THE MECHANICS’ BANK, State of Connecticut, Promise to pay Jive dollars to the hearer, on demand. New Haven, Dec. 8, 1858. V. JNO. W. BITCH, Pres’t. Geo. B. Curtiss, Cash."

      With intention to utter and pass the same as true, and to permit, cause and procure the same to be so-uttered and passed with the intent to injure and defraud one Bernard Sweeny and divers other persons to the jurors aforesaid unknown, he, the said John A. Cantor, otherwise called Charles Day, then and there well knowing the said last mentioned forged and counterfeited promissory note, for the payment of money, to be forged and counterfeited as aforesaid, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.
    NELSON J. WATERBURY, District Attorney.

    On the 12th day of November, 1861, the defendant was arraigned in said court on said indictment, and pleaded not ' guilty.
    The issue so joined came on to be tried on the nineteenth day of November, 1861, in said court, before John H. McCunn, city judge, and a jury.

      Barnard Sweeny was called as a witness on behalf of the prosecution, and testified as follows: On the 20th day of July, 1861, I lived at 277 Division street; I saw defendant there in the liquor store which I attended; another man named Burns came in with him; it was in the evening; they called for two milk punches and two segars, and defendant gave in payment a five dollar bill on the Mechanics’ Bank, New Haven, Connecticut ; I gave him four dollars and seventy cents in change, retaining thirty cents for the drinks and segars. (A bank bill was here shown to witness.)

      Q. Is that the bill?

      A. I think it is; I wrote my name on it; these two parties were in there eight or ten minutes; as soon as they went out police officer O’Rourke came in and asked me if they (defendant and Burns) had passed any bill there; defendant was not present; I showed the officer the bill; he said it was bad; he took the bill and went after the prisoner; all this occurred within a minute or two after they went out; this was about eight o’clock in the evening.

      Oross-examined: It was on a Saturday night; the parties did not appear as if they had been drinking; when I took the bill I put it in the drawer; I had other bills in the drawer, but no others of the denomination of five dollars; when defendant and Burns left, they had hardly "time to cross the street when O’Rourke and the other, officer came in, and I gave them the bill; I was not present at the examination of the defendant before the police Magistrate.
    The district attorney hereupon read in evidence a certificate of Henry Vandervoort, clerk of said Court of General Sessions, in the words and figures following:
    “ At a Court of General Sessions of the Peace, holden in and for'the city and county of New York, at the city hall of said city, on Wednesday, the 26th day of July, in the year of our Lord one thousand eight hundred and fifty-three:
    Present—The Honorable Welcome R. Beebe, City Judge of the city of New York, Justice of the Sessions.
    The People of the State of New York v.

    Charles Day, aZias John A. Cantor.
    On conviction, by verdict, of forgery in the second degree.
    Whereupon it is ordered and adjudged by the court, that the said Charles Day, alias John A. Cantor, for the felony aforesaid whereof he is convicted, be imprisoned in the State prison at hard labor for the term of eight years.
    A true extract from the minutes.
    HENRY VANDERVOORT, Clerk"

      Bernard O'Rourke was called as a witness on behalf of the prosecution, and, after being duly sworn, testified as follows: I am a police officer; I arrested the defendant on the evening of the 20th of July last; I went to the place of the last witness (Sweeny), and inquired if the defendant had passed any bill there; Sweeny said he had; I got a five dollar bill and took it to the station house; Sweeny came up and marked it at the station house; I put it in my pocket; it was the same bill I got from him; I saw him mark it; he wrote his name on it. (The bill, was here shown witness.) That is it; on Saturday evening I was on duty in Division street; my attention was .called to a crowd in front of the grocery store; I saw Rutzky come out of there; I thought there was a quarrel; there was. no noise there; I saw a girl cross' over; my attention was .called to her; I saw defendant come out of Rutzky’s clothing store and go down Division street on the Seventh ward side; Rutzky had been to Bohdé’s grocery store; I followed defendant ten or twelve blocks, and into the house Wo. 277 Division street; he was alone; he remained there forty or forty-five minutes; I was watching with another officer outside; I went over into the house, but could not see him; I came back to. where I started from, and after having waited forty or forty-five minutes he made his appearance in company with Frank Burns; the house defendant went in was not Sweeny’s place; I am not sure about the nufnber of the house; this was the house .where Burns lived; Burns’ house is three or four blocks this side of Sweeny’s liquor store'; defendant went two. or three streets up and into Sweeny’s liquor store; defendant and Burns went in together; I and the other officer stood on the other side, watching them; we could see all their movements; I saw defendant put his hand in his pocket to pay for the drinks; the minute défendant and Burns came out of Sweeny’s, I went in; Sweeny was the only person in the store; I asked him what money he had received from those two men; he replied, a five dollar bill; I said, “ Are you sure it is a good bill ?” I told him the bill was bad; I took the bill and followed' defendant and Burns until I met officer Van Duzer, and we arrested them and took them to the Thirteenth ward station house; I took the bill out of. my pocket and gave it to the captain; Van Duzer searched defendant; he had the money he received from Sweeny, a three dollar bill, a one dollar bill, and seventy cents in silver; I think defendant said that was: the money he received for a five dollar bill he gave Sweeny; Van Duzer also found on • defendant four tens (good money) done up in small bits of paper; the captain asked him where be got the money ; he said he got it down town from some friends; we searched him thoroughly, but found no more there; he evaded all questions; he said he was born nowhere; captain Steers desired-me and Van Duzer to take them in the back room; we did so; I then searched defendant, and in his left .fob pocket of his pantaloons I found one dollar in gold, two half dollars and two or three ten cent pieces, a five cent piece, I think, amounting in all to about two dollars and twenty-five cents; found no more on his person; I searched him thoroughly ; found nothing on Burns; a boy belonging to some regiment brought in a roll of bills which he had picked up; be brought it in while I was searching defendant; he said he' picked it up in the street; he said one of the prisoners threw it away; he said he was not positive which one it was, but thought it was the big man (Bums); I took Burns, and Van Duzer took defendant, to station house.
    The district attorney hereupon put to the witness the following question:

      “ On the way to the station house, did you observe Burns do or say anything, and, if so, what?”
    The counsel _ for defendant objected to this question. The court overruled the objection, and allowed the question to be put; to which decision counsel for defendant excepted.
    The witness answered: “ He put both his hands in his pockets, one in his pantaloons and the other in his coat pocket; I saw him make a motion as if to throw away a segar; I after-wards saw the segar in his mouth.”
    The district attorney here proposed to give in evidence the declarations of Burns in the presence of defendant. Counsel for defendant objected. The court overruled the objection, and allowed the evidence to be given; to which counsel for defendant excepted:
    “ Burns asked me what he was arrested for ? what he had done? I told him if he would go to "the station house he-could find out. I found nothing on Burns, on searching him. All the money was found on defendant.”
    The district attorney hereupon handed to the witness some sixteen bank bills, which were admitted to be counterfeit, and asked the witness the following question':
    “ State if this is the money that was brought in the station house by the boy ?”
    The counsel for the defendant objected to the question. The court overruled the objection, and allowed the question to be answered; to which counsel for defendant excepted.
    The witness thereupon answered: “ This is it; it was rolled up -in this tin foil.”
    The district attorney hereupon put in evidence the five dollar bank bill which the witness Sweeny testified that defendant passed upon him on the evening of the 20th of July, 1861, which was admitted by the defendant’s counsel to be counterfeit ; which bill is the same described in the indictment.

      Gross-examined: From Eutzky’s to Sweeny’s is about ten or eleven blocks; Eutzky’s is 97 Division street; Burns’ placéis about three blocks from Sweeny’s; Eutzky’s is near Allen street; Sweeny’s place is corner Governor an d Division streets; I saw Eutzky when he came out of the grocery store; I knew he went to the grocery store to see if the bill was good; he told me so afterward; he said he went to see if the bill was good; after I arrested defendant I spoke to Eutzky about the bill; until then I never spoke a word to him about a counterfeit bill; I spoke to Eutzky about it for the first time that night immediately after arrest was made, in his own house; defendant was then locked up; no officer spoke to Eutzky about counterfeit bills in my presence; Eutzky had spoken to my side partner about it; Matt. Keough, or Keoll, was my side partner then; I did not see Burns throw away any roll of bills; I saw him throw something away; it was not a segar; we were then five or six blocks from the station house; boy came in with the roll three or five minutes after us; when Burns threw something away there was a crowd around us, two or three dozen persons or more; I was present when the boy gave in his testimony; he told Judge Steers distinctly, and swore to it, that Burns threw it away; he stated no differently to me; I don’t know that Eutzky was told not to tell defendant the bill was bad; I never heard of any such plan; never heard it spoken of from time I saw Eutzky come out of the grocery store; I and the other officer watched the defendant; I don’t know the other officer’s name; I am sure defendant waited in Burns’ thirty or forty minutes at least; I did not look at watch; I could form an opinion; I saw the defendant come out of Eutzky’s place; he went right down to Burns’ place; Burns’ place is on same side as Eutzky’s, and is between Eutzky’s and Sweeny’s, but nearer to Sweeny’s.
    The prisoner’s counsel admitted the existence of the bank, as a corporation, by which the bill passed to Sweeny purported to have been issued, and that such bill was counterfeit.
    After other evidence had been given, the district attorney proposed to put in evidence the sixteen counterfeit bank bills identified by the witness O’Eourke as those brought to the station house by the boy. Counsel for defendant objected to the introduction of such bills in evidence. The court overruled the objection, and allowed the bills to be put in evidence, to which the counsel for the defendant excepted. The bills were thereupon read in evidence. The sixteen bills were each and" all five dollar bills, on the same bank, and same date, as the counterfeit bill described in the indictment, and were all put in evidence. The defendant’s counsel admitted the former conviction, sentence and imprisonment, and expiration of sentence, of defendant, as described in the indictment. The prosecution here rested.
    After evidence had been given on the part of the defense, the court charged the jury that it was a question of fact for them to decide, upon the evidence, whether the scienter was proved. To which the counsel for the defendant excepted.
    The jury rendered a verdict of guilty, and the case was then brought into the Supreme Court.

      Henry L. Clinton, for plaintiff in error.
    I The court below erred in permitting the sixteen bills, alleged to have been brought into the station house by the boy, on the night of the arrest of defendant, to be introduced in evidence.

      ‘ 1. If these bills were thrown away by Burns (and there was some testimony tending to show this), what he did after the counterfeit bill had been passed could not bind the defendant, nor was it admissible in evidence against him; although where two or more are jointly engaged in the commission of a crime, the acts of any one (after the concert of action between them is proved) may be given in evidence against the others, yet, after a crime is committed, the acts or declarations of any one are not evidence against the others. Wharton', in his American Criminal Law (Ath ed., § 70S), correctly states the rule as follows : “ When, however, the common enterprise is at an end, whether by accomplishment or abandonment, it is not material, no one is permitted, by any subsequent act or declaration of his own, to affect the others.” ****** “Thus, on an indictment against A. for concealing a horse thief, knowing him to be such, it is not competent for the prosecution to give evidence of what the alleged horse thief subsequently confessed in the presence of A., to establish the fact that a horse was stolen." Clearly, anything Burns might have said, or any act of his, such as throwing away a roll of counterfeit bills after the offense in question had been committed, could not be evidence against the defendant.
    2. There was no proof, but hearsay, that the boy had picked up these bills at all, and brought them to the station house. The only proof adduced by the prosecution, on the subject of these sixteen counterfeit bills, before introducing them in evidence, was that the boy said he picked them up, and that one of the prisoners (Bums) had thrown them away. Clearly, the only way to prove that fact (if it were competent evidence) was to call the boy as a witness on the trial. Certainly, it cannot be necessary to cite authorities to show that hearsay is not evidence.
    H. The prosecution failed to prove the scienter or guilty knowledge. The court below erred in refusing so to charge the jury. All the authorities agree that, in a case of this kind, it is incumbent on the prosecution to prove guilty knowledge.

      “ Where the prisoner is charged with uttering or putting off a forged instrument, knowing it to be forged, evidence of that guilty knowledge must he given on the part of the prosecution, and, for that purpose, the uttering or having posséssion of similar forgeries will be admissible." (Roscoe’s Crim. Ev., p. 515.)
    “ It has already been observed, that the publication of the forged instrument, with knowledge of the fact, is made a substantive offense by most of .the statutes which relate to forgeries, and in cases of this kind, the knowledge of the fact, or, as it is frequently termed, the guilty knowledge, becomes a material part of the evidence.” (2 Russell on Crimes, 403.)
    “Well knowing the same to be forged,” &c. This is not capable .of direct proof. It is nearly in all cases, therefore, proved by evidence of facts, from which the jury may presume it. 'Upon an indictment for disposing of and. putting away a forged" bank note, knowing it to be forged, proof that the defendant has passed other forged notes, if proved by legitimate evidence, raises a probable presumption that he knew the note, for the passing of which he is now indicted, to be forged.” (Arch. Cr. Pl., 366.)

      S. B. Garvin, for defendants in error.
    The sixteen bills were properly proved and received in evidence, it being proved, without objection, that the money was thrown away by Burns, a confederate with Oantor.
    The charge was right and proper in all respects, and sentence should be affirmed.
   By the Court, Rosekrans, J.

The declaration of the person who brought to the officer who arrested and searched the defendant, the sixteen bills which were offered in evidence by the public prosecutor, that the prisoner had thrown away the bills, and "that the person who made the declaration picked them up, was merely hearsay evidence, and did not establish the fact which he alleged. Although such declarations were admitted without objection on the part of the prisoner, his subsequent objection to the introduction of the bills in evidence; and to proof that they were the bills said to have been picked up by the person who made the declaration, was proper and timely, and should have been sustained. These bills, in connection with proof that they were counterfeit, furnished the principal evidence of knowledge by the prisoner that the bill passed by him was counterfeit, and thus effected his conviction.

For these reasons, the conviction should be reversed, and the case remanded to the Court of General Sessions for a new trial.

A new trial granted.


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

text:
    Broome Oyer and Terminer.
    February, 1862.
    Before Bair com, Justice of the Supreme Court, and A. D. Freeman and N. D. Applington, Justices of he Sessions.
    The People v. John Carpenger and others.
    In an indictment for willfully cutting wood or timber upon lands of another, under 2 R. S., 693, § 16, as amended by the Laws of 1851, ch. 182, it is necessary to describe the lot or close on which the trespass was committed; and when this was omitted, the indictment was quashed.
    The prisoners were brought into court and asked to plead to an indictment in the words and figures following, viz.:

      “In the Broome Comity Court of Oyer and Terminer, 'of the. February Term of the year one thousand eight hundred and sixty-two:

      “State of New York, Broome County, ss:

    “ The jurors for the Pebple of the State of New York,-in and for the body of the county of Broome, good and lawful men of said county, then and there being sworn and charged, upon their oaths present: That John Carpenger, Tim. Dempsey, alias Timothy Dempsey, and Jeremiah Dempsey, otherwise called Jerry Dempsey, late of the town of Binghamton, in the county aforesaid, on the first day of November, in the year of our Lord one thousand eight hundred and sixty-one, and on divers days and times between that day and the present time, at the town of Binghamton, in said county, did maliciously, willfully and unlawfully cut down, steal, take and carry away one thousand young forest trees, otherwise called hoop poles, then standing and growing upon certain lands of Thomas W. Waterman, there situate: the same being done feloniously and without the consent of the said Waterman, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    “ Gk A. NORTHRUP, District Attorney.

      “ D. S. RICHARDS, Special District Attorney.”

    The defendants moved to quash the indictment, on grounds which sufficiently appear in the following opinion of the court:

      D. S. Richards (Special District Attorney), for the People.

      Thos. D. Wright, for prisoners.
   By the Court, Balcom, P. J.

It is provided by statute, that “ every person who shall willfully commit any trespass, by, 1st, cutting down or destroying any kind of wood or timber standing or growing upon the lands of any other, or upon lands belonging to the people of this State; or, 2d, carrying away any kind of wood or timber that may have been cut down, and that may be lying on such lands; shall, upon conviction, be adjudged guilty of a misdemeanor, and shall be punished by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one hundred and fifty dollars, or by both such fine and imprisonment." (2 R. S., 693, § 15; Laws of 1851, p. 349; 3 R. S., 5th ed., pp. 973, 974, § 15.)

The lot or close from which the wood or timber in question was cut and carried away, is not described in the indictment. I am of the opinion it should have been described therein, with reasonable certainty. Thomas W. Waterman may have owned or possessed several pieces of land in the town of Binghamton at the time it is alleged in the indictment the offense was committed. The lot or close, in which it is claimed the offense was committed, should be described in the indictment so the prisoners may come to the trial prepared to show, if they can, that Waterman neither owned nor had possession of the same, when the wood or timber was cut and carried away, or that they had leave to cut the same; in other-words, so they may know, the precise charge against them, and prepare their defense thereto. (People v. Horr, 7 Barb, R., 9; 3 Archb. Cr. Pl., by Waterman, 505-2; Biggs v. The People, 8, Barb, R., 547.)

' A form of an indictment is given in Archbold’s Criminal Pleading, by Waterman (vol. 3, p. 506), under the English, statute, making it a crime to maliciously destroy or damage trees, shrubs, &c., in which the close wherein the tree (alleged to have been cut, rooted up and destroyed) was standing, is not described, except as “ a certain pleasure ground of C. D.” A form of an indictment, under the same, or a similar statute, is contained in Chi tty’s Criminal Law (3 Chit. Cr. Law, 1116), which is as follows, viz.: “ That T. S., late of, &c., after the first day of June, in the year of our Lord one thousand seven hundred "and twenty-three, to wit, on, &c., with force and arms, at, &c., aforesaid, unlawfully, maliciously and feloniously did cut down and destroy two elm trees in a certain avenue to the dwelling house of one W. 8., there planted, and then growing for ornament there (he, the said W. S., then being the owner of the said trees), to the great damage of the said W. S., against the form of the statute, &c., and against the peace, &c.”

I have been unable to find any case that-holds the lot or close from which the wood or timber is cut and carried away need- not be described in the indictment. The description of the close in the forms to which I have referred is not very definite or certain; but those forms cannot be regarded as authority that the close -need not be described at all; and I think it should be described with reasonable certainty.

For the foregoing reasons, I am of the opinion the indictment in question is not good, and that the same should be quashed.

Decision accordingly.