text:
    Supreme Court. Monroe General Term,
    March, 1860.

      Smith, Johnson and Knox, Justices.
    William S. Coats, plaintiff in error, v. The People, defendants in error.
    Form of a writ of error, sued out by the defendant, to remove a cause, after conviction, from the Court of Sessions to the Supreme Court, with the allowance of the same and stay of proceedings on the sentence.
    Form of an indictment against husband and wife for the embezzlement and larceny of property charged to belong to A. 0., as Superintendent of the Poor of the county.
    An indictment for embezzlement and larceny was found against W. S. 0. and M. 0., his wife, and, on motion in behalf of M. C., the court quashed the indictment as to her: Held, that quashing the indictment as to M. 0. did not discharge it, and was no reason for quashing it as to W. S. C., but that he could be tried under the indictment as if originally indicted alone.
    It is no reason for quashing an indictment for the embezzlement and larceny of articles of food provided for the support of a county poor house, that they are charged in the indictment as the property of the Superintendent of the Poor of the county.
    When the keeper of a county poor house, employed for that purpose by the Superintendent of the Poor of the county, and holding under him, secretly-sold and converted to his own use articles of food provided for the support of the county poor house: Held, that he was guilty of embezzlement within the statute (2 R. S., 618), and could be convicted of that offence under an indictment charging that the articles embezzled were the property of such Superintendent of the Poor.
    Counts for embezzlement and larceny maybe joined in the same indictment.
    It is no objection to a count for embezzlement, that it charges the embezzling of several different articles, some of them of more, and some of them of less value than $25 each.
    Where, on the cross-examination of a witness, he was asked whether he had not been convicted of petit larceny, and whether he had not been in jail under sentence on a criminal charge, and, on objection made by the opposite counsel, the evidence was excluded as being immaterial, and at a later stage of the trial the witness was recalled, and all objections to the questions were withdrawn, and an opportunity was given for a full examination: Held, that no rror had been committed which would warrant a reversal of the judgment.
    On the trial of an indictment for embezzlement, it is competent to prove by the employer, that he never gave any authority to the defendant to do the acts complained of, and that the defendant has never accounted or reported to him for the property charged to have been embezzled; and such evidence may be given before the proving of the secreting or converting to his own use, by the defendant, of the property in question.
    It is not competent, on the trial of such an indictment, for the defendant to prove that he reported promptly to his employer another transaction, not connected with the acts complained of, and of a different character.
    Though the testimony of an accomplice should be received with great caution, yet a conviction maybe had on the uncorroborated testimony of an accomplice, if the jury are fully satisfied of its truth.
    It is not' error for a court to refuse to charge, in a criminal case, that “ proof of previous good character of the accused is a sufficient defence in a doubtful case.”
    This case came into this court on writ of error to the Court of Sessions of Yates county. The writ, with the allowance and stay of proceedings, were as follows:
    The People of the State of New York, by the grace of God free and independent, to the County Judge and [l. s.] Justices composing the Court of Sessions in and for the county of Yates, Greeting:
    Because, in the record and proceedings, and also in the giving of judgment on a certain bill of indictment which was in our said Court of Sessions before you, against William S. Coats, indicted with Matilda Coats, for the crime of embezzlement, manifest error hath intervened to the great injury of the said William S. Coats, as by his complaint we are informed: We being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done in the premises between us and the said William S. Coats, in this behalf, do command you, that if judgment be thereupon given, then you send to our justices of our Supreme Court for the seventh district, distinctly and openly under your seal, the record and proceedings upon the indictment aforesaid, with the bill of exceptions therein, and with all things concerning the same, and this writ, so that they may have them at the Court House in the city of Bochester, on the first Monday of March next, that the record and proceedings aforesaid being inspected, we may cause to be further done thereupon, for correcting that error, what of right and according to the law and custom of the State of New York ought to be done.
    Witness, E. Darwin Smith, one of the Justices of our Supreme Court, at the Court House in the city of Rochester, the 20th day of February, in the year 1860.
    DYER D. S. BROWN, Clerk

    John 1. Lewis, Jr., Attorney.

    Indorsed as follows:
    I do hereby allow the within writ of error, and do further order and expressly direct that the said writ of error and this allowance thereof do operate as a stay of proceedings on the judgment upon which such writ of error is brought; and the sheriff of the county of Yates is therefore hereby ordered to stay the execution of the sentence pronounced against the said William S. Coats, until the further .order of the Supreme Court on this writ of error.
    HENRY WELLES.
    Dated February 20, 1860
    It appeared by the return that an indictment for embezzlement and larceny had been found as follows:

      State of New Yorlc, Yates County, ss:

    The Jurors of the People of the State of New York, and for the body of the county of Yates aforesaid, upon their oath, do present:
    That William S. Coats, of the town of Jerusalem, in the county of Yates, and Matilda Coats, wife of the said. William S. Coats, of the town of Jerusalem, in the said county of Yates, on the twenty-eighth day of December, in the year of our Lord one thousand eight hundred and fifty-six, at the town of Jerusalem, in the county of Yates, were agents to Adam Clark, as the Superintendent of the Poor of the county of Yates, and keepers of the County Poor House in and for the county of Yates, employed as such by and under the said Adam Clark, as such Superintendent as aforesaid, and employed and entrusted as such agents and keepers by the said Adam Clark, as such Superintendent as aforesaid, to receive and take charge for him," the said Adam Clark, as such Superintendent of the Poor of the county of Yates, of goods, chattels and personal property, pork, hams, butter, beef, meat, fowls, wool, knives and forks, crockery, sugar, coffee, cattle and other stock, provisions, groceries, household articles and furniture, wheat and other grain and farm produce, and farm stock. And being then and there such agents and keepers so employed and trusted as aforesaid, the said William S. Coats and the said Matilda Coats, by virtue of such employment and entrustment, did then and there receive and take into their possession, for and on account of the said Adam Clark, as such Superintendent of the Poor of the county of Yates, their said principal and employer, one barrel of lard, of the value of sixty dollars; three hundred pounds of lard of the value of sixty dollars; two half firkins of butter, of the value of twenty-five dollars; eighty chickens, of the value of twelve dollars; thirty ducks, of the value of six dollars; twelve turkeys, of the value of four dollars; one hundred and fifty fowls, of the value of twenty dollars; eighty pounds of butter, of the value of sixteen dollars; one thousand pounds of pork, of the value of one hundred dollars; three hundred and fifty pounds of pork in the hog, of the value of twenty-five dollars; eight hundred and twenty pounds of pork hams, smoked, of the value of eighty two dollars [here followed a list of many more articles which it is unnecessary to repeat], belonging to the said Superintendent of the Poor of the county of Yates; and having so received and taken into their possession the said one barrel of lard, three hundred pounds of lard, two half firkins of butter, eighty chickens, thirty ducks, twelve turkeys, one hundred and fifty fowls, eighty pounds of butter, one thousand pounds of pork, and the said other goods, chattels, personal property and effects aforesaid, for and on account of their said employer and principal, afterwards, to wit: On the day, in the year aforesaid, at the town, in the county aforesaid, they, the said

      And the jurors aforesaid, upon their oaths aforesaid, do farther present: That the said William S. Coats and Matilda Coats, on the twenty-eighth day of December, in the year of our Lord one thousand eight hundred and fifty-six, at the town of Jerusalem, in the county of Yates, with force and arms, one barrel of lard, of the value of sixty dollars [enumerating the same articles as in the first count], the goods, chattels and personal property of Adam Clark, as Superintendent of the Poor of the county of Yates, then and there being found, then and there feloniously and unlawfully did steal, take and carry away, contrary to the form of the statute in such case made and provided, to the great damage of the said Superintendent of the Poor of the county of Yates, and the people of the county of Yates, and against the peace of the People of the State of Yew York, and their dignity.
    H. M. STEWART, District Attorney.

    Indorsed, A true bill.
    JEREMIAH S. BURTOH, ForemanA
    William S. Coats pleaded not guilty. On motion, in behalf of Matilda Coats, the following order was entered:

      Yates Sessions.
    The People n. William S. Coats and Matilda Coats.
    May 18, 1857. Indicted jointly for grand larceny and embezzlement.

      Henry M. Stewart., District Attorney.

      D. J. Sunderlin, Attorney, for defendant.
   “MOTION to quash the indictment as against matilda “ COATS.

“After hearing D. J. Sunderlin and others, of counsel for defendant, Matilda Coats, in favor of, and Henry M. Stewart, District Attorney, in opposition thereto, it is ordered that the indictment in this cause be and the same is hereby quashed as to the defendant Matilda Goats.”

The cause then proceeded to trial as against William S. Coats, and after the impanneling of the jury, the prisoner’s counsel moved the court to quash the indictment, on the following grounds:

1. That it appears by the record that the indictment had been quashed as to Matilda Coats; and that the defendant and the said Matilda Coats, having been jointly indicted, quashing it as to one, quashed it as to both, the- indictment being an entire thing.

2. That the property charged to have been embezzled and stolen is erroneously charged to be the property of Adam Clark, Superintendent of the Poor of the county of Yates, when it should have been charged as being in the Board of Supervisors of said county.

3. That the count for embezzlement cannot be sustained, because it alleges that the defendant, William S. Coats, was keeper of the county poor house, and therefore was not the clerk or servant of any private person, or of any copartnership, or the officer, agent, clerk or servant of any incorporated company; the property alleged to have been embezzled not being charged to be the property of any private person or co-partnership, and the Superintendent of the Poor not being an incorporated company; and the count for larceny cannot be sustained, because it alleges that William S. Coats was such keeper, and therefore had lawful possession of the property alleged to be stolen, and could not be guilty of larceny of it; and the indictment failing to charge an offence under the statute, should therefore be quashed. (

4. That the office of keeper of the poor house being created by statute, and the superintendent being designated by statute to appoint or employ such keeper, it is only a statute duty, and the relation of principal and agent, master and servant, or clerk, does not exist between them.

5. That the indictment is bad for duplicity and multifariousness in charging different offences of different degrees in the same count and in different counts.

The court denied the motion, to which decision the defendant’s counsel excepted.

Upon the trial, the District Attorney introduced Adam Clarh as a witness, who testified as follows:

I was sole Superintendent of the Poor of Yates county from January 1st, 1856, to January 1st, 1857; I employed the defendant, William S. Coats, as keeper of the poor house in March, 1856; the agreement between us was, that he was to take charge of the poor house and farm, and the paupers that were placed under his care during the year; to furnish all the female hired help during the year; to faithfully perform the duties, and receive $328 for the year; the year commenced on the first day of April, 1856; he was likewise to use his team on the farm what was necessary,

Q. In what capacity was he employed? A. As keeper of . the county poor house and farm; he was to give his whole time and attention to the duties of keeper during the year; I think he was to have the privilege of keeping his team; he was to have the board of himself and family at the poor house; he continued to act as keeper from the first of April, 1856, till the 26th or 27th of December following,, which is as far as my knowledge extends; during that time he resided with his family at the county poor house in the discharge of his duties as keeper; there were pork hams at the poor house in the spring of 1856; I could not state how many; they were smoked on the premises during the preceding winter and fall; the defendant had charge of all personal property in the poor house and on the premises during the year.

Q. Were there any provisions on the premises except those that belonged to the county ?

This question was objected to by defendant’s counsel, as being irrelevant and immaterial. The court overruled the objection, and decided the question to be proper, to which decision defendant’s counsel excepted.

A. I do not recollect of any; Mrs. Coats had the privilege of fattening a couple of hogs there; she had also the privilege of keeping a couple of cows, which she claimed; those hams belonged to the county so far as I know.

Q. Have you at any time given the defendant, William S. Coats, authority to sell any pork hams from the county poor house or premises ? A. Mo farther than to sell to the work hands on the place when they wanted provisions; I never gave any consent that he should convert any of them in any manner to his own use, except for purposes of his own table.

Q. Has the defendant ever accounted to you, or reported to you for and as to any pork hams sold or by him taken away from the poor house, with the exception you have named ?

This question was objected to by defendant’s counsel, as irrelevant and improper, because there is no evidence that defendant had sold or taken away any hams from the poor house. The court overruled the objection, and decided the question to be proper, to which decision defendant’s counsel then and there excepted.

A. He has not; he has never informed me in any manner that he has so sold pork hams; my term of office commenced 1st January, 1854, and I acted for three years; the first year I had two associates; in 1855 I had one associate, and in 1856 I was alone.

John Dairies was then sworn for the People, and testified: In the spring and summer of 1856, I worked at the poor house; William S. Coats and Adam Clark both employed me; I was at work by the month on the poor house farm; I .boarded there; my term of work commenced there the first of April, and I worked there till late in the fall; I worked under the direction of defendant; I do not know how many pork hams were cured at the poor house in the winter and spring of 1856; they were smoked 4n the smoke house; after they were smoked they were carried out of the smoke house into the cellar; I should think there were over one hundred hams and shoulders; a number were removed up into the garret the last of April or first of May; I think I took forty up; they were taken up there by the direction of defendant and his wife; the garret was in the upper part of the main building, up three pair of stairs, called the north garret; I took those hams to Geneva about the first of June with the county team; one of them was a grey horse, and the other a sorrel, with a. strip in his forehead; the grey horse had been on the farm three or four years; the sorrel was bought by defendant and Moses W. Eastman, a former superintendent for the county; the wagon was a lightish kind of a lumber wagon, and belonged to the county; I took the hams to Geneva by the direction of defendant and another person; a day or two befpre I went, defendant told me it was good weather, and he wanted I should go with the hams; he wanted me to start early; this may have been the day before; the time was then fixed for me to go; we loaded them in the neighborhood of midnight; defendant assisted me; they were brought down out of the garret, and put into the wagon at the front door, and we both loaded them when we brought them down; the load consisted óf hams, dried beef and tongues, and a half firkin of butter; I do not remember that there were any shoulders; the number of hams was forty; there were about one hundred pounds of dried beef and six or seven tongues; there was no mark on the hams; defendant told me to take the hams to Geneva and sell them, and get what I could for them; I do not recollect what he told me to do with the money; he told me to start early; I started in the neighborhood of two o’clock in the morning; I got into Geneva in the neighborhood of nine o’clock in the morning; I sold my load to different persons, but the heft of it I sold to George C. P. Teal; I sold part before I sold to him; but I do not know how many, nor to whom I sold them; Mr. Teal’s place of business is on Water street, on the west side, near the depot; James D. Page advised me to go to him; I sold Mr. Teal some hams and dried beef; I sold him the balance of the load; I do not recollect how many pounds of ham there were; I sold to him at nine cents a pound all around, and threw the tongues in; he paid me in the neighborhood of forty-five dollars ; I then went to the hotel and fed my horses; I got back to the poor house about sundown; I gave the money I received to Mrs. Coats; defendant and she was in the room together when I went in; took out a paper that I had with the figures on it of the sale; I gave defendant the paper, and I gave Mrs. Coats the money; she said she would be banker, or something like that; I saw Mr. Page at Mr. Teal’s when I was selling to him.

On his cross-examination, among other things, the witness was asked the following questions:

Q. Have you been convicted of petit larceny since you lived in Jerusalem?

This question was objected to by the District Attorney, on the ground that the highest evidence of such conviction must be produced. The court sustained the objection, and decided the question to be illegal and improper; to which decision the counsel for defendant excepted.

Q. How many times have you been in jail in this county?

This question was objected to by the District Attorney, on the ground that it was immaterial. The court sustained the objection and decided the question to be improper and immaterial, to which decision the counsel for the defendant excepted.

Q. Have you been in jail under sentence on a criminal charge ?

This question was objected to by the District Attorney, on the ground that it was immaterial* The court sustained the objection, and decided the question to be immaterial; to which decision the counsel for defendant excepted.

At a later stage of the trial, the counsel for the People re-called this witness, and offered him for farther cross-examination by defendant’s counsel, and withdrew all objections to the questions put to the witness on his cross-examination, and consented that they might be answered, and the witness fully examined and cross-examined on those points.

James D. Page and George C. P. Teal were then called as witnesses for the People, and gave evidence tending to corroborate the testimony of Daines, as to his selling the provisions in Geneva at the time testified to by Daines.

Adam Ciarle, recalled for the People, further testified: One of the horses of the county team was a dark grey and the other was a sorrel, with a white strip in the forehead; the county “had a common lumber two-horse wagon on the premises ; defendant had a light grey horse, that was there a part of the time in 1856; it was said to belong to his wife; he sometimes drove it with one of his span of horses.

On his cross-examination, he testified: The wagon was not a light wagon; it was a wagon for heavy draughts; on the 10th or 11th of August, 1856, I was informed that a sleigh load of things had gone from the poor house to Geneva during the preceding winter; I went to the witness, Daines, and inquired of him if he had taken a load to Geneva; he stated that he had taken a couple of shoats that Mrs. Coats had leave to fatten, and some poultry, and that was all that he took; he said nothing about going to Geneva at any other time than this; I remarked to him that if there was any such thing going on I wanted to know it; I spoke to him a number of times about the affairs at the poor house; I generally made the inquiry of him. whether matters were managed correctly about the poor house; he always replied that all things were managed right and honestly.

On his re-examination, he further testified: One of the conversations I had with Daines was in the presence of Mr. and Mrs. Coats; they all said they knew nothing wrong there.

Evidence was afterwards introduced on the part of the defence, tending to contradict Daines as to the number of hams kept in the garret at the time mentioned by him, and tending also to show that the smoke house at the poor house, where hams were kept, had been broken open in the spring or summer of 1856, and hams taken out.

Adam Clark, recalled by defendant, further testified: The defendant made a request to me for leave of absence, to go to Lockport in the forepart of the warm season in 1856; my recollection is that I granted him permission under certain provisions. In the agreement with defendant, his time was to be devoted first to the paupers, and whatever time was over he should devote to the farm; it was not expressed in the agreement that he should labor on the farm; Daines was employed to labor on the farm, and to use the team to haul provisions or anything of that kind.

Q. Did defendant, Coats, report to you the fact of the smoke house being broken open the first time you were there after it occurred ?

To this question the District Attorney objected, on the ground that the evidence was improper, and the court so decided and sustained the objection; to which decision the counsel for defendant excepted.

I examined the smoke house, but I could not specify the time; my best recollection is, that it was the latter part of spring or forepart of summer; there were some appearances as if they had been trying to pry the door open ; there were some dents in the jamb, and some in the door.

Q. Did you see enough to satisfy you that the attempts had been successful? a

To this question the District Attorney objected, on the ground that it called for the opinion of the witness. The court sustained the objection, and decided the question to be improper; to which decision the counsel for the defendant excepted.

My best recollection is, that the dents were a little below the staple, between that and the bottom of the door; the appearance of the marks could be made in different ways, by prying or throwing something against the door.

On his cross-examination he further testified: The conditions upon which I consented that defendant should go to Lockport were, that he should leave suitable persons in charge in his absence; I do not know of my own knowledge that he went; I was at the poor house in June; my best recollection is that defendant was there then; I do not recollect making a personal agreement with Daines; the defendant never reported to me that any hams were missing from the poor house, besides those taken from the smoke house; he said that hams were taken out of the smoke house when it was broken open; I do not recollect the number he stated; my best recollection is that it was somewhere from six to twelve.

It was proved, in the course of the trial, that Daines had been convicted of petit larceny on the 12th May, 1843, before a court of Special Sessions, and punished by imprisonment in the county jail.

Witnesses were introduced to impeach and to sustain the general character of Daines.

Evidence was also given for and against the general good character of the prisoner.

After the evidence was closed, the court charged the jury, among other things, as follows:

To warrant a verdict of guilty, several propositions must be affirmatively established by the People.

1st. It must appear from the proof that Adam Clark was Superintendent of the Poor of the county of Yates, at the time the crime is charged to have been committed, and that as such superintendent he was an incorporated company, within the meaning of the statute defining the offence.

2d. That the defendant was the agent of Adam Clark, as such superintendent being such incorporated company.

These two propositions involve questions of law which have heretofore been disposed of by this court, and are not to be submitted to you, except as qualified by the court; and that the defendant may have the full benefit of our ruling upon these points, we now advise and instruct you, as a matter of law, that Adam Clark, as Superintendent of the Poor, was an incorporated company within the meaning of the statute, and that if you shall be satisfied from the evidence that the defendant was the keeper of the poor house under Clark, the superintendent, during the year 1856, then he was the agent of an incorporated company, within the meaning of this statute.

The question whether Clark was such superintendent during this period of time, does not seem to be disputed. His testimony upon this point seems to fully sustain the proposition, and we apprehend you will have but little doubt or trouble in determining this question.

The next proposition to be affirmatively established by the People’s proof, is this: Has the crime charged in the indictment been committed ?

This is strictly the first proposition of fact to be found by you, and doubtless it will not be the laboring one in your minds. It is, however, for you to say whether, under the evidence, this crime has been committed. If you shall find in the affirmative of this proposition, then you will next inquire whether these hams came into the possession of the defendant by virtue of his employment as the agent of Clark, the superintendent.

If the defendant was the keeper of the poor house, and you shall so find, then all such provisions ■ as were furnished by the superintendent for the maintenance of the paupers at the poor house, came into his possession, and in judgment of law were in his custody and under his control; but whether they were thus furnished, is a question of fact for your determination. If, then, these hams were provided by the superintendent for this purpose, and thereby came into the possession of the defendant as keeper, the question arises, did he afterwards embezzle and convert them to his own use? This, gentlemen, is the real laboring question in the case. John Daines is the principal witness, and without his testimony no conviction can be had. His position was subordinate to that of the defendant; his labors were principally confined to the farm, and that seems to have been the object and purpose for which he was hired. You will remember the testimony upon this point. He says that he spoke to Mr. Clark, the superintendent, about working there, and that Mr. Clark referred him to the defendant, and said that if they agreed he could go to work, and that subsequently he did go to work there. In a legal aspect, I think we mush regard the position and relation of Daines as subordinate to that of the defendant, the keeper. The defendant, occupying the position of keeper, had the authority to direct Daines as to his employment on the farm, and all directions given by him within the sphere of his duty, Daines, it would seem, was bound to obey. This seems to have been the manifest intention of the superintendent and keeper when they hired him.

We have said that Daines is the principal witness, and we now say that if he has testified truly, and you are satisfied that he has so testified, then we apprehend you will have but little difficulty in arriving at a satisfactory conclusion; and if, on the contrary, his statements are fabricated, or he is not entitled to credit, then your duty is very plain. You should render a verdict of not guilty.

It is claimed on the part of the defendant, that Daines is an accomplice, and standing in that relation he is not entitled to credit, and should not be believed, unless he is sustained by corroborating circumstances, proving or tending to prove the commission of the offence charged, and we are requested so to charge you. We are not so prepared to charge you, but propose to state to you such principles of law as we think applicable to this question..,

1st. If John Daines, when he brought those hams down from the garret (assuming that he did so), and put them in the wagon, and took them to Geneva, as stated by him, knew that the defendant was committing a crime, then he was a partdceps criminis, and ought to be corroborated; but whether he had such knowledge or not, we shall submit to you as a question of fact. If you shall find from the evidence that he did not thus act, then he does not stand in such a relation, and does not require the corroboration stated.

We understand the rule of law, as to the testimony of accomplices, to be this, and we so give the law to you, that while a conviction may be had upon the uncorroborated testimony of an accomplice, if the jury are fully convinced of its truth, yet, at the same time, it is our duty to advise you that the testimony of a person standing in this relation should be received with great caution. Assuming that Daines stands in this relation, it is your duty to examine his testimony with the utmost caution, and unless you are fully convinced that he has been truthful and given a correct statement, you should not render a verdict of guilty.

We have been requested to charge you that the sale of the hams at Geneva, as testified to by the witnesses, Page and Teal, and the circumstances attending that sale, do not corroborate the witness, Daines, as to any material fact estabhshing or tending to establish the guilt of the defendant; but we feel it to be the safer course to say to you that we cannot so advise you; nor will we advise you that there are such corroborating circumstances as to go to sustain Daines, upon the assumption that he is an accomplice. We prefer to leave the credibility of Daines to you upon the whole case as it appears before you in evidence, with the suggestions we now make.

It is claimed, on the part of the District Attorney, that Daines drove the poor house team to Geneva, and this is a fact which the jury have the right to take into consideration. It must be borne in mind, however, that this is not conceded by the defendant. It becomes, therefore, a question of fact for you to say whether he did drive the poor house team or not. That he was there with a team, and that he sold hams there, cannot -be nor has it been denied. Was it, then, the poor house team?_ If it was, could he have been absent with it for the length of time stated .by him, and the defendant be ignorant of the fact? The defendant was the custodian of the poor house team and property. They were under his direction and control, and whether, assuming that it was the poor house team, the witness, Daines, could probably be absent as stated, without the knowledge of the defendant, is submitted to your consideration. The same is true of the hams. If they were taken from the poor house, were they so taken with or without the knowledge of the defendant? These questions will pro bably arise in your minds when you retire to your room for deliberation, and are proper to be considered in canvassing the question of the guilt or innocence of the accused.

It'is claimed on the part of the prosecution, that Daines has been corroborated by the witness, Jackson. You will remember his testimony as to seeing hams in the garret the last days of May or the first of June. This is certainly a material point in this case, because, if there were no hams there at all during the time stated by Daines, then his story is a fabrication, and he is not entitled to credit; and whether or not there were hams there, it becomes very important for you to inquire. If Jackson is not mistaken as to this, then his testimony does corroborate Daines, in a material point, as to hams being in the garret. In this connection, however, you will consider the testimony of Mrs. Sarah Coats, Mrs. Simmons, Minor Coats, Charles Lawrence and Adam Clark. (The court here called the attention of the jury to the testimony of these witnesses.) We say, .then, the testimony of these witnesses is important and material, and as honest and intelligent men you are to pass upon it.

It is claimed, on the part of the defendant’s counsel, that Daines is not entitled to credit upon the whole case; that he has not only been contradicted by these witnesses as to the hams being in this room, and in other respects, but that he has been impeached by the testimony of witnesses upon the stand. You have heard the testimony of these witnesses as to the character of Daines, and the whole evidence is before you. You are the sole judges of credibility. * * *

We can only say, in conclusion, as we have stated before, this whole case hinges upon the testimony of John Daines. If he is to be believed, and you have no reasonable doubt as to the truth of his statements, then your duty, though painful, is plain; and if, on the contrary, you do not believe him, or if this testimony fails to convince your judgments of its truth, beyond a reasonable doubt, then your duty is equally plain— you should find a verdict of not guilty. The defendant, though indicted, stands before you with the presumption of innocence in his favor. This presumption must be overcome by proof, and this proof must be of such a character, and make such an impression on your minds, that you have, as we before stated, no reasonable doubt of his guilt. The defendant is entitled to and should have the benefit of all such doubts. The rule in this respect is different from what prevails in civil cases. In the latter, the jury may weigh the proofs, and may place their verdict upon the preponderating scale; but in criminal trials, where the benignity of the law presumes an accused party to be innocent until proved guilty, the evidence should generate a full belief of the facts charged to the exclusion of all reasonable doubt. It should establish the guilt so clearly, that a reasonable supposition of innocence would be wholly inconsistent with it.

The charge of the court being concluded, the counsel for the . defendant, in the presence of the jury, took the following several specific exceptions thereto:

To so much of the charge as instructed and advised the jury that Adam Clark, as Superintendent of the Poor, was an incorporated company within the meaning of the statute, and that if you shall be satisfied from the evidence that the defendant was the keeper of the poor house under Clark, the superintendent, during the year 1856, then he was the agent of an incorporated company, within the meaning of the statute.”

And to so much of the charge as instructed and advised the jury concerning the provisions furnished by the superintendent for the maintenance of the paupers, and the possession of the same by the keeper, in these words: “ And in judgment of law, were in his custody and under his control.”

And to so much of the charge as instructed and advised the jury concerning the same witness, Baines, that “in a legal aspect, I think we must regard the position and relation of Baines as subordinate to that of the defendant, the keeper.” And to so much of the charge as instructed and advised the jury in these words: “ The defendant, occupying the position of keeper, had authority to direct Baines as to his employment on the farm, and all directions given by him, within the sphere of his duty, Baines, it would seem, was bound to obey.”

And to so much of the charge as instructed and advised the jury in these words:

“ 1st. If John Baines, when he brought those hams down from the garret (assuming that he did so), and put them into the wagon, and took them to Geneva, as stated by him, knew that the defendant was committing a crime, then he was a particeps criminis, and ought to be corroborated; but whether he had such knowledge or not, we shall submit to you as a question of fact. If you shall find from the evidence that he did not thus act, then he does not stand in such a relation, and does not require the corroboration stated.” •

And to so much of the charge as instructed and advised the jury in these words: “We understand the rule of law as to the testimony of accomplices, to be this, and we so give the law to you, that while a conviction may be had upon the uncorroborated testimony of an accomplice, if the jury are fully convinced of its truth, yet, at the same time, it is our duty to advise you that the testimony of a person standing in this relation, should be received with great caution.”

The defendant’s counsel also requested the said court to charge the jury, amongst other things, as follows:

1. That there can be no conviction of an accused party merely upon the uncorroborated testimony of an accomplice.

2. That the witness, John Daines, is, by his own admission and the proofs in the case, an accomplice in the offence charged.

3. That the witness, Daines, is not corroborated in any material point as to the commission by the defendant of the offence charged.

4. That' the fact of being an accomplice is of itself an impeachment of the witness, Daines.

5. That no evidence of previous good character can restore the credit of an accomplice standing thus self-impeached.

6. That proof of previous good character of the accused is a sufficient defence in a doubtful case.

The court refused to charge the jury as requested, on each or either of them of the several propositions thus presented and as requested, to which several refusals of the said court, and each of them, so to charge as requested, the defendant’s counsel specifically excepted.

The jury found the prisoner guilty of embezzlement, under ’ the first count of the indictment, and not guilty as to the larceny charged in the second count.

The defendant, by his counsel, thereupon moved 4he said court in arrest of judgment, upon the following grounds:

I. The first count of the indictment is bad for duplicity.

1. Because it contains twenty-seven different and distinct articles which might be the subject of embezzlement, enumerated as having been embezzled, and,, from their nature, impossible to have been embezzled at one and the same time; and

2. Because it contains different offences which, by statute, must receive different degrees of punishment.

II. The verdict is irregular, insufficient and uncertain.

1. Because it does not specify of which offence the defendant is convicted, nor the thing embezzled or its value; and

2. Because it does not acquit the defendant of those offences charged in the first count of which he is found guilty, or on which no verdict of guilty is found.

The motion in arrest of judgment was denied by the court, to which the prisoner’s counsel excepted.

The prisoner was sentenced to be imprisoned in the State Prison, at hard labor, for two years.

A bill of exceptions having been settled, the cause was removed by writ of error to this court.

The cause was argued by

D. J. Sunderlin, for the plaintiff in error, and

H. M. Stewart (District Attorney), for the People.

The Supreme Court, after advisement, decided that no error had been committed, and affirmed the judgment of the Court of Sessions.

Judgment affirmed.


source: Caselaw Access Project

author: Balcom, J. Mason, J.

license: Public Domain

text:
    Supreme Court. Broome General Term,
    May, 1860.
    Mason, Balcom,, Gampbdl and Parker, Justices.
    Alfred Birge, plaintiff in error, v. The People, defendants in error.
    The judges of a Court of Oyer andtTerminer have -no power to settle and sign a bill of exceptions after a final adjournment of such court.
    Where, after the adjournment of a Court of Oyer and Terminer, a bill of exceptions in a criminal case which had been tried at such court, was settled by the justice of the Supreme Court, who had presided on the trial, and was afterward signed by such justice, and also by the two justices of the Sessions, who sat with him on the trial, and- was filed more .than ten days after such adjournment, and was afterward returned as part of the record on a writ of error, this court, on motion by the District Attorney, ordered the bill of exceptions to be struck from the record.
    Motion by the District Attorney of Otsego county, to dismiss writ of error, and strike the bill of exceptions from, the return or record in this cause. The prisoner was convicted of forgery in the second degree, and sentenced to the state prison at Auburn, for the term of six years, at a Court of Oyer and Terminer, held in Otsego county, on the first day .of July, 1859. Exceptions were taken on the trial by the prisoner’s counsel, but were not settled or signed during the sitting of the court. After the court was adjourned sine die, the prisoner’s counsel made a bill of' exceptions, .and served a copy on the District Attorney, who proposed amendments thereto, but under a protest that the right to make a bill of exceptions, or have the same settled, was gone when the court adjourned. The exceptions were afterward settled by the justice of the Supreme Court, who presided on the trial; and the bill was signed by him, and the two j ustices of the Sessions, who formed part of the court on the trial; but the county judge, who was a member of the Oyer and Terminer, and on .the bench during the trial, refused to sign the bill. The District Attorney objected to the bill being settled or signed out of court, and the same was settled and signed under his protest. The bill was filed, and a writ of error was issued out of this court to the Oyer and Terminer; and the writ and a copy of the record, including the bill of exceptions, was returned to this court, and then the above mentioned motion was made.

      A. Becker, for plaintiff in error.

      E. Countryman (District Attorney), for defendants in error.
   Balcom, J.

I did not understand when I settled the bill of exceptions in this case, that any objection was made on the ground that I should go to Cooperstown and have the other members of the Oyer and Terminer present on the settlement of the bill. I supposed the only ground of objection was, that the prisoner’s counsel had no right to make a bill of exceptions, and have the same settled, after the adjournment of the Oyer and Terminer without day; and I shall examine the questions now raised, on the supposition that this was the only objection taken to the Settlement or signing of the bill.

If there was no statute or rulé authorizing the settlement ■ of cases and exceptions in civil actions, subsequent to the adjournment of the Circuit Court, the same could not be settled after the final adjournment of that court, unless otherwise ordered. The law is the same in regard to criminal actions ; and there is no statute or rule that authorizes the settlement of bills of exceptions in such actions after the final adjournment of the courts wherein they aré tried. The practice always has been, so far as my knowledge extends, to have bills of exceptions settled and signed in criminal cases before the final adjournment of the courts in which they are tried.

The statute authorizing exceptions in criminal cases is as follows : “ On the trial of any indictment, exceptions to any decision of the. court may be made by the defendant, in the same cases and manner provided by law in civil cases; and a bill thereof shall be settled, signed and sealed, and shall be filed with the clerk of the court, and returned upoú a writ of error, as now authorized in personal actions, or upon a certiorari, as hereinafter provided, and the same proceedings may be had to compel the signing and sealing of such bill and the return thereof” (2 R. S, 786, § 21.)

This statute does not require the prisoner’s counsel to serve a copy of his proposed bill of exceptions on the District Attorney, or authorize the latter to serve amendments thereto. It seems to contemplate that the bill shall be settled and signed in the presence of the prisoner, or his counsel, and the District Attorney, at the conclusion of the trial, or at least before the final adjournment of the court. What is said in section 23 (2 R. S., 736), in regard to staying judgment on the indictment, supports this conclusion; for there can be no stay of judgment until the bill of exceptions is settled and filed with the clerk. And when judgment is stayed, it is “ the duty of the District Attorney of the county immediately to sue out a writ of certiorari, returnable in the Supreme Court.” (2 R. S., 736, § 27.) Provision is also made when the prisoner sues out a writ of error for having the case heard as soon as practicable. (2 R. S., 740 and 741.) All the statutes applicable to the review of criminal cases denote speed; delays are guarded against, and speedy justice seems to have been contemplated by the legislature.

If bills of exceptions in criminal cases can be made and settled after the final adjournments of the courts wherein they are tried, then the different members of such courts must convene at the court house where the trials have been had, or at some other place, for the settlement of each bill; for it seems the presiding judge cannot settle such bills alone; the other members-of such courts have a voice in the business. (See Clarke v. Dutcher, 19 Johns. R., 246.) If the members of such courts must reassemble for such purposes, ’who shall fix the time and place for them to meet or notify each one to attend ? The legislature has made no provision on the subject, and there is no practice applicable to the question. .

For the foregoing reasons, I am of the opinion the judges of a Court of Oyer and Terminer are hot authorized to settle a bill of exceptions after the final adjournment of such court. -This conclusion is in harmony with the decision of this court, made at a general term in the first district, in The People v. Appo (18 How. Pr. R., 350), where it was held that all the powers of a Court of Oyer and Terminer terminate when it adjourns sine die.

It follows that the bill of exceptions in this case could not be settled and signed after the final adjournment of the court wherein the exceptions were taken, and that the bill is improperly in the return to the writ of error, and must be struck out. The writ' of error, however, cannot be dismissed; for it is a writ of right. (2 R. S., 740, § 15.) The prisoner has the right "to have it retained, although there will be no bill of exceptions in the record.

I will remark, further, that I do not regret, coming to the conclusion in this case, that the bill of exceptions must be expunged from the record, for the reason that no intimation was made, prior to the final adjournment of the Oyer and Terminer, at which the prisoner was convicted, of any desire or intention to make a bill of exceptions, and I am well satisfied the prisoner was guilty of the crime of which he was convicted.

Mason, J.

was improvidently allowed, and the bill illegally settled. The bill of exceptions must be settled by the Court of Oyer and Terminer as a court. It cannot be settled by the circuit judge who presides in the Oyer and Terminer. And if we assume that the bill can be settled by the Court of Oyer and Terminer, convened in vacation (which I very much doubt), it does not help the case, for the bill was settled by the presiding judge alone in the absence of his associates, and was then presented to the other justices, and signed by them. This was clearly unauthorized. The principle settled in Clarke v. Dutcher (19 Johns. R., 236), is decisive of this question. In this case, the bill of exceptions was presented to the judges of the Court of Common Pleas, individually, out of court, and was signed and sealed by them separately, and this court held the bill of exceptions irregular, and that it should be settled by all the judges, sitting together as a court. The court say, “separately and individually, they cannot act judicially as a court. This it seems to me is too plain a proposition to require the citation of authorities to establish.” The doctrine of the common law is, that when, a power, authority or duty involving the exercise of judgment and discretion, is confided by law, to three or more persons, or whenever three or more officers are authorized, or required by law to perform any act, such act may be done, and such power, authority or duty may be exercised and performed by a majority of such persohs or officers, upon a meeting, and consultation of all. All must meet and confer, or the act is invalid (4 Denio R., 125; 21 Wend. R, 211; 23 Id., 324; Cow. R., 328; 7 Id., 526; 3 Denio R., 252, 253), and this is statute law with us in. this State. (2 R. S., 555, § 27; see, also, Keeler, v. Frost & Worden, 22 Barb. R., 400.) The common law practice required the bill of exceptions to be presented during the term at which the trial took place. (9 Johns. R., 346.) There is nothing in the statute which would interfere with the elementary common law doctrine, that the court as a court must settle the bill of exceptions. It remains to consider the question whether, under the statute, the judges of the Oyer and .Terminer can convene as a court in vacation, and settle the bill. The statute is as follows: “ On the trial of any indictment, exceptions to any decision of the court, may be made by the defendant in the same cases and manner provided by law in' civil cases; and a bill thereof shall be settled, signed and sealed, and shall, be filed with the clerk of the court, and returned upon a writ of error, as now authorized in personal actions, or upon certiorari, as hereinafter provided, and the same proceedings may be had to compel the signing and sealing such bill, and the return thereof. (2 B. jS., 736, § 21.) There is nothing in this statute determining the manner in which the bill of exceptions shall be settled by the court. The first paragraph declares that'exceptions may be made by the defendant in the same cases and manner provided by law in civil cases. This refers solely to the cases-in which the defendant may take exceptions, and the manner in which it shall be done upon the trial, and has np reference to the settlement and sealing the bill. The next paragraph declares that the bill shall be settled, signed and sealed, and filed with the clerk, and the section is silent as to how and when it shall be settled, and the next paragraph declares that the bill shall be returned upon a writ of error, as now authorized in personal actions, or upon a certiorari, as hereinafter provided. This certainly has no reference to the mode and manner of settling the bill of exceptions. I am of opinion, for the reasons stated, that the bill of exceptions upon criminal trials are not to be settled as in civil actions. That the statutes in regard to bills of exceptions in civil actions have no application to the manner of drafting the bill of exceptions, or of the settlement thereof.

But suppose we are wrong in this construction of the statute, and that the statute in regard to exceptions in civil actions is to control; I do not see how it can help the case in the least. The statute provides that in all cases where exceptions are allowed by law on the trial of any cause, either party may make such exception at the time the decision complained of is made, or if such exception be made to the charge given to the jury, it shall be made before the jury shall have delivered their verdict (2 R. S., 423, § 74); and the next section provides that such exception shall be in writing, but that the court may allow such time as shall be deemed reasonable to settle and reduce the same to form. (§ 75.) The court made no order, in the case before us, giving any such time, and there is no time in such a case, unless the rules of the Supreme Court in civil actions are to be deemed to apply. The rule of the court was, at the time of the passage of this statute, that a case or bill of exceptions must be made and served within four days, while the present rule gives ten days. The question arises, then, whether the four day or the ten day rule shall control. . If the change of the rules of the court in civil actions controls the criminal practice, then defendant had ten days, and served his bill in time. But it may well be doubted whether such is the rule. If the new rule is to control,. I do not see how it can relieve the defendant from the effect of the present rule 37, which declares that when a party makes exceptions, he shall procure the same to be filed within ten days after the same shall be settled, or he shall be deemed to have abandoned the exceptions. This bill of exceptions was not filed until several months after the bill was settled, and the defendant must therefore be deemed to have abandoned his exceptions.

My own opinion of the case is, that the exceptions must be settled by the court that tries the indictment, and before it adjourns, for the reason that the Court of Oyer and Terminer is not a continuing court, and that all its powers as a court terminate with the adjournment. This was expressly held, in the general term in the first district, in the case of The People v. Appo (18 How. Pr. R., 350); and the practice of this court is, where a bill of exceptions is settled and signed in this irregular way, to set aside the bill as improvidently signed. (Shepherd v. While, 3 Cow. R., 32.) I advise that the bill of exceptions in this case be set aside and the writ of error quashed, for the reasons stated.

Ordered that the bill of exceptions be struck from the record.


author: By the Court, Knox, J. Lord Kenton, Ch. J.: Lawrence, J.

text:
    Supbeme Court. Monroe General Term,
    September, 1860.

      Smith, Johnson and Knox, Justices.
    James L. Munson and al., plaintiffs in error, v. The People, defendants in error.
    Eorm of an indictment for nuisance, in erecting and maintaining a dam, by which. lands were overflowed to the injury of the public health.
    Where a defendant is found guilty on an indictment for a nuisance, in erecting and maintaining a dam, and there is no averment in the indictment of a continuance of the nuisance, the court is not authorized to render a judgment for the abatement of the nuisance. It can only inflict a personal punishment upon the defendant. And where a judgment of abatement had been improperly rendered by the Court of Oyer and Terminer, in such a case, the Su- - preme Court, on writ of error, reversed the judgment and remitted the proceedings to the Oyer and Terminer, that a proper sentence might be passed.
    This case came up on writ of error to the Court of Oyer and Terminer of Ontario county. By the return to the writ, it appeared an indictment had been found against the plaintiffs in error in the following words:

      State of New York, Ontario County, ss:

    The jurors for the People of the State of New York and for the body of the county, to wit: Henry Smith, &c., &c., being sworn and charged to inquire for the People of the said State, and for the body of the county aforesaid, upon their oath, present, that James L. Munson and Jacob Ansberger, late of the town of Hopewell in the county aforesaid, on the first day of June, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms, at the town of Hopewell in the county aforesaid, being possessed of a certain min and mill-dam, which said mill and mill-dam were built, erected and maintained by the said James L. Munson and Jacob Ansberger, across a certain outlet and common watercourse called “ Canandaigua Outlet,” near a certain place called “ Canandaigua,” in said county, which continually and during said time, and at all times of the year, hath run and been used and accustomed, and of right ought, without any obstruction or impediment, to run out of a certain lake called “ Canandaigua Lake,” situate and being in said county within its natural banks, through the lands and premises of divers good and lawful citizens of the State of New York.
    . And the jurors aforesaid, upon their oath aforesaid, do further present that the said James L. Munson and Jacob Ansberger, being so possessed of a certain mill and mill-dam with their appurtenances, situate near and adjacent to a certain common highway and public road, and the dwelling houses of divers of the good citizens of the State of New York, at the town and in the county aforesaid, on the first day of June in the year of our Lord one thousand eight hundred and fifty-seven, and on divers days before and since that day, by so building, erecting and maintaining the said mill, and the said mill-dam being so as aforesaid built, erected and maintained across the said outlet and common watercourse, as aforesaid, did injuriously, unlawfully and maliciously obstruct the water in its said ancient course, so that it did net run as it was used and accustomed to do, but by means thereof and.thereby, injuriously, unlawfully and maliciously, did permit and cause the said water of the said mill-dam to overflow the natural banks of the said ancient and common watercourse, upon either side and on both sides of the said watercourse, and to flow back upon to a great distance, to wit: for the distance of five miles on either side and on both sides of the said watercourse, and overflow and cover and submerge the lands of the good and lawful citizens of the State of New York, there lying and situate adjacent thereto, on either side and on both sides of the said watercourse, so that by reason thereof the same could not be cultivated, by means whereof the mud, wood, leaves, brush, and animal and vegetable substances, and other filth, collected and brought down the channel of the paid watercourse, and from the waters of the said lake, by the natural flowing of the waters, then became and were, during all the time aforesaid, collected and accumulated in large quantities in the channel of the said watercourse, by the natural flowing of the waters, and on the lands and premises overflowed, covered and submerged, as aforesaid; and the said mud, 'wood,- leaves, brush,- and animal and. vegetable substances, and other filth so there collected and brought down the channel of the said watercourse, and by the waters of the said lake, became and were, and still are very offensive, and the waters became and are corrupted, and by means whereof and frojn the action of the same upon the said mud, wood, leaves, brush, and the animal and vegetable substances, and other filth brought down the channel of the said watercourse, and .upon the vegetable substances then growing upon the margin of the said watercourse, and upon the said lands overflowed and submerged as aforesaid, and by the alternate rise and fall of the water in the said pond and upon the said adjacent lands, ■ the said mud, wood, leaves, brush, and the animal and vegetable substances and water, so as aforesaid collected, became stagnant, putrid and noxious, from whence unwholesome damps, fogs and smells did arise, whereby the air was greatly corrupted and infected, to the great damage and common nuisance of all the good and lawful citizens of the State of New York dwelling thereabouts, and all others passing and repassing on the said highway and near the said highway and near the said stagnant waters, and against the form of the statute in such cases made and provided, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid,- do further present, that the said James L. Munson and Jacob Ansberger, at the town aforesaid, and in the county aforesaid,' on the first day of June, in the year of our Lord one thousand eight' hundred and fifty-seven, being possessed of a certain mill and mill-dam, which said mill and mill-dam were built, erected and maintained across a certain ancient and common watercourse called “ Canandaigua Outlet,” near a certain place called “ Canandaigua,” in said county, which continually and during the said time, and at all times of the year, hath run and been used to and accustomed and of right ought, without any obstruction or impediment, to run out of a certain lake called Canandaigua lake, situate and being in said county aforesaid, within its natural banks, through the lands and premises of divers good and lawful citizens of the State of Hew York..
    And the jurors. aforesaid, upon their, oath aforesaid, do further present, that the said James L. Munson and Jacob Ansberger, being so possessed of a certain .mill and mill-dam, with their appurtenances, situated near and. adjacent to a certain common highway and public road, and the dwelling houses of divers of the good • citizens' of the State of Hew York, at the town and in the county aforesaid, on the first day of June, in the year of our Lord one thousand eight hundred and fifty-seven, and on divers other days, before and since that day, unlawfully, willfully and maliciously, did raise, elevate and increase the height of the said dam, so as aforesaid built, erected and maintained across the said ancient watercourse, by placing, erecting, fixing and building upon the top thereof, certain timbers, boards, gravel, eaith and stones, by reason of which and whereby the said dam was unlawfully, willfully and maliciously raised, elevated and erected above the ancient level of the said dam, to a great height, and extended on the top of the said dam to a'great distance, to wit: across the said ancient watercourse.
    And the jurors aforesaid, upon their path aforesaid, do further present, that the said James L. Munson and Jacob Ansberger, from the said first day of June, in' the year one thousand eight hundred and fifty-seven, and before and since that time until the taking of this inquisition, unlawfully, willfully, knowingly and injuriously, did continue, and respectively doth now unlawfully, willfully, knowingly and injuriously continue the said unlawful and injurious elevation and height of the said dam across the ancient and common watercourse as aforesaid, by means whereof and whereby, the water flowing in the said Canandaigua outlet from the rains and from the Canandaigua lake, was unlawfully, willfully, knowingly and injuriously stopped, dammed up and obstructed in its sa,id ancient course, so that it did not run as it used and was accustomed to do, but by means thereof and thereby, the said James L. Munson and Jacob Ansberger, did permit and cause the water of the said mill-dam to overflow the natural banks of the said ancient and common watercourse, upon either side and on both sides of the said watercourse, and to flow back to a great distance, to wit: for the distance of five miles on either side and on both sides of the said watercourse, upon and overflow, cover and submerge the lands of the good and lawful citizens of the State of blew York, there lying and situate adjacent thereto, on either side and on both sides of the said watercourse, so that by reason thereof the same could not be cultivated, and by means whereof the mud, wood, leaves, brush, and animal and vegetable substances, and other filth, collected and brought down the channel of the said watercourse, and from the waters of the said lake, by the natural flowing of the waters, they became and were, during all the time aforesaid, collected and concentrated in large quantities in the channel of the said watercourse, by the natural flowing of the waters, and upon the lands and premises overflowed, covered and submerged, as aforesaid; and the said mud, wood, leaves, brush, and animal and vegetable substances, and other filth so there collected and brought down the channel of the said watercourse, and by the waters of the said lake, became and were, and still are, very offensive, and the waters became and are corrupted; and by means whereof and from the action of the sun upon the said mud, wood, leaves, brush, and the animal and vegetable substances, and other filth collected and brought down the channel of the said watercourse, and the vegetable substances then growing upon the margin of the said watercourse, and upon the said land so overflowed and submerged, and by the alternate rise and fall of the water in the said pond and upon the said adjacent lands, the said' mud, wood, leaves, brush, and the animal and vegetable substances and water, so as aforesaid collected, became stagnant, putrid and noxious, from whence unwholesome damps, fogs and smells did arise, whereby the air was greatly infected, to the great damage and common nuisance of all the good and lawful citizens of the State of New York dwelling thereabout, and all others passing and repassing on the said highway and near the said stagnant waters, and against the form of the statute in such cases made and provided, and against the peace of the People of the State of New York and their dignity.
    EDWIN HICKS, District Attorney.

    The defendants pleaded not guilty, and the issue came on to be tried before Hon. E. Darwin Smith, justice of the Supreme Court, and two associate justices, on the 15th November, 1859. After the testimony was closed, the presiding judge explained to the jury that the first count was for erecting, maintaining and continuing a dam which «obstructed the flow of the water in the outlet, and thereby created alleged nuisance.
    That the second count assumed the existence of a dam, and was for raising the height of the dam, and thereby creating the difficulty complained of.
    The judge further instructed the jury .that the evidence did not warrant them in convicting the defendants under the second count in the indictrhent, and that their deliberations were to be confined to the evidence applicable to the first count of the indictment.
    The jury, after being charged fully by the court upon the questions involved in the case, retired for consultation, and afterward rendered a verdict by which they found the defendants guilty.
    Upon this verdict, judgment was then entered in the following words:
    “Judgment ordered, that the defendants abate the nuisance at their own cost, within sixty days; and that, in default thereof, process issue to the sheriff of the county, commanding him to abate the nuisance at the cost of the defendants.”

      H. O. Chesebro, for the plaintiffs in error,
    claimed that the judgment rendered by the Court of Oyer and Terminer upon the conviction, was unauthorized by the conviction and erroneons ; that there being no averment in the first count that the defendants continued to maintain the dam at the time of the indictment, no judgment of abatement could be rendered; citing 1 Chitty’s Cr. Law, 716, marg.; 2 Id., 607, note a, 610 to 618; 3 Arch. Cr. Pl., 609, 651, 6th ed.; 12 Petersdorff Abr., 795, marg.; Wharton’s Cr. Law, § 2368; 1 Russell on Crimes, 331, marg.; 4 Black. Com., 168, note 12; King V. Stead, 8 Term R., 142; The King v. Pappineaux, 2 Strange, 686; 7 Term R., 467; 10 Foster R., 279; 21 Maine R., 84; 16 Ala. R., 144; 16 Conn. R., 54.

      Wm. H. Smith (District Attorney), for defendants in error.
   By the Court, Knox, J.

At the Oyer and Terminer, the jury were instructed by the presiding justice, that the evidence did not warrant a conviction upon the second count in the indictment, which was for a nuisance. A person may be indicted for causing, erecting, and maintaining a nuisance; and he may also be indicted for contimdng a nuisance, created and main- ■ tained by another, or which was created by himself. They are distinct offenses. It evidently would not be a bar to an indictment for continuing a nuisance, that the party had been convicted of electing and maintaining the same' nuisance. (The King v. Stead, 8 Durn. & Fast, 142.) In Staple v. Spring and al. (10 Mass. R., 75),- Sewall, J., says: “ An action of the case lies against him who erects a nuisance, and against him who continues a nuisance erected by another. The occupant as well as the owner of the place, suppose a house or mill, erected to the nuisance of another, is liable in the action of the case, which -may be brought by the successive owners and occupants of the place where the injury is sustained. In short, the continuance, and every use of that which is, in its erection and usé, a nuisance, is á new nuisance, for which the party injured has a remedy for his damages. And although after judgment and damages recovered in an action for erecting a nuisance, another action is not to be maintained for the erection, yet another action will lie for the continuance of the same , nuisance.”

The same has been held in this State. (2 Kern. R., 492 ; 29 Barb. R., 294; see also Bouvier Inst., 2d vol., 577.) These cases are cited, and many more might be, to show that, both in criminal and civil actions, the distinction above mentioned is well recognized. Indeed, no authorities are requisite, for it exists in the nature of things.

The. count, in the indictment upon which the defendants were convicted, being the first, was for having erected and maintained a nuisance.- There is no averment that it continued down to the time of the indictment. For aught that appears in the count, the nuisance had ceased to exist when the indictment was found, and that the only object of the people was to punish the defendants for what they had done, and not for what they continued to do.

The averments in regard to the erection of the nuisance are all in the past tense.

The judgment upon the verdict was, “That the-defendants abate the nuisance, at their own cost, within sixty days, and that, in default thereof, process issue to the sheriff of the county, commanding him to abate the nuisance at the cost of the defendants.”

The defendants allege that this judgment was unauthorized by the conviction, and erroneous. I am of that opinion. Suppose the fact to be, as it may be, that when the indictment. was found, the dam had -been pulled down, and the nuisance abated? Obviously, the sheriff, with the precept to abate what'did not exist, would be sent on a “ fool’s errand,” and the defendants would go wholly unpunished. It might be true in a case where a person was indicted for continuing a nuisance, that before the trial and conviction, the nuisance had been abated, so that a mere judgment to abate would not punish the defendant. There would be, however, congruity upon the record; besides, in such a case, upon proof that the nuisance had been abated, the court might order the defendants to be fined or" imprisoned. Here, then, is manifest incongruity.

The object of the prosecution is to remove the nuisance, and to that end alone the sentence is in general directed.

It is, therefore, usual, when the nuisance in the proceedings is stated as continuing, in addition to a fine, to order the defendant, at his own costs, to abate the nuisance.” (2 Strange, 686; Black. Com.,vol. 2, Book 4, p. 167; Sharswood’s ed. in note.)

The case before cited from Term Reports was this: William and John Stead were indicted for erecting a.wall across a highway, and found guilty at the Quarter Sessions, which directed a precept to the sheriff to abate the nuisance, and afterward the same court adjudged that the defendants be fined six pence each for said nuisance and be discharged. A writ of error was brought, and it was assigned for error that the court-below had not ordered that the nuisance be abated. France urged that such a judgment was proper, though the indictment did not charge the nuisance as continuing. Lambe, contra, was stopped by the court.

Lord Kenton, Ch. J.:

“ When this case came before -us on the former occasion, we intimated a strong opinion that the judgment given below was not erroneous, and I am now clearly of the same opinion. When a defendant is indicted for an existing nuisance, it is usual to state the nuisance and its continuance down to the time of taking the inquisition; it was so stated in B. v. Pappineau, et adhuc existit; and, in such cases, the judgment should be that the nuisance be abated. But, in this case, it does not appear in the indictment that the nuisance was then in existence; and it would be absurd to give judgment to abate a supposed nuisance which does not exist. If, however, the nuisance still continue, the defendant may be again indicted for continuing it.

But if it be, it seems extraordinary that the prosecutor did not adopt the usual form of indictment. There is something of novelty indeed in another part of these proceedings, for it appears, that before judgment was given at the sessions, a precept was issued to the sheriff in the nature of an execution ; then afterward a proper judgment was given, adapted to the circumstances of the case. The defendants having erected a nuisance, were fined by the court, but as there was no existing nuisance (for none such then appeared), of course no judgment was given to abate it.

Grose, J., of the same opinion.

Lawrence, J.

What was said by Mr. J. Reynolds in R. v. Pappineau is decisive, “ that every judgment should be adapted to the nature of the case; when the erection is the nuisance, there ought to -be a demolition ; that is, where the nuisance exists at the time of the judgment. But in this case, the charge only is, that the defendant at a time which was past, had erected a wall across the highway, which was a nuisance; but to adjudge that a nuisance which does not exist, should be abated, would not be a judgment adapted to the nature of the case. With respect to proceedings on writs of assize of nuisance, &c., those are cases in which from the nature of the proceedings the nuisance is supposed still to continue.”

It is to be regretted that the indictment did not contain a count for continuing the nuisance, if such were the fact, because the view here taken may render it necessary, perhaps, to have another trial on a new indictment, alleging such offense. But on another trial, not only the rights of the public may be protected, but the property of the defendants saved from that total destruction, with which it is threatened by the judgment pronounced in this case. A mill-dam, owned by the defendants, was the nuisance. Whether its demolition is necessary, to get rid of the nuisance, is Very doubtful, on the evidence. It would seem, rather, that it could be kept up at some height, so as to furnish water to the defendant’s mill, without producing the bad effects complained of. Were the sheriff to execute the precept, he might find it very difficult to decide how much, if. any, of the darn, he might allow to remain. But on a new trial, if the defendants shall be convicted of continuing the nuisance, the judgment may be, that only so much of the dam as causes the nuisance be prostrated.

This may be determined by the jury upon the evidence given upon that question. See 1 Russell on Crimes, p. 331.

“ As the Oyer and Terminer isA permanent and continuous court, so that each session of such court, in any county, instead of being a distinct and independent court, the existence of which commences the first, and terminates with the last day of the session, is a mere term of the Oyer and Terminer for that county” (Quimbo Appo v. The People, 20 N. Y. R., p. 531, Selden, J.), the proper judgment at the next session of the court may be pronounced upon the conviction under this indictment.

The judgment of the Oyer and Terminer must therefore be reversed, and proceedings remitted to pass proper sentence.


author: Harris, J.

text:
    Albany Oyer and Terminer.
    October, 1857.
    Before Harris, Justice of the Supreme Court, and William R. Tanner and Parley Fisher, Associate Justices.
    The People v. John Fitzpatrick.
    On the trial of an indictment for a personal injury by the husband on his wife, the prosecution cannot be compelled to call the prosecutrix as a witness ; jtiut as the wife is a competent witness for the prosecution, she may be called as a witness in behalf of her husband, where the prosecution fails or neglects to call her. .
    The defendant was indicted for an assault and battery upon his wife, Sarah Fitzpatrick, with intent to kill her. The evidence showed that the defendant and his wife resided in Lydius street, in the city of Albany; and that on the night of the fourth of July, 1857, after considerable altercation and contention, the defendant was seen, by persons standing on the street, to seize his wife and throw her from the third story window of their residence, from whence she fell on the sidewalk, receiving several terrible wounds. The defendant contended that his wife was intoxicated at the time, and that she voluntarily threw herself out of the window. Ho one was present in the room when the transaction took place, except the prisoner and his wife.
    The prosecution having called a large number of witnesses as to the transaction, rested, without calling Sarah Fitzpatrick, the wife of the prisoner, who was in the court and in the full possession of her senses.

      L. D. Holstein, for the defendant,
    thereupon moved the court for an order compelling the prosecution to call Sarah Fitzpatrick as a witness, thus enabling the defendant to avail himself of the benefit of a' cross-examination, and cited in support of the. motion, the case of Regina v. Holden (8 Carrington & Payne, 606; 34 English Com. Law Reports, 917). The counsel for the defendant also contended, that in case such order was refused, the defendant was entitled to the benefit of his wife’s testimony, and to call her as a witness on his behalf, on the ground that she was a competent witness against her husband and therefore a competent witness in his favor. In support of this proposition the counsel cited The State v. Neil (6 Alabama Reports, 685).

      S. G. Courtney (District Attorney), for the people.
   Harris, J.

It is true that in England, where private counsel conduct the prosecution of criminal trials, there are cases to be found in which the crown has been compelled to call witnesses whose names appeared on the back of the indictment, or who were shown to have been present at the commission of the offense charged. But in this country no such rule prevails. Here the prosecution is conducted by sworn officers of the State, and the courts will not interfere in their management of the cases presented, upon the presumption that no wrong will be perpetrated by a public officer. We therefore deny the motion of the counsel for the prisoner, to compel the District Attorney to call Mrs. Fitzpatrick as a witness.

We have fully considered the other branch of the proposition and the authority cited by the prisoner’s counsel, and find that the case in Alabama Reports is well grounded upon principle. ■ We, therefore, decide that the wife of the prisoner is a competent witness for her husband, and may be called on his behalf.

Sarah Fitzpatrick was then called as a witness for her husband, and testified on his behalf.


author: By the Court, Comstock, J.

text:
    Court of Appeals. Albany,
    December, 1859.

      Johnson, Comstock, Selden, Denio, Strong, Allen, Gray and, Grover, Judges.
    The People, plaintiffs in error, v. Lewis Dibble, defendant in error.
    On the trial of an indictment for passing a counterfeit bank note, it is not competent for the prosecution to prove that, two or three days after the transaction in question, the prisoner passed two other counterfeit bank notes to other persons—the said notes not purporting to have been issued by the same bank as the one for passing which this indictment was found, and the uttering of them, being in no way connected with that act.
    In this case the prisoner was tried and convicted, before the Otsego County Sessions, of forgery in the second degree, for passing to one Newman a counterfeit bank bill, on “ the West-field Bank.” On writ of error to the Supreme Court, the judgment was reversed and a new trial ordered. The case in the Supreme Court is reported in 4 Park. Cr. R., 199.
    The cause.was removed to this court, by writ of error sued out in behalf of the People.
    It was proved on the trial, that the prisoner passed the counterfeit five dollar note described in the indictment to Samuel S. Newman, on the 29th of November, 1858, in payment for cutting a pair of pantaloons, and received from Newman $4.81 in change.
    The court then permitted the prosecution to prove, by Smith Kenyon, against the objection of the prisoner’s counsel, that the prisoner, a day or two after the passing of such note to Newman, on. his way from his residence to Catskill, stopped at Stevens’ tavern, and there bought a ring from a peddler, and gave him a five dollar bill to pay for it. A bystander said the bill was not good, but the peddler said it was good, and took it and gave the change to the prisoner — the price of the ring being two or three dollars. • That farther on his journey, at Steele’s tavern, the prisoner purchased a ring from another peddler for two dollars, and gave the peddler a five dollar bill in payment for it, and received small bills and change for the balance, after deducting the price of the ring. That the last mentioned peddler afterward saw the prisoner at another place, and told him the bill he let him have was bad, and that a postmaster had told him so. That the prisoner thereupon took it back, said “ he took it for good money” and returned the ring and bills and change to the peddler, and received from him the five dollar bill.
    The witness could not tell the name of the bank by which the bills passed by the prisoner to the peddlers purported to have been issued. The bills were not produced, nor was ány evidence given, except as above mentioned, to show that they were counterfeit.
    The prisoner’s counsel then moved the court to strike out all the evidence relating to these two bills passed to the peddlers, as irrelevant and incompetent, for the reason that it was not proved by what bank they purported to have been issued, or that they were counterfeit, and upon the ground that the bills were not produced. The court denied the motion, and the prisoner’s counsel excepted.
    It was also proved that two days before the bill in question was passed, the prisoner said he had no money.

      L. L. Bundy (District Attorney), for the plaintiffs in error.
    The court decided correctly in refusing to strike out the testimony of Smith Kenyon.
    This evidence was admissible upon the theory that the bills passed by the prisoner to the peddlers were counterfeit. Proof of the forged notes is admissible. (Roscoe Cr. Ev., 91, 92;
      Hodron’s Case, 1; Lewis, 65, 103; Richard’s Case, Id.) These bills were returned to the prisoner as bad, and taken back by him -as such. But two days before the prisoner said he had no money. He cited, also, Safford v. The People, 1 Park. Cr. R., 478; People v. Finnegan, Id., 147.

      L. J. Burditt, for defendants in error.
    The court erred in not striking out the'testimony of Smith Kenyon. The bills passed to the peddlers were not produced; no means were used to have them produced, and no evidence given to excuse their non-production. Ho legal evidence was given that they were counterfeit or forgeries. The presumption is, nothing appearing to the contrary, that they were genu-, ine bills." (3 Arch., 552; Whar. Cr. L., 233, 241; 3 Greenl. Ev., 905, 9111; Cow & Hill’s Notes, 462; 3 Arch. Cr. Pl., 552, Note; The People v. Thomas, 3 Park. Cr. R., 256.)
   By the Court, Comstock, J.

The conduct of the prisoner in passing the two bills to the peddlers in exchange for rings, was no doubt suspicious. But those transactions do not appear to have any connexion with the alleged offense, for which he was indicted. The two bills were passed to the peddlers some two or three days after the transaction, for which he was upon trial. ■ It was not shown that the bills were of .the same bank as the one in question, nor even that they were counterfeit. One of them was returned to him as bad, whether as uncurrent or as counterfeit, does not appear. He received it back, alleging that he took it for a good bill. This circumstance does not prove that it was a counterfeit, much less, that the prisoner knew that such was the fact. We think, therefore, that these transactions were merely calculated to excite suspicion and prejudice against the prisoner, and had no legal bearing upon the issue which was on trial. It is true the prisoner, some three or four days before the dealing with the peddlers, said he had no money. This circumstance only suggests a doubt whether he came honestly by the bills which he is proved to have had so soon afterward, but it does not' connect those bills or the uttering of them with the particular offense for which he was tried. We think the Supreme Court were right in granting a new trial.

Order affirmed.