author: Willard, Circuit Judge,

text:
    Washington Oyer and Terminer.
    November, 1839.
    Before Willard, Circuit Judge, and the County Judges.
    The People vs. McDaniels.
    A robbery may be committed by extorting personal property, from the person or in the presence of the owner, by means of threats of an unfounded criminal charge, where such property is obtained through fear produced by such threats.
    Where, by means of a threat to arrest the prosecutor, on a charge of having been guilty of the crime against nature (the charge being groundless and known to be so to the defendant), the prosecutor, through fear of such threatened arrest, was induced to deliver to the defendant $20 and a receipt for $13 owed by the defendant to the prosecutor, and to promise to pay the defendant $20 more, held, that the defendant was guilty of robbery in the second degree.
    It is not necessary to constitute such offence that the charge against the prosecutor should be direct, or should be made in unequivocal language. It is enough if the language used was intended to communicate such a charge and was so understood at the time by the prosecutor.
    The prisoner was indicted for robbery in the first degree, against the form of the statute. (2 R. S. 677, § 55.) The indictment also contained a count for robbery in the second degree The prosecutor Russell Skeele, testified that he was 67 years old, and had resided in Sudbury, Vt., for 37 years, and that he had been acquainted with the prisoner for three or four years. From his testimony, which was long and minute, it appeared that in June preceding the trial, the prisoner eame to the stable, where the prosecutor had one of his mares to be curried, and found the prosecutor with his. pantaloons unbuttoned to make water, and it so happened that a milk stool stood behind the mare. The prisoner as he came into the stable observed, “ How is this, Uncle Russell? What does this mean? A mare, a stool and a man with his trousers unbuttoned. A story-might be made of it that would hurt you.” The prosecutor explained the matter, and the prisoner said he was satisfied, that nothing improper had been done or intended by the prosecutor.
    On a subsequent occasion the prisoner alluded to the same transaction, and observed that the prosecutor could be injured by it, conveying the idea that the facts would warrant the belief that the prosecutor had connection with the mare. The prosecutor asked him if he intended to injure him? “Oh no,” said the prisoner, “ I only meant that some persons might injure you by it.”
    The prosecutor testified that the prisoner alluded to it again, afterwards. He also testified that the insinuation was entirely groundless. On one occasion the prosecutor informed the prisoner that he, the prosecutor, was going on the 21st August to Ohio and Michigan to see his sons, and- was going to carry about five hundred dollars to aid them in discharging incum-brances from their land, and that he then wanted the sum of thirteen dollars from the prisoner, which the latter owed him for money lent. The prisoner promised to pay by the day, but failed to do so.
    On the 21st August, the prosecutor left home early in the morning, came to Whitehall and took, passage in the boat which was to leave the next morning on the canal, and went to bed, on board. About midnight he was awaked by the captain, who informed him there was a man on deck who wished to see him. He got up arid went out, and there met the prisoner, who said he had some business with him and desired him to accompany 1 im to the public house. They left the boat together, and after traveling some distance (30 or 40 rods), no one being in the street — the inhabitants in bed — the prisoner stopped and told the prosecutor to hand him $500. The prosecutor denied that he had over $300 with him. The prisoner told him he must give him $250 cash and his note for the same amount, or go back and suffer, for he had got a man with him to assist in taking him back. The prisoner also insisted that the $13 note should be given up. After parleying for some time they went to the tavern, and the prosecutor escaped from the prisoner, but was overtaken. The prosecutor said to the prisoner, what do you mean in demanding money of me in this way? I had as lief you had put a pistol to my head and demanded it as to demand it in the way you are doing it. Do you think it right to take my money from me in this way? The prisoner replied that he felt perfectly clear in doing it, for his God had told him to take $500, for it would not distress the prosecutor or his family, as he owed no body, and if he obtained the money he would go off and not trouble him any more. The prisoner then told the prosecutor he must do it immediately or he should take him back — that he had a man ready with a horse and wagon, and I should suffer. The prosecutor declined, and the prisoner said, it seems you had rather suffer than part with your money, and if you must suffer, you must suffer. The prisoner then walked off a few steps and beckoned as if to some person. The prosecutor was much frightened and called the prisoner back, and said stop, Mr. McDaniels, don’t destroy me, don’t hurt me. The prisoner returned, and the prosecutor agreed to let him have what he had in his wallet, which was $20, and give him a receipt to cut off the $13 note, and agreed to pay $20 more on his return,-and prisoner agreed not to hurt him or his family, and to say no more about it.
    The prosecutor swore that he believed the prisoner, in his threats, had reference to the charge insinuated against him, of having connection with the mare in Vermont, and that he parted with his money out of fear of being taken back and prosecuted in Vermont on that charge. That he was in feeble health, a stranger in Whitehall, and was exceedingly alarmed
    Some other corroborating testimony was given

      The prisoner’s counsel moved for bis discharge, on the ground that the proof was insufficient, but the court refused to grant the motion. They then demurred to the evidence.
    The court intimated that a demurrer to evidence was unusual in criminal cases. That the party demurring must not only admit the facts proved, but also all the facts which could be legally and properly inferred from them. The counsel being unwilling to do this, withdrew the demurrer and addressed the jury.

      Crary, for prisoner.

      Mien (Dist. Att’y), for the People.
   Willard, Circuit Judge,

after recapitulating the evidence and reading the statute definition of robbery in the first and second degree (2 R. S. 677, § 55, 56), said: If the jury believe that the prisoner intended to communicate to the prosecutor the idea that he was to be taken back to Vermont, on a charge of having had sexual connection with his mare, unless he delivered his money, and the prosecutor parted with his money through fear of that charge being made against him when taken back to Vermont, the offence amounts to robbery in the second degree.

The prisoner did not, in explicit terms, make any direct charge against the prosecutor; nor is it necessary that he should do so, in unequivocal language, or in any particular form. It is enough if the language he used was intended to communicate such a charge, and was so understood at the time by the prosecutor.

The jury found him guilty of robbery in the second degree, and he was sentenced to state prison for six years and six months.

Note. — See 1 Leach’s Cr. Cases, 278; 1 Russ, & Ryan, 145, 375, 408.


source: Caselaw Access Project

author: Parker, J. —

license: Public Domain

text:
    Supreme Court. Albany General Term,
    September, 1850

      Watson, Parker and Wright, Justices.
    The People vs. Abraham Stein and al.
    In an indictment for having feloniously received certain goods and chattels which had been embezzled, knowing them to have been embezzled, it is not neces sary to aver that the person embezzling was the clerk or servant of the owner of the goods and chattels.
    In a criminal case, one good count is sufficient to support a general verdict of guilty, though the other counts in the indictment are defective.
    Where several persons are indicted for feloniously receiving embezzled goods, knowing them to have been embezzled, all who are proved to have confederated in the transaction may be convicted, though the receiving was at different times and places, and though all were not present.
    Certiorari to the court of sessions of Albany county. The defendants were indicted in the court of sessions of the offence of embezzlement. There were two counts in the indictment.
    The first count set forth that Abraham Stein, Israel Stem, and Jóhn Myers, late of the city of Albany, in the county of Albany, Sec., being persons of evil name and fame and of dishonest conversation, and common buyers and receivers of stolen goods, on, &c., with force and arms,, at, &c., one detached lever watch of the value of twelve dollars, one hunting lever watch of the value of fifteen dollars, one watch of the value of thirteen dollars, one lepine watch of the. value of nine dollars, two lepine watches of the value of eight dollars each, &c., &c., (enumerating several hundred articles of jewelry and other property) of the goods and chattels of Lewis Goldsmith, by Moses'Barks, then lately before feloniously embezzled of the said Lewis Goldsmith, unlawfully, unjustly and feloniously did receive and have (the said Abraham Stein, Israel Stein, and John Myers, then and there well knowing the said goods and chattels to have been feloniously embezzled), to the great damage of the said Lewis Goldsmith, contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.

      The second count charged a receiving of stolen property, alleging that the defendant, on, See., at, &c., one detached lever watch of the value of twelve dollars, &c. (enumerating the same property as in the first count), of the goods and chattels of Lewis Goldsmith, by Moses Barbs, then lately before felo-niously stolen of said Moses Barks, unlawfully, unjustly and feloniously, did receive and have (the said Abraham Stein, Israel Stein and John Myers, then and there, well knowing the said goods and chattels to have been feloniously stolen) to the great damage, &c., contrary, Sec., against, Sec.

    The defendants pleaded not guilty, and the cause was tried before Parmelee, county judge, and the justices of the sessions on the 14th May, 1850.
    And on the trial the prosecution to sustain the indictment examined several witnesses, and the defendants also examined several witnesses; and the evidence in the cause having been closed, the counsel for the defendants insisted before said court, that the defendants could not be convicted under either count of said indictment, for the following among other reasons, that is to say:
    1. Because, although the evidence shows that Moses Barks was clerk and servant of Lewis Goldsmith, yet the first count of the indictment does not aver that fact.
    2. Because in an indictment for receiving goods knowing them to be embezzled, the indictment must state the substantive fact that such embezzlement was committed by a clerk or servant.
    But the court held otherwise, and decided that the first count of said indictment was good, valid and sufficient without such substantive fact being stated or averred, to which decision of the court the counsel for the defendants did there and. then except.
    And the counsel for the defendants did further insist and i equest the said court to decide that the second count of said indictment was not supported by the evidence, in that it was shown that the property mentioned and described- therein was not feloniously stolen of Moses Barks, but of Lewis Goldsmith, if feloniously stolen at all, but the court then and there held and decided the words, “ of said Moses Barks” were a clerical error or might be stricken out or disregarded as surplusage.
    To which decision of the court the counsel for the defendants did then and there except.
    The counsel for the prosecution and for the defendants then ^summed up the case to the jury, and the county judge charged the jury.
    The defendants’ counsel then requested the court to charge the jury that the defendants could not be convicted under the first count in the indictment, because it is not averred therein that Moses Barks was a clerk or servant of Lewis Goldsmith, and that the property he is charged with embezzling came to his possession or under his care by virtue of such employment, and that such averment in substance is necessary to render the indictment good against the defendants as receivers of embezzled property.
    But the court charged the jury otherwise, and decided that the first count of said indictment was good, valid and sufficient against the defendants as receivers of embezzled property. To which decision and charge of the court the counsel for the defendants excepted.
    And the counsel for the defendants further requested the court to charge the jury that the defendants could not be convicted under the second count in the indictment, because such count was not supported by the evidence, by which it appeared that the property described therein was not feloniously stolen of Moses Barks, but of Lewis Goldsmith, if feloniously stolen at all, but the court refused so to charge, and charged that the words C£of said Moses Barks” in said second count were a clerical error and might be disregarded as surplusage. To which decision the counsel for the defendants excepted.
    The counsel for the defendants further requested the court to charge the jury that the indictment being a joint indictment against all the defendants, a joint act of receiving must be proved against all in order to convict all; but the court refused so to charge, and charged as follows: ££ If the jury believe that any one of the defendants was guilty of receiving, &c., he could be convicted under this indictment; and that all whom the jury believed to have so received the property could be convicted upon this indictment and under the evidence in the case, though the receiving was at different times and places, and that although all the defendants were not present.” To which refusal to charge the counsel for the defendants excepted.
    The jury gave a general verdict of guilty against all the defendants.

      A. J. Colvin, for the defendants.
    I. The first count of the indictment is bad, and the court of sessions erred in deciding that it was valid, and that the defendants could be convicted upon it. 1. Because embezzlement, as a felony, is a statutory offence; and it is such felony only, when committed by a clerk, agent, servant or officer. It is indispensable, therefore, to aver that the embezzlement was committed by a clerk, agent, servant or officer. {People v. Allen, 5 Denio, 70; Wheaton’s Cr. L. 273; 2 R. 8. 3deed. 764, §59.) 2. And because, in the structure of an indictment for receiving property embezzled, it is necessary to aver that it was embezzled contrary to the statute (2 R. S. 3d. ed.p. 765, §61;) in other words, to aver that the property received was embezzled by a clerk, agent, servant or officer.
    II. The second count of the indictment was not sustained by the evidence, and the exceptionable matter should not be treated as surplusage.
    III. The defendants having been convicted upon both counts of the indictment, are entitled to a new trial. 1. Because the party will be entitled to a new trial, if the court committed an error in law, which possibly may have operated to his prejudice. {Coles v. Marquand, 3 Hill, 447.) 2. Because, in a criminal case, the important and controlling question is, whether any error has been committed which could affect the rights of the accused. If there has been such error, however slight it may have been, the conviction should be set aside. {People v
      Lohman, 2 Barb. 221.) 3. Because, in this case, a discretion is allowed the court in passing sentence. It may sentence for two years on the first count, and three years on the second count, or «ice «may and a general judgment for the prosecution on an indictment containing two or more counts, either of which is bad, and where the punishment is not definitely prescribed by law, can not be sustained. (O’Connell and others v. The Queen, 11 Clarke and Finnelly’s Parliamentary Reports, 155.)
    IV. The court of sessions was bound to charge as requested, viz: K That the indictment being a joint indictment against all the defendants, a joint act of receiving must be proved against all, in order to convict all.” (Rex v. Messingham, 1 Moody’s C. C. 257; Rex-y. Archery Ibid. 143.) 1. Because, being an averment ©f the indictment, it was a fact to be affirmatively shown on the part of the prosecution, and was indispensable to be found, before the jury could convict. 2. Because the defendants were entitled to the benefit of the charge, whatever was the nature and degree of the evidence. 3. This was emu-nently a proper case foi; the court so to charge; and a bill may be taken, if, in a proper case, the court refuse to give an opinion to the jury. (Douglass v. McAlister, 3 Crunch, 300; Smithy. Carrington, 4 do. 60, 62; 2 Dana, 242; 2 Ailcens, 115.)
    V, If the refusal to charge was erroneous, the charge itself was much more so. 1. Because (immediately following the refusal) it was calculated, nay, such was its inevitable effect, to mislead the jury; for it was not correct, that all the defendants who received the property, could be convicted, though the receiving was at different times and places, and that although all the defendants were not present. 2. The charge would have been correct, had the indictment contained separate counts, for receiving against each defendant; but being a joint indictment, it can, upon no principle, be sustained. (1 Moody C. C. 257;

      Carr, and P. 796; 32 Eng. C. Law Rep. 589.) 3. Again, it as ■ erroneous, because the court assumed that the defendants were confederates; a fact which should have been 1'eft to the jury to find. 4. Because the defendants could not be confederate, unless they were all present, actually or constructively aiding, abetting and assisting. (1 Russell on Crimes, 25 to 27, ed. 1845; Com. v. Knapp, 9 Pick. 496; King v. Borthwick, Doug. 207.) 5. Because the jury were charged to convict, if they found a separate receiving of goods embezzled, or goods stolen; in other words, that they were at liberty to convict, under either count of the indictment, and consequently under the first count, which is clearly a bad count.

      S. H. Hammond (district attorney), for the people.

    I. The first count in the indictment charges that the defendants received the goods of Barks with the knowledge that Barks had embezzled them. The crime charged is receiving them with a guilty knowledge of the embezzlement. The fact that the goods had been embezzled it was necessary to state in the indictment, but not the evidence of the fact. It need not allege the facts necessary to be stated in an indictment for embezzlement, because embezzlement is not the crime charged against the defendant. (Wharton's American Criminal Law, 420; 2 Blackford 103.)
    II. The second count is good, because 1. If the reading is as claimed by the defendants, the words “of Moses Barks ” is a clerical error and may be stricken out as surplusage. (1 Leach, 109, 477.) 2. The defect, if any, is not one that can prejudice the defendants. 3. But the reading is not as claimed by the defendants; a false punctuation is resorted to, to give it that reading. The allegation in fact is, that the defendants received the goods of Moses Barks, as-will be understood by placing a comma after the word “ stolen” in the indictment.
    III. The charge of the judge was correct. Every indictment, where there are more than one defendant, is joint and several. Three persons are indicted for robbery, one may be convicted and one may be acquitted.
    IV. The judge’s charge properly understood, simply amounts to this, 1. If the jury believed that only one of the defendants received the goods with a guilty knowledge, they could convict him and acquit the others. 2. If they believed two of them received the goods, they could convict those two and acquit the other, and that it was not necessary in order to convict the two to prove that all the persons indicted were present at such receiving. That the two could be convicted though part of the goods was received by them at one time and place, and a part of them was received at another time and place.
    V. The judge’s charge was in substance what the counsel asked him to charge, and he need not adopt the language of the counsel.
    VI. Our statutes alter the English rule in regard to criminal trials. Here indictments which are joint may be tried separately as against each defendant, and if tried jointly the verdict as to each will be the same as though the trial had been several.
    Suppose these prisoners had been tried separately, and an act of receiving had been proved against the one first tried, clearly he could have been convicted. Suppose when the second one came to be tried, another act of receiving had been Droved against him, clearly he could not escape because others were joined with him in the indictment, nor because the one first tried had been convicted — and so when the third came on to be tried. Hence we say
    VII. That a joint receiving by all need not be proved. (7 Carrington 8f Payne, 475; 1 Moody, 143; 1 Carr fy Kennin, 442; Russ 8,- Ry. Cro. Cas. 520; White’s Mm. Cr. Law, 419; Cow. 8f Hill’s notes, 1050.)
   Parker, J. —

The first count charges that the defendants did unlawfully, unjustly and feloniously receive certain personal property of the goods and chattels of Lewis Goldsmith, which had been feloniously embezzled of the said Lewis Goldsmith by Moses Barks, the said defendants at the time well knowing the said goods and chattels to have been feloniously embezzled, &c. It is objected that this count is defective in not alleging that Moses Barks was the clerk or servant of Lewis Goldsmith. Such an averment would certainly be necessary in an indictment against Barks for the embezzling. (People v. Allen, 5 Denio, 76.) So would an averment of time and place in larceny. But it has been decided that an averment of the time and place of a larceny is not necessary in an indictment for receiving the stolen goods. (12 Blackford R. 103.) The same averments are not necessary in an indictment for receiving stolen or embezzled goods which are necessary in an indictment for stealing or embezzling. In an indictment for receiving embezzled goods, the facts necessary to be averred are the felonious embezzling and the felonious receiving. In such case, I think, an allegation of such felonious embezzling and receiving with a description of the property and the name of the owner as well as of the person embezzling, is sufficient, without setting out the particular relation existing between the owner and the person embezzling. The means by which the embezzling was accomplished need not be stated in an indictment for receiving. It is by means of the peculiar relation existing, that access is obtained and the property converted. An allegation of a felonious embezzlement includes within it and covers all the minor circumstances which go to make up the offence. They are matters of proof necessary to support the general allegation put in issue by the plea of not guilty. We think the objection to the first count was not well taken.

But if we are wrong on this point, it is not a reason for reversing the judgment, if the second count is good. We can not follow the decision of the English House of Lords in O’Connell and al. v. The Queen. (11 Clark & Fin, 155.) That case was decided by the Law Lords by a vote of 3 to 2 and adversely to the opinions of the majority of the judges of England, who were consulted. In this state, the law has been regarded as well settled, and it has been repeatedly held, that in a criminal case one good count is sufficient to support a general verdict of guilty, however defective the others may be. (1 Ch. Cr. L. 249; Am. ed. of 1836, ib. 638; People v. Curling, 1 Johns. R. 320; People v. Wiley, 3 Hill R. 194.) Though the law is otherwise in a civil case, for ti e reason that damages are given by the jury, and being entire, the court can not apportion them.

There was no valid objection to the form of the second count. If properly punctuated, it alleged tie stealing from Lewis Goldsmith, and the receiving from Moset Barks. With this reading of the count, it is not denied but it was supported by the evidence.

The court below was asked to charge, that the indictment being joint against all the defendants, a joint act must be proved against all in order to convict all. The court refused so to charge and the defendants excepted.

This proposition standing alone and unexplained was undoubtedly correct; but it must be taken and considered as qualified by what the court did charge, viz.: that if the jury believed that any one of the defendants was guilty of receiving, &c., he could be convicted under the indictment; and that all whom the jury believed to have so received the property could be convicted upon the indictment and under the evidence in the case, though the receiving was at different times and places and although all the defendants were not present.

The whole taken together shows clearly that the question made was, whether, to convict all, it was necessary that all should be present at one time and place, engaged in the receiving. And the court rightly held, that all whom the jury believed to have so received the property,. that is, all who were proved to have confederated in the transaction, could be convicted, though the receiving was at different times and places, and although all the defendants were not present. The question of the confederacy of the defendants was thus fairly submitted to the jury, and if that was established, those absent as well as those present, were equally guilty. And if all confederated for the purpose of the transaction, and it was accomplished, though at different times and places, sometimes a part of the confederates being present and sometimes others, there is no doubt all were properly conv'cted.

We think there was no error committed in the court of sessions, and the proceedings in that court must therefore be affirmed and the case remitted, that judgment may be given in accordance with the verdict.

Proceedings affirmed.


author: Per Curiam.

text:
    Supreme Court. Albany General Term,
    February, 1851,

      Harris, Parker and Watson, Justices.
    The People vs. Daniel Burroughs.
    Form of an indictment for perjury in falsely swearing that usury was taken in discounting a promissory note.
    Where it does not appear on the face of the record, by the statement of the issue and evidence in the indictment, that the matter alleged to be false is material, it is sufficient to aver in the indictment that the matter, in relation to which perjury is assigned, became and was material upon the trial.
    Where in a suit brought by a bank on a promissory note, the defendant had testified as a witness in behalf of the endorser, that F,, who at that time was president of the bank, had taken usury in discounting the note, it was held, on a trial of the defendant for perjury in giving such testimony, that it was not necessary to set forth in the indictment that F. was acting in the transaction as an officer of said bank, or in what particular way he was connected with the transaction, but that it was sufficient in the indictment to allege that it became a material matter and question, &c., whether the said F. discounted said note, and whether he took usury in discounting it, and then to set forth particularly the testimony of the defendant on those points and the facts as they actually existed, which were inconsistent with such testimony, with the usual allegations of falsity and corrupt intent.
    An averment in an indictment that the defendant was sworn as a witness between the bank and J. B., is sustained by proof that the defendant was sworn in a suit brought by the bank on a promissory note against J. B., the endorser, and S. McF. and the defendant, as joint makers, the evidence of the defendant in such case being only available in behalf of the endorser.
    This case was brought up by certiorari from the Rensselaer Oyer and Terminer. The indictment there found was as fol lows:

      County of Rensselaer, ss. The jurors for the people of the state of New York, in and for the body of the county of Rens-selaer, to wit: Jason Burrell, &c., then and there being sworn and charged to inquire for the said people for the body of the county of Rensselaer aforesaid, upon their oath present that heretofore, to wit, on the twenty-fourth day of January, in the year of our Lord one thousand eight hundred and fifty, at the city of Troy, in the county of Rensselaer aforesaid, before the honorable William B. Wright, one of the justices of the supreme court of the state of New York, at the term of said supreme court held by and before the said William B. Wright (so being one of the justices aforesaid), in and for the said county of Rensselaer, on the third Monday of January in the year last aforesaid, and continued to and upon the said twenty-fourth day of January, in the year last aforesaid, a certain action in said supreme court between the president, directors and company of the Bank of Lansingburgh, plaintiffs, and Daniel Burroughs, Samuel McFarland and John Burroughs, defendants, upon a certain promissory note, in the words and figures following, to wit:
    Cambridge, Jan. 22, 1849.
    Twenty-five days from date we promise to pay to the order of John Burroughs two thousand dollars at the Lansingburgh Bank for value received.
    Daniel Burroughs,
    Samuel McFarland,
    and endorsed: John Burroughs.
    And certain issues of fact in the said action came on to be tried in due form of law, and were then and there tried, by a jury of the county in that behalf duly sworn and taken between the parties aforesaid to said action, upon which said trial Daniel Burroughs late of the town of Cambridge and in the county of Washington, laborer, then and there to wit, on the said twenty-fourth day of January, in the year of our Lord one thousand eight hundred and fifty, appeared as a witness for and in hehalf of the said John Burroughs, one of the said defendants in said action, and was then and there duly sworn and took his corporal oath to and before the said William B. Wright, justice as aforesaid, that the evidence which he, the said Daniel Burroughs, should give to the said court and to the said jury, so sworn as aforesaid, touching the matters then and there in question, between the said, the president, directors and company of the Bank of Lansingburgh and the said John Burroughs, should be the truth, the whole truth and nothing but the truth, the said William B. Wright then and there being one of the justices of the supreme court, and then and there having full power and authority to hold said court at the time and place aforesaid, and then and there having jurisdiction of the sáid action and the issues aforesaid, and having power and authority then and there to try the same, and then and there having full and sufficient power and authority to administer the said oath to the said Daniel Burroughs in that behalf and so as aforesaid to swear the said Daniel Burroughs.
    And the jurors first aforesaid, upon their oath aforesaid, do further present that at and upon the said trial of the said action and of the said issues therein, it then and there became and was a material matter and question between the said, the president, directors and company of the Bank of Lansingburgh, plaintiffs, and the said John Burroughs, one of said defendants in said action (the said John Burroughs being complained against in said action by said plaintiffs as endorser of said promissory note upon which said action was brought as aforesaid), whether John S. Fake discounted the said note above recited, and upon wffiich said action was brought, and also whether the said Daniel Burroughs paid to the said John S. Fake, at the time of the discounting of said note above recited and upon which said action was brought, any sum of money over and above the lawful interest and discount upon said note last mentioned, and also whether the said John S. Fake discounted the nóte for the renewal of which the said note above recited and upon which said action was brought was given; and also whether the said Daniel Burroughs paid to the said John S. Fake, at the time of the discounting of the said note for the renewal of which the said note above recited and upon which said action was brought was given, any sum of money over and above the lawful interest and discount upon the said note for the renewal of which the said note above recited and upon which said action was brought was given.
    And the jurors first aforesaid, upon their oath aforesaid, do further present that the said Daniel Burroughs, with force and arms then and there, to wit: On the said twenty-fourth day of January, in the year aforesaid, and at the city of Troy aforesaid, being so sworn as aforesaid, and not having the fear of God before his eyes nor regarding the laws of the state of New York, but being moved and seduced by the instigation of the devil and contriving and intending to prevent the due course of law and justice and unjustly to aggrieve the said, the president, directors and company of the Bank of Lansingburgh, plaintiffs, as aforesaid, and to cause a decision to be made on the trial aforesaid against the said, the president, directors and company of the Bank of Lansingburgh, and in favor of the said John Burroughs, one of said defendants, and thereby to subject the said, the president, directors and company of the Bank of Lan-singburgh to the payment of sundry heavy costs, charges and expenses, then and there on the said trial, upon his oath aforesaid, falsely, corruptly, knowingly, willfully, maliciously and feloniously, before the said court and before said jurors so sworn as aforesaid, did depose, testify and swear, amongst other things, in substance and to the effect following, that is to say: That John S. Fake [the said John S. Fake meaning] discounted this note [meaning the said note above recited and upon which said action was brought], and that he [the said Daniel Burroughs meaning] paid him [the said John S. Fake meaning] the interest on this note and seven dollars [meaning at the time of the discounting of said note above recited and upon which said action was brought the sum of seven dollars over and above the lawful interest and discount upon said note ldst named] and that John S. Fake [the said John S. Fake meaning] discounted the note for which this was a renewal [meaning discounted the note-for the renewal of which the said note above recited and upon Which said action Was brought was given], and that he [the said Daniel Burroughs meaning] paid him [the said John S. Fake meaning] .ten dollars over and above the interest [meaning at the time of the discounting of said nole for the renewal of which the said note above recited and upon which said action was brought was given] the sum of ten dollars over ' nd above the lawful interest and discount upon the said note, f',r the renewal of which the said note above recited and upon which said action was brought was given. Whereas, in truth and in fact, the said John S. Fake did not discount the said note above recited, and upon which said action was brought; and whereas, in truth and in fact, the said Daniel Burroughs did not pay to the said John S. Fake, at the time of the discounting of the said note • above recited and upon which said action was brought, or at any other time, the sum of seven dollars or any other sum c' - and above the lawful interest and discount upon said note ist named; and whereas, in truth and in fact, the said John S. Fake did not discount the note for the renewal of which the said note above recited and upon which said action was brought was given; and whereas, in truth and in fact, the said Daniel Burroughs did not pay to the said John S. Fake, at the time of the discounting of said note for the renewal of which the said note above recited, and upon which said action was brought was given or at any other time, the sum of ten dollars or any other sum over and above the lawful interest and discount upon the said note for the renewal of which the said note above recited and upon which said action was brought was given.
    And so the jurors first aforesaid, upon their oath aforesaid, do say: That the said Daniel Burroughs at and upon the said trial of the said action and of the said issues, on the said twenty-fourth day ol January, in the year of our Lord one thousand eight hundred and fifty, at the said city of Troy, in the county of Rensselaer aforesaid, before the said William B. Wright, one of the justices of the supreme court of the state of New York, then and there holding a term of the said supreme court [he the said William B. Wright, so as aforesaid, having ■full and sufficient power and authority to hold such court and to administer the said oath to the said Daniel Burroughs in that hehalf] by his own proper act and consent, and of his own most wicked and corrupt mind in manner and form aforesaid, falsely, wickedly, willfully, corruptly, maliciously and feloni-ously did commit willful and corrupt perjury, to the great displeasure of Almighty God, in contempt of the people of the state of New York and their laws, to the manifest perversion of justice, to the evil and pernicious example of all others in the like case offending, 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.
    There was a second count in the indictment.
    The defendant pleaded not guilty, -and the traverse came on to be tried on the 30th day of January, 1851, at a court of Oyer and Terminer, in the county of Rensselaer, before Mr. Justice Harris and the justices of the sessions.
    The district attorney first offered in evidence a record of a judgment rendered in the supreme. court in favor of the president, directors and company of the Bank of Lansingburgh, against Daniel Burroughs, Samuel M’Farland and John Burroughs. The plaintiffs alleged in the complaint that two of the defendants, Daniel Burroughs and Samuel M’Farland, on the 22d day of January, 1849, at Cambridge, in the county of Washington, and state of New York, by'their promissory note in writing, dated on the day last mentioned, for value received» promised to pay to the defendant, John Burroughs or order, the sum of two thousand dollars, at the Bank of Lansingburgh, twenty-five days from the date thereof, and that the defendant, John Burroughs, afterwards endorsed the said note, and that the same was thereupon transferred to the plaintiffs. It was further alleged in the complaint that payment of the note was duly demanded at maturity, and that it was protested for nonpayment, and notice thereof duly given to the endorser, and that the note had not been paid, &c. See.

    Daniel Burroughs and Samuel McFarland answered together setting up the defence of usury. John Burroughs answered separately setting up a like defence. To both these answers replies were put in. It appeared by the record that on a trial at the circuit the plaintiff recovered the amount of the note.
    To the introduction of this record in evidence, the defendant by his counsel objected on the ground, that the said record did not present an issue to which the allegation in the indictment if sustained, could be material, and also that the said record did not show a trial, and if it did, it fixed it at another time than that laid in the said indictment. The court overruled the objection and admitted the evidence to which the defendant by his counsel excepted. The district attorney then called as a witness Harvy Betts who testified as follows, to wit:
    I was deputy clerk in January, 1850; I was present at the January term of this court, 1850; Judge Wright held the term; I know defendant by sight; he was sworn as a witness on that occasion in a suit between the president, directors and company of the Bank of Lansingburgh and Daniel Burroughs and others defendants.
    The district attorney then called as a witness, Marcus L„ Filley who testified as follows, to wit:
    I was present at the trial of the cause referred to in the record, and took minutes of the evidence therein. The defendant testified on that trial that he negotiated that note with John S. Fake; he said I brought the note to Fake at that time; I told him I wanted to exchange that note, to let him, Fake, have that note and take out the other, and that, at that time I paid John S. Fake seven dollars over and above the legal interest. He, defendant, testified farther than he procured the discounting of the note for which this note was given in the renewal with John S. Fake, and that he, defendant, paid John S. Fake at that time ten dollars over and above the legal interest.
    The district attorney then called as a witness Abram B. 01 in who testified as follows, to wit:
    I was counsel for the plaintiffs in a suit spoken of by Filley, and kept minutes of the evidence. He, defendant, testified on that trial when called as a witness, in substance, that John S. Fake discounted this note and that he paid him seven dollars, over and above the legal interest; he also testified that the note for which this note was given in renewal, was discounted on his application by John S. Fake, and that he, defendant, agreed to pay, and did pay to John S. Fake ten dollars over and above the legal interest for discounting that note.
    John S. Fake was then called as a witness for the people, and testified in substance as follows, to wit: I did not discount the note referred to, and the defendant did not pay me any sum over and above the legal interest, I do not know whether this note was given in renewal of another note or not. I do not recollect whether I discounted the note for which this was given in renewal. I never took any money of Burroughs over and above the interest, on any paper whatever.
    Alpheus Warren on the part of the people, testified in substance as follows: I know defendant, I took this note to the bank for defendant, in January, 1849, defendant let me have the money to pay the discount thereon, I paid it to the Bank of Lansingburgh and returned the balance of the money and the old note to the defendant. Defendant did not pay me any sum over and above the legal interest thereon.
    Pliny Corbin was called on the part of the people, and testified in substance as follows: The note referred to was discounted by the Bank of Lansingburgh, on the 25th day of January, 1849, it was brought to the bank by Mr. Warren. Mr. Alexander Walsh made out the discount on said note, and Warren handed me some money and Walsh took out the discount on said note, and returned back the balance of the money, and I handed it to Warren. Defendant had some 17 or 20 notes discounted and renewed at the Bank of Lansingburgh from October 1848, 'i February 1849 for $2000 each.
    Alexander Walsh on the part of the people, testified in substance as follows: I computed the discount on this note. I am teller of the Bank of Lansingburgh. I took out the discount and expense of protest, and retained no more, and handed the balance of the money and old note back to Warren.
    There was testimony, also, introduced on the part of the defendant corroborating the testimony of the said defendant. I was in the former suit. It was admitted on the trial of the indictment that John S. Fake was, at the time of the alleged discounting of the note, president of the Bank of Lansing-burgh; and that it was so proved on the trial upon the note.
    After closing the testimony, the defendant’s counsel raised the following points of law touching the said indictment, and the matters therein charged against the said Daniel Burroughs, and asked the court to direct a verdict of acquittal, and also asked the court to charge the jury:
    1st. That said indictment charged no offence, and alleged no issue that could have been material on the trial of the former suit.
    2d. Any charge as laid in the indictment that Fake took usury did not even conduce to prove the. issue, that the bank took usury on that note which was the only issue in that suit.
    3d. The indictment varied fatally from the record as to what was the material issue in that suit. The record showed the issue to have been that the bank discounted the note usu-riously. The indictment showed the issue to have been that Fake discounted and took the usury.
    4th. That there was a fatal variance between the indictment and the proof on two points.
    1st. As to Burroughs being called and sworn as a witness on the issues between the plaintiffs and John Burroughs only (such being the allegation in the indictment), when the proof showed he was called and testified for both John Burroughs and McFarland.
    2d. The proof showed that the real discounting was by the bank (not by Fake individually), and so sworn by Burroughs. But the indictment charged that he swore that Fake individually discounted the note.
    These objections were severally overruled by the court, to each of which decisions the counsel for the defendant excepted.
    The defendant was found guilty and sentence suspended for the purpose of taking the opinion of the supreme court.

      R. W. Peckham, for the prisoner,
    made the following points:
    I. That said indictment charges no offence and alleges no issue that could have been material on the trial of the former suit.
    II. Any charge, as laid in the indictment that Fake took usury, did not even conduce to show that the bank took usury, on that note, which was the only issue in that suit. 1. The testimony of the prisoner was not shown to be material to the issue in the civil suit. The people were bound to show its materiality. (Roscoe’s Cr. Ev. 3 ed. 820; 3 Starkie, 3 ed. 859; 2 Russell on Crimes, 5 Mm. ed. 662; Wheaton Criminal Law, 423, 483.) 2. There is no proof in the case that Fake had authority to act for the bank. That the by-laws authorize him to act, or that he was accustomed so to act, when he discounted a note. His being president did not make him the bank, certainly not — without further proof. 3. If intended to insist that Fake acted as president, it should so have been interpreted by innuendo in the indictment, and should have been sustained by proof of his authority or practice ratified by the bank. Here the people show that the prisoner swore, on an issue whether the bank took usury, that Fake took usury — can they convict the prisoner of perjury, by showing that the bank took no usury! It is gravely said that Fake was proved to be president of the bank. What then! He may also have been preacher of Sr. Paul’s church. Does that vary his act! It is a mere description of the person. It in no manner, so far as shown, makes his act the act of the bank or of the church; (6 Hill, 240) further proof might make it so, but that must be given by the people.
    ni. The indictment varies fatally from the record as to what was the material issue in that suit. The record shows the issue to have been that the bank discounted the note usuri-ously. The indictment shows the issue to have been that Fake discounted and took the usury.
    IV. There is a fatal variance between the indictment and the proof, on two points: 1. As to Burroughs being called and' sworn as a witness on the issues between the plaintiffs and John Burroughs only (such being the allegation in the indictment). The proof shows that he was called and testified both for John Burroughs and McFarland. 2. The proof shows the real discounting to have been by the bank, not by Fake individually, and so sworn by Burroughs. But the indictment charges that he swore that Fake individually discounted and took the usury. (2 Salk. 224; 2 Russell on Crim. 660; Roscoe’s Ev. 771; 2 Starkie, 624; Peake’s Ev. 155.)
    V. The exception to the introduction of the record was well taken. (Roscoe’s Cr. Ev. 768; 7 Carr, fy Payne, 559; Roscoe’s Cr. Ev. 757.)

      J. K. Porter, for the people.
    I. The indictment alleges that certain questions became and were material upon the trial; and the assignment of perjury relates to the testimony of the defendant in relation to those matters. 1. Where the materiality of the testimony appears from the statement of the issue and the evidence, no averment of materiality is necessary. (8 Wendell, 636.) 2. Where it does not so appear, it is sufficient to aver in the indictment that the matters in relation to which perjury is assigned, became and were material upon the trial. ( Wharton’s Criminal Law, 482; 1 JVottfy McCord, 546,553; 1 Devereux Rep. 519; 12 Mass. R. 274; 5 Durnf. Sf East, 311, 318-9: 2 Russell on Crimes, 541; 4 Wentworth PI. 239, 240; 5 Wendell, 20.)
    II. The indictment charges the offence of perjury, and avers every fact essential to sustain the charge. 1. It alleges that the oath was duly administered; that the testimony was given in an action at law, and before a competent tribunal; that the evidence was material and false; and that it was given wickedly, corruptly and feloniously. 2. Such an indictment is good at common law. (Archbold’s Cr. PL 568.) 3. The indictment avers every fact, which, under the statute, constitutes an ingredient of the offence, and such an indictment is always held sufficient, except in cases of treason. (1 Baldwin’s R. 79, 119; 2 Gattison R. 15, 18.) 4. “ The indictment in this case contains the substance of the offence, with the circumstances necessary to render it intelligible, and to inform the defendant of the allegations against him,” This is all that is requisite. (5 Wendell, 9, 20.)
    III. The testimony of the defendant was upon questions which are shown to have been in fact material upon the trial. 1 The allegation of John Burroughs was, that the note was discounted by the corporation at a usurious rate. 2. To prove this allegation, the defendant was called, who testified that it was discounted by John S. Fake, at a usurious rate. It was proved that Fake was the president of the bank. It was admitted by the pleadings that the loan was made to the defendants by the bank; thus establishing the fact that the act of Fake was the act of the bank through him, as its presiding-officer. 3. It is not necessary that the evidence should be material to the issue. It is enough if it tended to establish a fact, which might, when connected with other facts, establish a defence-(2 L’d Raymond,, 889; 12 Modern R. 142; 2 Russell on Crimes 541; Roscoe’s Crim. Ev. 682.)
    IV. The objections to the introduction of the record were not well taken. 1. The issue which it proved, was one in relation to which the testimony of the defendant not only “ could be material,” but was material; for if true the note was void in its inception. 2. But if otherwise, it was no objection to the record that it did not prove all the averments of the indictment. Other evidence was introduced subsequently to establish the materiality of the testimony. 3. The objection that the record did not show a trial, was unfounded in fact. 4. The record did not fix the time of the trial. That was proved by the clerk.
    V. The objection, that the defendant was sworn on the par as well of M’Farland as of John Burroughs, is entirely unfounded. 1. The defendant and M’Farland were joint makers. The endorsers pleaded separately. The indictment states that defendant testified on the trial on behalf of John Burroughs. It is proved that he did. If the testimony enured also to the benefit of M’Farland, that fact was not proved. 2. Unless the fact and the averment are necessarily in direct antagonism, the defendant is not entitled to the presumption that the averment is inconsistent with the evidence. (Wharton's Cr. Law, 482; Ryan Moody, JY. P. 302.) 3. If there was a variance, and even a misdescription of one of the parties, it would not prejudice the indictment. (2 Russell on Crimes, 539; 2 Campbell's R. 109.)
    VI. The objection of variance between the indictment and the proof, as to the discounting of the note, rests upon erroneous •assumption of fact. 1. On the trial of the civil cause, it was admitted of record, and conceded by all parties that the note was discounted by the corporation. 2. The corporation could only discount through some officer of the bank. Some officer did it, and it was material to know who the officer was, and what were the terms of the discount. 3. It was proved on that trial that Fake was president of the bank, and the defendant, was called to prove two facts: 1st. That he was the one who discounted it; 2d. That the discount was at a usurious rate. On both these counts he swore falsely. 4. If the jury had believed his evidence, it was clear that the bank loaned him the money at a usurious rate, and the fact that it made the loan through its officer, did not make it any the less the act of the bank.
    VII. There is no variance or imperfection in the indictment, but if those which are alleged existed, they belong to that class which our courts have adjudged to be “ matter of form” within the meaning of the statute. (5 Wendell, 10, 19, 20; 2 R. S. 728, §52; 12 Wend. 45, 431; 3 Barbour, S. C. R. 470.)
   Per Curiam.

We think the offence sufficiently charged in the indictment. It was enough to aver that the matters, in relation to which perjury was assigned, became and were material upon the trial. It was unnecessary to aver that Fake was acting as an officer of the bank, or to state in what other way he was connected with the transaction. That is left to be proved on the trial, under the general averment .of materiality. We think the indictment sufficient, and that it was supported by the requisite proof.

The objection to the introduction of the record in evidence was properly overruled.

There was no variance between the allegation in the indictment that the prisoner was sworn and examined in behalf of John Burroughs, and the proof that he was sworn and examined •in the cause. Being a joint maker with Samuel M’Farland, his tes timony could not have been received for him, and could only be made available in favor of the endorser.

The proceedings of the Oyer and Terminer must be affirmed and the cause remitted to that court that sentence may be pronounced.


author: Edmonds, J.

text:
    Supreme Court. At Chambers.
    Before Justice Edmonds City of New York,
    February 25, 1851.
    The People vs. Ray Tompkins.
    Where, on a return to a writ of habeas corpus, it appears that the prisoner was detained by virtue of a warrant issued by a police justice, upon complaint on oath, the officer, before whom the habeas corpus is pending, has a right to go behind the warrant and inquire.into the legality of the imprisonment.
    To constitute the crime of obtaining property by false pretences under the statute, two things are essential, viz., a false representation as to an existing fact and a reliance upon that representation as true.
    Where, from the depositions taken before the police justice, it appeared that N, agreed to sell to T one hundred shares of stock, deliverable and payable the next day, and on the next day, before transferring the stock, N sent for T’s check and received for answer that T had sent his check to be certified and would send it to N in ten or fifteen minutes, and relying upon this statement N thereupon transferred the stock to T, held, that it was apparent that N’s reliance was on the promise and not on the representation that the check had been sent to be certified, and that a case was not shown within the statute, especially as there was no proof showing that the check had not been sent to be certified, and the prisoner was discharges
    Forms of writs of habeas corpus and certiorari, of the allowance thereof and ofrthe return thereto.

      On the 25th day of February, 1851, an application was made in due form of law by Ray Tompkins, to Mr. Justice Edmonds, for a writ of habeas corpus to be directed to Isaac Edwards, a police officer of the city of New York, then having the said Ray Tompkins, as was alleged, in custody; which writ was as follows:
    The people of the state of New York, to Isaac Edwards, greeting: We command you that you have the body of Ray Tompkins, by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name he shall be called or charged, before the Hon. John W. Edmonds, at the chambers of the said judge, No. 5 Brevoort Place, in the city of New York, on the 25th day of February instant, at 7 o’clock, P. M., to do "and receive what shall then and there be considered concerning him, and have you then and there this writ. Witness, John W. Edmonds, esquire, one of the justices of the supreme court, on the 25th day of February one thousand eight’ hundred and fifty-one. .
    G. W. Riblett, Clerk.
    Jonas B. Phillips, Attorney.
    Allowed February 25, 1851.
    J. W. Edmonds.
    Under which writ, the said Tompkins was brought before the said justice, and the return being suspended till the 27th of February, 1851, he was remanded and continued in the custody of officer Edwards aforesaid. To the said writ return was duly made by the said Isaac Edwards in the words and figures following, to wit:
    I, Isaac Edwards, one of the policemen of the city of New York, upon whom the annexed writ of habeas corpus was served, hereby return to said writ: That I hold and detain the said Ray Tompkins therein named, in my custody. That I do hold and detain him under and by virtue of a warrant, a copy whereof is hereto annexed, and the original whereof I now pro duce. And I further return that the said writ of habeas corpus was served upon me in the police office, Halls of Justice, in this city, after I had written my return upon the said original rant, but before I had actually returned the same.
    February 27th, 1851.
    Isaac Edwakps.

      State of JVew York, city and county of New York:

    To any constable or policeman of the city of New York:
    Whereas, complaint on oath has been made before the un dersigned, cue of the police justices for preserving the peace in the said city, by Benjamin Nathan: That at the city of New York, on the 29th day of January, 1851, Ray Tompkins did designedly, and by means of false pretences, cheat and defraud the said Nathan out of one hundred share? of the stock of The Farmers’ Loan and Trust Company, of the value of three thousand dollars and more, the property of the said Nathan. These are, therefore, in the name of the people of the state of New York, to command you, the said constables and policemen, and every of you, to apprehend the body of the said defendant, and forthwith bring him before me, or some other justice of the peace, for the city and county of New York, at the police office, Halls of Justice, Centre street, in the said city, to answer the said charge, and to be dealt with as the law directs. Given under my hand and seal, this 21st day of February, 1851.
    J. LothRop, Police Justice.
    And the prisoner made answer to the said return in the words and figures following:
    In the matter of Ray Tompkins — Before the Hon. John W. Edmonds, on return of habeas corpus.
    The answer of Ray Tompkins to the return made by the officer to the writ of habeas corpus, shows that this defendant denies that the magistrate had any authority whatsoever to issue a warrant for the arrest of him, the said defendant; that there was no complaint or testimony before said magistrate, showing that this defendant had been guilty of any criminal offence, or that any criminal offence whatsoever had been committed, to authorize or justify the issuing of said warrant. And this defendant further answering, avers that no return had been made by the officer to said warrant at the time the writ of habeas corpus was served upon said officer in whose custody defendant was at the time of the service of said writ. That the officer, it is true, had endorsed a return upon said warrant; but the same having never been returned, he (the said officer) erased such endorsement by drawing ink lines across and through the writing thereof, as he is informed and believes.
    Ray Tompkins.

      City and county of JVew York, ss:

    Ray Tompkins being duly sworn, says that he has read the foregoing answer by him subscribed, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated to be upon his information and belief, and as to these matters he believes it to be true.
    Ray Tompkins.
    Sworn to before me, Feb. 27th, 1851.
    J. W. Edmonds.
    Judgment being again suspended on the said writ until March 3d, A. D. 1851, on that day the prisoner was again brought up, and again remanded until the 7th day of March, A. D. 1851, and again on that day remanded until March 14th, 1851, A. D. when final hearing was had. On the 26th day of February, a writ of certiorari on the application of the said Ray Tompkins was also allowed by his Honor Judge Mitchell, as will fully appear by the said writ and endorsement thereto as follows:
    The people of the state of New York, to Jeremiah Lothrop, justice police court, and Isaac Edwards, policeman, greeting:
    We command you, that you certify fully and at large to the justices of the supreme court, at the City Hall, on the 27th of February, A. H. 1851, the day and cause of the imprisonment of Ray Tompkins, by you detained as is said, by whatsoever name the said Ray Tompkins shall be called or charged: and have you then this writ.
    Witness John W. Edmonds, presiding justice, the 26th day of February, 1851.
    Geo. W. Riblett, Clerk. l. s. JoNas B Phillips, Att’y.
    Endorsed — Certiorari allowed, returnable on the 27th inst. before Judge Edmonds, February 26, 1851.
    W. Mitciiell.
    To this writ return was made by Justice Lothrop, in the words and figures following, to wit:

      City and county of Mew York, ss.

    Complaint having been made to the undersigned, one of the police justices for the city of New York, that a criminal offence had been committed in said city, and that the said criminal offence had been committed by Ray Tompkins; and the said Ray Tompkins having been brought before ine, accompanied by his counsel, the first day of February, 1851, and from time to time thereafter, until the 24th February, 1851,1 proceeded to examine under oath, Benjamin Nathan, one of the complainants, and other witnesses produced in support of said complaint, the said Ray Tompkins and his counsel being present through the whole of said examination, and the said counsel for the said Ray Tompkins fully cross-examining said witnesses, which said examination and cross-examination, are as follows:

      City and county of Mew York, ss.

    Benjamin Nathan, No. 77 Merchants’ Exchange, sworn.— I am a broker, of No. 77 Merchants’ Exchange. I am acquainted with Ray Tompkins; he was a stock and exchange broker; it was in Wall street near Broad street; I have had one business transaction with him previous to the last. I sold him on the 28th January last one hundred shares of capital stock deliverable and payable the next day; this agreement to sell was at the second board of the board of brokers, in the Merchants’ Exchange, in the board of brokers’ room. Previous to my transferring the stock to Mr. Tompkins on the 29th, I sent my brother, Jonathan Nathan, to Mr. Tompkins for Tompkins’ check for the payment of the stock, which was three thousand three hundred and sixty-two dollars and fifty cents. This was in the neighborhood of one o’clock; the board of brokers had adjourned about half-past twelve o’clock of that day. I had not seen Mr. Tompkins on that morning before I sent for the check. My brother was gone five minutes, and returned without the check; my brother said, that Tompkins had told him that he had sent his check to the Merchants’ Exchange Bank to be certified, and that he would send it to me in ten or fifteen minutes, as soon as the boy would return with the check. I then went to the office of the Farmers’Loan and Trust Company, and transferred the stock to Mr. Tompkins; I made the transfer in five or ten minutes after my brother had returned; I made the transfer in the books of the company to Ray Tompkins; I at this time owned the stock; I transferred one hundred shares to him. The reason that induced me to transfer this stock was that I was told he had sent his check to be certified, and would send it to me; I believed this representation; I went from the company’s to my other business; I left the stock transferred to Tompkins, who was present at the time I transferred the stock to him; he was standing next to me; nothing passed between us at that time. He was not in the office when I went in, but came in before I made the transfer; he came in immediately after I got in the office; he was present and heard me-give directions to the clerk to transfer the stock to him. When I returned to my office, I found no certified check from Mr. Tompkins. On making up my money and checks at about two o’clock, I found that no check had been received from Tompkins; I went to his office; he was not in; this was a quarter past two or half past two o’clock; I saw a young man by the name of.-Harrison, and the clerk of Tompkins; I demanded of the clerk a check; he said Mr. Tompkins had taken my check with others to the bank to be .certified, and would be back in a few minutes; 1 waited ten minutes and Tompkins did not appear, and the clerk said he would go over to the bank and see if Mr. Tompkins was there, and what detained him; he left and I waited in the office; Mr. Tenbrook soon after went to the Merchants’ Exchange Bank. On our way we met the clerk returning, who said Mr. Tompkins was not there. I went to the Merchants’ Exchange Bank and he was not there. I returned to Tompkins’ office, it being then about three o’clock; soon after the clerk opened the drawer where lay several checks, mine amongst the rest, one payable to my order signed Ray Tompkins, on the Merchants’ Exchange Bank, for $3,362,50 not certified. Previous to my taking the check the clerk told me not to take the check, and he would give it to me. I took the check, but from his hand or not I can’t say. I ran with the check to the bank and payment was refused for want of funds. I then went back to Tompkins’office; the clerk was there, also Minthorne Tompkins, but not Mr. Tompkins; I next saw Mr. Tompkins at the police court. I don’t know the clerk’s name except that they call him Archy; he was a young man; I do not know if he was or not a book keeper. I saw no other clerk than this one at Tolnpkins’ office after two o’clock. The check has never been paid; I don’t know what was done with the stock; I have not seen the hooks of transfer since I transferred my shares to Tompkins; I heard Mr. Tompkins give some directions to Mr. Boyd, the transfer clerk, just as I was leaving after making my transfer to him; I did not understand what it was.

      Cross-examined. — I don’t know how long Mr. Tompkins has been in the board of brokers; I have known him six months; his character in the board in regard to integrity was fair; I don’t know that it was unusually high; he was in the habit of attending the board; I have heard him buy and sell in the board. I understood he lived in the country, but I don’t know. I think this stock was sold to him on Tuesday: I had one hundred shares of stock for sale at a certain price: Mr. Tompkins made me an offer. I had announced publicly one hundred shares of the stock for sale, and Tompkins said I will give one quarter, and I said I will sell for half, and he said a quarter at most, and I said, well, I will sell you one hundred shares at that rate; he never asked me to transfer this stock; the usual time of transfer is between 12 and 2 o’clock; I received no message from Tompkins until I sent for a check; I was in my office when I sent for the check; I did not know that Mr. Tompkins was to deliver the stock to any other person, but I presumed so. The stock was not in my name, but I was the owner of it. I had bought it in the morning of Wood & Co., but had not yet had it transferred; I sold one hundred shares of other stock on this day on time. When I sent for the check, I said to my brother, go and get Mr. Tompkins’ check; this was about one o’clock; he was gone five or ten minutes; my brother reported that Mr. Tompkins would send me his certified check in a few minutes. Tompkins’ office was further from mine than the Stock Company’s office; I did not exchange a word with Tompkins on that day; he was close to me in the stock office. I transferred one hundred shares of other stock; I understood that Tompkins was at the stock office to transfer this stock to some one else; it occupies most of the time between the meetings of the board to transfer the stock; I paid for my stock before I went to the board of brokers; I can’t tell, but I think I was back to my office at 2 o’clock, where I remained a quarter of an hour before I went to Tompkins’ office; I found that Tompkins’ check was not sent to me at about a quarter past two o’clock; that is the usual hour of making up their accounts and deposit; it is between two and three o’clock. I had been in my office ten or fifteen minutes before I discovered his check was not in. I made no inquiry about Tompkins’ check until my brother told me it was not there; the clerk, “Archy,” told me, as I understood, that Tompkins said he was going to get my check certified when he went out; my impression is that “ Archy,” the clerk, said that Tompkins said, when he went from the office, that he was going to get his check certified for me; I understood it so. I can’t say positively whether I took the check out of “ Archy’s” hands or from the counter; I was excited at the time; I had been excited for sonm time from about three o’clock or about that time; I had been very uneasy, from fifteen minutes before three, but I became excited at the time I found that- the checks were in the drawer; “ Archy” opened the drawer; the right I had to that check was, that he had my property without giving me any consideration, that is the right I claimed to the check. I have the check, here it is; I got this check after three o’clock it is not the common practice to pay checks after the bank is closed. I went from the bank to Tompkins’ office, and from there to Mr. Cutting’s office. I went to Mr. Tompkins’ office after I left Mr. Cutting’s office; I close my office after the usual office hour. After this, went to Drew & Robinson’s office, and to the office of Gilbert & Johnson, and from there to the office of the chief of police, which was six or half past six o’clock. I there made a complaint before the chief, but it was not reduced to writing. I did not swear that he had absconded or was concealed; I did not swear that in substance; I did not get a warrant, but I asked to have him arrested, and I believe he was arrested. I have never presented that check to that bank since.

      Direct resumed. — A transaction previous to this was for stock sold to Tompkins about fifteen or twenty days previous; he paid me for that stock by my sending for his check; did not obtain it, but he afterwards sent me a certified check upon the Merchants’ Exchange Bank. I transferred the stock before I received the check.
    Benj. Nathan.
    Sworn before me this February 1st, 1851.
    J. LothRop, Police Justice.
    Accompanying this affidavit, were the affidavits of Jonathan Nathan, Herman Johnson, William O’Kell, Le Grand Lockwood, Wm. W. Gilbert, John P. Duffy, William M. Clark, John Thompson, Edward H. Arthur, Robert C. Boyd and others.
    The hearing upon the above writs of habeas corpus and cer-tiorari was postponed from time to time, and decided, on the 11th of April, 1851, after argument of counsel.

      N. Bowditch Blunt (district attorney), and

      W. C. Noyes, for the people.

      Ogden Hoffman, and

      John Van Burén, for Ray Tompkins.
   Edmonds, J.

—r It was very strenuously urged on the argument of this case, on the part of the public prosecutor, that on habeas corpus the court or officer had no right to go behind the warrant on which the prisoner was detained, and inquire from facts out of the return into the legality of the imprisonment.

The effect of this principle would be, that the warrant of a committing magistrate, when legal upon its face, would be conclusive upon the prisoner, and he could have no relief from imprisonment, even if no charge whatever had in fact been preferred against him.

The proposition was of so grave a character, and was fraught with consequences so palpably mischievous, and was withal asserted with so much zeal, and apparently with the support of authorities, that I have examined the subject very carefully, and rejoice to find that there is no authority to shake my previous convictions on this subject.

The most prominent authority cited in support of the proposition is note 30 to the appendix, in 3 Hill, 659 — where it is broadly laid down, that under our act of 1818, and under sec. 50 of our present habeas corpus law (2 R. S. 471) — if the object be to impeach the warrant as irregular, or as founded on an irregular or erroneous judgment, decree or conviction, you can no more inquire of such things collaterally by habeas corpus than by .action or indictment, and that our statute was not intended as an authority to inquire into the validity of writs, warrants or other process, further than to ascertain whether they will protect the party suing them out, or the officer serving or executing them.

So far as this relates to judgments, decrees and convictions,” it is unquestionably correct, for they can not be inquired into collaterally; but so far as it relates to writs, warrants or other process, before final judgment, it is far from being correct, and it is unsupported by any authority, except a dissenting opinion of one of the judges in the matter of Prime, &c. (1 Barb. Sup. Co. Rep. 349.)

Three cases are cited in the note in question in support of the proposition in its broadest form. The first is the case of the sheriff of Middlesex. (11 Ad. & Ellis, 273.) In that case the court held, that it did not come under the 56 Geo. Ill, which is our statute, under which the proceeding is now before me, and the main question decided was, whether a process of contempt was good which omitted to state the particulars of the contempt.

The position which it is cited to support was not raised in the case at all, nor indeed could it be, for the process was final in execution of a final judgment of contempt. The next case is, The People v. Nivens. (1 Hill, 154.) That, also, was final process of contempt, and the question now before me was not raised, nor even alluded to in the whole case.

The matter of Clark (9 Wend. 212), is the remaining one cited in the note. That was an extradition case of a fugitive from justice, under the constitution of the United States, and the court held, that the question before it was, under the constitution, not one of guilt or innocence of the accused, but whether he was properly charged, so as to warrant the governor in surrendering him.

It will be very readily perceived, that none of these cases support the principle contended for.

The district attorney, however, cited other cases in support of his proposition. Among them, Bermac v. The People. (4 Barb. 31.) That again was a case of final process, in execution of a summary conviction, and the counsel for the prisoner did not traverse the return, so that at first blush it is manifest that it does not touch the question before me.

Another case is, The People v. Cassels (5 Hill, 168), which was also a commitment for contempt, and the court held that the prisoner had an undoubted right to show that the committing magistrate acted without authority, and that this was so, notwithstanding the commitment recited the existence of the necessary facts to give jurisdiction. And they add, what is alike good sense and good law, no court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends.

The case of McLeod (1 Hill, 377), is the only remaining one cited for the prosecution. There the question was, whether the court on habeas corpus would go behind an indictment to examine the question of guilt or innocence; and the court in refusing to do so, expressly admit the propriety, in case of a commitment on a coroner’s inquest, to look into the depositions and say, that it was not necessary to inquire how far they might go were the prisoner in custody on the mere examination or warrant of a committing magistrate.

These are all the cases which I can find, or to which I have been referred in support of the doctrine contended for in behalf of the prosecution. They do none of them sustain the doctrine, and it is well they do not, for the habeas corpus would be a mockery, whenever a magistrate might please to make the instrument of oppression and false imprisonment formal and regular on its face, and personal liberty would be at the mercy of ignorance or design, beyond anything yet known to our laws, careless as they too frequently are of freedom in the detail, from the abundance of it in Ihe gross.

I have always understood that it was the intention to give to a party committed for a crime by an examining magistrate, an appeal from his commitment to the higher judges, by virtue of the writ of habeas corpus, and such has uniformly been my practice.

The practice is abundantly sanctioned by authority and statute.

Thus, in the very notes in 3 Hill, which are so much relied upon, it is laid down that on a commitment by final process upon a summary conviction, the record of conviction may be examined, and if it be void, the prisoner will be discharged. (Note 38, p. 665.) So, where the arrest was without the territorial jurisdiction of the court; so, where the prisoner was carried before a remote justice, when there was one nearer before whom he ought to have been carried. (Ib. note 39.) .So, where in a criminal case the warrant is void, the original depositions will be looked into to see whether an offence has been committed, so that the prisoner may be remanded, or held to bail. (Ib. note 40). In case the commitment be for felony, the prisoner may, if brought up before the indictment, insist that the depositions be looked into as a part of the documentary authority on which the commitment was founded. For this purpose, copies may be brought up by certiorari. (Ib. note 43.) And in Note 45 it is said, the accused who appeals by habeas corpus, must, at his peril, show that he has been committed on insufficient evidence, and where the charge appears to be wholly groundless and without suspicion, the prisoner may be discharged. .

For this the writer cites I Chitty Cr. Law 128, where it is said, that if the court ascertain that there is no pretence for imputing to the prisoner any indictable offence, they will discharge him; and Bultman and Swartwout’s case (4 Crunch, 125), where the United States Supreme Court, chief justice Marshall delivering the opinion, quotes this passage from Chitty as that of a very learned and accurate commentator, and where the prisoners were discharged on habeas corpus.

In ex parte Tayloe (5 Cowen, 51), the supreme court say, that in all cases on habeas corpus previous to indictment, the court will look into the depositions before the magistrate, or before the coroner’s inquest, and though the commitment be full, and in due form, yet if the testimony proves no crime, the court will discharge or bail.

In the matter of Prime (1 Barb., 349), the court looked beyond the warrants, and into the affidavits, to see that the judge had colorable jurisdiction.

In ex parte Watkins (3 Peters, 202), Ch- J. Marshall described the writ of habeas corpus as in the nature of a writ of error, which brings up the body of the prisoner with the cause of commitment, and he adds — the court can undoubtedly inquire into the sufficiency of that cause; and Chancellor Kent, in his commentaries, (vol. 2 pp. 28, 31,) says that the act of 1818, which is now incorporated into the revised statutes, gave to the officer before whom the writ of habeas corpus was returned, authority to revise the cause of commitment and to examine into the truth of the facts alleged in the return, and the officer may examine into the merits of the commitment, and hear the allegations and proofs arising thereon in a summary way, and dispose of the party as justice may require.

The language of the statute is equally explicit —

Section 38 enacts, that the court or officer before whom the party shall be brought on such writ of habeas corpus, shall immediately after the return thereof, proceed to examine into the facts contained in such return, and into the cause of confinement or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter or not.

Section 43 enacts, If it appear that the party has been legally committed for any criminal offence, or if he appear by the testimony offered with the return, or upon the hearing thereof, to be guilty, &c., he shall be remanded, and by section 48, it is enacted, that the prisoner may deny the facts in the return, or allege any fact to show his imprisonment unlawful, and thereupon the officer shall proceed to hear the proofs and allegations produced on either side, and dispose of the party as the justice of the case may require.

It is under this array of authority, settling thus clearly at once my authority and my duty, that I approach the main question involved in these proceedings.

And here two things are apparent: 1. That the act imputed to the defendant is not a crime; and 2, that it is not proved.

The offence charged is, that on the 29th day of January, 1851, Ray Tompkins did designedly, and by means of false pretences, cheat and defraud Benjamin Nathan out of one hundred shares of the stock of the Farmers’ Loan and Trust Co., of the value of f3,000, and more.

From the depositions, it appears that, on the 28th of January, Nathan agreed to sell to Tompkins one hundred shares of that Co., deliverable and payable the next day. On the next day, before transferring the stock, Nathan sent for a check, and received for answer that Tompkins had sent his check to be certified, and would send it to Nathan in ten or fifteen minutes, and relying upon this promise, Nathan thereupon transferred the stock to Tompkins. Tompkins never asked to have it transferred to him; but the usual time for transferring having arrived, Nathan, without any request from Tompkins, transferred it. A previous transaction between these parties had been conducted in the same manner. Nathan having transferred the stock on that occasion and afterwards received Tompkins’ certified check.

Upon this state of things, it is perfectly apparent that Nathan’s reliance was upon the promise, that a check would be sent in ten or fifteen minutes, and not solely on the fact that Tompkins had sent his check to be certified. And nothing can be better' settled than the rule, that such a promise is not a false pretence under the statute.

To constitute the crime under the statute, two things are essential: a false representation as to an existing fact, and a reliance upon that representation as true. Both these ingredients are wanting in this case; for the reliance evidently was mainly on the promise to send the check. This in no respect constitutes the crime.

The only representation of an existing fact that there is to be found in the case, is that in respect to Tompkins having sent his check to be certified His having done so would be of no possible value to Nathan, unless it had been followed up by being sent to Nathan, and it is apparent that Nathan’s reliance was upon Tompkins’ credit and his promise to send him the check, and not upon the fact that he had sent it to be certified— a fact which alone could be of no value to Nathan, and upon which alone, or even chiefly, it is manifest that Nathan did not rely.

The best test is to suppose the case should go on to trial. The question to be submitted would be, whether Nathan transferred the stock, relying solely on the representation, that Tompkins had sent his check to be certified, necessarily excluding all idea of Tompkins’ responsibility, for there was no representation as to that excluding the promise to send him the check, for that is no element of the crime, and excluding the idea that the check would be certified when sent for that purpose, for there was no representation that it would be.

It is idle to suppose that a conviction would be warranted, or be allowed upon such a state of things.

The fact that in his cross-examination, Nathan conveys the idea, that his reliance was upon Tompkins’ promise that he would send his certified check in a few minutes, — the fact that the stock was voluntarily transferred on the 29th, pursuant to a previous contract of sale, and without Tompkins ever having requested it to be transferred, and the fact that it was in Tompkins presence that Nathan transferred the stock, and without a word passing between them, would be entirely controlling on the subject.

But even if it wmre otherwise, even if it could be found that Nathan’s reliance had been upon the representation that Tompkins had sent his check to be certified, there is no evidence that such was an untrue allegation. It appears that the check was made out, but it nowhere appears that it had not been sent to be c ertified. And the falsity of the pretence is not established, nor even attempted to be. And for aught that appears, it may be perfectly true that Tompkins had sent the check to be certified; and if it may, then there is no foundation whatever for the criminal charge on which the defendant is arrested.

1 have thus far confined my attention to the charge against the defendant named in the warrant; and though I do not find in the depositions sufficient evidence to support that charge, it is still my duty, under the statute, to inquire whether the depositions show him guilty of any criminal offence.

The examinations before the magistrate took a very wide range, inquiring into all the transactions of the defendant on the day of his failure, and on the argument considerations were urged in reference to the moral propriety of his conduct on that occasion. With the latter topic I have nothing to do. ' I am not authorized to inquire whether his conduct squared with strict morals, or a high standard o‘f commercial honor I am to inquire merely whether a legal crime had been committed, and whether there is probable cause to suspect the defendant to have been guilty of it. None of the counsel for the prosecution suggested that the depositions showed the commission of any other crime, than that of obtaining the stock from Nathan by false pretences. Nor upon looking into the depositions d'o I find any other charged. The defendant’s failure seems to have come upon him suddenly and unexpectedly. His transactions on the day of his failure do not seem to have been out of the ordinary course of his business, nor upon a larger scale than usual. All the money he received on that day, as well as several thousand dollars of a balance remaining in bank, except $25, he appropriated to the payment of debts, which seem to have been justly owing by him, and which, at all events, are not in these proceedings impeached. In such appropriations, he preferred some debts over others. Whether it was lawful or proper for him to make such preferences, is not a question now before me. All that I have to do is to ascertain whether it was legally criminal for him to do so. It certainly was not; and as that is the only offence imputed to the defendant, besides that growing out of the transaction with Nathan, there is no legal warrant for holding him in custody, and he must be discharged; and he is accordingly discharged