author: T. R. Strong, J.

text:
    Supreme Court. At Chambers, Erie,
    January, 1857.
    Before T. R. Strong, Justice.
    The People v. Augustus P. Beigler.
    The jurisdiction conferred on the police justice of the city of Buffalo, hy section thirty-five, chapter two hundred and thirty of the Session Laws of eighteen hundred and fifty-three, is only exclusive in respect to the other justices of said city, and does not take away the power of a coroner of the county of Erie to issue process, and to commit to prison under the provisions of the Revised Statutes.
    Upon a question of bail before indictment on a charge of murder, where the accused, having been committed by the coroner, is brought before a justice of this court on habeas corpus, examinations before the coroner may and should be looked into, to ascertain whether a crime has been committed, and, if so, the strength of the proofs in support of it; and if such' examinations show that the crime, if any, does not exceed the grade of manslaughter, and a fair doubt exists whether the defendant has committed any felony, bail should he taken.
    On the 6th day of January, 1857, at the city of Buffalo, on the petition of the defendant, a writ of habeas corpus was allowed by the said justice, directed to the sheriff of the county of Erie, commanding him to have the body of the defendant, with the time and • cause of the defendant’s imprisonment, before said justice at the old court-house in said city, on the eighth day of said month. At the time a=nd place specified for the return of the writ, the defendant was brought before the said justice by the sheriff, and the sheriff returned to the writ that he detained the defendant by virtue of a warrant of commitment, a copy whereof was annexed to the return, and the original was produced. The warrant purported to have been issued by S. E. S. H. Nott, a coroner of the county of Erie, on the 3d day of January, 1857; was directed to the sheriff, &c., of said county; and after reciting that the defendant had been charged, upon inquisition taken before said coroner, on the 23d day of December, Í856, on the oaths of six persons, naming them, with having, on the 19th of December, 1856, killed and murdered one Julia Rosendale and infant, at the city of Buffalo ; that the defendant had been brought before the coroner to answer the charge; and that upon the examination on oath, in the presence of the defendant, of several persons, whose names were given, and on the examination of the defendant without oath, &c., it appeared that said crime had been committed, and that there was probable cause to believe the defendant guilty thereof, commanded the sheriff, &c., to convey and commit the defendant to jail, there to remain until he should be discharged by due course of law. The defendant made and presented an answer to the return, duly verified by his oath, denying that the coroner had any right, authority or jurisdiction to take the examination of the defendant, or to commit him to prison, for the reason, as the defendant was informed and believed, and therefore alleged, that the complaint was made to and before the coroner in the city of Buffalo ; that the warrant for the appearance of the defendant was issued by the coroner in the city; and the examination of witnesses on the charge was conducted within the city; and that at said times the police justice of said city was not absent therefrom, and was able to hear the complaint and take the examination. The defendant further alleged in his answer that he was not guilty of the offence charged in the warrant, or of any other criminal offence. The inquisition referred to in the warrant of commitment, taken before the coroner, with the examination of witnesses sworn and examined on that occasion, and the subsequent examination of witnesses before the coroner upon the examination of the defendant, also referred to in the warrant, were produced for use on the hearing upon the return and answer to the writ of habeas corpus; and the hearing was then and there had.

      E. Cook, for the defendant.

      J. M. Humphrey (District Attorney), for the people.
   T. R. Strong, J.

The first question discussed at the hearing arises upon the denial by the defendant of the authority of the coroner to take the examination of the defendant upon his arrest upon the coroner’s warrant, or to commit the defendant to prison. This denial of authority is based upon the assumption that the provisions of the Revised Statutes, in the article entitled “ Of coroners’ inquests” (2 R. S., 743, §§ 6, 7), declaring that if the jury find that any murder, manslaughter or assault has been committed, and the party charged with such offence be not in custody, “ the coroner shall have power to issue process for his apprehension, in the same manner as justices of the peace;” and that “the coroner issuing such process shall have the same power to examine the defendant as is possessed by a justice of the peace, and shall, in all respects, proceed in like manner,” as well as any common law authority which a coroner may possess in such a case, are, with certain exceptions not embracing the present case, abrogated, as to an examination and commitment of a defendant, by certain provisions in the charter of the city of Buffalo, relating to the powers of the police justice of that city. The latter provisions are to be found in Laws of 1853 (496, §§ 35, 36). By section thirty-five, the police justice shall have sole and exclusive jurisdictian in the city to hear complaints and take examinations in criminal cases, except as is otherwise provided by this act.” By section thirty-six, “ warrants for the arrest of persons charged with crime may be issued by any justice of the peace in the city, but shall be made returnable before the police justice. During the sickness, absence or inability of the police justice, or a vacancy in that office, they shall exercise in all criminal matters and proceedings the same power and jurisdiction, &c., as justices of the peace in towns.” These sections manifestly were intended to relate only to justices of the peace of the city; and to confer upon the police justice sole and exclusive jurisdiction, for the purposes named, only in respect to the other justices of the city. The provision in section thirty-six, that warrants may be issued by any justice of the peace in the city, but shall be made returnable before the police justice, and the omission of a like provision for the' return of their warrants as to coroners and other officers having power to issue warrants and take examinations in criminal cases, clearly show that it was the justices of the peace in the city, other than the police justice, whose powers were designed to be curtailed by the previous section, giving the police justice exclusive jurisdiction. If the position of the defendant was sound, those two sections would take away the general powers of the justices of this court, and of the county judge of the county of JDrie, within the city of Buffalo, in respect to the examination of offenders and their commitment for trial, declared in 2 Revised Statutes (705, § 1), as well as those of coroners of that county. Indeed, all those officers would virtually be divested of all authority as to the arrest of offenders in that city, when there was a police justice able and ready to act, as they could not make their warrants returnable before the police justice, nor themselves proceed to take examinations, &c.

It is insisted, on the part of the defendant, that as the powers of coroners, by the statute, to examine defendants in the cases specified are the same as is possessed by justices oí the peace, that their powers are to be measured by those of justices in the locality where coroners are called to act; but I think it is plain that the legislature intended, by the section declaring the powers of coroners, that they should be as full and ample as those of justices of the peace generally throughout the state.

If the coroner was not authorized to examine or commit, the defendant would not necessarily, as is conceded, be discharged. The Revised Statutes (vol. 2, p. 568, § 43) declare that if, on the return to a habeas corpus, the party imprisoned “ appears by the testimony offered with the return, or upon the hearing thereof, to be guilty of a criminal offence, although the commitment be irregular, the court or officer before whom such party shall be brought shall proceed to let such party to bail, if the case be bailable and good bail be offered, or, if not, shall forthwith remand such party.”

It is next made a point by the defendant’s counsel, that upon the merits of the charge against the defendant there was not sufficient evidence to warrant the-commitment, and he should therefore be set at liberty. The counsel contends that the merits of the case, as presented by the testimony taken before the coroner, may be reviewéd bn habeas corpus, and if, in my opinion, the charge against the defendant is not sufficiently proved, I may wholly discharge him. It is not necessaiy, in the view I ’take of the case, to decide whether the doctrine thus broadly stated can be sustained; for, assuming that it is correct, I am satisfied that upon the case made by the proofs an entire discharge of the defendant ought not to be granted. A brief general outline of the case, upon the testimony, may properly here be given. It is, that the deceased, Amelia Murr, lived at the house of the defendant, in Rochester, as a domestic, from about a year ago last September to' about the following March ; that she then went to Mrs. Moore’s, of that city, a seamstress, the situation having been procured for her by the defendant; that she remained there until about September last, when she went to Buffalo and there remained up to her death, on the twenty-first of December; that for the entire period she was there the defendant visited her at intervals of about three or four weeks; that she was then pregnant; that while there she was called Bosendale; and the defendant was introduced to Mrs. Mercer, the woman with whom she boarded, as Doctor or Mr. Bosendale, her uncle; that he stated to Mrs. Mercer that the husband of the deceased was in California; that while the deceased was at Buffalo, the defendant frequently called at the house of her parents, in Bochester, and on one or more occasions represented to her mother that Amelia was married to Frederick Bosendale, whom he knew, and she was happy with him, and was in Erie; that in the evening of the nineteenth of December last, the deceased was left alone at her boardinghouse, with the exception of a little child placed in her care for the evening, and was then in comfortable health for a woman in her condition, except she had a cough and complained of difficulty of breathing; that in the course of the evening the defendant called upon her, and they went together to the Bailroad Hotel in Buffalo; that the defendant had, about four or five o’clock in the afternoon of that day, been to that hotel and engaged a room for himself and lady, or wife, who, he stated, was up at her friend’s; that the defendant entered his name on the hotel register, “D. A. Biglow and lady;” that they occupied the room part of the night; that about twelve o’clock in the night the defendant came into the bar-room and said his wife was sick with the asthma and could not lie in bed; that subsequently he ordered a carriage to take her back to her friends; that she was taken to her boarding-house, and carried into the house, being unable to walk and in great pain; the defendant gave directions to have her made as comfortable as possible, also sending for a physician, and left some funds and promised to pay well for taking care of her; the defendant also directed Mrs. Mercer to write to him every other day as to her condition, and wrote his address and left it with Mrs. Mercer, being, “ Mr. Frederick Eosendale, care of Dr. A. P. Biegler.” The deceased suffered great pain, from difficulty of breathing and otherwise, until Sunday evening then next, when she was delivered of a child of about seven months’ gestation, which was dead at delivery, and in less than an hour afterwards died. Several physicians, who were examined, testified to their having made a post mortem examination of the body of the -deceased mother, and to appearances of the body and marks upon the child, indicating, in the opinion of some of them, the use of instruments before the child was delivered, and that the deaths of the mother and child proceeded from such a cause; others formed the opinion that the deaths were from natural causes. Various other circumstances on both sides of the case, having an important bearing upon the question of the guilt or innocence of the defendant, are disclosed by the testimony; but enough of the case has been stated for the purpose of this decision. It will be seen, I think, from this general view, that the defendant could not, with propriety, be unconditionally set at liberty.

The remaining question discussed before me is, whether the defendant should be admitted to bail. No doubt can exist in regard to my power to release him on bail; it is a question of sound judicial discretion whether that power shall be exercised, to be guided by adjudged cases. It is not necessary in this case to go into an extended examination of those cases. If the examinations taken, and which are before me, show that, although the defendant is charged with murder, his crime, if any, does not exceed the grade of manslaughter, and a fair doubt exists whether the defendant has committed any felony, I think they clearly require that bail should be taken. The general doctrine on this subject will be found fully stated in The People v. McLeod (1 Hill, 376); and notes to that case (3 Hill, 667, 672), in the extended and valuable notes there to be found, wherein are collected many of the cases; The People v. Van Horne (8 Barb., 15S), and cases there cited; The People v. Hyler and others (2 Park. Cr. R., 570). All the cases agree that, upon the question of bail before indictment, examinations before the coroner may and should be looked into to ascertain whether a crime has been committed, and, if so, the strength of the proofs in support of it; and I have therefore, , with that view, carefully read and considered the examinations in the present case, which are very voluminous. There is much in them calculated to excite the sensibilities; but it has been my earnest purpose throughout the investigation to act upon the case with coolness and deliberation, indulging, so far as I could properly do so, a presumption of innocence, and, so far as my action will affect his rights, to render to the defendant strict and impartial justice. He is entitled to the benefit of the law fairly administered, while he is responsible to the law for his conduct.

The Revised Statutes, in regard to murder (vol. 2, 656, § 4), provide that “ the killing of a human being, without the authority of law, by poison, shooting, stabbing, or by any other means or in any other manner, is either murder, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances of each case.” By section five, “ such killing, unless it be manslaughter, or excusable or justifiable homicide, as hereinafter provided, shall be murder in the following cases:

“First. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.
“Second. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
“ Third. When perpetrated, without any design to effect death, by a person engaged in the commission of any felony.”

Section nine of the Revised Statutes (2 R. S., 661), in regard to manslaughter, as originally passed, prescribed that “ every person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall be deemed guilty of manslaughter in the second degree.” This section was amended, in 1830, by inserting, between the word “shall” and the words “ be deemed,” the words “in case the death of such child or of such mother be thereby produced.” In 1845 (Laws of 1845, 285) an act to punish the procurement of abortion and for other purposes was passed, which was amended the following year (Laws of 1846, 19), and which act, as amended, embraced the foregoing provision, extended somewhat by some additional words, and repeals section nine aforesaid. The provision, as it now stands, although not so declared in terms, is, and must be regarded, as virtually an amendment of the Revised Statutes, a substitute for section nine and occupying its place. This case does not call for a particular examination of the foregoing provisions; it is sufficient to observe, in respect to them, that if an offence be manslaughter by the Revised Statutes it cannot be murder, the language of section five in regard to murder being, that the killing, “unless it be manslaughter,” &c., as hereinafter provided, shall be, in the cases specified, murder. (Darry v. The People, 2 Park. Cr. R., 606; The People v. Johnson, 1 Park. Cr. R., 29.)

The theory of the prosecution in this case is, that the death of the mother and the infant were occasioned by the employment of instruments to produce an abortion, which is the only one involving crime the evidence tends to sustain; and upon this theory, if a felony has been committed, it comes directly within the statue of 1846, above referred to, and is manslaughter only.

Other reasons might be stated, showing that the crime, if any, does not exceed that of manslaughter, but that already given is sufficient.

It has already been stated that the depositions disclose a conflict of opinion between the physicians who were examined, in regard to the cause of the deaths; some attributing the deaths to the use of instruments, and others to natural causes. This conflict produces some doubt as to the defendant’s guilt. The doubt is as to a crime having been committed, and not as to the author, if there has been a crime.

Without further extending this opinion, I will merely add, that on account of this doubt, in connection with the fact that the true grade of the offence, if one has been perpetrated, is not murder, but manslaughter, I have come to the conclusion, after much anxious consideration, that the case is within the established rule requiring bail to be taken.

I shall accordingly admit the defendant to bail, upon his executing a proper recognizance, with four sureties of sufficient ability, to be approved by me, in the penalty of $12,000.


source: Caselaw Access Project

author: By the Court, S. B. Strong, P. J.

license: Public Domain

text:
    Supreme Court. Kings General Term,
    January, 1857.

      S. B. Strong, Birdseye and Emott, Justices.
    The People v. James B. Caryl.
    On the trial of an indictment for an assault and battery, it appeared that the defendant was a conductor' on a railroad, .and that the act complained of was committed in forcibly ejecting a passenger from a car, before he had reached the station for which he had purchased his ticket, one ground of defence being that the passenger had conducted himself in a violent and disorderly manner, so as seriously to disquiet the other passengers, held that it was competent for the defendant to prove the passenger guilty of such misconduct during any part of his entire passage, it being a short one, and that it was erroneous to restrict the evidence to the last three miles of the passage.
    It is erroneous to charge that a conductor on a railroad has no authority to eject a passenger from the car for misconduct, except when it is such as to disturb the peace and safety of the other passengers. Grossly profane or indecent language may be a sufficient ground for expulsion.
    It is not competent on such a trial to give evidence, on the part of the prosecution, of the general temperance and sobriety of the passenger ejected. His conduct on the passage is alone in question.
    Where, on the trial of such an indictment, it was one of the grounds of defence that the passenger improperly refused to surrender his ticket, when requested .by the conductor to.do so, it was held to be proper for the defendant to prove what was the regulation and custom' of the company, as to the place of collecting tickets for the station to which the passenger was going.
    When the regulation of a railroad company, as to the place of collecting tickets from the passengers on a railroad, is a reasonable one, and a passenger refuses to comply with it, it is the right of the conductor to require the passenger to leave the cars, and, if he refuses to go, he may be ejected without unnecessary violence.
    Certiorari to the Court of Sessions of Westchester County.
    The defendant was indicted for an assault and battery, alleged to have been committed on one Thomas Elliott, and pleaded not guilty. The indictment was tried at the Westchester sessions, where the defendant was convicted.
    On the trial, Thomas Elliott was called as a witness, and proved that he took passage on the New-York and Harlem railroad at the city of New-York for Tuckahoe, Westchester county, and purchased a ticket for that place; and that he was violently ejected from the cars at Hunt’s Bridge, before reaching Tuckahoe, and nearly four miles distant therefrom; that just after leaving Williams’ Bridge, a station three miles from Hunt’s Bridge, the conductor called on Elliott for his ticket,- which he refused to surrender up to him.
    The defendant’s counsel offered to show that Elliott’s conduct throughout the whole trip was noisy, disgraceful and disorderly, and such as to annoy the passengers in the cars and to interfere with their repose and comfort. This testimony was objected to by the district attorney, and excluded by the court so far as it tended to show disorderly conduct before the arrival at Williams’ Bridge, on the ground that conduct below that point could furnish no pretence to defendant to put Elliott out of the cars at Hunt’s Bridge; to this decision the defendant excepted.
    James Dusenbury, a witness for the prosecution, was asked by the district attorney to state what was Elliott’s general character for sobriety. This was objected to by the defendant’s counsel; but the objection was overruled, and an exception taken. The witness then testified that Elliott was a sober, quiet and inoffensive man.
    The defendant offered to prove that the regulation and custom of the New-York and Harlem railroad had always been for the conductors to collect tickets, for all stations up to Tuckahoe, immediately after leaving Williams’ Bridge. This was objected to by the district attorney, who claimed that such usage, if it existed, did not affect the complainant, nor deprive passengers, who insist on their legal right to a ticket, from retaining it until they reach the station next before leaving the cars. The court sustained the objection and excluded the evidence, and the defendant excepted.
    The court, among other things, charged the jury that a conductor on a railroad had no authority to eject a passenger from the car for misconduct, except when the conduct of the passenger was such as to disturb the peace and safety of the other passengers in the cars, to which the defendant also excepted.

      The defendant made a bill of exceptions on which the writ of certiorari was issued.

      Robert Cochran, for the defendant,
    Cited 6 Cowen, 670; 1 Starkie on Evidence, 186; 5 Cowen, 320; Angell on Carriers, §§ 525, 530, b.; Jenks v. Coleman, (2 Sumn., 22); Commonwealth v. Power (7 Metc., 601); 1 American Railroad Cases, 389; Statutes of 1850 (ch. 140, § 35); Willets v. The Buffalo and Niagara Railroad Company (14 Barb., 585).

      Edward Wells (District Attorney), for the people,
    Cited Hollister v. Nowlen (9 Wend., 237); Cole v. Goodwin (254); Roscoe's Criminal Evidence, 96 (ed. of 1846); General Railroad Act (§ 34); Wharton's Criminal Law (311, 312).
   By the Court, S. B. Strong, P. J.

Whatever may be our opinion, from the evidence, as to the guilt or innocence of the defendant, we are bound to award him a new trial, if improper evidence was admitted against him, or competent evidence offered by him was rejected, or the court incorrectly ruled any question of law against him, at any rate in a matter material to his defence.

The defendant based his defence for forcibly ejecting the witness Elliott from the car upon two allegations: First. That he had conducted himself during the passage, and up to the time of his removal, in a violent and disorderly manner, so as to seriously disquiet the other passengers; and, Secondly. That he improperly refused to surrender his ticket when reasonably requested to do so.

As to the first ground of defence, the defendant’s counsel offered to show that Elliott’s conduct, throughout the whole trip, was noisy, disgracefql and disorderly, and such as to annoy the passengers in the cars and to interfere with their repose and comfort. The court refused to receive evidence of such misconduct antecedently to the arrival at Williams’ Bridge, distant about three miles from Hunt’s Station, where Elliott was ejected. Why this, place was assumed as the limit does not appear. At any rate, it was improperly adopted. It was competent for the defendant to give evidence of misconduct during the entire passage, as it was a short one, if it was apparent that the disposition and feeling which prompted it continued and influenced Eliott’s conduct up to the time of his removal. A slight ebullition of passion, or a trivial irregularity at the moment, might not have justified the expulsion. But if it was indicative of a continuance of previously outrageous conduct, justice to the other passengers, as well as to the railroad company, might have called for such a remedial measure.

The charge of the court, upon this point, was also too strong. It was that the conductor has no authority to eject a passenger from the car for misconduct, except when it is such as to disturb the peace and safety of the other passengers. According to this, -a passenger cannot be removed for profane or indecent language, however gross it may be, or however it may offend the delicacy or sense of propriety of the other, and especially female, passengers. That is not reasonable, nor can it be law.

The court improperly rejected evidence to prove that the regulation and custom of the company had always been for the conductor to collect tickets, for all stations up to Tuckahoe (which was to be the terminus of Elliott’s passage), immediately after leaving Williams’ Bridge. That would have shown that the defendant was not influenced by any hostile motives when the ticket was demanded, and would, unless undue violence has been used, have justified his conduct, if the regulation had been a reasonable one; and whether it was or not would have been á proper question for the consideration of the jury.

If the regulation for the collection of the tickets is a reasonable one, and essential for the interests of the company, and a passenger refuses to comply with it, he may, I think, be required to leave the car, and, if he refuses to go, be ejected without unnecessary violence. He has no right to a seat in the cars, while refusing a compliance with a reasonable regulation of the proprietors. The charge of the court to the contrary was, I think, erroneous.

It was wrong, too, for the court to receive evidence of the general temperance and sobriety of the witness. His conduct on the passage in question was alone in issue.

The conviction should be set aside and a new trial granted.


author: Balcom, J. Mason, J.

text:
    Supreme Court. Broome General Term,
    January, 1857.
    Before Gray, Mason and Balcom, Justices.
    The People v. John Golden.
    It is sufficient, in an indictment for petit larceny, charged as a second offence, to aver, generally, that the Court of Special Sessions, before which the defendant was convicted, had full and competent power and authority in the premises, without setting forth the particular facts showing jurisdiction.
    An omission, in such indictment, to state the facts which show jurisdiction, is only a formal defect, which is cured by the statute of jeofails, and is pot available on demurrer.
    Writ of error to the Tioga County Sessions. The defendant was indicted for petit larceny, charged as a second offence. The indictment contained a general averment that the Court of Special Sessions, before which the defendant had been convicted, had jurisdiction, but omitted to state the particular facts showing jurisdiction. On demurrer to the indictment, judgment was given in favor of the defendant, and the people brought error to this court.

      B. F. Tracy (District Attorney), for the people.

      Davis & Walker, for the defendant.
   Balcom, J.

The Revised Statutes contain a section which declares that: “No indictment shall „be deemed invalid, nor shall the trial, judgment or other proceedings thereon be affected,” by reason of several specified defects, omissions and imperfections; and the section concludes in these words, viz.: “ by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.” (2 R. S., 728, § 52, subd. 4.) And the Court of Appeals have held that the statements in an indictment against a person for a second offence of petit larceny, where the first conviction was obtained in a Court of Special Sessions, showing the charge made against him before the magistrate, and in what form, the issuing of the warrant by the magistrate for his apprehension, his arrest and being brought before the magistrate by virtue of the warrant, and his election to be tried before the magistrate for the offence charged in the warrant, pursuant to the provisions of the statute in such cases, are all matters of form; and that an indictment which contained only an allegation that the magistrate before whom the conviction for the first offence was had, possessed full power and authority to hold a Court of Special Sessions and try and convict the accused for such offence, and did convict him, was good. (The People v. Powers, 2 Seld., 50.) The remarks in that case, that the-objection to the indictment came too late to be available (being after the verdict was rendered against the accused), do not detract from the force of the decision as to what allegations in the indictment were matters of form. The decision of the Court of Appeals in that case shows that the defects in the indictment in this case, for which the Tioga Sessions pronounced it bad, are mere matters of form ; and, as the defects could not and did not tend to the prejudice of the defendant, the indictment was valid, and it should have been sustained. (5 Wend., 9; Stevens v. The People, 1 Hill, 261; 3 Barb., 470; 7 id., 462.)

We are not at liberty to question the soundness of the decision of, the Court of Appeals, on the question under consideration, even if we were inclined to do so.

The judgment of the Tioga Sessions, sustaining the demurrer to the first count in the indictment, should be reversed.

Mason, J.

This case comes before us on a writ of error to the Sessions of Tioga county. The defendant was indicted for petit larceny, charged as a second offence. The indictment averred generally that the Court of Special Sessions before which the defendant was convicted had full and competent power and authority in the premises to try and convict the defendant, but did not set forth the facts showing jurisdiction. The defendant demurred to the indictment for this omission to. set forth the facts in the indictment to show the jurisdiction. The Court of Sessions ruled that the general averment of jurisdiction was not sufficient, and held the demurrer well taken and gave judgment for the defendant. Our statute declares that “mo indictment shall be deemed invalid, nor shall the trial, judgment or other proceeding thereon be affected,” by reason of any defect or imperfection in matters of form which do not tend to the prejudice of the defendant. (2 R. S., 72, § 52.) The caxses of The People v. Phelps (5 Wend., 10, 19) and The People v. Treadway (3 Barb., 470) are authorities in point, holding that this omission to state the facts which show jurisdiction is only a formal defect, which is cured by our statute of jeofails ; in other words, that such particular averment, in pleading the judgment of a court of special and limited jurisdiction, is a mere matter of form in pleading, and does not tend to the prejudice of the prisoner. These cases were rightly decided; and I think .that Judge G-ridley did not properly consider the question in the latter case, or he would not have complainingly placed his decision upon the doctrine of stare decisis. He had been so long used to the familiar distinction in pleading, that as to a court of special and limited jurisdiction the pleader must state facts showing jurisdiction, while in regard to a court of general jurisdiction a general averment of jurisdiction is held sufficient, that he has regarded the difference a substantive one in matter of fact, instead of an arbitrary rule of pleading. The courts have held that in pleading the judgments of courts of special and limited jurisdiction a more formal statement shall be required than in pleading the judgment of a court of general jurisdiction. Why is this ? Certainly not because there is not the same substance in the averment in the one case that there is in the other; and were it not for a stubborn rule of pleading, which requires a formal statement of the facts in the one case and allows a general averment in the other, no one would doubt but that the trial of any question of jurisdiction could as well be had under a general averment of jurisdiction in regard to a court of special and limited jurisdiction as of a court of general jurisdiction. It is a mere matter of form, imposed by a rule of pleading, and nothing else. It says to the pleader: as to a court of general jurisdiction you may aver generally that the court had power and authority to render the judgment, but as to a court of limited j urisdiction you shall be required to make a formal statement of facts which establish jurisdiction. It is a mere matter of the form of pleading and nothing more; for whether the jurisdiction be averred generally or the facts establishing it be set forth with particularity, were this formal rule of pleading abolished, would make no difference. In that case, all evidence, either to impeach or sustain the jurisdiction, could just as well be admitted in the one case as in the other. I do not mean to say that this old rule of pleading is unwise because it required a more formal statement in regard to courts of limited jurisdiction, but only to show that the substantive issue is the same in either case, and that it is mere matter of form in pleading. The case of The People v. Powers (2 Seld., 50) is relied on by the counsel for the defendant as a decisive authority against the indictment in this case. I do not so understand that case. On the contrary, the court held expressly, in that case, just what I have held in this, that this defect is matter of form merely, and was cured by the statute. In that case, it is true, the objection was raised after verdict; but that makes no difference if it be matter of form merely, for the statute is as explicit that the indictment shall not be deemed invalid nor shall the trial thereon be affected by reason of any defect or imperfection in. matters of form which shall not tend to the prejudice of the defendant. This statute is as effectual to cure formal defects in the indictment, before and upon the trial, as it is in regard to the judgment or other proceedings; and if the Court of Appeals, therefore, were right in the case of The People v. Powers, in holding the defect complained of a matter of form- merely, then certainly the statute cures the defect in the indictment. It cannot be matter of substance before trial and matter of form after; for a substantive defect in a pleading cannot be cured so easily as that. (1 Chitty's Pl., 712); and if it. is a mere matter of form I do not see how the defect can possibly tend to the prejudice of the defendant.

“ The learned judge, in the case of The People v. Powers, was not sufficiently attentive as to the effect of this statute upon indictments before trial. He has stated the common' law rule correctly and has decided the case correctly, but not having the question before him, as to the effect of this statute upon a defect of this kind in an indictment before trial, he has omitted to give any effect to this statute in its application to a defect of this kind- before trial. The case, however, is not.authority for the defendant.

The judgment of the Tioga Sessions, sustaining the demurrer to the first count in the indictment, must be reversed.

Gray, J., concurred.

Judgment reversed.


author: By the Court, Roosevelt, J. Davies, J., Peabody, J.

text:
    Supreme Court. New-York General Term,
    February, 1857.

      Roosevelt, Davies and Peabody, Justices.
    The People v. William Rando.
    On the trial of an indictment for receiving stolen goods, knowing them to he stolen, it is competent for the prosecution to give in evidence a series of acts of the like character, for the purpose of showing the scienter of the accused, or to rehut any presumption of innocent mistake.
    On the trial of such an indictment, it is not competent for the prisoner to proVé wlíat was said to the clerk of the defendant hy the persons who delivered the stolen property to him, at the time of the delivery, on the premises of the defendant. Peabody, J., dissenting.
    . The prisoner was indicted, tried and convicted, in the New-York General Sessions, for receiving a saddle, bridle and bits, the property of Baltis M; Segee, knowing the same to have been stolen. "
    The questions raised on the trial, and the exceptions taken by the prisoner’s counsel, sufficiently appear in the points made on argument, and in the opinion of the court.

      Henry L. Clinton, for the defendant.
    I. The court below erred in admitting the testimony of Zerfass, Brandon, Neilson, Hamilton, Felheimer, Cummings, Kerr and Nesbitt, in respect to other stolen goods, stolen from other persons than Baltis M. Segee, the prosecutor, and at a different time. Specific exceptions were taken to each and every part of the evidence of the foregoing witnesses touching this point. The law on this subject is stated in Archbold's Criminal Practice and Pleading, 480 (ed. with Wat. notes), as follows: “But the prosecutor will not be allowed to prove that at the time his goods were found in the prisoner’s possession, goods of other persons of the samé description had also been found in his possession, which had previously been stolen; for that is not proof of guilty knowledge.” Upon this point it is stated in 2 Russell on

      Crimes (p. 251): “ Upon an indictment for receiving stolen goods, evidence may be given of different receipts of goods stolen from the same person in order to show guilty knowledge in the receiving, at least, of such receipts as were prior to the one charged in the indictment.” The same doctrine is contained in 1 Phillips' Evidence (p. 475). All that is stated on this subject in Russell, Wharton's American Criminal Law and Phillips' Evidence, is wholly or chiefly founded on The King v. Dunn and Smith (1 Moody C. C., 146). At page 149, it is stated: “ But though this pledging, and disposing, and having in her possession the goods, extended over a great length of time, between four and five months, yet as all the property had been stolen from the same persons, and had all been brought to her by the prisoner Dunn, the learned judge thought it was admissible and proper to be left to the jury, as an ingredient to make out the guilty knowledge.” It will be seen that in none of the elementary authorities or adjudicated cases has the doctrine ever been held, that property stolen from other persons than the prosecutor is competent evidence to prove the scienter.

    II. The court below erred in not allowing the witness John Thompson to prove what was stated by the persons at the time they delivered the cart load of things upon Rando’s premises in his absence, of which it was alleged the articles specified in the indictment formed part. The object of proving these statements was to show what representations induced Rando’s clerk, in his absence and without his authority, to receive upon his (Rando’s) premises these particular goods. This evidence was clearly competent on the question of scienter. The main circumstance existing against the defendant was the fact that the goods were found upon his premises, and thus, constructively at least, in his possession, so as to raise an inference unfavorable to his innocence, as in the case of an indictment for larceny, where the stolen property was found in the possession of the prisoner. Declarations made at the time of the delivery of the goods, by the persons delivering them, are clearly and palpably a part of the res gestee, and as such admissible in evidence. “ The principal points of attention are whether the circumstances and declarations offered in proof were cotemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” (1 Greenl. Ev., § 108.) “Declarations made at the time of the transaction, and expressive of its character, motive or object, are regarded as ‘ verbal acts, indicating a present purpose and intention,’ and are therefore admitted in proof, like any other material facts.” (lb.) “The declarations must be concomitant with the principal act, and so. connected with it as to be regarded as the mere result and consequence of the coexisting motives, in order to form a proper criterion for directing the judgment, which is to be formed upon the whole conduct.” (Id., § 110.) “ Words and writing appear, perhaps, more properly to be admissible as a part of the res gestee, when they accompany some act, the nature and object and motives of which are the subject of inquiry. In such cases words are receivable as original evidence, on the ground that what is said at the time affords legitimate, if not the best means of ascertaining the character of such equivocal acts as admit of explanation, from those indications of the mind which language affords.” (1 Phil. Ev., 194, 195.) “On a charge of larceny, when the proof against the prisoner is that the stolen property was found in his possession, it would be competent to show on behalf of the prisoner that a third person left the property in his care, saying that he would call for it again afterwards; for it is material in such a case to inquire under what circumstances the prisoner first had possession of the property.” (Rosc. Cr. Ev., 25.)

      A. Oakey Hall (District Attorney), for the people.

      I. The ruling of the court, “ that it was competent for the prosecution to prove that other stolen property than that belonging to prosecutor had been found in the prisoner’s possession,” was correct. 1. This ruling has been law passim ever since the case of Dunn and Smith (Ryan & Moody C. C. R., 146 ; 1 Gal., 842), which holds, “ that where there are several distinct acts of receiving, evidence maybe given of such receipts (at least, of all prior to that on which the prosecutor elects to proceed), for the purpose of proving the guilty knowledge in the receiving.” (See also the elaborate note by Waterman, in 3 Arch. Cr. Pr. and Pl., 477, 2 Banks & Gould’s ed.) (1.) I find nothing to the contrary in any of the books. I never heard the doctrine questioned until this case, and I never read of its being doubted since that case of People v. Trenor (Court of General Sessions, 1 City Hall Recorder, 105.) In this case, Wilson, who was with Dr. Graham and Sampson (an illustrious triumvirate of ingenious defenders), objected to proof of any stolen articles received other than those laid in the indictment. The court said: “ The defendant could not be found guilty of receiving stolen goods not laid in the indictment; nor does the public prosecutor offer the evidence for that purpose. Hp offers to produce it as a circumstance to be left to the jury.” (2i) The reason of the rule is this: Receiving stolen goods is no crime of itself. There may be innocent purchasers,' and very often there are. It is the knowledge they are stolon. If a man is in the practice of passing counterfeit money or of buying stolen goods, evidence of this rebuts any presumption of innocent possession or purchase, and raises afiirmative presumption of guilty knowledge or scienter. (3.) So in case of People v. Shotnell (3 City Hall Recorder, 96), the report says: “ It appeared that the defendant had been for a long time in the habit of receiving stolen goods of different kinds, &c.”
    II. , The exceptions to exclusion of representations to defendant’s clerk, in defendant's absence, &c., &c., is certainly untenable. I am unaware of any exception to hearsay evidence that would vary the rule excluding it. To admit such evidence would be very dangerous. The artful representations of thieves, in collusion with a defendant, might, in this mode, be made evidence through the medium of an innocent agent of defendant.
   By the Court, Roosevelt, J.

Where a party is indicted for the crime of knowingly receiving stolen goods, it is competent to' the prosecution to give in evidence a series of other acts of the like character, to show the knowledge or scienter of the accused, or to rebut any presumption of innocent mistake.

It is not competent to the prisoner to introduce the allegations of the persons from whom he received the stolen goods. Such permission would lead to the fraudulent manufacture of evidence without the penalty of perjury.

The exceptions taken at the trial must therefore be over- ■ ruled, and the proceedings of the General Sessions Affirmed:

Davies, J.,

concurred.

Peabody, J.

(dissenting.) — I am unable to concur with my brethren in either of the points presented by this case. In admitting evidence that property stolen from persons other than the party mentioned in the indictment was found in possession of the accused, the court, I think, erred. The evidence seems exceptionable on several grounds. If ■offered to show the accused to be dishonest, and thus assail his character, it was clearly inadmissible, for the case was not in a situation to make evidence to that end proper. The prosecution could not make the issue of character, and the accused had not made it; until he had given evidence to sustain his character the prosecution could not assail it.

And where the issue of character is tendered by the accused, it can only be met by evidence of a general nature. Evidence of a solitary act like this is never admissible, even when proper evidence against character is so. No person can be supposed to come prepared for trial on a charge other than that embraced in the indictment. A general bad reputation is admissible when the accused has chosen to assert and give evidence of a good character, and thus tender an issue on that point; but in this case he had not done so; the evidence raised was not competent in either of these aspects.

But it was improper for a reason more palpable than either of them. In itself it did not show either a general bad character, or even a single act inconsistent with a good one; for it did not show nor attempt to show that the accused, having in his possession goods which had been stolen, had any knowledge of the manner in which they had been obtained. It failed therefore to connect him with the act by which they had been obtained. '.It seems to have been offered as evidence of guilty knowledge of the defendant as to the act charged in the indictment. To render evidence of another act proper at all for this purpose, it must be assumed that proof of guilty knowledge in one case is evidence of it in another, which is I think entirely inadmissible. But the evidence did not show the guilty knowledge even in that case to which it related, and stopped short of the point at which on any theory it could have been deemed admissible. The mere having in his possession goods which at some previous time had been the subject of a larceny of which he had no knowledge, was not at all .inconsistent with his entire innocence in respect to them, and, admitting the evidence given to have been true, it does not show him guilty of any impropriety in respect to them. (Arch. Cr. Pr. and Pl., 480, ed. with Waterman’s notes.)

The indictment charges the defendant with having received one saddle, one bridle and some bits, goods stolen from one Segee, knowing them to have been stolen. On the trial, it appeared that the accused kept a feed store at 507,. and a stable at 505 Houston-street.

The prosecution proved that the stolen property was found on the premises of the accused.

The accused showed that it was brought there by three men in his -absence, and the circumstances under which it was left there with bis clerk or agent ^ and offered to show what was said on the subject between the men bringing it and his agent at the time. To this evidence the prosecution objected and the court excluded it.

The defence then put the question: “ At the time these men left those things there, as you have stated, did they •state for what purpose they wished to leave them?”

This question was also objected to by the prosecution and excluded by the court.

This evidence seems to me entirely competent.' The declarations of the parties to the transaction at the time it took place, on the subject of it, and accompanying their acts at the time, would seem to be quite competent and likely to throw light upon it.

The crime charged is receiving with the guilty knowledge. The receiving is proved. There is no direct evidence of the scienter. The jury are asked to infer it. The circumstances of the receipt, the facts attending it, are shown. The statements or sayings of the parties to the act, respecting it, at the time it was done and accompanying it, are excluded, I can perceive no good reason for excluding them. Nothing could be more likely to unfold the nature of the act or give a character to it than those declarations. They are a part of the res gestee, and as such admissible.

The facts and circumstances attending the receipt are admitted in evidence, and the declarations of the parties accompanying those facts must be, or the case is left without evidence in its nature, as likely to explain and give a character to them as any which can well be imagined. They should be admitted, not as evidence of the truth of the facts stated, but as evidence that such statements were made, without regard to the truth or falsity of them. (1 Greenl. Ev., § 110; Phil. Ev., 194, 5; Rosc. Cr. Ev., 25.)

The only reason urged against this evidence by the prosecution is, that it is hearsay, which might with equal propriety be urged against the testimony to prove a contract by an ear witness or one’s declaration accompanying an act, explanatory. What better evidence can there be of the intent of parties to a transaction than their sayings or declarations in respect to it at the time they perform the acts relative to it?

The court erred in excluding this evidence, I think j and' for each of the above reasons I am constrained to the opinion that a new trial should be ordered.

Proceedings affirmed,

       At a subsequent general term in the same district, counsel in another case declining to argue a point similar to the one in this, relative to the declarations of parties having property which proved to be stolen, on the ground that the question was settled in this district, Mr. Justice Roosevelt, presiding, said that the case was one of much doubt, and had been decided by a divided court, and he for one preferred to consider the question an open one.


author: Harris, J. Gould, J.

text:
    Supreme Court. Albany General Term,
    May, 1857.
    Before W. B. Wright, Harris and Gould, Justices.
    The People v. John Cummings.
    Since, by the Bevised Statutes, a defendant in a criminal case is allowed to make a bill of exceptions, as in civil cases, and have the exceptions examined upon a writ of error, the practice of suspending judgment, to enable the court below to take the opinion of the Supreme Court upon questions raised on the trial, ought not to be encouraged.
    It is no good cause of complaint, on the part of the defendant, that no precept was issued by the district attorney to the sheriff previous to the sitting of the Oyer and Terminer. Its omission, even if it is required to be issued, is not an irregularity of which anybody can take advantage. Per Harris, J.
    No such precept is now, necessary for a regular Court of Oyer and Terminer. Per Gould, J.
    The case of McGuire v. The People (2 Park. Cr. 72., 148), reviewed. Per Gould, J.
    Where, at a stated term of a Court of Oyer and Terminer, an order was entered by direction of the court, adjourning the term until a future day, and also directing the sheriff to summon, “for the adjourned term of the court, sixty jurors (to be drawn in the usual way),” and, at the aijjourned term, part of the number so drawn and summoned, and also a part of the panel which had been drawn and summoned for the regular term, appeared: and the jury which tried the cause was drawn from a box containing the names of both panels, and no objection was made to the regularity of the proceedings until after conviction, it was held, that though the proceeding was technically informal, in the direction given as to the drawing of the jurors, it furnished no good reason for setting aside the verdict or arresting judgment.
    The defendant, at an adjourned session of the Albany Oyer and Terminer, held in November, 1856, was tried and convicted of murder, before Mr. Justice Gould and the associate justices. No exceptions were taken upon the trial. The defendant’s counsel, upon affidavits, moved, at the same term of the court, to set aside the verdict and grant a new-trial, or to arrest the judgment on the ground that no precept had been issued by the district attorney to the sheriff, commanding him to summon the grand jury which found the indictment against the defendant, or the petit jury by whom he was tried; and also for irregularity in the order for additional jurors, and in drawing such jurors. The facts shown by the affidavits are substantially the same as those which appear in the clerk’s return to the certiorari in the case of McCann v. The People (supra, p. 272). The Oyer and Terminer refused to set aside the verdict, but suspended sentence until the opinion of this court could be obtained upon the questions presented upon the motion.

      H. Harris, for the people.

      L. Tremain, for the defendant.
   Harris, J.

Before the Revised Statutes went into operation, there was no such thing as a bill of exceptions in a criminal case. If a question arose upon the trial, in respect to which the court entertained doubt, it might suspend judgment until the advice of the Supreme Court should be obtained. Whether or not this should be done was a question entirely within the discretion of the court. When it was deemed proper thus to obtain the opinion of the Supreme Court, the questions upon which advice was sought were presented by a case agreed upon by the parties, or settled by the court. It was no uncommon thing to review the decisions of criminal courts in this mode. (The People v. Vermilyea, 6 Cow., 555.)

Since, by the Revised Statutes, the defendant has been allowed to make a bill of exceptions, as in civil cases, and to have the exceptions examined upon a writ of error, the former practice has for the most part fallen into disuse, although I believe there have been instances, since the adoption of the Revised Statutes, in which the advice of the Supreme Court has been thus sought. This is probably the first instance, however, in which sentence has been suspended for the purpose of taking the opinion of the Supreme Court upon questions of mere regularity, arising not upon the trial, but upon proceedings preliminary to the trial, and presented, not by a case, but upon affidavits read in the Court of Oyer and Terminer for the purpose of setting aside the verdict. Such a practice is not, in my judgment, to be recommended, for the reason that questions of mere regularity, in no way affecting the merits of the case, and nothing else, are presented for the consideration of this court.

But I proceed to consider the questions presented by the affidavits. The first is, that no precept was issued by the district attorney in conformity with the requirements of the statute on that subject. (2 R. S., 206, §§ 37, 38.) This question has already been examined in the case of McCann v. The People, just decided. If the requirement is to be regarded as at all applicable to stated terms of the Court of Oyer and Terminer, appointed and held in the manner prescribed by the provisions of ihe Code on that subject, it is merely directory; whether or not the precept is issued is a matter which does not concern the defendant, or, indeed, anybody else. The most that can be said of it is, that it is a venerable ceremony which has accidentally outlived its associates, and is as harmless in the breach as it is useless in the observance. Its omission is not an irregularity of which anybody can take advantage.

The second ground of irregularity upon which the defendant relies is, in the form of the order made by the court for summoning additional jurors. The stated term of the Oyer and Terminer was held on the third Monday of September. On the twenty-third of that month the court made an order adjourning the term until the tenth day of November, and also directing the sheriff to summon, “for the adjourned term of the court, sixty additional jurors, to be drawn by the clerk in the usual way.” This order was obeyed; sixty jurors were drawn and summoned; at the adjourned term a part of the number so drawn and summoned, and also a part of the panel which had been drawn and summoned for the regular term in September, appeared. No objection was made to the regularity of the proceedings. The names of the jurors in both panels, and who were in attendance, were placed in the box by the clerk, and the jurors who composed the jury in this case, and in the case of McCann, who was tried at the same session, were drawn from both panels' promiscuously.

It is undoubtedly true that the order in question was technically informal. Having determined to hold an adjourned session of the Court of Oyer and Terminer, it would have been competent for the court, pursuant to the twenty-fourth section of the Code, to direct that a panel of jurors be drawn and summoned as if such court were to be held by original appointment. But then such panel would consist of thirty-six jurors. This number might have been increased by an order of the judge, not the court, that additional jurors, not exceeding twenty-four, be drawn. (2 R. S., 417, §§ 41, 42.) Thus a judge, who is to hold a court for jury trials, may always, if he think fit, have a panel of sixty jurors drawn and summoned to attend such court.

But it is probable that the court intended to proceed under another provision of the statute, by which it was authorized to direct the sheriff to summon from the bystanders, or the county at large, so many persons, qualified to serve as jurors, as might be sufficient to form a jury. The informality consists in directing that the jurors to be summoned “be drawn by the clerk in the usual way,” instead of directing that they be summoned from the county at large. It has been the uniform policy of the legislature to secure, in all cases, both grand and petit jurors possessing the requisite qualifications, and free from all suspicion of partiality or prejudice, by having them drawn by lot from the entire body of citizens liable to jury duty. For this, provision is made by statute in all practicable cases. The order in this case, though not in form authorized by the section of the statute under which it was made, is in conformity with the spirit of the law.

In the case of The People v. Colt (3 Hill, 432) an order was made that the sheriff summon three hundred persons from the county at large. The sheriff selected the persons so to be summoned by copying their names from the jury list in the clerk’s office. This was regarded as unobjectionable. Ordinarily, where jurors are to be summoned for the purpose of completing a panel, there is not time to have the jurors drawn. The sheriff is obliged, from the necessity of the case, to summon such as he can most readily find. The necessity of resorting to this mode of selecting a jury, in any case, has uniformly been deprecated. The jurors in this case were, as the statute requires, summoned “ from the county at large,” and the fact that the court directed that such jurors should be selected by lot from the whole body of qualified jurors, instead of allowing the officers by whom they were summoned to select them at pleasure, is not in my judgment such an irregularity as should, after a trial upon the merits, be allowed to affect the validity of the proceedings. I regard the irregularity, if such it may be called, as similar in effect to that of allowing a juror who does not possess the requisite qualifications to sit upon the trial without objection. This often happens, and yet no one ever imagined that it could be made the ground for setting aside a verdict.

I am unable to see anything in the proceedings which should prevent the Oyer and Terminer from proceeding to pass sentence according to the verdict of the jury.

Gould, J.

regard to the two points raised in this case, it is no doubt well to have the true rule understood, as following it will be a very easy matter whichever way it may be settled. And, first, is it true that there really was no regular jury attending the Oyer, by reason of the district attorney’s not having issued the precept spoken of? (2 R. S., 271, §§ 43, 44, 3d ed.) It certainly has been so held in the case of McGuire v. The People (2 Park. Cr. R., 148), but that decision professes to be based chiefly, and for precedent in this state solely, on the case of The People v. McKay (18 John., 212), and it seems to me it is not sustained by the latter case.

It was said in the McGuire case, and is said in this, that the laws, both as to this precept and as to summoning jurors for the Oyer and Terminer, were the same when the McKay suit was decided a,s they are by the Revised Statutes, and that they continue the same under the Code. I am inclined to think, however, that neither position is strictly correct. The Revised Laws of 1813 (1 R. L., 326, § 6) provided that every venire facias for the trial of any issue, civil or criminal, should be awarded to the body of the county, &c.; and in section nine (id., 327) it is prescribed that the writs of venire facias jurdtores shall contain a precise form of words, showing that a writ of venire was necessary to the summoning of any jury. And though section eleven (id., 328) provides that, fourteen days prior to the sitting of any court of record, the names of the jurors for the trial of issues therein shall be drawn openly and publicly, without any venire previously issued, and goes on to direct the clerk to draw the names, substantially as by the Revised Statutes, and deliver a panel of such jurors to the sheriff, “whose duty it shall be to summon the persons whose names are contained in such panel, and to make return in what manner he has served such process,” not that he should “return” the panel or make any return on the panel , still, section four (id., 326) says the sheriff shall return all writs, juries and certificates, together with the panels, and section fifteen (id., 330) says the sheriff, “to whom any writ or process shall be directed for the trial of issues in said courts, shall annex a panel of the same jurors to all the said writs or process returnable at the same court.” And in the next act (1 R. L., 339, 340, § 16) it is said the sheriff shall cause to come before the Courts of Oyer and Terminer so many good and lawful men, to serve as jurors therein, as said courts or any justice thereof shall from time to time direct; and, in the same section, that the district attorney shall issue precepts, under the seal of the Supreme Court, directed to the sheriffs, commanding them to do what is by said section required of them; returning any panel not being one of the things “ required of them ” by said section.

It is on these statutes that Chief Justice Spencer gave the McKay decision, starting (18 John., 216) with the clear rule that, at common law, a venire was necessary to authorize a sheriff to summon a jury, and holding (id., 217) that, construing these statutes together, as neither authorized the summoning of a jury without some sealed process, the legislature did not intend to supersede the use of a venire, and did not call the panel ordered by the first statute “ a process;” that “the process” which the sheriff was to return was the venire, under the seal of the Supreme Court, and that the only necessity of a venire, after those statutes, was to have the sheriff’s return made on it, on this “process.” And in the statement of the case for the prisoner (id., 213) and the reporter’s marginal abstract, it is expressly stated that “no venire” had been issued; the paper purporting to be a venire being without the seal of the court. The attorney-general (id., 213) admits that “the venire in this case, being without seal, was void;” and in his argument (id., 214) states the then practice to be that the panel, after the jurors named in it were summoned, was, by the clerk, annexed to any venire which might be returned, the practice varying from the law (1 R. L., 330, § 15) only in this, that the clerk did what the sheriff was bound to do; thus showing, by the language of the court and of all parties that that case turned solely on the need of a venire, it being conceded that no venire was issued. It is nowhere stated in that case that the district attorney’s precept was the unsealed venire of the case; and as a true, formal venire was provided for by the first statute, which is the only statute that provides for the drawing or names the panel, and as it appears from the case that a panel was drawn for the court that tried the cause, it cannot be safely asserted that the want of this precept controlled that case, or even that the precept was wanting.

So far, I have considered that case on its own citations, arguments and decision; but I would state a further point, not there called up, nor noted since in any case that I have seen. By the eleventh section (id., 328) the clerk, at least fourteen days before the court, and without any venire previously issued, was bound to draw the jury; whereas, by the sixteenth section (id., 340), the district attorney’s precept was to be issued at least fifteen days before the court; so that this precept must be issued one day “previously” to the drawing; and yet no venire need be issued previously to the drawing. It can hardly be that the precept was the unsealed venire that was so fatal.

But, to compare these statutes with the present law: “It shall not be necessary, in any case, to issue or award any venire for the summoning of jurors to any Circuit Court, &c., except where a foreign jury is ordered.” (2 R. S., 507, § 9, 3d ed.) (See note on page 348 fora sufficient reason; a technical “return” is nowto be made on the panel.) And, —bearing in mind that Cummings was tried at an Oyer held at the same time and place as the Circuit,—it is said (2 R. S., 819, § 2, 3d ed.), in regard to issues of fact on any indictment, “ such trials shall be had by jurors drawn, summoned and returned in the manner prescribed by law; and where any Court of Oyer and Terminer shall be held at the same time with any Circuit Court, the jurors returned for such Circuit Court shall be the jurors for such Oyer and Terminer.” And by the Code (§21) it is provided that “ Circuit Courts and Courts of Oyer and Terminer shall be held at the same places and commenced on the same dayso that it is not now necessary to issue any venire for a jury for any regular session of an Oyer and Terminer. And, to apply the present law to the McKay case, above cited, if the district attorney’s precept was the venire there named, it is, by statute now, if not then,- done away with for any regular Oyer and Terminer; if it was not that venire, then the case is no authority for the McGuire case, and the latter must rest on its own reasoning. Let us see how it stands, on that basis.

By sections forty-three and forty-four (2 R. S., 271, 3d ed.), section forty-one having provided for holding special Oyer and Terminers, the district attorney is ordered, before the time appointed for the holding of “ such or any other Court of Oyer and Terminer,” to issue a precept, tested, sealed, &c., directed to the sheriff, commanding him “to summon the several persons who shall have been drawn in his county, pursuant to law, to serve as grand and petit jurors at the said court, to appear thereat.” And, to show who are, pursuant to law, drawn to serve at the said court, turn to the same volume (p. 509, § 24): “Fourteen days before the holding of any Circuit Court, or of any special Court of Oyer and Terminer, when no circuit is appointed to be held at the same time,” the clerk of the county shall draw the names, &c., of “ persons to serve as jurors at such court.” And (p. 18, § 2 ; Code, § 21), at any regular Oyer and Terminer, held at the same time as a Circuit, the jurors of the Circuit, drawn and returned for it, are to be (not are drawn as) the jurors for the Oyer and Terminer. And it must also be borne in mind that the Code (§23), as well as the Revised Statutes (2 R. S., 271, § 41, 3d ed.), provides for holding special Courts of Oyer and Terminer, which are then held without any Circuit Court. Inasmuch, then, as no “other Court of Oyer and Terminer,” than the “such” special ones as are provided for in said sections forty-one and twenty-three, can possibly be held, except at the same time and place as the Circuit; and as the Circuit jury is drawn for the Circuit only (id., 509, § 24; 819, § 2), but is the jury for the regular Oyer and Terminer, it follows that now, under the Code (and the McGuire case is under the Code), the words or any other ” (§ 43), are utterly inoperative ; and no such precept is necessary for any regular Oyer and Terminer.

To avoid what might thus seem the absurdity of those words (§ 43), it is but justice to say that, by section thirty-four (2 R. S., 270, 3d ed.), it is only provided that the regular Courts of Oyer and Terminer “ may be held at the same time and place at which any Circuit Court may have been appointed to be held.” So that, though the words “ any other ” could never have been strictly operative, to the requiring of the precept, there might, then, have been some other Courts of Oyer and Terminer, besides the special ones, for which the precept was necessary.

It is necessary to consider, next, whether the order of the Oyer and Terminer, to summon sixty additional jurors, was irregular and void. By section three (id., 819), it is provided that whenever, for any reason, there shall not be the names of twenty-four jurors, then attending, in the box, the Court of Oyer and Terminer shall order the sheriff to summon, “ from the bystanders, or from the county at large,” so many qualified persons as shall be “ necessary to make at least twenty-four jurors, from whom a jury for the trial of the indictment may be selected.” There can be no controversy as to the number (sixty) ordered to be summoned, as the statute most certainly does not limit the number, except as to the minimum. For the benefit of the prisoner, to give him an opportunity of selection, so far as the rules allow it, or the fortune of the lot, there must be a full panel of twenty-four; but the maximum is discretionary with the court.

But at the end of this order are the words, “to be drawn by the clerk, in the usual way;” and this clause is claimed to vitiate, to make absolutely void, the prior portion of the order, acknowledged to be, without this clause, good. I will not now inquire into the merits of this point; though the affidavits on behalf of the prisoner show that he wished a chance, not for fair jurors, without any bias, but for “ city jurors,” in the unavowed, and hardly unavowed, hope that they would be biassed in his favor. At present, I will treat it technically. Even for this purpose, it is not necessary to refer to the prisoner’s citation (p. 515, §§ 53, 54), as that by no means changes or interferes with the section already commented on (id., 819, § 3); they are substantially the same, and section forty-one (p. 513) has nothing to do with this case, as that was not intended to be followed (2 Park. Cr. R., 53) applying only to this forty-first section is not here applicable. To proceed then :

As the jury box from which these sixty jurors were actually drawn contained the names of all persons in the county who were both liable to serve and qualified for serving as such jurors, the order as it stands is to all intents and purposes coextensive with, legally synonymous with, an order to summon, in the very words of the statute, “ from the county at large,” and so far there is no error. Had the sheriff, on his own motion, procured the clerk to draw for him sixty names from the box, and .then summoned the persons whose names were so drawn, there could be no pretence of any irregularity. (3 Hill, 434, 436, is directly in point.) But the order to draw them, it is said, took away the sheriff’s discretion as to whom he should summon, and the prisoner is entitled to the benefit of that discretion.

How, had the court verbally so directed the sheriff, there would, it is conceded, have been no error, as it would have been but advisory or directory, and the sheriff could have exercised his discretion in complying or refusing to comply with the direction. Is it anything more than directory now ? The parts of the order are plainly separable, and on its face are separated; the words objected to being in a parenthesis, as if intended merely to assist the sheriff in an arduous duty. If this part were clearly void, the only necessary result was that the sheriff might disregard it, and comply with the part which was as clearly good. That he did comply with both parts is no more an avoidance of the good part, than, as above suggested, would have been his compliance with a verbal remark of the court, not in the order, or his drawing the names without either order or remark: compliance, this part not being valid, is a mere exercise of his discretion. Had the act done been illegal, an invalid order could not have made it legal; and the act done being legal (3 Hill, 434, 436), is it made illegal by an invalid order, or is the entire order made void by the doing, even nominally under it, of a perfectly legal act ? If in any way under or against the order the sheriff had actually summoned them improperly, the array could be challenged; or if improper persons were summoned they could be objected to; but neither of these is alleged. The jury were but too fair, and too fairly summoned, to suit the emergencies of the case.

But I think that the further we look the stronger will be found the reasons for saying that these words had no effect on the preceding good order. I presume it will be conceded at once that if these words be, as an order, a mere nullity, binding no one, the prior parts of the order are not hurt thereby; as utile per inutile non vitiatur. And to prove them a mere nullity, two positions will suffice: First. The sheriff, in and of himself, had no control over the boxes of jurors’ names, and no legal right to touch them ; nor had the court, the Oyer, any right to order him to do so, or any power to help him to comply with such an order; Second. The clerk of the county, and he only, having any right to open or control these boxes, or to draw from them a single name, the court of Oyer and Terminer has no authority over them, as it can make no order, under any circumstances, directing the clerk of the county to draw a single name from either box. Clerks of counties are, ex pfficiis, clerks of that court. (2 R. S., 272, § 50, 3d ed.) But that court has no control over them, except as clerks of the court. As clerks of the counties, they are in all their acts, as such clerks, officers independent of all courts, unless by statute provision. The action of county clerks in the ordinary drawings of jurors is not by the order of any court, but is a duty imposed by statute. (Id., 509, § 24, 3d ed.) And though (id., 513, § 41, 3d ed.) in a, specified case and manner, a circuit judge may order additional jurors to be drawn, and so, by implication, can order it done in the only way in which jurors can by law be drawn, and thus may make an order which really binds the county clerk, as such, still, by no one else, and in no other way, and under no other circumstances, can the county clerk be ordered to draw a jury for such a court. The third section (p. 819) gives no power to order the clerk, even of the court, had he the power to do any such thing; and as before stated, this section, not section forty-one, was followed in this case. The words “ to be drawn” &c,, did no good, and did no hurt. Legally, they are not there; and the order remains good, to the sheriff, to. summon sixty additional jurors. And whatever was actually done, purporting to be a drawing of additional jurors, was, on the part of the sheriff as well as of the clerk, a merely voluntary act, and not a duty imposed by any order. The sheriff has, in fact and in law, merely taken a means to help his discretion; and the sixty were talesmen, duly summoned as such.

Still further: were the prisoner technically right as to this order, I see no reason, even without any statute provision, and in a capital case where it is plain that no injury can have been done, why he should not be held to strict technicality, and be told that he has consented to the jury, with knowledge, or the means of knowledge at the clerk’s desk, of the facts, and the time for him to be technical is past (2 Park. Cr. R., 308); and as to any injuries being done by the organization of this jury, an examination of the case will show that what the prisoner complains of is really that the jurors were too impartial, and that his counsel “intended” to exhaust the regular panel, drawn in the way the law has carefully hedged in to insure competent, unbiassed jurors, “ with the hope that out of the talesmen” to be summoned by the sheriff from the mere bystanders, in haste, and in unavoidable ignorance of their fitness, “ there would be a fair proportion of city jurors but discovering so large a number of jurors in attendance he abandoned this hope of getting partial jurors. The affidavits of Myron, the clerk, and the district attorney show however that this abandonment of the plan was not wise, as there were but twenty-seven jurors in attendance, two of whom were excused from serving for cause, leaving but twenty-five; so that his twenty peremptory challenges would have left but five jurors, and seven might ordinarily be considered a fair proportion of twelve, to be summoned hastily and unadvisedly, for the purpose of not doing justice.

It appears further, by Morange’s affidavit, that notice of the drawing of the sixty jurors was published “at least six days before the drawing,” that being the legal time, in a city newspaper of large circulation, where and as the drawing of the regular panels was advertised; and the prisoner’s affidavits show that, before the jury was impanneled, his counsel knew that this large number of additional jurors had been drawn, though he did not know the “precise terms of the order directing them to be drawn and summoned,” while the district attorney’s affidavit shows that the counsel inquired of several of the jurors for which court, September or the adjourned term, they were summoned.

In all this is there any violation of legal principle, any matter of infringed rights, anything of possible prejudice or injustice to be found? any reason why, simply because the case is momentous in its issue, there should be indulged a straining after technicality to pronounce this jury improperly or illegally organized ? All such cases are momentous to others than the accused. Public justice is involved in the matter. The whole people have interests to be prejudiced, and rights to be impaired, and life to be endangered, by any rule that, under cover of seeking the straightest technicality of law, subverts justice.

Beyond this there seems to me to be, to both the prisoner’s points, a sufficient answer in the fullness of our statutes in regard to the class or kind of objections which shall be ineffectual at such a stage of a cause; since those statutes cover any defect or imperfection in matters of form, in either indictment or trial, which shall not tend to the prejudice of the defendant. (2 R. S., 519, 520, 813, 814, 3d ed.) And it is especially worthy of note that the statutes in force when the McKay suit was tried, not only do not cover this ground (1 R. L., 497, 13), but the statute of jeofails relating to civil suits, which is as broad as our present statutes last cited, contains a provision that it shall not extend to criminal cases (1 R. L., 122, § 11), which sufficiently accounts for that decision. This law was “ revised” in 1829.

These latter citations of the statutes were not fully made or enforced to the court in the McGuire case, and that they were not there considered at all is plain, as no remark whatever is made on that point. Two years later, however, the general term in this district (2 Park. Cr. R., 308, 311) did hold a train of reasoning which fully sustains my position. And though the decision referred only to the manner of summoning the grand jury, the reasoning fully covers the case of the petit, and substantially holds the point I have just stated. This case also holds that even in capital cases, a prisoner, after trial, is too late to take a technical point as to a matter of mere form prior to the actual trial. (2 Park. Cr. R., 308); and this part of that decision would preclude the prisoner from taking either of the points made in this case, each being, at most, a mere irregularity, working no injustice. (7 Wend., 417, 428.)

In fact, as the case shows, the prisoner had an entirely unexceptionable, impartial jury, to whom he took no exception, and he must be bound by their verdict.

The Oyer and Terminer should proceed to sentence.

       By the present law the sheriff is hound to return this panel to the court, specifying on it who were summoned and how, so that now the technical return • is on the panel (2 R. S., 511, § 30, 3d ed); a total difference.

       This reason has ceased (see previous note), and cessante ratione, cessat et ipsa lex.

       Does the prisoner need two processes, that more than one return may be made I (See prior notes.)