text:
    Warren Oyer and Terminer,
    July 18, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Richard Fuller.
    That an indictment was recently found is not a ground for putting off a trial in a capital case, especially where the prisoner has been a long time in prison, charged with the offence.-
    It is not good ground of challenge to the array, that the jury was drawn and the panel certified by the deputy clerk, instead of the clerk, who was absent. It is not a good ground of challenge to a juror for principal cause, that he had expressed his opinion hypothetically.
    Where a juror is challenged for favor, and triors are appointed, the juror himself may be sworn as a witness before them, to state or explain any facts which do not impeach his character or his motives.
    Intoxication is a voluntary deprivation of reason, and can not be givenin evidence, even on a trial for murder, to excuse the offender.
    Where a person carelessly discharged a gun loaded with ball into the highway, when it was quite dark, and thereby unintentionally killed a person who was passing, and whom he did not see, such killing was manslaughter at common law.
    The prisoner was indicted for the murder of Andrew Fish, and was tried at the Warren Oyer and Terminer before Walworth, Circuit Judge, and two Judges of the County Court.

      Wm. Hay, Jun., and R. Weston, of counsel for the prisoner,
    moved to put off his trial on the ground that the indictment had been recently found, at the court then sitting.
   The Court decided that as the prisoner had been committed many months before, on the charge of murder, on the finding of the coroner’s inquest, the recent finding of this indictment. was no cause for putting off the trial.

The counsel then challenged the array, on the ground that the jury was drawn and the panel certified by the deputy clerk, in the absence of the clerk.

The Court decided that in the absence of the clerk, thdeputy might lawfully draw the jury and certify the panel That the statute authorizing clerks to appoint deputies, (1 R.L. 523,) was meant to provide for a cáse of vacancy in the office, and to make it compulsory on the clerk to have a deputy. But the clerk at common law might also execute the office by deputy; and the case of the clerkship of Ulster county was mentioned, which, before the revolution, had been granted to Gov. George Clinton for life, and was executed by P. Tappen, his deputy, during the life of Gov. Clinton.

The prisoner thereupon, for the purpose of evading a trial at that time, challenged peremptorily twenty of the jurors, and challenged others for cause, <&c., as having made up and expressed an opinion as to his guilt or innocence.

The Court decided that where a juror had no knowledge of the facts except from hearsay, and had only expressed an opinion hypothetically, as, “ If what I have heard is true,” See., he was not thereby rendered incompetent.

A juror was challenged for favor, and triors were appointed by the court; a witness on the part of the prisoner testified that in a conversation with the juror, a few days previous, he understood him to express a decided opinion as to the guilt of the prisoner.

The counsel for the people asked that the juror might be sworn and testify before the triors, to explain the conversation which was testified to by the witness.

The Court decided the juror might be sworn for that purpose, as the question did not go to impeach his character or motives, in any way. He was sworn, and testified that he never had made up any opinion as to the guilt or innocence of the accused, and had not expressed any opinion to his knowledge, except hypothetically, as, “If what he had heard was true,” &c. And if the other witness had understood him to express a positive opinion, he had either misunderstood him, or that he, the juror, had said what he did not intend to say; and that he had no recollection of ever saying so. The triors, after consulting together a few minutes, decided that the juror was indifferent between the prisoner and the prosecution, &c.

The counsel for the prisoner offered to prove that he was intoxicated at the time of the commission of the offence.

The Court decided that the evidence was improper; that intoxication was a voluntary deprivation of reason; that if a person under the influence of liquor does an act which would be a crime if he were sober, the intoxication is an aggravation of the offence, and can not be given in evidence in mitigation of the guilt of the prisoner.

The prisoner discharged his gun, loaded with a ball, into the public highway about 9 o’clock in the evening, when it was quite dark, and killed Fish, who was in the highway, a few feet only from the muzzle of the gun; and if he shot him intentionally, as the evidence tended to show, there could be no doubt but that he was guilty of murder.

The Court charged the jury, that if they should be of opinion that the prisoner was not guilty of murder, but that he shot the deceased unintentionally, without knowing that he was there, still it was not excusable homicide. For the act of firing into the street in the manner described, was gross carelessness, and was calculated to endanger the lives of persons passing along the street. That killing a human being by such carelessness, would constitute the crime of manslaughter.

The jury found the prisoner guilty of manslaughter only, and he was sentenced to fourteen years’ imprisonment in the state prison.


source: Caselaw Access Project

author: Walworth, Circuit Judge.

license: Public Domain

text:
    Montgomery Oyer and Terminer,
    July 21, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Andrew Willey.
    That the prisoner was intoxicated is no defence to an indictment for perjury.
    The prisoner was indicted for perjury. It appeared that in June, previous to the trial, he came in company with one or two other persons, from the county of Schenectady to a magistrate in the county of Montgomery, to whom he was a stranger, and made a complaint against one James Thomas, for the murder of a man on hoard of a sloop on the Mohawk river, in that county, and he testified to a number of facts, positively charging Thomas with the crime. It appeared by a number of witnesses that the whole story was an entire fabrication.

      B. Chamberlin, for the prisoner,
    offered to prove that he was intoxicated at the time he came before the magistrate and obtained the warrant j and the counsel stated that such a defence had been admitted by Chief Justice Spencer in a case of perjury-

      W. I. Dodge, (District Attorney,) for the people.
   Walworth, Circuit Judge.

It is a general rule in criminal prosecutions, that the intoxication of the accused is no defence and forms no excuse for the commission of a crime . It has been frequently so decided even in the case of murder, though Judge Van JYess once permitted the fact of intoxication to be proved to rebut the presumption of malice, where a man had been killed in a sudden affray, and to show that the act was the effect of sudden passion, and not of premeditation. But the correctness of that decision has been much doubted. There can be nothing in a case of barefaced perjury, like the present, to take it out of the general rule. There must be some mistake about the case said to have been decided by Chief Justice Spencer. But even if he did so decide, it was contrary to the uniform decisions of courts in relation to such a defence, and therefore can not be the law.

The jury, without leaving the bar, found the prisoner guilty, and he was sentenced to ten years’ imprisonment in the state prison.

         2 Coke Lit. 247; 1 Plow. Rep. 19; 4 Coke’s Rep. 125; 1 Hawk. P. C. 2; 1 Hale’s P. C. 32; Burn’s I., title “ Alehouse," 14, and “ Lunatic.”


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    Saratoga Oyer and Terminer,
    July 29, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Erial Hewit.
    On the trial of an indictment for forgery, where the witnesses disagree as to the genuineness of the signature, comparison of hands is admissible,  and the prisoner may prove hy the cashier of a hank or others, who are in the habit of examining signatures With a view to detect forgeries, that the instrument alleged to be forged is not a simulated hand.
    The prisoner was indicted for forging a note against one Elisha Oakley, for twenty-live dollars. Oakley testified that he gave to the prisoner a note for $5, of the same date as the one produced, hut that he never gave one for $25, and .that his name subscribed to the note was not his signature. Several witnesses stated that they were acquainted with the handwriting of the prosecutor, and believed it was not his handwriting. On the part of the prisoner, several witnesses testified that they believed it was the handwriting of the prosecutor.
    The counsel for the prisoner then produced a number of writings, to which the name' of fhe prosecutor was subscribed, which signatures were admitted to be genuine, and offered to prove by comparison with the signature on the note that it was in the same handwriting. The prisoner also offered to prove, by the cashier of a bank, that the signature to the note was a genuine signature and not a simulated one.

         Note.—It is usual, in the ecclesiastical courts, to admit comparison Of handwriting, in contests respecting the execution of wills. Beaumont vs. Perkins, Heath vs. Watts, Rexley vs. Rivet, 1 Phillimore’s Rep. 75 to 80, Goodtitle ex dem. Rivet vs. Braham, 4 Term R, 497 in B. R.

   Walworth, Circuit Judge.

It is laid down as a general rule of evidence, that comparison of handwriting is not to be permitted. But this rule must be taken with many exceptions. I apprehend the true rule to be that comparison of hands is not to be admitted as direct evidence, to prove or disprove the genuineness of a signature or writing. But in a case where the ordinary evidence of that fact is so contradictory as to leave it doubtful, then such evidence may be given; as in this case, where many witnesses equally well acquainted with the band-writing of the prosecutor, have formed different opinions of the genuineness of the signature, from their knowledge of his handwriting. From my own experience, I am satisfied that the comparison of handwriting is frequently more to be relied on, in such cases, than the ordinary evidence which is given as to handwriting.

The prisoner may also prove by the cashier who has been in the habit of examining the signatures to notes and bank bills, to ascertain their genuineness, that the signature to this note is not a simulated hand. It is such evidence as is given every day on indictments for passing counterfeit money.

Prisoner acquitted


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    Saratoga Oyer and Terminer,
    July 29, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Gilbert Wood.
    If a servant, entrusted with the care of a horse of his master, takes it from the stable of his master, with intent to run away with it, he is guilty of stealing. The horse in the stable of the master is in the actual possession of the master and not of the servant.
    The prisoner was indicted for horse stealing. He was in the employ of the owner of the horse, as a common laborer; and it was part of his duty to water and feed the horse, which was kept in a stable. In the absence of the owner and his family, the prisoner went to the barn and took out the horse and saddled and bridled him, went to the house and took from thence a coat and pantaloons belonging to the prosecutor, and rode off. The prosecutor returned, and missing the horse, &c., he pursued the prisoner and overtook him about ten miles from the place, from which the horse had been taken, and evidently running-away with the horse.
    The counsel for the prisoner insisted that as the prisoner had been entrusted with the care of the horse, he should have been indicted for embezzling, and that he was not guilty of stealing.
   Walworth, Circuit Judge.

There can be no pretence in this case, that the horse was in the legal possession of the prisoner at the time it was taken. The horse in the stable was not only in the constructive but in the actual possession of the owner. It was there the offence was committed by the prisoner in taking the horse from the stable, with intent to run away with it. It was therefore never legally in his possession.

Prisoner convicted.


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    Saratoga Oyer and Terminer,
    July 29, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. John Snyder.
    A person indicted for burglary in breaking and entering, &c., with intent to steal, and then and there stealing, &c., may be acquitted of the burglary and convicted on the same count for the simple larceny.
    The prisoner was indicted for burglary for breaking and entering the dwelling house of William Stratton, at Saratoga Springs, and stealing boots, shoes, &c.
    The place in which the felony was committed was a room in the dwelling house of Stratton, occupied by him as a shoe shop. There was no communication between the shop and the other part of the house, which was occupied by Stratton’s family, except by an outside door which opened into a yard surrounding the whole building. The whole building was erected together under the same roof; and some of the rooms occupied by the family were above and some on the same floor with, and some below the room occupied as a shop.

      S. G. Huntington, for the prisoner,
    objected that the offence was not burglary, and that as there was no count in the indictment for petit larceny, the prisoner must be acquitted.
   Walworth, Circuit Judge.

The indictment in this case includes the felonious stealing of the boots and shoes; and it is a general rule, that where an indictment for felony includes a felony of a lesser degree, the prisoner may be acquitted of the greater and convicted of the lesser offence. As in an indictment for petit treason, the prisoner may be acquitted of that offence and convicted of murder or of manslaughter. And in an indictment for burglary, where a felonious taking of the goods is also charged to constitute the crime of burglary, the prisoner may be acquitted of the breaking and entering the dwelling house in the night time, and may be convicted of the simple larceny. The court is also of opinion that the shop, as it was situated in this case, constituted a part of the dwelling house. It was under the same roof, built at the same time, occupied by the same person, was nearly surrounded by rooms occupied by his family, and the whole was separated from the street by a common enclosure .

Prisoner convicted of burglary. ’

         Rex vs. Gibson et al, 1 Leach, 357; Archbold, 166.


author: Walworth, Circuit Judge,

text:
    Saratoga Oyer and Terminer,
    July 30, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Samuel Vinegar.
    The principles by 'which a jury are to be governed, on an indictment for an assardt and battery with intent to commit murder, are the game as on an indictment for murder.
    Where the prisoner was the aggressor, and commenced the attack and made use of such weapons, &c., as were calculated to endanger life, it was held that malice would be inferred, and that the fact that the prisoner was in the heat of passion, would not mitigate the offence into a lesser crime.
    The prisoner was indicted for assault and battery upon Richard Van Der Carr, with intent to murder him.
    The prisoner and Van Der Carr were at work in a store in Waterford, carrying out wheat which Samuel Sillman was measuring up, Van Der Carr, without being in anger, was calling the prisoner by bad names and endeavoring to irritate him; and the prisoner had once or twice clinched him, but they had been parted by the person who was measuring the grain. The prisoner had become very angry; apd after they had beep parted th.e last time, as Van Der Carr turned to go from him, the prisoner seized a nail hammer which lay near him, and running .up behind him struck him with it on the back of his head and knocked him down; and he gave him a second stroke before Sillman, the other person present, discovered him. Sillman then attempted to get the hammer from him, but the prisoner struck him and drove him back, and gave to Van Der Carr a third stroke; and he was in the act of re-* peating it when his arm was arrested by another person who came to their assistance. A surgeon, who examined the wounds, testified that each blow of the hammer had broken through Van Der Carr’s skull; and that the ordinary effect of such blows would be to destroy life.

      G. W. Kirtland, for the prisoner,
    contended that he was not guilty of assault and battery with intent to murder, as it was in the heat of passion.
   Walworth, Circuit Judge,

charged the jury that the principles by which their decision was to be governed, were the same as on an indictment for murder. But it was not every case of taking life in a sudden affray, or in the heat of passion, which could be mitigated into manslaughter. Malice might be, and frequently was inferred from the particular circumstances of the case; as where the prisoner commenced the attack and made use of such weapons as would be likely to endanger life. In this case, if the prisoner intended to take the life of Van Der Carr, he was guilty of the offence charged in the indictment, and would have been guilty of murder if he had succeeded.

Verdict, guilty.


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    Franklin Oyer and Terminer,
    August 21, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Reuben Banker.
    On the trial of an indictment, the counsel for the prosecution has the right introduce in evidence the examination of the prisoner taken before the committing magistrate, although it appears by such examination that no confessions were made by the prisoner, and that he refused to answer or to give any account of the transaction in question.
    The prisoner was indicted for passing counterfeit money. He had passed several bills and had others in his possession. He was a transient person and pretended to be traveling. There were many facts to induce a belief that he knew the bills to be counterfeit, and that he was a retailer of counterfeit bills.
    The counsel for the people offered his examination, taken before the magistrate, in evidence.
    The counsel for the prisoner objected to the evidence, on the ground that no confessions or admissions whatever were made before the justice, and that the bare refusal of the prisoner to answer could not be evidence against him.
   Walworth, Circuit Judge.

The proceedings before the magistrate are always legal evidence of what actually took place on such examination. The examination is taken as well for the purpose of enabling the accused to explain the unfavorable circumstances which appear against him as to obtain a knowledge of those facts which may tend to convict him oí guilt. It is true that the person arrested and brought before a magistrate for examination is not bound to make any answer whatever, either to show his guilt or innocence of the charge alleged against him. But if he does refuse to give any account of himself, or of the transaction, the court and jury on his trial have a right to know that fact, in a case like the present, where the offence must in all cases depend either iy?on the admission of the party or upon circumstantial evidence. Such a refusal alone can not be sufficient to convict any person of a„crime. but if there are strong circumstances against a prisoner, and he has refused to improve this opportunity, which the law gives him, to explain those circumstances, he can not complain if the jury "presume they could not be explained consistently with his innocence.


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    Franklin Oyer and Terminer,
    August 22, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. John Bates.
    Assault and battery, with intent to commit a rape, may be proved without the testimony of the person injured.
    Where there is reason to believe that the person injured is kept out of the way by the prisoner or his friends; and the assault and battery, ha., are proved by persons who heard the cries of the woman and witnessed the transaction from a distance, the jury may infer the intent from the circumstances as proved.
    The prisoner was indicted for an assault and battery, with an intent to commit a rape on Anne Cubes, who was not present at the trial. She and her husband were transient persons and foreigners, and there were strong reasons to believe they had been hired to go off by the friends of the prisoner. Brown, the principal witness, who resided in Canada, had been offered a sum of money if he would "not appear against the accused. Brown testified that in passing along the road, in a retired place near evening, he heard -the cries of a woman for help. Passing over a small hillock in the road, he discovered the prisoner who had hold of Mrs. Cubes, and was apparently attempting to drag her into a small piece of woods adjoining the road. She was screaming and appeared much frightened. "When the witness came up, she requested him, though a stranger, to go with her to her residence. The prisoner ordered the witness to be off; who thereupon called for assistance to others who came in sight, and the prisoner on discovering them, fled into the woods.

      J. Parkhurst, of counsel for the prisoner,
    contended that he could not he convicted for this offence without the testimony of Mrs. Cubes, upon whom the rape was charged to have been attempted.
   Walworth, Circuit Judge.

The testimony of the person injured is not absolutely necessary in a case of this kind; which differs materially from the case of an actual rape. This is only a question of intention. That question the jury must determine from the cireumstahces of the case. And I can hardly imagine how they could he made stronger, if the woman was herself a witness. If she could explain these circumstances so as to make them consistent with the innocence of the prisoner, it was his duty to procure her attendance at the trial.

The jury found the prisoner guilty, and he was sentenced to seven years’ imprisonment, in the state prison.


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    St. Lawrence Oyer and Terminer,
    August 28, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. William Kirby.
    Every willful and intentional talting of life of a human being without a justifiable cause, is murder at common law, if done with deliberation and not in the heat of passion, and legal malice is always implied in such cases.
    It is not necessary to prove express malice or ill will against the person killed'; thus when children were drowned to prevent their coming to want, it was held that the law would imply malice from the illegality of the act.
    Every person is presumed to be sane until the contrary appears.
    The prisoner was indicted for the murder of John Hughes, a boy four years old.
    The facts, as they appeared on the trial, were as follows: The prisoner with his wife and three children, the two oldest being children of his wife by a former husband, came to the village of Ogdensburgh from Canada in search of employment, about four days before the alleged murder, and put up at a public house. About 10 o’clock in the morning of the fourth day after his arrival at Ogdensburgh, he took the two youngest children (his own daughter about two years old, and his stepson about four years old,) to the bridge which crosses the Oswegatchie river in the village, and threw them into the river and they were then immediately carried under the ice and drowned. A woman who resided near the bridge, saw the transaction from her window and came out and asked him whose those children were, and he replied they were his. He then went deliberately into a law office near by and inquired for a magistrate, and being informed there was one present, he said he had just drowned his two children, and wished to be committed to jail before his wife found it out. He was committed for examination, and in the afternoon was examined before the magistrate, and stated, in substance, that he drowned the children in the manner above stated, and that he had it in contemplation to drown them for about a week previous. The Children had given him no offence, but he drowned them because he thought it better for them to go into eternity than to stop in this world. He intended to destroy himself with the children, but at the moment he was about to do it, the thought struck him that suspicion might rest on his wife, and he determined to stay to prevent such suspicion. That for the last six months he had determined to destroy himself, and believed he should have been happy if he had drowned himself with the children. He was educated a Christian and believes in the gospel.
    Prisoner was cool and collected, and to the question, did he not know he was commanded by the scripture not to kill, he replied, “ The Lord did not destroy Cain;”
    A physician attended the examination of the prisoner, and endeavored in a variety of ways to ascertain, if possible, whether he was insane generally or partially, or on any particular subject, and he could discover nothing to induce a belief that the prisoner was insane. The sheriff and jailor, in whose custody the prisoner had been for eight months before the trial, testified that during that time he had discovered nothing like insanity, or to induce him to think he was not in the possession of his senses like other men. The sheriff also produced several quires of manuscript, written by the prisoner on religious subjects while in jail, which contained no evidences of mental derangement, but, on the contrary, exhibited much strength of reasoning and showed that the prisoner must have received a good education.
    Several witnesses from Canada, where the prisoner had worked the previous summer, testified that he acted rather singularly, was frequently in a reverie, and was writing a considerable part of the time when not employed at labor. His family were then absent and he appeared very anxious to have them come to him, and when they did come, he appeared very affectionate to his wife and the children. He sometimes talked of destroying himself, and one night he went out, as he said, for the purpose of drowning himself. The family where he boarded became alarmed, and were out several hours in pursuit of him, along the shores of the river, but did not find him. During the night he got into the house through the window, and in the morning he said if the tavern keeper had given him a gill of liquor he should have then been in eternity, but he would not give it him. At another time he told a British sergeant he was a deserter, and went with him to the fort to deliver himself up, but returned after two or three days. One of the clergymen of the place, who had frequently visited prisoner in jail since his confinement, had conversed with him on religious subjects, thought some of his ideas very singular and his mind sometimes appeared confused. One time he asked witness if he thought sin would damn a man, and on witness answering in the affirmative, he replied he thought it was not sin but unbelief that damned men. Witness told him God hated sinners with a perfect hatred, and he said he ' did not believe it. That it was sin God hated, but he did not hate sinners. These were the ideas he thought singular, and , which induced him to think prisoner’s mind was not perfect.
    ‘ He generally appeared serious and solemn, but would sometimes indulge in ill-timed laughter when they were conversing on serious subjects.

      F. Atwater and J. Kirtland, the counsel for the prisoner,
    contended that there was sufficient evidence to satisfy the jury the prisoner was laboring under mental derangement. But if they were not satisfied of that fact, the prisoner could not be convicted of murder, for there was no evidence of malice against the children, bgt, on the contrary, it appeared he was much attached to them.
   Walworth, Circuit Judge,

charged the jury that if they were satisfied the prisoner was in the perfect possession of his mental faculties, he was guilty of murder, although he had no express malice against the children; that if he intended to destroy himself, and drowned the children to prevent their coming to want, or to relieve his wife from the burden of supporting them, the law implied malice from the illegality of the act. Every willful and intentional taking the life of a human being, without a justifiable cause, is murder, if done with deliberation and not in the heat of passion, and legal malice is always implied in such cases.

That the important question in this case was, whether the prisoner was under the influence of mental derangement at the time the act was done. If such was the case, he was not guilty of any crime whatever. But if he was in the perfect possession of his senses, it was murder. That this was a question of fact which belonged to the jury exclusively to decide; that every person was presumed to be sane until the contrary appeared; that there were several circumstances in this case from which an inference might be drawn that the prisoner had not his perfect mind. And the court referred to the time, place and manner of the act and the particular circumstances attending it, as some of the strongest evidences in the case to show a deprivation of reason.

The jury retired, and after being out about thirty minutes, returned a verdict of guilty against the prisoner.

The circuit judge, however, doubting the sanity of the prisoner, reported the case to the governor, who commuted the punishment.


text:
    Oneida Oyer and Terminer,
    December 17, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. John P. Hartwell.
    Verbal agreements as to proceedings upon an indictment made by parties and their counsel, in the presence of a court of Oyer and Terminer, wBl be enforced, if the court has jurisdiction of the case to which they refer. But jurisdiction of an indictment pending in another court cannot be conferred by such an agreement.
    But where, under such an agreement, the prisoner gave hail to appear at the next court of Oyer and Terminer, the court refused to discharge him from such recognizance, on the ground of the general jurisdiction of the court over all crimes and offences, and required the prisoner to give bail to appear in the court in which the indictment was pending.
    The prisoner had been indicted at the court of General Sessions of the Peace in Oneida county, and the indictment had been removed by certiorari into the Supreme Court,
       but the certiorari had not been returned. At a former term of this court, a verbal agreement had been made by the public prosecutor and the counsel for the prisoner, in the presence of the court, that the indictment should be tried in the Oyer and Terminer at the present term, and the defendant gave bail for his appearance at this lime.

      Jonas Platt, of counsel for the prisoner,
    moved to put off the trial of the cause on an affidavit of Hartwell that the agreement had been entered into by his counsel without his consent, and that he was not ready for trial and had hot come prepared, on the supposition that the cause could not he tried. From the facts shown on the part of the public prosecutor, there ivas reason to believe the only object of the prisoner was delay.

         A certiorari to remove an indictment from the General Sessions, is abolished. (2 Rev. Stat. 732.)

   Walworth, Circuit Judge.

Verbal agreements, made in the presence of the court, will be enforced; but the great difficulty in this case is that the court had not jurisdiction in the case. The indictment being removed from the sessions by certiorari, it is in the Supreme Court, and this court can only have jurisdiction of the indictment by its being sent here by procedendo, or certiorari, and thereby leave the indictment as it was before the filing of the certiorari. At the time the agreement between the parties was made in the presence of the last court of Oyer and Terminer, that court not being possessed of the cause, the whole proceeding was coram non judice, and could not give jurisdiction to the court.

Platt insisted that the prisoner should be discharged from his recognizance, on the ground that the court had no jurisdic tion to take it, having no jurisdiction of the case.

Walworth, Circuit Judge.—Although the court of Oyer and Terminer had no jurisdiction over this particular indictment, which had been removed into the Supreme Court, yet it had general jurisdiction over all crimes and offences, and might take surety for the peace, or a recognizance to appear at the next court of Oyer and Terminer to answer any indictment which might be found. He has voluntarily entered into a recognizance, and he can not, under the particular circumstances of this case, be discharged therefrom, unless he will consent to give new bail to appear in the Supreme Court from time to time, and at the next Circuit Court in this county, where the trial on this indictment might be had.

The prisoner gave new bail to appear at the next Circuit Court, to have his trial on the indictment and to appear in the Supreme Court on the return of the postea, and gave a written stipulation to plead the general issue to the indictment in the Supreme Court, forthwith, and was thereupon discharged from his former recognizance.


text:
    Oneida Oyer and Terminer,
    December 18, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Peter Burns.
    On the trial of an indictment, it is competent for the public prosecutor to prove, by parol, what the prisoner testified to on a complaint made by him before a magistrate against a third person.
    Where it appeared that such complaint was made, and evidence given by the prisoner against others concerned in the commission of the crime, on the advice of his stepfather, and on the assurance that he would be admitted as “ State’s evidence,” it was held the evidence ought not to be excluded on the ground of admissions obtained by inducements.
    The prisoner was indicted for passing counterfeit money, and the cause was tried at the Oneida Oyer and Terminer, in December, 1823.

      S. Beardsley, (District Attorney,) for the people

      J. A. Spencer, for the prisoner.
   The public prosecutor offered parol evidence of what the prisoner testified before a magistrate on making a complaint against one Dana, which evidence was objected to by prisoner’s counsel.

Walworth, Circuit Judge.

There is no law requiring the

complaint to be in writing. When the accused is brought up for examination, the justice is to reduce to writing the substance of his examination and the testimony of the witnesses, but this does not extend to the original complaint. If the complaint had been reduced to writing and signed by the party, it might be the best evidence of what he stated, But the written memorandums of the justice, if produced, could only be used to refresh his memory, and the evidence would still be by parol. Objection, overruled.

The counsel for the people then offered in evidence the examination of the prisoner, taken according to law, before the magistrate. This was objected to by the prisoner’s counsel, who offered to prove that inducements had been held out to the prisoner to obtain his confession; and for this purpose called the stepfather of the prisoner, who testified that he advised the prisoner to go to the magistrate and make a complaint against others concerned, and that he would be admitted as state’s evidence. It further appeared from the testimony of the prosecutor and magistrate, that the stepfather had taken great pains to screen the prisoner from justice; that he had in one instance enabled him to elude the pursuit of the officer who was endeavoring to arrest him; that he had told the magistrate the prisoner could bring out a large gang of counterfeiters, (which was not true.) The justice intimated to him that the prisoner had better surrender himself upon the warrant, but gave no further encouragement.

Walworth, Circuit Judge.—The examination in this case must go to the jury. Under all the circumstances it is a proper case for them to decide what credit is to be attached to .the testimony of the stepfather, who is called on the part of the prisoner. This is an entirely different case from those in which inducements are held out by the prosecutor, or by the officers of justice to the prisoner, for the purpose of obtaining confesr sions of his guilt.

The prisoner was convicted, but was recommended by the court for a pardon, that he might be a witness against another person, who appeared to be a wholesale dealer in counterfeit money.


text:
    Oneida Oyer and Terminer,
    December 19, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. Walter Hoag.
    Forging a receipt for a note of hand, which when paid will he in full, &c., does not come within the provisions of “the act to prevent forging and counterfeiting,” passed April 2, 1813, hut it is a misdemeanor at common law.
    The prisoner was indicted and convicted for forging a receipt in the words following:

      “ Received of Walter Hoag his note of hand for eight dollars, when paid it will be in full of debt, dues and demands of all kinds whatever up to this date.
    Pompey, October 8th, 1819. Ebenezer Carr.”
    The prisoner had forged the receipt and offered it in evidence on a trial at the circuit to prevent a recovery on a note given previous to the date of the receipt.

      Fortune C. White, the counsel for the prisoner,
    moved in arrest of judgment, on the ground that the receipt mentioned in the indictment did not come within any of the provisions of the “ act to prevent forgery and counterfeiting,” passed April 3, 1813.
    S. Beardsley, (District Attorney,) for the people
   Walworth, Circuit Judge.

The provisions of the act extend to any acquittance or receipts, either for money or goods, or any accountable receipt for any bill, note or other security for the payment of money. But the receipt mentioned in this indict ment does not come within either of these descriptions. It has been frequently decided by our courts that the giving of a promissory note was not an acquittance or discharge of the debt. This is undoubtedly a casus omissus in the statute, and not being a felony at common law, the prisoner can not be imprisoned in the state prison. But the offence of which the prisoner is convicted is a misdemeanor at common law, and the words against the form of the statute in the indictment may be rejected as surplusage, and judgment given against him for the common law offence.

The prisoner was sentenced to pay a fine of $25, and be imprisoned thirty days in the county jail, he having already been long in confinement.

         See the King vs. Ward, 2 Ld. Raymond, 1461; 1 Strange, 12; 1 Salk. 342; 2 East P. C. 862.


author: By the Court, Wright, J.

text:
    Supreme Court. Albany General Term,
    December, 1848

      Harris, Watson and Wright, Justices.
    Ephraim M. Low, pl’ffin error vs. The People, def’ts in error.
    7\ie statute makes “hank notes ” and not “ hank bills” the subject of larceny. But where the property stolen was called in the indictment “bank hills,” it was held sufficient, bank notes being commonly called and known as bank bills.

      H is not sufficient, in an indictment, to describe the property stolen as “ sixty dollars in hank hills, current money, of the value of sixty dollars,” or “ hank hills, being current money of the State of New York, of the value of sixty dollars.” The number of bills stolen should he stated.
    On the trial of an indictment for larceny, alleged to have been committed in stealing bank notes, the jury must he satisfied from the evidence of their genuineness; and where the court refused to charge that the prisoner ought to he acquitted, unless the evidence showed their genuineness, it was held to be erroneous, and the prisoner having been convicted, the conviction was reversed and a new trial ordered.
    Error from the Oyer and Terminer of Ulster county, where Low was convicted of grand larceny. The indictment contained five counts, describing the property as follows: 1st count, one pocket book of the value of 50 cents, and $60 in hank hills, current money, of the value of $60. 2d count, one pocket hook of the value of 50 cents, and (6) six bank hills of the value of ten dollars each, current money of the State of New York. 3d count, one pocket book of the value of 50 cents; two bank notes of the value of $10 each; three bank notes of the value of $5 each; three bank notes of the value of $3 each; two bank notes of the value of $2 each, and three bank notes of the value of $1 each. 4th count, one pocket book of the value of 50 cents; fifteen notes for the payment of money, commonly called bank bills, of the value of $5 each, and fifteen other notes for the payment of money, commonly called bank bills, of the value of $3 each. 5th count, one pocket book of the value of 50 cents, and its contents, to wit, bank bills, being current money of the State of New York, of the value of $60.
    The evidence tended to show that in August, 1847, Brodhead Van Leuven, the complainant, received some $74 in bank bills from one Brower, $60 of which was in what one Stratton called current and $14 uncurrent. Van Leuven employed Stratton to count the bills. He put the $60 in one side of his pocket book and the $14 in the other side. That day Van Leuven and the prisoner went in company to Rondout. Drank there a number of times; stopped on their way back to Kingston at one Myers and drank there; was at Myers’ about sundown. At Myers’ Van Leuven had his pocket book out and exhibited two rolls of bank bills; one roll Dubois, one of the witnesses, testified was Kingston money. He wanted a bill changed from another roll of $13 or $14. Both Van Leuven and Low were intoxicated, and were noisy. From Myers’ they went in company to Low’s oyster cellar, in Kingston; Van Leuven got some oysters, took out his pocket book to pay for them, laid it on the counter with the current money in it; Low was on the opposite side of the counter. Whilst unfolding the uncurrent money to pay for the oysters, Low said that he had change; he took the change from his pocket and paid for the oysters. At this time the pocket book and its contents were missed, and were not seen or heard of afterwards by Van Leuven.
    There was no evidence as to the denomination of the bank bills alleged to have been in the pocket book, or upon what bank they were, whether of this state or not. The counsel for the prisoner requested the court to charge the jury, 1st. That the prosecution were bound to prove the bills to haye been of the particular description stated in the indictment, and in the absence of such proof the prisoner should be acquitted upon the charge of stealing the money. 2d. That they should not find the prisoner guilty of stealing the money unless the evidence showed the genuineness of the bills, or that they were upon banks of this state. Whereupon the court, as to each of said propositions, refused so to charge; but decided that the proof was sufficient under the first and last counts of the indictment, to which refusal and decision the counsel for the prisoner excepted. The jury found the prisoner guilty.

      E. Cook, for prisoner.

      R. F. Macauley, (District Attorney,) for the people.
   By the Court, Wright, J.

The counsel for the prisoner requested the court to charge the jury that the prosecution were bound to prove the bills to have been of the particular description stated in the indictment, and in the absence of such proof the prisoner should be acquitted upon the charge of stealing the money. This the court refused, and decided in substance, although the bill of exceptions does not very aptly express the meaning of the court, that the first and fifth counts of the indictment were good, and that the proof given was applicable to them. Those counts charged the stealing of bank bills generally, of the value of $60. In the second, third and fourth counts, the number and denomination of the bills and notes were particularly described, but without any averment as to what banks issued them, or whether they were foreign or of this state. Indeed, in none of the counts is it averred that the bills alleged to have been stolen were issued by any bank of this state.

The conviction under the decision and charge of the court was had under the first 'and fifth counts of the indictment, and if they ore bad it can not be sustained. Property, as bills and notes, was not the subject of larceny at common law. It -is made so by statute. It is provided that the felonious taking and carrying away the personal property of another, of the value of more than twenty-five dollars, shall be grand larceny; and that if the property stolen, consist of any bond, covenant, note, bill of exchange, draft, order or receipt, or any evidence of debt, or any public security issued by the United States, or by this state, or of any instrument whereby any demand, right or obligation shall be created, increased, released, extinguished or diminished, the money due thereon or secured thereby, and remaining unsatisfied, or which in any event or contingency might be collected thereon, or the value of the property transferred or affected thereby, as the case may be, shall be deemed the value of the article so stolen. (2 R. S. 679, §63, 66.) The property described in the first and fifth counts of the indictment, as stolen, is bank bills. In this respect it is urged that the indictment is bad, as bank bills are not eo nomine embraced in the descriptions of property made the subject of larceny by statute.

As a general rule, where an offence is created by statute, the indictihent should aver such facts and circumstances as bring the case within the definition of the statutes; and in describing the offence, it is always expedient to pursue strictly the words of the statute. Formerly the courts of England, in favorem vitce, were sometimes inclined to listen to and countenance very nice distinctions on the subject. A British statute made the stealing of bank notes ” a felony. In the case of The King v. Craven, (2 East P. C. 601,) the indictment charged the defendant with stealing “ a certain note, commonly called a bank note.” It was holden bad because it did not follow the description of property in the statute. Our statute describes as property; the subject of larceny, a bank note, a bill of exchange, a draft, .order", or any evidence of debt, or any instrument whereby any demand, right or obligation is created. A bank bill is not mentioned, obviously for the reason that what is commonly called a bank bill, is in legal effect a bank note, and possesses the technical characteristics of a note and not of a bill. In this case, had the indictment described the property as bank notes, the objection would have been obviated. To steal a bank note is an offence under the statute. Bank notes are ordinarily called bank bills, and are universally understood to be obligations for the payment of money on demand, passing from hand to hand as money. In common signification, when we speak of a bank bill, we allude to what is called in the statute a note, and which is issued and circulated as money; of that I think courts may take judicial notice. When ah indictment, therefore, charges the stealing of bank bills, it is in effect the charge of larceny under the statute. The distinction would be quite too nice at this day, when the forfeiture of life does not follow a conviction, to hold that because the precise words in the statute, though the property is the same, has not been used in the indictment, the objection is fatal.

The first and fifth counts describe the property stolen as “ sixty dollars in bank bills, current money of the value of sixty dollars,” and bank bills, being current money of the State of New York, of the value "of sixty dollars.” This, it appears to me, is too general and without precedent. The counts contain no statement as to the number of bills stolen, whether two or twenty; and number is a part of the description applicable to chattels, and should not be omitted. (Archbold’s Crim. Plead. 45; 2 Russell on Crimes, 107; 2 Hale, 183; Barb. Crim. Law, 168, 169.) In an indictment for stealing bank notes, it is not necessary to set out the instruments verbatim. They may be described in a general manner, as a bank note; nor is it necessary to state the value of each note; but the number must be stated, and then it is sufficient to.state the value in the aggregate. In respect to number, the indictment should be certain. Archbold says: “ When personal chattels are the subject of an offence, as in larceny, they must be described specifically by the name usually appropriated to them, and the number and value of each species or particular kind of goods stated. (Arch. Cr. Pl. 49; 2 Hale, 182, 183.) The omission to state any number of bills stolen, may be technical; but in an indictment for felony, when the liberty of the citizen is placed in jeopardy, there should be certainty and precision. The prosecution should at least be called upon, to a reasonable extent, to specifically apprise the defendant of the charge against him. But the doubt that I entertain on this point, is whether the defect can be urged after conviction, on a bill of exceptions. That it would have been fatal on demurrer is clear; and it is possible it might have been successfully urged on a motion in arrest of judgment. But'whether advantage may be taken of it in the manner now resorted to, is perhaps immaterial to decide, as there is a remaining point in the case conclusive against the judgment.

The counsel for the prisoner further requested the court to instruct the jury that they should not find the prisoner guilty of stealing the money, unless the evidence showed the genuine ness of the bills, or that they were upon banks of this state, this the court refused to charge, and, as the bill of exception states, decided that the proof was sufficient under the first and last counts of the indictment.” It was certainly necessary before the jury could convict of any thing more than petit larceny, for stealing the pocket book, that they should be satisfied that the bills alleged to have been taken had been issued by banks having -an existence, and that such bills were genuine. In The People v. Caryl, (12 W. R. 547,) the prisoner was indicted for stealing within this state a number of bank bills, purporting to have been issued by the Bank of Upper Canada, and by the Hancock Bank of the State of Massachusetts. No proof was adduced on the trial, by the public prosecutor, to prove the existence of the banks and the genuineness of the bills. The court were of opinion that at least prima facie evidence ought to have been given that there were such banks in existence, and that the bills were genuine. In The People v. Johnson, (4 Denio R. 364,) it was held that there must be some evidence to show that the bills were genuine. In the present case, had not the point been distinctly made to the court, it might, perhaps, have been inferred that the genuineness of the bills was not to be contested before the jury. But it was made in explicit terms, and I can not understand the decision of the court in any other way, than as refusing to charge that the prisoner should be acquitted of stealing the bills, though the evidence failed to satisfy the jury that they are genuine. The attention of the court having been called to it, the question of the genuineness of the bills being one for the jury, ought to have been submitted to them, and a refusal to do so was erroneous.

Judgment reversed, and new trial ordered.


text:
    Kings Oyer and Terminer,
    October, 1849.
    Before Morse, Justice of the Supreme Court, and the Justices of the Sessions.
    The People vs. Charles Sprague.
    It is a defence to an indictment for crime, that the act complained of was done under an insane impulse, which, at the time, destroyed the capacity to distinguish between right and wrong.
    On the trial of an indictment for robbing a female of her shoe, in day light, in the public street of a city, it being proved that the accused had been, for several years, and ever since an injury to his head, which it was supposed had affected his brain, in the habit of taking the shoes of females, wherever he could find them, and secreting them without any apparent object for so doing, and that insanity was a hereditary disease in the family of the prisoner on the side of his mother, with other circumstances tending to establish monomania, after hearing the testimony of eminent medical men on the subject, the prisoner was acquitted on the ground of insanity.
    The prisoner was indicted for robbery, alleged to have been committed upon the 18th of August, 1849, and was tried at the Oyer and Terminer for Kings county, on the 10th of October following.

      H. B. Duryea, (District Attorney,) for the people.

      J. Dikeman and A. J. Spooner, for the prisoner.
   Sarah Watson testified that about eight o’clock in the morning of the 18th of August, she was walking along Pearl street, in the city of Brooklyn, and hearing some person behind her, looked round and saw the prisoner, who immediately seized her, threw her down, and took a shoe from one of her feet, and ran away. She testified that at the time, she had a gold chain upon her person, but that it could not be seen by the prisoner. She also stated that there was a man near by, who was unknown to her, but who hallooed at the prisoner, and gave chase to him, but that the prisoner outran him and escaped. It was admitted by the prisoner’s counsel, that the shoe of Miss Watson was found in the prisoner’s overcoat pocket, about ten o’clock of the same day, at the printing office of the Long Island Star. It was proved that the prisoner was a printer by trade, and was then employed as a journeyman in the office of the Star; that he came to the office upon that morning at his usual timé, hung up his overcoat and went to his work as he had done before. One of the proprietors of the Star, hearing of the circumstances of the outrage upon Miss Watson, and her description of its perpetrator, suspected the prisoner, and demanded of him the shoe he had taken from the foot of a young lady that morning. The prisoner replied, “ It’s in my overcoat pocket.” The shoe was taken from the pocket of the prisoner’s overcoat, and afterwards identified by Miss Watson as the one taken from her in the street. The prisoner made no attempt at concealment or explanation.

The counsel for the prisoner admitted that if the prisoner was sane, he was guilty of the crime for which he was on trial. The prisoner’s counsel called the

Rev. Isaac JV. Sprague, father of the prisoner, a highly respectable congregational minister, v^ho testified that the prisoner’s age was twenty-five years; that he had generally resided in the family of the witness, but had spent a year with a brother at Hartford, Connecticut, where he went about four years before; that since his return from Hartford the prisoner had lived with the witness; that the prisoner was married in the year 1847, and was with his wife living at the house of the witness at the time'of the assault upon Miss Watson; that the prisoner had, at different times received wounds and bruises upon the head; that when quite young he was struck with a hoe near the crown of the head, producing an open wound, which after sometime closed and healed up; that when about twelve years old, the prisoner fell from a cherry tree, striking upon his head. That witness, with his family, moved to Hartford in 1837 or 1838, and soon after the prisoner fell from the balcony of a second story, and was brought home insensible; that no immediate effect seemed to be produced upon the prisoner’s mind by this accident, but that soon after his conduct became strange. He testified that-his (witness’s) mother had been insane for eight years, and some part of the time in an insane hospital; that a brother of his mother became insane and hung himself; that two sisters of his mother were occasionally insane; that his grandmother, on his mother’s side, was also insane. He stated that he and his wife had always known the mind of the prisoner to be not as strong as the minds of their other children; that after the fall from the balcony the prisoner was more carefully watched and kept in, and some painful indications were developed in the prisoner—as at times a remarkable prominence of the eye, and a dullness, which appeared to increase, and a physician was consulted. An effort was made to educate the prisoner for college, but found that could not be done. About this time a shoe of some female member of the family would be missing, and when found would frequently be wet and crumpled up; that a girl, named Almira Godfrey, who was living in witness’s family at the time, was at first suspected, but at length one of her shoes was missing, and when found was also wet and crumpled like the others. The family then suspected Charley, (prisoner,) and soon ‘found it was he who took away the shoes. When a shoe was missing, it would be found sometimes under his pillow, sometimes between the straw and feather bed, sometimes in his trunk, and sometimes in his pocket, generally with clothes wound round the shoe, as if to conceal it. That the prisoner, before his fall from the balcony, had been truthful, and of a frank and open demeanor, and willing to acknowledge the truth, though to his disadvantage. After it was found he took the shoes, whenever one was missed and I spoke about it, he would hang his head and say he did not know, but the shoe would be found somewhere secreted. On some occasions, when a shoe had been missed, and found under his pillow, his mother would say to him, “ Charley, another shoe gone;” to which he would reply, “ I’m sure I didn’t do it;” his mother would say, “ I found it under your pillow;” then he would admit it. He seemed not to have a memory of the fact. I punished him for taking shoes, but I soon thought I could recognize the features of insanity in his conduct. Pains were taken to keep shoes out of his way, and they were put in drawers, and he would take them out of the drawers in the night. At times the prisoner had fullness of eyes, a vacancy of the eye was frequently apparent. We kept him in evenings, and away from exciting amusements. About the time of the affair for which prisoner is on trial, he complained a good deal of headache; that witness had sometimes sent Charles (the prisoner) to the country. He was once away for about two years. His practice of taking and secreting shoes has continued down to the present time, although it has intermitted. I went to board with prisoner last May His wife would miss her shoes occasionally, and they would be found where the prisoner had secreted them.

On cross-examination, this witness said that he saw the wound from the hoe; that he did not see the wound caused by the prisoner’s fall from the cherry tree, which to.ok place in Vermont; that he saw the wound occasioned by the fall from the balcony: that all apprehension passed away in a day or two after the fall from the balcony, but soon after came the protruding and glassiness of the eye; that he was then between twelve and fourteen years old, and went to school; that his moral sfense seemed to be somewhat blunted; that he was not as truthful as before.

There were also read in defence, the deposition of Thomas Sprague, of Michigan, (a brother of prisoner,) and of Mary E., his wife, and of Julia A. Hyde, a sister of prisoner’s father, and of Oliver Hyde, her husband, of Rebecca Freeman and Maria King, all witnesses living out of the state. The depositions of Thomas Sprague and wife were principally to the habit of the prisoner while living with them, to take shoes of ladies and secrete them. Some of the depositions spoke of the fact of the fall from the cherry tree in Vermont, and some of them proved the insanity of the relations of the prisoner, in corroboration of the statement of the prisoner’s father.

Charles II. JficholsM. D., testified that he was twenty-nine years of age; that from May, 1847, to March, 1849, he Avas at the State Insane Asylum at Utica, and in April, 1849, came to the asylum at Bloomingdale, of which he had had the charge since. That while he Avas at Utica there Avere about eight hundred patients in the asylum, and about one hundred and fifty at Bloomingdale. This Avitness testified that from the testimony in the case, he was clearly of the opinion that the prisoner was laboring under derangement of mind; that the act charged appeared to him to be an insane act; that it was not uncommon for monomaniacs to secrete, and to endeavor to escape; that cases of strict monomania Avere very rare, but do exist, and in such cases all conduct not affected by the peculiar delusion, may be perfectly rational. The cases of insane impulse are more frequent than those of monomania; acts done under insane impulse are more likely to be remembered than those done under the influence of morfomania.

Theodore L. Mason, M. D., testified that insanity is the genus, monomania a species, and that the impulsive characteristic may be common to both general and partial insanity. He was oi the opinion that the prisoner was partially insane, and that the act for Avhich he Avas on trial, Avas done from an insane impulse

The evidence being closed, the case was submitted under the charge of the court.

The Presiding Judge charged the jury, that there was no question made, that the prisoner had done the act alleged in the indictment, and that the only question for them to decide was whether the prisoner at the time of the act done, was a responsible moral agent. That if at the time he did the act the prisoner was of sound mind, and capable of judging between right

and wrong, then he was guilty of the crime charged upon him, but if he was of unsound mind, and acting under an impulse which at the time overthrew or obscured his knowledge, or capacity to judge of right and wrong, then he was not capable of committing a crime, and must be pronounced not guilty. That it seemed quite unnecessary to go into any consideration of the question of general insanity, as the whole defence had been put upon the ground that the prisoner was partially insane, and that the peculiarity of his insanity consisted in what appears to the sane mind an objectless desire to possess himself of the shoes of females, and to hide and spoil them. That insanity, as a defence, was an affirmative matter; and in order to be allowed, must be proved beyond all reasonable doubt. 1/ they were satisfied beyond reasonable doubt that the prisoner did the act charged in the indictment under an insane impulse, being at the time incapable of knowing right from wrong, it would be their duty to return a verdict of not guilty; but if they were not satisfied of the prisoner’s insanity, it would be their duty to find a verdict of guilty.

After a short absence, the jury returned with a verdict of not guilty