text:
    Superior Court of Buffalo.
    December General Term, 1854.
    Houghton, Verplank and Clinton, Justices.
    The People v. George Horton.
    It is no objection to an indictment that it was found while an investigation of the charge was pending before the committing magistrate.
    There is no rule of practice making it imperative, in criminal cases, to put over the trial, upon affidavits of a prescribed form and substance.
    Where an application is made by a defendant, in a criminal case, to postpone the trial, strict practice requires the prisoner to make in his affidavits a full disclosure of the names of his witnesses and the facts he expects to prove by them, though such strictness may well be waived by the District Attorney or by the court, on an application made at the term when the indictment is found; and where there is no appearance of ill faith, the court ought to grant a reasonable opportunity to supply defects and omissions in the affidavits before the decision upon the application.
    The postponement of the trial of an indictment, on the application of the prisoner, is in no case a matter of legal right, but rests upon the discretion of the court. In resisting such a motion, the District Attorney may state facts touching the merits of the application; and the demeanor and conduct and conversation of the prisoner in the presence of the court, may properly be taken into consideration, and the minutes of the grand jury may be referred to for the purpose of ascertaining the materiality of the matters proposed to be proved by the absent witnesses.
    In deciding upon such an application, the same credence cannot be given to the affidavit of a person indicted for felony, as to the uncontradicted affidavit of a parly to a civil action.
    The prisoner was arrested upon a charge of grand larceny, upon a magistrate’s warrant, and while standing committed for further examination, was indicted for the same crime at the Oyer and Terminer. On being arraigned in that court, he demanded a trial, and the indictment being sent to this court, he was tried and convicted two days after such arraignment. On a bill of exceptions he moved for a new trial. The grounds of the application are sufficiently stated in the opinion.

      C. S. Macomber, for the prisoner.

      A. Sawin (District Attorney), for the People.
   By the court,

Clinton, J.

The motion to quash the indictment upon the ground that the investigation of the charge was still pending before the committing magistrate when the in dictment was found, was frivolous. The grand jury has jurisdiction to inquire of and present all offences committed within the county. Had there been anything in the objection, the prisoner could have had advantage of it only before pleading.

His counsel requested the court to charge three several propositions of law, and “ then and there excepted ” to the refusal of the court. It is not necessary to pass upon all these propositions. It is sufficient to say that one of them is unsound. It is a well settled rule that the defendant can have no benefit of an exception to a general refusal to charge several propositions, unless the refusal is erroneous in every particular. Such an exception does not bring up the charge, and the presumption is that the charge was correct—that it, in effect, did cover the whole ground, and included and asserted all the sound propositions of law involved in the request of the prisoner, and applicab1-? to the case made before the jury.

The material inquiry is whether there was irregularity or error in the refusal of the court to postpone the trial. The prisoner was arraigned in the Oyer and Terminer on the 27th, and tried in this court on the 29th of September. The defendant moved for a postponement upon his own affidavit, in the ordinary-form, of the materiality of two witnesses—one Ben-net, a resident of this State, and one Stanford, a resident of Minnesota—and set forth material facts which he expected to be able to prove by Stanford, but did not set forth any facts which he expected to be able to prove by Bennet, and swore that he believed he would be able to procure the attendance of Bennet and the testimony of Sanford at the next term of the court. The counsellor of the court, upon whose advice the affidavit was founded, swore that it was so founded, and that he belived the defendant could not safely proceed to trial without the benefit of the testimony of these witnesses. It may well be that these affidavits were, in some particular or particulars, wanting in fullness and precision, but we cannot hesitate to say that, under ordinary circumstances, they were sufficient to justify a delay of the trial.

A criminal court ought to proceed with the greatest caution, and even with tenderness, towards the accused. It is the guardian of his rights as well as of the rights of the people at large, and undue precipitancy is subversive "of all safety, and tends to bring the tribunal into public contempt or hatred. But, on the other hand, in the exercise of its sad duties, a criminal court must be firm. It cannot for light causes j eopard the rights or interests of the public. It is informed by the indictment that evidence sufficient, in the opinion of the grand jury, to warrant a conviction of the prisoner, has been adduced before it; and where the District Attorney moves the cause for trial, the presumption is that that evidence is ready to' be laid before the petit jury, and the court cannot, without good cause, grant a delay which may lead to a dispersion of the witnesses and the loss of material testimony. For the purposes of the application to postpone the trial, the presumption is that the prisoner is guilty, and that, if tried, he will be convicted; and, whatever may be the ordinary practice, I have no doubt that the strict rule requires the prisoner, in every case, to make a full disclosure of the names of his witnesses, and of the facts he expects to prove by them, though this strictness may very well be waived by the District Attorney or by the court, on application made at the term when the indictment is found. In such a case the affidavits should not be weighed with over-scrupulous particularity, and, where there is no appearance of ill faith in the motion, the court ought to grant all reasonable opportunity to correct and amplify them before a decision. In this case, it seems to me that the affidavits were substantially sufficient, and that opportunity ought to have been afforded to make them so, if the court deemed them wanting in fullness or precision. There is, however, no pretence that the refusal was founded upon the informality or prima fade insufficiency of the affidavits. It must have proceeded on other grounds, and I can imagine abundant reasons for it.

I cannot recognize the doctrine that the prisoner has a legal right to demand a postponement of his trial, upon the strongest possible affidavits, though his trial be moved on the very day he is indicted. The court may still be called upon to exercise a discretion in the matter. The District Attorney, as a sworn officer of the court, and indifferent between the People and the prisoner, may state facts within his own knowledge, touching the merits of the application. The demeanor and conduct and conversation of the prisoner in the presence of the court, may well sway its decision. The minutes of the grand jury may disclose the fact that the matters expected to be proven by the absent witnesses, are wholly immaterial. It cannot give the same implicit credence to the affidavit of a person indicted before it for felony that it must repose in the uncontradicted affidavit of a party to a civil action. The disposition of the motion, whenever made, and though made upon uncontradicted affidavits, raises no question of law, unless the record show that the court decided, as a question of law, that a postponement could not be granted, or, as in the case of The People v. Vermilyea (7 Cow., 869), that the court decided that a witness was material, and that his absence was cause for a postponement, and then denied effect to its own decision, by requiring the prisoner to proceed forthwith to trial without the full benefit of the testimony of the witness. Here, then, is no error; and as there is no rule of practice making it imperative in criminal cases, to put over the trial upon an affidavit or affidavits of a prescribed form and substance, there has been no irregularity.

It is hardly necessary to add that we have no reason to believe that the discretion of the court below was exercised harshly or unwisely in the case of the prisoner.

Hew trial denied.


source: Caselaw Access Project

author: Clinton, J.

license: Public Domain

text:
    Superior Court of Buffalo.
    June General Term, 1856.

      Verplank, Masten and Clinton, Justices.
    The People v. Edwin W. Weston.
    In an indictment against a constable for not executing a warrant delivered to him against a person charged with crime, it is necessary to show by averments that the justice who issued the warrant had jurisdiction.
    It is not sufficient that the warrant set forth in the indictment recites all the facts necessary to confer the authority to issue it. It must be alleged in the indictment that those facts are true.
    In pleading the judgments and proceedings of inferior courts of special and limited jurisdiction, a general averment of jurisdiction is not sufficient, but the facts on which it depends should be averred.
    This was an appeal from a judgment of the Criminal Term overruling a demurrer to an indictment.
    The pleadings were as follows:

      State of New York, County of Erie, ss:

    The Jurors of the People of the State of Mew York, in and for the body of the county of Erie aforesaid, upon their oaths, present:
    That heretofore, to wit, on the thirty-first day of December, in the year 1855, at the city of Buffalo, in the county of Erie, Joseph Johnson, a justice of the county of Erie, issued his warrant under his hand, directed to any constable of the said county, which said warrant was to the effect following:
    “ Erie County, ss:

    To any constable of the said county, Greeting:

    Whereas, Martin H. Woodward has made complaint upon oath before me, Joseph Johnson, one of the justices of the peace of said county, that on the 31st day of December, 1855, certain personal property of the said Martin H. Woodward, to wit: one cutter of the value of ten dollars or upwards, was stolen and feloniously taken from his possession in the city of Buffalo, in the said county, and that he suspects that Wm. Pratt did steal and take the same aforesaid. Therefore, the People of the State of New York command you forthwith to apprehend the said Wm. Pratt, and bring him before me at my office in West Seneca, to be dealt with according to law.
    Given under my hand at West Seneca, this 31st day of December, 1855.
    JOSEPH JOHNSON, Justice of the Peace.

    A more particular description of which said warrant is to the jurors aforesaid unknown, by reason of the same being lost, and delivered the same then and there to one Edwin W. Weston, a civil constable of the thirteenth ward of said city, to be by him executed; and thereupon it became the duty of the said Edwin W. Weston, he then and there having said warrant, as such constable as aforesaid, to arrest the said Wm. Pratt, by virtue of the warrant aforesaid, and carry him before the said Joseph Johnson, such justice of the peace as aforesaid, to be dealt with according to law; and that the said Edwin W. Weston, being then and there such constable, unlawfully and corruptly neglected his duty in that behalf, then and there unlawfully, willfully and corruptly, did refuse then and there to arrest and take the body of said Wm. Pratt, and carry him before said justice of the peace as aforesaid, as in said warrant commanded and as required by the law of the land, against the statute in such case made and provided, and against the People of the State of New York and their dignity.
    ALBERT SAWIN, District Attorney.

    Superior Court.
    The People ) agst. > Edwin W. Weston.)
    And the said Weston, in his own proper person, comes into court here, and having heard the indictment read, says: That the said indictment, and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that the said Weston is not bound by the law of the land to answer the same, and this he is ready to verify. Wherefore, for want of a sufficient indictment in this behalf, said Weston prays judgment, and that by the court he may be dismissed and discharged from the premises in said indictment specified.
    And Albert Sawin, who prosecutes for the said State in this behalf, says: That the said indictment, and the matters therein contained, in manner and form as the same are therein contained and set forth, are sufficient in law to compel the said Weston to answer the same; and this said Albert Sawin, who prosecutes as aforesaid, is ready to verify and prove the same as the court herein shall direct and award.
    Wherefore, inasmuch as the said Weston hath not answered to the said indictment, nor hitherto in any manner denied the same, the said Albert Sawin, for the said State, prays judgment, and that the said Weston may be convicted of the premises in the indictment specified.

      George W. Houghton, for the defendant.
    The indictment is defective in not averring facts to give the justice jurisdiction to issue the warrant. It should have alleged that a complaint was made, an examination had, and that the justice was satisfied, &c. (2 B. S., 706, §§ 2, 3.) If the justice had no jurisdiction to issue the warrant, the constable was not "bound to execute it. (7 Hill, 538; 3 Seld., 199; 15 Barb., 153.)
    The jurisdiction of a court of special and limited authority is not to be presumed. It must be averred and proved. (5 Hill, 39, 44; 4 Seld., 254; 3 Man. & Grang., 384; 42 Eng. Com. L., 206; 1 Comst., 40; 18 Barb. R., 260.) It is error to suppose that justices of the peace have any other jurisdiction in criminal matters except that conferred by statute. (Salkeld, 406; 5 Bac. Abr., 395, Burns' Justice.)

    The offence is not charged in the indictment in the words of the statute, and therefore it must be considered as charging -only a common law offence; in which case it is defective in not charging an intent to prevent the course of law and justice. (15 Wend., 277.)

      A. Sawin (District Attorney), for the People.
   By the Court,

Clinton, J.

The first objection to the indictment is, that it does not show that the justice of the peace who issued the warrant had jurisdiction to do so. The warrant which, it is claimed, recites the facts necessary to confer the power to issue it, is set forth in full. In Bradstreet v. Ferguson (23 Wend., 638), which was an action of trespass against a magistrate for issuing a warrant for the plaintiff’s arrest, under the act for the prevention of crime, the Court for the.Correction of Errors held that a formal complaint in writing and upon oath was necessary to confer jurisdiction, but that the recitals in the warrant were prima facie proof of such complaint. In the words of Chancellor Walworth, delivering the opinion of the court: “A recital of a fact of this kind, in a warrant for the arrest of a party, when the magistrate would be guilty of a breach of his official oath if the recital was intentionally false, is presumptive evidence of the truth of such recital, and it lies upon the party denying the jurisdiction which depends on that fact, to show that the recital is false.” This decision disposes of the mere question of evidence, but does not necessarily reach that of pleading. Assuming that the warrant recites all the facts necessary to confer the authority to issue it, the indictment does not aver those facts, but merely shows that the magistrate set them forth in the warrant as true. The People did not in their bill allege that they were true, nor has the grand jury, by finding the bill to be true, found that the magistrate had jurisdiction to issue this warrant.

Upon this question of pleading, I have no doubt. It is clear that in pleading the judgments or proceedings of inferior courts of special and limited jurisdiction, and of magistrates and officers acting under a statute or special authority, jurisdiction must be averred, and the only query has been whether it was sufficient to aver it in general terms; and that has been settled for many years in this State. A general averment of jurisdio tion is not sufficient, but the facts upon which it depends must be averred. (Turner v. Roby, 3 Comst, 193.)

Justices of the peace were first instituted by 1 TSdw., 3, ch. 16. Before that there were conservators of the peace of two kinds: first, those who, by virtue of their office, had power to keep the peace, but were known- only by their names of office; and, second, those who were constituted for that purpose only, and were simply called by the name of conservators or wardens of the peace. (Bac. Abr.) In Yarrington's case (Salk., 406), it was said: “Their power is created by act of parliament within the time of memory; and they have no other authority than what is thereby given them.” That they have no common law authority, has been repeatedly, and, I believe, uniformly held to be the law of this State. (Way v. Carey, 1 Caines, 191; Wells v. Newkirk, 1 Johns. C, 20; Bigelow v. Stearns, 19 Johns., 39.) This being so, it was necessary, in order to charge the defendant with a duty, as constable, to execute the warrant, to aver the facts which, and which alone, could confer authority upon the justice of the peace to issue it— that is, that a complaint was made before him, on oath, that the criminal offence had been committed, that he examined the complainant on oath, and found that there was cause to suspect the person named in the warrant as suspected of its commission, and therefore issued it. (2 R. S, 3ded., 793, §§2, 3.) If there were no such complaint, the magistrate had no jurisdiction, and the warrant was in fact void. If void for mere want of jurisdiction, I am of the opinion that the constable was not-bound to execute it, although the law would have protected him for obeying it.

On this ground (which was not raised at the Criminal Term), I am of opinion that the defendant is entitled to judgment.

Judgment reversed, and judgment rendered for defendant.


text:
    Superior Court of Buffalo.
    December General Term, 1856.

      Masten, Verplank and Clinton, Justices.
    The People v. Clinton D. Chandler.
    Where, on the trial of an indictment for obtaining property by false pretences, it appeared that certain bills purporting to have been issued by a foreign bank, had been transferred under certain representations alleged to be false, and the material questions to be decided were, whether there was any such bank in existence, and whether it was solvent, it was held not to be competent to prove by a broker that, in his opinion, bills of that description never had any value, the broker not having shown any knowledge on the subject, except that he had been for twelve years a money broker, had bought and sold bank bills, and in April or May previous had been offered and had refused to take bills of the description in question.
    The prisoner was convicted at the October Criminal Tenü, 1856, of having procured, by false representations, one of the firm of F. Smith & Co. to put the signature of F. Smith & Go. to their promissory note, payable to the order of one George W. Baker, and to procure said Baker’s indorsement of the note, and to deliver it to the prisoner in exchange for certain bills purporting to be issued by the President, Directors and Company of the Potomac River Bank, dated at Georgetown, in the District of Columbia, and payable on demand to the bearer. The pretences set forth as false were as follows: “ The said Clinton D. Chandler, with intent feloniously to cheat and defraud the said Frederick Smith, Addison P. Mason and Cornelius Smith” (F. Smith & Co.), did then and there feloniously, unlawfully, knowingly and designedly, falsely pretend and represent to the said Frederick Smith, that all of the aforesaid bills herein-before described were good; that he, the said Clinton D. Chandler, would sell all the property he had and take his pay in said bills; that in a published bank note and counterfeit detector (then and there presented to said Frederick Smith by said Clinton D. Chandler), said bills were quoted as good; that said bank was a good and solvent bank (then and thereby meaning that all of aforesaid bills were good and valuable promissory notes for the payment of money); that they were issued by an existing banking incorporation, and that said hank so existing then was a good and solvent bank.” The traverse was as follows: “ Whereas, in truth and in fact, there was not then and there any such corporation or bank as the Potomac River Bank, or the President, Directors and Company of the Potomac River Bank in existence, and had never been in existence, and he, the said Clinton D. Chandler, then and there well knew no such corporation or bank was in existence; and whereas, in truth and in fact, said bills, purporting to have been issued by the aforesaid bank hereinbefore described, were not good, and were not good and valuable promissory notes for the payment of money; and whereas, in truth and in fact, the said Potomac River Bank was not a good and solvent bank, and he, the said Clinton D. Chandler, then and there well knew,” &c. On the trial Andrew Houlestone was called by the People, and testified that he was a money broker in Buffalo, and had been for twelve years; that he bought and sold bank bills; that bills of the Potomac River Bank were offered at his counter in April or May last, and that he refused them. The district attorney asked the witness: In your opinion has this money (the Potomac River Bank hills) ever had any value? The counsel for the prisoner objected to the inquiry, that it did not appear that the witness had any knowledge, either actual or acquired in his business, and that it was merely calling for his opinion. The objection was overruled, and the prisoner excepted. The witness answered, “ In my opinion they never had.” On a bill containing this and other exceptions, the prisoner moved for a new trial.

      Eli Cook, for the prisoner.

      A. Sawin (District Attorney), for the People.
   By the Court,

Clinton, J.

The fraud charged is not that the bills were falsely represented to be good or marketable in the.city of Buffalo, but that they were falsely represented to be the bills of a good and solvent banking corporation, when, in truth, there was no such corporation, or, if there were, it was not good or solvent. Asking the witness Houlestone whether, in his opinion, the bills ever had any value, was, in effect, asking whether, in his opinion, there ever was any such bank, and if, in his opinion, there was such a bank, whether, in his opinion, it was ever solvent. I do not myself see how the non-existence of a corporation, or of a person, can ever be proven by opinion. The mere opinion of a witness is never evidence. The witness must, in the exceptional cases where opinion is competent, base it upon, or apply it to, a given fact or state of facts. If he is called to prove a signature of A. he must first prove his acquaintance with A’s handwriting. If called to testify to the value of a barrel of flour, or a share of stock, he must prove his knowledge of the market. If to testify to the cause of B’s death, he .must show himself competent, by his profession and experience, and by a knowledge of the antecedents and accompaniments of the death, to form a reliable opinion as to its cause. Mr. Houlestone, having been a money broker in Buffalo for twelve years, buying and selling bank bills as parcel of his business, was competent to show that the bills purporting to be issued by the President, Directors and Company of the Potomac Biver Bank, were not current, and had no market value in Buffalo; but his opinion was utterly incompetent to prove there was no such bank, or that, if there were, its bills were actually, absolutely and everywhere destitute of value.

This was the only question presented by counsel on the argument, and I feel it proper to abstain from expressing my impressions as to the quality and sources of the evidence which may be necessary to sustain this indictment.

The prisoner is entitled to a new trial.

Hew trial ordered.


text:
    Superior Court of Buffalo.
    December General Term, 1856.
    Clinton, Verplank and Masten, Justices.
    The People v. Albert K. McMurray.
    Where, on á trial for larceny, it appeared that the property stolen had not come to the possession of the prisoner, but had been received by C. on the order of the prisoner, and there was evidence tending to prove that C. was a confederate with the prisoner in the transaction, but 0. testified to his entire innocence, and the judge charged the jury that they were to determine whether 0. was
    (an innocent agent of the prisoner in taking the property, and that if they so found and found also a felonious intent on the part of the prisoner, they should find him guilty, but that if they should come to the conclusion that C. had a knowledge of the prisoner’s felonious intent, then they should find the prisoner not guilty, on the ground that he was in that case only an accessory before the fact: Held, on review, that the charge was correct.
    The prisoner was convicted of grand larceny at the November Criminal Term, 1856, Clinton, J., presiding. The larceny was of a mare belonging to one La Duke, who, according to his own testimony, was a French Canadian, having a very imperfect knowledge of the English language. He testified that he had bargained with the prisoner to sell him the mare for $600 in cash; that he went to one Westcott’s stable to receive the money;'that he there saw the prisoner, Westcott, and one Close; that the prisoner then told him the bank was closed, and paid him $50, and gave him what was represented to be his check for $550, payable the next morning; that he" signed in two places what was represented to be a receipt for the $50, he insisting that the mare was to remain in his possession until the next morning at ten o’clock; and that the papers were read to him by Westcott. The check was dated ten days ahead, and the prisoner had no funds with the bankers on which it was drawn. The two signatures were in fact made to a receipt for $600 in full for the mare, and an order upon the tavern keeper in whose stable the witness had placed her, to deliver her “to the bearer, A. K. McMurray.” The witness stated that Close drew the papers, and, in speaking of the false representations made to him, said, “ they said.” This testimony tended to implicate Close in the fraud. The "witness, the prisoner Westcott, and Close, the papers being exchanged, went to a drinking place, and there the prisoner gave Close the order for the mare, and he went alone to the tavern keeper’s stable, and, on exhibition of the order, procured her delivery to him, and took her to Westcott’s stable. Close was examined as a witness for the People, and his testimony tended to exculpate himself from all knowledge of or participation in the fraud. The mare never came to the prisoner’s possession in fact. On exceptions taken at the trial, a motion was made at the December General Term, 1856, for a new trial.

      William Dorsheimer, for the prisoner, insisted that, as Close obtained possession of the mare, and the prisoner never had possession, the prisoner was liable, if at all, only as an accessory before the fact, and he made the following points:
    I. An accessory before the fact is one who, being absent at the time of the felony committed, did yet procure, counsel or command another to commit it. But this rule is qualified by a principle which may be stated thus: Where a person of discretion makes an idiot, lunatic, or child of tender age, or a person- entirely ignorant of the fact, the instrument of crime, the employer and not the innocent agent is answerable as a principal in the first degree. (3 Qreenl. Kv., § 9; Begina v. Blearsdale, 2 Carr. & Kir., 768; 1 Bussell on Crimes, 23; Bar~ hour's Grim. L., 281.)
    II. Since every person is presumed to be conscious of his own acts, and to intend the natural consequences of them (3 Qreenl. Ev.,. § 14), the party seeking the application of the above qualification must be required to bring himself within the exception, and that by direct, positive, affirmative proof. This rale is carried into all classes of cases, and is stated in all the elementary treatises, and, it would seem, that it should be strictly enforced in a case where it is not pretended that the agent was insane, an idiot, or an infant of tender age, but where it appears that he took part in the preparation of the instruments used in accomplishing the crime.

      III. It is a general rule that the prosecutor must prove every fact and circumstance ■ which is material and necessary to constitute the offence. (3 Creenl. Mv., § 23.)
    IV. The position of the defence is, that the evidence which proves the guilt of the prisoner proves the guilt of Close, and the evidence which proves the innocence of Close, establishes the prisoner’s innocence.

      Albert Sawin (District Attorney), for the People.
   By the Court,

Clinton, J.

At the close of the trial, I refused to charge, as matter of law, upon the evidence, that the indictment should have charged the prisoner as an accessory before the fact, to a larceny of the mare by the witness, Close. I also refused to decide that “ the question as to whether Close was a guilty party, ought not to be submitted to the jury;” or, in other words, was a question for the court. I refused to- decide “ that, inasmuch as the evidence implicated Close, the prisoner ought not to be put upon his defence, in the absence of affirmative proof on the part of the People, of the innocence of Close;” or, in other words, I refused to'adjudge him guilty as a principal. I did, “ among other things, charge the jury that they were to determine, upon the evidence, whether or not the witness, Close, was an innocent agent of the prisoner in taking the horse; that if they so found, and if they further found a felonious intent upon the part of the prisoner,” in the taking by Close, “ he could be convicted on the indictment; but if they found that Close had a knowledge of the prisoner’s said felonious intent, then their verdict should be not guilty.” In this I can see no error prejudicial to the prisoner.

The argument of his able and zealous counsel assumes that Close was, upon the evidence and by some rule of law, presumptively guilty. No such presumption arises from the fact that Close presented a genuine order of La Duke, the owner of the mare, for its delivery, and received it on the order, and took it to Westcott’s stable. If the order had been forged, the case would have been different. Under the finding of the jury it was void, because fraudulently procured by the prisoner, and Close could not be shown guilty in the taking, except by proving that when he presented the order and received the mare, he knew that the signature to the order was fraudulently procured, and this was most clearly a question for the jury.

La Duke’s testimony tended to implicate both Close and Westcott as parties to the fraud. Close’s testimony tended to exonerate himself. Westcott’s tended to exonerate both himself and Close; and the conduct of both Westcott and Close, after the procurement of the mare by the latter, is consistent with honesty of intention. They kept her out of the prisoner’s possession during the night, and Westcott restored her to La Duke in the morning.

The second point of the prisoner’s counsel assumes either that Close is to be presumed guilty of the fraud, simply because he drew papers intrinsically honest, but the contents of which were fraudulently misrepresented to La Duke—a proposition too monstrous to require refutation; or simply because he presented the genuine order—a proposition which is equally monstrous. These circumstances, singly or conjointly, would have been utterly insufficient to carry the question of Close’s guilt to the jury. To make them available in evidence against him, knowledge on his part of the proposed fraudulent use of the papers, and of the fraud itself, was necessary to be proven, and this could only be proven by his presence at the time of the fraudulent representations as to the contents of the papers, or by other circumstances. Surely the counsel would not require “ direct, positive, affirmative proof ” of innocence from a prisoner, whose guilt is not presumptively proven by a fact established by evidence in its nature indisputable, but where there is nothing but circumstantial evidence, given by witnesses whose accuracy in details as well as whose general credibility can be determined only by a jury.

The fourth point of the counsel for the prisoner confounds “evidence” with “witness.” It is not true that the same evidence which proves the guilt or innocence of Close, establishes •the guilt or innocence .of the prisoner. The testimony of the witness La Duke tends to prove both participants in the fraud, which he swears was perpetrated upon him, but in very different degrees. If fully credited, it establishes the guilt of the prisoner, but only tends to establish that of Close.

A new trial should be denied.

Ordered accordingly.


text:
    Superior Court of Buffalo.
    March General Term, 1857.

      Clinton, Verplank and Masten, Justices.
    The People v. James Carey.
    The conducting of a house in such a way as to disturb and disquiet the neighbors, or the carrying on of its business so as to tend to the corruption of public morals, is punishable as a nuisance.
    It is no objection to an indictment for keeping a disorderly house, that it is charged in the same count that it is kept as a bawdy house, a tippling house, and a dancing house. It is not necessary, under such a count, to prove that all of such offences were committed, but the defendant should be convicted, ii it is shown that either was permitted in sucha manner and under such circumstances as to make the house disorderly and a nuisance.
    Motion for a new trial on a bill of exceptions. The defendant was convicted at the February criminal term, 1857, Mr. Justice Verplank presiding, of keeping a disorderly house. The indictment contained several counts, but the conviction was on the first one only. It charged that the defendant kept “ a certain common, ill-governed and disorderly house, and in his said house, for his own lucre and gain, certain evil and ill-disposed persons, as well men as women, of evil name and-fame, and of dishonest conversation, to frequent and come together, then and on the said other days and times, there unlawfully and willfully did cause and procure; and the said men and women in his said house, at unlawful times, as well in the night as in the day time, and on the said other days and times, there to be’andremain, drinking, tippling, 'dancing, whoring and misbehaving themselves, unlawfully and willfully did permit, to the great damage and common nuisance of the People of the State of New York, and against the peace of the People of the State of New York and their dignify.” There was no evidence that the house was a bawdy one, nor that the persons entertained there were thieves or gamblers.
    The house was three stories high, and on a public street in the city, and the defendant kept it as a boarding house, and had from ten to twenty boarders. In the first story he had a bar where he sold strong liquors, and the house was frequented principally by sailors and canal boatmen. In the room in the rear of the bar he had free dances nearly every weekday evening, which was commenced early and kept up late. He kept four servant girls, who danced with the men who came to the house. The men came in their working clothes and stogy boots and shoes. The evidence tended to show that there was much drinking at the bar during the dances, and occasionally quarrelling and fighting in and in front of the house, and that the dances, as conducted, were noisy and disturbed the neighborhood, which was populous. The court refused to instruct the jury that there was no evidence to sustain the first count of the indictment, but charged the jury that they might convict him under that count, “if the evidence showed that the house was conducted in such a manner as to disturb and disquiet the neighbors, or if said business was so carried on that it tended to the corruption of the public morals.” The defendant excepted to this refusal and charge.

      Eli Cook, for the defendant. .

      A. Sawin (District Attorney), for the People.
   By the Court,

Clinton, J.

The count upon which the defendant was convicted is the old form of an indictment against the keeper of a disorderly house, and is given by Archbold in his Criminal Practice, as the proper- form, of indictment against the keeper of a bawdy house, with' a slight difference as-to the conduct in the house of the evil and ill-disposed persons procured to come together there. This count adds “ dancing” to the drinking, tippling, whoring and misbehaving themselves,” which are charged in the form furnished by the books. It contains the essentials of the count given by Mr. Chitty, in his Criminal Law, as sufficient at common law to charge a dancing house as a nuisance; and of the form approved ■ in Pennsylvania for charging a tippling house as a nuisance. (The Commonwealth v. Stewart, 1 Serg. & Rawle, 348.) The defendant’s counsel seems to claim that the- count -is too broad, because it embodies distinct offences—the keeping of the house as a bawdy house, the keeping of it as a tippling house, and the keeping of it as a dancing house, to the nuisance of the public. But the law seems to make the keeping of a disorderly house, to the nuisance of the public, the offence, and leaves the pleader to state the acts done in it which make it a nuisance, as fully as he pleases. Were it otherwise, as a bawdy house is frequently a nuisance not only in that respect, but as a tippling house and a place where disorderly people are procured to come together, and dance and disturb the neigborhood by their noises, the keeper would be-liable to several distinct punishments for his manner of keeping the house. “It is not necessary that the jury should find a man guilty of everything charged in the indictment. It is sufficient if they find him guilty of part, provided that part be an indictable offence.” (Hunter v. The Commonwealth, 2 Serg. & Rawle, 298.) It was not necessary, then, to a conviction in this case, that the jury should find that whoring was permitted in the house, provided they found that tippling or dancing, or both, was permitted in such a manner and under such circumstances as to make the house disorderly and a" nuisance.

The court properly declined to direct the jury to acquit the -defendant"upon the evidence. There was plenty of evidence that the house was kept as a common tippling house, and was frequented by disorderly persons, who, by their drunkenness, quarrelling and noisy dancing,, disturbed and disquieted the neighborhood. The court, in leaving this evidence to the jury, very properly instructed them to convict the defendant if they should find “that the house was conducted in such a manner as to disturb and disquiet the neighbors, or if its business was so carried on as to tend to the corruption of the public morals.” The decision in Hunter v. The Commonwealth (2 Serg. & Rawle), does not militate against the propriety of the first branch of this charge. The indictment there charged the keeping of a common tippling house, and the verdict was, “guilty of keeping a disorderly house and disturbing his neighbors.” The court said: “ The keeping of a disorderly house is not indictable, unless it be laid as a common nuisance, because a house may be disorderly without being injurious to any but its inhabitants ; and it is the injury done to the public which is the , essence of the offence." The verdict was, of course, held bad. But this charge does not go to the form of the verdict, but had reference solely to the question of guilt under the indictment. There can be no question at this day that the disturbance of a neighborhood by the noises of disorderly persons in a house, habitually permitted in a house, is a nuisance.

The motion should be denied, and the criminal term advised to proceed to sentence.

Ordered accordingly.


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    Superior Court of Buffalo.
    May Criminal Term, 1858.

      George W. Clinton, Justice, presiding.
    The People v. John H. Osmer.
    It is no defence to an indictment for forgery, in which the prisoner was charged under 2 R. S., 612, § 30, with having made and engraved a plate in the form and similitude of a promissory note, issued by an incorporated bank, without the authority of such bank, that the lettering and vignettes of such plate were different from those of the genuine plate. Pictures, ornaments and devices form no part of the contract impressed upon the plate. Exact similitude is not required, even in the operative words of the instrument. It is enough that there be a sufficient resemblance, in connection with the other evidence, to satisfy the jury that the plate was intended to be used in striking off false bills, to be imposed on the public as true ones.
    The prisoner was indicted under 2 Revised Statutes, 672, section 30, for having “ made and engraved aplate, in the form and similitude of a promissory note for five dollars,” issued by the Marine Bank, a bank incorporated by the State of Rhode Island, “ without the authority of said bank.”
    On behalf of the People, it was proved that the prisoner had procured an engraver to engrave on a steel plate, which had already engraved thereon vignettes at the side and top, the following words and letters, in the places they would have occupied in a genuine plate of a five dollar bill of The Marine Bank, viz.: “The Marine Bank,” “Five Dollars,” “Providence, R. I.,” “A.” A genuine five dollar bill of the bank was produced. In it the lettering of these words differed, in respect of shading and other slight particulars, from that of the false plate. In the genuine bill, too, “Rhode Island” was printed in full. The vignettes of the genuine bill were entirely different from those of the plate. The existence of the bank at the time these words and letters were engraved without its authority was admitted.
    For the prisoner, it was contended that the plate, so far as finished, “ must resemble and conform to ” the similar parts of the genuine bank bill, and that the total dissimilitude of the vignettes was fatal, and that, if otherwise, the difference in the shading, &c., of the words and letters, was fatal. He therefore moved the court to direct the jury to acquit the prisoner.

      James M. Humphrey (District Attorney), for the People.

      Perry G. Parker, for the prisoner.
   The decision of the court was substantially as foHows:

Clinton, J.

If the position of the prisoner’s counsel is correct, the statute, so far as it seeks to punish the forgery of bank plates, is a nullity. By making the false plate vary from the true in some unimportant matter of ornament, the making of false plates, impressions from which might be freely passed, would be innocent, while the uttering of the impressions would be criminal. This position is, however, erroneous. The sections in question are carefully drawn, and it is, perhaps, only to be regretted that they were not so drawn as clearly to include all plates in imitation of bank bills, &c., whether the bank named in the plate exists or not. The mistake of the counsel is in supposing that the crime consists in making a plate in imitation of a genuine bank plate, while the statute (§ 30) expressly defines it to be the false making of “any plate in the form or similitude of any promissory note, hill of exchange, draft, check, certificate of deposit, or other evidence of debt, issued by any incorporated bank.” The next section (§ 31) declares that “ every plate specified in the last section shall be deemed to be in the form and similitude of the genuine instrument imitated, in either of the following cases: 1. When the engraving on such plate resembles and conforms to such parts of the genuine instrument imitated as are engraved; or, 2. When such plate shall be partly finished, and the part so finished resembles and conforms to the similar parts of the genuine instrument.” The word instrument, wherever it occurs in section 31, is used as inclusive of the several kinds of instrument named in section 30. The bill ■ of exchange, or pro* missory note, or check, &c., in the eye of the law, consists, as an instrument, only in the words and figures which, if imprinted by the authority of the bank, would make it binding upon the bank as a contract. Hence, it has been uniformly held, in this State, that, in an indictment for forging a promissory note, whether of a bank or a natural person, it is unnecessary to describe or imitate the pictures or devices put upon it, in imitation of those used in the genuine note for ornament or distinction. Such pictures, ornaments and devices, though they form parts, and often very important parts of a bank plate, are no part of the instrument or contract impressed by the plate.

The operative words engraved on the plate, or finished part of the plate, must, indeed, “ resemble and conform to the similar parts of the genuine instrumentbut this resemblance and conformity is not exact similitude of appearance and position. Here the words engraved on the false plate conform in position to those in the genuine bill, and resemble them sufficiently, in connection with the other evidence, to raise the question for the jury whether the plate was intended, when finished, to be used in striking off false bills, to be imposed on the public as true ones. The motion must be denied.

The jury, without leaving their seats, found the prisoner guilty, and he was sentenced to be imprisoned in the State Prison at Auburn for the term of ten years.


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    Superior Court of Buffalo.
    January Criminal Term, 1858.

      George W. Clinton, Justice, presiding.
    The People v. Henry Bradley.
    A simple receipt is not the subject of larceny under the statute; otherwise of an “accountable receipt.”
    Anote, though payable in specific articles, is the subject of larceny within the statutory definition.
    The indictment contained one count only, and charged the prisoner with larceny of “ one promissory note of the value of $100,” and of certain receipts, and of a tin box of the value of $2, “of the chattels and personal property of one Edwin W. Weston.” The note and receipts were set forth in haec verla. The note was as follows: “ On or before the first day of March next, I promise to deliver A. Lainey, or bearer, one hundred dollars’ worth of hemlock lumber, at Martin’s Corners, at the wholesale prices, it being half payment of the $200 mentioned in a certain mortgage this day executed in favor of said Lainey mentioned, money down, for which said Lainey agrees to take lumber instead of money,” and was dated January 21, 1854. The form of describing the several receipts was as follows: “One receipt for the payment of the sum of fifteen dollars and forty-six cents, and of the value of fifteen dollars and forty-six cents, which said receipt was in the words and figures following, to wit: “ Buffalo, Mch. 3d, 1855. Received from Mr. E. W. Weston, Fifteen TW dollars in full for bill lumber, and of all demands to date.” (signed) “Dart Brothers.”
    A jury having been impanneled, Galusha Parsons, who had been assigned to defend the prisoner, requested the court to decide that no evidence could be given of the larceny of the so called promissory note, nor of the receipts, for reasons noticed in the following opinion. After hearing James M. Humphrey (District Attorney), the court, with the consent of counsel, permitted the evidence to be given, reserving its decision until the following morning, and then delivered the following opinion:
   Clinton, J.

At common law, no chose in action, evidence of debt, or voucher of payment, was the subject of larceny, but under our statutes the common law definition of that crime has been greatly expanded. The Revised Statutes (2 JR. S., 679, § 63) define grand larceny to be “the felonious stealing, taking and carrying away the personal property of another, of the value of more than twenty-five dollarsand (_ZZ>., 690, § 1) petit larceny, as the “ stealing, taking and carrying away the personal property of another, of the value of twenty-five dollars or "under.” The section of those statutes (lb., 679, § 66) cited by the prisoner’s counsel last evening, does not, as he supposed, define the subjects of larceny other than goods or chattels, but merely fixes, by arbitrary rules, their values. The definition is furnished by another section (lb., 702, §33), which is as follows: “ The term 1 personal property,’ as used in this chapter, shall be construed to mean goods, chattels, effects, evidences of right in action, and all written instruments by which any pecuniary obligations, or any right or title to property, real or personal, shall be created, acknowledged, transferred, increased, defeated, discharged or diminished.” This definition and the definitions of larceny, grand and petit," are in the same chapter; and larceny, under our Revised Statutes, includes the stealing, taking and carrying away of any written instrument, by which any pecuniary obligation is discharged or diminished. A release of the whole, or of a part of a pecuniary obligation (or debt, as we understand the term), does discharge or diminish it; but a simple receipt does not. Payment, partial or in full, does; and the receipt is a mere written acknowledgment and evidence of the payment. A simple receipt is not a written instrument in the ordinary legal acception of that word. It has no active operation, but is simply evidence. It is not capable of enforcement, but is a shield. As before remarked, the provision cited by counsel (§ 66) "does not profess, and cannot be permitted, to enlarge this definition. It uses the word “ receipt,” but that word is used in various senses, both in common and commercial parlance, and in the law. The section, as respects receipts, reads thus: “If the property stolen consist of any receipt, or any other evidence of debt, 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.” There is nothing in this language which can be applied to a creditor’s written acknowledgment of payment by his debtor. Such an acknowledgment, or receipt, is not an evidence of debt; no money is due thereon, nor can, in any contingency, be collected thereon, nor is any property transferred or affected thereby. But there are receipts known to commerce and the law which are the subjects of larceny under our statutory definition. Such are “ accountable receipts,” or receipts for money to be accounted for; receipts for property in store, and ship receipts. A ship receipt is the written acknowledgment of the mate receiving cargo, acknowledging the receipt of goods on board the vessel, describing them by the marks upon them or the packages. In delivering the judgment of the Court of Appeals, in Brower v. Peabody (3 Kern., 121), Gardiner, Ch. J., sanctioned the distinction we recognize. Speaking of ship receipts, he said: “The act of Lovett, through which the defendant is compelled to make title, was a felony, for which he could have been indicted and convicted, under the 66th section of the article ‘Of robbery, embezzlement and larceny.’ If the custom or usage which lies at the foundation of the defence, is valid, the receipts were property, and the value of the commodity affected or transferable by the instrument would be deemed the value of the article so stolen.”

But, while we are of opinion that the receipts set forth in the indictment are not subjects of larceny, we are very clear that the note payable in lumber is. Though it is not negotiable, it is still “ a promissory note.” Hot being within the statute, it is a mere contract, and a consideration to support it, if one be not apparent on its face, could not be presumed; and it would, perhaps, have been the duty of the district attorney, in that case, to show, by the averment of a consideration, that it was property within the meaning of the statutory definition. But it shows a consideration on its face. It is expressed to be in half payment of an admitted debt of $200.

Being payable to Lainey or bearer, it was transferable by Lainey by mere delivery. Indeed, being a mere chose in action, if the words “ or bearer ” had been omitted, it would still have been so transferable. But a written assignment of it by Lainey to Weston has been proven. The prisoner’s counsel objects that no such transfer or assignment is averred in the indictment. That merely avers that it was the property of Weston when stolen. He also' claims that the indictment is defective, because it does not, in reference to this note or contract, aver, in the words of section 66, that a demand was created thereby, not that the demand was unsatisfied at the time of the taking by the prisoner. A recurrence to the decisions as to the form of indictments for stealing bank notes, sufficiently shows that, in the opinion of this court, the enlargement of the definition of larceny by substituting “ personal property ” for-“goods and chattels,’’ was not intended further to change or complicate the simple form of- an indictment at the common law. If the indictment shows that the note, bill, receipt, or instrument alleged to have been stolen was personal property, and avers that it was the personal property of a person named, or to the jurors unknown, it is sufficient.


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    Superior Court of Buffalo.
    December Criminal Term, 1856.

      George W. Clinton, Justice, presiding.
    The People v. Williams and White.
    In an indictment for uttering and circulating as money foreign bank bills, and for receiving such bills with intent to circulate them, contrary to the provisions of section 2 of the act of May 7, 1839, as amended April 13, 1853, it is not sufficient to describe the defendants as officers of a bank or banking association, and then simply to charge that they did the acts complained of. It is necessary to allege a violation of the statute by the bank or association and that the defendants acted as such officers in doing the acts in question. As individuals, the defendants are not liable, unless they are “ authorized to carry on the business of banking in this State,” and where the intent is to charge them as such, an allegation bringing them within section 2 of the act of 1853 should be made in the indictment.
    The indictment contained two counts. The first count charged that, on the first day of January, 1854, the defendant, Williams, was the cashier, and the defendant, White, the president of a banking association, organized under the act “ to authorize the business of banking,” and known as and called the White’s Bank of Buffalo; “and that said White, being such president, and said Williams, being such cashier of said White’s Bank of Buffalo, as aforesaid, on the said first day of January, 1852, at,” &c., “unlawfully,” &c., “did utter and circulate as money, and did aid and assist in the uttering and circulating as money,” within the city of Buffalo, “ one thousand different promissory notes, in the similitude of bank bills, purporting to have been issued by an association situated without the State of New York, to wit: at Toronto, in the Province of Upper Canada, called the Farmers’ Joint Stock Banking Company, purporting to be signed by J. W. Sherwood, as president thereof, for the payment to the bearer on demand for divers different amounts and sums of money, a more particular description of which was to the jurors aforesaid unknown, and of the amount in the whole of $10,000.” It then charged that “ the aforesaid notes ” “ had not then and there, or before that time, been received by said White’s Bank of Buffalo, at par, in the ordinary course of the business of said White’s Bank of Buffalo, contrary to the form of the statute,” &c. The second count in like manner charged that, on the first day of January, 1853, the defendants were the president and cashier of the said White’s Bank of Buffalo, a banking association, &c., and that, being such president and such cashier, on the first day of January, 1853, they “did unlawfully receive from some person or per-, sons to the jurors aforesaid unknown, one thousand different bank bills, purporting to have been issued by an association situated out of the State, to wit: at Toronto, in the Province of Upper Canada, and purporting to be signed by J. W. Sherwood, as president thereof, for the payment of the sum of one dollar each bill to the bearer thereof on demand,” and other similar bills of the denomination of $2, $3 and $5, “ with the intent to utter and circulate, and with the intent to aid and assist in uttering and circulating ” them as money within this State; “ and that said bank bills had not been received by said White’s Bank of Buffalo from its customers in the regular and usual course of its business, at a rate of discount not exceeding one-quarter of one per cent, against the form of the statute, &c. The defendants pleaded not guilty. The indictment came on to be tried, and a jury, for the trial thereof, was impanneled at the criminal term, on the 22d day of December, 1856, Mr. Justice G Union presiding. After the district attorney had opened for the People, he consenting, the counsel for the defendants, Mr. Henry W. Bogers, moved the court to instruct the jury to acquit them, upon the ground that the indictment was' substantially defective in certain particulars. After hearing Mr. Sawin (District Attorney), for the People, the court, the usual time for adjournment having arrived, adjourned for the day, and the next morning delivered its opinion as follows:
   Clinton, J.

By section 1 of the act of April 13, 1853, amending the act of May 7, 1839, “ concerning foreign bank notes,” a new section 2 was substituted for section 2 of the original act. The new section declares that “ it shall not be lawful for any incorporated banking institution within this State, or any association, or any individual or individuals authorized to carry on the business of banking, by virtue of the act entitled ‘An act to authorize the business of banking,”’ &c., “ to procure or receive any bank bill or note, or other evidence of debt in the similitude of a bank note, issued, or purporting to be issued, by any corporation, association or individual situated or residing without this State, at a greater rate of discount,” &c.; and that it shall not be lawful “for any banking institution, association, or individual or individuals,” in the first part of the section mentioned, to issue, utter, or circulate as money, or in any way to aid or assist in the issuing, uttering or circulating as money, within this State, of any such bank bill, note, or other evidence of debt, issued, or purporting to have been issued by any “ foreign corporation, association or non-resident individual, or to procure or receive any such bank bill, note or evidence of debt, with intent to issue, utter or circulate, or to aid or assist in issuing, uttering or circulating them as money within this State.” The section contains a proviso that it shall not be construed to prohibit such banks, &c., from receiving and paying out such foreign- bank bills as they shall receive at par in the ordinary course of their business.

By section 3 of the act of .1839, it is made unlawful for incorporated banks and associations, and individuals, authorized to carry on the business of banking under the act “ to authorize the business of banking, to lend or pay out for paper discounted or purchased by them, any bank bill, note or other evidence of debt, which is not received at par by it or him.”

Section 4 of that act imposes upon- “ every corporation, and every association and individual authorized to carry on the business of banking, who shall offend against any of the provisions of the previous sections of this act,” a penalty of $1,000 for each and every offence, to be recovered by any person who shall prosecute therefor; and makes it a misdemeanor in any officer or clerk of any such bank or association, or in any individual banker, or his clerk or servant, “ knowingly to act or assist in any violation of any provision of this act.”

It is very plain that the officers of' a bank or banking association are guilty of a misdemeanor, under section 2, only when they act or aid in the violation of that section by the bank or association. Neither count of this indictment charges any violation of this section by White’s Bank of Buffalo. The defendants are described as officers of the association, but are not charged with doing any act as such officers. They are charged with the doing of acts, which, if they were at the time individuals doing business under the “act to authorize the business of banking,” would subject them both to the penalty of $1,000, and to punishment for the misdemeanor, but they are not averred to have been individuals doing business under that act when they did the things set forth in the indictment. As an indictment then, under section 2 of the act of 1839, as amended in 1853, this indictment is fatally defective.

Section 2 of the act of 1853, apparently makes the acts touching the circulation of foreign bank notes by banks, banking associations and individual bankers, forbidden by its section 1, unlawful “ for any person within this State,” if the foreign bank bill, note or other evidence of debt in the similitude of a bank bill or note, “ shall have been received by such person at a greater rate of discount than is or shall be at the time fixed by law for the redemption of the bills of the banks of this State at their agencies.” Possibly this indictment might have been sustained under this section, had it charged, which it does not in either count, that the defendants had received the bank bills or notes at a greater rate of discount, &c.

Section 3 of the act of 1853, provides that “ the penalties provided in section 4 of the act hereby amended, shall apply to any violation of this act.” From the best examination we have been able to give this subject, we doubt very much whether the misdemeanors declared by section 4 of the amended act are tolled. But it is not necessary to pass upon this question, nor upon any of the minor objections to the indictment. The first ground taken by the counsel for the defendants is fatal. The indictment being for a misdemeanor, we think it right to direct the jury to bring in a verdict for the defendants, instead of quashing the indictment


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    Superior Court of Buffalo.
    February Criminal Term, 1858.

      George W. Clinton, Justice, presiding.
    The People v. William G. Rowe.
    It is no ground, either for quashing an indictment or discharging the prisoner from arrest, that before the finding of the indictment, and after the issuing to the officer, by a police justice, of a warrant for his arrest, by an agreement between the officer and some person in Canada, the prisoner was forcibly brought from Canada to the line of this State, and there delivered to such officer, in arrest, under the warrant.
    A warrant was issued by the police justice of the city of Buffalo to arrest the prisoner upon a charge of grand larceny, and delivered to a deputy sheriff of Erie county for service. The prisoner being in Canada, the deputy sheriff made an arrangement with some person or police officer in Canada to bring the prisoner to this side. Such person took the prisoner by the arm, at or on the Suspension Bridge, on the Canadian side, and forced him across the bridge into this State, the deputy sheriff accompanying him, and, at this end of the bridge, the deputy arrested the prisoner under the warrant, and took him before the police justice, who, on proof of these facts, refused to discharge him, and, after examination, committed him to answer the charge. He was indicted for the larceny at this term of the court, and, upon affidavits showing these facts, moved that the indictment be quashed, or he discharged from arrest.

      A. Sawin, for the prisoner.

      J. M. Humphrey (District Attorney), for the People.
   Clinton, J.

The objection to the arrest has no application to the indictment. For aught that appears in the papers, that could and would have been found whether the defendant was within the jurisdiction or not. There is no reason shown for quashing the indictment.

As to the arrest, it was undoubtedly the fruit of an agreement for a violation of the prisoner’s right of personal liberty on Canadian soil. For that he has, we presume, a remedy in the Canadian courts, and, perhaps, in our own. Whether the dignity of Great Britain has been insulted by the act of its subject in hurrying the prisoner across the Suspension Bridge from a part of her Majesty’s dominions, we are not called upon to inquire.. The question is an international one, and cannot arise unless her Majesty’s government shall see fit to lay the matter before our government. If the Canadian law has been violated, one of the offenders, and perhaps the only offender, against that law,- is within its reach. Mo offence against the laws of this State, nor of the United States, was, so far as we can discover, perpetrated by the arrest.

We see no analogy between this case and cases of arrest in civil actions procured by the trick or fraud of the plaintiff. Where the defendant is so induced by the plaintiff to come within the jurisdiction, the court may discharge him without bail. Here is no wrong chargeable to the People. On the other hand, the indictment is, on such a motion as this, conclusive evidence of the prisoner’s guilt, and the court would be guilty of' a gross injury to the People if it should discharge him untried.

The motion is denied.


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    Superior Court of Buffalo.
    March General Term, 1859.

      Clinton, Verplank and Masten, Justices.
    The People v. John P. Smith.
    Cattle, stolen, in Wyoming county, were driven across the line into Erie county, and through different towns of the latter county into the city of Buffalo: Meld, that the Superior Court of Buffalo had jurisdiction for the trial of the offence.
    The prisoner was convicted, at the October criminal term, 1858, of grand larceny. He moved for a new trial, on a bill of exceptions, at the May general term, 1859.

      W. C. Johnson, for the prisoner.

      J. M. Humphrey (District Attorney), for the People
   By the Court,

Clinton, J.

The bill of exceptions shows that the prisoner stole cattle in Wyoming county, drove them across the line into Brie county, and thence through divers towns of Erie county into this city, its capital. The criminal jurisdiction of this court is limited, thus: “1. To inquire by grand jury of all crimes and public offences committed in the city of Buffalo. 2. To try and determine all indictments found therein or sent thereto by another court, for any crime or offence committed in the city of Buffalo.” The counsel for the prisoner ingeniously contends that the crime was not committed in the city of Buffalo, although he admits that it was committed in the county of Erie, as well as in the county of Wyoming. His notion appears to be, that the common law makes a distinction between a county and a local criminal jurisdiction within a county, and that the thief who brings the property, stolen in one county, into a local criminal jurisdiction within another county, though indictable in the latter county, is not indictable in the criminal courts of the local jurisdiction. But he has not produced any authority for this distinction, and we are unable to discover any foundation for it in the theory of a continuing trespass, upon which the common law rule is grounded.

A new trial must be denied.