author: Rockwell, J. —

text:
    Supreme Court. Orange General Term,
    July 1854
    Brown, S. B. Strong and Rockwell, Justices.
    The People vs. John Henderson.
    Arson is an .offence against the property of another; and a person can not become guilty of arson in the first degree, by setting fire td’his own house.
    To convict a person of arson in the third degree, under S 5, 2 U. S. 667, it is necessary to allege that the house was insured against loss or damage by fire and‘that the offence was committed with intent to defraud the insurance company: under that section a person may be convicted of burning his own dwelling house, but it is still an offence against the property of another, the object of the crime being to defraud the insurer, who has an interest in the -preservation of the property.
    •Where an indictment for arson charged that .the prisoner, in the night time, feloniously set fire to his own dwelling house, in which .there were at the time divers human beings, w-ith intent to burn -the said dwelling house and with intent, thereby, to defraud the Poughkeepsie Mutual Insurance Company, on demurrer, it was held that the indictment was not sufficient to bring the offence within the first degree, "because'it was inot the dwelling house of another, and that it was not sufficient under the third degree, because it was not alleged in the indictment that the property was insured, and the indictment was adjudged to he bad.
    Error from the Orange County Oyer and Terminer.

      T. McKissock, for defendant.

      C. H. Winfield, (Dist. Att’y,) for the people.
   By the Court,

Rockwell, J. —

The prisoner was indicted before the Court of Oyer and Terminer of Orange County for arson. The indictment charged in substance, that the prisoner, in the night time, feloniously set fire to his own dwelling house, in which there were at the time divers human beings, with intent to burn the said dwelling house, and with intent thereby to defraud the Poughkeepsie Mutual Insurance Company. A general demurrer was put in, which was overruled by the Court of Oyer and Terminer, and the prisoner thereupon by leave of the court pleaded not guilty and was tried, and a general verdict of guilty rendered. A writ of error has been sued out in behalf of the prisoner, and the question presented under it is,-Did the Court of Oyer and Terminer err‘in overruling the demurrer?

It is contended on the part of the people that the indictment charges the crime of arson in the first degree. This is disputed on the part of the prisoner, upon the ground that a person can not become guilty of the crime in that degree by setting fire to his own house. The offence of arson, which is a felony at the common law, is defined by Lord Coke to be the voluntary and malicious burning of the house of another by day or night. (3 Inst. 66; 1 Hale, P. C. 566.)

The burning of a man’s own house is no felony at common law. But if a man set fire to his own house maliciously, intending thereby to burn the adjoining house, if the latter is burned it is felony; if not, it is a great misdemeanor. (1 Hale P. C. 568; 2 East, P C. 1027).

Arson, as well by the statutes of this state, as by the common law, is an offence against property. It consists in destroying' the property of another, through the agency of fire.

In the first degree it is defined by statute as follows: “Arson in the first degree consists in willfully setting fire to, or burning, in the night time, a dwelling house, in which there shall be at the time some human being, and every house, prison, jail or other edifice, which shall have been usually occupied by persons lodging therein at night, shall be deemed a dwelling house of any person lodging therein. (2 R. S. 657, § 9.) In this degree it is punishable with death, and is the only offence against property which in this state is so punishable. The peculiar characteristics of this degree of arson, which render it more atrocious than any other offence against property, are: ,

1. It is directed against a species of property which is more indispensable to the owner than any other, namely, his dwelling house. The design and tendency of the crime is, to deprive him of the shelter of his roof, and the security and comfort of his home. For this reason, it is held to be an offence against the possession, and therefore the house or building, which is the subject of the crime, must be described m the indictment as the house or building of the person in possession, or in other words of him whose dwelling or home it is. (The People v. Van Blarcum. 2 Johns. R. 105.)

2. It is committed in the night time and while there is in the house some human being. The natural and usual consequences of the crime are, that the lives of the inmates of the house are imperiled, and they are driven out in the darkness of night, from the shelter and all the comforts of their home. The offence is marked with the most deliberate and atrocious malice. It is not perpetrated in the heat of passion, but coolly and stealthily, usually without any view of pecuniary gain, and the consequences are such as no mind which is not utterly hardened and depraved, can even contemplate with complacency. But still it is an offence against property. The word “ arson ” signifies the burning of property. If it is an offence against property, how can it be committed against a man’s own property"? The right of property, which is one of those fundamental rights which laws are instituted to protect, imports an absolute dominion of the owner over his property He may use it as he pleases, or destroy it if he sees fit, if he does not thereby injure another.

Although it is not expressly stated, in the statutory definition of arson in the first degree, that it consists in burning the dwelling house of another, yet it is to be remembered that the offence defined is arson, which is a term having a known and certain meaning in law, as -well as in common parlance. If we call in the common law in aid of the statute, as I think we should do, we find that the word arson means, the burning of the house of another. Unless the statutory definition therefore expressly extends the offence to a man’s own property, the use of the term itself restricts it to the property of others. (The People v. Yates, 15 Wend. 159.)

By the express terms of the statute a person may commit arson in the third degree by burning his own house, in case th< house is insured against damage by fire, and the offence ú committed with intent to prejudice the insurer. (2 R. S. 667, § 5.)

The indictment, in the present case, is insufficient to charge the prisoner with this degree of arson, because although it contains the allegation that the offence was committed with intent to defraud the Poughkeepsie Mutual Insurance Company, it does not contain the necessary allegation that the house was insured. (2 R. S. 667, § 5.)

The principle, upon which the last mentioned section of the statute is founded, is in perfect harmony with the view above suggested, that arson is an offence against property, and can not be committed where a man only burns his own house without thereby injuring or endangering the house or property of another. For where the house is insured and it is burned by the owner with intent to defraud the insurer, the design and tendency of the crime is to invade the right of property of such insurer. The insurer by his contract of insurance, has acquired, an interest in the preservation of the house from destruction or damage by fire.

Arson in the first degree is not necessarily a crime against human life, or the personal safety of others. Although the endangering of human life is a frequent consequence of its commission, it is not one of its necessary characteristics. The offence may be complete, without the life of any human being having been put in the slightest peril. It by no means follows, that because some person is in the dwelling set fire to at the time of the commission of the offence, that the life or safety of such person is endangered. The probable danger to life is undoubtedly one of the circumstances which aggravates the offence, but it does not constitute it. The crime itself is arson, not an attempt to commit homicide, nor does it consist in doing an act likely to produce the death of another unless such act is at the same lime arson, which, as has been already shown, can only consist in burning the house of another. I think the Court of Oyer and Terminer erred in overruling the demurrer.

Judgment of the Oyer and Terminer reversed and judgment for defendant on demurrer.


source: Caselaw Access Project

author: Crtfpen, P. J.

license: Public Domain

text:
    Supreme Court. Delaware General Term,
    July 1854.

      Crip pen, Shanklftnd and Mason, Justices.
    The People vs. Levi Johnson.

      in order to constitute the crime of receiving stolen goods, knowing them to have been stolen, the stolen property must be received feloniously, or with intent to secrete it from the owner, or in some other way to defraud him of the property.
    In an indictment for such offence, it is not sufficient to allege that the defendant received the stolen property knowing it to be stolen, but it is necessary to aver that the property was so received with a felonious or fraudulent intent.
    if there be no such averment in the indictment'the defendant may avail himself of the defect, by demurrer, writ of error, or motion in arrest of judgment.
    The defendant was tried and convicted at the Madison county Oyer and Terminer in October, 1853, and sentenced to two years imprisonment in the slate prison on an indictment for receiving stolen goods and property, with a knowledge at the time of their having been stolen.,
    The conviction was had upon the first count of the indictment.

      B. Brown, for prisoner.
    D. L- Mitchell, for the People.
   Per Curiam,

Crtfpen, P. J.

The act entitled “ Of robbery, embezzlement and larceny, ( 2 R. S. 680, § 71) provides that every person who shall buy or receive in any manner upon any consideration any personal property of any value whatsoever that shall have been feloniously taken away or stolen from any other, knowing the same to have been stolen, shall upon conviction be punished by imprisonment, &c.

The indictment does not charge that the defendant received the property feloniously, or unlawfully, or with intent to defraud the owner, but simply alleges that he received and had said goods and chattels which had been feloniously stolen, with a knowledge that the same had been stolen at the time he received said property; concluding to the great damage of the owner thereof, and contrary to the statute, &c.

The defendant’s counsel on the trial objected, and insisted that the first count of the indictment was defective and wholly insufficient to -sustain a conviction, on the ground that it did not contain an averment that the defendant received said stolen property feloniously or wrongfully, or with intent to defraud the owner thereof. The court overruled the objection.

It is undoubtedly true that the indictment follow's and adopts the language of the statute in charging the offence. The statute declares that every person who shall buy or receive in any manner upon any consideration any property feloniously taken or stolen from another, with a knowledge of its being stolen property, upon conviction thereof shall be adjudged guilty, &c.

The indictment in this case does not charge the defendant with having bought the stolen property, but with having received it, knowing at the time that it had been stolen. The statute is entirely silent as to the intent of the person who may receive and have stolen goods or property, with a knowledge at the time of receiving the same that such property had been stolen. The letter of the statute giving it a liberal construction, seems to cover every case of receiving stolen property with a knowledge of its having been stolen. No matter as to the purity of the motives by which the person may be actuated in receiving the property, if he has knowledge at the time, that it has been stolen, the statute, according to its strict letter, makes the act criminal and subjects the person to criminal punishment.

If a person knows that another’s goods have been stolen, he must not receive them into his possession for any purpose, not even to secure the same for the true owner; if he does so the statute according to its letter makes it a crime and him a criminal.

’ No argument is necessary to establish the injustice and absurdity of giving such a construction to the statute.

The intent of the statute must govern in giving it a proper construction. The object of the legislature manifestly was to punish persons who should receive stolen property,.in aid of the thief who had committed the larceny, or who should in any manner aid in defrauding the owner of his property, having a knowledge at the time that the property had been stolen.

In order to constitute the crime created by the statute, the stolen property must be received feloniously or with intent to secrete it from the owner, or in some other way to defraud him of such property. The intent must be criminal or unlawful, otherwise no crime can be committed,' it is the intent with which the property is received that constitutes the essence of the crime; if the intent is honest and meritorious no crime can be committed.

The next question arising in the case is whether the intent should or not be averred in the indictment, or in other words, is the indictment sufficient to warrant a conviction, without charging the defendant with a felonious receiving of the property, or that he wrongfully received it, or that it was received unlawfully, or to defraud the owner thereof. We deem the rule well settled, both upon authority and principle, that every fact or circumstance which is a necessary ingredient in the offence, should be averred in the indictment. If any fact which is a material ingredient to constitute the crime is omitted in the indictment, such omission vitiates it, and the defendant may avail himself of such defect by demurrer, by writ of error, or on a motion in arrest of judgment. (Archbold’s Criminal Pl. 42, 5th edition; Barbour’s Criminal Law, 320; Lee v. Clark, 2 East, 333.) Nor will the conclusion of the indictment with the words " contrary to the form of the statute,” convict. (2 Hale, 170; Archbold, 51; Comyn's Digest, Information, D. 3.)

It will be found that the precedents given in Chitty & Arch-bold’s Criminal Pleadings, of indictments for receiving stolen property, aver that such property was received feloniously oi with intent to defraud the owner. We have not found a case or precedent, where the indictment has omitted to charge the defendant with having feloniously received the stolen property with a knowledge of its having been stolen. The result is that the judgment and conviction in this case must be reversed and the defendant discharged from imprisonment.

Judgment reversed.


author: Dean, J. —

text:
    Dutchess Circuit.
    September 1854.
    Before Dean, Justice.
    The People vs. Frank Mack.
    A recognizance taken by a justice of the peace, for the appearance of the accused to answer to a criminal charge, must require his attendance at the next criminal court having cognizance of the offence.
    Where a recognizance was conditioned for the appearance of the accused at the next court of Oyer and Terminer, to be held in the county in June then next, and it appeared that a court of Sessions was appointed to be held and was in fact held in the same county, on the second Monday of May of the same year, at which a grand jury was required to attend and did attend and was sworn and heard complaints, such court of Sessions having cognizance of the offence charged, the recognizance was held void and in an action upon il against the bail, judgment was given for the defendant.
    Where a justice of the peace was authorized to hear a complaint and take a recognizance only in the absence of the police justice residing in the sarao town, and in an action on a recognizance taken by such justice of the peace, it was alleged in the answer that such police justice was not absent from the town when such recognizance was taken, but no proof on that jioint was introduced on the trial, it was held that the legal presumption, in the absence of proof, was that the justice of the peace did not transcend his jurisdiction.
    The defendant was sued in the Supreme Court, on a recognizance entered into by him as a bail of one Smith, conditioned for his appearance to answer a criminal charge. An answer was put in, by which issue was joined, and the cause was brought to trial at the Dutchess Circuit, before Mr. Justice Dean, and was tried by the court without a jury. The questions arising on the pleadings and the evidence at the trial are stilted in the opiiiion of the court.

      J. C. Campbell, (Dist. Att’y,) for plaintiff.

      J. F. Barnard, for defendant
   By the Court,

Dean, J. —

This is an action on a recognizance. The complaint states that on the 24th March, 1854, Henry A. Smith was brought before a justice of the peace in Poughkeep-sie on i warrant for larceny. After the usual éxnminaíion, the justice decided that there was probable cause to believe said Smith guilty of the offence with which he was charged, and required him to give bail for his appearance at the next court of Oyer and Terminer to be held in Dutchess county, to answer said charge, which court was in June, 1854. Thereupon, Smith, with the defendant as his surety, entered into a recognizance before the said justice in the sum of $500 for the appearance of Smith at the Oyer and Terminer. Smith did not appear, the recognizance at the June Oyer and Terminer was forfeited, and an order to prosecute entered.

The answer admits the facts in regard to the arrest and giving of the recognizance, but sets up as a defence that the justice of the peace who took it resided in the city of Pough-keepsie, and only had jurisdiction of the offence charged in case of the absence of the police justice, and denies that he, at the time this recognizance was taken, had any jurisdiction.

It further says that a court of sessions was regularly and legally appointed to be held .in Poughkeepsie, for the county of Dutchess, in the second Monday of May, 1854. That at said court a grand jury was required to attend and did attend, were sworn and heard complaints, and that said recognizance is void, because it did not require the attendance of the accused at the next court having cognizance of the offence.

On the trial, the facts stated in the complaint were admitted, as were also the appointment and holding of the Court of Sessions in May, and the sitting of the grand jury at that court. No evidence was given or offered, in reference to the absence of the police justice from Poughkeepsie, at the time the recognizance was taken.

A justice of the peace being an officer whose jurisdiction in criminal cases extends to every portion of the county, and who has general power to take a recognizance in cases where the punishment does not exceed a prescribed limit, the legal presumption, in the absence of proof, is that he did not transcend his jurisdiction.

The other question is one of more importance, and which I do not find decided in any case. P will be necessary therefore to examine it upon principle. In 4 Black. Com. 296, it is. said the person accused, if a case is made out against him before a justice of the peace, “must either be committed to prison oi give bail, that is, put in securities to answer the charge against him. This commitment therefore being only for safe custody, whenever bail will answer the same intention, it ought to be taken.”

The same author, in speaking of the nature of bail, calls it “ a delivery of bailment of a person to his securities, upon their giving together with himself sufficient security for his appear anee, he being supposed to remain in their friendly custody instead of going to jail.” Instead therefore of being delivered into the hands of the sheriff or keeper of the jail, the prisoner is to be kept by his bail. The custodian is only changed. But till what time is his bail to keep himl Clearly, if no different rule is established by statute or the common law, for the same time that the keeper of the jail under the commitment could beep him, until the sitting of the next court having cognizance of the offence. Then, if the grand jury fail to indict, the prisoner is entitled to his discharge. This is the practice at common law. Our statute, (2 R. S. 758, § 26,) makes it the duty of the court of Oyer and Terminer and Sessions, within twenty-four hours after the discharge of the grand jury, to cause every person confined in the county prison, on a criminal charge, who shall not have been indicted, to be discharged without bail, unless satisfactory cause is shown for detaining him in custody, or for requiring him to give bail.

But besides this provision, which alone should settle the question as to the time when the bail is to produce the principal, is the provision of the statute, (2 R. S. 709, §§21, 22,) which authorizes the magistrate taking the examination to require the prosecutor and all the material witnesses against the prisoner, to enter into a recognizance to appear and testify at the next court having cognizance of the offence and in which the prisoner may be indicted. The only power that an officer has to bind a witness to appear and testify is here contained. The absurdity of requiring the witnesses to attend at one court and the prisoner at another need only be mentioned to be understood. If we look at the power of bail over their principal, the necessity of this limitation will be apparent. They have the custody of the principal, and may take him at any time Of in any place. Iiis dwelling house is no longer his castle, but may be entered without his leave by day or by night, on week day or Sunday. The liberty of the citizen as much requires that there should be some limitation as to the time that this custody shall continue, as that the person in actual confinement should be discharged, on the failure of the grand jury’ to indict, at the first Court after the' commitment. Besides, if the officer taking bail can require the prisoner to give bail for his appearance at the next court but one, why may he not as Well put it at the third Of fourth court or even at a longer period! If the law doés not determine to which Court a prisoner shall he recognized, then it is discretionary with the officer taking bail, and it might become an intolerable means of oppression. I have ño doubt that the common law is well settled ón this subject.. All the analogies of our statutes are in favor of this limitation. The defendant is therefore entitled to judgment.

Judgment for defendant.


author: T. R. Strong, J. —

text:
    Supreme Court, Monroe General Term,
    September 1854.

      Johnson, Welles and T. R. Strong, Justices:
    The People vs. Malachi Moneghan.
    Since the act of 1S51, entitled “ an act in relation to courts of Sessions,” [Sess. Laws of 1831, 823), a court of Sessions' can not be held, except in pursuance of a previous order of a county judge, made under the authority of that act, and in conformity therewith, designating the times for the purpose, and published as therein directed: and wheii an indictment was found at a term not legally appointed and a plea in abatement, setting up such illegality was interposed and overruled by the Court of Sessions on demurrer, the case having been removed into the Superior Coui't by certiorari the conviction was reversed and the proceedings of the sessions were quashed.

      Certiorari to the court of sessions of the county of Livingston. On the 23d March 1854, Malachi Moneghan was indicted in the Livingston county sessions for grand larceny and pleaded not guilty. The indictment and proceedings having been continued till the next term of said court, held in May 1854, the prisoner obtained leave to withdraw his plea of not guilty and pleaded in abatement to the indictment as follows:

      Livingston County Sessions. — Malachi Moneghan ads. The People. — And the said defendant in his own proper person comes and defends the force and injury, when, See., and says that the said instrument purporting to be a bill of indictment was not found by any grand jury duly empanneled, charged and sworn, to inquire for the people of the state of New York and for the body of the county of Livingston, because he says that no term of the county court of said county for the trial of issues of fact by a jury was held on the third Monday of March, 1854, and that no court of sessions was appointed by any order of the county judge of the county of Livingston, to be held in and for the said county upon the third Monday of March, in the year of our Lord one thousand eight hundred and fifty-four, otherwise than by an order of which the following is a copy, that is to say:
    “ At a term of the county court of the county of Livingston, held at the court house in Geneseo in said county on the third Monday of January, 1854. Present, Scott Lord, county judge It is ordered that a grand jury shall be required to attend the terms of the said court to be held on the third Mondays of March and November in each year,, and that no grand.-jury shall be required to attend at any term of this court except as aforesaid.”
    And this he is ready to verify, &c., wherefore, because the said alleged bill of indictment was not found by any grand jury duly empanneled, charged and sworn to' inquire for the people of the state of New York and for the body of the county of Livingston, the said defendant prays judgment of the said bill of indictment and that the same be quashed, &c.

      And for a further plea in this behalf, by leave of the court first had and obtained, the said defendant says that the said instrument purporting to be a bill of indictment never was presented to any court of competent criminal jurisdiction by any grand jury duly empanneled, charged and sworn to inquire for the people of the state of New York and for the body of the county of Livingston, because he says that no term of the county court of said countyi for the trial of issues of fact by a jury, was held on the third Monday of March, 1854, and that no court of sessions was appointed by any order made or published by the county judge of the county of Livingston, to be held in and for the said county on the third Monday of March, one thousand eight hundred and fifty-four, otherwise than by an order of which the following is a copy, that is to say:
    At a term of the county court of the county of Livingston, held at the court house in Geneseo, in said county on the third Monday in January, 1854, present, Scott Lord, county judge.
    It is ordered that a grand jury shall be required to attend the-term of the said court to be held on the third Mondays of March and November in each year, and that no grand jury shall be required to attend at any term of this court except as aforesaid.
    And this he is ready to verify. Wherefore because the said alleged bill of indictment was never presented to any court of competent criminal jurisdiction by any grand jury duly empan-neled, charged and sworn to inquire for the people of the state of New York and for the body of the county of Livingston, the said defendant prays judgment of the said bill of indictment, and-that the same be quashed, &c.
    Malachi Moneghan.
    To which pleas the counsel for the people interposed-the following demurrer:
    And the said the people of the state of New York, by James Wood, Jr., district attorney as aforesaid, come and say that the said pleas of the said defendant, and the matters therein contained in the-manner and form as the said are above pleaded, are not sufficient in law to quash the said bill of indictment, and that the said people are not bound by the law of the land to answer the same. Wherefore for want -of a sufficient plea in this behalf, the said the people of the state of New York demand judgment, and that the said defendant may answer further to the said indictment, &c.
    The court of sessions overruled the plea and gave judgment in favor of the people; but directed the district attorney to bring the question raised by the pleas and demurrer, before the supreme court by certiorari, and stayed all further proceedings till the decision of the supreme court should have been obtained.

      George F. Danforth, for the prisoner.
    I, The proceedings of the court convened on the 3d Monday of March, were illegal, null and void. The law of 1851, was not complied with, and if, by reason of that noncompliance, it should be held that the terms previously appointed for general sessions were to be held, i+ may be answered that at no time was a term appointed, of sessions for March, and also, it is insisted that the law of 1851 supersedes the statute under which the terms of general sessions were held.
    II. By rule adopted in January, 1853, (see Rules County Court,) the county judge appointed six general terms of the county court to be held on the 3d Monday of January, March, May, July, September and November of each year, and that no jury should be required to attend the terms of March', July and November. By the judiciary act, art. 5, § 42, courts of sessions could be legally held only at the same time at which county courts for the trial of issues of fact by a jury should be held. The law of 1851, chap. 444, authorizes the county judge to designate the terms of the sessions by order, which is to be published, and which also shall designate the terms at which a grand or petit jury shall be in attendance. This statute has never been complied with, unless the order made 3d Monday of January, 1854, be deemed a compliance. But that order is no compliance with the statute. 1. It refers only to the county court. 2. It can not by implication embrace the sessions, (Bedell v. Powell, 3 Code Rep. 61,) for the courts are distinct a. In organization, b. In jurisdiction, c. And so recognized in the constitution, and in the code sec. 9, code sub. 687. d. The order indirectly refers to the terms appointed the year before.

      James Wood, Jr., (Dist. Att’y,) for the people.
    I. The court of sessions is a creature of the constitution Sub. Division 2 of sec. 14, art. 6 of the constitution of this state provides that “ The county judge with two justices of the peace to be designated according to law, may hold courts of sessions with such criminal jurisdiction as the legislature shall prescribe and perform such other duties as may be required by law.” The legislature provided by law for the manner in which “ justices of the sessions ” should be designated. (Session Laws of 1847, chap. 280; § 40 as amended, chap, 470, § 35.) In this case it appears from the record that the court of sessions which was held in the county of Livingston at the time this indictment was found, was held by and “ before Scott Lord, Esq., county judge of said county, and Harvey J. Wood and Wm. J. Plamilton, session justices duly assigned and authorized and empowered to inquire,” &c., so that the court was properly constituted, that is to say, it was composed or made up of the persons or officers that the constitution authorizes to hold courts of sessions. The legislature has also prescribed the criminal jurisdiction of the courts of sessions. Session Laws of 1847, chap. 280, § 44, 2 Rev. Stat. 382, § 4, which were the same power and jurisdiction possessed and exercised by the courts of general sessions of the peace at the time of the passage of the act quoted. The court therefore had jurisdiction “ to inquire ” of the crime charged in the indictment. That brings us to the question of the appointment of the terms of the court or the times and places of holding the same, and it is submitted that if the legislature had omitted to make provision for the appointment of the terms of the court or of the times and places of holding the same, the court itself could by rules or otherwise have appointed them. The first provision for the time and place of holding courts of sessions is contained in § 42, chap. 280, Sessions Laws of 1847: “ courts of sessions except in the city and county of New York, shall be held at the time and place at which county courts for the trial of issues of fact by a jury of the same county shall be held, &c. This law has not been altered or repealed, and is supposed to be in force now. In 1851 the legislature passed an act which contains the following provision: § 1. Courts of sessions, except in the city and county of New York, shall be held in the respective counties, at such times as the county judge of the county shall by order designate. And the county judge shall in such order designate at which terms of the sessions a grand or petit jury or both or neither, shall be required to attend; and no grand or petit jury shall be required to be drawn or summoned to attend any term of the court of sessions which shall be designated by the county judge to be held without such jury; such order shall be published in a newspaper printed in such county for four successive weeks previous to the time of holding the first term of said court under such order. (Session Laws of 1851, ch. 444; 2 Rev. Stat. 381; § 1; 4 edition.) The court was held pursuant to an order made by the county judge under the authority conferred by that statute. It is submitted that the order is sufficient and a substantial compliance with the statute.
    II. The court was legally he d even if there has been no order of the county judge designating the time for holding it as provided in the act last above referred to. It is not necessary for the county'judge to make such order, to give the court of sessions jurisdiction. The act in question is not imperative but directory. (Smith Com. 782 to 789; see sec. 679.)
    III. The object of the statute which authorizes and directs the county judge to designate by order the time and place of holding the terms of the courts of session is, that all persons interested may have notice. The same rule then should be applied to this order that we should apply to test the validity and sufficiency of a notice. It is a well settled rule that if a notice which a statute or rule of court directs to be given, is sufficient to apprize the party of what is intended, so that he is not misled thereby, it will be held sufficient. If that rule is to be applied to the order complained of, it must dispose of the case, for no one was or could be misled by it, or read it without understanding tliat the “ county court ” named and referred to as “ this court,” was intended for, and referred to, the court of sessions.
    IV. The question raised is one purely technical, and is not entitled to any special favor from this court. It is not pretended that any injury has resulted to the defendant, or that his rights or liberty has in any way been jeoparded. The indictment has been fairly found and properly presented by a grand jury duly drawn, summoned, empanneled and sworn. If the demurrer is sustained, it is in effect deciding that all of the proceedings of the court of sessions, had at the term at which this indictment was found, are illegal and void. It is proper to state that there were found and presented to the court at that term, by the grand jury, 28 indictments, 15 of which were for felonies.
   By the Court,

T. R. Strong, J. —

It is provided by the constitution, (article 6, section M,) that the county judge, with two justices of the peace to be designated according to law, may hold courts of'sessions, with such criminal jurisdiction as the legislature shall prescribe, and perform such other duties as may be required by law.” The legislature by article 5, section 42, of the judiciary act, enacted that courts of sessions, except in the city and county of New York, shall be held at the time and place at which county courts for the trial of issues of fact by a jury of the same county shall be held, and the same number of grand and petit jurors shall be drawn and summoned therefor, and attend, the same as is now required for courts of general sessions of the peace, in the same county.” (Laws of 1847, 331, 2.) In 1851, the legislature passed an act in these words: courts of sessions except in the city and county of New York, shall be held in the respective counties at such times as the county judge of the county shall by order designate. And the county judge shall in such order designate at which terms of the sessions a grand or petit jury or both, or neither shall be required to attend; and no grand jury or petit jury shall be required to be drawn or summoned to attend any term of the courts of sessions which shall be designated by the county judge to be held without such jury; such order shall be published in a newspaper printed in such county, for four successive weeks previous to the time of holding the first term of said court under such order.” These acts were within the constitutional power of the legislature; and no court of sessions could be legally held, or transact any business, before the last named act, except at the times and places regularly appointed for4 and at which should be held, the terms of the^ county court in the same county for the trial by jury of issues of fact; nor since that act can a court of sessions be held at any other times except in pursuance of a previous order of the county judge, made under (he authority of that act, and in conformity therewith, designating such times for the purpose, and published as therein directed. Whether the first named act remains in force in each county, until an order be made by the worthy judge specifying the times for holding the court of sessions therein, and published according to the subsequent act, it is not necessary now to determine.

The indictment in the present case was filed the 23d of March, 1854, and it is stated in the caption thereof to have been found, “ at a court of sessions holden at the court house in the town of Geneseo, in and for the county of Livingston, on the third Monday of March,” 1854. It is alleged in the plea of the defendant, that no term of the county court of said county for the trial of issues of fact by a jury, was held on the third Monday of March, 1854, and that no court of sessions was appointed by any order of the county judge of that county to be held at that time, otherwise than by an order of which a copy is therein given. This allegation is admitted by the demurrer.

The order is in these words: “ At a term of the county court of the county of Livingston, held at the court house in Geneseo, in said county on the third Monday of January, 1854. Present, Scott Lord, county judge. It is. ordered that a grand jury shall be required to attend the terms of said court to be held on the third Mondays of March and November in each year,, and that no grand jury shall be required to attend at any term of this court except as aforesaid.” It. is contended by the counsel for the defendant, that here is. no valid designation of the times for holding the courts of sessions; and I am of that opinion. No court is named, or alluded to by the language employed, besides the county-court; it is the terms specified of that court a grand jury is required to attend; and there is nothing ambiguous in the order. All acquainted with the organization of the judicial department of our state, and the laws relating thereto, can not fail to understand that the learned officer who made the order did not intend by it what it expresses, but designed to appoint two of the terms of the court of sessions; this understanding however can only be obtained by going out of the order, and looking at the facts, that a county court has no power to direct the summoning of a grand jury for that court; that their attendance upon it would be useless; looking also at the aforesaid acts of the legislature; and regarding the whole of this extensive matter in connection with the order,, and drawing an inference therefrom. An order which requires this knowledge and process to learn what was intended by it, is not a valid designation of the times for holding a court of sessions under the act of 1851.

If I am right in the views expressed, all the proceedings in March in relation to the case were void; hence there was no valid indictment upon which, the defendant could be tried.

The conviction must be set aside, and all- proceedings of the sessions quashed.


text:
    Supreme Court. Monroe General Term,
    September 1854.
    Before Johnson, Welles and T. R. Strong, Justices-
    The People vs. James Henries.
    No peremptory challenges are allowable to the people' in criminal cases.
    The statute of 1847, entitled “ an act to provide for additional challenges to juors,” has not changed the law in respect to challenges by the people in criminal cases.
    A court of sessions has not jurisdiction to try an indictment for robbery in the first degree, that offence being punishable in the state prison for life; a trial and conviction in such case are utterly void.
    Certiorari to the Yates county sessions. The prisoner was indicted, at the Yates Oyer and Terminer, for robbery in the first degree, and the indictment was sent to the Yates couuty sessions for trial. The prisoner having pleaded not guilty, the case came on for trial before said court of sessions on the 16th of May, 1854, before Lewis, county judge and the justices of the sessions.
    On the trial, the clerk proceeded in the usual way to draw and call the jury, and before twelve jurors had been drawn and empanneled, the clerk drew and called one William A. Pelton as a juror; said Pelton answered to the call, but was peremptorily challenged by the district attorney, who claimed the right of a peremptory challenge, to which the counsel for the prisoner objected. The court overruled the objection aud decided that the district attorney was entitled to two peremptory challenges, and that the challenge to the juror Pelton was well taken, and directed the said juror to stand aside, to which decision the counsel for the prisoner excepted. The juror thereupon stood aside, and another was drawn and empanneled in his place. The trial proceeded, and the prisoner was found guilty on the first count of the indictment, and not guilty as to the other counts. The cause having been brought before this court on a bill of exceptions, the prisoner’s counsel moved for a reversal and for a new trial.

      E. Van Burén, for the prisoner.

      A. V. Harpending, (Dist. Att’y,) for the people.

      The public prosecutor on the trial of an indictment, is entitled to the same number of peremptory challenges that are allowed to parties in civil actions, because the act of April, 27, 1847, to provide for additional challenges to jurors, and the provisions of revised statutes respecting challenges to jurors are in pari materia, and must be construed as if they formed parts of the statute, and were enacted at the same time. ( Waterford and Whitehall Turnpike Co. v. The People, 9 Barb. 161, and the cases there cited; 2 R. S. Ath ed. 917, § 13 and 16, Laws of 1847, p. 130.)
   By the Court,

T. R. Strong, J. —

By the common law of England, as modified by the statute 33 Edw. I, 4, the crown was allowed a challenge to jurors without assigning his cause of challenge until the panel was gone through; but if a full jury was not then obtained he was required to state the cause, which was to be inquired of by the court. Beyond this there was no peremptery challenge on the part of the crown. (4 Bl. Com. 353, 1 Chit. Crim. Law, 534 and cases cited.) This was the law of the colony of New York at the time of the revolution, and was adopted by this state, the people occupying the place of the crown. (Const. of 1777, § 35.) On the 19th of April, 1786, an act was passed in this state, by section twenty-two of which it was provided, “ that in all cases where the attorney general of this state, in behalf of this state, or he who shall in any case prosecute for the people of this state, shall challenge any juror as not indifferent, or for any other cause, he who shall make any such challenge, shall immediately assign and show the cause of such challenge, and the truth thereof shall be inquired of and tried, in the same manner as the challenges of other parties are or ought to be inquired of and tried.” .(1 Greenleaf’s Laws, 261.) This section must have been intended to abrogate the right of challenge without showing cause; and I think it did so. Unless such was its object, I do not perceive any reason for it, nor unless it had that effect, do I perceive that any thing was accomplished by it. It is not merely declaratory, for it changes the common law rule by requiring cause to be shown in all cases of challenge in behalf of the people, and immediately on the making thereof. The provision of this section was continued in the revisions of 1801 (1 Kent and Brad. 385, § 25) and 1813, (1 R. L. 334, § 25,) a proviso being added, that nothing in that act contained should be construed to take away the right of peremptory challenge in any cases where the same were then allowed by law. The purpose of this proviso is not apparent; it may have been to prevent an implication from the latter clause of the provision affecting the right to a peremptory challenge by a defendant; but whatever may have been its object, I do not think it restored to the people the right of challenge without' assigning a cause — or a pe-, remptory challenge — as it formerly existed. If the legislature had entertained such an intention, it would have been manifested in very different terms, and another way. The revised statutes of 1830 contain a section in relation to challenges in behalf of the people — which is the only provision therein on the subject — in these words: The attorne3r general, or district attorney prosecuting for the people of this state, shall be entitled to the same challenges in behalf of this state, either to the array or to individual jurors, as are allowed to parties in civil cases, and the same proceedings shall be had thereon as in civil actions.” This section is a revision of the statute of 1813 before referred to, and a substitute for it, and, in my opinion, restricts the right of challenge in behalf of the people to the limits therein specified.

In 1830, no challenge was allowable in civil cases, either at common law or by the revised statutes of that year, except for special cause shown. If the people were after that revision entitled only to the same challenges as parties in civil cases, it was necessary that, their cause of challenge should in every case be stated, and judged of by the court. In 1847, an act was passed, the first section of which is in these words: Upon the trials of any issue or issues of fact, joined in a civil action, each party shall be entitled peremptorily to challenge two of the persons drawn as jurors for such trials.” By the second section, the right of peremptorily challenging a limited number of jurors is given to a defendant in criminal cases where it did not before exist; and by the third section it is declared that nothing in the act contained shall be deemed to prevent any challenges theretofore allowed either to the array or to individual jurors. It is claimed on the part of the people that the first section of this act, and the section of the revised statutes allowing the people the same challenges as are allowed to parties in civil cases, are in pari materia, and must be construed as if they proved parts of the same statute, and were enacted at the same time; hence, that the people are in every criminal case entitled to two peremptory challenges. The rule is well established that statutes in pari materia must be construed with a reference to each other, but I think it is inapplicable to this case. The statutes in question are upon entirely different subjects; the first relates to challenges in criminal cases, and refers to civil cases merely for description; the other relates to civil cases only. There is nothing in the act of 1847 indicating an intention to extend the right of challenge in behalf of the people in criminal cases, nor in the revised statutes, manifesting that it was contemplated that the right of the people was to be enlarged or diminished as the right of challenge in civil cases might be varied. I am satisfied that the act of 1847 has not changed the law as it stood before, in respect to challenges by the people in criminal cases, and that no peremptory challenges by them are allowable.

The views here presented and conclusions airived at, are in conflict with those in the President, &c. of Waterford and Whitehall Turnpike v. The People, (9 Barb. 161,) in which one of the members of the court dissented, but they are supported by the decisions in The People v. Aichinson, reported in 7 How. Prac. Rep. 241. The latter case was in the Oyer and Terminer, but the opinion was delivered by the presiding justice — a member of this court — and evidently after a careful examination. In both cases the same question as in the present was involved and necessarily decided.

There is another reason in this case why a new trial should be granted. The sessions had not jurisdiction to try the indictment, as the punishment upon conviction might be imprisonment for life, (Laws of 1847, 332, § 44; 2 R. S. 208, § 5, Sub. 2, 677, §§ 55, 678 and 57; The People v. Abbot, 19 Wend. 192.) The trial and conviction are utterly void.

Conviction reversed, and new trial granted.

       The statute authorizes a court of sessions to hear, determine and punish, according to law. all crimes and misdemeanors not punishable with death, or imprisonment in the state prison for life. Though robbery in the first degree may be punished by imprisonment for ten -years, it is also punishable by imprisonment for life. A similar construction was put upon the words liable to be punished in the People v. Van Steenburgh, supra, 36.


author: S. B. Strong, J. —

text:
    Supreme Court. Kings General Term,
    October 1854.
    Before Dean, Brown and Strong, Justices.
    Smith & Bunce pl’ffs in error vs. The People def’ts in error.
    The statute requiring a license to sell strong and spirituous liquors in small quantities, does not conflict with the 8th and 10th sections of the constitution of the United States.
    A state has the right, in adopting general regulations in regard to its internal affairs, to impose restrictions on the sale of goods, and to license persons to pursue a particular business, and the exercise of such power on the part ol the state, will not be deemed an imposition of an additional duty Upon imports, though such restrictions and license extend to imported goods, as well as to those of domestic origin.
    Writ of error to the Suffolk county sessions The plaintiffs in error, merchants, of the town of Huntington, in the county of Suffolk, were indicted for an alleged violation of the statute entitled “Of Excise and the Regulation of Taverns and Groceries.”
    The indictment set forth that the defendants therein, at various times during the summer of 1853, at the town of Huntington aforesaid, did willfully, unlawfully and wrongfully sell to divers persons strong and spirituous liquors and wines in quantities less than five gallons at a time, without a license therefor. The defendants were arraigned and demanded a trial. The following evidence was given for the prosecution:

      Richard A. Udall being sworn, said — I reside at Islip; I am acquainted with the defendants; they are merchants in Babylon, in the town of Huntington. I purchased liquor at their store previous to the last court in September; paid’ for it; I don’t remember whom I bought it of, or whom I paid. Sometimes they have two, sometimes three clerks; Silas Udall is one of them. One or the other of these clerks is generally- about the store; I don’t know what part of the store the liquor is got from; I have got a gallon or two, or three, at a time; I would hand the clerk my vessel and tell him what I wanted, and that is all I know ¿bout it; within years past I have had it of one or other of the defendants; but since the fifth of May last, I don’t think I have. I suppose them to be partners; I have had liquor from the store several times since the first of May.
    On being cross-examined, witness said — I can’t say that I have purchased liquors of the defendants themselves since the fifth of May.
    . Nathan E. Basset, another witness for the prosecution, being sworn, said — I reside at Babylon; I know the defendants; I have bought liquor at their store since the fifth of May last. The defendants are proprietors of the store. I have bought five gallons and less, at a time, and paid for it, frequently.
    On being cross-examined, witness said — I am not positive I ever got it of the defendants themselves;. I generally got it of the boys, the clerks. The Board of Excise of the town of Huntington, met at Ezra Smith’s at Long Swamp, the first Monday of May last; a meeting called of the kind. I was present. The board consisted of Zopher B. Oakley, supervisor, and Platt It. Hubbs and Timothy Carll, justices, and a man by the name of Shepard. I applied for a license; the defendants also applied for one, and rising twenty others. We did not get a license.
    The direct examination being resumed, witness said — Sometimes when I have been in the store after liquor, one or the other of the defendants would be present; sometimes both; the liquor is kept in the cellar; there is a door that leads out of the cellar into the street; I generally take the liquor oul of this door where I went in for it, and would pay the boys for it there.
    The defendants’ counsel asked the court to charge tl e jury:
    1. That the principal or employer is not criminally liable for the wrongful act of his clerk or apprentice; and
    2. That the excise law of 1830, under which this indictment is found, is repugnant to the provisions of the eighth and tenth sections of the constitution of the United States, and therefore void.
    But the judge charged, that 'if the clerks had sold liquors íhere under the authority of the defendants, and with their knowledge, then the defendants are liable.
    And that the excise law is not repugnant to any provisions of the constitution of the United States, but that it is constitutional and valid. To each of which the defendants’ counsel excepted, and brought a writ of error to this court.

      A. T. Rose, for plaintiffs in error.
    I. The principal, or employer, is not criminally liable for the wrongful or criminal acts of his clerk, agent or servant. (Patterson v. The State, 21 Ala. R. 571.) The act complained of, and for which the plaintiffs in error were indicted, is made a misdemeanor by statute, punishable by fine and imp.'isonment. (28 th section of the statute entitled “ Of Excise and the Regulation of Taverns and Groceries,” 1 Rev. Stat. 676,2d ed.) There was no proof that the plaintiffs in error had done or committed the act charged in the indictment.
    II. That portion of the excise law which provides for granting licenses to sell “ strong and spirituous liquors and wines,” is void, it being repugnant to the eighth and tenth sections of the constitution of the United States. And, as a necessary consequence, all the enactments or provisions in the said excise law, connected with such licenses, or declaring the penalties and forfeitures for selling without them, are also void. (1 Kent’s Com. 313; Brown v. The State of Maryland, 12 Wheaton’s R 419.)

      W. Wickham, Jr., (Dist. Att’y,) for defendants in error.
    I. The sale of liquor by the clerks of the defendants, in their store, under their authority and with their knowledge, was a sale by the defendants themselves. (The People v. Hulbut., 4 Denio, R. 133; State v. Dow, 21 Vermont R. (6 Washburn, 484.) 1. The testimony fully warranted the jury in the conclusion that the sale was by the immediate direction of the defendants.- But if it did not, the judgment will not be reversed for that cause. A bill of exceptions lies only to bring up exceptions taken at the trial to the decision of the court upon the evidence, or to the charge given to the jury. (The People v. Dalton, 15 Wend. R. 581; The People v. Haynes, 14 Wend. R. 546.) 2. The offence of selling spirituous liquors may be established by circumstantial evidence. (Vallance v. Everts, 3 Barb. R. 553; The People v. Hulbut, 4 Denio R. 133.) 3. All who authorize, aid or abet the commission of a misdemeanor are principal offenders. (1 Chitty’s Criminal Law, 261; The People v. Irwin, 4 Denio R. 129.)
    II. The provisions of the statute requiring a license for selling strong and spirituous liquors in small quantities, do not conflict with any provision in the constitution of the United States. (Ingersoll v. Skinner, 1 Denio R. 540; see Pierce v. New Hampshire, §c., 5 Howard, U. S- Reports, 504.) 1. The sum required to be paid for a license, is neither a duty, impost, or excise, within the meaning of the constitution. It does not relate to the importation or .exportation of the liquor, and the amount does not at all depend upon the quantity of liquor sold or consumed. (See Nevin v. Ladut 3 Denio, 437, 444-) 2. Revenue is not the object of the license law, but it is intended as a protection .against the consequences of an unlimited traffic in strong liquor. (Griffith v Wells, 3 Denio, 226 )
   By the Court,

S. B. Strong, J. —

This is an excise case. The defendants dispute the right of a state legislature to impose a duty or tax upon persons licensed to sell spirituous liquors, on the ground that congress alone has the power to impose duties upon liquors from foreign countries.

After the repeated decisions of the courts of this state, it is too late to contend that the payment of dufies upon goods imported from foreign countries operates as an absolute and incontrovertible license to sell them. If it would, it would restrict the state legislature from adopting the most necessary police regulations,- a power so essential to their well being, if not to their political continuance, that it can not be inferred that the framers of our national constitution intended to abrogate it.

But it is said that the power to impose duties, and the provision that they shall be uniform, evince the intent to make the power exclusive of any state interference. That is so. Doubtless no state can impose any additional duty upon the importation of foreign goods. Possibly no specific duty can be imposed on them when sold. The state, however, has the right to adopt general regulations in reference to its.internal affairs, which shall include imported goods equally with those of domestic origin. Thus they can tax both together. So they can, when in their opinion the public good requires it, impose restrictions upon their vendition, as in the instances of licenses to pedlers, the imposition of duties upon goods sold at auction, and the restrictions upon the sales of medicines by apothecaries in New York city. If, in order to make the statutory provisions the more effectual, it is deemed necessary to impose a duty upon the pursuit of any particular business, that would seem to be the appropriate exercise of an essential part of a conceded power. It is not the imposition of a duty upon the importation of foreign goods, although the sale of such goods be a part of the regulated business, nor is it a duy at all upon such goods. In the case under consideration, it is a tax upon business, upon the vendition of spir.its generally; both those imported and those of domestic .origin. It surely can be no objection to a charge for a license to pursue a particular occupation, that the grantee may deal to some, or a considerable extent, in foreign goods on ■which duties have been paid.

The judgment must be affirmed.


text:
    Supreme Court. At Chambers, Brooklyn,
    October 7, 1854.
    Before Dean, Justice.
    The People vs. John Cavanagh.
    Upon a conviction at the Oyer and Terminer, it is not sufficient to state in the entry of judgment in the minutes, under the requirement of 2 R. S. 738, § 5, that the defendant was convicted of a felony or a misdemeanor¡ but the particular offence should be stated.
    And where a person is imprisoned under such conviction, the particular kind of offence of which he has been convicted should appear in the commitment, that it may be seen whether the punishment awarded was warranted by the offence.
    The penitentiary being provided by law for the imprisonment of persons convicted in the county of Kings, who shall be sentenced to imprisonment for a term not less than thirty days, it is illegal, in that county, to sentence a person so committed to imprisonment in the county jail.
    The prisoner who had been confined in the common jail of Kings county, was brought up on habeas corpus. The return of the sheriff and the other facts involved, are set forth in the opinion of the court.

      S. Sanxay, for the prisoner,
    claimed that he was illegally detained, on the ground that the entry of conviction and the commitment did not state the particular offence for which they had been convicted, misdemeanor being a general term, and not sufficiently explicit; and also that he should have been sentenced to imprisonment in the penitentiary and not in the county jail.

      R. C. Underhill, (Dist. Att’y,) for the people,
    contended that the court of Oyer and Terminer in which the prisoner had been convicted was a court of general jurisdiction, and that its judgments could not be impeached.
   After taking time for consideration, the following opinion was delivered:

Dean, J. —

The prisoner in this case is brought before me on a writ of habeas corpus issued to inquire into the cause of his detention.

The sheriff has made a return to. the writ stating that he holds him by virtue of the following commitment:

At a court of Oyer and Terminer holden in and for the county of Kings, in the court house, in the city of Brooklyn, on the 12th day of September, in the year of our Lord, 1854— Present, the Honorable Wm. Rockwell, Justice, presiding; Henry A. Moore, County Judge, Nicholas Stillwell and Sam’l Stryker, Justices of the Peace.

The people of the state of New York v. John Cavanagh, convicted of misdemeanor.

Whereupon, it is ordered and judged by the court, that the said John Cavanagh, for the misdemeanor aforesaid, whereof he is convicted, be imprisoned in the common jail of Kings county, for the term of thirty days, and pay a fine of $250; and in default of payment of said fine, be imprisoned for a further term, not exceeding six months.

A true extract from the minutes.

C. A. Denike, Clerk.

The prisoner’s counsel says the return itself does not show a sufficient cause for detention, in this, that the offence for which he is committed does not appear in this commitmei t, and alleges by way of traverse that in Kings county a special statute exists, which directs courts sentencing prisoners to imprisonment for thirty days or more to sentence them to imprisonment in the penitentiary.

The statute is as follows:

Chap. 110. — Laws of New York. — An act relating to the penitentiary in the county of Kings. Passed April 5, 1853 three-fifths being present.

The people of the state of New York represented in senate and assembly, do enact as follows:

Sec. 1. Whenever the penitentiary in the county of Kings shall be ready for the confinement of prisoners therein, the board of supervisors of said county shall file a certificate thereof in the office of the clerk of said county, and also publish a notice of the same three weeks successively in one or more newspapers published in said county.

Sec. 2. After the filing of said certificate and the publication of said notice, it shall be the duty of all magistrates and courts in said county to sentence all persons, who on conviction are liable, (except in capital cases,) to imprisonment for a period of not less than 30 days to confinement in' said penitentiary, instead of the county jail.

The necessary facts were proved to show that the preliminaries required had been taken by the board of supervisors* viz., the order, its filing and the publication in one or more papers for the period of three weeks. The district attorney was notified of the time' of the return of the writ and appeared in behalf of the people.

The first question that arises is whether the commitment whereon the prisoner is held is “ the final judgment or decree of any competent court of civil or criminal jurisdiction.” If it is, then I have no authority to discharge him. The statute 2 R. S. 783, § 5* provides that whenever a judgment upon a conviction shall be rendered in any court it shall be the duty of the clerk thereof to enter such judgment fully in his minutes, stating briefly the offence for which such- conviction shall have-been had'* .In' this case it Was proved that the commitment on< which the prisoner was held, was a transcript of the minutes of the clerk — which was the only judgment that exists.

Is this a judgment? No offence is stated. It is true, that il says “ for misdemeanor.” This embraces a numerous class of cases, hut is not the name or description of any offence. We can not from this determine for what he has been tried or convicted, nor could- this judgment, without proof, be a bar to another trial for any specific misdemeanor. The statute' which requires that the judgment should state the offence, means more than that it should state to which class of offences — felonies or misdemeanors — it belongs, and a minute like the one proved in the case is not a judgment within its intent or letter. I see no objection, therefore, to proceeding with the examination into the cause of the prisoner’s detention.

He is held, the return states, on a sentence of 30 days’ imprisonment and to pay a fine of $250. or in default thereof an imprisonment of six months for a misdemeanor. Now, there are some misdemeanors for which a person convicted can not be imprisoned at all, and others in which the fine can not amount to the sum here named. Can anyone from the process or the judgment on which the sheriff holds the .prisoner determine whether this is a legal sentence? Opening sealed letters is a misdemeanor punishable by a fine not exceeding $100 and imprisonment not exceeding one month.

Assemblages of three or more persons in public houses, disguised, is a misdemeanor punishable by imprisonment alone Winning or losing at play more than $25- within 24 hours is a misdemeanor punishable by fine alone.-

There are so many cases of this kind, that I can not now enumerate them. These will furnish an example to show that from the mere statement that the prisoner has been convicted of a misdemeanor, it does not appear that the sentence in this case was. one which the court was authorized to pronounce.

There are felonies for which a person on 'conviction may be imprisoned in the county jail or state'prison, and other felonies on which he may be sentenced to be executed. Now, surely it would not be enough in entering up a judgment for a capital offence to say that the prisoner was convicted of a felony. The statute, when it says the judgment shall state the offence, means that it shall specify more than the class of the offence, namely, a felony or a misdemeanor, but that it shall designate the particular offence for which he has been indicted and tried, whether it be for gaming, larceny, or murder. I conclude, therefore, that this is not a judgment.

But even if it were the final judgment of a court of competent jurisdiction, there is no reason why the prisoner should not be discharged, if anything appears on the face of the process which shows it invalid. A judge can not on habeas corpus go back and inquire into the merits of the case, nor whether errors were committed on the trial; but if the process is set out by which the prisoner is confined, then, in the language of Judge Bronson, (5 Hill, 167, People v. Cassels,) “the officer may inquire whether in truth there be any process, and whether it appears on its face to be valid. He may also inquire whether any cause has arisen since the commitment for putting an end to the imprisonment, as a pardon, reversal of the judgment, payment of the fine, and the like.”

The -e are many cases which can not be reached by writ of error, ind when the only means of obtaining a release from an illegal imprisonment is either by a motion to the court, or by a resort to this writ, which is so highly favored by law that it is made ;i penal offence for an officer to refuse it.

I think the imprisonment is illegal for another reason. The penitentiary of Kings county is the place provided by law for the confinement of persons sentenced for thirty days, and I see no ground for leaving it discretionary with the court to elect in which place the confinement shall be, the jail or penitentiary.

Of the merits of the conviction I know nothing, and have no concern. I am only to pass upon the legality of the imprisonment, and being satisfied that it is illegal my duty is plain. The prisoner must be discharged. Whether the Oyer and Terminer, on entering a judgment on the conviction, may again arrest and sentence him, need not now be determined.

Prisoner discharged.


text:
    Supreme Court. At Chambers, Brooklyn,
    November 2, 1854.
    Before Bean, Justice.
    The People vs. Maloney alias McCluskey.
    At common law a dog was not the subject of larceny; but it seems the law in this respect has been changed by the Revised Statutes, which recognize dogs as property, by subjecting them to taxation, and define larceny so as to cover the taking and carrying away of all kinds of property, except the freehold and things which are parcel of it.
    Where a person was indicted for grand larceny, in stealing a Newfoundland dog of the value of $100. the property of R. T., and arrested on a warrant issued on such indictment, after a hearing on habeas corpus before a justice of the Supreme Court at chambers, his discharge was refused.
    The prisoner was brought up on a writ of habeas corpus. It appeared that he had been indicted and arrested for grand larceny in stealing a dog. He claimed to be discharged on the ground that a dog was not the subject of larceny.

      D. II. Topping, for the prisoner.

      R. C. Underhill, (Dist. Att’y,) for the people.
   After advisement, the following opinion was delivered:

Dean, J. —

The prisoner was indicted at the Kings county sessions for grand larceny, in stealing a Newfoundland dog of the value of $100, the property of Richard Todd. He was then arrested on a warrant issued on the indictment, and in default of bail for his appearance to answer the indictment, was committed. He is now brought before me on habeas corpus, and his discharge on his own recognizance asked for, on the ground that a dog is not property whereof a larceny can be committed.

The case has been argued at length by the prisoner’s counsel on one side, and the district attorney on the other; and strange as it may appear, when the number of dogs is considered, and the value which t for various purposes is put upon them, the question seems never to have been decided in this state.

It is impossible for me at the circuit, constantly engaged in the trial of causes, to examine the subject at length, but I have given to it that attention which my time would permit, and will proceed to state the conclusion to which I have arrived, and briefly the reasons which have led to it.

At common law, a dog was not the subject of larceny. A reference to Roscoe’s Criminal Evidence, JlrcMold’s Criminal Pleadings, and Blackstone’s Commentaries, renders this proposition indisputable. The rule is there stated as follows: “ As to those animals which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other animal's kept for whim or pleasure, though a man may have a bare property therein, yet they are not of such estimation as that the crime of stealing them amounts, to a larceny.”

By this it appears that not only was it no crime to steal a dog, but that a person might secretly take and carry away a whole menagerie and be entirely guiltless. The reason of the rule was, that these animals were of so base a nature that it would not do to make the taking of them a felony; at that time larceny was punishable with death, and it was undoubtedly to get clear of sacrificing a man for a dog or a bear, that th,e decision was made and followed in subsequent cases. The reason of the rule no longer exists, and on that ground alone the rule might céase to be operative. But the common law has been adopted in this state, and I do not feel disposed by judicial legislation to abrogate any part of it. If we had no statute which was in conflict with it, I should feel bound by the ancient doctrine which I have cited. But I think the Revised Statutes are inconsistent with the common law rule.. By them, dogs are so far regarded as property as to be, in certain cases, the subject of taxation. The owner is made liable for the acts of his dog; thus recognizing that a dog has an owner, and consequently that the thing owned is property. For every civil purpose, not only by statute, but by the decisions of our courts, a dog is regarded as property. The owner may bring an action for any injury inflicted upon his dog. If taken away he may bring replevin or trover. But the statute has defined grand larceny, which is the crime whereof the prisoner is indicted. (2 R. S. 679, § 63.) “Every person who shall be convicted' of the felonious taking and carrying away the personal property of another, of the value of more than $25, shall be adjudged guilty of grand larceny.” The same chapter, page 702, § 33, defines the term “ personal property,” as meaning “ goods, chattels, effects,” &c. There is no term broader than chattel. Bouvier, in his Law Dictionary, says a chattel is a term including all kinds of property, except the freehold and things which are parcel of it.”

If these statutes, therefore, do not clearly abrogate the common law rule, they raise so grave a question as to render it improper for me on habeas corpus to discharge the prisoner. He must give bail or be remanded, and his counsel can present the question by demurrer; by moving in arrest of judgment or otherwise, so as to bring the matter up at general term, and if necessary to the court of appeals.

The bail was fixed at $250, which the prisoner obtained, and was discharged from custody.


author: Walworth, Circuit Judge,

text:
    Erie Oyer and Terminer.
    April, 1825.
    Before Walworth, Circuit Judge, and Walden, Russell, Camp and Douglass, county Judges.
    The People vs. Isaac Thayer and Israel Thayer, Jr.
    Where two or more persons, jointly indicted for murder, are tried together, only twenty peremptory challenges can be allowed to all the defendants.
    On a trial for murder, it appeared that the father of the defendants had been arrested and examined before a magistrate on a complaint against him for the same murder, and that on such examination one of the defendants, who was also at the same time under arrest for the murder, came, forward as a volunteer witness and testified on such examination; Held, that his statements, made under oath, on such examination, were admissible in evidence against him.
    On a trial for murder, it is competent for the public prosecutor to prove what the defendant testified to, before a coroner’s jury, at an inquest held on the bodv of the deceased, though it appears the defendant with other persons was at the time under arrest for the alleged murder, the inquiry on such inquest no* having been as to the guilt of the defendant, but being general, to ascertain, if possible, who was the murderer,

    In criminal trials, the jury have a right to decide both as to the law and facts of the case.  The court is bound to decide the questions of law and to state them to the jury; but the jury have a right to disregard the decision of the court upon questions of law, especially in favor of life, if they are fully satisfied that such decision is wrong. The decision of questions of fact belongs exclusively to the jury, though it is the right, and sometimes the duty of the court to comment upon the evidence, for the purpose of presenting such questions properly to the consideration of the jury.
    The mode of reasoning and drawing conclusions from facts and circumstances is the same, whether the case under consideration is a mere contest respecting the rights of property, or one involving the life of an individual; except that, in criminal cases, the accused must be presumed to be innocent, until the contrary is clearly established by proof which leaves no reasonable doubt on the mind.
    Sentence of death pronounced by Walworth, circuit judge, upon Nelson Thayer, Israel Thayer, Jr., and Isaac Thayer, at the Erie Oyer and Termi-ner, in April, 1825.
    These defendants, Isaac Thayer and Israel Thayer, Jr., were jointly indicted for the murder of John Love; and they consented to be tried together. The counsel for the prisoner, having challenged twenty jurors peremptorily, insisted upon the right to twenty more peremptory challenges; claiming that as there were two more persons on trial, each was entitled to the number of challenges allowed to a person indicted for a capital felony.
    The court decided that where two or more persons were tried together, only twenty peremptory challenges could be allowed to all the persons so tried.
    The father of the accused had been arrested and examined before a magistrate upon a complaint against him for the same murder. And in the course of the present trial the public prosecutor proposed to prove what Isaac Thayer, one of the persons now on trial, testified to on that examination. The counsel for the defence objected to said evidence, on the ground that Isaac Thayer was at the same time under arrest himself for the same murder. But as it appeared from the testimony of the magistrate that Isaac Thayer came forward as a volunteer witness upon the examination of his father, and was not coerced to testify, the court held that he could not now object to the admission, as evidence against himself, of what he stated under oath upon that examination.
    Israel Thayer, Jr., the other prisoner on trial, had been examined before the coroner when he and his two brothers, and their father, were all under arrest for the alleged murder The public prosecutor proposed to prove, by the coroner, what this defendant swore to on that examination. This testimony being objected to, the court decided that the examination of the present defendant before the coroner’s inquest, not being as to his own guilt, but merely to ascertain if possible who the murderer was, if he could not answer the questions propounded to him without testifying to facts which, in connection with other circumstances, might tend to criminate himself, he should have claimed his exemption at that time. And that having-answered the questions propounded to him without objection, the prosecutor had a legal right to give what this defendant then testified to in evidence against him on this trial. The substance of the facts in this case, as made out by the circumstantial evidence upon the trial, and as they were afterwards admitted by the murderers themselves, are referred to in the sentence pronounced by the court.
    Walworth, circuit judge, in his charge to the jury remarked that the prisoners were charged with a very aggravated murder. If guilty, and the jury were satisfied of that fact, from the evidence in the case, it was a solemn and imperious duty imposed upon such jury, by the laws of their country, to pronounce a verdict of condemnation. On the contrary, if the jury had any reasonable doubt as to the guilt of the accused it was not only their right but also their duty to give a verdict of acquittal.
    He said the reports respecting the circumstances attending the murder had been so extensive, that it was impossible that the jurors should not have heard many things on the subject before they were sworn to try the accused. But it was their duty to disregard every thing they had -heard on the subject, either for or against the accused, except what had been given in evidence upon this trial. He told the jury that, in criminal trials, they had a right to decide both as to the law and the facts of the case. That the court was bound, by the oaths of office of its judges, honestly and impartially to decide the questions of law arising in the case and state them to the jury. But the jury had a right to disregard the decision of the court, upon questions of law, especially in favor of life, if they were fully satisfied that such decision was wrong. And that the decision upon the questions of fact in the case belonged exclusively to the jury; although it was the right, and sometimes the duty of the court, to comment upon the evidence for the purpose of presenting the questions of fact arising in the case, and material to a correct decision thereof, properly to the consideration of the jury.
    He said the general principles of evidence were the same in all cases. That they were those principles of correct reason from which an enlightened intellect might be convinced of the existence of a fact which was to be established, or of the nonexistence of a fact which was required to be disproved. That the mode of reasoning and drawing conclusions from facts and circumstances must therefore be the same, whether the case under consideration by the jury was a mere contest respecting the rights of property, or one involving the life of an individual; except- that, in criminal cases, the accused must be presumed to be innocent, until the contrary was clearly established by proof which left no reasonable doubt in the minds of the jurors.
    His honor then analyzed and examined the testimony in the case at length, and presented the questions of fact necessary to a correct decision of the case to the consideration of the jury. And he then submitted the question, as to the guilt of the accused, to the jury, as one which it belonged exclusively to them to decide

      The jury, after an absence of about one hour, returned a verdict of guilty against both of the prisoners on trial.

      H. B. Potter, (Dist. Att’y), Sheldon Smith and Henry Brown, for the prosecution.

      P. C. Love, E. Griffin and E. B. Jlllen, for the defendants.
    On the next day Nelson Thayer, the other brother, wab tried upon a separate indictment for the same murder, and was also convicied.

         Vide Hendrickson v. The People, p. 406.

         This doctrine is controverted in the case of The People v. Finnegan, p. 147, and The People v. Crozier, p. 453.

   Walworth, Circuit Judge,

thereupon pronounced the follow ing sentence upon the prisoners:

Nelson Thayer, Israel Thayer, Jr., and Isaac Thayer:■ — You have been indicted by the grand jury of this county, for the murder of John Love, at the town of Boston, on the I5th of December last. You have respectively had fair and impartial trials, in which you have been aided by faithful and intelligent counsel. After a patient and deliberate investigation of your several cases by petit juries, they have been constrained and compelled, by their consciences and their oaths, to pronounce each and all of you guilty of a most foul and aggravated murder. Have you, or either of you, anything to say why the sentence of the law should not be pronounced against you? [The prisoners making no response, his honor proceeded as follows:]

The feelings and emotions with which I enter upon the discharge of the solemn and important duty which devolves upon the court, and which 1 am now about to perform, are too painful to be expressed. To pronounce the dreadful sentence which is to cut a fellow mortal off from society, to deprive him of existence, and to send him to the bar of his Creator and his God, where his destiny must be fixed for eternity, is at all times, and under any circumstance, most painful to the court. But to be compelled, at one and the same time, to consign to the gallows three young men, who have just arrived at manhood, standing in the relation to each other of brothers, and connected with others in the tender relations' of children, brothers, husbands and fathers, presses upon my feelings with a weight which I can neither resist nor express.

If, in the discharge of this most painful duty which can ever devolve on any court, I should, in portraying the horrid circumstances of this case, make use of strong language to express the enormity of your guilt, and the deep depravity which it indicates, I wish you to rest assured it is not with any intention of wounding the feelings of your relatives, nor for the purpose of adding one pang to your own afflictions which the righteous hand of an offended God is pressing so heavily upon you. But it will be for the purpose, if possible, of awakening you to a proper sense of your awful situations, and to prepare you to meet the certain and ignominious deaths which shortly await you. It is to endeavor, if possible, to soften your hearts and to produce a reformation in your feelings; that, by contrition and repentance, you may be enabled to shun a punishment infinitely more dreadful than any that can be inflicted by human laws — Ihe eternal and irretrievable ruin of your guilty souls.

From the testimony which was given on the trials of your several cases, there is no room to doubt the certainty of your guilt, or the aggravated circumstances attending the perpetration of the bloody deed. The man you murdered was your companion and your friend. He had loaned you money to relieve your necessities and to support some of your families. He was the lenient creditor, renewing and exchanging his judgments and his executions, from time to time, to prevent the sacrifice of your property. He was the lodger of your father, and was frequently enjoying the hospitalities of your own roofs. In the unsuspecting hour of private confidence, you decoyed him to the retired dwelling of Israel Thayer, Jr.; and there, while he was enjoying the hospitality of the social fireside, you stole upon him, unperceived — you aimed the deadly musket at his head, and with the fatal axe you mangled and murdered your victim — mingling his blood with that of your butchered swine. But your guilt and depravity did no*, stop here. Scarcely had you committed his lifeless corpse to its shallow grave, before you began to collect and to riot upon the spoils of his property. To the crime of murder, you added those of theft, fraud and forgery; and repeatedly imprecated the vengeance of Heaven upon your perjured souls.

The punishment of death has been pronounced against the crime of murder, not only by the laws of all civilized nations, but also by that law which was written by the pen of inspiration under the dictation of the unerring wisdom of the Most High. And as God himself has prescribed the righteous penalty for this offence, so there is strong reason to believe that very few murders are committed which are not ultimately liscovered, and the wicked perpetrators thereof brought to merited punishment.

Wretched and deluded men! In vain was the foul deed perpetrated under cover of the darkness of night; in vain was the mangled body of your murdered companion committed to the earth and the lonely grave concealed by rubbish; in vain was the little boy sent home to his mother, and the unsuspecting wife removed from her house, that no human eye should be near, to witness the foul and unnatural murder; in vain did you expect the snows of winter to conceal the grave until the body of your victim could be no longer known and recognized, You forgot that the eye of your God was fixed upon you — the eye of that God who suffers not even a sparrow to fall without his notice. You forgot that you were in the presence of Him to whom the light of day and the darkness of midnight are the same; that He witnessed all your movements; that He could withhold the accustomed snows from falling on the earth, or His breath could melt them when fallen, leaving the grave uncovered, thus exposing you to detection and condemnation. His vengeance has at length overtaken you. The sword of human justice trembles over you and is about to fall upon your guilty heads. You are about to take your final leave of this world, and to enter upon the untried retributions of a never ending eternity. And I beg of you not to delude yourselves with the vain hopes of pardon, which never can be realized. Your destiny for this world is fixed, and your fate is inevitable. Let me therefore entreat you, individually and collectively, by every motive temporal and eternal, to reflect upon your present situation, and the certain death that shortly awaits you. There is but one who can pardon your offences; there is a Saviour whose blood-is sufficient to wash from your souls the guilty stains even of a thousand murders. Let me therefore entreat you to fly to him for that mercy and that pardon which you must not expect from mortals.

When you have returned to the solitude of your prison, where you will be permitted to remain for a few short weeks, let me entreat you, by all that is still dear to you in time — by all that is dreadful in the retributions of eternity — that you seriously reflect upon your present situation and upon the conduct of your past lives. Bring to your minds all the aggravated horrors of that dreadful night, when the soul of the murdered Love was sent unprepared into the presence of its God, where you must shortly meet it as an accusing spirit against you. Bring to your recollections the mortal struggles and dying groans of your murdered friend. Recollect the horror that seized you while you dragged his murdered remains to the place of concealment. Think of the situation of your aged father to whom you are indebted for your existence. Think of the grief of your distracted and disconsolate mother, who has nursed you in the lap of affection and watched over the tender years of your infancy; who must now go down to her grave sorrowing over the ruins of her family. Think of the dreadful agonies, of the unnatural and desolate widowhoods, to which you have reduced the unfortunate partners of your beds and your bosoms. Think upon your poor orphan children, on whom you have entailed everlasting disgrace and infamy; and who are now to be left, fatherless, and unprotected, to the mercy of the world. And when, by such reflections as these, your hard and obdurate hearts shall become softened, let me again intreat you, before your blood-stained hands are raised in unavailing supplication before the judgment seat of Christ, that you fly for mercy to the arms of the Saviour and endeavor to seize upon the salvation of his cross.

Listen now to the dreadful sentence of the law, and then farewell, forever, until the court, and you, with all this assembled audience, shall meet together in the general resurrection.

You-, and each of you are to be taken from hence to the prison from which you came, and from thence to the place of execution, and there, on the seventeenth day of June next, between the hours of twelve at noon and six o’clock in the afternoon, you are to be hanged by your necks until you are dead.

And may that God whose laws you have broken, and before whose dread tribunal you must then appear, have mercy on your souls.