author: By the court, Balcom, J.

text:
    Supreme Court. Broome General Term,
    January, 1865.

      Parker, Mason and Palcom, Justices.
    The People, plaintiffs in error, v. James W. Cyphers, defendant in error.
    Where a grand jury was drawn and summoned, and attended and acted as such, at a term of a Court of Sessions appointed by the county judge, to be held at the same time as a county court, the proceedings were held to be "valid, although the county judge had omitted to designate in his order that a grand . jury was required to attend at that term; and-a plea in abatement, setting up such omission as an objection to the validity of an indictment, was, on demurrer, overruled.
    When the justices, elected to act as justices of the Sessions, fail to appear at the time appointed for the commencement of a term of a Court of Sessions, the county judge has power to designate two other justices of the peace to act as justices of the Sessions, instead of adjourning over the court until the next day.
    Perm of a writ of error in behalf of the People, with an order that 'the prisoner ' be retained in custody, indictment for murder, with special pleas in abatement and demurrer thereto.
    This case comes before the court on a writ of error sued out in behalf of the People. The writ of error, with the allowance thereof, and the order to retain the prisoner in custody, were as follows:

      Thñ People of the State of New York, by the ‘Grace of God pL g-j Free and Independent, to the Court of Oyer and Terminer J in and for the county of Otsego:

    Because, in the record and proceedings, and also in the giving of judgment on a certain indictment, which was in our said Court of Oyer and Terminer, before you, against James W. Cyphers, for the crime of murder, manifest error hath intervened, to the great injury of the said People of the State of New York, as by our district attorney we are informed; we being willing that the error, if any there be, should be corrected, and full and speedy -justice done in the premises between us and the said James W. Cyphers, in this ■ behalf, do,command you that if judgment be thereupon given, then you send to our justices of our Supreme Court for the-
      sixth judicial district, distinctly and openly under your seal, the records and proceedings upon the indictment aforesaid, with all things concerning the same and this writ, so that they may have them at the court house in the village of Binghamton, on the 4th Tuesday of January next, that the records and proceedings aforesaid being inspected, we may cause to be further done thereupon for correcting that error, what of right, and according to the law and custom of the State of blew York ought to be done.
    Witness, Wm. W. Campbell, one of the justices of our said court, at Cooperstown, this 12th day of December, A. D. 1864.
    D. A. AVERT, Clerk .

    J. A. Lynes, District Attorney.

    [indorsed.]
    I do hereby allow the within writ of error, and do further order and expressly direct that the said writ of error and this allowance thereof, do operate as a stay of proceedings on the judgment upon which such writ of error is brought; and the sheriff of the county of Otsego is therefore hereby ordered to retain and hold the prisoner, James W. Cyphers, in his custody until the further order of the Supreme Court on this writ of error. Dated, December 12, 1864.
    WM. W. CAMPBELL, Justice Supreme Court.

    Filed, December 12, 1864.
    By return to the writ of error, it appeared that an indictment. for murder had been found against the prisoner as follows:

      Slate of New York, Otsego County, ss:

    At a Court of Sessions, held at the court house, in the village of Cooperstown, in said county of Otsego j the 10th day of February, in the year of our Lord, one thousand eight hundred and sixty-four, before E. E. Ferrey, county judge of Otsego county, and Charles H. Williamson and Perry P. Rogers, Esquires, justices of the peace of the county of Otsego, duly designated as members of the Courts of Sessions of said county, all justices assigned to keep the peace in and for said county, and also to hear and determine divers felonies, trespasses and misdemeanors in said county committed.
    The jurors of the People of the State of blew York, in and for the body of the county of Otsego, being then and there sworn and charged upon their oaths, present that James W. Cyphers, late of the town of Maryland, county of Otsego, and State of blew York, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the 27th day of January, in the year one thousand eight hundred and sixty-four, with force of arms, at the town of Maryland, in the county of Otsego aforesaid, in and upon one Patrick Callahan, in the peace of God, and of -the said People of the State of blew York, then and there being, then and there feloniously, willfully, and of malice aforethought, did make an assault; and that he, the said James W. Cyphers, then and there, with both his hands, the said Patrick Callahan, in and upon the head, neck and breast of him, the said Patrick Callahan, feloniously and willfully, and of his malice aforethought, did strike and beat; and that the said James W. Cyphers, then and there, with both his hands and feet, the said Patrick Callahan .so, and upon the floor, feloniously, willfully, and of his malice aforethought, did. knock, cast and throw; and the said Patrick Callahan so on the floor lying and being, he, the said James W. Cyphers, with both his hands, knees and feet in and upon the head, neck, breast, stomach, back and sides of him, the said Patrick Callahan, did then and there feloniously, willfully, and of his malice aforethought, knock, cast and throw; and the said Patrick Callahan so on the floor lying and being, he, the said James W. Cyphers, with both his hands, knees and feet, in and upon the head, neck, breast and stomach, back and’ sides of him, the said Patrick Callahan, did then and there feloniously, willfully, and of his malice aforethought, strike, beat, stamp, kick, press, and by the said striking, beating, stamping, kicking, pressing, giving to the said Patrick Callahan several mortal wounds and bruises in and upon the breast and stomach of the said Patrick Callahan, of which said several mortal wounds and bruises, he, the said Patrick Callahan, from about 9 o’clock in the evening of the 27th day of January, 1864, until about nine o'clock in the morning of the 28th day of January, 1864, did languish, and languishing did live. On which said 28th day of January, 1864, the said Patrick Callahan, at the town of Maryland, in the county aforesaid, of the several mortal wounds and bruises aforesaid, died.
    And so the jurors aforesaid, upon their oaths aforesaid, do say that the said James W. Cyphers, on the day and year aforesaid, in manner and form aforesaid, the said Patrick Callahan feloniously, willfully, and of his malice aforethought, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace of the People of the State of Hew York and their dignity.
    ’ (There were three other counts in the indictment.)
    J. A. LYiTES, District Attorney.

    The indictment was sent to the Otsego Oyer and Terminer for trial, when the record showed the following entries and pleadings:
    And afterwards, to wit, on the 23d day of June, 1864, and in and during the next term of the said Court of Oyer and Terminer, before Ransom Baloom, one of the justices of the Supreme Court, presiding justice, E. E. Ferrey, county judge of Otsego county, and Perry P. Rogers and Charles H. Williamson, justices of the peace of said county, duly designated as members of the Court of Sessions, before the justices aforesaid, at the court house aforesaid, came the said James W. Cyphers in his own proper person, and being brought to the bar here in his own proper person, and arraigned upon the aforesaid indictment, - and hearing the said indictment read, and being asked whether he demanded a trial upon the said indictment, answered that he did require and demand atrial thereon, and says that he is not guilty thereof, and, therefore, for good or ill is put upon the country.
    And James A. Lynes, Esq., district attorney in and for the said county of Otsego, who prosecutes on behalf of the People of the State of Hew York, in their behalf, doth the like. And thereupon the said-indictment is continued in the said, court before the justices thereof, until the 9th day of December, 1864, and thereupon at a term of the said Court of Oyer and Terminer held at the'court house in Cooperstown, in and .for the county of Otsego, before Wm. W. Campbell, one of the justices of the Supreme Court, presiding justice of the said Court of Oyer and Terminer, Elijah E. Ferrey, county judge of the county of Otsego, Perry P. Rogers and Miner Spicer, justices of Sessions and duly designated as members of the said court, comes the said James W. Cyphers, in his own proper person, and by his counsel, Louis L. Bundy and Hezekiah Sturges, and the said James A. Lynes, district attorney, likewise comes.
    And thereupon, and before a jury had been sworn, the said James W. Cyphers by his said counsel, asked and obtained leave of the court to withdraw his aforesaid plea of not guilty, and to plead in abatement.
    And the following pleas were then interposed by the said James W. Cyphers:
    OTSEGO OYER AND TERMINER.
    ■ The People of the State of New York v.

    James W. Cyphers.
    And the said James W. Cyphers, in his own proper person, comes into court here, and having heard the said indictment read, says: That the said court here ought not to take cognizance of the said alleged murder and felony in the said-indictment above specified, because, protesting that he is not" guilty of the same; nevertheless the said James W. Cyphers says, that the said indictment was not found 'or presented by any grand jury duly impanneled, charged and sworn at the said term of the Court of Sessions at which the said indictment-purports to have been found and presented, because no order-of the county judge of the said county of Otsego, was, or had-been made, filed, or published, designating the said February term of the said Court of Sessions as one of the terms at', which a grand jury should be required to attend, and no order-designating or appointing a Court of Sessions for the said month of February, 1864, otherwise than by an order, of which the following is a copy:
    ■ “ Terms of County Court and Court of Sessions — State of New York, Otsego County: It is ordered that the terms of the County Court and Court of Sessions, in and for the county of Otsego, be held at the court house in the village of Cooperstown, for the years. 1864 and 1865, "at the following times, to wit:
    “ A County Court and Court of Sessions on the second Monday of February, and the first Monday of August in each year. A term of the County Court on the third Tuesday in May, and the fourth Tuesday in November in each year.
    “E. M. HARRIS,
    “ County Judge of Otsego County.
    “Dated December 28, 1863.”
    And this he, the said James W. Cyphers, is ready to verify.
    Wherefore, he prays judgment, if the said court, now here, will, or ought to take cognizance of the indictment aforesaid, and that by the court here, the same may be quashed, and the said James W. Cyphers dismissed and discharged therefrom.
    And for a further plea in this behalf, by leave of the court first had and obtained, the said defendant, James W. Cyphers, says: That the said instrument, purporting to be a bill of indictment, was not found by any grand jury, duly impanneled, charged and sworn to inquire for the People of the State of New York, and for the body of the county of Otsego, because he says that no order was made by the county judge of the said county of Otsego, designating, appointing, or requiring a grand jury to be drawn or summoned to attend a Court of Sessions, appointed by the said county judge, tobe held in and for the said county of Otsego, on the second Monday, 8th day of February, 1864, and that an order, of which the following is a copy, was the only order made by the said county judge appointing or designating a Court of Sessions, to be held in and for the said county, at the time aforesaid, that is to say: * (Here the order of the county judge was again set forth as above.)
    And which said order was made by the said county judge and signed by him on the 28th day of December, 1864, and in and by which order no grand jury was designated, required or appointed to be drawn, or summoned to attend the said February term of the Court of Sessions.
    And this the said James W. Cyphers is ready to verify.
    Wherefore, because the said alleged bill of indictment was not found by any grand jury duly impanneled, charged and sworn to inquire for the People of the State of Hew York, and for.the body of the county of Otsego, the said defendant prays judgment of the said bill of indictment, and that the same may be quashed, and the said defendant may, by the court here, be dismissed and discharged.
    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, was not found at any term of the Court of Sessions legally held in and for' the county of Otsego, because, he says, that on the 28th day of December, 1868, the then county judge of the said county of Otsego made an order appointing a Court of Sessions to be held in and for the county of Otsego, in and for the years 1864 and 1865, of which order the "following is a copy, that is to say:
    (Then the order of the county judge was. again set forth as above.)
    And the said defendant further says: That no other, further or different order than the above was made by the said county judge, appointing or designating the time or times of holding the said Courts of Sessions in and for the years 1864 and 1865, or for the holding of a Court of Sessions in the said year 1864; and that the said second Monday of February, in the year 1864, occurred on the 8th day of the said month.
    And this defendant further says: That on the said second Monday of February, and eighth day of said month, the time designated in the aforesaid order for the holding of said Court of Sessions, a sufficient number of persons authorized to hold a Court of Sessions did not attend at the court house, in Cooperstown, in said county, for that purpose, before five o’clock in the afternoon of that day, but that one of the persons authorized to form a part of the said Court of Sessions, to wit, E. E. Ferrey, county judge of said county of Ostego, did attend at the time and place aforesaid, to wit, on the 8th day of February aforesaid, at ten o’clock in the forenoon of that day, and Perry P. Eogers and Charles P. Williamson, justices of the peace of said county of Otsego, duly elected and designated as members of the said Court of Sessions, at a general election duly held in and for the county of Otsego, in the month of November, in the year 1863, did not, nor did either of them, attend the said Court of Sessions at the time and place aforesaid; and the said county judge did then and there, in the absence of the said two justices of the Sessions, proceed to and did designate two other justices of the peace, not members of the said Court of Sessions, to wit, Hiram Kinne, Esq., and Ezra W. Bushnell, Esq., to act with him, the said county judge, to constitute and form a Court of Sessions, and did then and there, together with the said two justices designated by him, open the said Court of Sessions, and then and there, to wit, on the said 8th day of February aforesaid, at ten o’clock in the forenoon of that day, did adjourn the said Court of Sessions until the 10th day of February aforesaid, at ten o'clock in the forenoon, at the court house aforesaid.
    And the said defendant further says: That at the time and place last aforesaid, to wit, the 10th day of February, at ten o’clock in the forenoon, the said Court of Sessions convened at the place aforesaid, and the said grand jury, by which the said bill of indictment purports to be found, was then and there impanneled, charged and sworn for the first time, at or during the said February term of the said Court of Sessions.
    And this the said defendant is ready to verify.
    Wherefore, because the said alleged bill of indictment was never found at any Court of Sessions legally had or constituted, or by any grand jury duly and legally impanneled; charged and sworn to inquire for the People of the State of New York, and for the body of the county of Otsego, the said defendant prays judgment of the said bill of indictment, and that the same may be quashed, and the said defendant dismissed and discharged therefrom.
    And for a further plea in this behalf, by leave of the court first had and "obtained, the said defendant says: That the said alleged bill of indictment was never presented to any court of competent criminal jurisdiction, or to any Court of Sessions legally organized and held, nor by any grand jury duly impanneled, charged and sworn to inquire for the People of the State of New York, and for the body of the county of Otsego, because he says that a Court of Sessions was appointed to be held in and for the county of Otsego, at the court house in Cooperstown in said county, on the 8th day of February, in the year 1864, by an order theretofore made, filed and published, in accordance with the statute in such case made and provided, by the county judge of said county, and at the time and place aforesaid, the county judge of the said county and two justices of the peace, then and there designated by him, to wit, Hiram Eanne and E. W. Bushnell, Esqrs., pretended to and did then and there assume to organize a Court of Sessions in and for said county, by the usual proclamation, and did then and there adjourn, or assume to adjourn, the said Court of Sessions, until the 10th day of February aforesaid, at ten o’clock in the forenoon, at the court house in said county, at which last mentioned time and place the Court of Sessions described in the caption to the said alleged bill of indictment, convened and organized, and the said grand jury, by whom the said alleged bill .of indictment was presented to the said court, was then and there impanneled, charged and sworn, and at no other time or place and before no other court.
    And the said defendant further says: That Perry P. Rogers and Charles H. Williamson, Esqrs., two justices of the peace of the county of Otsego, had, prior to the said 8th day of February aforesaid, been duly and legally elected and designated as members of the Court of Sessions in and for the county for and during the year 1864. And this the said defendant is ready to verify.
    Wherefore, because the said alleged bill of indictment was not presented by any grand jury duly and legally impanneled, charged and sworn to inquire for the People of the State of New York, or for the body of the county of Otsego, nor to any Court of Séssions duly and legally organized and held, the said defendant prays judgment of the said bill of indictment, and that the same may be quashed.
    JAMES W. CYPHERS.

      Otsego County, ss:

      James W. Cyphers, the above named defendant, being sworn, says that the foregoing pleas are true in substance and matter of fact.
    JAMES W. CYPHERS.
    Sworn before me this 10th day) ofJDecember, 1864, • j
    D. A. Avery, Clerk of Otsego county.

    And afterwards, to wit, on the same day, and before the justices aforesaid, the defendant, James W. Cyphers, admitted and conceded the following facts:
    That the 9th day of February, 1864, was the day on which •the annual town meetings in and for the county of Otsego were to be held by law, and that they were so held.
    That a grand jury had been drawn in the usual form, and summoned by the sheriff at the usual time, and that- said grand jury appeared on Wednesday, the 10th day of February, 1864, and were charged and sworn, and did act as a grand jury, and presented the indictment in question.
    And thereupon the said James A. Lynes, district attorney as aforesaid, interposed a demurrer to the pleas of the defendant, the said James W. Cyphers, of which the following is a copy: .OTSEGO OYER AMD TERMINER.
    The People of the State of New York ) v. I
    James W. Cyphers. I
    'And James A. Lynes, district attorney of Otsego county, who prosecutes for the People of the State of New York in this behalf, as to the said plea of the said James W. Cyphers, by him above pleaded, says: That the same, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude the said People from prosecuting the said indictment against him, the said James W. Cyphers, and that the said People are not bound, by the law of the land, to answer the same; and this he, the said James A. Lynes, who prosecutes as aforesaid, is ready to verify.
    Wherefore, for want of a sufficient plea in this behalf, he, the said James A. Lynes, for the said People, prays judgment, and that the said James W. Cyphers may be convicted of the premises in the said indictment specified.
    ' JAS. A. LYNES, Dist. Att'y.

    Ana tnereupon tne defendant, the said James W. Cyphers, joined in said demurrer, and the same was then and there argued before the justices aforesaid, by the said Louis L. Bundy and Hezekiah Sturges for the said James W. Cyphers, and by the district attorney aforesaid, for the said People.
    Whereupon all and singular the premises being seen, and by the same justices being fully understood, it is considered by the said justices that the demurrer to the first and second pleas of the defendant, the said James W. Cyphers, be overruled, and the pleas sustained, and the indictment be quashed, and the prisoner discharged.
    That the demurrer to the third and fourth pleas be sustained and the pleas overruled.

      L. I Burditt, for the People.
    I. The county clerk is by law required to draw the names of twenty-four persons to attend every term of the Court of Sessions, which is not by the county judge designated as term, at which no grand jury is required to attend. (3 R. S., 5th ed., page 1013, § 10; Id., 490, § 32.)
    The sheriff is also required to summon the jurors so drawn. (3. R. S., page 490, §§ 12-25; see also 3 R. S., page 306, § 31; Id., 490, § 31; Id., 301, §§ 1, 2.)

      By a careM reading of the above statutes it will be seen that the county judge did not comply with the requirements thereof, in not designating any of the terms for which a jury should be required to attend. Neither did he designate any of the terms as being terms for which no jury should be required to attend.
    Therefore, it being the duty of the clerk to. draw, and of the sheriff to summon, a grand jury to attend the appointed terms of said Court of Sessions not thus designated, it would seem that the jury was properly and legally impanneled.
    IL No challenge or objection to the array of the grand jury can now be taken. (The People v. Robinson, 2 Park. Cr. R., 309; 3 R. S., page 1016, §§ 27, 28.
    III. The county judge is authorized and empowered, in the absence of the justices of the Sessions, or either of them, to fill the vacancy on the bench by the appointment or designation of justices of the peace. (Laws of 1847, chap. 280, 470, §§ 35, 40.)
    The county judge alone can open and hold a Court of Sessions for certain purposes. (3 R. S., page 1042, § 49.)
    At the adjourned day when the grand jury was impanneled, charged and sworn, the justices of the Sessions were upon the bench, and also when the indictment was presented.
    Neither of the objections taken can be sustained.
    The prisoner has not in any manner been prejudiced.
    The pleas should be overruled, and the demurrer and indictment sustained.

      L. L. Bundy, for the prisoner.
    L There was no authority for the summoning or drawing a grand jury at the February Sessions, for the reason that the counly judge did not, in the order appointing the -courts, order or require a grand jury to be summoned.
    The Constitution provides that the “ county judge, with two justices of the peace, to be designated according to law, may hold Courts of Sessions.” (Art. 6, § 14, vol. 1, Statutes at Large, p. 53.)

      1. By the judiciary act of, 1847 it is provided: “And where, in any county, a,grand jury shall not by law be required to attend every term of the Court' of Sessions, the county judge shall direct which terms of such courts a grand jury shall attend, by an order to be made and published,” &c. Statutes at Large, 585, §26.)
    If the statute stood as above no grand jury could legally be summoned for a Court of Sessions, only on the order of the county judge, for the reason that neither the Constitution nor any statute then in force required the attendance of a grand jury at a Court of Sessions.
    2. But this question would seem to be put at rest by a subsequent statute, which provides that “.Courts of Sessions should be held in the respective counties at such times as the county judge 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 jury shall be required to be drawn, &c., to attend any term, &c., which shall be designated, &c., to be held without such jury.” (5 Statutes at Large, 245, § 1.)
    In the People v. Wilcox (23 How. Pr. R., 297), it was held that an order of the county judge appointing terms of the “ County Court ” did not embrace a “ Court of Sessions,” although it .is provided “ that Courts of Sessions shall be held at the time and place at which County Courts for the trial of issues of fact by a jury shall be held.” (4 Statutes at Large, 567, § 42.)
    And in People v. Moneghah (1 Park. Cr. R., 577), Judge Strong says: “ Eor since that act (Stat. of 1851) can a Court of Sessions be held at any other times, except in pursuance of a previous order of the county judge, made in conformity ” with the act, &c., and if such a court cannot be held only in conformity with such an order, it .follows that, no jury can legally attend only in pursuance of the same authority.
    Whether the-act of 1847 is repealed by that of 1851 is left undecided in both the preceding cases.

      Nor is it material, for the purposes of the present question, whether it is repealed or not.
    If the foregoing positions are correct, then it follows that this is not merely a question of irregularity in summoning a jury, but it is a question of power in the officers to draw the jury, and affects the jurisdiction of the court in the premises.
    3. A Court of Sessions being one of special and limited jurisdiction, its authority must be strictly pursued. (People v. Koeber, 7 Hill R., 39; Cornell v. Barnes, Id., 35; People v. Powers, 2 Seld. R., 50, 51; 6 Wend. R., 438; 9 Id., 237.)
    4. It does not follow at all that a grand jury must or need attend a Court of Sessions. (See statute before referred to.)
    And the statute defining the powers of a Court of Sessions specifies at least eight different acts to be performed by such court, that do not require the presence of a grand jury, or even a petit jury. (2 Statutes at Large, 217, § 5, sub. 3 to 10; 4 Id., 568, § 44.)
    II. The adjournment of the court on the 8th day of February to the 10th, was coram non judice, and void.
    1. It is provided by statute, “that if a sufficient number of persons do not appear by 5 o’clock, authorized to hold a court, the one appearing, or if none appear, the sheriff or clerk shall adjourn to the next day, and if none appear by 5 o’clock that day, court shall be adjourned without day.” (2 Stat. at Large, 218, §§ 8, 9.)
    Under a statute similar to the above, when the Oyer and Terminer was first opened on Wednesday, the Supreme Court held their proceedings coram non judice, and void. (People v. Bradwell, 2 Cow. R., 445 ; 1 Laws of 1823, 210, § 8; 2 R. S., 2d ed., 203, §§ 19, 20; p. 202, § 12.)
    2. Nor is the foregoing provision weakened, but much strengthened by the provision of the statute, giving Courts of Sessions the same power to adjourn as Courts of Oyer and Terminer. (5 Stat. at Large, 250, § 2.)
    In reference to Courts of Oyer and Terminer, it is provided that they “ may be adjourned to be held at a future day, by an entry to be made in the minutes of the court,” and jurors may be summoned for such adjourned court, &c. (5 Stat. at Large, 7, § 24), and by § 25, same page, “ every appointment so made,” shall be published in Albany three weeks, &c. (Sess. Laws 1851, eh. 479.)
    It is entirely clear, that under either of the foregoing provisions of the statutes, this attempted adjournment is without authority and void.
    III. It only remains to examine whether this adjournment can be sustained under the Session Laws of 1847. It is provided that “ whenever, at the time appointed for the commencement of any term of Oyer, &c., or at any term of the Court of Sessions, or at any time during such term, if either of the said justices shall not attend, the county judge may, at such term, designate some other justice to supply the vacancy until' the justice not attending shall attend; but such designation shall not authorize the justice designated, to supply the vacancy at any other term. (4 Stat. at Large, p. 567, § 40; p. 587, § 35.)
    This statute does not authorize the adjournment in this case, for several reasons.
    1. It has no reference to organizing for the purpose of an adjournment, but only to enable the court to go on with the business of the term.
    2. It does not repeal or affect, or attempt to the general provisions before cited, in reference to adjournment.
    3. It only contemplates a case where one of the justices is absent, and nowhere authorizes the judge to appoint two justices to supply a vacancy caused by the absence of both of the “justices designated.” The singular number, “justice,” is used0 all through it.
    This view is strengthened by the statute authorizing the judge to “ designate some other justice,” where one is disqualified on a particular trial. (5 Stat. at Large, 250, § 2.)
    There is no statute that authorizes a judge of Oyer or County Court to designate more than one justice. The pleas should all be sustained, and the defendant discharged.

       The above decision was affirmed by the Court of Appeals, at the March Term, 1865.

   By the court, Balcom, J.

The county clerk is required to draw a grand jury for any term, of the County Court, in any county, “ at which a Sessions may be held by law.” (3 R. S., 5th ed., 1013, § 10.) The sheriff must summon the persons so drawn for such a grand jury. (Id., 1014, § 12.)

The question in this case is, was the defendant in error indicted at a Court of Sessions held by authority of law?

The order appointing Courts of Sessions in Otsego county, for the year in which the indictment was found, is as follows: “ Terms of County Court and Court of Sessions. State of New York, Otsego county: It is. ordered that the terms of the County Court and Courts of Sessions, in and for the county of Otsego, be held at the court house, in the village of Cooperstown, for the years 1864 and 1865, at the following times, to wit: A County Court and Court of Sessions on the second Monday of .February and the first Monday in August, in each year. A tSrm of the County Court on the third Tuesday, in May and the fourth Tuesday in November, in each year. Dated December, 28, 1863. E. M. Harris, county judge of Otsego county.”

The indictment was found at the February term of the Court of Sessions, in 1864, held on the day designated in the order of the county judge for a term of the County Court and Court of Sessions. But the county judge did not designate in his order that a grand jury was required to attend at that term; and it is claimed by the counsel for the defendant in error that, by reason of this omission, a grand jury was not legally drawn or summoned for such term; and that the defendant in error was, therefore, irregularly and unlawfully indicted at that term.

According to chapter 444 of the Laws of 1851 (Laws of 1851, p. 825), “ Courts of Sessions, except in the pity 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.”

The county judge having, by order, designated the time ánd place for holding the Court of Sessions, at which the indict* ment in question was found, that term of such court was held by authority of law, and hence, a grand jury was legally drawn and summoned therefor, unless the omission of the judge to designate in his order that a grand jury was required to attend at that term, made the attendance of such a jury, at such term, unlawful or irregular.

The statute is, that 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.” (Laws of 1851, p. 825, chap. 444.)

I think.this statute is so far directory that an omission by the county judge to make the specified designations, respecting juries, does not render his appointment of the times and places for-holding Courts of Sessions, without suéh designations, irregular or invalid. It is only when the order designates a term at which no grand jury is required to attend, that it is unlawful or irregular to draw or summon one for such term. But, if there be no such designation, a grand jury may be drawn and summoned under the statutes I have cited from ■ the third volume of the 5th edition of the Bevised Statutes, pages 1013 and 1014, for each term of the Court of Sessions, specified in the order of the county judge.

In other words, the statute of 1851 authorizes the county judge to dispense with the attendance of a grand jury at certain terms of the Court of Sessions to be specified by him. But his omission to designate terms at which he does not require a grand jury does not make the attendance of such a jury unlawful or irregular at any term of such court, which has been duly appointed by him, because the law is that a grand jury shall be drawn for any term of the County Court. “ at which a Sessions may be held by law.”

A term of the County Court and a term of the Court of , Sessions were appointed to be held at the same place, and on the same day, in February, 1864, that the indictment in duestion was found; and a Court of Sessions could lawfully be held at that time without, any jury being designated therefor in the order of the county judge.

The .decisions cited from Parker and Howard's Reports do not apply to this case, for the reason that no Court of Sessions was appointed in the orders mentioned in them, by which terms of the County Court were designated. (See 1 Park. Cr. R., 570; 23 How. Pr. R., 297.)

The next and only remaining question in the case is, whether the county judge could lawfully designate two justices of the peace to act as justices of the Sessions, in the place of those elected, and who failed to appear at the time appointed for the commencement of the term at which the indictment was found.

The statute of 1847 plainly authorized him to make such designations. (3 R. S., 6th ed., 296, § 11; Laws of 1847, vol. 2, 644, § 35.) He could undoubtedly have adjourned the court until the next day, without supplying the vacancies caused by the non-attendance of the justices of the sessions. (See 2 R. S., 218, § 8; Laws of 1847, vol. 1, 330, § 36.) But he was not obliged to do that, for the statute of 1847 authorized him to take the course he pursued.

For the foregoing reasons, I am of the opinion the judgment of the Otsego Oyer and Terminer, overruling the demurrers to the first and second pleas of the defendant in error to the indictment, should be reversed, and such demurrer adjudged valid, and that the judgment of that court, sustaining the demurrers to the third and fourth pleas of the defendant in error to such indictment, should be affirmed, and the indictment, in all respects, held regular and valid, and that the indictment and record should be remitted to the Otsego Court of Oyer and Terminer, and the defendant in error required to appear in that court, and stand trial on the indictment, &c.

Judgment accordingly.


source: Caselaw Access Project

author: By the Court, Leonard, J.

license: Public Domain

text:
    Supreme Court. New York General Term,
    May, 1864.
    Leonard, Clerke and Welles, Justices.

      Rosanna Quinlan, plaintiff in error, v. The People, defendants in error.
    The prisoner, together with her husband, was indicted and tried for robbery. The judge charged that if the husband was present at the time the intent to commit the offense was formed, the law presumed she acted under his compulsion; but if she formed the intent to commit the crime and actually commenced its consummation in his absence and without his knowledge, the fact that he afterwards arrived and aided in completing it did not create the presumption that she acted under his compulsion, and that whether the wife, acted under the compulsion of her husband was a question for the jury. On writ of error brought by the prisoner, held, that the charge was not erroneous.
    In an indictment for robbery in the first degree, the prisoner was charged with taking “ bank bills of banks, to the jurors unknown, and of a number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars, &c., &c.,” and the allegation was held to be sufficient.
    Form of an indictment for robbery in the first degree.
    The prisoner and others pleaded not guilty to the following indictment for robbery in the first degree:
      City and County of New York, ss:

    The jurors of the People of the State of New York, in in and for the body of the city and county of New York, upon their oath present:
    That Rosanna Quinlan, late of the First ward of the city of New York, in . the county of New York aforesaid, James Quinlan, Margaret E. M. Smith,, and Catharine Kinsley, late of the same place, on the fourteenth day of October, in the year of our Lord, one thousand eight hundred and sixty-two, at the ward, city and county aforesaid, with force and arms, in and upon one Maria Brannigan, in the peace of the said people then and there being, feloniously did make an assault, and bank bills, of banks to the jurors aforesaid unknown, and of a number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars, of the goods, chattels, and personal property of the said Maria Brannigan, from the person oí said Maria Brannigan, and against the will and by violence to the person of said Maria Brannigan, then and there violently and feloniously did ■ rob, steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity.
    A. OAKEY HALL, District Attorney.

    The issue came on for trial on the' 19th day of November, 1862, at a Court of General Sessions of the Peace, held in and for the city and county of New York, before John H. McCunn, city judge of said city, and a jury.
    And on the trial it was proved that two of the prisoners, to wit, Rosanna Quinlan and James Quinlan, are and were, at the time when both were indicted, married to each other; that the counsel for Rosanna Quinlan and James Quinlan asked the court to charge the jury that upon the proof of the marriage, and that the parties were man and wife, both of them could not be convicted.

      The court refused to charge the jury in that way, but charged that, if the husband was present at the time the intent to commit the offense was formed, the law presumes she acted under his compulsion; but," if they find that she formed the intent to commit the crime, and actually commenced its consummation in his absence and without .his knowledge, the fact that he afterwards arrived and aided in completing it, did not create the presumption that . she acted under his compulsion; that whether the wife, in the present case, acted under the compulsion of her husband, was a question for the jury to determine from all the evidence in the case. To such ruling, and to the refusal of the court to charge the first proposition, the counsel for the prisoner excepted.
    Eosanna Quinlan was found guilty by the jury of grand larceny, and was sentenced by the court to two years imprisonment in the State prison. Her counsel then brought the case before this court by writ of error.

      S. H. Stuart, for the plaintiff in error.

      A. Oakey Hall (District Attorney), for the people.
    I. The allegation of stealing “bank bills, of banks to the jurors aforesaid unknown, and of a . number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars,” is a proper one. (Per Denio, Ch. J., People v. Haskins, 16 N. Y., 347.)
    II. The city judge correctly left to the jury the doctrine of legal coercion or non-coercion, as applied to the particlar participation of the husband and wife in the criminal transaction under trial.
    1. ■ Certainly the request of counsel was wrong, because it only approached the legal doctrine, and comprised only some precedent elements.
    2. The court charged in words as follows: “if the husband was present at the time the intent to commit the offense was formed, the law presumes she acted under his compulsion; but, if they find that she formed the intent to commit the crime, and actually commenced its consummation in his absence and without his knowledge, the fact that he afterwards arrived and aided in completing it, did not create the presumption that she acted under his compulsion; that whether the wife, in the present case, acted under the compulsion of her husband, was a question for the jury to determine from all the evidence in the case.”
    3. This charge, in effect, stated the law in the following language of Wharton: “ but if she commit a crime of her own voluntary act, even in company with or by coercion of her husband, she is punishable as much as if she were sole.” (1 Whar. Cr. L., § 71.)
    4. The ancient law of coercion, as found in Hawkins and Hale, was absurd. For example: the husband might, in the most stringent manner, coerce her to commit murder. Yet being murder, and not a misdemeanor, her act was not excused. What was it that should excuse ? Clearly the coercion, however produced. How much more sensible the doctrine: if the circumstances convinced a jury that the wife did not commit crime voluntarily, but acted out of fear from the husband’s presence, and from his present ability to do her harm, or out of a fear for future vengeance on his part, etc., etc., then the jury might acquit; but if they thought the contrary, then they might convict. In short, let coercion be proven or disproven, like any other independent fact illustrating intent or confederacy of purpose. The very principle, as just stated, was acknowledged in the instance cited by Vaughan, J., in Queen v. Cruise (1838, 2 Moody, 57), of a man who was a cripple and bed-ridden, whose wife was convicted of a crime committed in his presence. They were man and wife; he was always present during the commission of the crime, although bed-ridden; he may have coerced her to the crime by a strong will, or the possession of a pistol, or by many other imaginable conditions. But in effect, the circumstances of. the case showed that she was not coerced. Again, could not a husband command his wife to commit crime, and might not his hold upon her weak love or fears be so great, as shown by circumstances, that even, although he was absent when the corpus delicti was created, or was consummated, she was actually coerced, and therefore ought to be acquitted? Is not the safer rulé to leave it to the jury to say, in each particular case, “coercion 01 non-coercion? ”
    5. The later law indicates this: In Queen v. Cruise, supra, Lord- Abinger says, “ This case must have been left to the jury, and they have convicted the parties of an offense, of which they might be jointly guilty.” In Queen v. Borber, wife and son (4 Cox Cr. Cases, p. 272, at Nisi Prius), the lamented Talfourd said to the jury: “ This is entirely a question for you. The man and woman are living together, and that is evidence from which you are at liberty to infer that they are man and wife. If you think so, and also believe that the man was in possession of these moulds, then you ought to acquit the woman, as she cannot in law be said to have any possession separate from her husband,” etc., etc.
    6. May not circumstances exist wherein the husband is the one under coercion? Suppose Macbeth and Lady Macbeth to have been amenable to our law; what jury would have hesitated to convict her?

    7. But cessante ratione lex ipsa cessat; whether good or bad in effect, the ancient law has lost its reason in these times.
    By the ancient law the husband had the benefit of clergy if he could read, but in no case could women have that benefit; it would, therefore, have been an odious proceeding to have executed the wife, and to have dismissed the husband with a slight punishment. To avoid this, it was thought better that she should, in all cases, be acquitted; but as this reason did .not apply to misdemeanors, coercion did not apply to them! This appears from note to 2 Lewin’s Crown Reports, p. 232 (1838 . '
    8. Might not the rule in modern days be stated thus: The coercion of the wife by the husband, when both are present at an act of crime, is presumed until the contrary appear. But the jury shall decide upon the facts whether the wife is excusable or is a guilty participant. (Deduced from 1 Whar., § 75, and cases supra.)

    9. In short, did she sin as a wife or as a woman? If in her capacity as an obedient wife, let the 'husband answer. If as a woman, she must answer with or withouther husband.
    Such, in effect, was the law applied by the city judge, to the case at bar; in which case there was evidence that the crime was begun by her, and that the husband came into the crime afterwards.
   By the Court, Leonard, J.

1st. The case as presented is so meagre that it is impossible to determine whether or not the evidence justified the request made by the prisoner’s counsel, in respect to the charge of the judge.

On the hypothesis of the judge, his charge was correct. (1 Wharton’s Crim. Law, §§ 71, 75.) But one fact proven in the case is presented, viz: that Rosanna and James Quinlan, two of the prisoners at the bar, are and were, at the time when both were indicted, married t'o each other. Whether they were married at the time the offence was committed, would have been more material. But, if we assume, that they were then husband and wife, it is not stated whether the husband was present when the offense" was committed.

If both were together, and nothing appeared to the contrary, the presumption would be that the wife acted under coercion, and she would then be entitled to an acquittal. (1 Wharton’s Crim. Law, § 73.)

We cannot assume the facts to be in favor of the prisoner after conviction. If she wanted any benefit of her exception to the refusal to charge as requested, it was incumbent on the prisoner to prepare a bill of exceptions containing the facts, if any existed, so as to make it apparent that the law applicable to her case was correctly stated in the request.

2d. The objection to the indictment is not well taken. The jurors may omit a matter of description which they cannot ascertain, when the substance of the offense is set out. (Haskins v. The People, 16 N. Y. R, 347.) Some part of the money stolen in the case of Haskins v. The People, was described in the same manner as in the case at bar, and it was held good in the. opinion of Judge Denio.

The judgment of the General Sessions must be affirmed.


author: ' 'By the Court, Welles, J.

text:
    Supreme Court. New York General Term,
    May, 1864.

      Leonard, Gierke and Welles, Justices.
    Charles H. Walters, plaintiff in error, v. The People, defendants in error.
    The act of the Legislature (Laws of 1858, ch. 332, § 1) allowing peremptory challenges to jurors, on the part of the People, in certain criminal cases, is not unconstitutional.
    Where a person called as a juror in a capital case, on being challenged by the public prosecutor, testified that he had conscientious scruples as to the propriety of the death penalty in any case, and, on cross-examination, said that if he was sworn to render a verdict according to the evidence he would respect his oath and do so, but added, that he would not feel willing to be a juror in the case, held, that he was properly excluded.
    A correct decision will not be revered because it was put by the court below, upon an insufficient ground.
    On the trial of an indictment for murder, after it had been proved that on Monday, the 30th November, 1863, the prisoner came to a house of ill-fame where the deceased was staying,broke openthedoor of her room, threw her upon the floor and stabbed her with a knife a great many times, of which wounds she died a few days after, it was held to be competent, on the part of the prosecution, to prove that on the night of the day previous to the stabbing, the prisoner came to the house where tbe homicide occurred and asked the deceased to go out with him away from the house, and that she refused; that the prisoner then struck her and bit her hand and she still refused to go; that the prisoner then went out and brought in an officer and said that she had stolen his watch and that the officer then took both to the station-house and kept them locked up there all night; that they were next morning let out and the deceased went back to bed, when the prisoner made the attack on her which resulted in the homicide, such evidence being proper for the purpose of showing deliberation and malice.
    The indictment chárged the name of the deceased to be Nancy Elizabeth Vincent; the evidence shewed she went by the name of Lizzie Walters— that she sometimes went by the name of Elizabeth—that she called her name Nancy E. Vincent and that, when brought before the officer charged with having stolen the prisoner’s watch, she stated, in the presence of the prisoner, that she was not his wife, that her name was Nancy Vincent and that the prisoner made no objection to her statement, held, that it was not erroneous in the court below to exclude as evidence letters addressed to the prisoner which had been written at the request of the deceased and which were signed Lizzie Walters or Elizabeth Walters, some of them commencing “ My dear husband” and concluding “ Tour loving wife,” such letters being offered for the purpose of proving a variance between the indictment and the evidence.
    In an indictment for murder, where the true name of the deceased is charged in the indictment and proved on the trial, there is no variance, though it also appears that the deceased went by another name; and where the name charged in the indictment is not the true name, yet if it is proved that • the. deceased was called by the name charged it is sufficient and there is no variance.
    On the question of premeditation and malice, the court charged the jury that if the prisoner went to the house with the intent to kill the deceased, or if he went there without intending to kill ker, but at the time he got hold of her and pulled her out of bed, a minute before the blow was struck, he conceived the intent to take her life, then he was guilty of murder, held, that the charge was not erroneous.
    Writ of error to the Court of General Sessions of the Peace, in and for the city and county of New York.
    The plaintiff in error wasdndicted in the court below in December, 1863, for the murder of Nancy Elizabeth Vincent, on the 30th day of November in the same year. At a term of said court, held on the 9th day of February, 1864, the plaintiff in error was brought to trial upon the indictment, and was convicted of murder in the first degree, and judgment of death pronounced upon him, to be executed on the 15th day of April, 1864. Upon that judgment the present writ of error was brought.

      S. H. Stuart, for plaintiff in error.

      A. Oakey Hall (District Attorney), for the people.
   ' 'By the Court, Welles, J.

Upon the trial in the court ■ below, a number of questions arose upon objections by the prisoner’s counsel and the rulings and decisions of the court thereon; also upon the charge of the court to the jury, and refusals to charge as requested by the prisoner’s counsel.

I shall proceed to consider these questions in the order in which they are presented by the case and bill of exceptions; and, 1st, in the course of empanneling the petit jury, Benjamin Bentiet was called as a juror, and set aside on a peremptory challenge by the district attorney; to which the counsel for the prisoner objected. It is now insisted that the act of the Legislature allowing peremptory challenges on the part of the People is unconstitutional and void. (Laws of. 1858, ch. 332, § 1, p. 557.) That statute provides that on any trial for any offense punishable by death, or by imprisonment in the State prison for the term of ten years, or for a longer term, the People shall be entitled peremptorily to. challenge five of the persons drawn as jurors for such trial, and no more. The challenge under consideration was the only peremptory one interposed by the prosecuting counsel. The enactment seems to be within the plain and obvious scope of legislative power, and is not in conflict with any provision of the Constitution. We think the objection was not well founded.

2d. Robert C. Thompson was drawn as a juror, and was challenged by the defendant’s counsel for principal cause. ISTo fact appears to have been stated when the challenge was interposed, as the cause for which it was made. The juror was then duly sworn, as the case states, but does not state what was the form or substance of the oath administered to him, when the following examination of the juror and proceeding -upon the challenge took place:

Question by the Prisoner’s Counsel. What is your business, and how long have you resided in the city? Answer. An engineer; I have lived in the city twenty-seven years.

Question. Do you recollect to have read or heard anything about this case? Answer. I do not; I know nothing of the prisoner or the case.

The prisoner’s counsel then said: “We are content with the juror, and withdraw the challenge.”

Question by the District Attorney. You have no conscientious scruples, have you? Answer. Yes; I have, sir; I have conscientious scruples.

Question by the Prisoner’s Counsel. If you were sworn to render a verdict according to the evidence, you would respect your oath, and so do, would you not? Answer. I would, sir; but I should not feel willing to be sworn in the case.

By the Court. The juror objects to being sworn. I will exclude him. The prisoner’s counsel objected, and the court w' jd the objection.

The question in regard to the exclusion of this juror may be summed up in few words. The challenge by the prisoner’s counsel had been withdrawn; when the counsel for the People proved by the juror that he had conscientious scruples. These scruples evidently related to the propriety of the death penalty in any case. It was not so specified in the question to the juror, nor in his answer, but it was obviously so understood by him, as the question put to one of the persons called as a juror, and examined just before, contained the specification, and this juror must be presumed, in the- absence of evidence to the contrary, to have been present and heard it. It is true he testified that he would respect his oath and render his verdict according to the evidence, but added he should not feel willing to be sworn in the case. He was set aside by the court, who specified no other ground or reason for the exclusion than the feeling of unwillingness of the juror to be sworn in the case. If, however, we can see that it was the duty of the court to exclude him as legally incompetent, we should not reverse the judgment for the reason' that the exclusion was put upon an insufficient ground, assuming that such was the fact. A man who honestly believes that government has not the right to take life as a penalty for crime in any case, which is confessedly the foundation for such scruples of conscience by persons called as jurors in capital cases, is clearly not a competent juror for the trial of an indictment, where a conviction involves the death penalty. However faithfully he may intend to render a verdict in strict accordance with the evidence, and no matter how firmly he may believe he will be able to do so, such is the character of the human mind, so self-deceiving in its operations and their results, that an unbiased verdict could scarcely be expected from a juror thus affected. The more sincere and honest his scruples,' the greater the danger of their going with him into the jury box and contaminating his verdict. The firm, independent and impartial administration of public justice is too important to be left exposed to such improper influences, and such uncertain consequences.

We think the juror was properly excluded.

Several other questions arose upon objections by the prisoner’s counsel in the course of empannelling the jury. They are all, however, disposed of by the views already stated, in considering the objection to the ruling of the court in excluding Thompson as a juror.

3d. It was proved on the part of the people that on a certain Monday morning, the deceased was in bed with another woman at a house of ill-fame in Centre street, in the city of New York, when the prisoner broke open the door of the room where they were, entered the room, seized the deceased, dragged her out of the bed, threw her upon the floor, took hold of her head, “ made her head go up and down a great many times,” as one of the witnesses expressed it, and stabbed her with a knife a great many times in her shoulders, back, neck, stomach, legs, and in various other parts of her body; that he was then forced to leave her, and went into the street. This, as it appears by the evidence, was on the 30th day of November, ■ 1863. She was soon after, and on the same day, taken by the police officers to the city hospital, where she lingered until the 7th day of December, 1863, when she died of the wounds thus inflicted by the prisoner.

The counsel for the people then proposed to prove by a witness on the stand an occurence between the prisoner and the deceased on the Sunday night previous to the murder, for the purpose of showing the intent of the prisoner. To this the counsel for the prisoner objected, and the objection was overruled by the court. The witness then stated substantially as follows: That the prisoner, on the night before the morning of the homicide, at the house where the homicide occurred, wanted the deceased to go out with him away from the house, and she would not go. That he then struck her and bit her hand, and yet she would not go. He then went out and brought in an officer, and said she had stolen his watch. That the officer took both to the station house, where they were locked up all night, and both were let out on Monday morning. That the deceased came back to the house and went to bed. Some time' after, the prisoner followed her to the house and committed the outrages above described. This evidence was entirely proper for the purpose of showing deliberation and malice on the part of the prisoner, and was properly received by the court.

4th. One of the prisoner’s grounds of defense was an alleged variance between the indictment and the evidence, in respect to the name of the deceased, the indictment charging it to be Nancy Elizabeth Vincent, and the evidence showing that she went by the name of Lizzie Walters. The prisoner’s counsel proved, and offered to read in evidence a number of letters addressed to the prisoner under various dates and signed some of them Lizzie Walters, and others Elizabeth Walters, and proved to have been written for and at the request of the deceased. The reading of these letters was objected to by the counsel for the people, and the' objection was sustained by the court. This decision of the court is now urged as a ground for reversing the judgment. Copies of, the letters are annexed to the bill of exceptions, and upon inspection, their contents are found to be entirely immaterial to the question of variance, or, indeed, to any other question involved in the trial, except only the signatures, which showed that at the dates of the letters she called her name Walters. That she called her name Walters, and went by that name, among her associates at the house of prostitution referred to, was proved by .all the witnesses introduced on the part of the people called to prove the homicide and its perpetrator and was not questioned by the public prosecutor. None of these witnesses professed to know what her real name was. Some of these letters in their commencements and conclusions seemed to indicate that the deceased was the wife of the prisoner; for example, they commenced “ My dear husband,” and concluded “Your loving wife,” &c. And it was for the purpose of proving that she was in fact his wife, and therefore her name must have been Walters, and not Vincent, that the letters were offered in evidence. On. objection by the counsel for the people, the letters were excluded. I entertain no doubt of the correctness of this decision. A marriage in fact cannot be thus proved, and so far as common reputation was concerned the prisoner had the benefit of all the evidence which he could produce. There was no evidence of cohabitation between the parties, in such a sense, as with the evidence of common reputation in some cases raises the presumption of marriage. The prosecution had proved' that when the prisoner and the deceased were at the station house together, the evening before the commission of the homicide, the deceased stated in the presence of the prisoner, in answer to questions put to her by the officer who was investigating the prisoner’s charge against her for stealing his watch, that she was not his wife, and that her name was Nancy Vincent. It elsewhere appeared that she called her name Nancy E. Vincent, and that she sometimes went by the name of Elizabeth. When she denied in presence of the prisoner that she was his wife, and stated her name to be Nancy Vincent, he made no objection to her statements. The rule, as I understand it, in a case like the present, is, that where the deceased went, and was called among her acquaintances by a name different from . his dr her true name the district attorney may state the true name in the indictment, and if the true name is proved on the trial, there is no variance, although it also appears that the deceased went by another name. So also, if the. name charged in the indictment is not the true, name, yet if it is proved that the deceased went and was called among his or her acquaintances by the name charged, it is sufficient, and there is no variance. Here the deceased declared, the evening before the murder, that'her name was Vincent, and that she was not the wife of the prisoner. The prisoner was present and made no objection. He was at the same time charging her with stealing his watch, which was impossible, if she was his wife. This was quite sufficient to go to the jury, and for them to find that her true name was Nancy E. Vincent.

5th. There was an attempt madé on behalf of the prisoner to prove that at the time he committed the homicide he was laboring under a state of mental derangement, but the testimony did not approximate to even prima fade evidence of the fact. Such as it was, it was fairly submitted by the court to the jury, as was also the question of the variance before considered.

6th. After the evidence was closed, and the case summed up to the jury by the counsel for the prisoner and the district attorney respectively, the prisoner’s counsel requested the court to charge three several propositions of law to the jury as follows:

1st. Premeditated malice canno^be inferred from the manner of the killing, nor the means employed, however cruel the one, or dangerous the other.

2d. That a case like the present where the defense consists in the insanity of the prisoner, it becomes incumbent upon the prosecution to prove him sane.

3d. That if Nancy E. Vincent was not the name of the deceased, and she was known by and among her acquaintances, and in the community in which she lived, and Elizabeth Walters was the name by which she was so known, the jury must acquit. .

The court refused to charge as requested except so far as the propositions were embraced in the charge he was about to make. The court then charged the jury upon the various questions arising upon the evidence ; in the course of which he said to them: “ You must be satisfied that the prisoner committed the murder, and intended at the time to take the life of the deceased. The intent must be completely made out, otherwise you cannot convict of murder. The law presumes malice from the mere act of killing, because the natural and probable consequences of any deliberate act is presumed to have been intended by the author. If the prisoner went to the house with the intent to kill the deceased, or if he went there without intending to kill her but at the time he got hold of her and pulled her out of bed, a minute before the blow was struck, he conceived the intent to take her life, then he is guilty of murder. But if you are of the opinion, from all the evidence, that he did not intend to take life, but that the blow was struck in the heat of passion, then you can convict of manslaughter in one of the degrees. * * * You must look, gentleman, at the evidence, in order to gather the intent, or what is termed the malice of the act.”

I am prepared to endorse the law as thus stated by the court. It substantially answers the counsel’s first request to charge. The jury were to judge from all the evidence and the circumstances attending the homicide, whether the prisoner intended to take the life of the deceased, and in looking at those circumstances it was proper for them to take into view the manner of the killing and the means employed ; and from them all taken together they would determine the question of the malice aforethought.

Upon the other two propositions I think the charge was correct. Upon that one which relates to the defense of insanity, the only evidence on the subject was Dr. Banney’s letter to the district attorney, read in evidence to the jury by consent, which is an utter failure to prove the prisoner insane. Indeed it proves directly the contrary. The whole matter was submitted to the jury with great fairness, and quite as favorably to the prisoner as he had a right to require.

On the subject of the misnomer, which I have already considered, the charge, I think, is unexceptionable. It covered the whole ground of the request, and the whole question was fairly submitted to the jury.

It seems to me the prisoner has had a fair trial upon the merits, and that in the course of it, no rule of law has been violated. The evidence of his guilt is clear and con vincing. I think the judgment of the court below should be affirmed. Judgment affirmed.:


author: By the Court, Welles, J.

text:
    Supreme Court. New York General Term,
    May, 1864.
    Leonard, Gierke and Welles Justices.
    The People v. John B. Holmes
    On the trial of a prisoner for manslaughter, alleged to have been committed in the First ward of the city of Sew York, it was proved that the prisoner resided in that ward, and that a political meeting had been held there on the night the act was committed. On the cross-examination of a witness for the prosecution, he was asked, “Was the defendant a candidate for alderman of the First ward at this time1? ” On review, held, that the question was properly excluded as immaterial and irrelevant.
    Where a party relies upon an exception for refusing to charge as requested, the request must be perfectly proper as an entirety; if it embraces a single idea or'view which ought not to be presented, it destroys the value of the exception, although a part of the legal proposition embraced, if detached and presented separately, might be entirely proper.
    Form of an indictment for manslaughter.
    The prisoner was indicted for manslaughter as follows: City and County of New York, ss:

    The jurors of the people of the State of New York, in and for the body of the city and county of New York, upon their oath, present:
    That John B. Holmes, late of the First ward, of the city of New York, in the county of New York aforesaid, on the third day of November, in the year of our Lord one thousand eight hundred and fifty-four, at the ward, city and county aforesaid, with" force and arms, in and upon one David Hourly, in the peace of the said people then being, willfully and feloniously did make an assault, and that he, the said John, with a certain knife, which he, the said John, in his right hand then and there had and held, the same being a deadly weapon, the said David, in and upon the left side of the chest of him the said David, then and there feloniously and willfully did strike and thrust, giving to the said David then and there, with the knife aforesaid, in and upon the aforesaid left side of the chest of him the said David one mortal wound, of the depth of six inches and of the width of two inches, of which said mortal wound the said David, on and from the said third day of November, in the year aforesaid, to and until the fifth day of the same month in the said year, did languish, and languishing did live, on which said last-mentioned day, at the ward, city and county aforesaid, he, the said David, of the mortal wound aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say that the said John, him the said David, in the manner and by the means aforesaid, feloniously and willfully did kill and slay, against the form of the statute in such case made and provided, and. against the peace of the people of the State of New York and their dignity.
    Upon this arraignment he pleaded not guilty.
    The issue came on to be fried at a Court of Oyer and Terminer, on the 18th of January, 1864, before Mr. Justice Leonard.
    It appeared in.evidence, on the part of the prosecution, that the prisoner inflicted the wound, from the effects of which the deceased died. That the prisoner was a resident of the First ward of the city of New York, at the time the offense was committed; and that on the night when it was done, there had been a political meeting in the ward. The prisoner claimed that the act was done in self-defense, and also, that he was unconscious at the time he struck the blow, from the effects of' which, the deceased died.
    The statement of the prisoner given on his examination before the coroner, was given in evidence by the prosecution, and among other things contained the following statement:
    “ In receiving the blow, a sudden thought passed through my brain (that now seems to me like a dream), that I thought I was killed, and I as quickly thought to myself, he should go with me. I don’t recollect anything after this, until I found myself in my own room. I don’t know whether I stabbed him or not. My mind was in a confused state. I don’t know what occurred after the second thought.
    I am certain I did not stab any one before I received the blow on the head.”

      Jacob L. Smith was sworn as a witness on the part of the prosecution. On his cross-examination he was asked by the counsel for the prisoner, the following question:

      Q. Was the defendant a candidate for alderman of the • First ward at this time?
    The district attorney objected to the question. The court sustained the objection, and the counsel for the prisoner excepted to the decision.
    The counsel for the prisoner requested the court to charge, among other propositions, the following:
    That if the prosecution rely on the declarations • of Holmes, the prisoner, they (the jury) must take all the declarations together, and that if taken together, they show that he was unconscious when he struck the blow.
    The court refused to charge said proposition, and the counsel for the prisoner excepted.
    The prisoner was found guilty of manslaughter in the fourth degree and the proceedings were removed into this court for review by certiorari.

      James M. Smith, for the prisoner.
    I. It appears there had been a political meeting on the evening of the occurrence, and, that the prisoner had received a blow before the fatal wound was given.
    • The origin of the affray was an important question; any fact or circumstance that might bear upon it was competent evidence for the jury.
    The question, “was the defendant a candidate for aider-man of the First ward at this time?” was pertinent.
    1. It might have been followed by showing that the party who assaulted him was of the opposite faction. '

      2. It might have raised the presumption that a motive existed for the attack.
    3. It was pertinent to show who the defendant was, and also show a reason why he was in the street at that hour of the night.
    4. It was important as a test of the strength of the witnesses’ memory. It might have been so as to a test of his prejudices against the defendant.
    To illustrate: suppose the question had been answered in the affirmative, and been followed with the question as to whether he was not the opposing candidate, and if there had not been between them bitter political strife, might not this have had an influence upon the minds of the jury as to the credit they should have given to his evidence?

      If it might, then the question was proper. All the facts and circumstances, relating to the position of the witness regarding the party charged, that may by possibility influence his prejudices, his judgments or his acts, are legitimate subjects for cross-examination. (1 Greenleaf on Ev., § 446; 1 Starkie on Ev., 161, and cases cited.)

    H. It is a well settled principle of evidence that where declarations are relied on for the purpose of producing conviction, the jury must take the declaration together. They cannot select a part and reject the rest. (1 Greenleaf on Ev., if 218, 201, and cases cited in note to last section.)

    The statement of the defendant was a material one. The refusal of the judge to charge in the language requested, was error.
    The proposition submitted was in effect this: The jury cannot find from the statement that the prisoner, upon receiving the blow, thought he was killed, and that the deceased should go with him, and thus infer that he intended to take his life. But they must, if they rely on that statement alone, also find that he was unconscious when the fatal wound was given; and if unconscious then, as matter

      of law, he was not, on the state of facts presented in “ the statement,” responsible for his acts.
    The fact that a prisoner’s statement cannot be controverted and contradicted by other evidence, is not here presented. There may be evidence to show its utter falsity, but if the statement of the prisoner is invoked by the prosecution to fix guilt upon him, while in the language of the books “ the prosecutor can contradict any part of it, and is at liberty to do so,” yet they must take his whole statement together.

      A. Oakey Hall (District Attorney), for the people.
    I. The question put to the witness Smith was entirely irrelevant.
    1. Deceased was in no wise connected with the subject matter.
    2. Answered' aye or no, the question did not concern the issue.
    II. The question was improper as an entirety.
    1. Unless completely correct, in was to be disregarded. (Sperry v. Miller, 16 N. Y., 407.)
    2. And it was not correct, because it asked the judge to charge respecting a fact in dispute, viz, the consciousness or unconsciousness of prisoner when he struck the blow; and which was one for the jury to determine.
    3. Whilst it is true that all the declarations of a prisoner were to be construed, yet those which are contradicted by other facts may be rejected by the jury. (1 Phil, on Ev., ch. 8, § 11, pp. 538, 540; and note 152 of Cowen & Hill; and cases cited fully sustaininy this practice on principle and authority.')

   By the Court, Welles, J.

The question put to the witness, Smith, on his cross-examination, “Was the defendant a candidate for alderman of the first ward at this time ?” was properly overruled. I can perceive no legitimate influence the fact sought to be proved could have had.

I think, also, the justice fell into no error in declining to charge the jury as requested. The request embraced more than the defendant was entitled to. When a party relies upon an exception for refusing to charge as requested, the request must be perfectly proper as an entirety. If it embraces a single idea or view which ought not to be presented, it destroys the value of the exception, although a part of the legal proposition embraced, if detached and presented separately, might be entirely proper. For example, if the request' had been to charge that the jury must take all the prisoner’s declarations together, it would have been proper for the justice, so to charge, and he doubtless would have done so. But the request contained the further proposition that, when the declarations were so taken together, they showed (that is, proved) that the prisoner was unconscious when he struck the blow. It was asldng what it would have been clearly improper for the justice to charge. It, in effect, would have taken the whole question of the prisoner^ guilt from the jury; at least the question of what degree of manslaughter, if any, the prisoner was guilty. The hypothesis of the request, “that if the prosecution rely on the declarations of Holmes, the prisoner,” does not relieve the request of the objections. The prosecution undoubtedly relied upon those declarations, but" only in connection with other evidence. It nowhere appears that he relied upon them alone, disconnected with other evidence, to establish any proposition in the case.

I think the conviction should be affirmed, and the proceedings remitted to the Oyer and Terminer, to the end that judgment may be passed upon the defendant in that court- ' Proceedings affirmed.