author: Harris, J. —

text:
    Supreme Court. Albany General Term,
    December, 1853.

      Watson, Wright and Harris, Justices.
    John Hendrickson, Jr. plaintiff in error vs. The People defendants in error.
    On a criminal trial, it is no objection to proving a confession, of the defendant, that it was made when .he was under oath, if it appear that it was free and voluntary and not made under the influence of fear or hope.
    What a person says, when examined as a witness in a legal proceeding, may be used in evidence against him; but the statements or oath of a party accused can not be' given in evidtence. Lewis" Case, 6 Carr. (¡ P. 161-; David's Case, id. 177; and Owen’s case 9 Carr, fy P. 238; reviewed and overruled.
    Where on the trial, of a party for the murder of his wife, it appeared that the prisoner had been examined as a witness before the coroner’s inquest, on the evening subsequent to the death, and that he had not then been charged or accused of the crime, and'that his statements, then made under oath, were free and voluntary, such statements were held to be properly receivable, in evidence against him.

      Held also, that evidence of conversations between the prisoner and his wife, and between the prisoner and his brother in-law, tending to show an alienation of affection on his part in regard to his wife, was admissible on the question, of. motive.

      Held also, that the will of the prisoner’s father-in-law was properly'received in evidence, for the purpose of showing that the pecuniary expectations, which the prisoner might have entertained by reason of his alliance with the &mily, had been disappointed.

      The prisoner had been convicted at the Oyer and Terminer in Albany county of the murder of his wife, and brought a writ of error to this court. The questions decided are fully-stated in the opinion of the court-

      A. J. Colvin (Dist. Att’y} for the people.
    JV. Hill, Jr., for the prisoner.
   By the Court,

Harris, J.

On the evening subsequent to the death of his wife, the defendant was sworn- and examined as a witness before the Coroner’s inquest. Upon such examination be gave an account of the circumstances attending the death, after which, upon being asked when he had been in Albany, he answered that it was two weeks ago the last Saturday. Upon being asked whether he had not been there since, he, answering, as if correcting himself, said he had been in Albany a week ago the last Saturday. He was again- asked whether • he had not been in Albany still later than that, and he replied that he had been- there on the last Saturday. Upon being' inquired of, he stated the object for which he went to Albany and mentioned several places where he had been while there. He said he did not remember having been in Springsteed’s drug store, or in any other drug store. Upon the trial, the counsel for the prosecution offered to prove what the defendant had thus stated before the Coroner’s inquest. It was objected to, on the ground that such statements were not voluntary. The objection was’ overruled, and the testimony was received-. No charge had been made against the defendant at the time he was examined, nor is there any evidence that he was suspected of the crime, unless the fact is to be inferred from the tenor of his examination. The question is thus presented whether, upon a trial for murder, statements made by the defendant, upon oath, before the- jury summoned to- make inquisition concerning the death, and before he- had been accused of the murder, are admissible as evidence for the prosecution.

Confessions have been appropriately divided into two classes, judicial and extra-judicial. (1 Greenleaf’s JEf. § 216.) The former embraces the preliminary examination authorized by statute, when a party accused of crime is brought before a magistrate. Such confessions, attended, as they are, with peculiar solemnities, take higher rank as evidence than other mere admissions or declarations. Such other admissions and declarations constitute the class of extra-judicial confessions. They are to be proved, as other facts are proved, and, being proved, are to be submitted to the consideration of the jury.

The preliminary examination, which the magistrate, before whom a person accused of crime is brought, is authorized to take, must be conducted in the manner prescribed by law, or it will be deemed irregular and rejected. Thus it is required that the examination should not be taken upon oath. Whenever, therefore, it has appeared that the party accused has been sworn, the examination has been excluded. (Smith's case, 1 Stark. R. 242; River’s case, 7 Carr. and P. 177; Pikesly’s case, 9 Carr. and P. 124.) This rule is confined to the official examination of the party accused. It is no objection to a confession, as such, that it has been made when the party was under oath.

Accordingly, where a prisoner has been examined as a witness upon a charge against another for the same offence, his deposition was received in evidence upon his own trial as a confession. Parke, J. said, “ He might, on that, as well as on any other occasion, when called as a witnsss, have objected to answer any questions which might have a tendency to expose him to a criminal charge, and not having done so, his deposition is evidence against him.” (Haworth’s case, 4 Carr. and P. 254.) In Tubby’s case , (5 Carr. and P. 530) it was proposed to read in evidence a statement made upon oath by the prisoner. Vaughn, B. said, “ The question is, is it the statement of the prisoner upon oath? Clearly it is not, for he was not a prisoner at the time he made it.” In the case of Merce-ron, (2 Starkie, 366,) a magistrate was tried upon an indictment for misconduct in office. He had previously teen examined before a comnjittee of the House of Commons, and it was pro* posed to prove what he had said upon that examination. The evidence was objected to, not because the statements were made upon oath, but because, having been compelled to attend before the committee, the declarations were not voluntary, but it was held to be admissible.

It is true that the same judge before whom the case was tried subsequently questioned the correctness of the report: (Rex v. Gilliam, 1 Moody’s C. C. 203) but so far as it is entitled to any weight as an authority, it is against the doctrine that a confessio.n is to be excluded as evidence merely because it has been under oath. In Wheater’s case, (2 Moody’s C. C 45) a charge had been made against the prisoner before the Lord Mayor of London for forgery, but the complainant failed to make such a case as would warrant a commitment. After this, the prisoner was examined before commissioners in bankruptcy, in relation to the same transactions. Upon his trial, upon an indictment for forgery, his statements, when examined before the commissioners, were offered in evidence and were received. The question was subsequently presented to the fifteen judges. It was insisted that, the prisoner having been compelled to testify, his answers were not admissible as evidence against him. But the judges were of opinion that the evidence was properly received.

In the case of Broughton, tried in North Carolina, (7 Iredell, 96) the defendant had been examined on oath before the grand jury touching the murder for which he was subsequently indicted. On the trial, his statements before the grand jury were offered in evidence and received. Upon an application for a new trial it was insisted that the testimony before the grand jury ought not to have been received, because, having been given under oath, it was not voluntary. The motion for a new trial was denied. Ruffin, Ch. J., said, It is certainly no objection to the evidence, merely that the statement of the prisoner was given by him as a witness under oath. He might have refused to answer questions when he could not do so without criminating himself, and the very ground of that rule of law is, that his answers are deemed voluntary and may be used afterwards to criminate or charge him in another proceeding. Such is clearly the law.”

•The only valid objection that can be taken to any extra-judi* dal confession is, that it was’ not voluntary. No witness is bound to answer any question, when the answer will tend, in the least degree, to criminate him. Of this he is made the judge. If, waiving the right to- object on this ground, he proceeds to answer, his statements are to be regarded as volun tary and may be used against him for all purposes. (2 Stark. Ev. 50; 1 Phil. Ev., Cowen & H. ed. 110; Roscoe’s Cr. Ev., ed. 1852, 38; 1 Greenleaf’s Ev., § 219.) In every such case, therefore, the proper inquiry is, not whether the statement was made under oath, but whether it was free and voluntary, or was made under the influence of fear or hope. In the one case, the confession may always be proved — in the other, never. There may be difficulty in determining whether a confession has been made under the influence of hope or fear, but, that question being determined, the question of admissibility is also determined.

I am aware that there' are three or four reported cases which have been regarded as sustaining a different doctrine. The principal of these are Lewis’s case, (6 Carr. and P. 161) Davis’s case, (6 Carr. and P. 177) and Owen’s case. (9 Carr. and P. 238.) These are the cases principally relied upon as sustaining the doctrine that a statement made upon oath is not to be regarded as voluntary, and therefore not receivable as evidence. A brief examination of these cases will show, I thinlc, that, instead of sustaining the position in support of which they are’ cited, they may all be referred to’ the general criterion in respect to the admissibility of extra-judicial- confessions already stated.

In Lewis’s case the charge was poisoning. The magistrate, on the day he committed the defendant, had summoned her with several other persons before him and examined1 them all on oath touching the poisoning. When he had' concluded the- examination he committed Lewis for trial. Baron Gurney, upon the trial, refused to receive the examination, thus taken, as evidence. He said that as the deposition had been taken at the same time as all the other depositions on which she was committed, and on the very same day on which she was committed, he did not think it was receivable. He added, also, that he did not think the examination was perfectly voluntary. In Davis’s case, a father and daughter had together been indicted for receiving stolen goods. Upon the trial,it appeared that the daughter had been examined as a witness against her father before the committing magistrate. It was proposed to prove what she then said, but Baron Gurney refused to hear it. He said, “ if, after having been a witness, you make her a prisoner, nothing of what was said then, can be admitted as evidence.”

In Owen’s case, (9 Carr. and P. 83 and 238) there were three defendants; They were twice tried — once for rape and then for murder. Before the Coroner’s inquest was held, they had all been arrested, and they were brought before the coroner iii custody. They were each asked whether they wished to give evidence, and each said he did. They were* then severally sworn and each made his statement upon oath. These statements'were- offered in evidence. It was conceded by the counsel for the defendants that, if they had come voluntarily before the coroner as witnesses, their statements, would have been evidence against them. He placed hi's- objection upon the ground that they had been- brought before the coroner as prisoners, and not as witnesses. They had been treated by the coroner as persons charged with crime, and not. as witnesses, for before they were examined, he inquired whether they were desirous- of giving evidence. Under such circumstances, the examination, might well be regarded as', judicial in its character, and not as a mere examination of witnesses; and. yet, upon the first trial, the prosecution was allowed to prove their statements. Upon the trial for murder, the evidence was. excluded by Baron Gurney — and, I think, properly.. The examination itself was illegal, and the statements could not be regarded as-voluntary. The examination of a party in 'custody upon a charge of crime, has- never been allowed to- be taken upon oath, and it is well' settled that where a judicial exawimtion is rejected for irregularity, proof of the statements made upon such examination will not be received.

Besides these three cases, which, it should be observed, are all nisi prius decisions, and made, too, by the same judge, Wheeley’s case (8 Carr. and P. 250) has been referred to for the same purpose. In that case, the defendant had been accused of poisoning his wife. He had been brought before the coroner, upon the inquest, in custody. He there made a statement which, when offered in evidence against him upon his trial, purported to have been made upon oath. Baron Alderson held that, being made upon oath, it could not be received. The report of the case is very meagre, but enough appears to show that the defendant was brought before the coroner as' a party accused, and not as a witness. This case was referred to upon Owen’s first trial, which took place the next year. (9 Carr. and P. 83.) It is there stated that Baron Alderson had rejected the statement of the defendant, because it was on oath, and taken while the defendant was in custody. Williams, J., said he knew that his brother Alderson had rejected the evidence, but that he also knew that there had been a reaction in opinion, and he would therefore receive, the evidence. It is stated elsewhere that Baron Alderson was in the next court at the time, and that Justice Williams had consulted with him. See Joy on the Admissibility of Confessions, 63.

Mr. Greaves, the learned editor of Russell’s Treatise on Crimes, in a note referring to the cases of Lewis and Davis, above cited, says that, after the decision in Wheater’s case, it may perhaps be doubted whether the fact that the prisoners had been examined on oath as witnesses was a sufficient reason for rejecting their depositions. (2 Russ, on Crimes, Phil, ed. of 1852 856, note.) If the depositions offered in evidence were to be regarded as having been made by witnesses, then, obviously, they are within the principle of Wheater’s case, and ought not to have been rejected. If, on the other hand, they are to be considered as the judicial examination of a party accused or suspected of crime, as I think they may be, although such examination may have been irregularly conducted, then they were properly excluded.

The rule applicable to such cases is, I think, accurately stated by Joy, in the treatise above cited. “ A statement,” he says, not compulsory, made by a party, not at the time a prisoner under a criminal charge, is admissible in evidence against him, although it is made upon oath.” The same writer adds, that “ there are conflicting opinions of judges at nisi prius on this point, but the proposition appears to be established by high authority.” Mr. Phillips, too, in his last edition, after noticing the decisions on the subject, says, it may be laid down generally, (citing Wheater’s case, among others, for the position,) that a statement upon oath by a person, not being a prisoner, and when no suspicion is attached to him, the statement not being compulsory, nor made in pursuance of any promise of favor, is admissible in evidence against him.” See Roscoe’s Crim. Ev., (Phil. ed. of 1852,) 50. The author can not be understood as using the term “ suspicion ” in its proper sense.

It can not be that the fact whether or not some person may have entertained an undisclosed opinion or conjecture, in respect to the guilt of .the party, can be made a criterion for determining whether a confession is admissible in evidence or not. The suspicion must have so far become tangible as to make it the subject of proof. The party must, at least, have been accused though he may not have been arrested. That this is so, is evident from the facts in Wheater’s case, upon which, chiefly, Mr. Phillips relies in support of his proposition. Wheater had been accused of forgery. He had been arrested upon the charge and brought before the Lord Mayor for examination. The proof against him not being sufficient to warrant a commitment, he was discharged. After this, he was,examined as a witness in some bankrupt proceeding. Having been indicted for the forgery, his statements as a witness were received m evidence against him.

Of all the English cases that have been cited, this alone was brought before the fifteen judges. The decision was sustained. It was keld that, inasmuch as the defendant, when he testified, was not charged with the crime, and had not objected to answer, as he might, on the ground that his statements might have a tendency to criminate him, such statements might be proved as his voluntary confessions. If the mere fact that somebody had thought the defendant guilty of the crime, at the time he testified, would have been sufficient to exclude the evidence, the proof of this fact was at hand. But he was examined as a witness in a legal proceeding. He was not then under accusation for the crime, and, under these circumstances, it was deliberately adjudged that what he said was to be regarded as his voluntary confession. Broughton’s case, already noticed, is to be regarded as sustaining the same doctrine.

From this review, I think it must be apparent that it is only when a party accused has been examined on oath that his statements are to be rejected when offered in evidence against him. The general rule, that what a person says, when examined as a witness in a legal proceeding may be used in evidence against him, has not been restricted or qualified. The witness speaks at the peril of having his statements turned against himself. He may refuse to answer any question, the answer to which may tend, in any degree, to involve him in a criminal charge. If, waiving this privilege, he proceeds to testify, his statements, though upon oath, are to be regarded as free and voluntary, and are received as evidence against him.

It has been said that the very fact thaí a witness objects to answer will excite suspicion, and may thus tend to involve him in an accusation. This may be so. A refusal to answer a pertinent question may be supposed to betray conscious guilt; but against this the law has furnished no protection. It guards the witness against involuntary self-crimination but not against the unfavorable surmises which his refusal to answer may suggest. It is only because his answer, if given, will be deemed to he voluntary, that a witness is excused from answering in any case.

In the case before us, the defendant was examined before the coroner’s inquest, in the capacity of a witness. He had not then been accused; nor was he, in any legal sense of the term, suspected of the crime for which he was subsequently indicted and tried. He had the same right as any other witness to decline answering any question, if, in his own opinion, the answer would 'tend to involve him in a criminal charge. If, after having so declined, he had still been required to answer, what he said could not have been used against him. Having testified, and having omitted to avail himself of his privilege to decline answering, his statements must be deemed free and voluntary, and were properly received in evidence against him upon the trial.

I think, too, that evidence of the conversations between the defendant and his wife, and also the conversation between the defendant and his brother-in-law, Hungerford, was properly received. The defendant was charged with the murder of his wife. The marital relation existing between them furnished a strong presumption in favor of his innocence. In the absence of proof to the contrary it was to be presumed that he loved her and would protect her.

It was important, therefore, for the prosecution, if it could, to repel this presumption by proof that the defendant had disregarded the claims of connubial duty. For this purpose, evidence tending, however slightly, to show an alienation of affection — any thing from which a jury might infer a desire to be free from the burden of one who was no longer the object of regard, was competent. Suppose it could have been proved that the defendant had said that he hated his wife, and wished to be rid of her, would any one doubt that this might be proved to rebut the presumption that he loved her? So any conduct or declarations evincing unkindness or disrespect, though less decisive in their character as evidence, were admissible as tending to show the state of the defendant’s feelings towards his wife.

Nor do I think it was error to allow the will of Van Deusen, the defendant’s father-in-law, to be given in evidence. By that will, the wife of the testator had become entitled to the whole estate for life. It was only upon the death of her mother, that the defendant’s wife would receive any part of her father’s property. Though the evidence may not have been very important, it was not irrelevant to show that any pecuniary expectations which the defendant might have entertained, by reason of his alliance with the family, had been disappointed

As this is a case involving the life of the defendant, I have examined it with a disposition to give him a new trial, if any, even the slightest error should be found to have been committed. But, upon the most deliberate and anxious consideration of all the questions presented, I am constrained to say that I find no error in the proceedings. The judgment of the court of Oyer and Terminer should, therefore, be affirmed.

Judgment affirmed.

       The judgment in this case was affirmed by the court of appeals at the March term, 1854. The cause had been argued in that court at the previous January term by

        John K. Porter, for prisoner.

        Hamilton Harris, (Dist. Att’y), for the people.
      The following opinion was delivered by Paeicer, J. The wife of Hendrick-son died on Sunday, the 6th of March. On the evening of the next day a coroner’s inquest was held, before which Hendrickson was sworn and examined as a witness. He stated the circumstances attending the death of his wife When intet-rogated as to his having been in Albany, he said he had been there ‘1 two weeks ago last Saturday;" and when asked if he had not been there since, he said, “ 0, yes, I believe I was there a week ago last Saturday,” as if correcting himself; and on being further interrogated, said, “I was there last Saturday.” He further stated the object of his going to Albany, and mentioned several places in the city where he had been, but said he did not remember having been into Spnngsteed’s drug store or any other drug store.
      Upon the trial at the Oyer and Terminer, the counsel for the prosecution offered to prove the statement so made at the coroner’s inquest. The counsel for the prisoner objected to the evidence, on the ground that what the prisoner swore to on that occasion was not a voluntary statement. The objection was overruled and the evidence received, to which the counsel for the prisoner excepted; and the alleged erroneousness of that decision constitutes the first ground on which the prisoner relies for a reversal of the judgment.
      I. The general rule is, that all a party has said which is rfelevant to the questions involved in the trial, is admissible in evidence against him. The exceptions to this rule are where the confession has been drawn from the prisoner by means of a threat or a promise, or where it is not voluntary, because obtained compulsorily or by improper influence. It is not claimed in this case, that the statement in question was obtained by means of any promise or threat, or by any inducement whatever; nor is it supposed that there was any compulsion or any influence affirmatively exercised upon the mind of the prisoner, beyond what is sought to be inferred from the fact, that he was required to testify as a witness. But it is contended that because he was so required to testify, upon a general inquiry into the cause of the death of his wife, his statement was not voluntary, and should have been excluded. The record shows that the objection at the trial was placed only on the ground that the statement was not voluntary.
      Hendrickson was not in custody. He made no objection to being sworn as a witness, or to answering any question that was put to him. He was treated in every respect, like the other witnesses. At the time of his examination, no circumstances had been developed warranting a suspicion against him. The post mortem examination did not take place till the next day, and it was not until the second day after his testimony before the coroner’s inquest that he was arrested under a warrant issued, not by the coroner, but by a police justice of the city of Albany. His statement as a witness was in no respect an admission of guilt. On the contrary, it was a denial of material facts attempted, on his trial, to be established by other witnesses. His testimony was calculated to ward off suspicion from himself, not to attract it towards him.
      The question presented, therefore, is, whether, under the circumstances, the statement of a witness is to be excluded on the ground that it was not voluntarily made.
      Several English nisi prius decisions were cited on the argument, which it is necessary to examine.
      Merceron’s case, ( 2 Starhie, A. 366,) decided in 1818, was an indictment against a magistrate for having corruptly and improperly granted licences to public houses which were his own property. Abbot, J., permitted the prosecution to prove what the defendant had said in the course of his examination before a committee of the House of Commons, appointed for the purpose of inquiring into the police of the metropolis, though it was objected that the statement had been made under a compulsory process from the House of Commons, and that the declarations were not voluntary.
      In the case of Haworth, (4 Carr. and Payne, 254.) decided in 1830, it appeared that before the prisoner was charged or suspected, a person named Shearer had been examined on the charge of forgery, and that the prisoner was called as a witness against Shearer, and his deposition taken. The counsel for the prosecution proposed to read this deposition as evidence against Haworth, which was objected to. Justice J. Parke said, “ I think that I ought to receive this evidence. The prisoner was not, when he made this deposition, charged with any offence, and he might, on that as well as on any other occasion when called as a witness, have objected to answer any question which might, have a tendency to expose him to a criminal charge; and not having done so, his deposition is evidence against him.

        In a note, by the reporter, to this case, it is said, that in a case tried at Worcester, where it appeared that a coroner’s inquest had been held on the body of A, and it not being suspected that B was at all concerned in the mur der of A, the coroner had examined B upon oath as a witness. Parke, J., would not allow the deposition of B so taken on oath on the coroner’s inquest to be read in evidence, on the trial of an indictment afterward found against B for the same murder.
      I can not find that this anonymous case is anywhere reported more fully. It would be much more satisfactory, to know the particular circumstances of the case and the grounds for the decision. Without them, it is entitled to but little weight as authority. And so it seems to have been viewed by Little-dale, Justice, in the case of Rex agt. Clewes, tried before him during the same year, and reported as to other points in 4 Carr. and P., 221. In Mr. Greaves’ note w, 2 Jiuss. on Crimes, 860, 7 Am ed., on the authority of his manuscript notes, he says, the grand jury asked Littledale, J., “ Can evidence of a prisoner who was examined on oath before the coroner as a witness be admitted as evidence against the same person, when subsequently indicted for the murder of the person on whose body the inquest was held?” Littledale, J., answered in the affirmative; when, the case referred to in the anonymous note being mentioned, the judge (Littledale) directed the grand jury to receive the evidence and leave the point for discussion on the trial.
      Tubby’s case, (5 Carr. and P., 530,) tried in 1833, was an' indictment for burglary. Andrews, for the prosecution, proposed to read a statement made upon oath by the prisoner, at a time when he was not under any suspicion. Pendergast objected that it was a violation of the rule of law, which held that a prisoner should not be sworn. Vaughan, B., said, “ I do not see any objection to its being read, as no suspicion attached to the party at the time. The question is, is it the statement of the prisoner under oath? Clearly it is not, for he was not a prisoner at the time he made it.”
      In Rex agt. Lewis, (6 Carr. and P. 161,) decided also in 1833, several persons, one of whom was the prisoner, were summoned before the committing magistrate touching the poisoning of C. No person .was then specifically charged with the offence. The prisoner was sworn, and made a statement, and at the conclusion of the examination she was committed for trial. It was held that this statement was not receivable in evidence against the prisoner. Gurney, B., said this case was quite distinguishable from that of Rex agt. Tubby, and that under the circumstances he should have agreed with his brother Vaughan. -t But (he said) this being a deposition made by the prisoner at the same time as all the other depositions on which she was committed,, and on the very same day on which she was committed, I think it is not receivable. I do not think this examination perfectly voluntary.” It has been supposed the prisoner was brought before the magistrate on a charge or suspicion of guilt, but Greaves says, in his notes, (2 Russ, on Or. 857, 7 Am. ed. note n.) that he was counsel in this case, «nd that the prisoner was summoned in the ordinary way, as a person who could give some evidence touching the matter, and not because any suspicirn attached to her.

        In Rex agt. Davis, (6 Carr. and P. 177,) also decided in 1S33, the daughter had been examined as a witness before the committing magistrate against her father, and was then committed as a joint receiv'e'r of stolen goods with him. Her statement was excluded as evidence against her on the trial by Gurney R., on the same ground, as in Rex agt. Lewis. In regard to this case, Mr. Greaves says, (2 Russ, on Cr. 857, note n, 7 Jim. ed ,) that the ground of the decision was, not that there was a suspicion in the mind of the magistrate, or even that the prisoner might be aware that there was such a suspicion, but that the prisoner had been examined on oath as a witness, and says, that after the decision in the late case of Rex agt. Wheater, (to which I shall refer hereafter,) it may be doubted whether that was a sufficient reason for rejecting the deposition.
      In Regina agt. Wheeley, decided in 1838, (8 Carr. and P. 250,) a party who was charged with murder made a statement before the coroner at the inquest, which was taken down. The paper purported that the statement was made on oath. Alderson, B., held on the trial of the party for murder, that the statement was not receivable, and that parol evidence was not admissible to show that no oath had in fact been administered to the prisoner. If this was a case of the examination of a prisoner, and not of a witness, as it has been understood to be by commentators, (Russ, on Cr. 855 and 860, and notes,) its correctness will not be questioned, and it can have no bearing upon the question now before us.
      The next case, in order of time, was Regina agt. Wheater, (2 Moody's Crown Cases, 45,) decided in 1838, which was an indictment for forgery. On the trial, before Colridge J., 'the examination of the prisoner previously taken on oath, as a witness, before the commissioners of bankruptcy, concerning the bills alleged to be forged, was held admissible as evidence against him. The opinion of all the judges, was desired on this point, and the case was argued before all the judges, except Park, J.j and Gurney, B., who held that theevidence nad been properly received.
      In Regina agt. Owen and al, (9 Carr. & P. 83,) .tried in 1839, the defendants were indicted for rape. The prosecution offered to prove the statements made by Owen on oath at the inquest held on the body of the person ravished, while the defendants were in custody. The counsel for the prisoners admitted that where witnesses had been examined voluntarily, their deposition might afterward be read against them; but objected that these defendants were in custody, and cited the case of Wheeley, where Baron Alderson rejected the deposition because it was on oath and taken while in custody. But Williams, J., said, “ I know that my brother Alderson did so; but I also know that there has been a reaction in opinion, (if I may be allowed the expression.) I shall therefore receive the evidence and reserve the point, if it shall become necessary.” It is said that Baron Alderson, who had tried Wheeley’s case, was in the next court, at this time, and that Williams, J., had consulted with him in an earlier part of the case. (Joy on Confessions. 62.)
      In Regina agt. Owen and others, (9 Carr. P. 248,) the same defendant were tried in 1840 for the murder of the person ravished; and Gurney, B. re /used to receive in evidence the deposition on oath of the prisoners taken before the coroner’s inquest, though it must have been known they had been received on the previous trial of the same prisoners for rape. Baron Gurney, however, cited Wheater’s case, then recently tried before Colriedge, and admitted he could not, on principle, see the distinction between that and some of the other cases.
      In the later case of Regina agt. Sandy’s (1 Carr. St Marsh. 345,) decided in 1841, the prisoner was tried for murder, andERSKINE, J. admitted in evidence her deposition taken at the coroner’s inquest, and reserved the point for the consideration of the fifteen judges.
      All the decisions to which I have referred, except that in the case of Wheater, were made at nisi prius, and their general current is certainly in favor of the admissibility of the evidence in question; but to give them, or any of them, much weight as authority, it is necessary to understand the reasons that governed, and to see on what principles they are based. Without (hat, decisions made at the assizes, necessarily without time for consultation and examination, can avail but little in deciding a controverted question of law.
      So far as the evidence was rejected on the ground that the statement was on oath, as in the case of Davis and others, it must now be regarded as settled by the decision of all the judges in Wheater’s case above cited, that that, of itself, constitutes no objection. Mr. Joy, in his treatise on the admissibility of confessions, reviews all the decisions a.t nisi prius, apparently conflicting, and comes to the conclusion that the decision by all the judges in Wheater’s case establishes the principle that a statement not compulsory, made by a party not at the time a prisoner under a criminal charge, is admissible in evidence against him, although it is made upon oath. (Joy on Confessions, § 8, 63.)
      It is now regarded as a well settled rule, and recognized in the elementary books, that where a witness answers questions upon examination on a trial tending to criminate himself, and to which he might have demurred, his answers maybe used for all purposes. ('ZStarkie’s Ev. 50; Roscoe’s Or. Ev. 45.) Such answers are deemed voluntary, because the witness may refuse to answer any question tending to criminate him. (1 Green. Ev. j 225.) If, however, he should be compelled to answer after claiming his privilege, his answer will be deemed compulsory, and can not be given in evidence against him.
      Where the evidence offered has been rejected on the ground that the statement was made when the prisoner was in custody charged with crime, as in Wheeley’s case and Owen’s case, it seems to me clear that it was properly excluded. Because these were cases of the examination of a prisoner, not of a witness. In such cases it is a judicial examination, and it should not be on oath, and certain precautions for the protection of the accused are always observed. In this state such examinations are regulated by statute. (2 R. S. 2 ed. 794.) But neither is the statute, nor were the common law rules of which it is declaratory, applicable to any examination except that of a person brought before a magistrate on a charge of crime. All other examinations are classified as extrajudicial, (Green. Ev. 216,) and are to be conducted like other cases of the examination of witnesses.

        It is evident that in deciding the case of Lewis, above cited, the mind of the presiding judge was influenced to some extent by the supposition, that the facts peculiar to it gave to the testimony the character of a judicial examination, for Baron Gurney lays stress upon the facts that the deposition was made at the same time as all the other depositions on which she was committed, and on the same day on which she was committed. In both these resemblances to a judicial examination, the case of Lewis differs from that now before us; for Hendrickson was arrested on a complaint made before a different magistrate, and on a subsequent day. It is unnecessary, therefore, to express an opinion as to the soundness of the reasons given by Baron Gurney for his decision in the case of Lewis.
      The examination of a witness before a coroner's inquest bears even less resemblance to a judicial examination than that taken before a committing magistrate or a grand jury. A coroner’s inquest may be held in all cases of sudden death, but an examination before a committing magistrate or a grand jury takes place on complaint made that a crime has been committed. It is only where a person is charged with crime and is examined with regard to the truth of such charge, that his examination can be considered judicial.
      In the case of the State agt. Broughton, (7 Iredell's Rep. 96,) decided in North Carolina in 1846, where the grand jury were investigating an offence with a view to discover the perpetrator, and the person who was subsequently indicted was examined before them on oath and charged another with the commission of the offence, it was held that the examination might be given in evidence against the prisoner on the trial of his indictment. R0FPIN, Ch J., said, however, that if the evidence given by the prisoner had been a confession of his guilt, and the grand jury had found a presentment on it, the court would have held that it could not be given in evidence against him. It is not material to the decision of this ease to inquire whether the chief justice was right or not in the distinction he made between a confession and a statement not a confession, because neither in that case nor in the one now before us was there any confession. Both statements tended to turn attention away from the witness. I am inclined, however, to think the chief justice erred in the case of Broughton, in the reason assigned for his decision. For the law seems to be that the rule as to confessions applies not only to direct confessions, but to every other declaration tending to implicate the prisoner in the crime charged, even though in terms it is an accusation of another, or a refusal to confess. (Green. Ev. $219, note 2, and cases there cited.) But while the decision in the case of Broughton is in accordance with the ruling in the case before us, the reason given for that decision, if it be erroneous, does not conflict with such ruling.
      Independent of any supposed authority, I do not see how, upon principle, the evidence of a w'itness not in custody and not charged with crime, taken either on a coroner’s inquest, or before a committing magistrate or a grand jury, could be rejected. It ought not to be excluded on the ground that it was taken on oath. That reason would exclude also the statements of witnesses on the trials of issues. The evidence is certainly none the less reliable because taken under the solemnity of an oath. No injustice is done to the witness, for he was not bound to criminate himself, or to answer in regard to any circumstance tending to do so. If it is a good ground of exclusion that the statement was made as a witness on oath, the rule of law that pro-> tects a witness from criminating himself is of no value, and may at once be abrogated. The rule was adopted upon the supposition that the answer might be introduced in evidence against the witness. If it can not be, the witness has no longer any reason for claiming his privilege.
      Nor can the exclusion of the evidence depend on the question whether there was any suspicion of the guilt of the witness lurking in the breast of any person at the time the testimony was taken. That would he the most dangerous of all tests, as well because of the readiness with which proof of such suspicion might be procured, as of the impossibility of refuting it. Besides, the witness might have no knowledge of- the existence of any suspciion, so -that his mind could not he affected or his testimony influenced by it. It is only when he is charged with crime and examined on such charge, that there, is good reason for treating him as a party to the proceeding. The common law has been as tender of the rights of witnesses as of parties.
      It is the policy of the common law never to compel a person to criminate himself. That policy secures as well to a witness as to a party the privilege of declining to answer. The former is supposed to know liis rights — the latter is to he specially instructed in regard to them by the presiding magistrate. But if either fail to avail himself of the privilege, his answer is deemed voluntary, and may be used as evidence.
      It is only upon a judicial examination, viz.: in the case provided for by statute where the prisoner is brought before a magistrate charged with crime, that the preliminaries required by statnte are to be observed, and the examination taken without oath. All other examinations are extra judicial. The former is the examination of a party, the latter of a witness. In all cases, as well before coroner’s inquests as on the trial of issues in court, when the witness is not under arrest, or is not before the officer on a charge of crime, he stands on the same footing as other witnesses. He may refuse to answer and his answers are to be deemed voluntary, unless he is compelled to answer after having declined to do so; in the latter case only will they be deemed compulsory and excluded. Applying these rules to the case before us, Hendrick-son’s answers before the coroner’s inquest were voluntary, and were properly received as evidence against him
      II. The second ground on which the prisoner asks a reversal of the judgment is, that the will of Lawrence Van Deuser., the father of the deceased, was improperly admitted in evidence. The will was dated 1st November, 1851, and by it the testator devised all his property to his wife for life, and after her death to his three children, Lawrence Van Deusen, Maria Hendrick-son, (the deceased,) and Susannah Hungerford, one moiety to Lawrence Van Deusen, and the remaining moiety to he equally divided between Maria Hendrickson and Susannah Hungerford, By the will, therefore, the deceased would have recieved one fourth part of the estate after the death of her mother. This evidence was received as hearing upon the question of motive. If it tended, in the least, to show that the prisoner had been disappointed in the pecuniary expectations he had entertained from his alliance with the family, in not being able to realize them till after the death of his wife’s mother, and then not in an equal proportion with the brother; or, if it tended to show how little property he might expect from his wife, if she lived — in either case whether the supposed motives was resentment or avarice, it was properly received. It was competent to show whether the prisoner would gain or lose by the death of the deceased, and to compare the small amount expected to be realized at a distant day with the intermediate burden of her maintenance. Taken in connection with the previous testimony, tending to show a want of affection on the part of the prisoner toward his wife, this evidence was clearly admissible. Considerable latitude is allowed on the question of motive. Just in proportion to the depravity of the mind, would a motive be trifling and insignificant, which might prompt to the commission of a great crime. We can never say the motive was adequate to the offence; for human minds would differ in their ideas of adequacy, according to their own estimate of the enormity of crime, and a virtuous mind would find no mo tive sufficient to justify the felonious taking of human life.
      I think the evidence of the will was properly received. It was the province of the jury to determine the weight to which it was entitled.
      My conclusion is, that there was no error committed on the trial, and that the judgment of the supreme court should be affirmed.
      Denio, Johnson, Ruggles and Edwards, JJ., concurred.
      Selden, J., delivered an opinion expressing his dissent upon both points discussed in the above opinion. ALLEN, J., dissented upon the first ground discussed in the above opinion, and Gardiner, Ch. J., read an opinion concurring upon the first point and dissenting upon the second. Upon each separate point therefore the judgment was affirmed by a vote of 6 to 2.


source: Caselaw Access Project

author: Gridley, J.

license: Public Domain

text:
    Supreme Court Onondaga General Term,
    October, 1853.

      Pratt, Gridley, W. F. Allen and Hubbard, Justices.
    The People vs. Abigail Stockham, impleaded, &c.
    A bill of exceptions lies only to correct an erroneous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court, to which an exception was taken at the time.
    In a case where the sufficiency of an indictment is not involved in some decision made, or opinion advanced, at the trial, the only mode of reaching a defect ‘n the indictment is on a motion in arrest of judgment, or by a writ of erroi brought on the record of judgment itself.
    If an Indictment for a statutory offence alleges all the facts which the statute requires to constitute the offence, this, as a general rule, is sufficient.
    Where an indictment charged that the accused administered to one A. D., a pregnant woman, a certain medicine and drug, and used and employed upon her body a certain instrument, with intent to procure the miscarriage of the said A. D., contra formam statuti, ^-c., Held that the facts charged were sufficient to constitute a misdemeanor, under the act of May 13, 1845 to prevent the procurement of abortion.
    The decision in The People v. Zohman, (2 Barb. S. C. Rep. 220,) upon this point approved and adopted.
    If is a matter of discretion with the court to allow the district attorney to try prisoners who are jointly indicted, for a mindemeanor jointly or separately, as it seems best to consist with the advancement of justice; and the court has no power to correct any error in the exercise of that discretion upon a bill of exceptions.
    That discretion may be exercised by an order made on the motion of the district attorney, as well as on that of the prisoner’s counsel.
    Motion for a new trial upon a bill of exceptions. An indictment was found at the court of Oyer and Terminer held in and for the county of Onondaga, in June, 1852, against Hiram Adams, Elijah Thomas, Washington Stockham and Abigail Stockham. It alleged that the defendants on the first day of March, 1852, “ did administer to one Almira Davenport, a pregnant woman, and did prescribe for the said Almira Davenport, being then and there a pregnant woman, and did advise and procure the said Almira Davenport, a pregnant woman, then and there to take a certain medicine, and drug, and substance, of a name to the jury unknown, and then and there, use and employ upon the body of the said Almira Davenport, a certain instrument, of a name and description to the jury unknown, with intent thereby, then and there, to procure the miscarriage of the said Almira Davenport, against the form of the statute in such case made and provided, and against the peace,” &c. Elijah Thomas, one of the persons thus indicted died, in June, 1852, and before he was arraigned thereon, or had pleaded thereto. Washington Stockham, Abigail Stockham and Hiram Adams, the other defendants appeared and severally put in the plea of not guilty thereto. On the 16th day of June, 1853, in said court of Oyer and Terminer, the district attorney moved on the trial of Washington Stockham and Abigail Stockham his wife, and not of said Hiram Adams, who was present in court. Adams did not require a separate trial. The counsel for Washington Stockham and Abigail Stockham objected to separate trials of the said Washington Stockham and Abigail Stockham, and claimed that the indictment was a joint indictment, and for a joint offence, and that the district attorney had no right to try the persons indicted, separately, and that the statute only allowed separate trials in cases of misdemeanor, when a defendant required it, and then only in the discretion of the court; and the counsel for said Washington Stockham and Abigail his wife, to sustain such objection, then read and filed an affidavit alleging that the husband was not guilty of the offence and that Adams was a material witness for himself and his wife.
    The court denied the motion, and decided that the trial of said Washington Stockham and Abigail his wife only, might be had, on motion of the district attorney. To which decision the counsel for Stockham and wife excepted. The counsel for the defendants then asked that Adams might be first tried, so that the defendants, Stockham and wife, might, upon their trial, have the benefit of his evidence, to which the district attorney objected, and the court denied the motion, to which the defendant’s counsel excepted and the trial proceeded. Almira Davenport was sworn on the part of the people, and gave evidence tending.to show, that the said Abigail Stock-ham administered, and advised the administering of powders and medicines to her, the said Almira Davenport, with intent to produce the miscarriage of a child, of which she the said Almira was pregnant. The said Almira Davenport was the only witness on the part of the people, and after the district attorney had rested, the counsel for defendants called the said Hiram Adams as a witness; the district attorney objected to him, because he was one of the defendants named in said indictment, and the court rejected the witness, to which the counsel for the defendants excepted. No' other witness was sworn in the cause. The counsel for defendant moved that the said Washington Stockh am be discharged, and he was discharged, by the court, on the ground that there was not sufficient evidence against him, of the commission of a joint offence with Abigail Stockham. There was no evidence to show that the said Abigail Stockham used instruments or other means to produce a miscarriage, except as above stated. The jury found a verdict of guilty against Abigail Stockham.

      B. D. JYoxon, for the prisoner.

      R. H. Gardner, (Dist Att’y,) for the People.
   By the Court,

Gridley, J.

The prisoner was jointly indicted with her husband and two other persons, under the act passed in May, 1845, for a misdemeanor in .administering to a pregnant woman a drug or medicine with the intent to procure the miscarriage of the patient. The district attorney was about moving on the trial of Mrs. Stockham and her husband, (Thomas, one of the defendants, having died after the indictment was found,) when the counsel of the prisoner applied to the court to have her tried jointly with the other defendant, Adams. In support of this motion the husband of Mrs. Stockham made an affidavit stating that he was not guilty of the offence charged in the indictment, and that Adams was a material witness for himself and his wife. The motion wa» opposed by the public prosecutor, and was denied by the court. The trial proceeded and the jury convicted the prisoner and acquitted her husband. A bill of exceptions was taken to the ruling of the court. A new trial is now asked for on two grounds: 1st. Because the indictment is defective, and charges no offence. 2d. Because the court should have compelled the district attorney to try the prisoner jointly with the defendant Adams.

I. Upon the first question presented upon the argument, we are met in the outset with the objection that there is no way of reaching the alleged defect upon the bill of exceptions. There has been no judgment pronounced, and no question was raised on the trial respecting the sufficiency of the indictment. There is no decision of the court on any question arising upon the indictment to which an exception has been taken. The point has been argued as though it arose on a writ of error brought on the record, after judgment. This however is not the fact, and a bill of exceptions only lies to correct an erroneous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court, to which an exception was taken at the time. In a case where tire sufficiency of the indictment is not involved in some decision made, or opinion advanced at the trial, the only mode of reaching a defect in the indictment is on a motion in arrest of judgment, or by a writ of error brought on the record of judgment itself. Nevertheless as this point was fully argued by the counsel, we have examined it, and have come to the conclusion that the indictment is sufficient. It alleges all the facts which the statute requires, to constitute the offence under the act of 1845. This, as a general rule, is sufficient. (People v. Taylor, 3 Denio, 91). The indictment also alleges, after enumerating all the ingredients of the offence, that it was .committed against the form of the statute in that case made and provided. It. is expressly decided in the case of The People v. Lohman, (2 Barbour, 220,) that the facts charged in the indictment in this case, are enough to constitute a'misdemeanor under the act. The opinion contains a very well reasoned argument on the very point involved in the case under consideration] and we are satisfied with the conclusion to which the court arrived and adopt it in the present case.

II. Upon the second ground on which we are asked to grant a new trial, there is a similar objection to the argument, viz1 that the error did not occur in any decision made on the trial. It occurred, if at all, on the decision of a motion made before the jury were empanneled, and before the trial was commenced. It was not strictly the subject of an exception. It was a matter of discretion to grant the motion or not. Our statute reads as follows: “ Whenever two or more defendants shall be jointly indicted for a felony, any one defendant desiring it shall be tried separately. In other cases defendants jointly indicted shall be tried separately or jointly in the discretion of the court” If the defendants have not a right to be tried jointly, in other words, if it be a matter of discretion with the court to allow the district attorney to try the prisoners jointly or separately as it seems best to consist with the advancement of justice, then it is clear that no bill of exceptions lies to correct .any error that we may suppose was committed by the' court, in the exercise of that discretion. (See People v. Barker, 3 Hill, 159; Rapelyea v. Prince, 4 Hill, 119.)

In tEe first volume of Baldwin’s Rep. page 75, 81, it is said by the court: It is now settled that separate trials are a matter of discretion and not of right. If in the opinion of the district attorney public justice requires a joint trial, the court will not direct separate trials, except under very special circumstances. As a general rule, the prosecutor has a right to select his course, and the court will not undertake to control him.” We have already shown that our statute expressly reserves the right to the court to decide, as .a matter of discretion, whether the trial of an indictment for misdemeanor shall be joint or separate. That discretion may be exercised by an order made on the motion of the district attorney as well as on that of the prisoner’s counsel. The district attorney may have been fully prepared to try the prisoner Stockham, while he may have been unable to procure witnesses to try Adams. If compelled to try them all jointly, Adams would escape. If he should postpone the trial of all the defendants, he might never be able to get the attendance of his witnesses against the Stockhams again, In fact if the defendants are numerous, and all to be tried jointly, unless the prisoners ask for separate trials, it may happen that all can never be tried without great danger that some will escape for the reason of some witnesses who could not be pro-cvred. In fine, the court in its discretion, refused to order a joint trial. We have not the means of reviewing that discretion, for we are not informed of the objection of the district attorney to the motion, That discretion was conferred by the statute, and we have not the power to review it, except in very special cases, and then not upon a bill of exceptions.

New trial denied.


author: Mitchell, J.,

text:
    Supreme Court. At Chambers.
    Before Mitchell, Justice New York,
    December, 28, 1853.
    In the matter of Alex. Heilbonn, claimed by the British government under the treaty of 1842, as a fugitive from justice, on a charge of forgery.
    The power to issue warrants for the purpose of apprehending fugitives from justice, under the tenth article of the treaty between the United States and Great Britain, concluded on the ninth day of August 1842, and under other treaties between this government and foreign governments is conferred by the act of congress of August 12, 1848, ch. 167, as well upon the judges of the several state courts, as upon the justices of the Supreme Court and the several District Courts of the United States and the commissioners appointed by the courts of the United States.
    Such warrant can only be issued upon complaint made under oath or affirmation, charging some person with having committed one of the crimes enumerated and provided for in the treaty, and if the complaint he insufficient there is no jurisdiction to issue the warrant.
    Where the charge of the crime is made irithe complaint in general terms, and the complaint also contains all the facts on which the charge is made, and from such facts it clearly appears that no such crime has been committed, but some other offence not provided for in the treaty, the complaint itself disproves the general charge and takes away the foundation for the warrant.
    Where a person had been arrested as a fugitive from justice under a warrant issued by a commissioner appointed by a court of the United States and was afterwards brought before a justice of the Supreme Court of this state on habeas corpus for the purpose of inquiring into the cause of his detention with a view to obtaining his discharge, held that it was proper for the justice to look behind the warrant for the purpose of ascertaining whether the complaint made was sufficient to give the commissioner jurisdiction.
    The proper mode of reviewing a decision of a state judge, made in such case, is by carrying it to the Supreme Court of the state, and from thence to the Court of Appeals, and from thence to the Supreme Court of the United Srales, if Ihe decision of the Court of Appeals be against the power claimed under the United States law.
    Where a bill was drawn by the Bank of Ireland on the Bank of England, on theSd July 1853, to the order of Mrs. A. Haliday, for ¡£43, 7s. 6d. sterling, and after several intermediate endorsements, was endorsed to Chas. Macintosh & Co., to order, and the bill came 1o Macintosh & Co by letter, which was sureptitiously taken possession of by Alex. Heilbonn, the prisoner, a clerk for Macintosh & Co., who wrote the following endorsement on the bill, — “ Received for Chas. Macintosh & Co , Alex. Heilbonn, No. 9 Vine Street, Regent Street No. 73, Aidermanbury,” on which the bill was paid to the prisoner, held, that such endorsement did not amount to the crime of forgery, though it appeared that Heilbonn had no authority to endorse bills of exchange or to receive the amount thereof, and that the words Cnas. Macintosh & Co.” were an imitation of the hand writing of a member of the firm, the rest of the endorsement being in the undisguised handwriting of said Heilbonn. And held that the offence of the prisoner belonged to a difivrent class of crimes and was not one of those provided for in the treaty between this country a'nd Great Britain.
    This was an application on habeas corpus, for the discharge of Alex. Heilbonn from arrest, under a warrant issued against him as a fugitive from justice, by U. S. Commissioner Nelson, under the treaty between the government of the United States and Great Britain, on a charge of forgery.
    The facts of the case are stated in the opinion of the judge.

      Mr. Busteed, for the prisoner,
    made the following points:
    1. That the extradition treaty between this country and Great Britain executes itself, and that the act of congress of. 1848 was passed only in aid of such treaties as do not, ex vi termini, execute themselves, or provide for their own execution.
    2. That the act of congress of 1848, providing a less measure, and establishing a different rule of evidence from that provided for by the treaty and the constitution, is void and unconstitutional.

      3. That the prisoner having been found within the territorial limits of the state of New York, only such evidence as by the laws of this state would be admissible before a state magistrate, possessing criminal jurisdiction, can be admitted on the hearing before the commissioner; and that it is the statutory and common law right of the prisoner to be confronted by his accuser and the witnesses against him, so as to have them cross-examined on his behalf.
    4. That there is no legal evidence that Muggeridge, (the London alderman,) is a justice of the peace or other magistrate — and no evidence as lo what crimes the jurisdiction of justices of the peace for the borough of London extends.
    5. That there is no 'evidence or attestation that the papers offered in proof of the criminality of the accused are true copies of the original depositions upon which the original warrant was issued.
    6. That the “ complaint under oath,” required by the tenth article of the treaty and the first section of the act of congress of 1848, is necessary to initiate jurisdiction in the officer issuing the warrant here; and that no complaint was made m this case.
    7. That the facts alleged against the prisoner do not, if proven, constitute the crime of forgery.

      Chs. O’Conor, (U. S. Dist. Att’y,) for the government.
   Mitchell, J.,

delivered the following opinion:

The prisoner is brought up on a habeas corpus issued by Mr. Nelson as commissioner, appointed by the. United States circuit court for this district, under the act of congress for the extradition of fugitives from other countries, pursuant to treaties with those countries, and issued also to the United States marshal for this district. Those officers return, that the prisoner is in the custody of the marshal on a warrant issued by the commissioner, charging the prisoner with having committed in England the crime of forgery, upon the back of a bill of exchange; the warrant orders his arrest, and that he be brought before the commissioner that the evidence of his criminality might be heard and considered. The prisoner was arrested on the 22d of November, and on the 30th he applied to the commissioner that the examination should take place; the matter was adjourned to the 3d of December, and then he insisted by his counsel that the examination should no longer be delayed. On that occasion it was admitted by the counsel for the prosecution that he would have no further evidence than that on which the warrant issued, except the production of the document alleged to be forged. An adjournment was allowed, notwithstanding the objection of the prisoner; and afterwards this writ was taken out and returned. On the evidence taken on the return, it appears that the only proof on which the warrant issued and on which' the further commitment of the prisoner was claimed, consisted of copies of three depositions taken in England, viz.; of George Leigh, Wm. Brockdon and George Bryant; copies of which were produced. Leigh states all the facts of the alleged forgery, Brockdon and Bryant use language which, standing alone, would impute the crime of forgery to the prisoner; Brockdon saying that the endorsement “ Chas. Macintosh & Co.” appearing on the bill, is a forgery, not written by him of either of his partners nor authorized by them, and he believed it to be the handwriting of the prisoner. But the examination of the two last persons was taken after that of Leigh, and each of them refers to the preceding examination of Leigh as containing a copy of the bill of exchange, and Bryant says also a copy of the endorsement thereon. The facts contained in that examination as to the contents of the bill of exchange and of its endorsement must prevail over those general affidavits, especially as Leigh’s examination gives a verbatim copy of the bill and its endorsement. Leigh shows that the bill was drawn on the 2d July, 1853, by the bank of Ireland on the bank of England, in London, to the order of Mrs. A. Haliday, for ¿£43 7s. 6d sterling, that it was endorsed by Mrs. Haliday, without restrictions and not to order — 'then endorsed by Bukhard & Lohne to A. & L. Camphausen, by the last to L. Kneller, and by him to Chas. Macintosh & Co., to order. Then follows this endorsement, in which the alleged forgery consists:

Received for Chas. Macintosh & Co., Alex. Heilbonn, No. 9 Vine street, Regent street, No. 73 Aldermanbury.

Leigh says that the endorsement, “ Chas. Macintosh & Co.,” is an imitation of the handwriting of Mr. Hugh Birley, a partner in the firm, but that it is not his handwriting, or that of any member of the firm; and that the words “ received for ” and “Alex Heilbonn,” are in the undisguised handwriting of the said Alex. Heilbonn. He also says that the bill of exchange came to Macintosh & Co., by letter, and that it and the letter “ were surreptitiously taken possession of by the prisoner, and that the prisoner had no authority to write such an endorsement. That after the prisoner fled from England Leigh opened the desk he had used and there found a memorandum in Heilbonn’s handwriting, headed accounts not aeounted for,” and among the items in that account this bill of exchange was entered as for £42, 7s. 6d. He also states that Heilbonn had been a clerk of Macintosh & Co., for two years, and that his duty was to collect outstanding book debts only, and he had no authority to endorse bills of exchange, or to receive the amounts thereof; and all such securities were paid to the bankers of the firm. The question now presented is whether these facts, if admitted to be true, show that the prisoner committed forgery. Two cases precisely similar in principle have been twice decided in England, and in each it was held that the offence was not forgery. In Rex v. Arscott, (6 Carr. & Payne, 408,) the prisoner had endorsed on a bill of exchange, payable to the order of R. Aickman, these words: — Received for R. Aickman; G. Arscott.” On the trial the court held this was not forgery. Littledale, J., said — “I take it that to forge a receipt for money is uniting the name of the person for whom it is received. But in this case the acts done by the prisoner were receiving for another person and signing his own name. Under these circumstances the prisoner must be acquitted upon the indictment.” Vaughan, J., said: — “I am of the same opinion and I think it is much better that the most guilty offender should oscape than that the law should be strained to meet any particular case. In Regina v. White, (2 Carr. and Kirwin, 404,) the prisoner White wrote on a bill of exchange to the order of T. Tomlinson, this endorsement — per procuration Thomas Tomlinson, " Emanuel White.” Pattison, J., apparently to raise the question of law, told the jury that if they were of opinion that the prisoner, at the time when he signed the endorsement, had willfully misrepresented that he came from Tomlinson, with intent to defraud him or the bankers, and had no authority from Tomlinson, they ought to find him guilty. But he reserved the question for the fifteen judges. It was argued fully before them, and they “ held the conviction wrong; and that endorsing a bill of exchange under a false assumption, of authority to endorse as per procuration, is not forgery, that being no false making.” It might not be necessary to refer to these authorities, for it is the essence of forgery that one signs the name of another to pass it off as the signature, or counterfeit of that other. This can not be when the party openly, and on the face of the paper, declares that he signs for the other, there he does not counterfeit the name of the other, nor attempt to pass the signature as the signature of that other. The offence belongs to an entirely different class of crimes, and is not one of those provided for in the treaty between this country and Great Britain. That country from which we borrow most of our views of law, and in which the offence was committed, has declared it not to be a forgery. There is no dispute about the facts, and with these two express decisions before us, concurring with the clear meaning of the term forgery, there would appear to be no reasonable doubt about the law— from the facts disclosed in these depositions and which constitute the crime with which the person' is charged, he can not, with any propriety, be said to. be charged in these depositions with the crime of forgery. It is unnecessary to say how far facts must be stated in the complaint made under oath,” required by our act of congress, nor even to say whether any facts need be 'Stated —but if the charge of a crime is made in general terms, and the complaint also contains all the facts on which that charge is made, and on the admitted facts it clearly appears that no such crime has been committed, the complaint then disproves the general charge, and takes away the foundation for the warrant. The oath of an individual, swearing in general terms that a particular crime was committed, can never be íeceived as a foundation for any legal proceeding, when the particular facts which he states disprove the charge — it is not for him, but for the courts to decide what is the character of the offence, when the facts are established. Otherwise, one might be arrested on a charge for forgery, when the complaint shows the offence committed was a literary forgery, or the use of the name of a commander in a military order by an officer engaged in a civil war on the side in opposition to such commander. In this case, too, the prisoner had general authority to collect book debts of the firm, that gave him power to sign the name of the firm to receipts for those debts; and as the limitation of his authority would not be known to the public, and he was engaged, so far as the public could judge, in collecting the prosecutor’s debts generally, third persons would be protected in their payments to him. He, too, might even have supposed that he had power to collect this debt, and receipt for it, if the charge of surreptitiously obtaining the bill and letter be disregarded, and it ought, perhaps, to be disregarded, as Leigh slates no means of knowledge which he had of the prisoner committing that wrong, and leaves it in doubt whether the prisoner was ever expressly restricted from receipting for bills, or merely had a special authority to collect book debts, from which Leigh inferred that he was restricted from the other power. It is at least extremely doubtful whether forgery can be committed by an endorsement not at all essential to the negotiability of a bill; and- it has been held in our Superior Court in a learned opinion, that a draft once endorsed without restriction could not afterward be so undone, in order to make the endorsement of the last endorser necessary. It is a rule in relation to all magistrates acting under a special and limited power, that they have no jurisdiction unless they strictly comply with the power conferred. The power to apprehend fugitives from justice in these cases is conferred by the act of congress of August 12, 1848, ch. 167. It gives the power to issue the warrant to arrest to any of the justices of the •Supreme Court or judges of the several District courts of the United States, and commissioners appointed as the present commissioners have been appointed, and also to the judges of the several state courts, but it is given only “ upon complaint,” made under oath or affirmation, charging any person with having committed any of the crimes enumerated or provided for by any such treaty or convention.” This shows that without a sufficient complaint on oath, there is no jurisdiction to issue the warrant.

It was argued that on habeas corpus the judge should not go beyond the warrant, and if thatw'ere regular he should remand the prisoner. The answer to this is that the commissioner has no power to issue the warrant, and no jurisdiction under the act of congress until a complaint on oath be made before him. Those, therefore, who oppose the discharge of the prisoner in order to show that there is a valid warrant, are bound to show that it was issued on such complaint on oath, and to show this they must produce the complaint. If when produced it shows •its original invalidity, it must fall to the ground and the warrant with it. In the case of Metzger, before the present presiding judge of the Supreme Court in this district, and in the case of Haynard before the late Justice Sandford, both of these distinguished justices went behind the warrant and discharged the prisoners. In the case of Metzger, which was under the extraditional treaty with France, Mr. Butler, the United States district attorney, appeared against the prisoner, and among his printed points, while he said that “ the validity” of the mandate was the only question then to be decided, he added that in order to its decision it was proper to look into the provisions of the treaty, the orders of Judge Betts, contained in the return, and the evidence presented to and taken before him, (1 Barb. S. C. R. 251,) and he did not rely on the mandate of the president merely, but on it as fully warranted by “ the facts of the case.” In his view, it was essential on habeas corpus to go behind even the mandate of the president of the United States, and, to see what the facts of the case were, and what the evi-rlence was. So the learned judge in that case said, It was his duty to inquire into the cause of the prisoner’s detention, and that not merely as it appeared on the warrant by which he was held, but as it might appear from any fact alleged before the judge, to show that the imprisonment or detention was unlawful.” In the case before Judge Sandford he looked into the affidavit on which the warrant of arrest was issued, (I Sandford’s Superior Ct. Rep. 705), and found it insufficient and discharged the prisoner. There, too, the affidavit charged the prisoner with felony, but its specifications showed that the real offence was obtaining goods by false pretences, which, as represented to him, was only a misdemeanor in the state where the offence was committed, which he also noticed, (pp. 707, 708.) It is enough here to say, that when the warrant depends for its vitality on a complaint on oath, the judge, on habeas coipus, must examine the complaint on oath, to see if it does clearly complain of such an offence as authorizes the issuing of the warrant. It was also strongly pressed that on habeas corpus a state judge could not interfere when the arrest purported to be under the laws of the United States or under a treaty. The cases of Metzger and Haynard were both under the laws of the United States, yet the state judges acted then, and acted reluctantly, but without hesitation, deeming it their duty first to issue the writ, and after they had issued it, not to stop then to make a mockery of justice by refusing to act further, but to go on and hear the prisoner’s case and decide it. In Metzger’s case, the prisoner was committed, to be surrendered after examination before a police magistrate, but was discharged by the state judge; he was again arrested and examined before the United States district judge, and a commitment ordered by him, and also by the mandate of the president of the United States; but again he was brought on habeas corpus before the state judge, and by him (after a full argument by the learned counsel, and after a very complete examination into the matter,) finally discharged. This was in 1847, and congress in the following year adopted the views of the state judge, passed a law to meet the difficulty which he had pointed out; and in that act, so far from discountenancing the action of state judges in such cases, gave to them the like power to arrest as was given to the United States judges. There is a further reason why justice requires the state judges to act. In the case of Metzger, and in a mote recent case, the supreme court of the United States refused to grant a writ of habeas corpus in order to review the decision of the United States district judge, holding that they had no power to review his action at chambers But if the decision of the state judge is erroneous, it can be carried to the Supreme Court of the state, and from thence to the Court of Appeals, and from thence to the Supreme Court of the United States, if the decision of the court of appeals be against the power claimed under the United States law. This is the only entirely peaceable mode of having such questions finally settled, if they are still matters of doubt; and the state courts will freely' follow-(as is their duty)tfye decisions of that court of last resort. The revised statutes of our state provide that all proceedings commenced under the article authorizing a habeas corpus before any officer, may be removed by certiorari into the supreme court, to be there examined and corrected; but that no such certiorari shall be issued unless the same be allowed by a justice of the Supreme Court or a circuit judge, nor'until a final adjudication shall have been made by such officer, upon the claim to be discharged or hailed. (2 R. S. 573, § 71, 69.) They then provide for a writ of error to the court for the Correction of Errors, by the prisoner- and by the attorney general in criminal cases, or the party aggrieved in civil cases. There is no limit to the cases in-which the appeal may be made by certiorari from the decision of the officer issuing the habeas corpus to the Supreme Court, and if (as suggested) the United States attorney Pan not carry the case from the Supreme Court to our Court of Appeals, then when the Supreme Court shall decide this case, a final judgment will have been given in a suit in the highest court of law in this state in which a decision in that suit could he had, and there its decision could be reexamined and revised or affirmed in the supreme court of the United States, upon a writ of error, if the- decisions of the state court were against the right set up under the treaty, or a statute of the United States. (1 Story’s Laws U. S. p. 61, Act of 1789, ch. 22, sec. 25.) The state judge, in thus acting, does not in any way interfere with the law of the United States. On the contrary, he conforms to it. He finds an act of congress authorizing an inhabitant of the state to be carried away to a foreign country only when the person is charged on a complaint on oath with some of the offences particularized in a treaty; that inhabitant of the state demands the protection of our laws, and it turns out that the complaint made against him does not show that he has committed any offence for which he can be removed from our territory; thus, those who hold him under the warrant are acting in opposition to the United States laws, and those who discharge the prisoner are acting in support of those laws. The revised statutes have been in operation for more than twenty-three years, and may be considered, so far as they have remained unaltered, as receiving the approbation of successive legislatures. They allow the writ of habeas corpus, and require the judges and courts to issue it except in certain excepted .cases. All the excepted cases in favor of the United States are .those where process has been issued by any court of the United States, or any judge thereof in cases where such courts, or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suits in such courts. (2 R. S. 503, § 24, 22.) The authorities before referred to show that this “ section” does not apply to a United Stales judge acting at chambers, or as a commissioner, at least when no actual suit is pending. Besides, the United States judges have no exclusive jurisdiction to arrest in these cases — the same act which gives them power to arrest gives it also to the state judges — and the commissioner whc orders the arrest does it as a committing magistrate, and is not a judge of the United States, nor of the United States courts. The power of the state judge to discharge persons held in custody unlawfully by United States officers is exercised probably every week in this city, where persons under age have been enlisted in the United States'army without the proper consent In the matter of Ferguson, (9 J. R. 289,) the majority of the court seemed to hold it to be a matter of discretion to grant it or not when the court was sitting in term- time. This was in 1812. Even then the court would not abandon the right to issue it. In Massachusetts, the power of discharging the soldier was exercised as early as 1815, (11 Mass. R. 63, 67,) and it was enforced in our courts in 1847, (7 Cow. 471,) the court saying, “ Any person illegally detained has a right to be discharged, and it is the duty of this court to restore him to his liberty.” Since then there has been no hesitation to exercise the power. If it were unlawful, or even inexpedient, congress would have interfered with the exercise of this power, as it could have done in those cases by making the enlistment of minors valid unless they were discharged by the United States courts. Its silence is an acquiescence in the power of the state courts, and in the propriety of its exercise, even in a case where the powers of the executive are restrained, but restrained only so far as they are exercised against law. The revised statutes also preclude from the benefit of the writ of habeas corpus persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction. (2 R. S. 568, 24, 22.) By the phraseology used, the judgment or decree binds the party in such case, and he can not go behind it on this writ; but that does not show that he may not go behind the commitment when a magistrate has a limited authority and exceeds it. So a prisoner may not be at liberty to go behind an indictment except for special purposes, but an indictment has an effect proprio vigore, and is not, like the warrant in this case, a mere statutory remedy, to be issued by a magistrate only oh certain preliminaries being first complied with, and dependent on them for its vitality. The prisoner being unlawfully confined, must be discharged, and an order must be entered accordingly.

Prisons discharged.


author: Edmonds, P. J.

text:
    Supreme Court. New York General Term,
    December, 1853

      Edmonds, Edwards and Mitchell, Justices.
    Joseph Morris vs The People. Hess Wheeler vs. The same.
    The first section of the act passed 12 April 1853, (Sess. Laws of 1853 page 353,) prescribing and authorizing a general form for a record of conviction in case of vagrancy is not unconstitutional.
    Whether the second section of that act which authorizes a discharge before the expiration of the term, or an order, jointly made by the committing magistrate and one of the governors on the almshouse, is not unconstitutional and void as infringing upon the pardoning power vested in the governor by the constitution, act 4 sec 5. Quere?
    These cases came before the court on writs of certiorari issued for the purpose of reviewing the decisions of one of the justices- of this court at chambers. The legal questions presented sufficiently appear in the opinion of the court.
    JY*. E. Blunt, (Dist. Att’y,) for the People.

      A. JD. Russell, for plaintiff.
   By the Court,

Edmonds, P. J.

These cases are brought before us on certiorari to review the action of a justice at chambers on writs of habeas corpus. From the returns to those writs it appeared that the prisoners had been committed to the penitentiary in the city of New York on a summary conviction, as vagrants/and that the only record of the convictions was in the following form:

City and County of New York, ss: The undersigned, one of the police justices in the city of New York, hereby certifies that Joseph Morris was this day before him on a charge of being a vagrant; that he, the justice, made diligent examination of the matter, and upon due proof found him, the said Joseph Morris, to be a vagrant within the meaning of the law in such case provided; and he, the said justice did'so adjudge. Whereupon, he, the justice aforesaid, did, by warrant under his hand and seal, commit the said Joseph Morris, so adjudged to be a vagrant as above stated, to the penitentiary in said city, for the term of six months. In witness whereof, I, the undersigned, police justice aforesaid, have hereunto fixed my hand and seal, this 26th day of April, in the year 1853.

S. H. Stuart, Police Justice.

This form of the record was defended under an act which passed the legislature on the 12th of April, 1853, and was m strict conformity with that statute. That act was probably as extraordinary as any to which party and inconsiderate legislation ever gave birth, and was a greater invasion of the rights of personal liberty than is to be found in our statute book; but yet, unless we can hold it to be in violation of the constitution, we are obliged to permit it to be enforce'd, however strongly we may feel called upon to condemn its provisions. Summary convictions are coming very much into vogue with us. In Great Britain, from whose system of jurisprudence we have borrowed them, they have extended to about 100,000 in a year, under their game, excise and police laws. But as they operate principally upon the poorer and lower classes, they are permitted to endure, andto become a principal instrument in keeping those classes in subjection. The enlightened judges of that country, who have for ages been distinguished for their firm defence of the liberty of the subject, easily discovered how prolific those convictions might be of oppression of the lower classes, and therefore they have, for a long time, adhered to a system of rules m regard to them which were calculated to, and did, afford protection against this manifest danger. That system required that a record of the conviction should be made out which should specify every act and fact on which the conviction was based, so that, by removing it to a higher court, the party accused might have the opportunity, which in a country of laws, ought to belong to every one, of testing the question before some tribunal, other than the oppressor himself, whether he was lawfully convicted or not. This required necessarily, in the convicting magistrate considerable labor, skill and knowledge in the business in which he was engaged, and was, to be sure, sometimes pretty onerous upon the magistrate. Still the courts adhered for the sake of personal liberty, with great strictness, to their rules. But as the British parliament, yielding to the same impulse which has influenced our legislatures increased the range and number of these convictions, they deemed it advisable to lighten the burden on the magist;atej and they, therefore, in some cases, adopted a general form of a record, as our act of 1853 has done. But aware that by such a form they deprive the party accused of his former remedy of review, they never authorized it without providing another mode of review, so that the accused, thus deprived of his remedy by certiorari out of the king’s bench, might still have it by an appeal to the Quarter Sessions; and thus, while they relieved the magistrate from the labor and the necessity for knowledge formerly demanded, they did not achieve that wo.k at the expense of the liberty of the subject, or make the magistrate the final judge of the correctness of his own action where personal freedom was involved. In this state there was no general form of a recoid authorized until this recent act, and there was no mode by which the accused could have his conviction reviewed but in this court, to which the record could be removed and the action of the committing magistrate be scrutinized. During the time that I have been on the bench, I have had occasion to discharge hundreds of persons from the penitentiary, because of erroneous records of convictions So numerous were those applications becoming that I took pains in a carefully considered opinion to collate all the law on the subject, and spread it out so plainly that the police magistrates could not mistake it. ■ This was done in the case of The People v. Eliza Phillips, The views then put forth have lately been recognized in the Court of Appeals, in Morewood v. Hollister. This did not reach the evil,' for the magistrates disregarded the rule, sometimes finding it too much trouble and sometimes erring on purpose to give room for the operation of a habeas corpus. I accordingly, in January, 1849, tie? v-eri if my duty to call the attention of the grand jury to the subject, and they made a presentment, from which it appeared that of 5X1 records of conviction only three were valid, and that of 746 vagrants in the penitentiary 743 were unlawfully imprisoned, and were entitled to be forthwith discharged. This was a state of things sufficiently alarming to awaken attention. Accordingly, at the request of the board- of supervisors, proper forms were provided for the use of the magistrates, and they were for a while adhered to. They were, however still troublesome, for they still demanded labor, knowledge and skill, until the statute in question interposed, rendering them all unnecessary. Now, under that statute, there is no mode in which the decision of a magistrate, in a case of alleged vagrancy, can be reviewed. The only remedy provided is, that its second section confers on the committing magistrate and one of the governors of the almshouse the power to discharge the convict before the expiration of his term, but no where provides for a review of the action of the magistrate in the conviction itself.

It may well be questioned whether this second section of the statute is not void, because of this transfer of the pardoning power from the governor of the state to one of the governors of the almshouse, but that question is not now before us. The only question here is whether the first section of the statute, depriving, as it may, the accused party of all review of a judgment by which any one of us may, without a trial by jury, be imprisoned for six months, is in violation of the constitution.

The only provisions of that instrument at all bearing on the subject is section 2 of article 1, which enacts that the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” But that does not affect the question before us, because that relates to the conviction, and this statute only to the review of it; because a jury trial never has been used in cases of summary convictions. The statute, therefore, stands unaffected by the constitution, but it is none the less to be deprecated, for it already acts upon more than, 2,000. of our people every year, and the number is constantly increasing, and it may be made to act upon every one of us, male or female, young or old, rich or poor, high or low. The remedy, however, is not in this court, but in the legislature. Our duty is discharged when we hold, as we must, that the law is not -uncon, stitutional, and affirm the judgment below.

Judgment affirmed.

       2 Selden R. 309.


text:
    Jefferson Oyer and Treminer.
    December, 1853.
    Before W F. Mien and -the Justices of the Sessions.
    The People vs. John H. Allen.
    On tne trial of an indictment charging the defendant with having uttered and published as true, a promissory note made by the defendant, on which the names of certain individuals appearing as endorsers were alleged to have been forged, it is a good defence, under the plea of autrefois acquit, that the defendant had beforfe been indicted and tried for the offence of forging and counterfeiting the same endorsements and on such previous trial had been acquitted by the verdict of a jury upon the merits, the only controverted question on both trials being whether such endorsements were genuine.
    The prisoner was indicted for uttering and publishing as true, in the county of Jefferson, a note made by himself, on which the names of certain individuals were alleged to have been forged as endorsers, knowing such endorsements to be false, forged and counterfeit.
    The defendant interposed the plea of autrefois acquit, and on the trial it appeared that he had before been jndiqted and tried in the county of Lewis for the offence of forging and counterfeiting the same endorsements, and acquitted by the verdict of a jury upon the merits.
    Upon the trial of the present indictment, the proof was that the body of the note and signature were in the handwriting of the prisoner; that the last endorsement upon the note was genuine, and was made in Lewis county, at the request of the prisoner; that when the note was .presented to the last endorser for his endorsement by the prisoner, the endorsements alleged to be forged were upon the note; that the note was then transmitted by mail by the prisoner to a bank at Watertown, Jefferson county, for discount, and by the bank discounted, for the benefit of the maker. The prisoner and all the parties to the note resided in the county of Lewis, where, as it appeared, the note was made and endorsed and the forgeries committed, if committed at all.

      Mullin Sr Bagley, for prisoner,
    objected; that upon the evidence the record of acquittal upon the former indictment was a bar to this prosecution; that, if the endorsements were in truth forged, the proof was that the forgeries were committed by Allen, in the county of Lewis, and upon the trial of the question whether they were or were not forgeries, the issue had been determined.in favor of the defandant, and was conclusive as a verdict of a jury upon a question directly in issue, and that the prisoner could not be put to a second trial of the same question. That the only question upon both indictments was upon the genuineness of the endorsements, and that the defendant could not be twice put in jeopardy upon the same question and upon susbtantially the same evidence, by varying the form of the indictment, and charging another offence, which might have been joined in the former indictment.

      J. Moore, Jr. (Dis’t Att’y) and W. Starbuck, for the prosecution,
    cited 2 R. S. 670, & 39; 12 Wend. R. 425; 2 R. S. 702. §30; 17 Wend. R. 386.
   The court sustained the objection, and directed a verdict of acquittal, upon the ground that the evidence to establish the guilt of the prisoner of the offence charged in this indictment necessarily established his guilt of the offence of forgery charged in the first indictment, which was no- longer an open question, the jury upon the trial of that indictment having by their verdict found the endorsements genuine. That the only litigated question of fact upon both indictments was the same, and both indictments would be sustained by substantially the same evidence.

Prisoner acquitted.