author: By the Court, Rosekrans, J.

text:
    Supreme Court. Clinton General Term,
    May, 1858.

      C. L. Allen, James, Rosekrans and Potter, Justices.
    The People v. Benjamin Shaver.
    Where a prisoner is let to bail by an officer out of court, the recognizance taken must be filed, as required by statute, before any action can be taken upon it by the court; and no suit can be maintained upon such a recognizance, without averring in the complaint and proving on the trial that it had been filed, or made a record of the court in which it was returnable.
    It is a good defence to an action on a recognizance, that it was taken on an illegal arrest of the prisoner, for whom the defendant became bail.
    A complaint in writing charging S. with bigamy, alleged to have been committed in Albany county, was made before a justice of the peace of Fulton county, who issued his warrant for the arrest of S., under which S. was arrested in Montgomery county, by a constable of the latter county (the warrant not having been first indorsed by a justice of Montgomery county), and brought into the county of Fulton before the justice who had issued the warrant, upon whose requirement a recognizance was entered into to appear at the next Court of Sessions to be held in Montgomery county: Held, that the arrest was illegal, and the recognizance void for duress; that it should have been directed to an officer of the county in which the justice who issued it was a magistrate; and that the justice who issued the warrant had no authority, in a case like that before him, to take a recognizance for the appearance of the prisoner at a Court of Sessions of any other county than that in which the justice resided.
    Form of a complaint on recognizance, and of an answer thereto, setting up the . above mentioned defence.
    This was an action on a recognizance. The complaint was as follows:
    Supreme Court, Montgomery County.
    The People of the State of New York I agst. r Benjamin Shaver.__J
    The plaintiff alleges that the defendant, on the 80th day of July, 1856, at Ephrátah, in the county of Fulton, in the State of New York, made, executed and delivered, the bond of which the following is a copy, together with one Nathan Shaver

      Fulton County, ss:
    Be it remembered that on the thirtieth day of July, 1856, one Nathan Shaver, in Albany county, and Benjamin Shaver, in Fulton county, of the same place, personally came before me, Aaron Nellis, a justice of the peace of said county, and severally and respectively acknowledged themselves to be indebted to the People of the State of New York, that is to say, the said Nathan Shaver, in the sum of two hundred dollars, and the said Benjamin Shaver, in the sum of five hundred dollars, each to be levied of their respective goods and chattels; lands and tenements, to the use of said People, if the said Na than Shaver shall make default in the condition following: Whereas, The said Nathan Shaver has been duly brought before me, the said justice, charged with the offence of bigamy, and having been duly examined before me touching said offence, and having been by me let to bail thereon:
    Now the condition of this recognizance is such that if the said Nathan Shaver shall personally appear at the next Court of Sessions, to be held in and for the county of Montgomery, on the first Tuesday of September next, then and there to answer to an indictment to be preferred against him for bigamy, and to do and receive what shall by the court be then and there enjoined upon him, and shall not depart the court without leave, then this recognizance to be void, or else to remain in full force.
    NATHAN SHAVER [l. s.]
    his BENJAMIN M SHAVER, [l. s.] mark.
    Taken, subscribed and acknowledged the day and year first above written before me.
    AARON NELLIS.
    The plaintiffs also allege, that upon complaint duly made and preferred before said Aaron Nellis, then and there an acting justice of the peace of the town of Ephratah, Fulton county, against said Nathan Shaver, upon a charge of bigamy, viz.: for marrying a second wife in the city and county of Albany, in the month of .October, 1855, while a former wife of said Nathan, then and there was still living and remaining his lawful wife as aforesaid, a warrant was, on or about the 30th day of July, 1856, aforesaid, issued against said Nathan, and that said Nathan had been at the town of Ephratah, in the county aforesaid, on the day aforesaid, but had then recently departed therefrom, and gone to the town of Palatine, in the county of Montgomery, where he was duly arrested thereon, and by virtue thereof taken by a constable of the county of Montgomery, to and before said justice, by and before whom the above recognizance was entered into by said Nathan and his surety aforesaid, defendant in this cause.
    And the plaintiffs further allege, that all and every of the facts recited in said bond or recognizance are true, and that said justice had full power and authority to accept and take the same pursuant to the Eevised Statutes in such case made and provided.
    That said Nathan Shaver referred to in said bond or recognizance, and the defendant in this cause, did not comply with the terms and conditions thereof, but said Shaver wholly neglected to appear at the then next and last Court of General Sessions, held in and for the county of Montgomery, at the court house in Fonda, on the first Tuesday, which was the second day of September, 1856, and continued until the third day of September thereafter, according to the terms and conditions thereof, and in the manner required thereby. Although said Shaver was duly called for that purpose, on or about the 3d day of September last, and during the session of said court, and the said court then and there ordered said recognizance to be forfeited and prosecuted, but gave said Benjamin Shaver a stay of proceedings on said bond or recognizance until the then next ensuing term of Oyer and Terminer, to be held, and which was held, in and for the said county of Montgomery, on the 18th day of November last past, and which order was duly entered upon the records of said court, but the said Benjamin wholly neglected to surrender the said Nathan, at and within the time specified in said order, though said court was duly held and passed, still does neglect to do so.
    Therefore, the plaintiffs demand judgment against said defendant for five hundred dollars, with interest thereon, from said 5d day of September, 1855, beside costs.
    P. G-. WEBSTER, District Attorney.

    The answer was as follows:
    Supreme Court.
    The People of the State of New York, plaintiffs, agst. Benjamin Shaver, defendant.
    Benjamin Shaver, the above named defendant, answers the complaint of the above named plaintiffs, and denies each and every allegation set forth and contained in the plaintiffs’ complaint.
    2d defence. And for further answer to said complaint, the said defendant says, that sometime in the month of July, 1856, one Aaron Nellis, a justice of the peace of the county of Fulton, issued his warrant against one Nathan Shaver, who was then in the county of Montgomery, without any complaint made before him or other evidence, charging the said Nathan Shaver with having committed the crime of bigamy, or any other crime or offence whatever; but issued the satire wrongfully and without authority of law. That the said Nathan Shaver was arrested under pretence of authority, in the county of Montgomery, by virtue of said pretended warrant, and wrongfully and without authority, taken before said justice in the town of Ephratah, in said county of Fulton, for examination before said justice, in the town of Ephratah. That said Nathan Shaver objected to the authority and jurisdiction of said justice, but that said justice refused to discharge said Nathan Shaver, but wrongfully, and without authority of law, required the said Nathan Shaver to give bail for his appearance at the Court of Sessions to be held in the county of Montgomery, on the first Tuesday of September then next, and to execute a bond, with a sufficient surety, for his said appearance as aforesaid. And the defendant further says, that at the request of the said Nathan Shaver, and for the purpose of having him released and discharged from unlawful imprisonment, he, this deponent, signed said bond, a copy of which is set forth in the plaintiffs’ complaint herein. And the said defendant alleges that all proceedings had before said justice were without authority or jurisdiction, and that said bond, given as aforesaid, is wholly void, and of no effect whatever.
    MARTIN McMARTIN, Attorney for Defendant.

    The action came on to be tried at a Circuit Court, held in and for Montgomery county, on the 13th day of May, 1857, before the Hon. E. H. Bosekrans, Justice of the Supreme Court, without a jury.
    The plaintiff proved the execution of the recognizance described in the complaint, by Aaron Nellis, the justice who took the same, and also proved that said Nellis, at the time and place therein mentioned, was a justice of the peace in and for the county of Fulton. That on complaint of Levi Gray, which was in writing, showing that Nathan Shaver had married a second wife in the county of Albany, his first wife being still living, and not divorced from him, he issued a warrant in the usual form for the arrest of said Nathan Shaver. That said Nathan Shaver was arrested thereon in Montgomery county, by a constable of the county of Montgomery, and brought before said Nellis, justice of the peace of the county of Fulton, who took the recognizance. The warrant had not been indorsed in Montgomery county.
    That the said Nathan Shaver did not appear at the General Sessions in Montgomery county, and that his default was taken thereat.
    The defendant hereupon moved to nonsuit the plaintiff on the following grounds}:

      That the complaint did not aver that the recognizance was ever filed or was entered of record in the Court of Sessions of Montgomery county.
    That the justice had no jurisdiction to issue his warrant on the proof before him, as the complaint did not show that a crime had been committed.
    That the justice had no jurisdiction in the premises, the crime not having been committed in the county of Fulton, nor the offender being present in said county, and that the proceedings had before said justice were void.
    The motion for a nonsuit was granted, and the plaintiffs’ counsel excepted, and appealed to this court.

      Martin McMartin, for the defendant.
    I. A justice of the peace has no power to issue process of arrest unless the crime was committed in his county, or the offender is present in said county. (The People v. Cassells, 5 Hill's Rep., 165.)
    II. The warrant, if directed to a constable of Montgomery county, by a justice of the peace of Fulton county, was void, as the justice has no authority over the acts of constables out of his own county. And if the warrant was not directed to him, then he had no authority -to make the arrest, as “ none except those (or one of them), to whom a warrant is directed, have'power to act under it.” (1 Chitty's Cr. Law, 48.)
    III. Again, the warrant was not indorsed by a justice of the peace of Montgomery county, and the arrest was therefore void. (2 R. S., 3d ed., 793, § 5; Barbour's Cr. Law, 528.)
    IY. The original arrest of Nathan Shaver, therefore, being void, the justice acquired no jurisdiction in the matter. “An arrest without warrant, «when a warrant ought previously to have been issued, will not be rendered legal by a subsequent issuing of that authority.” (Barbour's Cr. Law, 551; 1 Chitty's Cr. Law, 19; Bac. Ab., Trespass, "D.")

    The bill of exceptions is silent' as to the place where Shaver was arrested, although the bill as prepared, and amendments as proposed, show it to have been at St. Johnsville, Montgomery county, and as the bill shows that he was arrested by a constable of Montgomery county, I suppose that it will be intended that the arrest was made there. But should it be intended that the arrest was made in Fulton county, then the justice clearly had no power to recognize him to appear at a court holden in Montgomey county. (3d ed. Revised Statutes, vol. 2, 796, §28; also 795, §22; also 773, §10.)
    The proceedings before the justice being without authority, the recognizance is utterly void, both at common law and by statute. (2 Revised Statutes, 214, § 60, 2d ed.; The People v. Brown, 23 Wend., 47.)
    Y. It was neither alleged in the complaint, nor proved upon the trial, that the recognizance had ever been filed or became matter of record in the court. (See The People v. VanEps, 4 Wend., 387.)

      Henry Sacia, for the People.
    I. The recognizance having been duly filed, became a record of the court, ipso facto, and no further averment was necessary in this respect to sustain the action. (3 Cow., 340; 10 Wend., 464; 5 Sanf., 54.)
    II. The accused having been apprehended in Montgomery county, the offence was triable there according to statute, and the recognizance properly belonged in that county. (2 R. S., 1st ed., 688; 2 Leach C. C., 826.)
    III. It is submitted that, for the purposes of arrest and ex-animation in criminal cases, a justice of the peace is an officer of the State. (4 Bl. Com., 290; 1 Chit. Cr. Law, 75; Barb. Cr. Law, 485.) 1. He is clearly confined to the territorial limits of his county, as far as his personal action is concerned, but he may inquire therein, whether an offence has been committed against the state. (9 Wend., 322; 2 Hale, 50, 51.) 2. His warrant is properly issued in behalf of the people of the State, and it can be so issued even where the offence is against the United States. (5 Cow., 273; 19 J. R., 279.)

      IV. He is expressly authorized by statute to issue a warrant “whenever it shall appear that my criminal offence has hem committed,” without regard to the place of its commission. (2 B. S., 706, § 3.) 1. The first section of this chapter speaks of justices merely as town officers, “ elected in any town,” yet confers the power mentioned, which in this respect is co-ordinate with that of the “ chancellor,” &c., in like cases. (Id., § 1.) 2. The very next title in relation to summary trials before these magistrates, cautiously gives that jurisdiction only, in cases “ arising within the irrespective counties.” (Id., 711, § 1; 2 Cow., 815; 16 Wend., 297.)
    Y. It is believed that the magistrate in this case pursued the statute, and acted in accordance with the common law, which justified the arrest and legalizes the recognizance. 1. The dictum of Judge Bronson in The People v. Cassells, is not based on argument or authority; the case was disposed of on the ground that the district attorney had no notice of the proceeding, and it is respectfully urged that there is no precedent for it, and that it is contrary to the policy of our laws.
   By the Court, Rosekrans, J.

The statute requires that whenever a prisoner shall be let to bail by an officer out of court, the officer shall immediately cause the recognizance taken by him to be filed with the clerk of the county in which the party bailed was imprisoned. (2 B. S., Mh ed., 893, § 34.) The recognizance is to be certified by the magistrate taking the same, to the court at which .the defendant is bound to appear. (lb., § 28.) The court can take no action upon the recognizance until it is filed; and for that reason, power is conferred upon the court to compel the return of the recognizance in case the magistrate who took it omits to certify and file it as the statute requires. And, in an action upon a recognizance, it is necessary that it should appear that the recognizance was filed in or made a record of the court in which it is returnable. (People v. Huggins, 10 Wend., 472, 464; People v. Van Eps, 4 Wend., 393, and cases there cited.) In the case of People v. Huggins, supra, although the declaration did' not positively aver the fact that the recognizance was filed in or made a record of the court, yet, as it referred to the recognizance as a record of the court, it was held, upon general demurrer, that the pleading was good. In this case the complaint does not contain any averment of or allusion to the fact, that the recognizance upon which the action is founded, was ever filed or made a record of the court, and, within the authorities, the nonsuit was proper upon that ground. The complaint did not state facts sufficient to constitute a cause of action. Without the filing of the recognizance, the order that it be forfeited and prosecuted was a nullity. The court had no power to make such order. Had the plaintiff furnished proof, upon the trial, of the filing of the recognizance, the complaint might have been amended; but no such proof was offered.

The recognizance, too, appeared to have been taken under illegal duress of the prisoner, for whom the defendant became bail. The complaint averred, and the proof showed, that upon an unindorsed warrant issued by a justice of the peace of Fulton county, a constable of Montgomery county arrested the defendant named in the warrant, in the latter county, and took him before the justice who issued the warrant in Fulton county. While under this arrest, the recognizance was entered into. Assuming that the warrant was legally issued, it could only have been directed to an officer of the county in which the justice of the peace who issued it was a magistrate, and such officer could only have executed the warrant in that county, unless the defendant had escaped to or was in another county, “ out of the jurisdiction of the magistrate who issued the warrant,” and then only upon proof of the handwriting of the magistrate who issued it being furnished to an officer in the latter county, and obtaining his indorsement of the warrant; and such indorsement would authorize the officer bringing the warrant, or any other officer to whom it may have been directed, to execute the warrant in the county where it was indorsed. (2 R. S., Mi ed., 890, § 3, 45.) Such indorsement would extend the jurisdiction of the officers of the county in which the magistrate who issued the warrant resided, to the county in which the warrant was indorsed, but it would not confer any power upon an officer of the latter county to arrest the defendant any where, not even in his own county, nor to take the defendant out of his county before any magistrate in the county in which the warrant was issued. _ The privilege of avoiding a contract on the ground of duress, is generally per-' sonal to the party under duress, and the general rule is, that no other person can take advantage of it. An exception, however, is made in favor of a surety. (Fisher v. Shattuck, 17 Pick. R., 152.) In Theobald on Principal and Surety (1 Law Lib., 2), it is said that “the obligation of the surety being accessory to that of the principal, it is of its essence that there should be a valid obligation of a principal debtor. The nullity of the principal obligation necessarily induces the nullity of the accessory. Without a principal there “ cannot be an accessory.” And at page 207 (Marg.), it is said, “ the office of bail, it is evident, is founded on the privilege given by the law to the plaintiff, of arresting and imprisoning, and keeping in prison the defendant; and, therefore, if the plaintiff in any case, either had not the right to arrest, or by his own act or the act of the law, has lost the right to keep the defendant, the derivative right of the bail ceases; and their right of keeping the defendant being gone, they are discharged from the obligation of keeping him. In McClintock v. Cummins (3 McLean R., 158), it was held that a father and son may each avoid his obligation by duress of the other, and also a husband by duress of his wife.

Besides, the recognizance was void, under the circumstances, as to both principal and surety, on the ground that it was taken before a magistrate of the county of Fulton, by whom the warrant of arrest was issued for the appearance of the principal at the Court of Sessions in the county of Montgomery. The justice of the peace derived all his authority to take the recognizance, from the statute; and unless the provisions of the statute are complied with, the recognizance is a nullity. A party may be indicted for a second, third or other marriage, prohibited by statute, in the county in which he may be apprehended, and the same proceedings had upon such indictment as if the offence had been committed there. (2 R. /S'., 4th ed., 870, § 10.) But this provision refers to a lawful arrest. Conceding that the arrest in Fulton county was legal, the recognizance should have been made returnable at the next criminal court in that county having cognizance of the offence. (2 R. K, 892, §21.) The statute makes no provision for the taking of a recognizance by a magistrate upon a warrant issued before indictment for the appearance of a party at a court in any other county than that in which the magistrate taking it is an officer, except where a warrant has been issued for an offence not punishable with death or imprisonment in a state prison, committed in the county of the magistrate who issued the warrant, and the defendant has escaped to, or is arrested in, another county, and is brought before a magistrate of the latter county, upon a warrant indorsed by a magistrate of such latter county. In such case, the magistrate before whom the defendant is brought, may take a recognizance for the appearance of the defendant at a court to be held in the county of the magistrate who issued the warrant. (2 R. /S'., 890, §§8,9,10,11.)

If the warrant under which the recognizance in this case was taken, had been properly issued by a justice of the peace in Fulton county, and had been indorsed by a justice of the peace in Montgomery county, and the defendant arrested in Montgomery county by a constable of the county of Fulton, the offence charged in the warrant being punishable with imprisonment in a state prison, the defendant must necessarily have been taken to Fulton county before some magistrate of that county. The arrest of the defendant in Montgomery county, under the Fulton county process, by a Fulton county officer, would be deemed in law an arrest in Fulton county for all the purposes of examination of the defendant, the taking of bail, and trial for the offence charged. The justice in Fulton county could not, however, take a recognizance under that proceeding for the appearance of the defendant in a court in any other county than Fulton. The statute relating to indictments for bigamy in the county where the defendant may be apprehended, was not intended to authorize the taking of such a recognizance as that counted upon in this case.

The nonsuit was rightly ordered, and the judgment entered upon it should be affirmed.


source: Caselaw Access Project

author: By the Court, Welles, J.

license: Public Domain

text:
    Supreme Court. Cayuga General Term,
    June, 1858.

      Welles, E. Darwin Smith and Johnson, Justices.
    The People v. John C. Chapman.
    An indorsement of a negotiable promissory note is a signature to a written instrument within the meaning of the 2 R. S., 61T, § 53, and obtaining such an indorsement by false tokens or pretences, is punishable under that statute.
    Where, in an indictment for obtaining an indorsement of a note by false pretences, the note was set forth at length, and it thus appeared to have been made by the defendant, and payable to the order of the prosecutor, and there was no averment that the indorsement was made for the accommodation of the defendant, it was held that the indictment was defective for want of such averment, the presumption being, on the face of the note alone, that it was the property of the prosecutor at the time of his indorsement.
    This case distinguished from that of Fenton v. The People (4 HiU, 126).
    The defendant was indicted in the Court of Sessions of Seneca county, for obtaining the indorsement, by false pretences, of Deming Boardman to a note.
    The indictment, after the caption and the names of the grand jurors, proceeded as follows: “ good and lawful men of said county, being duly sworn and charged, upon their oaths present, that John C. Chapman, late of the town of Seneca Falls, in said county, merchant, on the ninth day of November, in the year of our Lord one thousand eight hundred and fifty-five, at the town of Seneca Falls, in said county of Seneca, feloniously, unlawfully and designedly, did falsely pretend to one Deming Boardman, with intent thereby, then and there, to cheat and defraud the said Deming Boardman; that he, the said Chapman, was, and had been previous thereto, in the business of buying and selling grain; that one boat load of barley, which he had bought and then owned, arrived in the city of Albany one or two days previous to that day; and that he then had two boat loads of grain on the canal on the way to Albany, and that he had at least one boat load more of grain in the storehouse of Wilcox and Squires, up Seneca lake; that he had barley and oats enough on hand and paid for to pay every dollar that he, said Chapman, owed; by means of which false pretences the said John C. Chapman did feloniously and unlawfully obtain from the said Deming Boardman, his, the said Boardman’s, signature, as indorser, by indorsement upon and to a certain promissory note in writing, which said promissory note and indorsement are in the words and figures following, to wit:
    . $1000. Seneca Falls, Nov. 9, 1855.
    One month after date I promise to pay to the order of D. Boardman one thousand dollars, at the office of Smyth & Gifford, in Albany, N. Y. Value received.
    No. (Signed)
    JOHN CHAPMAN.
    Indorsed on the back thereof, 1D. Boardman,’ with intent thereby, then and there, to cheat and defraud the said Deming Boardman.” The indictment then proceeded to negative the said pretences, and concluded as follows: “to the great damage and deception of the said Deming Boardman—to the evil example of others—against the form of the statute in such case made and provided, and against the peace of. the People of the State of New York and their dignity.”
    The defendant pleaded not guilty and demanded a trial.
    The trial came on at a term of the same court on the 18th day of November, 1857.
    Before the district attorney had given any evidence upon the merits, the defendant’s counsel moved that the indictment be quashed, for the reason that no offence is alleged in it, and contended: 1st. That the obtaining of an indorsement is not within the statute. 2d. That it appears from the indictment that the note was made payable to Boardman’s order, and it is not averred that it was an accommodation indorsement, or that the note was ever delivered to Chapman by Boardman. The motion was overruled by the court, which refused to quash the indictment.
    The same motion was again made and denied at the close of the evidence on the part of the prosecution.
    The defendant was convicted, and the case was brought to this court by certiorari.

      A. T. Knox, for the defendant.

      J. K. Richardson (District Attorney of Seneca county), for the People.
   By the Court, Welles, J.

The point raised by the defendant’s counsel, that the obtaining an indorsement of a promissory note by false pretences, is not within the statute, cannot be maintained. The act made criminal by the statute, is by false tokens or pretences to “ obtain the signature of any person to any written instrument.” An indorsement to a negotiable promissory note is a signature to a written instrument, within the meaning of the statute. This precise question has not, that I am aware of, been ever formally passed upon by this court. It is one, however, which might have been raised in a large share of the cases which have been prosecuted under the section of the statute in relation to obtaining signatures by false pretences. (2 R. S., 677, § 53.)

The other ground taken by the defendant’s counsel, in relation to the sufficiency of the indictment, is a much more serious one. The note set forth in the indictment is prima facie an instrument in writing evidencing an indebtedness to the amount expressed, by the defendant Chapman to Board- . man, the prosecutor. It is payable to his order, and the presumption is, until the contrary appears, that it was the property of Boardman. Unless, therefore, it sufficiently appears by proper averments, that the note was made by the defendant for his own benefit, and that he obtained the indorsement of Board-man with intent afterwards to negotiate it on his own account, and that Boardman, after indorsing the note, delivered it to the defendant, and that the defendant received it for that purpose— in other words, that it was an accommodation indorsement— the case made by the indictment is, that Boardman having taken the note in question, payable to his own order, for a debt due to himself from the defendant, was induced by the representations set forth, to indorse and deliver it back to Chapman.

It is contended, however, in behalf of the people, that the indictment does show that the indorsement was made for the accommodation of the defendant; that the allegation, that by means of the representations stated, the defendant did obtain from Boardman his indorsement of the note, implies a delivery of it by Boardman to the defendant with the indorsement of the former upon it. The case of Fenton v. The People (4 Hill, 126), is regarded by the counsel for the people as conclusive in support of this proposition. In that case, Fenton was indicted for obtaining the signature of one Bich to a bond and mortgage by false pretences. The bond and mortgage were charged to have been payable to one Wyckoff, and the indictment did not expressly aver their delivery to Fenton, the defendant; but it charged that the defendant did obtain the signatures of Bich to them. The court held the indictment sufficient. Nelson, Ch. J., in delivering the opinion of the court, said: There can be no doubt that, to constitute the offence aimed at by this indictment, there must be'not only a signing but a delivery of the instrument. The one without the other would harm nobody; but I am of opinion that the averment here made comprehends both. It is difficult to see how the signatures to the bond and mortgage could have been obtained by the prisoner, unless they were delivered to him. If kept by Bich after the signing, clearly they were not obtained. The word imports a delivery.”

TMs authority proves, only, that where the averments in the indictment show a case in all other respects within the spirit and object of the statute, the allegation that the defendant obtained the signature, &c., is a sufficient averment of its delivery to him. But does it overthrow the presumption of law arising from the form of thfe note, that it was evidence of an indebtedness from the maker to the payee ? It seems to me that it does not; There is no reason why the prosecution should be excused from a direct averment of the facts necessary to constitute the case one of an accommodation indorsement, or that the court should give to the word obtain an efficiency beyond what it necessarily possesses. The utmost that can be claimed for it in the present case is, that the note in question, with the legal presumption attached to it, was delivered by Boardman to the defendant. The legal inference from the transaction, as thus modified, is, that Boardman, holding the note of the defendant, payable to his, Boardman’s, order, for a debt due to him from the maker, indorsed and delivered it, without payment, to the maker. Stopping here— and the indictment carries the case no further—the transaction, in my judgment, was not one contemplated by the statute. When the defendant was thus possessed of the note, it was of no efficacy in his hands, and it is impossible to see how Board-man, or any one else could, in a legal sense, be injured by it. If it should be said that although the note was of no validity in the hands of the defendant, or in the hands of any one else with notice, against Boardman, yet if the defendant had, under pretence that it was an accommodation indorsement, negotiated the note to a bona fide purchaser for value, the answer is, that the crime would consist, in that case, in the representation made by the defendant upon negotiating the note. Until then no harm, in a legal sense, would have been done. The note, as between the defendant and Boardman, would have been in fact canceled, and in every respect inoperative, and the mischief, if any had followed, would have been in the defendant’s fraudulently giving it vitality by passing it off before its apparent maturity to a bona fide purchaser without notice. But that would be a very different case from the one made by this indictment. If it was a case of an accommodation indorsement, as the counsel for the people contends” and as the evidence shows, it was easy to set it forth in that aspect by proper averments." The theory of the case on the part of the people, should be distinctly and unequivocally put forth in the indictment, and not Be left to uncertain inferences.

If the foregoing view is correct, it is unnecessary to consider the other questions raised by the bill of exceptions and discussed upon the argument.

In my opinion, the conviction should be reversed and the proceedings remitted.

Ordered accordingly.


author: By the Court, Gould, J.

text:
    Supreme Court. Albany General Term,
    September, 1858.

      Wright, Gould and Hogeboom, Justices.
    The People v. Abraham Davis.
    An indictment charging an assault and battery with “ an intent to kill,” without also charging that the assault and battery were committed with a deadly weapon, or by such other means or force as were likely to produce death, will not , warrant a conviction for any offence higher than assault and battery.
    A verdict by which the prisoner is found “ guilty of an assault and battery with intent to kill,” without reference to a sufficient indictment, and without specifying the means by which the assault and battery were committed, will authorize no sentence for any offence beyond a simple assault and battery.
    Certiorari to the Court of Sessions of Ulster county. By the return it appeared that an indictment was found in that court against the prisoner and one James Dumond, as follows:

      State of New York, Ulster County, ss:

    The Jurors of the People of the State of New York, in and for the body of the county of Ulster, upon their oath, present:
    That Abraham Davis and James Dumond, late of the town of Kingston, in the county of Ulster, aforesaid, on the nineteenth. day of November, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms, at the town and county aforesaid, in and upon Eugene Best, of the town of Kingston, then and there being, did feloniously make an assault, and they, the said Abraham Davis and the said James Dumond, with certain clubs, one of which the said Abraham Davis and the said James Dumond, each in his right hand then and there had and held, the same being deadly and dangerous weapons, did beat, strike, cut and wound, with intent, him, the said Eugene Best, then and there feloniously and willfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Abraham Davis and James Dumond, on the said nineteenth day of November, in the said year 1857, at the place aforesaid, with force and arms, in and upon the said Eugene Best, then and there being, feloniously did make an assault; and they, the said Abraham Davis and James Dumond, with certain clubs, which they, the said Abraham Davis and James Dumond, then and there had and held in their hands, the same being deadly and dangerous weapons, feloniously did beat, strike, cut and wound, with intent, him, the said Eugene Best, then and there feloniously to kill and murder, and other wrongs then and there did, to the great damage of the said Eugene Best, contrary to the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Abraham Davis and the said James Dumond, late of the said town of Kingston, on the said nineteenth day of November, in the said year 1857, with force and arms, at the place aforesaid, in and upon the head and face of the sáid Eugene Best, feloniously did make an assault; and they, the said Abraham Davis and James Dumond, with their fists and feet, did then and there beat, strike, kick, cut and wound, with intent, him, the said Eugene Best, then and there feloniously and willfully to kill and murder, and other wrongs to the said Eugene Best then and there did, to the great damage of the said Eugene Best, contrary to the form of the statute of the State of New York, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Abraham Davis and the said James Dumond, on the said nineteenth day of November, in the said year of our Lord, 1857, with force and arms, at the said town of Kingston, in and upon the said Eugene Best, feloniously did make an assault; and they, the said Abraham Davis and the said James Dumond, with deadly and dangerous weapons, to the jurors unknown, which the said Abraham Davis and James Dumond then and there had and held in their hands, feloniously did beat, strike, cut and wound, with intent, him, the said Eugene Best, then and there feloniously and willfully to kill and murder, and other wrongs then and there did, to the great damage of the said Eugene Best, contrary to the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do fur ther present: That the said Abraham Davis and the said James Dumond, of the place aforesaid, on the said nineteenth day of November, 1857, with force and arms, in and upon the body of the said Eugene Best, feloniously did make an assault; and they, the said Abraham Davis and the said James Dumond, with deadly and dangerous weapons, to the jurors unknown, which the said Abraham Davis and the said James Dumond then and there had and held in their hands, feloniously did strike, beat, cut and wound the said Eugene Best, with intent, him, the said Eugene Best, then and there feloniously and willfully to maim, and other wrongs then and there did, to the great damage of the said Eugene Best, contrary to the form of the statute of the State of New York in such case made and provided, and against the peace of the People of the State of New York and their dignity.

      And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Abraham Davis and the said J ames Dumond, of Kingston, aforesaid, on the nineteenth day of November, aforesaid, in the year 1857, with force and arms, in and upon the said Eugene Best, feloniously did make an assault; and they, the said Abraham Davis and the said James Dumond, with their fists and feet, did then and there beat, strike, kick, cut, wound and maim the said Eugene Best, so that his life was greatly despaired of, and other wrongs to the said Eugene then and there did, to the great damage of the said Eugene Best, contrary to the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    J. D. SHAKER, District Attorney.

    The prisoner pleaded not guilty, and the cause came on for trial in said Court of Sessions, on the 13th of March, 1858.
    After the district attorney had introduced the evidence in behalf of the prosecution and rested the case, the counsel for the prisoner insisted that a conviction for assault and battery with intent to kill could not be had, on the ground that there was not sufficient evidence of such intent, and asked the court so to direct the jury. But the court refused so to direct the jury, and decided that the evidence was sufficient; to which ruling the counsel for the prisoner excepted.
    Witnesses were then examined on the part of the prisoner, and further testimony taken on behalf of the prosecution. '
    After the evidence was closed, the counsel for the prisoner again insisted that a conviction on the aforesaid indictment could not be had for assault and battery with intent to maim, or for assault and battery with intent to kill, on the ground that there was not sufficient evidence of said intent, and asked the court so to direct the jury, whereupon the court refused so to do, but decided that the evidence was sufficient; to which ruling of the court the counsel for the prisoner excepted.
    The counsel for the prisoner also asked the court to charge the jury that, as the evidence in the case shows that an injury of the kind proven might be produced by a blow or blows with the fist, that the jury ought not to infer that the injury was occasioned by a blow or blows with a deadly or dangerous weapon in the absence of proof that such weapon was used. The court refused so to charge. To which decision the counsel for the prisoner excepted.
    The court, however, did charge the jury, that if it was likely or probable that the injury to Best could have been produced by the fist, then the jury were not authorized to presume a weapon was used.' That in criminal cases the prisoner was entitled to the benefit of any reasonable doubt, and if the jury had any reasonable doubt as to his participation in the occurrence, they should acquit him; and if they had any reasonable doubt as to the intention to kill, they could only convict him of an assault and battery, provided they came to the conclusion that the defendant participated in the transaction.
    The jury found the prisoner guilty of an “ assault and battery with intent to kill.”

      Amasa J. Parker, for the prisoner.
    I. The court erred in deciding when the People rested, and again when the evidence was closed, that there was sufficient evidence of an intent to kill. This was decided as matter of law in the presence of the jury, and was in fact a charge to the jury. This decision convicted the defendant of felony. The court had no right thus to decide a question of fact. The court did not decide that there was sufficient evidence to go to the jury, but sufficient to convict. The existence of an intent to kill is a question of faqt and not of law.
    II. There was not a particle of evidence of an intent to kill, nor any evidence from which it could legally be inferred. 1. The law presumes that “ a man intends the natural consequences of his own acts ”—that is, that a man intended to do what he did do—nothing more. (Wharton's Am. Cr. L., 3d ed., 331, 292.) The defendant committed an assault and battery; he did not kill. The law will presume he intended to commit an. assault and battery, and no more. If any intent beyond the act done is claimed, it must be proved by additional circumstances, as that the prisoner had previously threatened to kill; that he used a deadly weapon, and aimed at a vital part of the body; that he had lain in wait for him, and secretly watched him, &c., &c. (Barb. Cr. Law, 87, 88; Arch. Cr. Pl., 104.) 2. Here is not only an absence of all such additional circumstances, but the circumstances of the transaction show that 'there was no intent to kill. Would a person intending to take life strike on the side of the jaw ? And with his fist ? Would he act without secrecy, in a public place, with witnesses all around in sight and hearing ? Does any one believe that Davis really intended to kill Best ? 3. There is no proof that defendant had a weapon of any kind, and the law will not presume it, especially when a witness states that jaws have been broken in prize fights with the fist. 4. “ The intent forming the gist of the offence must be specifically proved.” (Wharton Am. Cr. L., 551; 3 Harrington, Del., 577; 13 Smedes & Marsh, 242; 24 Miss., 54; Addison R., Penn., 30.)
    III. The jury found the defendant guilty of an assault and battery with intent to kill. The verdict makes no reference to the indictment to help it out. There must be something more than an intent to kill. It must be an assault made with firearms or an air-gun, or any deadly weapon, “ or by such other means or force as was likely to produce death.” (2 B. B, 665, § 36.) This is a necessary ingredient of the crime. A mere intent is not punishable in earthly tribunals. They take cognizance only when the intent is displayed in certain prescribed and very dangerous overt acts. It will not be claimed that striking with the fist on the side of the jaw was such means as was likely to produce death. The court, as well as the jury, evidently overlooked the requirements of the statute.
    IV. The court erred in refusing to charge as requested, viz.: that as it was proven the injury might be produced by a blow of the fist, the jury ought not, in the absence of proof, to infer that a deadly or dangerous weapon was used. There can be no protection for the innocent if the most material fact constituting the crime can be inferred in the absence of proof.
    V. The jury should have convicted of an assault and battery only, and not of a felony punishable by ten years’ imprisonment ; and the proceedings should be reversed and a new trial ordered.

      J. D. Shafer (District Attorney), for the People.
    I. The prisoner was legally convicted of an assault and battery with intent to kill. 1. The jury had a right to infer from the evidence that a dangerous weapon was used. 2. It appears from the evidence that both Davis and Dumond had had previous difficulty with Best, and that he apprehended an attack from them. 3. It was done on a dark and stormy night. The expression used by one of them to the other, just before the assault, as well as at the time of it, shows the existence of' a concerted murderous design between them. 4. The associations and conduct of the prisoner at that time and previous, warrant the same conclusion.
    II. If a deadly weapon is used, an intent to kill is to be inferred. If no weapon is used, then the question is, was there excessive violence. Prom continued violence and much beating, an intention to kill may be inferred. (The case of Macklin and others, 2d Lewin’s Crown Cases, 225; 4 Black. Com., 200.)
    HI. The act, taken together, shows malice, and had a fatal result attended it, it would have been murder. (9 Metcalf 93; 13 Wend., 159; 1 Rus. on Crimes, 614, note 1.)
    TV". The jury found, as a question of fact, that the prisoner did the act with intent to kill; that verdict is conclusive. 1. Where the question is one of doubt, a new trial will not be granted. (5 Wend., 48; 2 Wend., 352; 4 Yerger, 152; 1 Cow., 251; 11 Cow., 440; 6 Cow., 682; 2 Price, 282; 1 Burr., 54.) 2. The question of malice and intent to kill, if a question of fact or a mixed question of law and fact, is a question for the jury. (Wharton's Crim. Law, 637; 2 Scott, 369; 2 Stew. & Porter, 193; 1 Greenl. R., 135.) 3. The finding of the jury is conclusive on a question of fact, although it appear affirmatively that the bill of exceptions contain all the evidence. (Colt v. The People, 1 Park. Crim. R., 621, per Chan. Walworth.) 4. That the prisoner used a dangerous weapon may well have been inferred by the jury, if such inference was necessary to convict of assault and battery with intent to kill. The verdict in that case is clearly final. (People v. Vinegar, 2 Park. Crim. R., 24.)
    V. The prisoner was legally convicted of assault and battery with intent to kill, even if the crime, in case of Best’s dying of the wound, would have been manslaughter only. (1 Park. Crim. R., 327.) The change of the words “ to murder,” in the Revised Laws, to the words “ to kill,” in the Revised Statutes, shows an intention of the Legislature to extend the meaning of the term “ to kill ”to any of the ^various degrees of felonious homicide.
    YI. The court cannot be required to give an opinion or direct the jury on • a mixed question of law and fact, and a refusal to do so is no error. (Wharton's Crim. Law, 637; 2 Scott, 359; 2 Stew. & Porter, 193; 1 Greenl. R., 135.) 1. The office of a bill of exceptions in criminal cases, is to bring up for review questions of law only, made and decided on the trial. (20 Par. R., 597.) 2. Ho bill of exceptions can be taken in criminal cases to authorize a superior court to correct an erroneous opinion of the court below, or the decision of a jury upon a matter of fact. The remedy for the parly who is injured by an erroneous finding of a jury on a question of fact, is an application for a new trial on a writ of error. (11 Wend., 557; 14 Wend., 546, and cases there cited.)

    YU. For offences greater than misdemeanor, a new trial cannot be granted on the merits, whether the accused be convicted or acquitted. (People v. Comstock, 8 Wend., 549; 6th Term R., 625; Chitty's Crim. Law, 532; 13th East R.; Barb. Crim. Law, 323.)
   By the Court, Gould, J.

As I understand the prisoner’s different requests to charge, they were requests to charge the facts, and were properly refused. And as to the first one, where the judge said the evidence was sufficient, it is perfectly apparent, from the connection, that he meant merely sufficient to go to the jury.

But there are inherent in the case much more serious difficulties in the way of the conviction of a felony.

The third count of the indictment, to make it in itself good, should have after the word “ kick,” the words “ with such force as was likely to produce death,” and then a general verdict of “guilty of assault and battery with intent to kill,” as charged, in the third, count of the indictment, would probably be good. And it is worth the while of every district attorney to observe this point, and in framing his indictment for cases of assault and battery, so outrageous as plainly was that in this case, to insert a count on which a conviction that will send to the state prison may be had, without calling on the jury to presume, or find from circumstances hardly warranting such finding, that some unknown deadly weapon was used.

The offence is strictly a statute offence. (2 B. S., 665, § 36.) “ Every person who shall be convicted of any assault and battery upon another, by means of any deadly weapon, or by such other means or force as was likely to produce death, with intent to kill, &c., shall be punished,” &c. And no one can doubt that were a strong man to strike with but his fist a heavy blow on the head of a mere child, thereby inflicting severe injury and intense suffering, whether causing or not causing immediate danger to its life, he would clearly be within both the letter and the spirit of committing an assault and battery by such force as was likely to produce death; and eminently worthy of the state prison, for the longest term the law names, would be so brutal a wretch.

Still, unless the indictment were formed to meet the case, there could be no such conviction, and merely charging “ an intent to kill,” without setting forth some of the means which the statute names, will not warrant a conviction of any offence higher than assault and battery. And in this light, I am unable to see that the verdict is really one finding any grade of crime above an assault and battery; the words with intent to kill,” having added to them no reference to the indictment whereby the finding could be eked out with the statute requisitions, are merely nugatory. The true and proper way of finding a verdict in a case properly charging the statute intent, would be “ that the prisoner was guilty of the assault and battery with a deadly weapon with intent to kill,” or “by such force as was likely to produce death, with intent to kill ” the person assaulted; and the very least that would make a good verdict of guilty of the higher crime, would be guilty of assault and battery with intent to kill, as charged in the indictment.

Viewing the verdict, then, as one of assault and battery, I see no course to be taken with it but that sentence be passed for that offence.

There has been no error for which a new trial should be had, nor is there any conviction of a felony, but there is a perfectly valid conviction of the lesser offence.

Proceedings affirmed.