text:
    Supreme Court. Tompkins General Term,
    October, 1857.

      Gray, Mason and Balcom, Justices.
    The People v. George Loop.
    In an indictment for rohhery in the first degree ( 2 JS. S., 677, § 55 ), the defendant was charged vvith having feloniously assaulted J. D., on, &c., at, &c., and then and there feloniously putting him in fear and danger of his life, and then and there feloniously and violently stealing, taking and carrying away from his person and against his will, certain money of the said J. D., to wit, current bank bills of the value of fifteen dollars, and silver coin of the value of three dollars, of the goods and chattels of the said J. D., against, &c., and it was held sufficient, without setting forth the number and denomination of the bank bills and the amount secured thereby and remaining unsatisfied thereon, or the number and description of the pieces of silver coin.
    Certiorari to the Chemung Oyer and Terminer, where the defendant was convicted on an indictment, charging him with feloniously assaulting John Dickinson, on the 1st day óf October, 1854, at Elmira, and then and there feloniously putting him in fear and danger of his life, and then and there feloniously and violently stealing, taking and carrying away from his person and against his will, “ certain money of the said John Dickinson, to wit: current bank bills of the value of fifteen dollars, silver coin of the value of three dollars, of the goods and chattels of the said John Dickinson, 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, their laws and dignity.”
    The defendant’s counsel claimed that the verdict was not warranted by the evidence. He also insisted that the indictment was defective and insufficient, because it did not show the number and denomination of the hank bills that were stolen from Dickinson, or the amount secured thereby and remaining unsatisfied thereon, or the number, size and description of the pieces of silver coin that were stolen from him.

      S. B. Tomlinson (District Attorney), for the people.

      Erastus P. Hart, for the defendant.
   By the Court, Balcom, J.

The ruling of the Oyer and Terminer,' upon the offer of 'the district attorney, to give certain evidence by the witness, Rutter, was too plainly correct to require any examination by this court. And we could not say that the verdict of the jury was not warranted by the evidence in the case, if a motion to set it aside, as against .evidence, was properly before this court.

The definition of robbery at common law is, a felonious taking of money or goods, of any value, from the person of another, or in his presence against his will, by force and violence, or putting him in fear. (4 Bl. Com., 243 ; Barb. Cr. Tr., 134; Whart. Cr. L., 540.) The legislature has enacted that, “ Every person who shall be convicted of feloniously taking the personal property of another from his person or in his presence, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.” (2 R. S., 677, § 55.)

The indictment in this case charges the defendant with the crime of robbery in the first degree, and it contains all the necessary averments to make it good under the statute. If it were an indictment for larceny only, perhaps it would be insufficient, by reason of the omission of its framers to describe and state in it the number of bank bills and pieces of silver coin that were taken from Dickinson. (Low v. The People, 2 Park. Cr. R., 37; 11 Cush., 142.) But in cases of robbery, the value and description of the property stolen are not very material matters ; the gist of the offence being the force and terror. And it has been held, “ where a man was knocked down and his pocket rifled, but the robbers found nothing except a slip of paper containing a memorandum, an indictment for robbing him of the paper was held to be maintainable.” (Rose. Cr. Ev., 393; Barb. Cr. Tr., 134.) Enough is set out in the indictment against the defendant, to show that he took personal property of value from Dickinson, to wit, bank bills and specie, and that is sufficient.

If the defendant should be indicted for simple larceny, in stealing the same bills and silver coin from Dickinson, his conviction on this indictment would be a bar to the charge of larceny; and paroi evidence of the kind of bills and coin proved to have been taken by him, on his trial upon this indictment, would be admissible to establish the identity of the offences. ( The People v. McGowan, 17 Wend., 386.)

No injustice was done to the defendant on his trial. His conviction should be affirmed, and the Chemung Oyer and Terminer should be advised to pronounce judgment.

Proceedings affirmed.


source: Caselaw Access Project

author: By the Court, Pratt, J.

license: Public Domain

text:
    Supreme Court. Onondaga General Term,
    October, 1857.

      Hubbard, Pratt, Bacon and W. F. Allen, Justices.
    The People v. Mary Shea.
    A conviction for misdemeanor, before a Court of Special Sessions, cannot be reviewed on a return to a writ of habeas corpus.

    Where it appears, by a return to a writ of habeas corpus, that the prisoner in whose behalf it was sued out is detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, it is the duty of the officer before whom the writ is returned forthwith to remand the prisoner.
    Where a statute prohibits an act which is not criminal at common law, and imposes a civil penalty for its commission, the act is not indictable; but ifj at the time of the enacting of the statute, it was already prohibited by a former statute, and the statute imposing the penalty contains provisions showing that the legislature did not intend that the civil penalty should constitute the only punishment, it may, in addition to the penalty, be also punished as a misdemeanor.
    Selling liquor without a license is an indictable offence, and punishable as a misdemeanor, under the act of April 16,1857, entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors.”
    Certiorari to the county judge of Onondaga county. The facts are sufficiently stated in the opinion of the court.

      Henry S. Fuller (District Attorney), for the people.

      John C. Hunt, for the defendant.
   By the Court, Pratt, J.

—The defendant was convicted under the new license law, before a Court of Special Sessions, for selling liquor without a license, and sentenced to pay a fine, or in default thereof to be imprisoned in the county jail. On application in behalf of the prisoner, the county judge of Onondaga county issued a writ of habeas corpus, and upon the prisoner being brought before him, it was insisted on her behalf that the offence was not a misdedemeanor under the statute; but the county judge overruled the objection, and remanded her to the custody of the jailor.

This certiorari was sued out to review his decision.

Assuming the decision of the Court of Special Sessions to be erroneous, it could not be reviewed upon the return to a habeas corpus. By the statute of the state, persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment or decree, are not entitled to prosecute that writ; and if it appears, upon the return of such writ, that the person is thus committed or detained, the officer suing the writ is directed forthwith to remand him. A court of Special Sessions is clearly a court of criminal jurisdiction, and the commitment was by virtue of a final judgment of that court. The county judge was, therefore, for this reason, right in remanding the prisoner. (2 R. S., 563, § 22; id., 567, § 40.)

But as this is an important question under the new excise law, and one that will frequently arise before subordinate tribunals; we deem it expedient to examine it upon the merits, in order that there may be an early settlement of the question.

It is well settled that where an act is prohibited by statute which is not criminal at common law, and a penalty is imposed in the same statute declaring such prohibition, the act is not indictable. This principle was distinctly recognized in the case of The People v. Stevens (12 Wend., 347), It is based upon the assumption that the legislature, having fixed the penalty at the same time of prohibiting the act, designed that there should be no other punishment; but where the act was criminal at common law, or already prohibited by a former statute, the imposition of a civil penalty would not take away the power to punish by indictment. So, when the statute itself contains any provisions showing that the legislature did not intend that the civil penalty should constitute the only punishment, the remedy by indictment would not be taken away.

Hence, if a statute direct that the prosecution may proceed in a certain way or otherwise, as if a statute give a recovery by action of debt, bill, plaint or information, or otherwise,- it authorizes a proceeding by indictment. (Arch. Cr. Pl., 1, 2; 2 Hawk., ch. 25, § 4.)

In fine, it is simply a question of legislative intent. In looking, therefore, at the statute in question, in its whole scope and bearing, and in connection with previous legislation upon the same subject, can we infer an intention on the part of the legislature to confine the remedy for a violation of its provisions in selling without license to the civil penalty therein imposed, or ■ is the intention manifest that the offender shall also be punished by indictment? Upon a careful examination of the statute, it seems to me that the conclusion is irresistible that the latter was the intention of the legislature.

First. This act, in its leading characteristics, is very similar to the old excise laws, both in its prohibitions and its penalties.

Under those laws, the selling in quantities less than five gallons was prohibited by penalties in substantially the same form as in the present act. By an independent section of that act, all. offences against provisions were declared misdemeanors, and this court, in the cases of The People v. Stevens (13 Wend., 341), and The People v. Brown (16 id., 561), held that selling the prohibited quantities without license were offences' against the provisions of the act, and therefore misdemeanors, and indictable.

If, therefore, selling without license constituted offences against the provisions of that act, it is difficult to find any good reason why similar violations of the present statute should not also be deemed offences against its provisions. And, although such offences are not, by this statute, declared in express terms to be misdemeanors, yet the whole scope of the statute shows that they were designed to be indictable.

By section sixteen it is made the duty of certain officers, therein enumerated, to arrest “all persons found actually engaged in the commission of any offence in violation of this act, and forthwith to carry such persons before any magistrate,” &c., who is to try them or hold them to bail as for any other misdemeanor triable by a Court of Special Sessions.

In a subsequent part of the same section it is made the duty of “the magistrate to entertain any complaints of a violation of this act, made by any person under oath, and forthwith to issue a warrant and cause such offender to be brought before him to comply with the provisions of this section,” &c. Here, the term used is “ any complaint of a violation of this act,” and upon such, complaint being made a warrant is to be issued. The term “ offence,” which the counsel for the prisoner insists only means those violations of the law declared in the act itself to be misdemeanors, is not used, but the more general term “ violations of the act,” and the proceedings directed to be taken by the magistrate are such as are applicable to cases of misdemeanors only.

So, by section twenty-ninth, it is made “the duty of courts to instruct grand jurors to inquire into all offences against the provisions of this act, and to present all offenders under this act.”

These provisions show that the legislature deemed all offences against the provisions of the act misdemeanors as plainly as if they had in express terms declared them such.

The act of selling without license is called, in those sections of the statute imposing the penalties, offences.

By section thirteenth it is declared that whoever shall sell any strong or spiritous liquors or wines, in quantities less, &c., shall forfeit $50 for each offence. By section fourteenth, whoever shall sell to be drank in his house, &c., shall forfeit $50 for each offence. In fine, all through the statute, violations of the provisions of the act are termed offences. And it is a primary rule for the interpretation of statutes, that when the same term or expression is used in different parts of the same statute, it shall be deemed to have the same meaning, unless the contrary very plainly appears to have been the intention of the legislature. (Smith on Stat., 673; James v. Dubois, 1 Har., 282.)

The term offences against the act, in its ordinary significations, would embrace any violation of the act. The general statutory definition, as given in the Revised Statutes, which is invoked by the prisoner’s counsel in aid of the construction insisted upon by him, throws but little light upon the point. By that statute the term “ offence,” when used in a statute, shall be construed to mean any offence for which any criminal punishment may by law be inflicted. Now, the question in. controversy is, whether this particular violation of the act is punishable criminally. If so, the term offence applied to it would be in strict accordance with the statutory definition of the term.

Again, as it already appears, the act itself calls this violation an offence. Now, if the statutory definition of that term is of any force whatever to settle the question under examination, it is against the construction contended for on behalf of the prisoner. For the' term, when used in any statute, is to be construed to mean any offence for which any criminal punishment maybe inflicted. (2 R. S., 886, § 37.)

Upon the whole, I am satisfied that it was not the design of the legislature to limit the punishment for the violation of the act in question to the penalty imposed therein, but to authorize a proceeding by complaint before a magistrate, or by indictment.

Proceedings affirmed.


author: Roosevelt, J.

text:
    Supreme Court. At Chambers. New-York,
    November 23, 1857.
    Before Roosevelt, Justice.
    The People v. John B. Holmes.
    A stay of proceedings on a conviction in a criminal case till a decision on writ of error, is a matter of discretion.
    The prisoner had been convicted of forgery, and sentenced to imprisonment in the state prison for the term of fifteen years and six months. Exceptions having been taken, his counsel applied to Mr. Justice Roosevelt for a stay of proceedings on the conviction till a decision should be had on a writ of error.

      J. B. Phillips, for the prisoner.

      A. Oakey Hall (District Attorney), for the people.
   Roosevelt, J.

Holmes, it appears, was convicted and sentenced in the General Sessions for the crime of forging his wife’s name to a deed of real estate. He now applies, on various grounds, for a writ of error to bring the judgment into the Supreme Court for review, and, in the mean time, to stay all proceedings. Writs of error in such cases are declared by the statute to be writs of right, and to issue, of course; but the same statute also declares that they shall not stay or delay the execution of the judgment, or of the sentence thereon, unléss allowed by a justice of the Supreme Court, with an express direction to that effect.

It will thus be seen that the prisoner has a strict right to the review, but not to the stay. The stay is a matter of discretion, to be exercised only on good cause shown. Of what avail, it may be said, will be a review after imprisonment has been suffered ? On the other hand, of what avail, it may be asked, would be criminal trials, if in every case the execution of the sentence were to be delayed by review at the mere option of the criminal? No man sentenced either to death or imprisonment would voluntarily submit. Writs of error would be universal. Promptitude and certainty, so essential to the punishment of crime, would be entirely defeated, and the whole register of criminal administration would soon become paralyzed.

The objections made to the present indictment are of a purely technical character ; they in no degree affect the substance of the crime charged.

The prisoner executed a deed of real estate. Not being able to procure the genuine signature of his wife, so as to pass her claim of dower, he forged a signature for her, and superadded the crime of personation, to impose, first on the commissioner who took the sham wife’s acknowledgment, and then upon the purchaser, who innocently accepted the sham wife’s deed.

Does such a case address itself to the favorable consideration of a judge to whom the law has confided the exercise of a sound discretion ? I think not; and must, therefore, deny the application, and leave the sentence to take its course.


author:
Clerke, J.
      Peabody, J. Mitchell, J.

text:
    Supreme Court. New-York General Term,
    November, 1867.

      Mitchell, Clerke and Peabody, Justices.
    Elijah Hunt, plaintiff in error, v. The People, defendants in error.
    Where, on the trial of an indictment for manslaughter, alleged to have been committed in causing death by effecting an abortion, it was shown that the defendant had said to A. A., who was on her way to see Mrs. L., then stated to be pregnant, that he would effect an abortion upon Mrs. L. for $26, and it appeared that A. A. went immediately to the residence of Mrs. L.; held, that it was not erroneous to permit the prosecution to prove the fact that a conversation on the subject took place between A. A. and Mrs. L., without staling the details of the conversation, though the defendant was not present.
    And inasmuch as it further appeared that Mrs. L. returned with A. A. immediately to the place of defendant, where the defendant operated on Mrs. L. and produced the abortion, and it appeared satisfactorily that the defendant bad intended that what he said should be communicated by A. A. to Mrs. L. though it was not authorized in express terms; held, further, that it would have been competent to prove that A. A. communicated to Mrs.L. what the defendant had said on the sutgect, and to give the details of such communication. Per Clerke, J.
    A witness, called and examined on behalf of the defendant, having testified, without objection from the district attorney, to a conversation she had with the deceased Mrs. L. a day or two before her death, during which the deceased informed the witness that her illness was caused by miscarriage, and that the miscarriage had been brought about by natural causes; held, that though such evidence would have been inadmissible if objected to, yet, having been received, it was competent for the district attorney to meet it by proof that the deceased was out of her mind when she made such declarations. ,
    The declarations of a party as to the state of his health are, under some circumstances, admissible in evidence in his own behalf, but they are confined to his condition at the moment of speaking, and cannot be extended to past matters.
    Where, on the trial of an indictment, evidence had been improperly received and excepted to, and it appeared that the jury was subsequently instructed by the court in its charge to disregard such evidence, it was held that the erroneous decision in receiving the evidence was no ground for reversing the judgment.
    Form of an indictment for manslaughter in the second degree, for causing death by effecting an abortion, with a count for a misdemeanor in using an instrument with intent to procure a miscarriage.

      Error to the Court of General Sessions of New-York. The plaintiff in error was indicted in the Court of General Sessions for manslaughter in the second degree, under part four, chapter one, title two, article one, section nine of the Revised Statutes, with a count for a misdemeanor under section two, article nine, title three of the same chapter.
    The indictment was in the following form:

      City and County of New - York, ss:

    The jurors of the people of the State of New-York, in and for the body of the city and county of New-York, upon their oath, present: That Elijah Hunt, late of the tenth ward of the city of New-York, in the county of New-York aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and fifty-seven, at the ward, city and county aforesaid, in and upon one Hannah Lawson, she, the said Hannah Lawson, being then and there pregnant with a quick child, feloniously and willfully did make an assault, and that he, the said Elijah Hunt, did then and there feloniously and willfully use on, in and upon the womb and body of the said Hannah Lawson, the mother of the said quick child, a certain instrument, to wit, a piece of steel wire, of the length of six inches, with the intent thereby to then and there destroy the foetal life of the said quick child, and the same not being necessary to preserve the life of her, thssaid Hannah Lawson, the mother of the said quick child. And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Hannah Lawson, by means of the said use of the said instrument, willfully and feloniously aforesaid, upon her womb, by the said Elijah Hunt, became mortally wounded and distempered, and of the said mortal wounding and distempering languished from the day first aforesaid until the twenty-first day of the same month aforesaid, in the same year aforesaid, when she, the said Hannah Lawson, of the said mortal wounding and distempering, died. And so the jurors aforesaid, upon their oath aforesaid, do say that he, the said Elijah Hunt, willfully and feloniously, by the means and in the manner aforesaid, her, the said Hannah Lawson, on the day and in the year last aforesaid, did kill and slay, against the form of the statute in such case made and provided, and against the peace of the people and their dignity.

      Second count.—And the jurors aforesaid, upon their oath aforesaid, do further present: That, on the day and in the year first aforesaid, he, the said Elijah Hunt, willfully and maliciously did use a certain instrument of steel wire of the length of six inches in and upon the womb of her, the said Hannah Lawson, at the ward, city and county aforesaid, she, the said Hannah Lawson, being then and there big and pregnant, within her said womb, with a child, with the intent thereby to cause the said child of her, the said Hannah, to be forcibly delivered from her said womb, before the natural time of delivery thereof, and to cause her, the said Hannah Lawson, thereupon to miscarry of the said "child from the womb, against the form of the statute in such case made and provided, and against the peace of the people of the State of New-York and their dignity.
    A. Oakey Hall,

      District Attorney.

    The defendant pleaded not guilty, and the issue so joined came on to be tried, on the 22d day of April, 1857, before James M. Smith, Jr., Recorder, and a jury.
    During the trial, John Bigelow, a physician, was called as a witness by the prosecution, duly sworn and testified: That he knew Mrs. Lawson, the deceased, in her lifetime; that he commenced attending her professionally on the 17th day of January, 1857, and that she died on the twentieth day of that month.
    During his examination, as a witness, he was asked, by the district attorney, whether he, the witness, when he first called to attend her professionally, as above stated, found any medicine with her ?
    The counsel for the prisoner objected to this question, on the ground that there was no evidence showing or tending to show any agency of the defendant in giving to the said Mrs. Lawson the medicine alluded to by the said question, or in procuring it t,o be given to her. The court overruled the objection and allowed the question to be answered, saying that it could not foresee what would be the testimony as to whether this was given to her by the defendant; to which said decision of the court the counsel for the prisoner excepted.
    The witness thereupon testified: That upon that occasion he found with the said Mrs. Lawson medicine known as the oil of rue.
    The district attorney thereupon asked the witness to state the effects of the medicine in reference to producing abortion; to which question the counsel for the defendant objected.
    The court overruled the objection and allowed the question to be answered, to which decision the counsel for the defendant duly excepted.
    The district attorney asked the witness to state what the bottle containing the medicine in question was marked.
    The counsel for the defendant objected to this question. The court overruled the objection and allowed.the question to be answered, to which-decision the counsel fat the defendant duly excepted. , ...
    There was not, during the trial, any evidence showing or tending to show that the defendant gave the medicine, oil of rue, or caused it to be given to her, and the court instructed the j ury in its charge to disregard it.
    During the trial, one Mrs.- Ann Armitage was introduced as a witness-on behalf of the-prosecution,: who -testified: That she knew the defendant, Hunt; that his occupation was that of curl and wig maker; that he had in his employ, at his place of business, 115 Bowery, one Ann Dalton; that she, the witness, about two weeks before the holidays, in December, 1856, called at defendant’s said place of business; that she stated to Ann Dalton, in defendant, Hunt’s, presence, that she was going to see a friend of hers who was in trouble; that Ann Dalton asked her what trouble, to which she replied that-her friend was pregnant; that defendant, Hunt, then said that he would relieve her friend of her difficulty for $25.
    The district attorney subsequently, proposed to show by this witness, that she detailed this conversation to the deceased Mrs. Lawson; that, in consequence, Mrs. Lawson and the witness returned immediately to the place of defendant, and that defendant operated oil the deceased with an. iron wire, which was produced.
    The counsel for the prisoner objected to the fact of the conversation between the deceased Mrs. Lawson and the witness, in the absence of the defendant, Hunt. The court overruled the objection, and allowed the fact of such conversation, but not its details, to be given; to which decision the counsel for the defendant excepted.
    In the course of the trial the said Ann Dalton was called as a witness by the defence and duly sworn. Among other things, she testified, without objection by the district attorney, to a conversation she had with the deceased in January, and but a day or two before her death, during which the deceased informed this witness that her illness was caused by a miscarriage, and that the miscarriage had been brought about by natural causes. The witness stated that at the time of the conversation she was alone in the room with the deceased.
    Subsequently, the witness Dr. Bigelow was recalled by the prosecution and stated that it was during one of his professional visits to deceased that the witness Ann Dalton saw her as above stated; that he, the witness, was out of the room at the time.

      The district attorney asked the witness what, in his professional opinion, at this time, was the state of mind of the deceased?
    The counsel for the defendant objected to the question; the court overruled the objection and allowed the question to be answered; to which decision the counsel for the defendant also excepted.
    The witness then answered that the deceased at this time was out of her mind.
    The jury found the defendant guilty of the felony charged, and he was sentenced to imprisonment in the state prison, at hard labor, for the term of four years; whereupon the .cause was removed into the supreme court by writ of error. The cause was argued by

      Henry L. Clinton, for the plaintiff in error.

      A. J. Vanderpoel, for the people.
   Clerke, J.

The defendant was indicted at a Court of General Sessions, for effecting an abortion upon one Hannah Lawson, by which she became mortally wounded, and, in consequence, languished and died.

It was proved at the trial, by Ann Armitage, “ that she went to defendant’s place of business; that she stated to one Ann Dalton, in the defendant’s presence, that she was going to see a friend of her’s who was in trouble; that Dalton asked her what trouble, to which she replied that her friend was pregnant; that defendant Hunt then said that ‘ he would relieve her friend of her difficulty for twenty-five dollars.’ ” The district attorney subsequently proposed to show by this witness that she detailed the conversation to the deceased Mrs. Lawson; that, in consequence, Mrs. Lawson and the witness returned immediately to the place of defendant, and that defendant operated on the deceased with an iron wire, which was produced.

The counsel for the prisoner objected to the fact of the conversation between the deceased Mrs. Lawson and the witness, in the absence of the defendant Hunt. The court overruled the objection, and allowed the fact of such conversation, but not its details, to be given; to this decision the counsel for the prisoner objected.

If the judge meant that the witness should testify merely that a conversation had taken place between Lawson and the witness, we cannot see on what grounds the counsel could have presented even the color of an objection, except that, as the conversation between her and Hunt had been previously detailed, that the effect produced on the jury was the same as if she was allowed to repeat it, as she had afterwards communicated it to Mrs. Lawson. But, we are strongly inclined to think, even if the judge had allowed this, there would have been no error. The conversation referred to in the objection was merely a communication by the witness to Mrs. Lawson that Hunt said “ that he would relieve her of her difficulty for twenty-five dollars.” There is no proof, to be sure, that Hunt authorized the witness, in positive terms, to give this information to Mrs. Lawson; but he declared, in the presence of Mrs. Armitage, her friend, who was describing “ her trouble,” that he would relieve her for a certain compensation, and he certainly imposed no silence on Mrs. Armitage in relation to the subject, but, on the contrary, by the terms of the proposal itself, he must necessarily have designed that it should be conveyed to the person who was to accept or reject it.

But, although the conversation (if that can be called a conversation, which, in fact, was only the repetition of what the defendant had said) was perfectly admissible, yet it was, practically, of very little importance in the present case whether it was admitted or not. The offence was clearly proven, and could have been as clearly proved with or without- any portion of the conversation first detailed or afterwards repeated. The same witness proved that Mrs. Lawson “went to the place of defendant, and that defendant operated on the deceased with an iron wire,” which was produced at the trial. This was, of itself, abundantly sufficient for the jury, without the necessity of referring to anything that had been previously said or done.

The next objection urged before us by defendant’s counsel is, that Ann Dalton, who was called on behalf of the defendant, testified, without objection by the district attorney, to a conversation she had with the deceased a day or two before her death ; during which the deceased informed her that her illness was caused by a miscarriage, and that the miscarriage had been brought on by natural causes. This was received for the benefit of the defendant as the declaration of the party alleged to have been injured; the district attorney not insisting upon the right to have it shown that at the time she made the declaration she thought she could not recover. He had a right to dispense with this if he had a right to insist upon it, and his dispensing with it was nothing more than a consent that the declaration should go to the jury for what it was worth, with the same effect as if it was shown that it was the declaration of a person conscious of approaching death. Had not the district attorney, on the other hand, the right to rebut the effect of this testimony, by showing the state of mind of the deceased at the time she made the declaration ? The defendant’s counsel insists that, although the declaration was introduced by himself, for the benefit of his client, still as it was error to receive the declaration of a third party, without showing that she believed she was dying, it is a double error to attempt any refutation of the declaration, and that the whole should be expunged. This was not collateral testimony; it was direct; it tended to show whether the operation produced the death of Mrs. Lawson, and it was one of the issues in tjie cause. Even if it were improper as hearsay testimony, without showing that the declarant believed that she was about to die, yet, as the district attorney, by withholding his objection, recognized it as proper evidence, and as the defence introduced it as proper evidence, the verdict cannot be disturbed on the ground that the declaration was hearsay evidence, and although it went to the jury the disproof of it was not admissible. But it is very doubtful, even if the district attorney had objected to the declaration on the ground to which I have referred, whether the objection could have been sustained. The declaration did not relate to any previous occurrence to which Mrs. Lawson could testify as a witness at the trial; but she spoke of the state of her health and the nature.of her distemper. The representations of deceased persons as to the state of their health, where relevant to the issue, have been frequently received, without proving that they were made under the belief of approaching death. (Aveson v. Lord Kinnaird, 6 East, 188, 198, 1 Phil. Ev., 233.) The judges held the evidence unexceptionable on general principles, as the account of the deceased person concerning her existing state of health, which was the subject of inquiry. So, inquiries by medical men, with the answers to those inquiries, are evidence of the state of health of the patient at the time. What a man has said of himself to his surgeon is evidence in an action of assault and battery to show what he has suffered in consequence of the assault. In an action for breach of warranty of the soundness of a slave, his declarations, that he had a pain in his side, by which the disease was detected, were held to be admissible. (Grey v. Young, 4 McCord, 38.) These and several other cases which could be quoted, stand on the doctrine of res gestee. In fact, it is an elementary principle in the law of evidence that the representations of a sick person, of the nature, symptoms and effects of the malady under which he is laboring at the time, are received as original evidence. They are not comprised within the definition of hearsay evidence. (1 Greenl. Ev., § 102.)

The judgment of the General Sessions should be affirmed.

Peabody, J.

I do not know that I should agree with nay learned brother that the statement of deceased was admissible as evidence, if it had been objected to. I think that I should not, but should consider it inadmissible. The statements of persons as to their feelings or health are, as is shown by the cases cited by him, often admitted as evidence to show the state of health at the time of speaking, many of the symptoms and indicia of which can only be ascertained by communication from the patient. Such, for instance, are the sensations at the moment of the inquiry, as a pain of a peculiar kind, or in one or another part of the sufferer, as to which the statements of the party, like his actions and movements in reference to it, are deemed to be somewhat involun- ■ tory, and therefore truthful, and for this reason, as well as from the necessity of the case, are admitted as evidence of the facts stated. But it is only as to the then present state of the party or his feelings that that kind of evidence is admissible. In this case the deceased undertook to state a fact occurring sometime before, and that not even a matter of her own personal experience which would in its own nature necessarily be known only to herself, but to tell what, occuring at a previous time, had produced the then present state of her health; and, as to this matter, I think that her declarations were not admissible on any ground, unless made in extremis, which this was not.

I concur with him, however, in the result to which he has arrived.

Mitchell, J.

I am of opinion that when one party has introduced improper evidence, the court may allow his opponent to meet it, either by contrary or explanatory proof, or other matter of fact, or by denying its legality; especially if the party who introduced the proof does not withdraw it. The members of the court do not disagree as to the rule of law governing the admission of declarations of a party as to the state of his health : that they are confined to his conditian at the moment of speaking, and cannot be extended to past matters. As to the former, they are presumed to be necessarily without design, and as truthful as the involuntary motion of the hand to the aching head or the painful side, or the gentle sigh, the heavy groan or the falling tear. The exclamation of the Shunamite boy , when, overcome with the heat in the harvest field, he said to his father, “ My head, my head,” and was carried home and died, was as satisfactory evidence of his suffering as his own testimony in court would have been.

Judgment affirmed.

       2 Kings, ch. iv., v. 19.


author: By the Court, Marvin, J.

text:
    Supreme Court. Erie General Term,
    November, 1857.

      Davis, Greene and Marvin, Justices.
    The People v. Andrew J. Nichols.
    Thirty-four tons of pig iron, in bars, each weighing about one hundred pounds, were intrusted to a common carrier, to transport on the canal from Albany to Buffalo. On the passage, the carrier stopped his boat in the night, and, with the assistance of one of his hands, and with a felonious intent, put off from the boat one hundred bars of the iron, and then proceeded and delivered the remainder of the iron at Buffalo; held, that the facts did not constitute larceny at common law, but that the carrier was guilty of embezzlement, under 2 Revised Statutes (p. 679, § 62).
    Held, also, that a trial and acquittal for larceny, on these facts, was no bar to a subsequent conviction for embezzlement on the same facts.
    The defendant was indicted in November, 1856, for the larceny of pig iron. He was tried in the Oyer and Terminer, in December, 1856, and acquitted. He was immediately indicted for embezzling and converting to his own use, without the consent of the owner, certain pig iron. Also a count for secreting and making way with, with intent then and there to embezzle and convert to his own use, the said personal property. The counts in this indictment allege the delivery of the iron to the defendant, as a carrier, to be carried from Albany to Buffalo for hire.
    The defendant plead: First. Not guilty; Second. The previous acquittal of the offence charged; Third. The previous acquittal, setting forth the previous indictment, and asserting that the acts and offences charged in the two indictments were the same, and that the same evidence which would support the one would support the other. The people took issue upon the second plea, viz., that the offences charged were the same. To the third plea, the people demurred, and the defendant joined in the demurrer. The court overruled the demurrer, and the issues were tried, and the defendant was convicted.
    From the bill of exceptions it appears that George W. Brown contracted with the defendant for the transportation of a boat load of iron from Albany to Buffalo, at the compensation of nine shillings a ton. About thirty-four tons of pig iron, in bars, each weighing about one hundred pounds, were put upon the boat at Albany. On the passage, the defendant stopped his boat, and, in the night of the 10th of November, 1856, with the assistance of one of his boatmen, put off from the boat about one hundred bars of the iron, being about five tons. The remainder of the iron was taken by the defendant to Buffalo, and there properly delivered. Evidence was given tending to show that the taking was with a felonious intent. The counsel for the defendant moved he be discharged, on the ground that the offence proved was larceny, and not embezzlement, as charged in the indictment; The motion was denied, and the prisoner excepted. The court charged that the crime was embezzlement, if the jury believed the witnesses, and the prisoner excepted. The court refused to charge, as requested, that the evidence did not establish the crime of embezzlement, and the prisoner excepted. The verdict was “ guilty.”

      William, Dorsheimer and Benjamin Austin, for the prisoner..

      A. Sawin (District Attorney), for the people.
   By the Court, Marvin, J.

If, from the evidence upon the trial, a jury would have been authorized to convict the prisoner of larceny, the conviction upon the present indictment is erroneous. In other words, if the prisoner could have been convicted upon the first trial, his acquittal upon that trial was a good bar to the second indictment. The question then is, do the facts show a larceny or embezzlement ? Larceny is defined to be the felonious taking and carrying away of the personal goods of another (4 Bl. Com., 229), or the wrongful and fraudulent taking and carrying away, by one person, of the mere personal goods of another, from any place, with a felonious intent to convert them to the taker’s own use, and make them his own property, without the consent of the owner. (2 East’s P. C., 553; 2 Russ. on Cr., 2.)

From these definitions it is seen that there must be a taking, and this implies that the consent of the owner of the goods is wanting. If the owner of the goods deliver them to the offender upon any trust, a violation of the trust will not afford any ground of a larceny. It was early established as law that if a man deliver goods to a carrier to convey to á certain place and he carry them away it is no felony (larceny). (East Pl. C., ch. 16, § 115.) It was also established at an early day that if the carrier have a bale or trunk delivered to him, and he break the bale or trunk and carry away the goods with the intent to steal them, he will be guilty of larceny.

This distinction proceeded upon the ground that by breaking the package, bale or trunk, the delivery of the owner and the trust ceased, and the taking of the goods from the violated package, &c., was, if felonious, a taking within the definition of the crime of larceny. Many cases have been decided upon this distinction, and with little difficulty. (1 Hale Pl. C., 504, 505; Rosc. Cr. Ev., 598; Russ. on Cr., 56, et seq.) A few cases have arisen, however, in which there have been difficulties in determining the precise character of the offence, under the distinction above stated. We have been referred to some of them. The prisoner’s counsel rely very much upon the case of Rex v. Howard, 7 C. & P., 325.) The prisoner was employed to carry stoves ashore in his boat. The prisoner never landed two of the stoves. He concealed them in the bottom of his boat under some nets. “ One of the stoves which he landed he carried to his mother’s house.” He was indicted for stealing three stoves. Justice Paterson decided that the prisoner was a bailee of the stoves. That point having been made, he then Says: “If the prisoner had not taken the stoves out of the boat, the mere non-delivery of them would not have amounted to larceny; but the prisoner’s separating one of the articles from the rest, and taking it to a place different from that of its destination, was, if he did it with intent to appropriate it to his own use, equivalent to breaking bulk; and therefore, would be sufficient to constitute a larceny. I shall leave it to the jury to say whether the prisoner removed the stave to his mother’s with intent to convert it to his own use.” The case is briefly reported, but it shows clearly that the prisoner was indicted for stealing stoves; two of them he never landed, but he concealed them in the bottom of his boat under .some nets. One of the stoves which he landed he earned to his mother’s house. The judge did not submit to the jury the question touching the two stoves which the prisoner did not land, but concealed in the bottom of the boat, and why not ? Because he held that the non-delivery, though the prisoner had secreted them did not amount to larceny; that is, there had been no felonious taking within the definition of larceny, the stoves having been intrusted to the prisoner as a bailee to carry them “ashore in his boat.” But as the case shows, the prisoner, landed one of the stoves and carried it to his mother’s house, and he left it to the juiy to say whether the prisoner removed the stave to his mother’s with intent to convert it to his own use. Upon landing the stoves the bailment was at an end, and any taking after that would, within all the cases, be a sufficient taking to constitute larceny. The judge talks about separating one of the articles from the rest, and taking it to a place, different from that of its destination, if done with intent to appropriate it to the prisoner’s own use, being equivalent to breaking bulk. He does not speak of breaking packages, bales or trunks, but as equivalent to breaking bulk.

But in fact, as I understand the case, those remarks of the judge were not called for. If the prisoner had landed the stave, and then took it to his mother’s with intent to convert it to his own use, he was guilty; and the only question submitted to the jury was, whether the prisoner removed the stave to his mother’s with such intent. That such is the proper construction of this case, see Rex v. Fletcher and others (4 C. & P., 545), tried by the same judge. The goods were delivered to the prisoner to be carried to a certain house. They were not carried to such house, but were found at the house of a third person, having been taken out of the packages in which they had been packed by the prosecutor : Paterson, J., said, There is no evidence that the packages were opened while in possession of the prisoners, and a carrier cannot be guilty of larceny unless he breaks bulk, and referred to Rex v. Madox. The case was this: the prisoner received two hundred and eighty casks of butter to carry in his ship; on the passage he disposed of thirteen casks, and upon a case reserved, the court held that there was no larceny. The question turned upon the taking; and it was held that there was no breaking of a package, bale or box, or breaking of bulk. (Russ. & Ry., 92; 2 Russ. on Cr., 60.) This case is in point. The bars of pig iron were as separate and disconnected from each other as were the different casks of butter. A cask of butter was a package by itself, and so was a bar of pig iron weighing one hundred pounds. In other words, the bars of iron did not constitute a package or bale, and the breaking of one bar of iron from the other bars was not the breaking of a package, bale or bulk. In Rex v. Peatley (5 C. & P., 533), three trusses of hay were intrusted to the prisoner to carry. The prisoner took one of the trusses away, and it was found in his possession not broken up. Justice Parker held it no larceny, as the prisoner did not break up the truss. These cases show that the taking by a carrier of one package entire, from other packages, is not a taking within the definition of larceny, unless the package taken be broken, and this rule was applied to trusses of hay and to casks of butter. In my opinion, the bars of pig iron in this case were as separate and distinct from each other as were the casks of butter or the trusses of hay. I am therefore of the opinion, that the prisoner could not have been convicted for larceny under the first indictment. He was properly convicted under the second indictment, which was drawn under the 2 Revised Statutes (p. 679, § 62), which relates to the taking, embezzling or converting, &c., to their use, by carriers, or other persons, the goods of others delivered to them to carry for hire. The punishment is to be the same as if the prisoner had taken, embezzled, converted or secreted such goods or other personal property after breaking the trunk, box, bale or other thing containing the same, or after separating any of them from the other. Our attention was called by the counsel for the prisoner, to the last clause of this section, “or after separating any of them from the otherand it was suggested that this language showed that there were cases of larceny of goods after separating some of them from others. There is no attempt by the statute to change the common law of larceny, and we must go to the common law to ascertain what constitutes larceny; and we have no difficulty.in applying this language of the statute, without holding that the taking by a carrier of a cask of butter from other casks, or a truss of hay from other trusses, or a bar of pig iron from other bars, is a larceny. Besides, the object of the section is broader than the argument supposes. It relates to carriers, and their punishment is to be the sames as if they had taken, embezzled, converted or secreted such goods. On turning to the revisors’ notes to this section, it will be seen that they stated the common law as to the taking, and the effect of it upon carriers, and they declare their object to be to “ place carriers precisely on the same footing with servants,” which they “ conceive is their true legal character.”

The prisoner was properly convicted, and the conviction should be affirmed.


text:
    Supreme Court. Erie General Term,
    November, 1857.

      Davis, Greene and Marvin, Justices.
    Charles H. Plato, plaintiff in error, v. The People, defendants in error.
    Where a person was arrested on a warrant issued by a justice of the peace under the Revised Statutes, and chapter eighty-six, section fourteen of the Laws of 1855, as a disorderly person, for making a noise and disturbance of the public peace, &c., in a public place, and on being brought before such justice, pleaded guilty, and was thereupon sentenced to three months imprisonment in the county jail, and to pay a fine of $25, and afterwards removed the proceedings by certiorari into the Supreme Court, and claimed a reversal of the conviction on the ground that it was an infringement of the provisions of the state constitution,, securing a right of trial by jury, and declaring that no person shall be deprived of life, liberty or property without due process of law (Const., art. 1, §§ 2 and 6), it was held, that no such question could be raised on the record, the plaintiff in error having pleaded guilty, and that to have put himself in a position to raise the constitutional question, he should have pleaded not guilty, and demanded a trial by jury, or offered to give bail to appear before the next grand jury to answer to the charge, and the conviction was affirmed.
    Certiorari to a justice of the peace. Complaint was made on oath to the justice, that Plato was a disorderly person within the intent and meaning of chapter eighty-six, section fourteen of the Laws of T855, and the Revised Statutes; for that Plato, on the 18th day of July, 1856, in, &c., made a noise and disturbance of the public peace, and did quarrel and fight in a public place, and in view from a public place in said village (Niagara City), to wit, at, &c. The justice issued his warrant, in which the substance of the complaint was recited, and Plato was arrested and taken before the justice. The justice read the complaint to him as stated in the warrant, and the defendant pleaded not guilty, and upon his application the cause was adjourned to the next day, when the defendant appeared and withdrew his plea of not guilty, and plead guilty to the charge in the warrant. The justice then adjudged and ordered that Plato be imprisoned in the common jail of Niagara county for the term of three months, and that he pay a fine of $25, and that he stand committed until the fine should be paid, or until he should be discharged by due course of law.
    Plato sued out a certiorari for the purpose of reversing the conviction and sentence.

      A. W. Brazee, for the people.

      A. P. Floyd, for Plato.
   By the Court, Marvin, J.

Plato objects that the law under which he was convicted and sentenced is unconstitutional, and therefore void. The act is an act to amend an act to provide for the incorporation of villages, so far as relates to the village of Niagara City, in the county of Niagara, passed March 26, 1855.

By the fourteenth section of the act (Laws of 1855, 129), it is declared that, in addition to those persons described in section one, title five, chapter twenty of the Revised Statutes, all riotous persons, or persons found quarreling or fighting in any alley, street or lane, or in any public place, or in view from any public place, street, lane or alley in said village; any person who shall make an indecent exposure of his person in public view; all persons who shall make a noise or disturbance of the public peace, &c., shall be deemed disorderly persons, and may be proceeded against and punished according to the provisions of this act. The next section provides who may arrest disorderly persons and take them before the justice “ to be dealt with according to- the provisions of the act.” By section sixteen, when the person charged as a disorderly person is brought before the justice, the justice shall proceed, as soon as practicable, to hear, try and determine the complaint or charge on which such person is arrested, or he may adjourn the trial or hearing, &c., and upon conviction of any such offender, the justice shall have the power and is hereby authorized to punish, such offender by fine not exceeding $50, or by imprisonment in the jail of Niagara county, at hard labor or not, as such justice shall deem expedient, for a term not exceeding ,six months, or both such fine and imprisonment.

The counsel for Plato refers to the provisions of the constitution of this state, that “the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever,” and that “no person shall be deprived of life, liberty or property without due process of law.” {Art. 1, §§ 2, 6.)

Plato did not offer to give bail for his appearance at the next criminal court having jurisdiction, nor did he plead not guilty and demand a trial by jury; but, on the contrary, he plead guilty to the charge. The questions presented by his counsel are not involved in the case. The legislature clearly had the power to make the acts complained of punishable as criminal offences, and there is nothing in the constitution restrictive of the power of the legislature to authorize a justice of the peace, upon conviction, to punish the offender by fine and imprisonment.

The Court of Special Sessions, under the act of 1845, is-now composed of a single justice. If the prisoner, on being arrested and brought before the justice, in a case in which a Court of Special Sessions has jurisdiction, pleads guilty, I have no doubt the court has power to inflict the punishment provided by the law.

There is nothing in the constitution restraining the legislature from giving jurisdiction to a Court of Special Sessions of all the acts complained of in this case. The constitution provides that no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury. Cases of petit larceny are excepted by this provision. The charges, as contained in the warrant, are, making a noise and disturbance of the public peace, and quarreling and fighting in a public place. Now, these acts are not “capital or. otherwise infamous crimes.” These acts or offences are not such as were, prior to the constitution, uniformity tried by jury. If the legislature, therefore, confers upon a Court of Special Sessions power to try these offences, in the absence of offered bail, the provision that trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever, is not infringed.

By the Revised Statutes, cases of assault and battery, not charged to have been committed wantonly or upon any public officer in the execution of his duties, were triable by a Court of Special Sessions, in the absence of offered bail. (2 R. S., 711, Law Rep., 815; The People v. Kennedy, 2 Park. Cr. R., 312.) If the charge in the present case had been for an assault and battery, and the prisoner had offered bail or had requested to be tried by a jury, and the justice had refused the bail and a jury trial, the questions sought now to be raised could have been presented.

In my opinion, the conviction and sentence should be affirmed.


author: By the Court, Mitchell, J.

text:
    Supreme Court. New-York General Term,
    December, 1857.
    Mitchell, Davies and Clerke, Justices.
    The People v. Samuel Jackson.
    Persons believing in any other than the Christian religion are required by statute (2 M. S., 408) to be sworn according to the peculiar ceremonies of their religion.
    A Jew, or Israelite, is usually sworn upon the Hebrew bible, and with his head covered.
    Where, on a trial for larceny, the prosecutor, on his cross-examination by the prisoner’s counsel, was asked if he had not said to one Emly that he “ did not think the prisoner intended to do anything wrong, but wanted to climb too high,” and answered that he did “not recollect it,” and that he did “not know that he had said soand afterwards, on the trial, Emly was called as a witness for the prisoner and asked whether the prosecutor had ever said so to him, and the district attorney objected generally to the evidence, and it was excluded, such exclusion was held to be erroneous.
    In such a case, the party making the objection cannot he permitted, on review, to avail himself of the position that the previous question was not sufficiently precise as to time and place, because the objection at the trial was not put on that ground.
    J., by falsely representing to S. that he had sold for S. a quantity of goods to R. H. & Co., induced S. to send the goods to the store of R. H. & Co. J. then went to R. H. & Co., with whom he had had, in fact, no dealings on account of S., and informed them that the goods were sent there by mistake, and induced them, by such misrepresentation, to deliver the goods to him, and took them away from the store of R. H. & Co. and converted them to his own use, held, that this was larceny, and not simply obtaining goods by false pretences.
    Certiorari to the Court of General Sessions of the peace ■ in and for the city and county of New-York.
    The prisoner was indicted for grand larceny, in stealing the goods of J. Scheuer, and pleaded not guilty. He was tried upon the indictment on the 17th day of November, 1856, before the recorder of said city and a jury.
    The people, to maintain the issue on their part, called as a witness,

      Joseph Scheuer, who, before being sworn, was asked by prisoner’s counsel his religious faith, and answered that he was an Israelite, a Jew; upon being then asked by said counsel whether there was not a form of oath more binding and obligatory upon persons of his religious faith, and so considered by them, than the usual form, replied that there was with some, but not with him ; that it was with a skein of silk about the arm, and other ceremonies, which he could not particularly state, but that the usual form was binding on his conscience.
    The prisoner’s counsel thereupon objected to the witness being sworn in the usual form, and insisted he should be sworn in the form considered most binding upon persons of his religious faith; but the court overruled the objection, and the witness was sworn in the usual form, upon the Hebrew bible, and covered; to which the prisoner’s counsel excepted.
    The witness then testified. I was an importer of goods in May, 1855; I knew Samuel Jackson then; in May, 1855, he called upon me in relation to some satins; he said he had sold to Richards, Haight & Co., on my account, twenty pieces of satins and ten pieces of other goods, on nine months credit; there was a sale by me, founded upon what Jackson stated to me, to Richards, Haight & Co.; he gave me an account of sales to Richards, Haight & Co.; he did not saj where the goods were to be delivered; these goods which Jackson spoke about were partly in my store; the satins were in the bonded warehouse; the satins were in a box marked J. S. & Co., 1040; I ordered my custom-house broker to pay duty and send the satin to Richards, Haight & Co.; I had not seen Richards, Haight & Co. then; prisoner asked me why I did not send him the goods, why I sent direct to Richards, Haight & Co? he said it seemed I had not perfect confidence in him, and it would put him in an awkward position with Richards, Haight & Co., as he- had told them he had the goods consigned from a house in Boston, and he would stand like a liar before them ; this was after the goods had been sent; he has never given me any account of the satins; he said he had taken all the goods to Haggerty, Jones & Co.; prisoner said he got advances from them on the goods; prisoner was to bring me the note of Richards, Haight & Co. for the goods; as the note was not brought me by prisoner, I called on Richards, Haight & Co. for it; I inquired if they had given the note to prisoner; I did not get the note; I told Jackson the result of the interview; he did not deny that he had not made a sale; he never brought me a note for the goods; I saw the goods at Haggerty, Jones & Co. after that time; they were sent there without my knowledge; the sale of the goods was on the twenty-ninth of May; I called on Richards, Haight & Co. about the sixth of July for the notes.

      Cross-examined. First knew the prisoner in April, 1855 ; I made an arrangement with him to sell goods for me at two and a half per cent commissions; I was to have control of the customers; prisoner brought me a list of his business acquaintances in Philadelphia; prisoner reported sales to me ; after this to Richards, Haight & Co., and I delivered goods to Jackson himself; I directed the carmon to take the satin to Richards, Haight & Co.; the prisoner being dissatisfied by my sending to them direct, at his request I allowed nine pieces of serge to go to Jackson himself; Jackson was to bring me the notes, or I could get them myself; a civil suit was commenced by me; I acted wholly under the advice of my counsel; I made a complaint against him December 8th, 1855 ; my civil claim he tried to settle with me; I commenced a civil suit in July, 1855.
    Prisoner’s counsel then .offered to prove that a civil suit had been commenced by prosecutor against the prisoner, for other property, including these twenty pieces of silk, on 12th July, 1855, in New-York Common Pleas. That Jackson was arrested and held to bail; that no defence was put in, Jackson being then in Eldridge-street prison, and that when judgment was finally taken, jt was taken, omitting these goods; that the judgment had been delayed until a motion was made to compel the entry of judgment, and that meantime this indictment was obtained.
    This offer was overruled, and the prisoner’s counsel excepted.
    District attorney admitted suit commenced July, 1855.

      Cross-examination resumed. It might be that I said to Emly that I didn’t think Jackson wanted to do anything wrong, but wanted to climb too highbut I don’t recollect it; don’t know that I said so; it was after Jackson was arrested ; I sent some goods to other houses under this arrangement, by Kingsley’s express.

      Direct, resumed. I had six orders for goods from Jackson, to be sent to different parties.

      Question. In any of those transactions, have you ever received the pay?
    Objected to by defendant’s counsel as irrelevant and improper, as Jackson could not be here tried for any other transaction.
    Objection overruled, and exception by prisoner’s counsel.

      Answer. No sales have been made. They have all gone to Haggerty, Jones.& Co., and he has received advances on them, and also advances from others upon them. The goods he pretended to sell were not sent to the persons he pretended to have sold to, but were appropriated by him except in those cases where he paid me.
    The people then called George Flagg, who, being duly ' sworn, testified: I am one of the firm of Richards, Haight Sc Co.; in May, 1855, a box of satins was brought to our store; while that box was in our possession Samuel Jackson came in ; I saw the inside of the box; it contained black satins; I saw at least one piece containing forty or fifty yards ; should think its lowest value would be $1.50 per yard ; I heard Jackson say that box was sent there by mistake ; the box was taken away by Mr. Jackson; we delivered the box to him; at that date we did not have any business connection with Jackson in relation to that box of satin, nor with Mr. Scheuer; the goods were received into our store and taken care of by our firm.
    The people then called Benjamin Taylor, who, being duly sworn, testified:' that he took the satins in question, by direction of Warren Carter, custom-house broker, to the store of Richards, Haight & Co., and delivered them there in May, 1855; and that Richards, Haight & Co. received the goods and gave a receipt for them; box was marked J. S. & Co., 1040.
    The people then called Warren Carter, who, being duly sworn, testified: That he was a custom-house broker in May, 1855 ; and that by direction of Joseph Scheuer, the prosecutor, he sent by the witness, Taylor, the satins in question to Richards, Haight & Co., and that the prosecutor directed him to deliver the goods to Richards, Haight & Co.; the box was marked J. S. & Co., 1040.
    The prisoner’s counsel then called-Emly, who, being duly sworn, was asked this question:

      Question. Did Joseph Scheuer ever say to you that he did not believe the prisoner intended to do anything wrong, but was trying to climb too high ?
    The question was objected to by the district attorney, and excluded by the court, to which the prisoner’s counsel excepted.

      Solomon Palmer, being duly sworn for the people, gave evidence, showing that the satins in question were sent to the store of Haggerty, Jones & Co. in June, 1855 (auctioneers), and an advance made to the prisoner upon them.
    On cross-examination, he testified to prisoner’s good character, which the district attorney admitted to be good, irrespective of the circumstances of the case.
    The testimony being closed, the prisoner’s counsel requested the court to charge the jury:
    First. That under the evidence the prisoner was entitled to a verdict of acquittal.

      The court refused so to charge, to which refusal the prisoner’s counsel excepted.
    Second. That if the jury believed that the prosecutor intended to part with the property in the goods, the prisoner was entitled to an-acquittal.
    The court refused so to charge, to which refusal the prisoner’s counsel excepted.
    Third. That if the jury find that the prosecutor parted with the property, as well as the possession of the goods, the prisoner is entitled to an acquittal.
    The court refused so to charge, to which refusal the counsel for the prisoner excepted.
    Fourth. If the jury find that the prosecutor, at the time he delivered the goods to Richards, Haight & Co., intended to part with the property in as well as the possession of the goods, the jury must find a verdict for the prisoner.
    The court refused so to charge, and the counsel for the prisoner excepted to such refusal.
    The court thereupon charged the jury, that, if they found there was no sale of the goods to Richards, Haight & Co., the possession of the goods by them was the possession of the prosecutor, and the legal possession was in him.
    To this the prisoner’s counsel excepted.
    (And if they so found, it was of no consequence whether the prosecutor intended to part with the property in the goods); and that to constitute a sale, there must be the act and consent of two parties, buyer and seller.
    To this clause in parenthesis, the prisoner’s counsel excepted. '
    The court further charged, that if the jury believed that the goods were taken by prisoner from the store of Richards, Haight & Co., with the intention of converting the same to his own use, and the statement to Scheuer was a device to get possession, and there was no sale to them; as a matter of law it was a larceny, and that in law the property was still in Scheuer.

      To which the prisoner’s counsel also excepted.
    The prisoner’s counsel also excepted to the charge, as far as it was contrary to the requests to charge, submitted by him.
    The jury found the prisoner guilty, and a bill of exceptions was made and settled.
    The following certificate was made by the recorder:
    I decline to give a certificate of probable cause in this case, for the reason that I do not consider the exceptions to the ruling upon the evidence, or the exceptions to the charge of the court, well taken; that the request to charge upon the question of the parting by the complainant with the possession and the property, does not apply to the facts in this case, for the reason that the evidence shows that the complainant did not part with the possession or property, the possession of Richards, Haight & Co. being the possession of the complainant, as no sale of the goods had been made.
    James M. Smith, Jr.,

      Recorder of the City and County of New-York.

    After which, the following certificate was made by Judge Birdseye:
    I certify that, in my opinion, there is probable cause for the within bill of exceptions, and so much doubt as to render it expedient to take the judgment of the Supreme Court upon the exceptions.
    Luicien Birdseye,

      Justice Supreme Court.

    New-York, November 19, 1856.

      H. R. Dyett, for the prisoner.

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

Scheuer was an importer of goods, and arranged with Jackson to sell goods for him at a commission of two and a half per cent, Scheuer to have a control of the customers. Jackson represented to Scheuer that he had contracted to sell for him, to Richards, Haight & Co., twenty pieces of satin and ten pieces of other goods, and gave an account of the sales to Scheuer. Scheuer, who proves these facts, adds : “ There was a sale by me, founded upon what Jackson stated, to Richards, Haight & Co.” The satins were in the bonded warehouse, the other goods at Scheuer’s store. Scheuer ordered the satins direct to the store of Richards, Haight & Co., and Ja,ckson expressing the opinion that this showed a distrust of him, Scheuer allowed nine pieces of the goods to go from his store to Jackson. Jackson was to bring notes for the amount to Scheuer, but did not do so. He never rendered any account of the satins. He admitted that he took the goods which he received to Haggerty, Jones & Co., and obtained an advance upon them. The same witness proved that he had six orders from Jackson for goods to be sent to other persons, and was allowed to testify that he had never been paid for those goods; that they were not sent to the persons to whom he pretended they were sold, but had gone to Haggerty, Jones & Co., from whom Jackson had received advances on them, except in cases where Jackson had paid him. It was shown that the pieces of satin were sent from the bonded warehouse, by order of Scheuer, to Richards, Haight & Co., and that then Jackson came there and said the box was sent them by mistake and took it away, and that they had no business relations with Scheuer. Jackson then, took the goods to Haggerty, Jones & Co., and obtained an advance upon them.

The court was requested to charge that if Scheuer intended to part with the property in the goods, the prisoner was entitled to an acquittal, but refused; also, to charge that if the prosecutor, when he delivered the goods to Richards, Haight & Co., intended to part with the property, as well as the possession of the goods, the jury must find for the prisoner, but the court again refused.

The court charged that, if there was no sale to Richards, Haight & Co., it was of no consequence whether the prosecutor intended to part with the property in the goods or not.

The recorder, in his certificate, states that he made these rulings because the evidence showed that the complainant did not part with the possession or property, and so the question of law implied in the request did not arise. The question was submitted to the jury, whether the prisoner made the representation to Scheuer as a device to get possession of the goods, and then took them from Richards, Haight & Co., with the intention of converting them to his own use.

The prosecutor testified that he might have said to Emly that he did not think Jackson would do anything wrong, but wanted to climb too high ; but he did not recollect it, and did not know that he said so.

The prisoner asked Emly if Scheuer had ever said so to him, and the question was excluded.

It does not appear that any objection was taken to the question on account of the previous question to the prosecutor not being sufficiently precise as to time and place; otherwise the question was proper, as it tended to discredit the prosecutor. He had negatived the idea of his having made this statement by the mode of his answering. If he had answered that he had said so, as it must be assumed Emly would have testified, then the jury would have had before them the inconsistency of his prosecuting a man for stealing, while he had declared that he did not believe the man intended any wrong. The statement, or his evidence, would require some explanation, and might have led to his discredit with the jury, or to have made them believe that the prisoner did not make the representations to Scheuer with a view to get the goods from Haight and convert them to his own use. It might be entitled to extremely little weight, but it was entitled to some.

If Jackson had bought the goods of Scheuer under these false pretences, he would have been liable only for the false pretence; there would then have been an intention to pass the title of the possessor to the person to whom they did pass. The goods could not be said to have been feloniously taken from the owner, when they had been voluntarily delivered by him, with the intention of passing the title, although he was induced to do so by a false statement. But if he was led by the false pretence merely to send the goods to Richards, Haight & Co„ where they still remained as his, because Richards, Haight & Co. did not mean to buy them and had never agreed to buy them, then, when the goods were taken from the latter they were taken without any a'ssent of the owner, and from a possession of one whose possession was the same as that of the true owner. The false pretence did not lead to the delivery of the goods to the prisoner, but to the delivery of them to Richards, Haight & Co. It had exhausted its delusive effect when that was accomplished, and when the defendant took the goods from them he did so by an additional deception, in which the deceived party had no intention to pass the property.

It was proved that the prisoner’s character was good, and it was admitted that it had been so, except in these transactions. If his understanding of his offence is rendered more acute it may not be a cause of regret to reverse the judgment.

The conviction must be reversed and a new trial granted.