author: By the Court, Welles, J.

text:
    Supreme Court. Cayuga General Term,
    June, 1856.

      T. R. Strong, Welles and Smith, Justices.
    Francis Hayen, plaintiff in error, v. The People, defendants in error.
    The Revised Statutes have abolished all assignments of error, and allegations of diminution, or writs of error and certiorari, in criminal cases.
    In deciding a criminal case, therefore, brought up on a writ of error, the Supreme Court cannot look beyond the record of judgment.
    To enable a party to avail himself of any irregularities in the court below, it should be presented in the first instance, in that court, either by plea in abatement, or bill of, exceptions, so as to introduce it upon the record, and thus subject it to review upon writ of error after judgment.
    This was a writ of error to the court of Sessions of Livingston County. The plaintiff in error was indicted in the Sessions in March 1854, for arson of a barn, in the night time. He was tried upon the indictment in the same court in September following, when he was convicted, and adjudged to be imprisoned in the State prison at Auburn for the term of seven years and six months. The writ of error commanded the court below to send the record of the judgment with all things concerning the same.
    The return to the writ contained a transcript of the record of conviction, and the judgment of the court thereon. The record was in the usual and proper form, in all respects, of a judgment record of conviction in a criminal case.
    Upon the coming in of the said writ, the plaintiff in error filed a special assignment of errors alleging diminution in the record and praying a writ of certiorari to bring up the matters alleged in diminution. But no such writ was issued.
    The assignment of errors, and allegations of diminution were in the following form :
    And the said Francis Hayen, by Charles C. Willson his attorney and counsel, comes into court and says, that in the record and proceedings aforesaid, and also in giving judgment aforesaid, there is manifest error in this, to wit: That the record contains no indictment; that the paper purporting to be an indictment, (or copy thereof), was never presented to any court of criminal j urisdiction, nor was it ever presented by any grand jury of the said county of Livingston. There is error also in this, to wit: that at the time said pretended indictment purports to have been found, presented and filed, there was no Court of General Sessions, regularly organized, sitting in said county of Livingston, nor were the persons by whom the same purports to have been found and presented, a grand jury of the said county of Livingston. There is error in this also, to wit: that the orders made by the county judge of the said county of Livingston convening the said court at which said pretended indictment purports to have been found and presented, and appointing the same, was not entered in, and contained no reference to said Court of Sessions, but was defective in this behalf and was altogether null and void, which order, is entered of record in the minutes of the clerk of said court but is omitted in the answer and return of the said Court of Sessions to the writ of error. There is also error in this, to wit: There is no order of the county judge of Livingston county convening said Court of Sessions, at which said pretended indictment purports to have been found and presented, and that the order under which said court convened, appoints only a county court. There is also error in this, to wit: that the return of the sheriff to the precept directed to him, commanding him to summon the grand jurors to attend said term at which said pretended indictment purports to have been found and presented, is imperfect, insufficient and altogether null and void, which return, together with such precept is on file in the office of the clerk of said county, but is omitted in the return and answer of the said Court of Sessions to the writ of error. There is also error in this, to wit: that the said court erred in refusing to grant the motion of the defendant for his discharge made to the said court after the verdict rendered and before judgment, and upon proof by affidavit that there never had been in this case any legal or valid, or any indictment presented or filed against him, the said Francis Hayen therein, for the crime of arson, which papers are on file in the office of the clerk of said court, at his office in G-eneseo, but was omitted in the return and answer of the said Court of Sessions to the writ of error. And the said Francis Hayen prays a writ of the people of the State of -New-York to be directed to said Court of Sessions to certify to the said justices of the Supreme Court, the truth of the same, and it is granted to him. And the said Francis Hayen prays that the judgment aforesaid, for the errors aforesaid and other errors "in the record and proceedings aforesaid, may be reversed, annulled and altogether held for nothing; and that he may be restored to all things which he hath lost by occasion of the said judgment.
    The defendants pleaded, in millo est erratum.

      Charles C. Willson, for the plaintiff in error.

      James Wood (District Attorney), for defendants in error.
   By the Court, Welles, J.

Before proceeding to the consideration of the sufficiency of the matters alleged in diminution, as presenting errors for which the judgment of the court below should be reversed, it is proper to dispose of the question of practice as to the effect of the plea of the defendants in error in the case before us.

There is, no doubt, as a general rule, that in civil cases, the plea in nullo est erratum admits the facts stated in an assignment of errors of fact, which facts are outside the record. (Graham's Pr., 789, 1st ed.; 957, 2d ed., and authorities there cited.)

It is contended, however, by the counsel for the defendants in error, that such admission extends only to such facts as, if specifically denied, would be triable by a jury; such, for example, as infancy of the party, &c., and not to such matters as are brought up in answer to a writ issued to certify diminution, which are tried by inspection without a jury. But I apprehend that such a plea is an admission of every fact properly alleged which is not shown by the j udgment record as brought up by the writ of error, without regard to the manner of trial, whether by the court or a jury. Such seems to have been the ruling in Pelletreau, v. Jackson (7 Wend., 478), where Savage, Ch. J., after' examining the-question quite fully, and reviewing the authorities, comes to the following conclusion : “ The practice, then, as I understand it, is this: upon the return of the writ of error, if the plaintiff wishes to avail himself of any error not contained in the record, but the evidence of which appears upon the files or records of the court to which the writ of error was directed, he may assign errors generally, and also specially, by a separate pleading, and in such special assignment allege diminution ; and upon filing an affidavit of the service of a copy of such allegation of diminution, he may enter a rule of course awarding a certiorari, which certiorari he may cause to be returned within the rule to plead. This he is not obliged to do unless compelled by a rule taken by the defendant. If the defendant pleads, in millo est erratum, he admits the facts stated in the allegation of diminution, but not that they are cause of error. If he does not choose to make that admission he must rule the plaintiff to return the certiorari. If such rule is not obeyed, the plaintiff will be non-prossed. If a return be made to the certiorari, the defendant may plead such plea as he shall be advised by his counsel.”

There is an expression of Cowen, J., in Hill v. Stocking (6 Hill, 277), which favors the idea that the plea in question only admits facts triable by a jury. But the case did not necessarily involve the point, and the question does not appear to have been much considered. There is no reason why the admission should extend to one case more than the other. In both, evidence in support of the allegations is equally necessary, while in the case of error apparent upon the record, no further evidence is necessary.

Generally, no assignment of errors or joinder in error in criminal cases is necessary. (2 R. S., 741, § 22.) The section referred to is in the article entitled “ Of writs of error on judgments and certioraris in criminal cases,” and is in the' words following : “ No assignment of errors or joinder in error shall be necessary upon any writ of error or certiorari, issued pursuant to the foregoing provisions; but the court shall proceed on the return thereto, and render judgment on the return before them.” If this statute is to be construed as excluding assignments of errors, in all cases of writs of «error in criminal cases, it is equivalent to a prohibition upon the court against their looking beyond or behind the record of judgment; for that is all the writ of error brings up. If this be so, it must be because for every error and irregularity in the court to which the writ of error is directed, not apparent on the face of the record, some other adequate remedy is provided, and which, if the party avails himself of, at the proper time and in the proper manner, he will be secured a fair trial according to the forms prescribed by law.

I am constrained to the conclusion that the section recited is imperative, and in effect abolishes all assignments of error and allegations of diminution on writs of error and certiorari in criminal cases. The language is too explicit, it seems to me, to admit of a different construction. It is that the court shall proceed on the return to the writ and render judgment on the return before them. This will not deprive a party accused of any legal right, or foreclose him against interposing any legal objection, whether technical or meritorious. It only requires him to insist upon his rights, and make his objections in an orderly manner, and at the proper time. Where they relate to matters extrinsic of the judgment record, his remedy is by motion, as in case of irregularity of the jury on the trial. In most cases before conviction, they could be presented either by plea in abatement or bill of exceptions, either of which would introduce them upon the record, and thus subject them to review upon writ of error after judgment. In the case of The People v. Moneghan (1 Park. Cr. R., 570), the principal question now sought to be presented was properly raised and decided upon a demurrer to a plea in abatement. Any of the matters contained in the allegation of diminution in this cáse, if good at all, would be so by way of plea in abatement.

In The People v. Griffin (2 Barb. S. C. R., 427) we held that it was too late to take an objection upon the trial relating to the organization of the grand jury. I see no difference in principle between that case, in respect to the question under consideration, and the present. The objections here relate entirely to the regularity and validity of the grand jury. No complaint is made touching the legality or jurisdiction of the court at which the plaintiff in error was tried, or of any error committed on the trial. It is not that he has not been fairly tried or justly convicted, but is simply that he was tried upon an indictment not legally presented. After he has appeared upon the indictment at a term of the court regularly and legally constituted, and demanded a trial upon his plea of not guilty, has been tried and convicted and judgment passed against him, his objections to the inceptive proceedings come too late, and are not before us at a time or in a form of proceeding to justify this court in entertaining them.

If these views are correct the judgment of the court below should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: S. B. Strong, J.

license: Public Domain

text:
    Supreme Court. New-York Special Term,
    June, 1856.

      S. B. Strong, Justice.
    The People v. Lewis Baker and others.
    A certiorari, to remove an indictment from the Oyer and Terminer to the Supreme Court, before trial, may be issued on the application of the prosecution.
    And where a cause so removed is pending in the Supreme Court, and it appears that a fair, impartial and effectual trial cannot be had in the county in which the indictment was found, the Supreme Court, at special term, will order the trial to be had in some other county.
    Where the indictment is against several persons, and enough is shown on the part of the prosecution to make a change of the place of trial proper as to one defendant, the change will be made as to all the defendants, although it is a case in which every defendant is entitled to a separate trial.
    And where it appears, in opposition to such application, that the defendants’ witnesses are poor and unable to bear the expenses of a journey to another county, and that the defendants also are destitute of property, the court may require, as a condition to changing the place of trial, that the district attorney procure some arrangement to be made by which the county, in which the indictment was found, shall pay the necessary expenses of the indigent witnesses subpoenaed in behalf of the defendants and attending at any court in which the trial shall not be postponed at their instance.
    Ordinarily, where the place of trial is changed in a criminal case, an adjoining county should be selected; but if the necessity which requires the change calls for it, a more remote county may be designated.
    The defendants were indicted, in the New-York Oyer and Terminer, for the murder of William Poole. After a trial in which the jury did not agree, the cause was removed by certiorari into the Supreme Court. A motion was now made, in behalf of the prosecution, to change the place of trial from New-York to Suffolk or some other county, on the ground that a fair and impartial trial could not be had in the city and county of New-York. The counsel for the defendants moved to quash the certiorari, on the ground that it could not legally be sued out by the prosecution. By consent, both motions were heard together.
    The motion to change the place of trial was founded on the following papers:

      City and County of New-York, ss:

      Stephen B. Cushing, being duly sworn, deposes and says: That as Attorney General of this state he attended upon the trial of Lewis Baker, indicted for murder, in the Court of Oyer and Terminer, in the city of New-York, for the term of April, 1856. That the indictment was called on for trial by the people on the second Monday of April, and the proceedings in respect to a trial commenced by calling and challenging and swearing jurors. That the first panel of five hundred jurors (after excuses to the commissioner of jurors and to the court were given, and after absentees had been fined) had remaining upon it about one hundred jurors who answered; that of this number five jurors in chief were obtained; two were challenged peremptorily by the prisoner’s counsel, and one was set aside by triers upon a challenge to the favor by the people. That a new panel of five hundred jurors was then ordered and served after some days delay; of the jurors named upon which two hundred or thereabouts answered, and seven jurors in chief were obtained who were impartial, one of whom was excused by the court because of religious objections to sitting as a juror upon Saturday, his Sabbath. That this additional number of jurors was exhausted, and one more juror became necessary; whereupon an additional number of two hundred and fifty jurors were summoned, about seventy-five of whom were first examined before the twelfth juror was obtained as being impartial. That of all the challenges only three were peremptory; the great majority of them being for principal cause, and being found true by the court. That this deponent doubted the legal propriety and expediency also of exhausting one panel of jurors, in a capital case, and then adjourning the trial to obtain other jurors; but yielded his' doubts to the extreme anxiety of the prisoner’s counsel to obtain a jury in the county of New-York.

      From the experiences of this attempt to obtain a jury in the city of New-York, in regard to the difficulties in procuring individuals unbiassed and not impressed by newspaper reports, to act as jurors, and in regard to the delays and irregularities necessarily attending prolonged examinations and challenges of jurors, deponent is constrained to the opinion that whilst the obtaining of an impartial jury in the city of New-York, upon another trial of the indictment against Lewis Baker may be possible, it is improbable, and certainly attended with delays and irregularities which would be prejudicial to the interests of the people prosecuting the said indictment.
    Deponent joins in the motion of the district attorney to change the venue of the said trial.
    Stephen B. Cushing.

    Henry Vandervoort, Clerk of Sessions, &c.

      City and County of New-York, ss:

      A. Oakey Hall, being duly sworn, deposes and says: That he was present in behalf of the prosecution, -spoken of in the foregoing affidavit of-Mr. Cushing, during the whole of the proceedings, in respect to the trial above alluded to; that he kept a tally of jurors answering, and of the respective challenges, and from his said tally he finds the result in terms as set forth in the foregoing affidavit.
    Deponent further says: That the trial first had upon the indictment against Lewis Baker occupied more than a week, and that the evidence and speeches of counsel were stenogrpphically reported for and published in all the city newspapers, and to deponent’s belief were very extensively read in this city; that the merits and demerits of the said trial were very extensively discussed in public and in private, and the editorial comments in the newspapers, both for and against the prisoner, were frequent and pointed in their expressions.
    That, in the opinion of this deponent, a jury which is at once impartial and intelligent cannot be obtained in the county of Eew-York.
    A. Oakey Hall.

    Henry Vandervoort, Clerk of Sessions, &c.

      City and County of New-York:

    I, Henry Yandervoort, Clerk of the Court of Oyer and Terminer in and for the city and county of New-York, at the request of the district attorney, do certify: That at the April term, 1856, of the Court of Oyer and Terminer, twelve hundred and fifty jurors were summoned for the purpose of trying an indictment against Lewis Baker for the murder of William Poole; about four hundred appeared; two hundred and twenty-two were set aside on challenge, having formed or expressed an opinion as to the guilt or innocence of the prisoner; three were peremptorily challenged by the prisoner, after passing the ordeal of principal challenge and challenge for favor; twelve jurors, were sworn in chief; the remaining j urors were discharged, or excused by the court •for various reasons, or were not drawn, there remaining in the ballot-box, on the completion of the jury, about twenty ballots..
    Given under my hand, and attested by the Seal of the r said Court, this seventh day of May, in the year L one thousand, eight hundred and fifty-six.
    Henry Vandervoort.

      James T. Brady, Horace F. Clark, Daniel E. Sickles and Abraham D. Russell, for the defendants.

      A. Oakey Hall (District Attorney) and Stephen B. Cushing ( Attorney-General) for the people.
   The points of the argument sufficiently appear in the ■opinion of the court.

S. B. Strong, J.

The defendants stand indicted for the alleged murder of William Poole, in the city and county of New-York. The indictment contains as many counts as there are defendants respectively, charging each as primary, and the others as secondary principals.

The first count charges the defendant Baker as the most prominent actor, and the others as being present at the scene of the murder and aiding and abetting him. He elected to be tried separately. He was first tried at a court of Oyer and Terminer, held before Judge Roosevelt in the county of New-York (where the venue is laid and the indictment was found), in December last. The trial lasted nearly a fortnight, and resulted in the disagreement of the jurors and their discharge.

His trial was again commenced at a Court of Oyer and Terminer held before me, pursuant to an appointment by the chief judge of the Court of Appeals, in the same county, on the fourteenth of April last. Five hundred jurors had been summoned to attend the trial. Of that number five only were sworn, the others having failed to attend, or having been excused or rejected on challenges for cause, or on peremptory challenges in behalf of the defendant. Another panel of five hundred jurors was then ordered, and they were summoned to attend on the twenty-fourth of April; on that and the next days seven of the last panel were procured, who, from their answers, appeared to be free from any legal exceptions. One of them was excused from serving as he was conscientiously opposed to attending to any secular business on the Jewish sabbath, and it was conceded that the trial would extend beyond one such day. The other six were sworn, when that panel was exhausted. Another two hundred and fifty was then ordered for the twenty-ninth of April. On the last mentioned day the twelfth, juror was obtained, there remaining in the box, when his name was drawn, about twenty undrawn ballots. The impanneling of the jury occupied nearly four days. About four hundred persons appeared; of those two hundred and twenty-two were set aside on challenge for having formed and expressed an opinion as to the guilt or innocence of the accused on trial, three were peremptorily challenged by him, twelve were sworn as before stated, and the remaining jurors were excused or eventually discharged. The trial proceeded a short time, during which two witnesses were examined on the twenty-ninth of April. On the next day one of the jurors sworn failed to attend, and it appeared, on an examination Of a messenger from him, «that he was confined to his bed, ■ and probably would remain so for a considerable period, by indisposition. The counsel for Baker thereupon proposed that .the trial should proceed before the eleven jurors who were then present, or that the Jew who had been excused should sit on the trial and thus complete the number, or that those who remained of the last panel should be resummoned, and that the person whose name should be first drawn should be sworn and act as the twelfth juror. These propositions were declined by the counsel for the people, and the eleven jurors were thereupon discharged.

The court then adjourned to the first Tuesday in June, and a panel of one thousand jurors was ordered. Subsequently to the last mentioned adjournment, a certiorari was issued by the District Attorney and allowed by Judge Roosevelt, removing the action into the Supreme Court. On the twenty-fourth of Hay, two motions were made at a special term, held before me, in New-York, pursuant to an appointment made by the chief judge of the Court of Appeals, and also at the request of the justices of the first judicial district, who were otherwise engaged,—one by the counsel for the prisoners, that the certiorari should be quashed as having been improvidently issued, and the other by the counsel for the people, that the place of trial should be changed to some other county, on the ground that a fair and impartial trial of the action could not be had in the city and county of New-York.

The prisoners’ counsel contended, in support of their motion, that a certiorari to remove an indictment from the Oyer and Terminer to the Supreme Court cannot lawfully issue at the instance of the counsel for the prosecution. There can be no doubt but that it has always been competent for the counsel for the crown in England, and since our revolution for the counsel for the people in this state, unless the power has been abrogated by the statutory provisions which I shall presently consider, to remove criminal actions from the Oyer and Terminer to a higher tribunal by certiorari. Mr. Chitty, in his valuable work on criminal law (1 Chitty's Cr. L., 377), after citing several acts of parliament restricting or regulating the practice upon certiorari in criminal cases, says: “ But these acts apply only to writs of certiorari on the part of the defendants, and therefore the crown and a private prosecutor may still obtain them, without affidavit or recognizance, unless expressly prohibited by particular statute,” and he cites 5 Durnf. & East, 626; 6 id., 194; 3 Bosanquet & Puller, 354; 2 Strange, 900-1209; Cowp., 18; 1 East, 305; 15 id., 327; Bacon's Abr., tit. Certiorari,'' C. And again the same author remarks (p. 378), the writ of certiorari is demandable of absolute right only by the king himself, and to him the court is bound to grant it. The English reports are full of cases where certioraris to remove criminal actions from the Oyer and Terminer to the Court of King’s Bench (which, as to its jurisdiction in criminal cases, corresponds to the Supreme Court in this state) have been issued on the application of the officers of the crown. The case in 3 Bosanquet & Puller (p. 354), cited by Mr. Chitty, was before the House of Lords, and it was decided by that tribunal that the certiorari could be issued by the officers of the crown, notwithstanding general restrictive words in an act of parliament in reference to the class of cases to which the decision referred. The right of the prosecution to issue this process is impliedly recognized in this state in the provision of the Revised Statutes (2 R. S., 733) that “all issues of fact joined upon any indictment shall be tried by a jury in the county where such indictment was found, unless for special causes the Supreme Court shall order an indictment removed into that court to be tried in some other county.” This speaks of the removal of criminal causes as an existing common law practice, and makes no attempt to restrict it.

There are several cases in our reports which sustain the right to obtain this process in behalf of the people. In the case of The People v. Vermilyea and others (7 Cow., 141), where one of the indictments had been removed to the Supreme Court by certiorari, the District Attorney inquired whether he should give the other indictments the same direction by issuing writs of certiorari for their removal to that court: to which Chief Justice Savage answered: “ You must take your own course on that subject. You have a right to remove the other causes, or to try them where you are, as you shall think advisable.” In the case of The People v. Webb (1 Hill, 179), where the defendant had been indicted for a libel on J. Fennimore Cooper, in the county of Otsego, the indictment was removed by certiorari, on the application of the District Attorney, from the Oyer and Terminer to the Supreme Court, and the place of trial was changed to the county of Montgomery. In that case the certiorari to the Oyer and Terminer had been obtained after that court had ordered that the trial should proceed, or that a nolle prosequi should be entered. It is true, as was said by the counsel for Baker on his argument, that the right to issue the writ in behalf of the prosecution was not disputed in that case; but the motion to change the place of trial, which followed it, was warmly contested, and if it had been supposed that the process had been irregularly obtained, the objection, which would have been fatal to the motion, would have been urged. The silence of the counsel and of the court was, under the circumstances, significant against the objection.

The counsel for the defendants contended that if the right to issue the certiorari in criminal cases, by the District Attorney, had existed at common law, it would have been abrogated by sections one and two of chapter sixty-five of the acts of 1829, and the first section of chapter twelve of the act of 1847. The act of 1829 provides (§1), that no certiorari to remove into the Supreme Court any indictment pending in a court of oyer and terminer, before trial thereon, shall be effectual, unless allowed by a justice of the Supreme Court, or (then) circuit judge; and (§2) that before allowing any such writ, the officer to whom application should be made should take from the defendant a recognizance with sureties, conditioned that the defendant prosecuting such writ will appear at the return day thereof in the Supreme Court, and abide the orders and rules of such court; and the first section of the act of 1.847 merely exempts the defendants who may be indicted for treason, murder or arson in the first degree, and who may be in custody, from the necessity of entering into any recognizance for their appearance in the Supreme Court. If the first section of the act of 1829 had stood alone, as that merely regulated the practice, and did not purport to take away any right, it might have been construed to include certioraris issued in behalf of the people. But the second section, although it specifies the process in general terms, evidently refers to such as might be allowed in behalf of the defendants. The prosecution could not be required to give a recognizance for the conduct of the defendant as a condition for obtaining the writ. There is no statutory provision involving such an absurdity, except in the eighth section of the act for the prevention of intemperance, pauperism and crime (Laws of 1855, 346, 347), which provides that an appeal and the service of a notice thereof shall be of no effect in behalf of the defendant or complainant, unless he shall deliver to the magistrate an undertaking to the people in the sum of $500, with one or more sureties, conditioned, among other things, that the defendant shall not, during the pendency of the appeal, violate any of the provisions of the act; thus requiring the complainant, where the appeal is by him, to become responsible for the good behavior of his opponent! . But the prohibitory act furnishes no very reliable rule for the construction of other statutes. In reference to the act oí 1829, it may raise a slight inference that the Legislature by which it was passed supposed that the certiorari could be issued only at the instance of the defendant. But that could not have the effect to abrogate a preexisting right of the people, and one, too, which might be so very essential to the due administration of justice under circumstances of frequent occurrence. In England it has been clearly settled that the rights of the crown are not taken away by any general statutory provision, unless the intention to do so is clearly and directly manifested. Thus, in the case of The King v. Davis (5 Term R., 626), Judge Buller remarked that “the general rule is, that when the certiorari (in criminal cases) is taken away by act of parliament, the crown is not included in the restriction, unless there be some words in the act to show that the legislature intended itand Judge Grose said: “We cannot break in upon the general rule which has been so long established, that the crown is not bound by the general words of a statute taking away the certiorari, unless it appear upon the face of the act of parliament that the legislature intended that the crown should be bound.” The same principle was sustained and applied to a certiorari in a criminal case obtained by the crown officers in the case of The King v. The Inhabitants of the County of Cumberland by the Court of King’s Bench (6 Term R., 194) and by the House of Lords (3 Bosanquet & Puller R., 354). There are many other cases in the English reports to the same effect, and the rule is well settled in the country from which we inherit the common law. In this state, where the people have acquired the rights originally appertaining to the crown of England in criminal cases, except where they are inconsistent with our form of government, or have been expressly abrogated (and neither is the case here), it is safe to conclude that the well settled rights of the public have not been taken away by a remote inference. The continuance of the right in question was recognized by the Supreme Court in the case of The People v. Webb (which I have before cited), long after the passage of the act of 1829. I am satisfied that it still exists, and the motion to quash the certiorari in this case is therefore denied. The indictment may nevertheless be hereafter remanded to the Court of Oyer and Terminer for trial, should the ends of justice require that procedure. (2 R. S., 742, § 28.)

The most material and by far the most difficult question presented for my consideration is, whether the place of trial should be changed on the ground that a fair and impartial trial cannot be had in the city and county of Hew-York. There are many palpable reasons why trials in criminal cases should ordinarily be had in the counties where the transactions which gave rise to them occurred, and a change should not be made except for forcible and clearly established causes. Our statutes require that issues of fact joined upon any indictment shall be tried by a jury in the county where such indictment was found, unless, for special causes, the Supreme Court shall order an indictment removed into that court to be tried in some other county. (2 R. S., 733, § 1.) Mr. Chitty says (vol. 1, 495) that “not very strong evidence of partiality will be required in order to induce the court to listen to the application for the removal” (to another place of trial). To that I cannot consent, nor is the position supported by the authorities to which the learned author refers. In one of the cases cited by him (Rex v. Harris, 3 Burrows, 1, 333), Lord Mansfield said: “There must be a clear and solid foundation for the suggestion” (of partiality). The question as to the unfairness or partiality of a drawn juror, does not refer exclusively to his feelings, but extends to any opinion which he may have formed and expressed in reference to any material question involved in the controversy, and which may at all' influence his decision. Thus, one who acted as grand juror when the indictment was found, or who (in a case involving the life of the accused) cannot, from conscientious scruples, render a verdict which would lead to the punishment of death, is disqualified, although he has no hostile or favorable feeling toward the defendant. Some of the English authorities seem to indicate that some feeling of the juror, either hostile or friendly, must be involved in the objection to render it effectual; but it has been otherwise adjudicated in this state. In the case of The People v. Vermilyea, the English and American authorities were elaborately reviewed by Judge Woodworth; and he expressed an opinion, in which the other judges concurred, that a challenge, because the juror has expressed an opinion, is for principal cause, and need not be accompanied by personal ill-will to render it valid. (1 Cow., 108.) A juror should have the ability, and one who is conscientious would feel the inclination, to decide all questions of fact submitted to him, solely from a fair and impartial view of the evidence, without being at all influenced by ulterior considerations; but that would be difficult, if not impossible, where he had previously formed and expressed a strong opinion upon the matter, especially if it corresponded with the public sentiment. Let him exert himself as he may, he cannot wholly avoid the difficulty. He will, in a case where the testimony is contradictory, yield a more ready credence, and give greater weight to that which sustains, than that which opposes his preconception: such is the infirmity of the human mind, and we must take it as we find it. When the opinions extend so far as to become the general sentiment in the community where a trial of an exciting case is had, it forms a serious obstacle to the due administration of justice, and the evil should be arrested when that is possible. In the case under consideration there were many circumstances calculated to attract attention, and to induce the formation and expression of opinion, especially in a community proverbially excitable. Of these, some of the more prominent were the public character of the deceased, and of some of those who were present at the time when he received his death wound, and who have been charged with a participation in the tragedy; the singular prolongation of the life of the wounded man with a ball in his heart; the immense funeral procession which accompanied and followed the body to the grave; the flight of one of the persons charged with the homicide across the ocean; the pursuit and capture of the fugitive under circumstances which induced the strong condemnation of his eloquent counsel on the argument before me; his subsequent protracted trial, and the publication in the newspapers of the city of the testimony, which was taken with great minuteness, of the eloquent “ speeches of the counsel, and of the elaborate and able charge of the presiding judge. It is not at all remarkable that these circumstances should have led to the formation and expression of opinions by the citizens of New-York, especially those who witnessed any of the exciting scenes, or who read the newspapers. That there is a strong and all but universal sentiment in the city as to the truth or falsity of the charge, as it respects the defendant, Baker, was apparent from the statements of the jurors who appeared before me. Of the two hundred and thirty-eight who were examined, all but sixteen had both formed and expressed opinions as to the alleged guilt of the prisoner, and still retained them. The number of those who passed the ordeal of a strict examination was so inconsiderable that they could not be deemed a fair representation of the intelligence and reliability of the class which comprises the jurors of the county. The jurors who were admitted may all have been respectable men. I have no personal acquaintance with either of them, and heard nothing against any of them, except some insinuations by the District Attorney on the argument, which, as they were not supported by any evidence, cannot be regarded in the decision of the motion which is now under consideration. If, however, they were all reliable men, such a consummation was, under the circumstances, so remarkable that a similar result on any future attempt could not be reasonably anticipated. When so few out of so large a number of jurors are at all admissible, the right to challenge twenty peremptorily, which our laws .benignly secure to persons tried for capital offences, gives to the defendants almost the entire control in the selection of the jury. In cases where all or the greater portion of those summoned are unexceptionable, the full exercise of this privilege cannot operate prejudicially; but it is quite apparent that where but an inconsiderable number is admissible it may create a very great embarrasment, and seriously obstruct the course of justice. In this case, when the trial was before me, but three jurors were challenged peremptorily. Ordinarily that might raise an inference that the admitted jurors were peculiarly acceptable to the defendant. How it was in this instance I am unable to say. Baker swears that he was unacquainted with any of the jurors and had no influence over them. However, I am bound to consider the possible and (generally) probable effect of the existence and exertion of the privilege. If the trial of this action should proceed in New-York, it would probably be necessary, as it was before, to summon more than one panel. Where so many are to be selected and summoned, a considerable number of days must necessarily intervene. During that time, the jurors already sworn must (at least under our practice) be permitted to separate and to mingle with their fellow citizens, without any restriction. The injunction, to hold no conversation with others on the subject of the trial, may be obeyed by conscientious men; but it sometimes happens that one is sworn as a juror who is not a conscientious man, and as to such there can be no security. Besides, there is no responsibility upon the outsiders, and the inconsiderate will express their opinions and argue to support them in the hearing of the sworn jurors. The danger of improper influences from such causes is very considerable. I am aware that some similar difficulty may occur if jurors are permitted to separate during the trial; and it was for this reason that when I proposed to introduce the practice in trials for murder in the city of New-York, several years ago, I was warned by the judges of that district that it would be a dangerous precedent. But it seemed to me then, and I still think, that scarcely any state of circumstances will justify the seclusion and confinement of the jurors, and particularly of the infirm, and of those extensively engaged in business, during a protracted trial, from the time when they are sworn until they render their verdict. The practice of thus confining them would operate very injuriously to the administration of justice, as the more reliable men would refuse to sit at all on trials for murder. The separation during the trial is so evidently just that the danger resulting from it is a matter approaching very near to a necessity; but a state of circumstances which would increase the risk should if possible be avoided. In this case, if a judgment is to be formed from the past, and it must be, it will be difficult to procure any jury, and still more so to obtain one by which a fair, impartial and effectual trial can be had in the county of New-York. Although a sufficient number of qualified jurors might possibly be found of those who might not have formed or expressed any opinion as to the guilt or innocence of the accused, yet the strong existing public sentiment must be known to them, and it will have its influence. The jurors may be charged to disregard it, but they cannot do that with all their efforts. During an experience of many years I do not remember a verdict in a criminal case, in opposition to a strong public sentiment previously entertained and generally known. If that should be erroneous, and it sometimes is, it will probably lead to an unjust verdict. If there should be a divided sentiment, it would result in a disagreement, and the trial thus prove abortive. Whether the inability of the jury first impanneled in this action to agree upon a verdict resulted from the effect of public opinion upon the minds of some of the number cannot be certainly known. Perhaps it may be, under the circumstances, the inferable cause; but I do not place any reliance upon that. There is sufficient without it to warrant the conclusion which I have adopted, that a fair, impartial and effectual trial of this action cannot be had in New-York, and that therefore it should take place in some other county.

The counsel for the defendant McLaughlin contended that the action should not be sent into another county for trial, as, if it should take that direction as to one, it must as to all, and nothing appeared to prove that his client could not have a fair trial in the county of New-York. It is undoubtedly true that, as to the question whether McLaughlin participated in the transaction at all, or in any manner which would make him responsible, there is no evidence that any opinions have been formed or expressed. But then when one is charged as an active participator, an opinion as to the guilt or innocence of one of the actors, and especially when all were together, must have an important bearing as to all, and it would disqualify a proposed juror who had entertained and expressed it on the trial of either of the defendants. Sergeant Hawkins says, in his work on the Pleas of the Crown (ch. 43, §, 27), that “the exception to an indictor is good upon the trial of another indictment, or action wherein the same matter is either in question or happens to he material, though not directly in issue.” The principle that an opinion as to the guilt of an associate, would exclude a juror, was sustained by the Supreme Court in the case of The People v. Vermilyea and others. There might and would, therefore, be a difficulty in obtaining a fair and unprejudiced jury in New-York to try either of the defendants.

It seems, from the affidavit of Baker, that he has a large number of witnesses who are poor and unable to bear the expenses of a journey to another and perhaps distant county, and that he is also destitute of property, and his counsel made a feeling appeal to me against changing the place of trial, and thereby in effect depriving him of the ability to establish his defence. This objection, if well founded, would be entitled to great consideration. The defendants should not be deprived of any legitimate means of defence, nor will I consent to do that. They must, at all events, have a fair trial. I shall, therefore, from a sense of justice evidently as to Baker, and probably as to the other defendants, require that the district attorney shall make a satisfactory arrangement for the payment, by the county of New-York, of the necessary expenses of the indigent witnesses subpoenaed by or on behalf of the defendants, or either of them, and attending at any court where the trial shall not be postponed at their instance. Under such an arrangement, it seems to me that a change of the place of trial cannot be productive of injustice. It is undoubtedly true that it is often advantageous to the innocent accused that the trial should be where they and the witnesses are known, and where the circumstances can be appreciated from local knowledge, but it is still more important that their fate should be decided by jurors selected from an unbiassed community. It can scarcely be necessary for me to say that I do not intend to impeach, in the slightest degree, the general character of New-York jurors. Their respectability and their disposition to do right are not doubted; but they, like those selected from the rural districts, may be influenced, in weighing the evidence and adopting their conclusions, by the public sentiment, when that has been strongly formed and become generally known.

Ordinarily, where the place of trial is changed, an adjoining county should be selected, and so the authorities declare.

However, there is no express limitation, and if the necessity which may require any change, should call for a more remote county, that should be selected. In this case, it is probable that the constant intercourse between the inhabitants of New-York and the adjoining counties, and the free circulation of the newspapers of the city in its vicinity, have effected an extensive coincidence of sentiment, and the embarrassment in obtaining a fair and impartial trial in any adjoining county would be very great; I must therefore direct that the trial shall be had in a more remote county. The notice of motion designates the county of Suffolk, and as no particular objection was raised to that locality, I shall direct that the trial be had there, unless the counsel for the prosecution and for the defendants shall sign a mutual consent designating some ether county.

An order must be entered, reciting that it satisfactorily appears, from the disagreement of the jury first empaneled to try the defendant Baker, the prevalence of formed and expressed opinions among the many jurors who had been summoned, and had attended upon the inchoate second trial of the same defendant, and the indications which were thereby evinced that a strong sentiment as to the guilt or innocence of the defendant existed very generally among the citizens of New-York, that a fair and impartial trial of the accused cannot be had in the county of New-York, where the venue is laid, and that, therefore, the trial must be had in the county of Suffolk (or any other county which may be designated by counsel), upon the completion of the arrangements which I have designated for the payment of the expenses of the defendant’s witnesses.


author: Strong, J. Strong, J. Strong, J. Strong, J. Strong, J. Strong, J. Strong, J.,

text:
    Westchester Oyer and Terminer.
    June, 1856.
    Before S. B. Strong, Justice of the Supreme Court, W. S. Robertson, County Judge, and the Justices of the Sessions.
    The People v. George Wilson.
    The trial of a criminal case will he postponed on the application of the defendant, on the general affidavit of the absence of material witnesses, unless it is apparent that the application is made merely for the purpose of delay; in which case an affidavit will be required showing the nature of the defence intended to be sustained by the absent witnesses, that the court may judge of their materiality.
    Where an application was made to postpone the trial of an indictment for murder, and it was claimed by the District Attorney, and was not controverted by the defence, that no living person except the prisoner was present at the alleged murder, and there was no pretence of an alibi, such' general affidavit was held to be insufficient, and the prisoner was required to disclose what defence he expected to establish by the evidence of the absent witnesses.
    Trials in criminal cases will not usually be postponed on account of the absence of witnesses to character.
    Where an application was made to postpone the trial of an indictment for murder, to enable the defendant to procure witnesses to character, and the District Attorney, in opposing the motion, offered to admit the previously good general character of the prisoner-, the motion was denied on the making of such admission.
    On the trial of an indictment for murder, a juror was challenged by the District Attorney, for principal cause, on the allegation that he was opposed to capital punishments; on being sworn, the juror testified that he was opposed to the punishment of death, but said that if sworn as a juror on a trial for murder, and the evidence of guilt was clear, he should find the accused guilty; held, that the challenge was'not sustained.
    Where a challenge for principal cause, in such a case, had been made and tried, and the juror had been decided to be competent, it was held that the trial of the challenge might be opened, even after the juror had been sworn and taken his seat, and other jurors had been called, but before evidence in the cause had been taken, if it appeared that the juror had misunderstood the question put to him, and had given a wrong answer, and that the juror desired to make the correction and to say that he could not, under any circumstances, convict on a charge of murder; and where, on resuming the trial of a challenge under such circumstances, the juror repeated such correction, the challenge was held well taken, and the juror was set aside.
    On a trial before the Oyer and Terminer, in the county of Westchester, it appeared that the alleged murder had been perpetrated on board a vessel lying at anchor on Long Island Sound, about a quarter of a mile west of Hartt Island, and northerly of a line connecting the extreme points of Hartt and City Island; held, that the offence was committed within the county of Westchester.
    Every part of the State of New-York is included within some one of the counties enumerated in the statute.
    Where a body of water, in which the tide ebbs and flows, is situated between a range of islands and the main shore, and all are so near to each other that a person with the ordinary power of vision can see with the naked eye, from point to point, on every part of the connecting line, what is doing on each, it is within the county bounded upon the high seas, according to the rule which extends the jurisdiction of a county to a line running from one to the other of the fauces terree.

    When a brother-in-law of the deceased was called to show that, five months after the alleged murder, he saw and examined a body which was found, and was claimed to be the body of the deceased, and proceeded to testify to several points of resemblance between the body found and the person charged to have been murdered, and was then asked by the counsel for the prosecution, whether, in his opinion, it was the body of the person alleged to have been murdered, it was held, that the question was incompetent, and that it was the province of the jury, and not of the witness, to draw the conclusion from the points of resemblance, and to decide upon the identity of the body found, it appearing that the body found had been much decomposed and changed, and that all the remaining points of resemblance had been stated by the witness to the jury.
    Ordinarily, there can be no conviction for murder until the body of the deceased is discovered; held, that the circumstances of this case formed no exception to the rule.

      E. Wells (District Attorney), for the people.

      B. Bailey and F. Larkin, for the prisoner.
   On the 10th of June, 1856, two indictments were found and presented against the prisoner, one charging him with the murder of William Palmer, captain of a schooner called the Eudora, on board of that vessel, while lying at anchor between Hartt Island and City- Island, in that part of Long Island Sound bordering on the county of Westchester, on the 24th of November, 1855 ; and the other charging him with the murder of Gilbert Pratt, the mate of that vessel, at the same time. The prisoner, on being arraigned, pleaded not guilty, and demanded a trial. The District Attorney proposed to try the prisoner, upon the indictment for the murder of Captain Palmer, on some day during the then session of the court. Mr. Bailey, for the prisoner, presented his affidavit, stating that he had material and necessary witnesses in the city of New-York, and others in the State of Pennsylvania, whose attendance could not be procured during the present session of the court, and moved that his trial should be postponed until the next session of the court, in the following September. The District Attorney opposed the motion, stating that the alleged crime had been perpetrated by the prisoner (who was the colored cook on board the vessel), during the night, when none but himself and the two murdered men were present, and that the absent witnesses could have no knowledge of the transaction.

Strong, J.

It is usual to put off trials in criminal cases on the general affidavit, unless it is apparent that the application for postponement is merely for the purpose of delay; then, and especially in cases where (as in trials for murder) the ends of justice are best attained by prompt action, something more is required. The affidavit should then state the nature of the defence to be sustained by the absent witnesses, in order that the court may judge of their materiality. In this case it seems, or at least it is inferable from the statement of the District Attorney, which is not controverted, that no living person but the prisoner was present (if indeed he was the guilty party) at the scene of the alleged murders. If so, the proposed witnesses can say nothing as to the transaction, and there is no pretence of an alibi. It is, therefore, so difficult to conjecture what material facts those witnesses can disclose that it is reasonable and proper to refuse a postponement, unless the prisoner discloses the nature of the defence which he intends to establish by their evidence.

Mr. Bailey then said that it was intended to prove by the absent witnesses that the prisoner had, up to the time of the supposed murder, sustained a fair character. The District Attorney proposed to admit, for the purposes of the trial, that the prisoner’s general character had been good. •

Strong, J.

Trials in criminal cases are not usually put off on account of the absence of witnesses to character. If that could be done there would be few, if any, trials for murder at the same court where the indictments are found, as the accused may suppose, or at least they could easily swear, that there were absent witnesses who could attest to their general good conduct. Besides, although the dread of perjury would be great with the innocent, yet, there would be little or none with those guilty of a more heinous offence. It is said by Chitty, and, I think, also in an opinion in the Court of Bang’s Bench [the judge alluded to what was said by Laurence, J., in the case of The King v. Jones, 8 East, 31], that it is the constant practice of the Old Bailey not to put off trials on account of the absence of witnesses to character, lest there should be a failure in that prompt execution of justice so necessary to the intimidation of offenders. (1 Chit. Cr. L., 402.) If, however, an admission from the public prosecutor had been necessary, it should, to make it of any avail, be unqualified.

The District Attorney made such admission.

Strong, J.

The trial must, then, be set down for the twelfth instant.

On that day the trial commenced. After several of the jurors drawn had been challenged and set aside, and one had been sworn, one Ezra Haight was called, and was challenged for principal cause by the District Attorney, on the allegation that he was opposed to capital punishments, and could not, therefore, conscientiously convict any one on a charge of murder. The juror, on being sworn, testified that he was opposed to the punishment of death; but said, in answer to a question from the court, that he should, if sworn as a juror on a "trial for murder, and the evidence of guilt was clear, find the accused guilty. The court thereupon decided that the challenge had not been sustained, and the juror was thereupon sworn and took his seat. After another juror had been sworn, and several others had been set aside, Haight, who had been laboring under considerable trepidation, addressed the court, and said that he had misunderstood the question propounded to him, and given a wrong answer, and that he desired to correct himself, and say that he could not, under any circumstances, convict one on a charge for murder. The District Attorney thereupon moved that the juror should be set aside, which was opposed by the counsel for the prisoner, who said that in a case of so much importance they were bound to raise every objection which could benefit the accused.

Strong, J.

The position is a novel one, but it does not, I think, present an insurmountable difficulty. It was correctly held, in the case of The People v. Damon (13 Wend., 351), that a juror, who, after he is sworn in chief and has taken his seat, is deemed to be incompetent to serve, may in the exercise of a sound discretion be set aside by the court at any time before evidence is given, and that this may be done even in a capital case, and as well for cause existing before as after the juror was sworn. In that case, however, the juror had not been previously challenged; whereas in that now before us a challenge had been inter-posed, and a trial has been had, and the juror has been found by the court to be competent. So long as that finding stands, the juror cannot be discharged; and yet it would be a mere mockery of justice to suflrer the trial to proceed under such circumstances, and with such a juror. The maxim that “ what necessity compels, it justifies,” must, I think, apply in such a novel case. Our decision that the juror was competent must be vacated; the challenge to him must be opened; and the trial of it must be resumed. This was done; the juror repeated his last statement, and the court pronounced the challenge true, and the juror was set aside.

The District Attorney stated in his opening address to the jury that the murder had been perpetrated on board of the Eudora, whilst she was lying at anchor about a quarter of a mile west of Hartt Island, and within (northward of) a line connecting the extreme points of Hartt and City Islands.

The counsel for the prisoner objected that, from the statement of the District Attorney, it was apparent that the scene of the alleged murder was upon Long Island Sound, and therefore beyond the jurisdiction of a state court sitting in the county of Westchester.

Strong, J.

The boundary line of the State of New-York commences at Lyons Point, at the mouth of Byram’s river, where it falls into Long Island Sound, and the last portion of it runs from Sandy Hook to the place of beginning (Lyons Point) in such manner as to include Staten Island and the islands of Meadon on the west side thereof, Shooters Island, Long Island, Gardiners Island, Fishers Island, Shelter Island, Plumb Island, Robins Islands, Ram Island, the Gull Islands and all the islands and waters of the Bay of Hew-York and within the described bounds. (1 R. S., 61-65.) Whether a line is drawn directly from Sandy Hook to Lyons Point, or (what the description requires) a circuitous line, so as to include the islands, is adopted, that part of the sound where the vessel was lying is within this state. By a statutory provision the state is divided into fifty-six counties. (3 R. S., 1.) By this I understand the entire state, so that every part of it, whether of land or water, is included in some county; such appears to have been the opinion of our Court of Appeals in a case reported by Mr. Selden. [The judge alluded to the case of Manley v. The People, 3 Seld., 295.] In that case a majority of the judges, upon that principle, decided that where goods had been stolen on board of a vessel in Long Island Sound, opposite the county of Suffolk, but extra fauces terra, the offence was committed within that county. The dissenting judge admitted that a careful examination will show that every part of the state is included in some one of the counties enumerated in the statute, but he contended that no part of Long Island Sound, “ except so much of it as Westchester includes,” is embraced in either. The county of Westchester is bounded southerly by Long Island Sound, and includes “ all the islands in the sound to the east of Frogs Neck and the northward of the main channel,” of which Hartt and City Islands are two. As those islands are confessedly north of a straight line from Sandy Hook to Lyons Point and also of the main channel, they, and I think as clearly the waters between them, are in the county of Westchester. Besides, where, as in this case, a body of water in which the tide ebbs and flows is situated between a range of islands and the main shore, and all are so near to each other that a person with the ordinary power of vision can see with the naked eye from point to point on eveiy part of the connecting line what is doing on each, I think that it is included within the county according to the rationale of the rule which extends the jurisdiction of the county to a line running from one to the other of the fauces terra. I am satisfied that this court has the requisite jurisdiction, so are all of us, and the trial must proceed.

Neither of the bodies were found until the following May. Some time in that month a body was cast on the shore of Hunter’s Island, within two miles of the place where the Eudora was anchored at the time of the alleged murder, during a severe storm, which was supposed to be that of Captain Palmer. The body was considerably decomposed, but there were several very significant marks upon it, among others, there was a considerable excoriation around one of the legs, which appeared to have been made by a tight ligature, which had probably been severed by sharp stones. The length of the body was within half an inch of the height of the deceased. In both the body of the living Captain Palmer and that which was found there was an unusual length of the face from the ear to the chin; a considerable widening of the end of the little finger of the same hand, and a ridge from the root to the end of the nail. The captain had impressed the initials of his name, with indelible ink, on his arm and his leg. The skin on the same part of the same arm of the body found had been cut out, and a part of the skin on the marked leg had also been removed, but the letter “P” had been left and was plainly visible. A brother-in-law of the captain, who saw and examined the body thrown on Hunter’s Island, was examined as a witness, and, after he had mentioned these various marks, he was asked by the counsel for the prosecution whether, in his opinion, it was the body of the deceased captain. The counsel for the prisoner objected to the question.

Strong, J.

Ordinarily, the question of identity is one of fact, and a witness may be asked whether he knows a particular individual, and, if so, whether he is the person indicated; but the question put to this witness is not the ordinary one of identity. It calls for an opinion relative to a body which, if that of the deceased, had been submerged in salt water for upwards of five months, and had undergone many changes. The witness can only state a conclusion drawn from the points of resemblance mentioned by him. The jury have heard his statements, and it is for them, and not the witness, to decide whether the body was that of the deceased captain.

The question must be rejected.

The vessel had been sunk shortly after the supposed murder. Four holes had been bored through her bow, and the auger was inside of the vessel and near the holes. The pillows and mattresses of the captain and mate were saturated with blood; many of their clothes had been thrust into a hole under the cabin. The prisoner had an axe which corresponded in shape and size with a cut in the skull of the body found on Hunter’s Island. There was no evidence that any other person than the prisoner was on board of the vessel with the captain and mate on the evening of the murder. The prisoner left the vessel in a sinking condition, about eight o’clock on the following evening, in a long boat, and was arrested when near the shore of City Island. On stripping him, the captors found the captain’s pocket-book, containing about $50, in one of the prisoner’s boots, and they also found upon his person the mate’s watch and pencil case, and some other articles of the deceased persons. The prisoner said that they had gone ashore the day before, but gave no other account of what had occurred on board the vessel.

In the several opinions expressed by the presiding justice the other members of the court concurred.

Strong, J.,

in his charge to the juiy, after recapitulating the evidence, and stating several rules of law applicable to the case, said that ordinarily there could be no conviction for murder until the body of the deceased was discovered. That there were several exceptions to the rule, however, as where the murder has been on the high seas at a great distance from the shore, and the body had been thrown overboard, or where the body had been entirely consumed by fire, or so far that it was impossible to identify it. But in the present case, the scene of the supposed tragedy was near the shore, and there was strong reason to suppose that, if a murder had been committed, the body of the deceased would be discovered. The exception to the rule is therefore inapplicable, and the jury must be satisfied that the body discovered on Hunters Island was that of the murdered captain, before they could convict the prisoner.

The trial was concluded at one o’clock in the morning of the fourteenth of June, at which hour the jury found the prisoner guilty. He was sentenced to be hung on the twenty-sixth of July following, and was accordingly executed on that day.


author: Mason, J.

text:
    Supreme Court. Delaware General Term,
    July, 1856.

      Gray, Shankland and Mason, Justices.
    Richard Thompson, plaintiff in error, v. The People, defendants in error.
    In charging, in an indictment, a statutory offence, it is not necessary to follow the precise language of the statute, but words of equivalent import are sufficient.
    An indictment for burglary in the second degree, charging the felonious breaking and entering of the “house” of E. B. P., with intent, &c., was adjudged sufficient, on writ of error, it being held that the word “house,” in its primary and common acceptation, meant a “ dwelling-house.”
    After conviction and sentence, it is too late to question the indictment, if it contain the substance of the offence, so that the defendant have intelligible notice of the charge made against him.
    Where the return to a writ of error contained only the indictment and the clerk’s minutes of the trial, showing the empanneling of the jury, the verdict of guilty and the sentence of the court, without any judgment record, it was held that the questions could not be raised, whether the defendant was present at the trial, or whether he was asked previous to the passing of the sentence if he had anything to say why sentence should not be pronounced against him.
    Whether such objections would have been available if the record had been before the court, quere.

    This was a writ of error to the Chenango Oyer and Terminer, where the prisoner was convicted of burglary in the second degree. The facts are sufficiently stated in the opinion of the court.

      Horace Packer, for the plaintiff in error.

      I. The indictment is not good on its face. It does not state facts to constitute the crime. The word “ house ” is too general, and is not within the statute. Our statute (2 R. S., 669) is the same as the English 7th and 8th George IV., ch. 29. (1 Arch. Cr. Pl., 225.) The offence must be laid as committed in a “ dwelling-house.” (4 Bl. Com., 225; Russ. on Cr., 797, 819, 820, 826 ; 1 Hale, 550; Bac. Abr., tit. “Burglary,” E.; Chit. Cr. Law, 1109 ; Barb. Cr. Law, 96; Roscoe’s Cr. Ev., 349; Fost. Cr. Law, 38, 39.) Many of our own courts have had the principle involved in this question before them, and have uniformly held with the English authorities. (Wild’s case, 2 Metc., 408; 3 Serg. & Rawle, 199 ; 16 Mass., 141; 2 Mason, 140.)
    II. The indictment should charge that the house was a dwelling, and that some person resided or dwelt in it. (Forsyth v. Commonwealth, 6 Ham. Ohio, 22.) In Lewis’ case (16 Conn., 32), the words “in the night season,” were omitted, and after verdict of guilty and judgment, error was brought, and judgment reversed. The Supreme Court of Virginia, in error, held a like defect fatal in Mark's case (4 Leigh, 658). Our late Court of Errors, in Lambert’s case (9 Cow., 578), say: “ Every indictment must contain a certain description of the crime, and a statement of the facts by which it is constituted.” The Supreme Court, in Allen’s case (5 Denio, 76), held the same, and say that where the statute defines an offence, the indictors must allege the facts to bring it within that definition. Our statute (2 R. S. , 668, 669) defines burglary, “ The breaking into and entering in the night-time the dwelling-house of another, in which there shall be at the time some human being, with intent,” &c., either, &c., specifying the modes, means, manner and circumstances, all of which are wanting in this indictment to make it burglary in the second degree. In this degree it must be a dwelling-house. Burglary cannot be committed in any other house or building, unless it be joined or attached to the dwelling and under its protection, and then it must be laid as committed in the dwelling-house, and the circumstances must be stated. This might have been a wood-house, or hen-house, or carriage-house, or cheese-house, &c. Webster defines a dwelling-house to be a house in which one lives. He defines a “ house ” to be a building intended or used as a habitation. It may be of man or beast; it may be a college, a temple, monastery, the manner of living, the table, a family of ancestors, a tribe, the quorum of a legislative body, the grave, the body, the residence of the soul in this world, or. domestic concerns ; a residence is about the last definition Webster gives to house. “ The indictment must be certain to every intent, and without any intendment to the contrary.” (1 Chitty on Cr. Law, 171, 172 ; Cro. Eliz., 490; Cro. Jac., 20; Stark. Cr. Pl., 203; id., 214.) “ No latitude of intention can be allowed to include anything more than is expressed.” (2 Burr., 1127; 2 M. & S., 381; 1 Chitty Cr. Law, 172.) “Every crime must appear on the face of the record with a scrupulous certainty.” (1 Chitty Cr. Law, 172; Cald., 187; 1 Chitty Cr. Law, 226, 227 ; Arch. Cr. Pl., 40, 41; Lambert’s case, 9 Cow., 578.) The breaking and entering in the night-time “ a house not occupied as a dwelling-house,” and committing a larceny therein, constitutes only a larceny. (2 Metc., 408.) Here the intent to steal only is charged, and it is made burglary in the second degree. These defects vitiate the indictment. (1 Chitty Cr. Law, 226, 227; Arch. Cr. Pl., 38); and the defendant may take advantage of them by writ of error. (Arch. Cr. Pl., 38, 39; 5 East, 304; 2 Hill, 248; 2 R. S., 740; and cases above cited.) The defendant below does not appear to have been present to object to the defects.
    ITT. The record and judgment are bad on error. 1. It does not appear that the defendant was present at the trial, or when sentence was pronounced. 2. The record and proceedings should show upon their face that the court had jurisdiction.of the person as well as of the subject matter. This defect would be fatal on error even in a civil action. 3. It does not appear that the clerk or court asked the defendant what he had to say (if present) why sentence should not be pronounced against him; and this is error. (The People v. Clark, 1 Park. Cr. R., 360, and cases there cited; Safford v. The People, id., 474, and cases there cited.) These two cases were brought up on error and judgments reversed. 4. The record cannot now be amended. (Miller v. Finkle, 1 Park. Cr. R., 374.) 5. The judgment should be reversed, and the defendant therein discharged. (Taylor v. The People, 3 Denio, 97, and cases there cited.)

      Isaac S. Newton (District Attorney), for the people.
    I. The offence is sufficiently described in the indictment to sustain the conviction. 1. The word house will be deemed to mean a dwelling-house, according to its common intent and use, and especially so in this case, after trial, proof of breaking a dwelling-house in the night-time given without objection, and conviction and judgment thereon.
    The word house means, “ appropriately, a building or edifice for the habitation of man; a dwelling place, mansion or abode for any of the human species.” (Webster.) And “every house for the dwelling and habitation of man is taken to be a mansion house in which burglary may be committed.” (3 Inst., 64; Arch. Cr. Pl., 330, note I., 6th ed.) It has always been and is sufficient to use the word mansion, instead of dwelling-house. (Barb. Cr. L., 103; Bacon’s Abr., tit. “Burglary,” E.; 4 Black. Com., 224; The Commonwealth v. Pennock, 3 Serg. & Rawle, 199.) This is because the mansion is, by common acceptation, a place of residence. By parity of reasoning, the word house with us is sufficient, as in common use it has the same meaning. Under the statute the indictment is good. It will be seen that it describes a dwelling-house within the definition found in 2 Revised Statutes (657, § 9; id., 844, 4th ed.), and 2 Revised Statutes (669, § 16; id., 854, 4th ed.) The same term, dwelling-house, is used in the statute for the crime of arson in the first degree. Under that it is held that “ ‘House,’ merely, without saying ‘dwelling-house,’ will suffice.” (Barb. Cr. L., 69, 2d ed.)

    II. This objection comes too late. It is in principle, if valid at all as an objection, precisely like the case of The People v. Powers (2 Seld., 50). The defect complained of is, in fact, and under the decisions, matter of form merely. It did not and does not tend to prejudice him. It is such a case as is provided for by 2 Revised Statutes (728, § 52). That statute provides that “No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be affected, ly reason of any defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” It has been decided, under this statute, that an indictment is good if it contain the substance of the offence, so that the defendant shall have intelligible notice of the charge against him; that defects are settled by judgment. (The People v. Powers, 2 Seld., 50 ; The People v. Biggs, 8 Barb., 547 ; The People v. Treadway, 3 Barb., 470; The People v. Phelps, 5 Wend., 10 ; The People v. Rynders, 12 Wend., 431, 432; The People v. Warner, 5 id., 271; The People v. Taylor, 3 Denio, 91; Butler v. The People, 4 id., 68, 71.) The strictness with which indictments were formerly construed has been greatly relaxed. (The People v. Lohman, 2 Barb., 216, and also cases cited alove.)

    III. The indictment is good at common law, as well as under the statute. At common law the burglary must take place in a mansion or dwelling-house in the night-time. (Butler v. The People, 4 Denio, 70; Arch. Cr. Pl., 330, note 1, 6th ed.) But it is sufficient to state the substance of any offence at common law, and the substance is here stated, and it is good, especially after verdict. (4 Bl. Com., 224; see definitions inpoint I., alove) The authority of 1 Hale (p. 550), it is submitted, was never good, and has not been followed in adjudged cases, though quoted by some authors. (2 Bouv.

      Bacon's Abr., 135, tit. “Burglary," E.) It is there said, in speaking of this question, that “ Andr., 302, and S. P. C., mention precedents of indictments of burglary IN DOMO, without adding mansionali. Also, it is agreed, that burglary may be committed in breaking churches, or the walls or gates of a walled town, in which the word mansionalis cannot be made use of.” This state has never held the position of Hale good, and since the statute above quoted, and the decisions under it, there can be no doubt of the correctness of the judgment in this case.
   Mason, J.

The defendant was indicted under the twelfth section of article two, part four, chapter one of the Revised Statutes, which enacts that “ every person who shall be convicted of breaking into any dwelling-house in the'nighttime, with intent to commit a crime, but under such circumstances as shall not constitute the offence of burglary in the first degree, shall be deemed guilty of burglary in the second degree.” (2 R. S., 668, § 12.) There is but one count in the indictment in this case, which charges “that Richard Thompson, late of the town of Oxford, in the county of Chenango aforesaid, on the fifteenth day of October, one thousand eight hundred and fifty-four, with force and arms, about the hour of twelve o’clock in the night of the same day, at the village of Oxford, in the county aforesaid, the house of Eleanor B. Padgett, there situate, feloniously did break and enter, with intent, the goods and chattels and property of the said Eleanor B. Padgett, in the said house then and there being, then and there feloniously and burglariously to steal, take and carry away the goods, chattels and property of the said Eleanor B. Padgett, in the said house then and there being, to the great damage, &c., and against the form of the statute,” &c.

The defendant was tried in the Oyer and Terminer, and was convicted of burglary in the second degree. No question was raised upon the trial as to the sufficiency of the indictment, or for any defect therein. The defendant was sentenced to imprisonment in the state prison for five years. No motion, in arrest of judgment or otherwise, was made in the court below. No bill of exceptions has been made, but the defendant has procured a writ of error, and has caused the indictment to be certified to this court, with the clerk’s minutes of the trial, showing the empanneling of the jury, the verdict of guilty, and the sentence of the court. There is no record returned by the clerk. The defendant now asks a reversal of the judgment, on the ground that the indictment does not charge a criminal offence; that it is defective in omitting the word “ dwelling” before “house;” that the words “dwelling-house” must be used in charging the offence of burglary under the' statute.

It is not necessary to follow the precise language of the statute in charging the offence in the indictment. Using words of equivalent import to those in the statute is sufficient. (Whart. Am. Cr. L., 133, 137; Rex v. Fuller, 1 B. & P., 180.) The indictment in the case at bar charges a criminal offence under this statute, and the offence is sufficiently described to sustain the conviction. It has always been held sufficient to use the word “mansion,” instead of “dwelling-house,” in charging the offence. (Barb. Cr. L., 103; Bac. Abr., tit. Burglary," letter “ E;" Serg. & Rawle, 199; 2 Arch. Pl., 330, note, 1st ed.) This is because the word “mansion” means a dwelling-house or place of residence. The word “house,” with us, is sufficient, for the same reason; because, in common parlance, it has the same signification. The word “house” means “a building or edifice for the habitation of man; a dwelling place, mansion or abode for any of the human species.” ( Webster.) It does not mean a wood-house, hen-house, ash-house, hog-house, corn-house, warehouse, &c. It means, in its primary and common acceptation, an edifice for the habitation of man, a dwelling place or abode for the human species, a dwelling-house. It is sufficient if the indictment contain enough to inform the defendant and the court of the precise nature of the charge. (The People v. Rynders, 12 Wend., 431.) The statute in regard to arson in the first degree uses the same term, “ dwelling-house,” and under that statute it is held sufficient to describe the building in the indictment “the house of A. B.,” without saying “ dwelling-house.” (Barb. Cr. L., 55,1st ed.; id., 69, 2d ed.; 1 Hall, 567.) But again, the objection now made to this indictment comes too late to avail the prisoner after conviction and sentence. (2 Seld., 50, 52; 2 R. S., 728, § 52.) The indictment is good if it contain the substance of the offence, so that the defendant have intelligible notice of the charge against him. All defects beyond this are settled by the verdict and judgment. (2 Seld., 50; 3 Barb., 470; 8 id., 547; 5 Wend., 10-12, 271; 12 id., 431, 432; 3 Denio, 91; 4 id., 68, 71.)

The counsel for the prisoner claims the reversal of the judgment in this case, on the ground that it does not appear that the defendant was present at the trial or when sentence was pronounced, and that it does not appear that the clerk or the court asked the defendant what he had to say why sentence should not be pronounced against him; relying upon the cases of The People v. Clarke (1 Park. Cr. R., 360) and Sanford v. The People (id., 474). There are two answers to these objections. In the first place, there is no record brought up by this writ of error, and nothing like it. There is nothing before us on which error can be assigned, except the indictment, and I do not think that we should ever pass upon that, disconnected from a record showing a trial and judgment; and so we held at the last term, in the case of The People v. Griswold. In the case of The People v. Gray (25 Wend., 467), the court say the record of judgment has not been brought up, and objections to errors in form, that might be corrected in making it up, cannot be entertained; and I very much doubt whether it is an error for which the judgment should be reversed, if it appear from the record that the prisoner was not asked if he had anything to say before sentence. It is not necessary, however, to decide this question, as we have no record here on Which such error can be alleged.

I see no reason to interfere with the conviction and sentence in this casé.

Gray, J., concurred, and Shankland, J., dissented.

Judgment affirmed.