text:
    Supreme Court. Monroe General Term,
    December, 1860.

      ,Smith, Johnson and Knox, Justices.
    James M. Wixson, impleaded, &c., plaintiff in error, v. The People, defendants in error.
    Where two or more persons, jointly indicted, are all put on trial together, neither one of the defendants can, until discharged from the indictment, be a witness for or against the others.
    Where two or more persons, jointly indicted, are tried separately, one of the defendants not on trial may, by permission of the court, be called and examined as a witness on behalf of’ the People against the defendant on trial, though the person so called and examined has not been convicted nor acquitted, nor otherwise discharged; but a defendant in a joint indictment cannot, while the indictment is pending against him, be called as a witness for his co-defendants, though he be tried separately. (The case of The People v. Don nelly, 2 Pwrk. Cr. R., 182, disapproved.)
    Though it rests in the discretion of the court to decide whether a co-defendant may, on such separate trial, be called as a witness on behalf of the People, no formal application is necessary; and where a co-defendant was offered on the trial as a witness, and was objected to on the ground that he was a co-defendant, and could not be sworn except by special leave of the court, and the objection was overruled by the court, the decision was held to be equivalent to.an order made on a special application to the court.
    Where, on a criminal trial, one of the defendants is a competent witness on behalf of the People, the wife of such defendant is also a competent witness.
    It is not erroneous for the court to charge the jury, on the trial of an indictment, that they may convict upon the uncorroborated testimony of an accomplice.
    Where, on the trial of Wixson for burglary and larceny, the court charged the jury “ that though Wixson had no part in breaking the store and talcing the goods, yet if he knew it was to be done by Lockwood and Lee, or either of them, and the goods were immediately taken to his house, and he aided in furnishing a box to secrete the goods, and directed where they should be placed to avoid discovery and prevent the owner from finding them, so as to convert them to his own use, then he was guilty of larceny,” the charge was held to be erroneous;' and Wixson having been convicted of larceny on such a charge, the judgment was reversed. .
    A felony may be committed'through the instrumentality of an agent without the presence of the principal, when the agent is an innocent party; but if the person employed is guilty, he is the principal in the felony, and his employer is only an accessory.
    So, a felony may be committed by a person constructively' present, though not actually present; but to be constructively present, he must be of the party and do some act in execution of the common design, or be near enough to the scene 'of operations to assist in carrying it out, or to aid those who aro immediately engaged in it to escape, should necessity require.
    Error to the Court of Sessions of Steuben county. An indictment had been found against James W. Wixson, Henry Lee and Lester Lockwood, containing three counts. The first was for burglary, the second for larceny, and the third for receiving stolen goods, knowing them to be stolen.
    Wixson and Lee demanded to be tried separately from Lockwood, but consented to be tried together. The trial accordingly proceeded against Wixson and Lee.
    After several witnesses had been examined on the part of the People, the district attorney called as a witness, Lester Lockwood, one of the prisoners indicted. The counsel for Wixson and Lee objected to his competency as a witness, on the following grounds:

      1. That an accomplice cannot be sworn as a witness, except by special leave of the court.
    2. That Lockwood being jointly indicted, and the indictment being still pending and undisposed of, he cannot be sworn as a witness for or against those with whom he stands jointly indicted.
    The court overruled the objection, and allowed Lockwood to be sworn and examined as a witness in behalf of the People, and the counsel for Wixson and Lee excepted.
    Eliza Lockwood, the wife of Lester Lockwood, wa's also called.and examined as a witness on behalf of the People, against the objection of the counsel for Wixson and Lee; and to the decision that she was a competent witness, the counsel also excepted.
    The court charged the jury that they had the right to convict on the testimony of the accomplice alone, if they were satisfied that he had testified to the exact truth; to this the counsel for the prisoners excepted.
    The court also charged, that it was enough if the accomplice was corroborated as to the material facts, or some of the material facts and circumstances attending the commission of the crime, and that it was not necessary that the public prosecutor should furnish any corroborating evidence connecting the prisoner with the commission of the offense charged in the indictment. To this the prisoners’ counsel also excepted.
    The court also charged, that though Wixson had no part in breaking the store, and taking the property therefrom, yet if he knew it was to be done by Lockwood and Lee, or either of them, and the goods were immediately taken to his house, and he aided by furnishing a box to secrete the goods, and directing where they should be placed to avoid discovery, and prevent the owners from finding them, so as to convert them to his.use, then lie was guilty of larceny, and could be convicted for that offense under the indictment. To this the prisoners’ counsel also excepted.
    The counsel for Wixson and Lee then asked the court to charge that the evidence to corroborate the testimony of the witness Lockwood must be as to some facts which connected Wixson with the commission of the offense charged, or which connected Wixson with Lockwood in the commission of the offense. The court refused so to charge, to which the counsel for Wixson and Lee also excepted.
    The jury found Wixson guilty of petit larceny, and Lee not guilty. Wixson was then sentenced to imprisonment in the State prison for the term of five years. '
    Whereupon the record was removed to this court by writ of error.

      D. Rumsey, for plaintiff in error.
    I. The court erred in allowing the prisoner, Lester Lockwood to be sworn as a witness, because, 1. Before he could be sworn, it was necessary the district attorney should, on motion, ask and obtain leave to swear him as a witness. (1 Phillips' Ev., 39; Cowen & Hills Notes, part 1, p. 68, n. 71; People v. Whipple, 9 Cow. R., 707, 711.) 2. Lockwood, being jointly indicted with Wixson and Lee, and the indictment still pend-ing, was not a competent witness for or against his co-defendants. He is a party to the record, and before the Code, could never be a witness. (2 Cowen & Hill's Notes, p. 135, note 122.) The rule has never been changed in criminal cases. (1 Arch. Cr. P. & P., 154, note; Rex v. Rowland, Ry. & Mood., N. P. R., 471; 21 Eng. C. L. R. and note; 3 Cowen & Hill’s Notes, 1510, n. 72.)
    TT- Lockwood’s wife was improperly admitted as a witness. If Lockwood was not competent, his wife was not. (2 Starlcie Ev., part 4, 708.)
    TTT. The court erred in charging the jury that they had the right to convict on the testimony of the accomplice alone, if they were satisfied he had testified to the exact truth. •
    It has come to be a settled rule of law that corroboration of the evidence of an accomplice is necéssary to warrant a conviction. - The jury have no right to be satisfied with less.'
    See authorities to next point.
    . IV. The court erred in charging the jury that it was enough if the accomplice was corroborated as to some of the material facts connected with the commission of the crime, and that it was not necessary to furnish any corroborating evidence connecting the prisoner with the commission of the offense charged in the indictment. (1 Arch Cr. P. & P., 154, 1; Rex v. Webb, 6 Car. & Payne, 595; 25 Com. L. R., 556; Rex v. Addis, Id., 388; Id., 452; Rex v. Wilkes, 7 Id., 272; 32 C. L. R., 507; People v. Davis, 21 Wend. R., 309, 313, 314.)
    V. The court erred in charging the jury that although Wixson had no part in breaking the store and taking the property therefrom, yet if he knew it was to be done by Lockwood and Lee, or either of them, and the goods were immediately taken to his house, and he aided, &c., then he was guilty of larceny. (Wharton's Am. Cr. Law, 4th ed., § 1811; State v. Harden, 2 Dev. & Bat., 407, and this is cited as good law in 2 Arch. C. P.& P., 379, 2, note 3; 1 Russell on Crimes, 8th Am. ed., 26, 27.)
    ■ He is at most a receiver of stolen goods, and must be indicted as such under the statute, or
    He is an accessory, and must be indicted and tried as such, which cannot be done until after principal is convicted. (Bacon v. People, 1 Park. Cr. R., 249.)
    VI. The court erred in refusing to charge as requested by defendant’s counsel. See authorities under fourth point.
    The conviction is simply petit larceny. The judgment is five years’ imprisonment in State prison.

      C. J. McDowell (District Attorney), for the defendants in error.
    1. Lester Lockwood was a competent witness against his accomplices, and was properly sworn as such.
    1. The proceedings constitute a request by the district attorney, that he be sworn, and the granting of that request by the court. The court exercised its discretion at the instance of the district attorney.
    2. Accomplices have always been held competent witnesses for the People, but not for their co-defendants, and this, whether they were parties to the record or not. (Cowen & Hill's Notes, part II, p. 1504, No. 57, 71; Barb. Cr. L., 2d ed., 424, and cases there cited; Am. Cr. L., 4th ed., § 783, and cases there cited.)

    3. While accomplices have been sworn for the People from the earliest periods of criminal jurisprudence, I find no case holding an accomplice incompetent by reason of his being a party to the record until the case of People v. Donnelly (2 Park. Cr. R, 182).
    Mr. Justice Clerke cites no authority whatever for this decision, while he admits that an accomplice separately indicted is competent, and that there is no good reason for the distinction.
    If there is no reason for the distinction, some authority ought to be cited for the distinction itself.
    Neither being a party to the record, nor interest, nor anything else, has rendered a witness incompetent for the State, when the public exigencies, to be determined by the court and public prosecutor, require him to be sworn.
    “ The evidence of accomplices has, at all times, been admitted, either from a principle of public policy, or from judicial necessity, or from both." (People v. Whipple, 9 Cow. R., 707.)
    H. The competency of the wife of Lockwood follows, as a matter of course, from his competency. Besides, on general principles, she is only excluded in those cases (as conspiracy, for example) where the conviction of the defendant necessarily requires the conviction of her husband.
    III. The rule is well established that juries may convict on the uncorroborated evidence of an accomplice; and while it is generally discreet that courts should advise that the accomplice be corroborated in some essential particulars, it is not a legal necessity nor even a legal requirement. (Am. Cr. L., 4th ed., § 784, et seq.; Cowen & Hill’s Notes, part 2, 1504, et seq.; People v. Costello, 1 Denio R, 83.)
    TV. The last part of the charge is not explicit, but applicable to this case, and no error can be predicated upon it.
    I. To become a principal in larceny as well as any other crime, a man must be actually or constructively present at its commission. (Am. Cr. L., 4th ed., § 1811.)

      2. But there is nothing in this case which precludes such presence. He did not assist in the breaking, nor in the immediate taking of the property from the store; but, for aught we know, he was in such proximity as to give alarm, or ward off danger, or assist the thief in carrying off his plunder.
    The case does not pretend to give all the evidence, and we are, therefore, bound to presume the constructive presence of the defendant.
    3. The law does not prescribe the limit, as to nearness or remoteness, which makes a.man a principal. The only requisites are, there must be a plan, and an ability to aid and give courage and confidence to the operative thief in executing the plan.

      4. But as the above remarks apply to the burglary as well as to the larceny, it is fair to infer that the court intended its remarks to apply to the third count in the indictment.
    Receiving stolen goods is a species of larceny — is properly so denominated — is classed with it in our statutes (2 B. S., 680), and may be included in an indictment for larceny proper.
    5. The third count in the indictment will uphold the verdict and sentence, notwithstanding any exception taken in this case.
    This court cannot, therefore, disturb either.
    Y. The amendment of the record obviates the last point of the plaintiff in error.
   By the Court, Knox, J.

Although the three defendants, Wixson, Lee and Lockwood, were jointly indicted, the first two were tried separately from Lockwood.

On their trial Lockwood was admitted, under objection, as a witness for the People. This is alleged as error.

In the case of The People v. Michael Donnelly, impl. with Beals and others (2 Park. Cr. R., 182), Clerks, J., says: “ It is well settled, and I believe never questioned in this State or England, that when several persons are jointly indicted, one is not a competent witness either for or against the others, without first being acquitted Or convicted, and it makes no difference whether the defendants plead jointly or separately ; an accomplice, however,, separately indicted, is competent. Whether there is any good reason for this distinction, it is unnecessary to inquire on the present occasion.”

This was a general term decision, and we should feel bound to follow it and reverse the judgment in this case, for it determines the very point raised by the counsel for Wixson, were we not convinced that the decision is erroneous beyond all question.

An examination of the cases will show that the correct rule as to the admissibility of accomplices is this: When the persons indicted are all put on trial together, neither can be a witness for or against the others; but when they are tried separately, though jointly indicted, the People may call those not on trial, though not convicted or acquitted or otherwise discharged, with the permission of the court; but they cannot be called as witnesses for each other, though separately tried, while the indictment is pending against them. If acquitted they may be examined, and even if convicted, unless it be for a crime which disqualifies, and then sentence must have followed the conviction. When all are tried together, if the People desire to swear an accomplice, he must in some way be first discharged from the record.

From this it will be seen that there is no such “ distinction” as is mentioned by Justice Clerks, because an accomplice, separately tried, is in the same condition with reference to his competency as an accomplice separately indicted. Certainly, there can be no “good reason ” for any such “ distinction.” (2 Russ, on Cr., 956, 957; 1 Greenl. on Ev., 506, § 363; p. 524, § 379, and cases in notes; Barb. Cr. L., 2d ed., 425.) The case of Rex v. Rowland and others, 1 Ryan & Moody, 401; 21 Eng. Com. Law, 471; cited by Justice Mitchell, in his opinion in the case cited from Parker, was where all the defendants were on ■ trial, and hence the necessity, on the part of the prosecution, that the two defendants who were to be used as witnesses, should be discharged. The indictment was for a conspiracy. The case referred to by the learned justice, in “ Cases Temp.” Hardw., 163, was when the parties were not separately tried, I conclude; I have not the book at hand; but the case is referred to in Grreenleaf, in a connection which authorizes me to say that it is not an authority against the rule which I suppose to be the true one.

The same learned justice says: “ Our courts have decided that one defendant in an indictment cannot be a witness for another; it cannot be on the ground of interest, for there is no interest either way; and if it be because he is a party, it applies whether called for the people or his co-defendants.”

Undoubtedly, one defendant cannot be a witness for another in the same indictment, unless he have been' acquitted, or convicted of an offense which would not disqualify, or in some way discharged from the record ; but the reason why the evidence of accomplices has been admitted for the government, rests upon reasons of public policy, or the necessity of the case. (People v. Whipple, 9 Cow. R., 707; People v. Costello, 1 Denio R., 83 ; See cases above cited.)

Lockwood was, therefore, properly admitted as a witness. Eo general application was necessary, although it rests in the discretion of the court, whether an accomplice, already charged with the crime by indictment, shall be admitted.

In this case, the district attorney called Lockwood as a witness. The counsel for the defendants objected “ that an accomplice could not be sworn, except by special leave of the court.” The court overruled the objection, and allowed the witness to be sworn.

In my judgment, this was tantamount to a formal application for leave to swear the witness, and a determination by the court to accede to the request.

If it was proper to allow Lockwood to be sworn, of course it was no error to admit his wife. She would not have been competent, had her husband been incompetent as an accomplice.

The charge of the judge, that the jury might convict upon the uncorroborated testimony of an accomplice, was clearly right, and in accordance with all the cases, which are very numerous. (The People v. Costello, 1 Denio R., 83; The People v. Haskins, 16 N. Y. P., 344; The People v. Dyle, 21 N. Y. R., 578.)

The true rule is briefly but comprehensively stated, in the case from Denio P., just cited, by Beardsley, Justice.

This indictment contains three counts : one for burglary, one for larceny, and one for receiving stolen goods, knowing them to be stolen. The defendant was convicted of petit larceny, as appears by the bill of exceptions, and sentenced to the State prison for five years. This judgment—five years in the State prison, for petit larceny, which is punishable only by fine, or imprisonment in the county jail, or both — is manifestly improper. As matter of fact, this could hardly have happened; and it is said by the district attorney that the conviction was for grand larceny, and that, by mistake, the clerk entered in the minutes a conviction for petit larceny.

If the conviction was really for petit larceny, the judgment must of course be reversed, for the reason suggested; and if for grand larceny, the judgment must be set aside for another reason, to wit: an error in the charge, to which I now call attention.

It seems, by the testimony of Lockwood, upon which, mainly, the conviction of Wixson was had, that he and Lee, at the instigation of Wixson, committed the burglary and larceny charged in the first count of the indictment; and that the property then stolen was taken to the house of Wixson, and there concealed, with his assistance and advice. It does not appear that Wixson was present when the burglary, &e., were committed, nor was he so near that it could be said that he was constructively present. Indeed, the evidence is to the effect that Wixson, although he instigated the burglary, &c., and knew when it was to be committed, was himself, at the time, at home and abed. And yet he was convicted of larceny; and. the jury were right in so doing, under the charge of the court, which was: “ That although Wixson had no part in breaking the store and taking the goods, yet if he knew it was tó be done by Lockwood and Lee, or either of them, and the goods were immediately taken to his house, and he aided in furnishing a box to secrete the goods, and directing where they should be placed to avoid discovery, and prevent the owner from finding them, so as to convert them to his own use, then he was guilty of larceny.”

This charge was clearly erroneous. Under it, Wixson might have been convicted, though he had been a thousand miles from the place where the felony was committed.

That a felony may be committed through the instrumentality of others, though the principal be not present, is well settled, upon the principle, “ qui facit per alium, facet per se,” which is as applicable to criminal as civil cases. But this is where the “ other,” or agent, is an innocent party. When the.person employed is guilty, he is the principal, and his employer but an accessory. (The People v. Adams, 3 Denio R., 308; 1 Russ, on Cr., 27.) I speak of crimes which are felonies. In misdemeanors there are no accessories, but all the guilty actors, whether present or absent, are principals. ■ (4 Denio R., 130.)

It is not required that a party should be proved to have been actually, personally present at the commission of a felony, to warrant his conviction as a principal. It is enough that he be constructively present. 'By this is meant that he must be of the party, and do some act in execution of the common design, or be near enough to the scene of operations, to assist in carrying it out, or to aid those who are immediately engaged in it to escape, should necessity require.

As before observed, the jury, under the charge given, were warranted in convicting Wixson as principal, though they had believed, upon the evidence, that he was neither actually nor constructively present, but miles away from the place where the burglary and larceny were committed.

Why the jury convicted Wixson and acquitted lee, who was tried with him, I cannot understand.

The testimony against him was certainly as strong as against Wixson.

The fact that he had previously borne a good character did not, as against the positive testimony of Lockwood as to his complicity in the burglary and larceny, tend to show that he was innocent. If Lockwood was to be believed, there could be no doubt of Lee’s guilt, and his previous good character would then avail him nothing. . If the jury put so little reliance on Lockwood’s testimony, that proof of Lee’s previous good character induced them to reject it wholly as to Lee, how could they convict Wixson on the same testimony ?

In my opinion, upon the evidence, Wixson could have been convicted only as an accessory to the felony, or as a receiver of stolen goods.

For the error committed in the charge to the jury, the conviction and judgment must be reversed.


source: Caselaw Access Project

author: By the Court, Balcom, P. J.

license: Public Domain

text:
    Supreme Court. Broome General Term,
    July, 1861.

      JBalcom, Campbell and Father, Justices.
    The People v. Edward Murphy.
    Any person may keep an inn, tavern, or hotel, in this State, without having a license to sell strong or spirituous liquors and wines to be drank in his house; and a person keeping an inn, tavern, or hotel, without such license, who sells or gives away any intoxicating liquors or wines on Sunday, or on any day on which an election or town meeting is held, within a quarter of a mile of the place of such election or town meeting, is guilty of a misdemeanor, under the act of April 16, 1851. {Laws of 1851, eh. 648, § 21; 2 B. 8., 5th ed., 944.)
    Where a defendant had been convicted before the Court of Sessions of a misdemeanor for a violation of the excise laws, and exceptions taken by him had been removed into this court, by certiorari, and sentence stayed, on affirming the conviction, the proceedings were remitted to the Court of Sessions, with directions to proceed and render judgment, and the defendant was required to appear at the next term of that court to receive sentence.
    Certiorari to the Tioga Court of Sessions. The prisoner was indicted, tried and convicted in that court for selling intoxicating liquors, as an inn, tavern or hotel keeper, in the town of Gwego, on Sunday, in the year 1859, contrary to section 21 of 'An act to suppress intemperance and to regulate the sale of intoxicating liquors,” passed April 16, 1857. {Laws of 1857, vol. 2, p. 413; 2 B. 5th ed., 944.) The prisoner took exceptions, which were removed into this court by certiorari, sentence being stayed. One witness testified that the prisoner "was “a hotel keeper ”— that he kept up a sign, and had been keeping “ such a house ” from the spring of 1859 until the time of his trial in December, 1860that he (the witness) bought whiskey of the prisoner by the drink, and paid him therefor on Sunday, in November and December, 1859; that he "saw the prisoner engaged in his public house, tending bar, dealing out liquor, and that he kept a sign up, but the witness did not know,how it was worded; that the prisoner kept a house for entertainment of travelers — entertainment for man and beast—that the only way he knew the prisoner was a hotel keeper was from observation and what he saw. Another witness testified that he supposed the prisoner kept a hotel; that he had a bar and a sign, which read, “Murphy’s Inn;” that he waited on customers; that people came there to put up as they did at taverns; that the' prisoner kept a house of entertainment for man and beast; "that he had stabling, hay and grain — a large quantity — five beds, eight stalls; that he kept a bar, and professed to keep a hotel; that he bought liquor, to wit, whiskey by the drink, and paid him for it, on Sunday, in July, 1859, “while he was keeping hotel;” that travelers stopped and staid all night with the-prisoner.
    There was no certain, and perhaps no legal, evidence that the prisoner had a license to sell intoxicating liquors as an inn, tavern or hotel keeper, in 1859.
    The court charged the jury, among other things, “ if the evidence in the minds of the jury established the fact that the defendant kept an inn, tavern or hotel, and had sold liquor on the Sabbath, as charged in the indictment, he had violated section 21 of the act, and was guilty of the offense charged, whether the defendant was shown affirmatively to have had a license or not." To which part of the charge the prisoner’s counsel excepted.

      D. O. Hancock (District Attorney), for the People.

      Charles A. Hunger, for the prisoner.
   By the Court, Balcom, P. J.

Edwards says, a hotel “ is only an elegant kind of common inn.” (Edwards on Bailments, 401.) The same author remarks, in a note at the bottom of page 4£)2, “ Every hotel is an inn, but not every inn is a hotel.” At common law, any person may keep an inn for the public accommodation, without a license, as the keeping of it is not a franchise, but a lawful trade open to every citizen. (The Overseers, &c., v. Warner, 3 Hill R., 150.) And I am of the opinion any person may keep an inn, tavern or hotel, in this State, without having a license to sell strong or spirituous liquors and wines to be drank in his house. Chapter 97 of the Laws of 1843 (Laws of 1843, pi 79) was abrogated in 1857, by the repeal of title nine of chapter 20, part first of the Revised Statutes, entitled, “ Of excise, and the regulation of taverns and groceries (Laws of 1857, vol. 2, p. 416, sec. 33), and by the repeal of the above mentioned title, the prohibition to erect or put up a sign, indicating that a person keeps a tavern, unless he has a license to sell strong or spirituous liquors or wines, to be drank in his house, was removed-; and any person may now erect and keep up a sign indicating that he keeps an inn, tavern or hotel, without having a license of any kind. That kind of business is, therefore, unrestricted, unless the sale of intoxicating liquors is made a part of it.

This case turns upon the question, whether the prisoner could be lawfully convicted of a misdemeanor, for selling intoxicating liquors on Sunday, as a beverage, when he had no license to sell such liquors, as an inn, tavern, or hotel keeper, on other days, granted under and pursuant to the provisions of chapter' 628 of the Laws of 1857, entitled, “An act to suppress intemperance and to regulate the sale of intoxicating liquors.” (Laws of 1857, p. 405, vol. 2.) I think the evidence authorized the jury to find he was an inn, tavern or hotel keeper, when he sold the whiskey as a beverage, mentioned by the witnesses, on Sundays, in 1859. Section 21 of the act of 1857, declares, that no inn, tavern or hotel keeper, or person licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday, or upon town meeting ox ■ election days, within one-fourth of a mile of the polls, to any person whatever, as. a beverage; also, that “ whoever shall offend against the provisions of this section shall be guilty of a misdemeanor, and on conviction shall be imprisoned in the county jail, workhouse or penitentiary not more than twenty days.” It will be seen that an inn, tavern or hotel keeper, is prohibited from' selling or giving away intoxicating liquors or wines on Sunday, in any quantity as a beverage. But a person, not an inn,' tavern or hotel keeper, can, if he has no license granted under or pursuant to the act of 1857, sell strong or spirituous liquors or wines on Sunday, or on town meeting and election days, at any place, in quantities more than five gallons at a time, for any purpose ; and he may give away such liquors or wines in less quantities, or by the drink, on any day, or at the place where a town meeting or an election is held. (Laws of 1857, vol. 2, p. 110, § 13.)

I think section 21 of the act of 1857 was especially designed to prohibit inn, tavern and hotel keepers, whether licensed or not, from selling or giving away any intoxicating liquors or wines on Sunday, or on town meeting and election days, within one-fourth of a mile of the polls; and if this conclusion be correct, an unlicensed inn, tavern or hotel keeper, who sells or gives away any intoxicating liquors or wines on Sunday, as a beverage, violates that section and commits a misdemeanor. If that section' read that no inn, tavern or hotel keeper, or other person, licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday, or on town meeting or election days, &e., as a beverage, the construction put upon it by the prisoner’s counsel would be correct; but the word other is not in the section, and his construction of it is, therefore, erroneous.

My conclusion is, that the prisoner was guilty of a misdemeanor, and that his conviction should be affirmed, and the •indictment and proceedings should be remitted to the Tioga Court of Sessions, with directions to proceed and render judgment (2 B. S., 5th ed., 1035, § 27), and the prisoner should be required to appear at the next term of that court to receive sentence. (Id., 1034, § 21.)

Decision accordingly.


author: By the Court, Knox, J.

text:
    Supreme Court. Cayuga General Term,
    June, 1860.

      Smith, Johnson and Knox, Justices.
    The People v. Judson H. Graves.
    Form of an indictment for feloniously removing the dead body of a human being from the grave for the purpose of dissection or sale, with a count for • feloniously receiving a dead body, knowing it to have been feloniously disinterred.
    Where, on the trial of' an indictment, the jury bring into court a verdict defective in form, it is competent for the court, before they have separated, to send them out again to consider the case further, and to agree on'a verdiet in due form, though the informal verdict may have been received and entered in the clerk’s minutes," and the jury may have made the usual response, assenting to it when the entry by the clerk was read over to them.
    When a verdict, defective in form, is brought in by a jury, it is not erroneous for the court to direct the jury to retire again to say under which count they find the prisoner guilty.
    It is not a valid objection to a count in an indictment, that it refers to material * matters alleged in a previous count, instead of repeating the allegation.
    All that is necessary to the validity of an indictment is, that it enables a . defendant to prepare for his defense, and to plead the judgment against him in bar of a second ■prosecution.
    An indictment for feloniously disinterring the body of M. J. B. is not defective, ' because of an omission to allege that she was “ a human being.” That fact will be assumed. And where the burial place is described as “ a graveyard in the town'of Bristol, Ontario county," it was held to be no material defect that the particular graveyard was not designated..
    On the trial of such an indictment, when the question of the identity of the body disinterred is'submitted to the jury, it is not "erroneous for the court to charge that it would be just as good to identify a foot or a hand as the whole person.

      An indictment was found in the Court of Sessions of Ontario county, of which the following is a copy:

      /State of New Yorh, Ontario County, ss:

    The jurors for the People of the State of New York, and for the body of the county of Ontario, to wit: Jonas M. Wheeler, &c., being sworn and charged to inquire for the People of the said State, and for the body of the county aforesaid, upon their oath, present that John C. Weed, Alanson E. Simmons and Judson H. Graves, late of the town of Bristol, in the county aforesaid, on the 1st day of June, 1858, with force and arms, at the town of Bristol, in the county aforesaid, a graveyard situated in the said town of Bristol, county of Ontario aforesaid, did enter, and the grave therein in which the body of one Martha J. Brockelbank, deceased, had lately before then been interred and then was, with force and arms unlawfully, voluntarily, willfully and indecently, did dig, open and afterward, to wit: on the same day and year aforesaid, with force and arms, at the town of Bristol, in the county aforesaid, the dead body of her, the said Martha J. Brockelbank, out of the grave aforesaid, unlawfully, feloniously and indecently did take and carry away, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present that the said John C. Weed, Alanson E. Simmons and Judson H. Graves, on the day and year last aforesaid, and at the town, county and State aforesaid,” a graveyard situ: ated in the said town of Bristol and county aforesaid, did enter, and the grave in which the body of one Martha J. Brockelbank, deceased, had lately before then been interred, and then was, with force and arms, unlawfully, voluntarily, willfully, feloniously and indecently, did dig open and after-wards, to wit: on the same day and year aforesaid, with force and arms, at the town of Bristol, in the county and State aforesaid, the dead body of her, the said Martha J. Brockelbank, out of the grave aforesaid, unlawfully, feloniously and indecently did take, remove and carry away for the purpose of dissection, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present that the said John C. Weed, Alanson E. Simmons and Judson H. Graves, on the day and year aforesaid, at the town, county and State aforesaid, a graveyard situated in the said town of Bristol, county aforesaid, unlawfully did enter, and the grave there, in which the body of one Martha J. Brockelbank, deceased, had lately before then been interred, and then was, with force and arms, unlawfully, voluntarily, willfully, feloniously and indecently did dig open, and after-wards, to wit: on the same day and year aforesaid, with force and arms, at the town and county aforesaid, the dead body of her, the said Martha J. Brockelbank, out of the grave aforesaid, unlawfully, feloniously and indecently did take, remove and carry away, for the purpose of selling the same, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present that the said John C. Weed, Alanson E. Simmons and Judson H. Graves, afterward, to wit: on the same day and year last aforesaid, at the town of Bristol, in the county aforesaid, the dead body of one Martha J. Brockelbank, deceased so as aforesaid, unlawfully, feloniously and indecently dug up from the* grave aforesaid, and unlawfully and indecently taken and carried away as aforesaid, from the said grave, unlawfully, feloniously and indecently, did receive for the purpose of dissection, they, the said John 0. Wood, Alanson E. Simmons and Judson H. Graves, 'then and there well knowing the said dead body of the said Martha J. Brockelbank, deceased, to have been so as aforesaid, unlawfully, feloniously and indecently dug up, taken and carried away from the grave aforesaid, for the purpose of dissection, against the peace of the People of the State of New York and their dignity, and against the form of the statute in such case made and provided.
    WM. H. SMITH, District Attorney.

    The defendants pleaded not guilty.
    The trial being moved, they each demanded a separate trial, which was granted by the court, and the district attorney then moved the trial of the defendant, Judson H. Graves.
    The trial then proceeded against Graves.
    The counsel for the prisoner objected to any evidence being given by the prosecution under the indictment, on the grounds:
    1. That the death of said Martha J. is not averred in said indictment.
    2. That it is not averred that it was the body of a human being which was removed.
    3. That no place of burial is alleged or described.
    The objection was overruled by the court, and the defendant’s counsel excepted.
    The defendant’s counsel then moved to quash the said indictment on the same grounds, and particularly the last count, on the ground it did not aver any person from whom the defendant had received the body of said Martha J. Also that it averred the body was disinterred by defendant, so that he could not be a receiver of the same. The motion was denied, and the defendant’s counsel excepted.
    The counsel for the prisoner objected to any evidence being given as to the place where Martha J. Brockelbank had been buried, on the ground that the place of burial was not described, or attempted to be described, in the indictment, and claimed that the burial place, by its common name, or some. other designation, should have been stated. This objection was overruled by the court, and the defendant excepted.
    After the proof on the part of the People was closed, the counsel for the prisoner insisted that there could be no conviction upon the evidence under the fourth count, and that the same was insufficient, for the reasons before stated, to uphold a conviction. The court decided that the count was good in law, and that the jury might, under the evidence, if satisfied, convict the prisoner under that count; to which decision the prisoner’s counsel excepted.
    The counsel for the prisoner then demanded that the counsel for the People should elect on which count they would proceed. The court refused to compel an election, and the prisoner excepted. '

    The counsel for the , prisoner then asked that the district attorney be Compelled to elect whether he would rely for a conviction upon the counts for opening the grave and removing the body, or under the last count, for receiving the body. This was also refused by the court, and an exception taken.
    The court charged, that on the question of identity, it would be just as good .to identify a foot or a hand as the whole person ; that identification of the whole body was not necessary. To this the prisoner’s counsel also excepted After the cause was submitted to the jury, they retired for consultation, and afterward returned to court and rendered the following verdict: “We find the prisoner guilty of receiving and dissecting.” The verdict was received, and entéred by the clerk in his minutes,- and read over to the jury, who made the usual response, assenting thereto.
    Thereupon, and before the jury had separated, the district attorney suggested that the verdict was informal, and there might be difficulty in enforcing it.
    The court thereupon first directed -the clerk to change the form of the verdict to that of guilty under the fourth count. To this the counsel for the- prisoner objected; but the clerk, under the direction of the court, entered, below the first verdict, a verdict of guilty under the fourth count; to which the counsel for the prisoner then and there excepted. •
    The counsel for the prisoner asked the jury to be polled,, and upon such polling they disagreed, and asked for further instruction from the court.
    . The court, upon further consideration, directed the jury to retire again for consultation, and to state, by their verdict, under which count they convicted the defendant. To this the counsel for the defendant excepted.

      The jury again retired, and afterward returned with a verdict of guilty under the fourth count.
    A bill of exceptions having been made, judgment was stayed, and the proceedings removed into this court by certiorari.

      J. C. Smith, for the defendant.

      Wm. H. Smith (District Attorney), for the People.
   By the Court, Knox, J.

At the Ontario November Term of the Court of Sessions, 1859, the defendant was convicted of the crime of unlawfully receiving the dead body of a human being, for the purpose of dissection, knowing the same to have been unlawfully disinterred. (2 R. S., 871, sec. 13, 14, 5th ed.) Judgment was suspended on the conviction, until the decision of this court upon the questions raised.

The first question relates to the manner in which the verdict was received and entered. After the cause was submitted, the jury retired for consultation, and returned the following verdict: “We find the prisoner guilty of receiving and dissecting,” which was entered by the clerk. Upon a suggestion of the district attorney, and before the jury had separated, that the verdict was informal, the court directed the clerk to change the form of the verdict to that of guilty under the fourth count. This was done. The jury wére then polled and disagreed. They then retired again, under the direction of the court, to decide under which count in the indictment they convicted the defendant. They returned with a verdict of “ guilty under the fourth count.”

It needs no authorities to show that the verdict, which finds a person guilty of an offense, must be that of the jury empanneled for his trial. ' The very phrase “ verdict of the jury ” implies this, and hence the judge who presides at the trial has no right to dictate to the jury what verdict they shall render. But I apprehend that'he may instruct, and that it is his duty to instruct the jury, as to the form of their verdict. What that verdict shall be, is a matter of substance exclusively for them. What its form shall be, is a matter of convenience merely, which the court may regulate, where .the statute has not done so. Although there are some expressions in the books, from which it might be inferred that, after a jury had come into court with a verdict, and the clerk had" entered it, it could not be changed in form or substance; yet the true rule is, that until the verdict is rendered and recorded, and the jury have separated so far as no longer to constitute a jury, they have the right to modify the verdict that they may have given, and declare the truth according to their judgment That only is their verdict which, while they are a jury, is their final and definitive agreement. (Blackly v. Shelden, 7 Johns. R., 33.)

There was no error committed by the court in directing the jury, whose verdict was merely informal, to retire and say under which count of the indictment they found the defendant guilty.

The next question is, was the indictment sufficient? As the defendant was convicted under the fourth count, it will be sufficient to inquire as to the sufficiency of that only. It alleges that John G. Weed, Alexander R Simmons and Judson H. Graves, did feloniously and for the purposes of dissection, receive the dead body of one Martha J. Brockelbank, so as aforesaid unlawfully, feloniously and indecently dug up from the grave aforesaid, and unlawfully and indecently taken and carried away from the said grave, the said defendant well knowing the said dead body of the said Martha J. Brockelbank, deceased, to have been so as aforesaid dug up, &e., for the purposes of dissection, &c.

It is said that there are not sufficient averments to constitute the offense, except by reference to the other counts. In other words, that there is no averment of a removal of the dead body from the grave.

It is the constant practice in criminal pleading, in one count of an indictment to refer to matters in a previous count, and it has been decided that this is proper, and that where the first count of an indictment is bad, a subsequent count may be sustained, even though it refer to the first count for some allegations, and without repeating them. (Wharton Cr. L., 154, and case died.)

“Although every count,” says Ohitty, “should appear on the face of it to charge the defendant with a distinct offense, yet one count may refer to matter ip any other count so as to avoid unnecessary repetition.” (1 Chitty Cr. L., 250; 2 H. Black., 131.)

If there be doubt as to the fourth count without the reference, there can be none with it. It informs the defendant of-the grounds of the charge against him; it states facts sufficient to enable the court to see that an indictable offense is alleged; it enables the defendant to prepare for his defense and to plead the. judgment against him in bar of a second prosecution. This is all that is requisite to the validity of an indictment. That it does not allege, in so many words, that the body of “ Martha J. Brockelbank” was that of a “ human being,” is true. But I apprehend that we are bound to assume that “ Martha J. Brockelbank ” was not only a human being, but a person of the female sex. The name is sufficiently indicative of both. As to the objection that the indictment does not contain a description of the place of burial, the answer is that it does. It says a “ graveyard in the town of Bristol, Ontario county.” If the objection be that the particular graveyard is not designated, the answer is, that this would be necessary if the statute made it an offense to disinter, &c., or receive the body disinterred from some particular yard; but the offense consists in receiving a body removed from the grave or other place of interment. The sanctity of no particular place of burial is guarded by the statute, but that of all places. The specification of the place of burial was sufficient for all purposes of defense. It was not necessary to allege or prove from whom the body was received. The fact to be proved was that the defendant received it; Here the indictment alleged that three persons, of whom the defendant was one, removed the body from the grave, and the count upon which the defendant was convicted charged them with having received it. I see no inconsistency. They could have removed the body from the grave and received it afterward for dissection. This disposes of the questions made upon the indictment.

There was nothing in the charge of the judge calculated to prejudice the defendant. Whether the body found was the body of Martha J. Brockelbank, raised a question of identity, and, upon that question, it was a proper remark of the court that ‘fit would be just as good to identify a foot or á hand as the whole person. In the celebrated case of .Webster, the identity of Parkman, the deceased, was proved by his teeth, quite conclusively.

I do not see that any substantial errors were committed on the trial, and cannot say that the jury were not justified in their verdict by the evidence.

Conviction affirmed, and proceedings remitted to Sessions to pronounce judgment.