author: Bacon, J. Pratt, J.

text:
    Supreme Court. Jefferson General Term,
    April, 1857.

      Hubbard, Pratt, Bacon and W. F. Allen, Justices.
    The People v. Patrick Sweetman.
    Under the act of congress, the county courts of the several counties of the State of New-York have jurisdiction of the naturalization of aliens. Per Bacon, J.
    State courts, in entertaining jurisdiction of cases of naturalization, act exclusively under the laws of the United States, and should be deemed, quoad hoc, courts of the United States.
    "Willful false swearing, by a person giving material testimony in a naturalization proceeding, before a county court, is an offence against the laws of the United States, and punishable in the United States courts and not in the state courts.
    Application for naturalization must be made in open court, and evidence of residence, &c., must be taken by the oral examination of witnesses and not by previously prepared affidavits. Per Pratt, J.
    The question of jurisdiction of certain offences, as between the courts of the United States and the state courts, discussed by Pratt, J.

    Form of an indictment for perjury, alleged to have been committed in a proceeding to obtain the naturalization of an alien, in a county court.
    Certiorari to the Court of Oyer and Terminer of the county of Lewis.
    The prisoner had been indicted for peijury, alleged to have been committed in the County Court of Lewis county on the naturalization of James Catillay.
    The indictment was as follows:

      Lewis Comity, ss:

    The jurors of the people of the State of New-York, in and for the body of the county of Lewis, to wit: (reciting the names of the jurors), good and lawful men of the said county of Lewis, then and there being sworn and charged to inquire for the people of the State of New-York, and for the body of the county of Lewis, do upon their oath present : That heretofore, to wit, on the twenty-seventh day of September, in the year of our Lord one thousand eight hundred and fifty-three, at a County Court of the said county of Lewis, holden at the court-house in Martinsburgh, in and for said county of Lewis, by and before the Honorable Francis Seger, then county judge of said county of Lewis and judge of said court, one James Catillay, who was then and there an alien and subject of the government of Germany, and not a citizen of the United States, made ipplication to said court, and made and filed and presented lis declaration in writing, and on oath in open court, of his iatention to become a citizen of the United States in due form of law, and said County Court had full and perfect jurisdiction and authority over the subject matter of said application, and that the said James Catillay did then and there apply to and petition said court to be naturalized and to become a citizen of the United States, and that at the said County Court last aforesaid, which was a court of record, to wit, on the twenty-seventh day of September aforesaid, on said petition and application, it then and there >ecame and was a material question whether the said James Catillay had then and there resided within the limits and u\der the jurisdiction of the United States for five years then lat past, and whether the said James Catillay, for one year then last past, had resided within the State of New-York, andwhether, during the same period, the said James Catillay had behaved himself as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same, and whether at the time the said James Catillay arrived in the United States, he had attained his eighteenth year; and the jurors aforesaid, upon their oath aforesaid, do further present, that Patrick Sweetman, late of the town of Croghan, heretofore, to wit, on the said twenty-seventh day of September, in the year of our Lord one thousand eight hundred and fifty-three, to wit, at said County Court, to wit, at Martinsburgh, in said county of Lewis, wickedly, maliciously, unlawfully and feloniously contriving and intending unjustly, fraudulently, feloniously and unlawfully to procure the naturalization of the said James Catillay, an alien as aforesaid, and to procure his admission as a citizen of the United States, came in his proper person before the said County Court, to wit, before the said Francis Seger, county judge as aforesaid, and then and there in open court produced a certain affidavit, in writing, of him, the said Patrick Sweetman, and then and there in open court, before Harrison Barnes, who was then and there county clerk of said county of Lewis, and clerk of said County Court, in due form of law was sworn and took his corporal oath upon the Holy Gospel of God, concerning the truth of the matter contained in the said affidavit, he the said Harrison Barnes, clerk as aforesaid, then and there having lawful and competent power and authority to administer the said oath to the said Patrick Sweetman in that behalf, and that the said Patrick Sweetman being so sworn as aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, then and there in open court, upon his oath aforesaid before the said Harrison Barnes, clerk as aforesaid, the sail Harrison Barnes then and there having lawful and comp-tent power and authority to administer the said oath to he said Patrick Sweetman in that behalf, falsely, corruply, knowingly, willfully and maliciously, in and by his said affidavit in writing, did depose and swear, among other things, in substance and to the effect following, that is to say: that James Catillay, meaning the said James Catillay above mentioned, had resided within the limits and under the jurisdiction of the United States for five years then last past, and for one year then last past within the State of New-York, and that during the same period he had behaved himself as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; and that at the time the said James Catillay arrived in the United States, he had not attained his eighteenth year, as in and by the said affidavit of the said Patrick Sweetman, filed in the county clerk’s office of the said county of Lewis, more fully and at large appears, which affidavit is in the words and figures following, that is to say:

      State of New-York, Lewis County, ss:

      Patrick Sweetman, of said county, being duly sworn, doth depose and say: That he is a citizen of the United States; that he is well acquainted with the above named James Catillay; and that the said James Catillay has resided within the limits and under the jurisdiction of the United States for five years last past, and for one year last past within the State of New-York ; and that during the same period he has behaved himself as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same. And he further saith, that at the time the said James Catillay arrived in the United States he had not attained his eighteenth year.
    Patrick Sweetman.

    H. Barnes, Clerk.

      Whereas, in truth and in fact, the said James Catillay, at the time the said Patrick Sweetman. took his said oath and made his affidavit aforesaid, had no residence within the limits and under the jurisdiction of the United States for five years then last past, and for one year last past within the State of New-York; and whereas, in truth and in fact, the said James Catillay, during the same period, had not behaved himself as a man of good moral character, attached to the principles of the constitution of the United States, an<| well disposed to the good order and happiness of the same; and whereas, at the time the said James Catillay arrived in the United States he had attained his eighteenth year; and whereas, the same affidavit was in all respects utterly false and untrue at the time the said Patrick Sweet-man so made and swore to the same ; and whereas, the said Patrick Sweetman, at the time he so swore to and made the same, well knew the same to be utterly false and untrue ; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said Patrick Sweetman, on the twenty-seventh day of September, in the year last aforesaid, to wit, at Martinsburgh, in the county aforesaid, at the said County Court aforesaid, in open court, which had full and competent jurisdiction over the subject matter of said application, before the said Harrison Barnes, clerk of said county and court as aforesaid (the said Harrison Barnes, clerk as aforesaid, then and there having such power and authority as aforesaid), by his own act and consent, and of his own most wicked and corrupt mind, in manner and form aforesaid, falsely, wickedly, willfully and corruptly, did commit willful and corrupt perjury, to the great displeasure of Almighty Grod, in contempt of the people of the State of New-York, and their laws, to the evil and pernicious example of all others in like case offending, and against the peace of the people of the State of New-York and their dignity.
    E. S. Merrill,

      District Attorney.

      The defendant pleaded not” guilty, and was tried at a Court of Oyer and Terminer, held in Lewis county on the 18th and 19th days of December, 1856, before William J. Bacon, justice of the Supreme Court, and the justices of the Sessions. The defendant, by his counsel, moved to quash the indictment on the ground “ That the County Court, being a court of limited and not having common law jurisdiction, had no power to grant certificates of citizenship or naturalization to aliens, and the affidavit set forth in said indictment was extra-judicial,” which motion the said court denied, and the defendant’s counsel excepted. A jury was then impanneled, and the prosecution, to sustain the indictment, called as a witness

      James Catillay, who testifiedI was born in Switzerland; I came to this country in June, 1853 ; landed in New-York May 25th, 1853; I arrived in Croghan. in Lewis county, June 4th, 1853 ; I know the defendant; he lives in Croghan; I became acquainted with him soon after I arrived there; we lived a short distance apart; I signed the paper shown me in three places and swore to it in this court room here; the defendant also signed it and swore to it here in this court room in my presence; Harrison Barnes swore defendant and myself to the affidavit.
    The following is a copy of the paper referred to by the witness:
    I, James Catillay, do declare on oath, that it is bona fide my intention, and has been for the last three years, to become a citizen of the United States, and to renounce forever all allegiance to all and every foreign prince, potentate, state or sovereignty whatever, and particularly to the government of Germany.
    James Catillay.

    H. Barnes, Clerk.

      In the matter of James Catillay, on his naturalization:

      State of New-York, Lewis County, ss:

      James Catillay, being duly sworn, says: That for the continued term of five years last past, he has resided within the United States, without being at any time during' the said five years, out of the territory of the United States, and that for one year last past he has resided within the State of New-Yorlc, and that at the time he so arrived in the United States he had not attained his eighteenth year.
    James Catillay.

    H. Barnes, Clerk.

    I, James Catillay, do solemnly swear that I will support the constitution of the United States, and that I do absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly to the government of Germany, of which I was a subject.
    James Catillay.

    H. Barnes, Clerk.

      State of New-York, Lewis County, ss:

    Patrick Sweetman, of said county, being duly sworn, doth depose and say: That he is a citizen of the United States; that he is well acquainted with the above named James Catillay, and that he, the said James Catillay, has resided within the limits and under the jurisdiction of the United States for five years last past, and for one year last past within the State of New-York, and that during the same period he has behaved himself as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; and he further saith that at the time the said James Catillay arrived in the United States he had not attained his eighteenth year.
    Patrick Sweetman.

    H. Barnes, Clerk.

      Joseph Catillay was then called as a witness, who, being duly sworn, testified : I am a brother of James Catillay, and came to this country with James ; we landed in New-York May 25, 1853; I arrived in Croghan, June 4th, 1853; am now a resident of Croghan, and know the defendant.

      W. Hudson Stephens was then called as a witness, who, being duly sworn, testified: I know Harrison Barnes ; during the year 1853 he was the acting clerk in and for the county of Lewis; the signatures in the foregoing paper, “ H. Barnes,” are his; I know his handwriting.

      Sidney Sylvester was then called as a witness, who, being duly sworn, testified : I am the clerk of the county of Lewis; I hold the book of minutes of the Lewis County Court; it shows a term of the Lewis County Court and Court of Sessions, September 27th, 1853; present Hon. Francis Seger, county judge, James R. Northrup and John Chickering, Esqrs., justices of sessions. The affidavits mentioned by the witness James Catillay I found on the files in my office.
    It further appeared in the evidence that the county judge was sitting upon the bench, and engaged in his official duties at the time of the making and swearing to the paper mentioned in the testimony of James Catillay, in same room.
    The affidavits were offered in evidence by the district attorney.
    The defendant’s counsel objected to their receipt on the ground “ they were incompetent,” and further that no foundation had been laid for their introduction, which objection was overruled by the court, and the defendant’s counsel excepted.
    The affidavits were then read in evidence. At the close of the evidence on the part of the prosecution, the defendant’s counsel moved that the defendant be discharged on the following grounds:
    First. That it appears that the affidavit of the defendant, if made at all, was made in the Lewis County Court, for the purpose of.procuring the said James Catillay to be naturalized, and to receive a certificate of citizenship from said court; that said court had no jurisdiction in the premises, and the pretended affidavit was therefore extra-judicial.
    Second. It does not appear from such affidavits that they were made in proceedings in the Lewis County Court.
    Third. That it does not appear that the person of the alien, mentioned in said indictments and in said affidavits, were one and the same : which motion was denied by the court, to which decision the defendant’s counsel excepted.
    After the close of the trial the defendant’s counsel requested the court to charge that the clerk had no jurisdiction to naturalize, and that if the jury find that he assumed to entertain and.act upon applications, and that of the said Catillay in particular, on the general authority of the court to act in court or out, that the affidavit in this case produced in evidence was extra-judicial.
    The court, upon said request, charged that the clerk had no jurisdiction to naturalize, and that if the affidavit was in fact taken out of court, the oath was extra-judicial, and declined to charge otherwise on the remainder of the proposition.
    The court further charged that, in order to sustain the allegation of perjury in this case, it was not necessary that the affidavit of the defendant should be submitted to the actual inspection of the 'court, but that the indictment was sustained if the jury should find that the oath was actually taken in the presence of the court, and while it was in open session, but if it was necessary to give effect to the oath, it would be presumed, in the absence of any proof to the contrary, that the court discharged its legal duty; to which ruling, and each and every part thereof, the counsel for defendant excepted. The jury rendered a verdict of guilty.

      John Clarke, for the defendant.
    I. The alleged perjury is not an offence against the laws of New-York, but only against those of the United States; by which the terms are prescribed on which a foreigner may become a citizen, not of the State of New-York, but of the United States. (Dred Scott case.) These terms are, that certain facts shall exist, and be proved before a Superior, or Circuit or District Court of a state, or Circuit or District Court of the United States; and by another section it is provided that “ every Court of Record in any individual state, having common law jurisdiction, and a seal and clerk or prothonotary, shall be considered as a District* Court within the meaning of the act, and every alien who may have been naturalized in any such court shall enjoy the same rights and privileges as if he had been naturalized in a District or Circuit Court of the United States.” (Act April 14, 1803.) It is a law of the United States against which the offence is committed; it is committed in a court of the United States, made so by the act itself, having no authority except as such court. Hence, there can be no perjury in the case punishable by the state laws. Jurisdiction, even in the state court, in such case, is denied. (1 Wheat., 330; The United States v. Lathrop, 17 John., 4.) In these cases the court deny the authority of the state court to act at all under such delegated power; and in ex parte Smith (5 Cow., 273), sustain only the powers of a magistrate to arrest and hold for examination, on the principle of national comity. These cases decided that, under the United States constitution, congress cannot vest any portion of the judicial power of the United States except in courts ordained and established by itself. (Dudley v. Mayhew, 3 Comst., 15.) State courts cannot take cognizance of a perjury committed in making an affidavit under an act of congress relative to the sale of public lands. (The State v. Adams, 4 Bl. Com., 146; 5 U. S. Dig., 250.) No state can pass naturalization laws. (Chirac v. Chirac, 2 Wheat., 259.) The false oath must be against the interests of the state. (The State v. Dodd, 3 Murphy, 226.)
    II. The County Court is not a court of common law jurisdiction. Common law is defined to be “ that which derives its force and authority from the universal consent and immemorial practice of the people.” (2 Bouv. L. Dic., 9.) True, in the seventh article of amendments to the constitution of the United States, it is provided that “in suits at common law, where the value in controversy shall not exceed twenty dollars, the right of trial by jury shall be preserved;” and it is said the term in that place is used in contradistinction to equity, admiralty and maritime law. But common law jurisdiction, as applied to the courts which may naturalize, may, and probably does mean, original jurisdiction also. A mere appellate jurisdiction, confined to cases of appeal from Justices’ Courts, and cases arising in such courts where title is in question, which is the only semblance of common law jurisdiction that court has, does not make it a court of common law jurisdiction within the meaning of this provision. The old Court of Errors was not, and certainly this court cannot arrogate to itself such jurisdiction. The decision in Kundolf v. Thalheimer (2 Kern., 593) is put upon this distinction, as remarked by one of the judges, “if common law actions are to be turned into special cases in this way,” &c. The constitution provides' that the County Court shall have such jurisdiction, in cases arising in Justices’ Courts, and in special cases as the legislature may prescribe, but shall have no original civil jurisdiction, except in such special cases.

      III. As the legislature have not conferred the jurisdiction to naturalize aliens in the County Court, even if it could do so, there is for that reason no jurisdiction. It is not made one of the special cases. This would be conclusive, were it a subject of state law and jurisdiction. If it be not so, the court, pro hac vice, is a United States Court.
    IV. The naturalization act requires the court to make a judicial examination of the applicant and his witnesses. It requires a trial by and before the court, on oath administered in open court. It does not contemplate or allow an affidavit as in this case. Here was no conformity, no hearing, no oath, no adjudication. The indictment is not based on any such proceeding;"nor is any such proceeding proved." On the contrary, the indictment is based "on an affidavit alone; and the proof is that such affidavit alone was made. It was inadmissible for any purpose. The court could not act upon it. (7 Hill, 137; 18 Barb., 444.) The indictment must allege an examination on oath in open court. (Copeland v. The State, 24 Miss., 257.) It must state that a question was presented to and for the adjudication of the court, and that evidence was duly given thereon. (The State v. Moffat, 7 Humph., 250; The State v. Wall, 9 Yerg., 349; Smith v. The People, 1 Park. Cr. R., 317; The People v. Restell, 3 Hill, 304.)

      Henry E. Turner (District Attorney), for the people.
    I. By the act of congress of April 14, 1802, jurisdiction to naturalize is given to' state Courts of Record having common law jurisdiction, with a seal and a clerk. County Courts of this state are Courts of Record, have a seal and a clerk, and possess common law jurisdiction sufficient to meet the requirements of the act of congress above mentioned (Const. N. Y., art. 6, § 14; id., art. 14, § 5): First. Because they have appellate jurisdiction over a large class of common law actions originating in Justices’ Courts; Second, And exclusive jurisdiction over a common law action originating in a Justices’ Court, where title comes in question, and also the right to issue executions on judgments obtained in Justices’ Courts, over the amount of $25, and docketed in said County Court, and control over the same; Third. Because, in their nature, organic structure, rules and practice, they are common law courts, and also exercise jurisdiction in a class of common law actions. (Const. N. Y., art. 6, § 14; id., art. 14, § 5; 5 Barb., 169, 182; 11 id., 619; 17 id., 506; 2 Seld., 176; 2 Kern., 592; Code, § 596.)
    II. The case in 2 Kernan only rules that County Courts have not original jurisdiction in common law actions. It does not overrule the case of Kundolf v. Thalheimer (17 Barb.) by saying they have not common law jurisdiction of some kind within the meaning of the statute.
    III. The affidavits of Catillay and Sweetman were properly offered in evidence, as a foundation had been laid for their introduction, and were properly made in the Lewis County Court.
    IV. The oath having been duly administered, it is presumed that the proceedings were regular and that the court properly discharged its duty. (16 Wend., 628; 6 Cranch, 176 ; 7 id., 420 ; 4 Peters, 393.)
    V. The offence of perjury is a common law offence, cognizable by the courts of the various states.
    VI. Though it is an offence against the laws of the United States, yet, being committed in a state court, it is cognizable by both the federal and state courts.
    VII. Offences against the United States are also, in many cases, offences against the several states, and are punishable by the state courts. (3 Serg. & Rawle, 196; 11 id., 196; 8 Metc., 313; 2 Hill, 687; 3 Hamilton's Works, 265.)
   Bacon, J.

The only questions which arise on this certiorari are, first, whether the County Court of Lewis county had power to naturalize the alien on whose applicacation the perjury was alleged to have been committed; second, whether the courts of this state have jurisdiction to punish for a violation of what is claimed to be a law of the United States; or, in other words, whether the offence charged was not an offence against the laws of the United States and not the laws of New-York.

On the first point, I entertain no doubt that the County Court has jurisdiction to naturalize aliens. The act of Congress adopts every state court as its agent, to do this service, that is a court of record, and has a common law jurisdiction, and a seal and clerk.

The County Court possesses all these powers and functions. If it has common law jurisdicton, that is sufficient.

It has such exclusive jurisdiction in the common law action of trespass, commenced in a Justice Court, when title to land comes in question; and although this tribunal is shorn of much of its power by the constitution of 1846 and the decision of the Court of Appeals under it, I believe it is not yet divested of this power, not to speak of others which savor of common law.

The second objection, it seems to me, does not arise in this case. No such objection was taken, on the trial, and no motion to quash the indictment was made on that ground. The only defect of jurisdiction alleged was the want of power in the County Court to naturalize. If the objection can be entertained, I am sorry to say that I fear that it must prevail, and a case of gross criminality will go “unwhipped of j ustice.” ■

The County Court acted as the agent of the government, and was, pro hac vice, a tribunal of the United States; and in United States v. Lathrop (17 John., 4) the Supreme Court of this state held that a state court has no jurisdiction of criminal offences against the United States. The offence being committed in a court of the United States was an offence which could only properly be charged, as is said by Platt, J., in his dissenting opinion, “as an offence committed against the" state, a sovereign whose courts sit in judgment on the offender” The cases cited by the counsel of the people do not uphold the doctrine put forth in the point made by him, but apply to quite a different state of facts.

• I repeat that I regret to come to this conclusion, and shall be quite willing to yield my impressions to my brethren, -if they come to a different result.

As at present advised, my opinion is that the conviction must be reversed.

Pratt, J.

An important question in this case (although not absolutely necessary to be considered) is raised upon the part of the defendant in regard to the jurisdiction of the state courts to try him for the crime charged against him in this judgment. The question to be considered is,’ whether the offence charged is one against the laws of the United States, or one against the laws of the state.

There, are many crimes made punishable by the laws of the United States which are also made punishable by the laws of the state. In such cases it has been held that the state courts have jurisdiction of the crime. Forging the coin of the United States is an example of this class. As the constitution of the United States gives to congress an exclusive power to coin money and to regulate the value of the same, it would seem to follow- that congress is vested with the power to’ make laws to prevent its being counterfeited. But this would not necessarily take away the power from the state to make the crime also punishable under its laws. And, when the crime is thus made punishable by state laws, it follows as a matter of course that the state courts have jurisdiction to enforce those laws (8 Metc., 313 ; 9 Ohio, 133; 1 Doug., 267; 2 Const. R. S. C., 77; Curt. Com. on the Const., § 133.)

Théfe is another class of cases in which the state courts had jurisdiction'before the adoption of the federal constitution, such as crimes punishable at common law. Though such crimes are brought under the cognizance of the federal courts by the constitution of the United States and the legislation of congress, yet, unless such jurisdiction is made exclusive by the terms of the constitution, or by the acts of congress, the state courts have concurrent jurisdiction to try them. (8 Metc., 313; 12 How., 284; Curt. Com., § 121.)

There is still another class' of cases where congress has attempted to vest in state courts jurisdiction of matters arising under the laws of congress. Interesting questions ‘have arisen in cases of this kind, and there is a great conflict of judicial authority whether jurisdiction in the federal courts is not necessarily exclusive in such cases. The preponderance of authority, at least in the state courts, seems to be against the power of congress to confer such jurisdiction, especially when the remedy necessarily involves proceedings either by action or by indictment. (1 Wheat., 336; 5 id., 49 ; Serg. Const. L., ch. 27; 17 John, 15 ; Virg. Cas., 321; 7 Conn., 239.)

There is another class of cases in which duties, judicial in in their nature, have been conferred in special cases upon state magistrates and courts, which it has been held that they are not bound to discharge, but may or may not discharge them at their own option, such as the arrest and examination of persons charged with crime, the arrest of fugitives from service under the act of 1793, and various other cases not necessary to enumerate. (Prigg v. Commonwealth, 16 Peters, 531.) The naturalizafcionlaws confer powers upon state courts of substantially the same character; and, without attempting to examine the question in regard to the power of the federal government to confer such jurisdiction upon state courts and magistrates, it seems to me quite clear that, in entertaining such proceedings, they are exclusively under the laws of the United States and should be deemed, quoad hoc, courts of the United States. The crime, therefore, with which the prisoner was charged in the indictment was, in my opinion, a crime against the laws and sovereignty of the United States, and not against the laws and sovereignty of the state.

First. The subject of naturalization is exclusively within the jurisdiction of congress. The constitution confers upon congress the power to eastblish a uniform rule of naturalization, and, having passed laws establishing such rule, the states are excluded from interfering in any manner with the subject. (2 Wheat., 269; 2 Dal., 370; 3 Wash. C. C. R., 313; 5 Wheat., 49; 1 Kent, 426.

Second. The state courts, in entertaining these proceedings, are acting directly under the laws of the United States, and form a portion of the judicial agency of the federal government for carrying these laws into effect. They exercise in these proceedings no common law powers, but simply follow the express directions of the act of congress. (2 U. S. Stat. at Large, 154.) They should be deemed, therefore, as acting, in such proceedings, as courts of the United States; and such I presume would be the undoubted construction of the acts of magistrates in the examination of persons accused of crime, under the laws of the United States, or fugitives from service under the act of 1793 ; and yet there is no reason why the same rule should not apply to naturalization proceedings.

Third. These proceedings, being under the laws of the United States, and part of the necessary judicial agency provided by those laws for canying them into effect, it would seem to follow that false swearing, by a person giving material testimony in those proceedings, must necessarily constitute an offence against tho laws of the United States, and, if so, he must be punishable under the laws of the United States.

' The prohibitions against perjury, in the statutes of our state, manifestly contemplate perjury in the state courts, or in proceedihgs before magistrates under the state laws, and not under the laws of another state. In The State v. Adams (4 Blackf., 146) it was held “that if an affidavit be made under an act of congress, relative to the sale of public lands, and the party making it commit perjury, he may be punished under the act of congress prohibiting the offence, but the courts of the state had no jurisdiction.” The statute of Indiana provides that “ any person who willfully, corruptly and falsely makes an affidavit, &c., should be deemed guilty of perjury.” (Rev. Code 1831, p 186.) This provision is quite as general as the provisions of our statute against the commission of perjury, yet the court in that case held that it was not an offence against the laws of that state.

It will be seen that perjury is made an offence by the laws of the United States, and that there is no reservation of jurisdiction in the state courts of that offence. ■ It is provided by the act of 1790 (ch. 9) that “If any person shall willfully and corruptly commit peijury, on his or her oath or affirmation, in any suit or controversy, matter or cause, depending in any of the courts of the United States, or in any'deposition taken pursuant to the laws of the United States, every person offending shall suffer,” &c. By act of September 24, 1789 (ch. 20), exclusive jurisdiction is given to the Circuit Courts of the United States “ of all crimes and offences cognizable under the laws of the United States, except when the act otherwise provides or the laws of the United States shall otherwise direct.” I have found no statute of the United States conferring jurisdiction upon the state courts to punish for the crime of p.eijury, under the laws of Congress; although, by subsequent acts, this exclusive jurisdiction has been taken away in regard to some other crimes.

If I am right, therefore, in the position that the court, in these proceedings, is to be deemed a court of the United States, there can be no doubt but that the exclusive jurisdiction of the crime charged in the indictment in this case was in the federal courts, and that the Lewis County Oyer and Terminer had no jurisdiction of it.

But, independent of the question of jurisdiction, I think the conviction should be reversed. The laws of Congress require the application to be made to the court, and the proof of five years’ previous residence must be taken in open court. It must also be common law evidence, taken by the oral examination of the witness. Previously prepared affidavits are not competent. Such was the construction given to the act hy this court in 7 Hill (137), and 18 Barb. (444). In this case there was no proof that any application was made to the court at all, or that the witness was ever sworn in open court, or that the court, in any manner, passed upon the matter. No presumption can be raised in favor of the regularity of the proceedings' until it be proved that such proceedings were pending before the court.' Until jurisdiction is shown, the presumptions are all the other way. It was therefore necessary to prove, in the first place, the pendency of the proceedings before that court. Before that was done there could be no presumption that the witness was examined orally, and his testimony afterwards put in the form of affidavits. Affidavits found on file were clearly not competent to prove the pendency of such- proceedings, especially as there is no law requiring the examination to be taken in writing and filed; and, until the pendency of the proceedings is proved, the certificate of the clerk to these unauthorized affidavits does not prove anything. It is all in the nature of hearsay testimony.

The minutes of the court should have been produced, showing the pendency of the proceedings and the actual oral examination of the witness, before it was competent to show that his testimony was false.

. I think, therefore, that the exception to the introduction of the affidavit was well taken, and the conviction, for this reason, should be reversed.

Conviction reversed.


source: Caselaw Access Project

author: By the Court, S. B. Strong, P. J.

license: Public Domain

text:
    Supreme Court. Dutchess General Term,
    April, 1857.

      S. B. Strong, Birdseye and Emott, Justices.
    The People v. Jeremiah Butler.
    Under an indictment for manslaughter, in the common law form, the accused may he convicted of manslaughter, as defined in the Revised Statutes, in any degree, according to the evidence.
    A conviction, by a Court of County Sessions, will not be reversed, on certiorari, on the ground that the jury erred on a question of fact.
    In order to bring a case within the definition of manslaughter in the first degree, as defined in the Revised Statutes, it is necessary to show that the accused was committing or attempting to commit some other offence than that of intentional violence upon the person killed,

    Where, on the trial of an indictment, in the common law form, for manslaughter, the court charged the jury that if they were satisfied, from the evidence, that the deceased had come to her death by reason of blows or injuries inflicted upon her by the defendant, not in any self-defence, nor otherwise excusably or justifiably, they should find the defendant guilty of manslaughter in the first degree, the charge was held to be erroneous and the conviction was reversed.
    Form of a writ of certiorari to remove a cause from a Court of Sessions of a county to the Supreme Court, after verdict and before judgment, pursuant to 2 Revised Statutes, 736, § 27.
    This was a certiorari to the Court of Sessions of Kings county, in which the prisoner had been convicted of manslaughter in the first degree.
    The writ of certiorari was as follows:
    The People of the State of New-York to the Court of Sessions of Kings county, and to Samuel D. Morris, County Judge of said county, and John A. Emmons and Martense Schoonmaker, Justices of Sessions in and for said county: [l. s.]
    We having been informed that one Jeremiah Butler was heretofore, to wit, on the nineteenth day of September, one thousand eight hundred and fifty-six, at a Court of Sessions held in and for said county, by and before the county judge and justices aforesaid, convicted of manslaughter in the first degree, and we being willing, for certain causes, to be certified of said conviction and of the indictment and judgment or verdict against said Jeremiah Butler, do command you that the said indictment, proceedings, judgment and verdict, with all things touching the same, by whatsoever name the parties may be called therein, you send to the justices of our Supreme Court, distinctly and plainly under your hands and seals, and that you cause this writ and the return thereto to be forthwith filed in the office of the clerk of said county of Kings, after the service of this writ.
    Witness, Sel ah B. Strong, Esq., one of the justices of the Supreme Court, at the city hall, in the city of Brooklyn, this twenty-third day of January, one thousand eight hundred and fifty-seven.
    John Gr. Schumaker,

      District Attorney of Kings county.

    Wm. H. Campbell, Cleric.

    The indictment was as follows:

      Kings County, ss:

    The jurors of the people of the State of New-York, in and for the body of the county of Kings, upon their oath, present: That Jeremiah Butler, of the city of Brooklyn, in said county, on the sixth day of June, in the year one thousand eight hundred and fifty-six, at the city and in the county aforesaid, in and upon one Catharine Butler, in the peace of Q-od and of the said people then and there being, feloniously and willfully did make an assault; and that the said Jeremiah Butler then and there, with the hands and feet of him the said Jeremiah Butler, her the said Catharine Butler, in and upon the head, neck, arms, body and vital parts of her the said Catharine Butler, feloniously and willfully did strike, beat and kick, giving her the said Catharine Butler, by such striking, beating and kicking as aforesaid, divers mortal wounds, bruises and contusions, in and upon the head, body and vital parts of her the said Catharine Butler, of which mortal wounds, bruises and contusions, she the said Catharine Butler, from the sixth day of June, in the year aforesaid, until the seventh day of June in the same year, at the city and in the county aforesaid, did languish, and languishing did live ; on which last mentioned day, in the year aforesaid, the said Catharine Butler, at the city and in the county aforesaid, of the mortal wounds, bruises and contusions aforesaid, did die.
    And so the jurors aforesaid, upon their oaths aforesaid, do say, that he the said Jeremiah Butler, her the said Catharine Butler, in the manner and by the means aforesaid, feloniously and willfully did kill and slay, against the peace of the people of the State of New-York, and their dignity.
    B. C. Underhill,

      District Attorney.

    The defendant pleaded not guilty.
    On the trial of the cause, in the Court of Sessions, several witnesses were examined, and, at the conclusion of the . evidence, the court, among other things, instructed the jury that if they were satisfied from the evidence that the deceased came to her death by reason of blows or injuries inflicted upon her by the defendant, and that such blows were inflicted upon her not in self-defence, nor otherwise excusably or justifiably, they should, in that case, find the defendant guilty of manslaughter in the first degree.
    To which instruction, and the whole thereof, the counsel for the defendant then and there duly excepted.
    The counsel for the defendant then requested the court to . instruct the jury:
    1. That the allegations in the indictment do not amount to a charge of manslaughter in the first degree, or in any higher degree than the fourth degree; and that if the jury should be satisfied from the evidence that the deceased came to her death by reason of blows or injuries inflicted upon her by the defendant, the jury could not, under the present indictment, convict the defendant of manslaughter in the first degree.
    2. That, under the indictment, the defendant cannot be convicted of any higher or greater offence than manslaughter in the fourth degree.
    3. That the evidence for the prosecution does not sustain an indictment for, and will not legally warrant a conviction for, manslaughter in the first degree.
    To each of which requests the court declined to accede, and refused to charge the jury as requested; and to which decision and refusal the counsel for the defendant did then and there duly except.
    The jury found the prisoner guilty of manslaughter in the first degree.
    A bill of exceptions having been made, judgment was stayed to await the decision upon the writ of certiorari.

      A. Hadden and H. A. Moore, for the prisoner, made the following points:
    I. The court erred in instructing the jury that if the evidence showed that the deceased came to her death by reason of the injuries received from the defendant, it was manslaughter in the first degree, unless they were satisfied that the injuries were inflicted in self-defence, or excusably or justifiably. Such an instruction must have been based upon the assumption that such a case would fall within the sixth section of the statute, defining manslaughter, which provides that the “killing of a human being, without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to felony, shall be deemed manslaughter in the first degree.” But, in order to bring the case within this section, the crime or misdemeanor in the perpetration of which the killing wras effected must be some crime or misdemeanor other than the act which was itself the cause of death: the act for doing which the party is indicted. (The People v. Rector, 19 Wend., 569; The People v. White, 24 Wend., 520.)
    II. The court erred in refusing to charge the jury that the allegations in the indictment do not constitute a charge of manslaughter in the first degree, or any other than the fourth degree. * The allegation of the indictment is, that the defendant, with his hands and feet, inflicted divers injuries upon the person of the deceased, which caused her death, without averring that it was while the defendant was engaged in the perpetration of any other offence, or in a cruel and unusual manner, or with a dangerous weapon, or in the commission of any other trespass or injury to private rights or property; so that if the first point be well taken, there is no other degree of manslaughter under which the indictment can be ranked than the fourth.
    III. The court erred in refusing to charge the jury that the evidence would not warrant a conviction for manslaughter in the first degree. The evidence shows conclusively that if the deceased came to her death in consequence of injuries inflicted by the defendant, there is no reason whatever to suppose that the means employed were either cruel or unusual; while from the proved state of intoxication of the deceased, and the language used by the defendant, it is beyond reasonable doubt that the defendant must have been in the heat of passion ; which state of facts is accurately and literally within the statute definition of manslaughter in the fourth degree. (2 R. S., part 4, ch. 1, tit. 2, art. 1, § 18.) And, inasmuch as the killing of another by any weapon must involve a trespass and a misdemeanor, unless the killing be ' excusable homicide, if the facts in the case at bar constitute manslaughter in the first degree, the eighteenth section referred to can have no application to any conceivable state of facts.

      J. G. Schumaker (District Attorney), for the people.

       Vide Darry v. The People (2 Park. Cr. R., 606, 634).

   By the Court, S. B. Strong, P. J.

The indictment in this case is in the common law form for manslaughter, without specifying any facts to designate the degree, under the provisions of the Revised Statutes. The counsel for the prisoner supposes that the omission is fatal to the validity of the indictment, or that at any rate it does not sufficiently charge the crime of manslaughter in the first degree, and that therefore the conviction in this case, which was for that offence, cannot be sustained.

It was decided by the Court for the Correction of Errors, in the case of The People v. Enoch (13 Wend., 176), that the alteration in the Revised Statutes relative to what should constitute the crime of murder did not require any change in the form of the indictment. One reason why the indictment should not be changed from the common law form, urged by me on the argument of that cause, was the danger of an acquittal of a person proved to have committed the crime on the ground of variance, particularly when the means used must be conjectural. The danger was evinced in the subsequent case of The People v. White, where the indictment particularized the charge so as to bring it within one of the three specifications in the Revised Statutes, and the accused, who was found to have been guilty of the crime under another specification, escaped on the ground of variance. (24 Wend., 540.) The principle on which the case of The People v. Enoch was decided is applicable to cases of manslaughter. The statutes do not expressly require any change in the form of the indictment, nor should there be any where it might facilitate the escape of criminals on technical grounds. Under the common law form, the priprisoner might be convicted of the offence in any degree according to the evidence.

The judge charged the jury that if they were satisfied from the evidence that the deceased had come to her death by reason of blows or injuries inflicted upon her, not in any self-defence, nor otherwise excusably or justifiably, they should find the defendant guilty of manslaughter in the first degree. It appeared, from the testimony of the physicians who conducted a post mortem, examination, that a large superficial vein had been ruptured, causing effusion of blood on the brain, and that the death had resulted from the consequent compression of the brain. The defendant and the deceased, who was his wife, were both intoxicated, and had a violent quarrel in their room at a late hour in the evening, during which so much violence was used that the woman screamed several times, and their son, who was a small boy, exclaimed, “Pa. don’t kill ma!” A lodger in the room immediately over the one occupied by them went into their apartment the next morning, where she found the deceased lying on the floor insensible. There was one cut on her head, which was bleeding, and there were bruises under her ear and on her head. The prisoner said: “Look here! this thing has fell out of bed and cut her head with a hair pin or some other damned thing.” Two witnesses, one a cousin of the prisoner and the other not related to him, testified that they went to the room occupied by the prisoner and his wife at about nine o’clock the same evening; that the prisoner was absent but his wife was at home; that when first seen by them she was sitting in a chair; that, when addressed by one of them, she arose and advanced a step, then reeled and fell back on a stove; that they lifted her up and put her on a chair; that she bled from the back of her head, where one of those witnesses saw a cut; that they lifted her on the bed; that she did not speak, and they left her shortly afterwards, and before her husband returned. The physicians spoke of but one cut upon her head, and both supposed that the effusion of blood from that caused her death. It seems to me, from all this, that it is at least as natural to infer that the death was caused by the woman’s intoxication and her fall upon the stove as that it was effected by the violence of her husband, and I am at a loss to discover anything which warranted the jury in their conclusion that the prisoner had killed his wife. However, we cannot reverse the judgment on the ground that the jury made a mistake on a question of fact. That this cannot be done, either by the court before which the trial was had or the tribunal to which the case might be carried on a bill of exceptions, was settled long ago, and we are not at liberty to overturn a rule as old as the common law itself without statutory authority. Others may attempt to do that, but we shall adhere to our own solemn determination, that the rule of the common law must prevail until it is abolished by our own laws. (The People v. The Dutchess Oyer and Terminer, 2 Barb., 282.)

The principal question in this case arises on the other exception taken by the counsel for the prisoner to that part of the charge of the court which I have above quoted. The court instructed the jury, in effect, that if the prisoner was guilty of any crime it was manslaughter in the first degree. The Revised Statutes (2 R. S., 661) provide that the killing of a human being, without a design to effect death, by the act, procurement or culpable negligence of any other, while such other is engaged: First. In the perpetration of any crime or misdemeanor not amounting to a felony; or, Second. In an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at the common law, shall be deemed guilty of manslaughter in the first degree. If the prisoner killed his wife by violent means (and he must have done so, if at all), no doubt he was engaged in the perpetration of an assault and battery, which is a misdemeanor. But that was a part of the act itself which constituted the principal charge. The statute evidently contemplated some other misdemeanor than that which is an ingredient in the imputed offence, otherwise that part of it relating to an attempt to perpetrate a misdemeanor-would be wholly nugatory.- Where an act becomes criminal from the perpetration, or the attempt to perpetrate some other crime, it would seem that the lesser could not be a part of the greater offence. Derivative character must necessarily spring from a distinct, although it may be a connected source. I agree with Judge Bronson in thinking that, in order to bring a case within the definition of manslaughter in the first degree, it is necessary to show that the accused was committing, or attempting to commit, some other offence than that of intentional violence upon the person killed. (The People v. Rector, 19 Wend., 605.) But the statute requires something more than the commission, or the attempt to commit, a crime or misdemeanor in order to constitute an undesigned killing of a human being manslaughter in the first degree. It must be under circumstances which would render the killing murder at the common law. Now, it was never the rule that the undesigned killing of a human being, in the heat of passion, excited by intoxication, by a violent assault and battery (and that was all that could be inferred from the evidence in this case) constituted the crime of murder. Something more was requisite. In order to constitute the crime of murder, where the killing is unpremeditated, and not by a person engaged in the commission' of a felony, but simply by assaulting another, the beating must be in a cruel and unusual manner, as where a master corrected a servant with an iron bar, and a schoolmaster stamped on his scholar in a tender part of his body, so that each of the sufferers died. In such cases the danger is so palpable that the act evinces a depraved mind, regardless of human life. There may" be instances so strongly marked that the court may assume their character -in' its instructions to- the jury. But they are very rare, and certainly this is not one of them. If the misdemeanor had been of that distinctive character which would have allowed the application of the provisions of the statute relative to manslaughter in the first degree to the transaction, it would still have been an important question whether the beating was in such a cruel and unusual manner as evinced a depraved mind, regardless of human life. That would have been a question of fact which should have been submitted to the jury with proper instructions as to the law, and should not have been, as it was, assumed by the court.

The conviction must be reversed and proceedings remitted for a new trial.

Emott, J., dissented.

Conviction reversed.


author: Pratt, J.

text:
    Supreme Court. At Chambers, Syracuse,
    May 9, 1857.
    Before Pratt, Justice.
    The People v. Lansing R. Putnam.
    Under the act entitled “ An act to suppress intemperance, and to regulate the sale of intoxicating liquors,” passed April 16th, 1857, being intoxicated in any public place is a criminal offence: but it is not punishable summarily before a magistrate; unless the accused elects to be thus tried, the act having secured to him the right, in all cases, to give bail to appear before the next Court of Oyer and Terminer or Sessions, to be held in the county, and to be tried only upon indictment by a grand jury.
    The prisoner was arrested and brought before a justice of the peace, charged with having been found intoxicated in the public streets. His counsel claimed the right to give bail, and presented a recognizance with two sufficient sureties conditioned for his appearance at the next Onondaga Court of Sessions. The justice held' that the statute required that the offence should be summarily disposed of, and refused to take bail. The prisoner’s counsel thereupon sued out a writ of habeas corpus before the Hon. Daniel"Pratt, justice of the Supreme Court, and the case was argued on the return setting forth the above stated facts.

      John A. Clark, for the prisoner.

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

The Maine law, as it is called, is repealed in express terms by the license law of the last session of the legislature. The prisoner, therefore, if punishable at all, must be punished by force of the last act, and by the method of procedure therein provided. The material inquiry, therefore, is to ascertain what method of procedure for the punishment of persons found intoxicated in public places is provided for in that act.

I may premise in the first place that there is no constitutional difficulty in the way of making this offence punishable summarily. That instrument provides that the right of trial by jury, in all cases in which it has heretofore been used, shall remain inviolate forever.

From the first organization of this state, and even while it was a colony, the higher crimes could only be tried by a common law jury of twelve men, and that upon presentment by indictment of a grand jury. There were certain crimes of the grade of misdemeanor which courts of special sessions had jurisdiction to try, provided the accused neglected, for a certain specified time, to give bail for his appearance at a Court of Oyer and Terminer or Sessions. By giving such bail, the accused could have the benefit of a trial by jury in all cases of misdemeanor. The constitution, therefore, secures to persons charged with misdemeanors the right of trial by jury thus qualified, and a provision of the Maine law depriving the accused of this right, and giving the magistrate absolute power to try him summarily, was held by the Court of Appeals to be unconstitutional.

But there was always a class of persons or offenders, who, from the commencement of the government, have been accustomed to be dealt with summarily before inferior magistrates, and to whom the right of trial by jury has not been granted. These were classed under the heads of vagrants and disorderly persons. Among the latter, by the Revised Statutes, were classed drunkards. Persons found intoxicated in the public streets and places of the city might, therefore, well be classed in the same category, and provision be made for their summary conviction and punishment.

But the serious question is, does the license law now in existence make provision for such summary conviction and punishment ? After a careful examination of the act, I have been unable to find any such provision.

The act contains no specific directions in regard to the trial before a magistrate of offences against its provisions. The sixteenth and seventeenth sections seem to contain the only provisions in relation to the procedure before the magistrate before whom the accused shall be brought. The sixteenth section makes it the duty of certain officers therein specified to arrest all persons found actually engaged in the commission of any offence in violation of the act, and forthwith carry them before any magistrate of the same city or town, who, on sufficient proof that such offence has been committed, unless such person shall elect to be tried before such magistrate, shall take a bond from the accused to appear at the next Court of Oyer and Terminer or Sessions to be held in the county, or commit him to jail to await the action of such court.

This section also makes it the duty of magistrates to entertain complaints of any violations of the act, and to issue warrants to bring the accused before them, making the same provisions for their trial as in the case of those arrested without process. ■

The seventeenth section provides for the arrest of persons found intoxicated in public places, and for their examination before the magistrate, for the purpose, as it would seem, of ascertaining the cause of such intoxication, and who sold or gave to the-accused the liquor; and the section adds, “such intoxication being hereby declared to be an offence against the provision of this act, punishable upon conviction by a fine of ten dollars and costs, at the same rate as in Court of Special Sessions,” with imprisonment, not to exceed ten days, until paid.

There is no provision for summary trial and conviction, nor for any trial before the magistrate, except that contained in the sixteenth section. The twenty-ninth section makes it the duty of the courts to charge grand jurors to inquire into all offences against the provisions of the act, and to present all offending under the act for trial. The only reasonable conclusion would seem to be that as there is no provision in the act for the trial and conviction before the magistrate for offences against the provisions of the act, except when the accused shall elect to be thus tried, such offences can only be tried upon indictment in a Court of Oyer and Terminer or Sessions, except in case of an election by the accused to be tried by the magistrate. ■

This would seem to follow from the absence of affirmative provisions conferring upon the magistrate this power to try, and convict summarily, as there is no principle better settled than that courts and officers of inferior jurisdictions have no common law jurisdiction, but can exercise jurisdiction only in cases specially conferred upon them by statute. But in this act there seems to be more than mere absence of any provisions for the exercise of this power. The magistrate, as I construe the act, is, by express provision, excluded from trying the accused summarily, except he elects thus to be tried. By the seventeenth section, being intoxicated in a public place is made an offence against the provisions of the act; and, by section sixteen, persons proved to have committed such offences, unless they elect to be tried before the magistrate before whom they are brought, are to give bail, or be committed to await the action of a grand jury.

In addition, the twentieth section makes it the duty of courts to charge grand jurors to inquire into all offences against the provisions of this act, and to present all offenders under the act. The precise expression is here used which is used in the seventeenth section, to define the crime of being intoxicated in a public place.

Taking these three sections together, it seems to me that the only fair construction of which they are susceptible is, that intoxication is to be dealt with in the same manner as other offences against the provisions of the act.

It is with deep regret that I feel forced to come to this conclusion, as I look upon this as one of the most important of the remedial portions of the act, provided the jurisdiction had been conferred upon the local magistrate of trying and convicting summarily for the offence. Without this power, much of the benefit and efficiency of such a provision cannot be realized.

The prisoner must therefore be discharged, on his executing the necessary bond.


author: By the Court, S. B. Strong, J.

text:
    Supreme Court. Kings General Term,
    May, 1857.

      S. B. Strong, Birdseye and Emott, Justices.
    The People v. Joseph Jackson.
    On the trial of an indictment for rape it is not competent, on the part of the defence, to prove acts of illicit sexual intercourse between the prosecutrix and persons other than the defendant, although the prosecutrix had previously been asked, on her cross-examination, in relation to such illicit acts, and had denied them . (This case overrules The People v. Abbott, 19 Wend., 192.)
    Form of an indictment for rape.
    This was a certiorari to the Kings Oyer and Terminer, in which court the prisoner had been convicted, before S. B. Strong, one of the justices of this court, and Samuel D. Morris, county judge, and the justices of the Sessions.
    The indictment was as follows:

      Kings County, ss :

    The jurors of the people of the State of New-York, in and for the county of Kings, upon their oath, present: That Joseph Jackson and John Dixon, now or late of the city of Brooklyn, in the county of Kings aforesaid, on the twenty-third day of August, in the year of our Lord one thousand eight hundred and fifty-six, at the town of Gravesend and in the county of Kings aforesaid, in and upon the body of Catharine Sullivan, a woman of the age of ten years and upwards, in the peace of God and of the said people, then and there being, with force and arms did feloniously make an assault, and her, the said Catharine Sullivan, did then and there, wickedly and feloniously and against her will, forcibly ravish and carnally and unlawfully know, 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. .
    R. C. Underhill,

      District. Attorney.

    The prisoner pleaded not guilty. -
    On the trial it appeared that Catharine Sullivan, .the prosecutrix, embarked from Liverpool, on board the ship City of Brooklyn, for New-York, in July, 1856 5 that she arrived in New York on or about the 20th-day of August, 1856. , ■
    The said Catharine Sullivan was sworn and testified on behalf of the people. On ■ her ■ cross-examination, among other things, she was asked, by the counsel for the defendant, whether, during her passage from Liverpool to New-York, above stated, she had sexual intercourse with one Dr. Mason, a passenger on said ship, during said voyage, and she denied, in the most positive and unqualified terms, that she- ever had sexual intercourse with said Dr. Mason.
    During the progress of the trial, the counsel for the defence offered to prove particular acts of illicit sexual intercourse between the said prosecutrix and the said Dr. Mason, during the aforesaid voyage from Liverpool to New-York. The district attorney objected to any proof of particular acts.of illicit intercourse between the prosecutrix and other persons, or any other person than the defendant. The court decided that the defence might prove the general bad ■ character of the prosecutrix for chastity, but that evidence of particular acts of illicit intercourse between -the prosecutrix and any other individual except the defendant could not be given in evidence. The court accordingly refused to allow the evi-r dence to be given, to which said decision the counsel for the defendant excepted.
    The jury found the prisoner guilty.

      John G. Schumaker (District Attorney), for the people.
    I. The defendant may give evidence of the prosecutrix’s notoriously bad character for want of chastity, or that she had before been connected, with her consent, with defendant ; but he cannot give evidence of any other particular facts to impeach her chastity. (Regina v. Clay, 5 Cox C. C., 146, 1851; State v. Jefferson, 6 Iredell, 305, 1846; Rex v. Hodgson, Russ. & Ry. C. C., 211; Rex v. Clark, 2 Stark., 243; R. v. Barker, 3 Carr. & Payne, 589; R. v. Martin, 6 id., 562; Camp v. State, 3 Kelly, 417; Geo. R., 1847; Jackson v. Lewis, 13 John., 504.) 1. The Court of Errors have decided in the case of Bakeman v. Rose (18 Wend., 153, 154, 155), “ That the credit of a witness should only be impeached by proof of his moral character generally, and not by proof of a particular immoral act.” Senator Tracy says that “ This principle is "concurred in by all elementary writers upon evidence, and has been maintained by courts everywhere, in almost every variety of form in which it has been presented for their decision.” 2. The witness, Catharine Sullivan, was asked in relation to a particular act of unchastity upon her cross-examination; and afterwards such particular act was offered to be proven by the defendant.
    II. Any question'answered by the girl Sullivan, on her cross-examination, in relation to any particular act touching her chastity, is immaterial to the issue and irrelevant, and her answer must be taken as conclusive. (Stark. Ev., 146, 147, pt. 2; 1 Phil. Ev., 229, ch. 7 and 8; Swift's Ev., 143, 144.)
    III. “ The inquiry as to any particular immoral conduct is. not admissible against a witness,” is an old rule of law, and has been decided in this state, England, North Carolina, Georgia and Kentucky. Chief Justice Savage, in Bakeman v. Rose (14 Wend.), says: “That this point was expressly decided in this state twenty years before, in the case of Jackson v. Lewis (13 John.).” Chief Justice Thompson also says : “ That such rule has not ever been departed from, and a discussion of it is unnecessary.”
    IV. The case of The People v. Abbott does not sustain the offer of the defendant to show particular acts. (People v. Abbott, 19 Wend., 198.) The same question addressed to Mercy Foster, and ruled irrelevant and sustained by Justice Cowen, “ to wit, as to immoral and improper intercourse between prosecutrix and prisoner,” was the same question exactly put in this case to the witness Newell. A man is supposed capable of defending his general character, but cannot be prepared to defend himself against particular charges.

      Alexander Hadden, for the prisoner,
    Relied on The People v. Abbott (19 Wend., 192).

       In favor of admitting such evidence, vide The People v. Abbott (19 Wend., 192) ; Rex v. Barker (3 Carr. & Payne, 589) ; Rex v. Martin (5 id., 662; 2 Mood. & R., 512). Against it, Rex v. Hodgson (Russ. & R. C. C., 211); Rex v. Clark (2 Stark., 243); Regina v. Clay (3 Cox C. C., 146); The State v. Jefferson (6 Iredell, 305) ; Camp v. The State (3 Kelly, 417); Rosc. Cr. Ev., 97, 97, 863; 3 Greenl. Ev., 214; 1 Phil. Ev., 176, 7 Am. ed.; 1 Cow. & Hill’s Note's, 458, note 340; 1 Stark. Ev., 700; 1 Ch. Cr. L., 812; 1 Russ. on Cr., 690.

   By the Court, S. B. Strong, J.

The defendant was tried at the Court of Oyer and Terminer held in the county of Kings on an indictment against him and another for a rape upon Catharine Sullivan. The trial occupied eight days, and resulted in his conviction. The complainant was asked, on her cross-examination by the counsel for the accused, whether upon her passage from Liverpool to New-York, previous to the alleged outrage, she had illicit sexual intercourse with a fellow passenger, to which she answered unhesitatingly that she had not. Subsequently the counsel for the accused offered to prove by another witness particular acts of such illicit sexual intercourse between the complainant and the same passenger during such voyage. The district attorney objected to the admission of the proposed evidence ; and the court decided that the defendant might prove the general bad character of the prosecutrix for chastity, but that evidence of particular acts of unchaste conduct by her, with any person other than the accused, at any period previous to their, intercourse, was inadmissible,, and rejected the evidence as to such alleged acts offered in behalf of the accused, to which his counsel excepted. The only question raised by the bill of exceptions is whether this rejection of the proposed evidence was proper.

Although the prosecutrix in such cases is the person aggrieved, yet she is upon the trial simply a witness between the people and the accused, and the rules of evidence relative to ordinary witnesses are, with two exceptions resulting from the peculiarity of the complaint, which I shall presently notice, applicable to her. Generally the conduct of a witness in matters disconnected from the subject of the trial, being irrelevant, cannot be given in evidence. The objections to admitting such evidence are, that it raises collateral issues, and that the party against whom it may be offered would generally be taken by surprise, and not be prepared to meet it. It is very desirable that the inquiries upon a trial should be confined to the issues actually joined between the parties. They attend to try those only; the attention of the jury is or should be exclusively directed to them, and not diverted to other and irrelevant matters which have a tendency to confuse their minds, and an investigation into collateral matters would protract issues into inconvenient and intolerable length. The issues in civil cases, owing to modern innovations, are very numerous in most instances, and ought not to be increased by a relaxation of the rules of evidence. The system of special pleading which has been recently almost practically abolished, was admirably adapted to raise, and to confine the parties to a few specific and necessary issues. The consequence of the abandonment of that system in civil cases has been that legal investigations have become very burdensome to courts and juries, and there are numerous delays which in many instances operate disastrously to the ends of justice. Fortunately however, no essential changes in the modes of procedure in criminal cases have yet been adopted. The issue in those cases is simply whether the accused is guilty of the crime imputed to him in the indictment; whatever tends to prove his guilt or innocence is relevant, all else is foreign to the investigation and inadmissible.

If there should be anything to require the rejection of the proposed evidence, or to diminish the force of what is actually adduced, it may be proved, provided it does not raise or tender a collateral issue. Thus it may be proved that a proposed witness has been convicted of an infamous offence • by producing the record. That raises no collateral issue of fact, as the record is conclusive, and there can be no further inquiry. But it is not competent to prove that the witness has in fact committed a crime if he has not been convicted, although the actual perpetration of the crime is what renders him unworthy of belief. That, if permitted, might raise a collateral issue for trial. So, too, a witness may be asked if he has not perpetrated some offence, or been guilty of some moral obliquity, which would if true impair the weight of his evidence. He may indeed refuse to answer whether he has been guilty of an act which would render him liable to an indictment or a prosecution for a penalty, or of any act disconnected with the main transaction which would have a tendency to degrade him. But he may confess either, at his option, and the evidence would be admissible. That would not, however, raise any issue for trial, as whatsoever his answer might be the party asking the question could not controvert it. A witness may also be asked whether he has previously made a varied or conflicting statement as to some material fact, and should he deny that, he might be contradicted. That would, however, have reference to a direct rather than a collateral issue. As to any discrepant statements of the witness in reference to matters foreign to the issue on trial, although he might be interrogated as to them for the purpose of estimating his credibility, yet the examiner would be precluded from controverting his answers.

There can be no doubt but that, in ordinary cases, an inquiry, addressed to any other than the assailed witness, as to any particular act derogatory to his character, or as to any specific blemish in his reputation, should be excluded. It was contended on the argument, however, that the rule had been relaxed in reference to the testimony of the prosecution in trials for rape, and in such cases the door had been opened sufficiently wide to admit the evidence offered and rejected in the court below. It is certainly right that the testimony of the female preferring the complaint should be subjected to the strictest scrutiny compatible with the due ■ administration of justice; she is a necessary and generally the sole witness of the transaction. Experience has shown that the charge is frequently unfounded and instituted from impure motives. It is hard to meet the testimony of a cunning and unprincipled woman in reference to what is alleged to have taken place in the presence only of herself and of the accused, whose mouth is of course closed. It is therefore deemed essential that the charge should be supported by attending considerations or circumstances, such as that the witness is of good fame; that she presently disclosed the offence and made exertions for the detection and prosecution of the offender; that she exhibited marks and signs of the injury, and that the alleged outrage was perpetrated in a private or secluded place. It is absolutely necessary to the constitution of the offence that the outraged female should have resisted to the extent of her power until the. crime was consummated, unless such resistance was prevented by threats and intimidation. As the complainants more frequently pervert the truth and are harder to be met in reference to this particular than as to any other allegation, courts have very properly allowed to the defendants considerable latitude in proving contradictory circumstances. They are permitted to prove that the general character of the prosecutrix for chastity is bad, or that she had previously had sexual intercourse with the accused. In either case, the probability of any considerable resistance would be very slight. No great injustice can result from these relaxations of the ordinary rules of evidence. If character is unjustly assailed it can ordinarily be readily fortified, and the accused would generally find it very difficult to support an unfounded allegation of sexual intercourse between himself and the complainant, and particularly when opposed to her positive oath; and besides, the public prosecutor might, when he should deem it necessary, make timely exertions to meet such grounds of defence. But the reasons for the admission and against the rejection of evidence as to the general character of the prosecutrix for chastity, and her illicit previous intercourse with the accused, are inapplicable to the proof of sexual intercourse between her and another, which was offered and rejected in this case. If the allowance by her of such intercourse resulted from general wantonness, her character in that respect would probably have been bad, and that could have been proved; at any rate, such would be the result in most cases, as the bad report is generally even with the evil practice; but if the complainant had yielded her virtue to the entreaties of one to whom she was attached and to whom she was engaged to be married, and if in this instance she yielded at all it was under such circumstances, I am not prepared to say that the incident would furnish any ground for an inference that she did not resist to the utmost an outrage from one who was comparatively a stranger to her. In any case, a single aberration from virtue, in one whose general character for chastity is otherwise unimpeachable, would raise so slight an inference, if any, of nun-resistance to a brutal outrage from a person, or indeed any one except him to whom she had previously yielded, that it would not justify a departure from the ordinary rules of evidence. Besides, if proof of particular instances should be admissible, rebutting evidence would be allowable, and thus there might be one or more collateral issues to occupy the time and divert the attention of the jury. Such would be the evils if the prosecution could require previous and timely noting of the particulars of the intended attack upon the conduct of the complainant; but as no such notice can be exacted, there would be no means of meeting the evidence, often of the dissolute companions of the accused, however mistaken or corrupt it might be, and thus the character of an innocent and greatly abused female might be sacrificed, and the ends of public justice be defeated. The weight of authority is decidedly against the admissibility of such evidence. In The King v. Hodgson (Russ. & Ry. Cr. Cas., 211) the prisoner’s counsel offered a witness to prove that he had sexual intercourse with the complainant about a year before the charge, but Wood, B., who presided at the trial, rejected the evidence. Subsequently, the question as to the admissibility of such evidence was argued before the twelve judges of England, and it was decided by them, unanimously, on the 30th of January, 1813, that the objection to its reception had been properly allowed. In The King v. Clark (3 Stark., 341) there was a trial on an indictment for an assault with an intent to commit a rape, before Holroyd, J. The learned judge said that, “in the case óf an indictment for a rape, evidence that the woman had a bad character previous to the supposed commission of the offence isc admissible, but the defendant cannot go into evidence of particular facts. This is the law upon an indictment for a rape.”

Mr. Greenleaf, in his valuable work on evidence (3 Greenlf. Ev., § 314), says : “The character of a prosecutrix, on a trial for rape, for chastity may also be impeached, but this must be done by general evidence of her reputation in that respect. Starkie (Stark. Ev., part 4, 1269) says: “The charscter of the prosecutrix for chastity may be impeached by general evidence; but evidence of particular facts for this purpose is inadmissible.” Phillips, in his work on evidence (Phil. Ev., 222, 223, 3d ed.) says: “ On an indictment for rape, the woman is not obliged to answer whether, on some former occasion, she had not a criminal connection with other men or with particular individuals, nor is evidence of such criminal intercourse admissible.” Other authorities to the same effect' are very numerous, and I consider the point to be well settled. It is true that Judge Cowen, in the case of The People v. Abbott (19 Wend., 192), disapproves of the rule, strongly sustained as it is by numerous judicial decisions and the opinions of many elementary writers; but the point was not necessarily raised in that case, as the conviction was reversed on the ground that the Court of General Sessions, before which the trial for a rape had been conducted, had no jurisdiction of the case, and what was said by the learned judge as to the rejection of evidence was a mere obiter dictum.

As the proffered evidence in this case was properly rejected, the motion for a new trial must be denied, and the record must be remitted to the Court of Oyer and Terminer, with instructions to sentence the defendant conform-ably to his conviction.

Proceedings affirmed.