source: Caselaw Access Project

author: By the Court, Brown, J.

license: Public Domain

text:
    Supreme Court. Kings General Term,
    July, 1855

      Brown, Rockwell and S. B. Strong, Justices
    The People vs. John Cavanagh.
    Error committed by a criminal court having jurisdiction of the offence and of the person of the prisoner can not be re-examined on habeas corpus; whether the. error-occurred at the trial or is alleged to exist in the judgment rendered, the only remedy is by certiorari or writ of error.

    Though, in such case, matters anterior to the judgment can not be reexamined on habeas corpus, yet the officer may discharge for reasons arising subsequent to the judgment, such as the expiration of the teiTsi^of imprisonment, the payment of the fine imposed, or reversal of the judgment or an executive pardon.
    When the imprisonment is under process valid on its face it will be deemecfi prima facie legal and the prisoner must assume the burthen of proving its validity by showing a want of jurisdiction.
    Error, irregularity, or want of'form is no ground for discharging on habeas corpus : nor is any defect which may be amended or remedied by further entry, or by. motion.
    A court of Oyer and Terminer is a court of superior criminal jurisdiction, having power to try all crimes and misdemeanors and though its record does not show the service of process on the defendant, its jurisdiction over the person will be presumed.
    Upon a conviction at the Oyer and Terminer, it is sufficient to state in the entry of judgment in the minutes, under the requirement of 2 R. S. 728 i 5, that the defendant was convicted of a misdemeanor; and a more pirticular description of the offence need not be stated. Nor is a more particular description of the offence necessary in the warrant of commitment.
    Where, on habeas corpus, it bfecomes material to know of what particular misdemeanor the prisoner was convicted, in order to determine whether the commitment was legal, resort may be had to the record, if one has been made up and filed, and if not, to the indictment upon which he was tried and convicted and to which the entry in the minutes refers.
    It forms no ground for a discharge on habeas corpus, that the court of Oyer and Terminer erred in sentencing a prisoner, convicted of a misdemeanor, to imprisonment in the county jail, instead of the penitentiary.
    Forms of writ of certiorari to remove decision on habeas corpus, and of return thereto, including petition for habeas corpus, return and traverse, and decision.
    This - case came upon certiorari. It was brought for the purpose of reviewing a decision made on habeas corpus, by Mr Justice Dean, reported in 1 Park. Cr. R. 588.
    The writ of certiorari was as follows:

      The People of the state of New York to Gilbert Dean, Esq., one of the justices of the Supreme Court of the state of New York, greeting:
    Whereas we have been informed by the complaint of Richard C. Underhill, district attorney of the county of Kings, [l. s.] that certain proceedings were had before you on behalf of John Cavanagh, lately convicted of a misdemeanor in our court of Oyer and Terminer, of the county of Kings, and imprisoned, pursuant to sentence thereon, in the common jail of said county, whereby an order was made by you on the third day of October, in the year one thousand eight hundred and fifty-four, allowing a writ of habeas corpus, tested of that day, and directed to Englebert Lott, sheriff of said county and keeper of the common jail thereof, commanding him to bring before you, the said justice, the body of the said John Cavanagh, together with the cause of his imprisonment, at the city hall, in the. city of Brooklyn; and whereby a certain other order was made by you in said proceedings upon the return of said writ on the fifth day of October, in the year aforesaid, discharging the said John Cavanagh from his imprisonment aforesaid; and we being willing, for certain reasons, to be certified of the said proceedings, writ and orders, and all things appertaining thereto, do command you that you certify the same, with all things appertaining thereto, unto our justices of our Supreme Court, at the city hall, in the city of Brooklyn,' on the first Monday of November, in the year one thousand eight hundred and fifty-four, under your seal, as fully and amply as the same remain before you, that our said justices may cause to be done further thereupon what of right and according to law ought to be done, and have you then there this writ.
    Witness Selah B. Strong, Esq., justice of the Supreme Coyrt, at the city hall of Brooklyn, the twenty sixth day of October, in the year, one thousand eight hundred and fifty-four.
    C. A. Denike, Clerk.

    R C. Underhill, Dist. Attorney of Kings county.

      .(Endorsed.) On the application of R. C. Underhill, district attorney of Kings county, upon his affidavit sworn to October 26, 1854,1 allow the within writ of certiorari to issue; and let kaid affidavit be filed in the office of the clerk of Kings county. Dated October 26, 1854.
    W. Rockwell, Justice of the Supreme Court.

    To which the following answer was made:
    The answer of Gilbert Dean, one of the justices of the Supreme Court, to the writ of certiorari hereto annexed.
    By virtue of and in obedience to the writ of certiorari hereto annexed, and to me directed, I do hereby certify and return to the justices of the Supreme Court, that on the third day of October, in the year one thousand eight hundred and fifty-four, a petition of John Cavanagh was presented to me, duly verified, which petition is as follows:

      To the Supreme Court of the state of New York.

    The petition of John Cavanagh respectfully shows, that he is unjustly and unlawfully restrained of his liberty, and detained in the county jail of the county of Kings, as a prisoner, by Englebert Lott, Esq., sheriff of the said county of Kings, and that he is not committed or detained by virtue of any process issued by any court of the United States, or by any judge thereof, nor is he committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or ' criminal jurisdiction, or by virtue, of any execution issued upon- such judgment or decree; that the cause or pretence of such detention and imprisonment, according to the best of the knowledge and belief -of your petitioner, is the minute of conviction of your petitioner of an alleged misdemeanor at a court of Oyer and Terminer, held in and for the county of Kings, and the Sentence of said court thereupon, a copy of which said minute of conviction and sentence is as follows:
    At a court of Oyer ¿hd Terminer held in and for the county of Kings, at the court house, in the city of Brooklyn, on the twelfth day of September, in the year of our Lord one thousand eight hundred and fifty-four. Present—The Hon. Wm. Rockwell, justice, presiding; Henry A. Moore, county judge; Nicholas Stillwell and Samuel S. Stryker, justices of the peace.
    The People of the state of New York, 1 vs. 1 Convicted of misdemeanor. John Cavanagh. )
    Thereupon, it is ordered and adjudged by the court, that the said John Cavanagh, for the misdemeanor aforesaid whereof he is convicted, be imprisoned in the common jail of Kings county for the term of thirty days, and pay a fine of two hundred and fifty dollars, and in default of payment of said fine to be imprisoned for a further term not exceeding six months.
    And your petitioner respectfully suggests, as matter of error in said minute of conviction, thfit the same does not show and set forth of what offence your petitioner was and stands convicted, and does not show and set forth that your petitioner was convicted of any offence at all.
    Your petitioner further shows, that in and by an act of the legislature of the state of New York, passed April 5th, 1853, entitled “ An act relating to the penitentiary in the county of Kings,” it was enacted and provided as follows:
    1st. "Whenever the penitentiary in the county of Kings shall be ready for the confinement of prisoners therein, the board of supervisors of said county shall file a certificate thereof in the office of the clerk of said county, and also publish a notice of the same for three weeks successively in one or more newspapers published in said county.
    2d. After the filing of said certificate, and the publication of said notice, it shall be the duty of all magistrates and courts in said county to sentence all persons who, on conviction, are liable (except in capital cases) to imprisonment for a period of not less than thirty days, to .confinement in said penitentiary instead of the county jail; and the keeper thereof shall receive such persons and safely keep for the term for which they were sentenced, and employ them according to the government of said penitentiary.
    And your petitioner further says, that as he has been informed, and believes to be true, the board of supervisors of the said county of Kings, prior to the conviction and sentence of your petitioner, the said penitentiary being ready for the confinement of prisoners therein, filed the said certificate and published a notice of the same, as is directed and required by said act. By reason whereof the said sentence of your petitioner to imprisonment in the said county jail was illegal.
    Wherefore your petitioner prays that a writ of habeas corpus issue, directed to the said Englebert Lo'tt, sheriff as aforesaid, commanding him to bring your petitioner before your Honor, to be dealt'with according to law.
    John Cavanagh.

      Kings county, City of, Brooklyn, ss:

    John Cavanagh, the petitioner in the foregoing petition, being duly sworn, says, that he has heard the foregoing petition read, and that he knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and that as to those matters he believes it to be true. John Cavanagh.
    Sworn to before me, this 3d day of October, 1854,
    A. McCue, Com. of Deeds.

    That I did thereupon, pursuant t^ the prayer of said petitioner, order and allow a writ of habeas corpus to issue to Englebert Lott, sheriff of said county of Kings, commanding him to have before me the body of the said John Cavanagh, together with the cause of his imprisonment, at the city hall of the city of Brooklyn, on the fourth day of October, 1854; at which last mentioned time and place appeared before me the said sheriff; together with the said John Cavanagh, and also the district attorney of said county, on behalf of the people, and the said sheriff did then and there return to the said writ of habeas corpus that he had said John Cavanagh then present, and that he held and detained him under and by virtue of a commitment annexed to said return, and of which a copy is set forth in the foregoing petition,.which commitment was duly certified by the clerk of the court of Oyer and Terminer therein mentioned, to be a true extract from the minutes of said court, and was sealed with the seal thereof.
    And thereupon the said John Cavanagh did traverse said return of said sheriff, which traverse is as follows:
    In the matter of the application of John Cavanagh on habeas • corpus.

      Kings County, City of Brooklyn, ss:

    John Cavanagh, the petitioner, being duly sworn, says, for traverse to the return of the sheriff to the writ of habeas corpus in this case, that the same is not sufficient to hold and detain him, for that on the face of said return it does not appear that the court of Oyer and Terminer had authority to direct the imprisonment of your petitioner at all, or that it had any authority to direct the imprisonment of your petitioner in the county jail; for that there existed in the county of Kings a penitentiary, which is the place designated by law for the imprisonment of all persons who, on conviction, are liable (except in capital cases) to imprisonment for a period of not less than thirty days, and which is the only place in which your petitioner, under the conviction against him, could be legally imprisoned. John Cavanagh.
    Sworn to before me, this 4th day of October, 1854.
    G. Dean, Justice of Supreme Court.

    Whereupon I did then and there proceed to hear the allegations and proofs produced in behalf of said prisoner, and also in behalf of said people; and being satisfied upon such hearing that the penitentiary of said county of Kings had been made ready for the confinement of prisoners therein, and that a certificate and notice thereof had been duly filed and published pursuant to the act of the legislature of the state of New York, mentioned in said petition, I did thereupon, for the reasons stated in the annexed opinion, make and endorse upon said writ of habeas corpus an order as follows:
    In the matter of .the habeas corpus issued to the sheriff of Kings county, to bring up the body of John Cavanagh, by him detained with the cause, &c.
    On the return of the sheriff made to the within habeas corpus, and the traverse thereof on behalf of the prisoner, and on hearing the district attorney on behalf of the people, and the counsel of the prisoner, it is oidered that the prisoner be and he is hereby discharged from custody.
    Dated October 5, 1854. G. Dean.

      Justice of Supreme Court.,

    All of which I do hereby certify, and return as within I am commanded,
    In testimony whereof I have hereunto put my hand and seal, this 27th day of October, in the year 1854.
    G. Dean, [l. s.]

      R. C. Underhill, (District Attorney) for the people.
    I. The judge erred in allowing the writ of habeas corpus, because
    (1) The prisoner was detained by virtue of the final judgment of a competent tribunal of criminal jurisdictions; and
    (2) That fact appeared from the petition itself. (2 R. S. Pt. 3, Ch. 9, Tit. 1, Art. 2, § 36 and 40, case folios 9 to 11; 2 R. S. Pt. 4, Ch. 2, Tit. 6, Art. 1, § 5 and 13 )
    II. The judge erred in discharging the prisoner, for the reason first above stated, since the cause of the detention appeared from the return to the writ, (case folio 17,) and that cause was the final judgment of the Oyer and Terminer. (2 R. S. Pt. 4, Ch. 2, ubi supra; Id. Pt. 3, Ch. 9, Tit. 1, Art 2, § 55.)
    (a) The Oyer and Terminer is a competent court of criminal jurisdiction to try and pass jndgment upon all misdemeanors (2 R.S. Pt. 3, Ch. 1, Tit. 4, § 14.)
    (b) It is a Superior Court of general criminal jurisdiction, and jurisdiction of the person upon whom it passes judgment is, therefore, presumed. (Foot v. Stevens, 17 Wend. 483; Hart y. Seixas, 21 Wend. 40; People v. Nevins, 1 Hill. 154.)
    III. A competent court having jurisdiction of the subject matter of a cause, and of the parties to it, and proceeding tc pass judgment therein, is legally competent to pass any judgment, which under any circumstances, the court is authorized to pronounce; and, although its judgment be erroneous, it can not be reversed, vacated, superseded or evaded by a judge at chambers or elsewhere; but only by a competent court, proceeding according to the prescribed legal forms, judicially to review it. (People v. Nevins, 1 Hill, 154; Bl. Comm. Bk. 4, p. 391-2.)
    IV. The defendant’s remedy for any error of the court in this case, is by writ of error, and not by writ of habeas corpus. (2 R. S. Pt. 4, Ch. 2 Tit. 6, Art. 2; Bl. Comm. Bk. 4, p. 391-2 3 Hill, 662.)
    V. The orders made by Justice Dean, allowing the writ of habeas corpus, and discharging the defendant from custody, should be reversed and set aside; and the defendant should be remanded to the custody of the sheriff of Kings -county, to be by him detained pursuant to the sentence of the Oyer ajid Terminer.

      King Hadden & McCue, for defendant.
    1st. The commitment does not show the particular offence designated as a misdemeanor, nor the conviction to have been of an offence for which defendant might be adjudged to be imprisoned; certain offences declared to be misdemeanors, being punishable by fine alone, others by fine and imprisonment, others by fine or imprisonment, and others by imprisonment alone.

      2d. The defendant was adjudged upon said conviction tc imprisonment in the common jail of the county of Kings, for the "period of thirty days, &c., when he should have been sentenced, if at all, to the county penitentiary.'
    3d. Upon the grounds aforesaid said commitment is void.
   By the Court, Brown, J.

Error committed by a criminal court, having jurisdiction of the offence and the person of the prisoner, can not be reexamined upon habeas corpus. Whether the error occurred at the trial, or is alleged to exist in the judgment repdered, the only remedy is by certiorari or writ of error. When it is alleged that the prisoner is in custody by virtue-of legal process, the existence of the process and its validity upon its face become a legitimate subject of inquiry; but there can be no reexamination of any matter which occurred anterior to the judgment, and warrant of commitment. Matters which entitle a prisoner to his discharge, such as- the expiration of the period of time for which he was sentenced, a reversal of the judgment, an executive pardon, or the payment of the fine imposed upon him as a punishment, are subjects upon which the officer issuing the writ may hear proof and when established, constitute good cause for the prisoner’s discharge.

“ When the imprisonment is under process, valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burthen of impeaching its validity by showing a want of jurisdiction in the magistrate or court where it emanated. If he fail in thus impeaching it, his body is to be remanded to custody. Error, irregularity, or want of form, is no objection. Nor is any defect which may be amended or remedied by further entry or motion.” (3 Hill, 661, note, 31; The People v. Nevins, 1 Hill, 154; Case of the Sheriff of Middlesex, 11 Adolp. & Ellis 273; The People v. Cassels, 5 Hill, 164.)

Courts of Oyer and Terminer are courts of superior criminal jurisdiction, having power: !. To inquire by the oath of good and lawful men of the same county, of all crimes and misdemeanors committed or triable in such county: and 2d, to hear and determine all such crimes and misdemeanors. (2 R. S. 2d ed. p. 132, § 29.) It is apparent therefore, that the court of Oyer and Terminer of the county of Kings, had jurisdiction over the offence of which the prisoner, Cavanagh, was con victed, and its jurisdiction over his person will be presumed In Hart v. Seixas, (21 Wend. 40,) the record did not show that the court below had acquired jurisdiction by the service of process, or the appearance of the defendant, and it was held that a court of general jurisdiction is not bound to show the regularity of its proceedings expressly, but that every thing necessary to confer jurisdiction over the person of the defendant would be presumed. The learned justice who delivered the opinion quoted with approbation the rule to be found in Peacock v. Bell, (1 Sand. 73,) “ that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so, and nothing shall be intended to be within the jurisdiction of an inferior court, but that which is expressly alleged.” (Vide also Foot v. Stevens, 17 Wend. 483,) It appeared by the return to the writ of habeas corpus in this proceeding, and also by the petition upon which it was granted, that the prisoner John Cavanagh was in the custody of the sheriff of the county of Kings, in the county jail, by viutue of a commitment, being an extract from the minutes of the court duly certified by the clerk, which expressed, that at a court of Oyer and Terminer holden in and for the county of Kings, on the 12th day of September, 1854, before the Hon. W. Rockwell, one of the justices of this court, Henry A. Moore, county judge, Nicholas Stillwell and Samuel Striker justices, &c., John Cavanagh was convicted of misdemeanor, whereupon it was ordered and adjudged by the court, that the said John Cavanagh for the misdemeanor aforesaid, whereof he is convicted, be imprisoned in the common jail of Kings county, for the term of thirty days, and pay a fine of $250, and in default of the payment of such fine, he be imprisoned for a further term not exceeding six months.” The return was not traversed except so far as to deny the sufficiency of the commitment to detain the prisoner in custody. The 42 section of the act concerning writs of habeas corpus, &c. (2 R. S. 469, 470,) directed that if the return show that the prisoner is detained"in' custody “ by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree,” it shall be the duty of the officer before whom the proceedings are had forthwith to order the prisoner to be remanded. The authority for the form of the commitment upon which Cavanagh was detained,"is to be found in the 5th section of the act concerning judgments, &c., in criminal cases, (2 R. S. 618,) which requires the clerk whenever a judgment, upon any conviction, shall be rendered in any court, to enter such judgment fully in his minutes, stating briefly the offence for which such conviction shall have been had.” Section 11 of the same act provides that a transcript of the entry of such conviction, duly certified by the clerk, shall be delivered to the sheriff which shall be sufficient authority for him to execute such sentence, which he shall execute accordingly.” The learned justice, before whom the proceedings under review were had, made an order that Cavanagh be discharged from his imprisonment, upon the ground that the transcript of conviction was not evidence of the final judgment of a competent court of criminal jurisdiction, because no offence was stated. The entry asserts that the prisoner was convicted of misdemeanor, and the court thereupon adjudged that for the misdemeanor aforesaid, whereof he is' convicted, he be imprisoned, See.” “ The misdemeanor aforesaid whereof he is convicted,” is the offence particularly set out in the indictment, and whenever the record was made up in pursuance of the fourth section of the act last referred to, it would have disclosed the particular acts which constituted the crime, and the nature and character of the misdemeanor of which the prisoner was convicted. In the transcript of the conviction, the crime is briefly stated as a misdemeanor, which is precisely what the act requires. No other term could have been employed more apt and significant. Besides, it has been shown that the want of form is no objection, nor is any defect or omission which may be supplied or remedied by further entry or motion. In The People v. Nevins, the rule upon which the defendant was committed for a contempt, was quite as brief and inexplicit as the entry in the present case. The court say, “ the sum for the nonpayment of which a man is committed for contempt, should no doubt be specified by the rule; but that may be directly, or by reference to a proceeding taken to ascertain the amount through the proper officer, whose report, on its being filed and confirmed, becomes the act of the court and is then to be read , as part of the rule. Id cerium est quod cerium reddi potest.” For illustration the court refer to “the little slip called a bail piece, on which a man may be arrested, and under a short committitur endorsed by a judge, incarcerated, either before or after judgment, at the pleasure of his manucaptors. So in this case, if it became material to know of what particular misdemeanor the prisoner was convicted, in order to determine that the commitment was legal, resort might have been had to the record, if one had been made up and filed, and if not, to the indictment upon which he was tried and convicted, and to which the entry in the minutes referred. But no resort to the record or the indictment, was necessary to give effect to the entry as evidence of a conviction for a crime. It expressed that the prisoner is convicted of misdemeanor, and for the misdemeanor aforesaid, whereof he is convicted that he be imprisoned, &c. At the common law, the term misdemeanor is generally used in contradiction. to felony, and misdemeanors comprehend all indictable offences which do not amount to felony, (4 Black. Com. 5.) There are, it is true, a numerous class of offences, acts of omission and commission, which are specially declared by the statutes to be misdemeanors. There is also a general provision, section 45 of the act concerning offences punishable by imprisonment in the county jail by fines, (2 R. S. 582,) which declares “ that when the performance of any act is prohibited by any statute and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or in any other section or statute, the doing such act shall be deemed a misdemeanor.” Section 46 prescribes the .punishment for such misdemeanor, which is imprisonment in the county jail not exceeding one year, or by fine not exceeding $250, or by both such fine and imprisonment. A misdemeanor is therefore a distinct and well defined offence, with its appropriate punishment declared by the statute. It was no more necessary in the entry of the conviction and sentence upon the minutes of the court, to state or to refer to the particular facts which constitute the misdemeanor, then it would have been to set out or refer to the particular acts which constituted the murder, manslaughter or larceny, had the prisoner been convicted and sentenced for either of those crimes. The offence is described in the entry by the name and designation given to it by the law, and that was all that could be required Let us suppose (what I understand was actually the case,) that Cavanagh was one of the commissioners of excise of the city of Brooklyn. That he united with his co-commissioners in doing some of the acts prohibited by the law concerning excise, and the granting of licenses. And for this breach of public duty he had been indicted by the grand jury and convicted at the Oyer and Terminer. His offence would have fallen within the general provision of section 45 of the act concerning offences, punishable by imprisonment in the county jail and by fine. It would have been a misdemeanor, and by no other name could it have been appropriately and legally designated in the entry of the conviction and sentence.

I therefore conclude that in making the. order for the discharge of Cavanagh from his. imprisonment, the learned justice erred. The moment it appeared that he was in the custody of the sheriff upon the conviction, and in execution of the séntence mentioned in the return, the injunction of the 42 section of the act concerning writs of habeas corpus, &c., because positive and peremptory, and he should have been remanded.

There is no force in the point raised that Cavanagh should have been sentenced to the penitentiary and not to the county jail. We must assume that the Oyer and Terminer determined it had the power to pronounce the sentence under which he was imprisoned. If it was- an error to designate the county jail as the place of his confinement, (which I by no means assert,) it can not be reviewed and corrected in this proceeding. It forms'no ground for his discharge upon habeas corpus.

The proceedings reversed and the prisoner remanded, &c.


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

text:
    Supreme Court. Albany General Term,
    December, 1855

      Parker, Harris and Watson, Justices.
    The People vs. Arthur McMahon.
    Where a juror has heen challenged/or/avor, and evidence of circumstances in support of the challenge has been received and submitted to the triers, without objection, it belongs to the triers and not to the court to decide whether the juror stands indifferent between the parties; and in such case the court, in charging the triers, should not instruct them how they ought to find on that point. Per Weight, J. at the Oyer and Terminer.
    Where incompetent evidence has been received without objection, under a misapprehension on both sides, as to the facts on which its admissibility depended, a motion to strike out such evidence may be made at any subsequent stage of the trial, when facts shall have been proved which render it incompetent.
    On the trial of a party for the murder of his wife, where it appeared that the prisoner was examined as a witness before the coroner’s inquest and that he had been previously arrested for the murder, by a constable, without warrant and was under arrest at the time of his examination as a witness, though the fact of his arrest was not known to the coroner, but was a separate and independent proceeding, it was held competent to prove what the prisoner testified to before the coroner’s jury.
    Evidence given under such circumstances will be deemed voluntary because the witness has the right to refuse to answer any question tending to criminate himself.
    This was a writ of error to the Rensselaer Oyer and Terminer. The prisoner was charged with the murder of Elizabeth McMahon, his wife. A plea of not guilty having been interposed to the indictment, the cause came on to trial on the 19th day of February 1855, before Mr. Justice Wright and the justices of the Sessions.

      After Thomas Harthorn and Nairn Burgess had been called and sworn as jurors,' Sylvester was drawn as a juror and was' challenged by the counsel for the prosecution for favor. The said Harthorn and ’ Burgess were then sworn as triers. At the request of the counsel for the prosecution said Cummings was then sworn and examined as to his fitness and qualification as a juror and testified as follows: “I live in North First street near Jay street in the city of Troy, about twenty feet from where the prisoner lived at the time of the death of his wife. I was home from my store about 10 o’clock of the evening of her death, and was not home after 6 o’clock of that evening until that hour. I had known the prisoner for about two years prior to that time. He was an occasional customer of mine. I was not present at the coroner’s inquest. I was in prisoner’s house the next day but one after the disappearance of his wife, and was a "witness before the grand jury in this- matter, and am subpcened here as a witness, but can not say in whose behalf. I have conversed about this matter, but have expressed no opinion as to the guilt or innocence of the prisoner. I have no tendency to one belief upon the subject more than the other. I have formed no opinion upon the subject. I am an Irishman by birth, and judge from prisoner’s conversation that he is an Irishman. I can not say and have no belief as to the religious faith of the prisoner. I never saw him at the churfch where I worship. I can not remember the day of the week when this woman was last seen. I was sworn before the grand jury in this matter and testified. I have no bias in favor or against the prisoner in this matter.”
    The counsel for the prisoner then and there insisted before the said triers, and requested the court to charge them that the evidence showed that said Cummings was a legal' and competent juror in the case; but the court refused so to charge, and the said triers found and decided upon the evidence aforesaid that the said Cummings was not indifferent between the parties and he was rejected, to which refusal, finding and rejection, the counsel for the prisoner duly and severally excepted.
    It appeared on the trial that the prisoner, if guilty, must have committed the offence on the 8th of September, 1854, between nine and ten o’clock in the evening. On the 9th of September, 1854, a coroner’s inquest was held, upon which the prisoner was sworn as a witness. The testimony given by the prisoner before the coroner’s inquest was proved on the trial,* without objection, by the evidence of Doct. Reed B. Bontecou, the coroner. At the time this evidence was received it did not appear that the prisoner had been arrested at the time he was examined before the coroner’s inquest. At a late stage of the trial Charles R. Squires, a witness called by the prosecution, testified, that he was, and had been, for several years, a constable; and that on the 9th of September, 1854, before the coroner’s inquest was held, he arrested the prisoner without • warrant, on suspicion that he was guilty of the supposed murder. That the prisoner continued under such arrest till after he had been examined before the coroner’s inquest, when Squires took him to the office of Justice Brintnall and that while Brintnall was making out a warrant the coroner sent for the prisoner and made out a warrant on which he was taken to jail.
    The prisoner testified before the coroner’s jury that he was at home at nine o’clock on the evening of the 8th of September. This was important to meet a defence set up that the prisoner was absent from seven till ten o’clock.
    The jury found the prisoner guilty and he was sentenced to be executed on the 27th day of April, 1855.
    Annexed to the bill of exceptions were affidavits on which the prisoner’s counsel asked for a new trial on the ground of newly discovered evidence.

      W. A. Beach, for the prisoner.
    I. The court erred in holding the testimony given by the prisoner before the coroner, competent evidence against him.
    1. Although the evidence was taken without objection, the question as to its admissibility was properly before the court. It was admitted under the misapprehension upon both sides that that there had been no arrest at the time. Doct. Bontecou, the coroner, had testified that the prisoner was arrested after the Verdict on the inquest. The question upon the evidence was raised and considered by consent, without regard to its timeliness. The people can not therefore here object to its consideration.
    2. The arrest of the prisoner by Squires was regular and lawful. A felony had been actually committed and reasonable grounds of suspicion existed against the prisoner. (3 Wend. 350; Barbour’s Cr. Law, 543.)
    3. The testimony of the prisoner while utider such arrest was inadmissible against him. He was under the duress of the law. He testified under the compulsion of a legal proceeding. (The People v. Hendrickson, 9 How. Pr. R. 155; 8 ib. 402.)
    (A) The prisoner stood before the coroner as an arraigned criminal. He was accused of the crime under examination, before an officer competent to investigate and commit. His examination should have been without oath and with information that he was at liberty to refuse to answer any question put to him. (2 R. S. 708.)
    (B) Should it be thought that the provisions last cited are technically inapplicable to proceedings before a coroner, the latter are, nevertheless, obviously within their spirit. It is the charity of the law in all cases of charge and arrest, to protect the accused from all persuasion,.or obligation to criminate himself.
    (C) The exclusion of this character, of testimony is not placed entirely upon the notion of self-crimination. It is a concession to the infirmity of the mind when overcome by heavy calamity and confused by the conflicting emotions, incident to a criminal accusation. (2 Greenleaf on Ev. § 214.)
    (D) The prisoner was undoubtedly convicted, upon the declaration in his evidence before the coroner, that he was at his house, at nine o’clock of the evening of the murder. It was conceded on the trial, that the crime was committed (if at all at the house of the prisoner,) between 9 and 10 o’clock at night. The prisoner had proven an alibi by-two unassailed witnesses. He could have been convicted therefore only upon his confession that he was at the scene of the crime, at the time of its commission.
    ■II. The prisoner is entitled to a new trial upon the ground of newly discovered evidence.

      M. I. Townsend, for the people.
    I. There was no error in the proceedings, or the finding of the triers, on the challenge to Sylvester Cummings as a juror. The evidence to sustain the challenge was submitted to the triers without objection. It consisted of the facts: 1. That the plaintiff in error and the juror were neighbors and friends. 2. The former was a customer of the latter. 3. The juror had been a witness before the grand jury, and was in attendance upon subpoena. He was a witness to many of the circumstances of which the case was made up.
    The submission of the evidence to the triers was not objected to. The exceptions were to the refusal of the court to charge the triers as requested and the finding by them: And though formally two-fold were substantially the same: First, that the court refused to charge that they should find that the said Cummings was a legal a¡nd competent juror, and second, that the triers did not so find.
    1. It was neither the duty nor the right of the court to so charge. (The People v. Bodine, 1 Denio, 308; Same v. Honeyman, 3 id. 124; Same v. Freeman, 4 id. 31.)
    In the last case cited the court charged substantially as requested in this case. It was held erroneous and on that ground a new trial was granted. It was put upon the ground that the province of the court ended in determining what evidence was admissible, and that its strength and influence were for the triers alone to determine.
    2. The finding of triers is Conclusive and is not even subject to review. Where there is evidence submitted to triers and they are properly instructed, there is no appeal from their decision.

      See authorities above cited. In Com. v. Jolliffe, (7 Watts 585,) it was held to be principal cause of challenge on the part of the commonwealth, that the juror had been subpoenaed as a witness by the prisoner.
    It is a good ground of challenge to a person summoned to serve as a grand juror, that he is a witness on the part of the prosecution. (2 R. S. 724, § 27; Whart. Amer. Cr. Law, 961, 971; 4th Wend. 229-19, Johns. Rep. 115, 119.)
    II. There was no error in denying the motion to strike out the testimony of the prisoner given before the coroner’s jury. The question presented by this exception, was decided in the Hendrickson case. The motion to strike out was founded not on the ground, that when the evidence was given he had been arrested, not on the ground that the statement was made under oath, but on the ground of the concurrent effect of the two. Now if it appears that either of those acts formed no material element of the legal proposition the whole objection fails.
    1. That the prisoner had been arrested when the statement was made, did not effect the admissibility of his statements.
    This was not put upon the ground that all his admissions made after this arrest were inadmissible.
    2. Whether he was, or was not under oath when the statements were made, was not material as to the question of admissibility. That was understood when the statements were read in evidence and was not made ground of objection.
    3. The concurrence of the arrest and the oath were not material. It is only when a prisoner is brought before a magistrate upon a charge of crime, and examined as a party to the proceedings and not as a witness, that the oath or the arrest becomes material; statements there made are judicial confessions and must be conducted according to the statutory requirements or they are ndt admissible in evidence against the party making them.
    In this case he was examined as a witness, and of course his examination was conducted as in ordinary cases of witnesses, and he had the power of making every explanation which he chose to make as well as to avail himself of the privilege of not answering if he deemed that his answer might criminate himself.
    4. There was nothing in the circumstances surrounding him to take his statements out of the general rule that what a party has said relevant to the accusation upon which he is being tried is admissible in evidence against him. There were no inducements by means of threats or promises. His testimony was voluntarily given and seems to have been intended to avert suspicion from himself. The People v. Hendrickson, 8th Howard Pr. Rep. 405-7; 9 ib. 163-4; 1 Parker’s Cr. Rep. 396, &c.; People v. Knapp, 10 Pick. R.; People v. Whipple, 9 Cowen, 707; 2 R. S. 708.)
    The remaining points related to the alleged newly discovered evidence.
   By the Court, Parker, P. J.

It was proved at the trial that the prisoner was examined as a witness before the coroner’s inquest, held on the day after the alleged murder. The testimony that he gave on that occasion was proved without objection. At a later stage of the trial, it was shown that, previous to the sitting of the inquest and on the same day, the prisoner had been arrested by one Squires a constable, without warrant, and was under arrest' at the time of his examination. The prisoner’s counsel then moved to strike out the evidence given in his testimony before the inquest, which the court refused to do.

It was not to late too strike out the evidence, if it was incompetent. It was received without objection, under the supposition on both sides, that the prisoner was not under arrest at the time of his examination as a witness. It was in time to make the objection, when the fact appeared on which that objection was based. The question must therefore be decided as if the objection had been made to the admissibility of the evidence before it was received.

This subject has been so recently and so fully examined in the case of The People v. Hendrickson (1 Park. Cr. R. 416,) that nothing new can be gleaned from a further review of the authorities. Upon principle, there can be no good reason for the exclusion of this evidence. It is only upon a judicial examination, where the prisoner is brought before a magistrate charged with crime, that the accused is to be informed by the magistrate that he is at liberty-to refuse to answer any question that may be put to him. (2 R. S. 708, § 15.) He is to be examined, but not on oath; and his answers may subsequently be used as evidence against him. That is the examination of a party and not of a witness.

In the examination of a witness, a different rule prevails. In that case the witness is to answer, unless he objects that his answer will tend to criminate him. If he makes that objection, he will not be compelled to answer. But if he does answer, his testimony may be given in evidence, afterwards, against him.

There is no hardship in this rule, nor is there any necessity for making any exceptions to it. It places all witnesses upon the same footing.. The protection is the same, whether the witness be examined in a civil or a criminal suit, or on a general enquiry, before a grand jury or a coroner’s inquest. In all these cases, a suspected person is. liable to be called- and examined, though he can not be, where he is a party to the proceeding.

This case differs' a. little from Hendrickson’s case, but not in principle. There the witness was said to have been under suspicion at. the time of his examination before the coroner; here he was under arrest. But he was not under an arrest made by order-of the coroner, nor was he before the coroner as a prisoner. The coroner had no instrumentality in causing his arrest, nor had he even any knowledge on the subject. The constable, Squiers, without warrant, but supposing there were reasonable grounds for suspicion, had arrested the prisoner. After such arrest and before he was brought to Brintnall, the justice of the peace, before whom Squires was proceeding to take him, the inquest was-held' before the coroner, as a separate proceeding,, and at that inquest, the prisoner, being present, was called and examined as a witness.

Under such circumstances, McMahon was not before the coroner, as. a prisoner, but as a witness. It does not appear that any person knew of his arrest except Squires. In regard to the coroner’s proceeding, he stood, in no respect, in the relation of one arrested or even accused. He was there only in the capacity of a witness and it is as such, and not as a party, that his legal rights are to be determined.

It will not be claimed that it. was improper to examine him on oath. The. fact, that he had been arrested, in a different proceeding, and by an officer in no way connected with the inquest, could not certainly- disqualify him from testifying at the inquest. He was a competent witness. He was bound to know his legal rights. Like every other witness, he might refuse to testify 5 but if he did answer, he was bound to tell the truth at his peril. He was bound by his answers, and responsible for their truth. It will not be controverted, but it was proper to take his testimony into consideration in making up the inquest and that, for that purpose, it would be deemed voluntary. Upon what principle can it be deemed involuntary, when it is sought to be referred to as an admission, available in some other proceeding! It can not surely be voluntary for one use and involuntary for another.

It is said that being under arrest at the time of his examination, “ his mind was overcome by a heavy calamity and confused by the conflicting emotions incident to a criminal accusation.” Such a- state of his mind might well be produced without an arrest. It would more naturally be the result of the criminal act; itself, than of an arrest for the act. A troubled conscience would produce just such emotions. And with the more hardened, and even with the innocent, such feelings might arise from the distrust exhibited by those around him, without any overt act towards making an arrest. No practicable rule could be adopted which would exclude evidence on the ground that the mind of the witness was “ confused by conflicting emotions.” The only available way is to receive the evidence and judge of it by the character it exhibits. This puts, all competent witnesses upon the same footing and. applies to th.em the same rules of evidence.

Suppose, while McMahon was under arrest and on his way to the magistrate, he had been called as a witness in a civil suit against a third person, for damages, in which it might be material to enquire into the cause of the death of the deceased. Is there any doubt but he would have been a competent witness, and obliged to answer all relevant questions asked him, unless he should claim his privilege not to criminate himself? No one I think will question it. His answers then would have been evidence in the civil suit, and would be deemed voluntary. If, in such case, he does not claim his privilege, he will be considered as willing to criminate himself, and there can be no doubt what he testifies to may be used for that purpose after-wards. It is because it may be so used, and to avoid such a consequence that he may refuse to answer. If such use could not be made of it, there would, in no case, be any necessity for making a claim of privilege.

If it would have been competent to prove what was stated under oath by McMahon in a civil suit, it was equally competent to prove his .testimony before the coroner. If he was under arrest and was examined to the same subject matter, it could make no difference to him whether he was examined in a civil suit, or on a coroner’s inquest or grand jury, or even on a trial of another person for crime. If the arrest was in no way connected with the tribunal or proceeding in which he was sworn, he could not be considered as acting or speaking under any more compulsion than is always supposed to be imposed upon a witness, viz., to testify and to tell the truth; and even that compulsion ceases, in all cases, when a question is asked, the answer to which may tend to criminate the witness. If a witness answers in any case as to such a matter, it will be because he voluntarily elects to do so.

I think the evidence excepted to was properly received.

Relief is also asked on the ground of newly discovered evidence and affidavits are laid before us, with a view of showing hat important evidence has been discovered since the trial. No such ground is available on writ of error. We can only review the legal questions growing out of the trial and reverse for any error that may be found to have been there committed. For any mistake of fact, or for any relief on the ground of the discovery of new evidence, the party can only look to the tribunal in which the issue was tried. The power of the Oyer and Terminer to grant a new trial on the merits has been ably, and I think conclusively, vindicated, by one of my learned associates in The People v. Morrison (1 Park. Cr. R. 625). At all events, no such power is vested in the appeelate tribunal.

The judgment of the Oyer and Terminer must be affirmed and the sentence pronounced is hereby directed to be executed. (2 R. S. 741 § 24.)

Judgment affirmed.


author: Dean, J.

text:
    Dutchess Special Term,
    November, 1854.
    Before Dean, Justice.
    The People vs. Frank Mack
    A new trial will not he granted on the ground of newly discovered evidence, where such evidence might have heen procured hy ordinary diligence.
    Nor will a new trial he granted on the ground of surprise, where the party becomes surprised after the rendering of the verdict.
    This was an action on a recognizance, taken by a justice of the peace, before indictment, for the appearance of one Smith at the June Oyer and Terminer in the county of Dutchess. On the trial, the plaintiff called the county clerk as a witness, who testified that there was a court of Sessions, with a grand jury, between the taking of the recognizance and the June Oyer and Terminer. Judgment was given for the defendant, on the ground that the recognizance was' void for not having required the prisoner to appear at the next criminal court having jurisdiction of the offence charged. The case was reported in 1 Park. Cr. R. 567.

    The plaintiff now moves for a new trial on the ground of newly discovered evidence and surprise. It was shown by affi-davits that although a grand jury did attend the May Sessions, yet, that the order requiring such attendance was not made until April, while the recognizance was taken in March. It also appeared that this circumstance was unknown to' the attorney and counsel for plaintiff.

      Dodge & Campbell, for the people.

      J. F. Barnard, for the defendant.
   Dean, J.

This testimony is material, because, if true, and if it had been produced, the plaintiff would have been entitled to judgment. Nor is it cumulative within any legal signification of the term. The application is not open to objection on either of these grounds and raises distinctly the question, whether a party can ever obtain relief, by motion for a new trial, when he discovers that evidence within his reach, and of which by ordinary diligence he might have availed himself on the trial, would change, or probably change, the result.

The answer, in this case, fully apprized the plaintiff of the nature of the defence. By that, it was evident that if no grand jury had, in March, been appointed to attend the May Sessions, there was nothing in the point taken, that the recognizance should have required the appearance of the prisoner at that court. The evidence of the time when the order was made was within the court house, and could have been obtained at any. time by an examination of the papers on file. The plaintiff might have required the defendant to produce the original order of the county judge, instead of giving parol evidence of the fact.- The case, however, was tried—no objection was made to the manner of proving the regularity of' the court, &c.; but now, on discovering the materiality of the testimony, an application is made for a new trial, to enable the plaintiff to supply that which was within his reach at the time of the trial. No excuse whatever is given for the want of information on this very material point, nor does it appear in what manner it has since been discovered. Independently of adjudged cases, it seems to me, to allow a party to have a new trial on such grounds, would be, if not offering a premium to negligence, putting negligence and inattention on an equality with care and vigilance, and would fill the courts with applications of this nature.

But I am not left to pursue my own opinions in this case. The whole current of decisions is in one direction. Ch. J. Parsons in Bond v. Cutler (7 Mass. R. 205,) says: Want of recollection of a fact which, by due attention, might have been remembered can not be a reasonable ground for granting a new trial; for want of recollection may always be pretended and may be hard .to be disproved.” In Knox v. Work (2 Binn. 582) Rush says: It is laid down as a general principle, and is said to be an established rule, not to grant a new trial on account of evidence discovered after the trial, which by using due diligence, might have been discovered before, or which it was in his power to have been furnished with.” I most fully concur with this salutary rule. . By rigidly enforcing it, vigilance on the part of both attornies and parties will be in requisition, an end will be put to much unnecessary litigation, and courts will be saved from trying causes twice, which could as well be tried on the first hearing. The rule, as I have here held it, is stated quite as rigidly in Graham on Mew Trials 473 and has always been recognized by our Supreme Court. '

The other ground that was urged on the argument for granting this motion — surprise — has no existence in fact, because the plaintiff was apprized of the defence by the answer. But on this ground, it is obnoxious to the same objection, as on the ground of newly discovered evidence. A plaintiff has no right to be surprised by evidence within the issues. If, however, he is, h.e must find out this surprise at the trial and he can then apply to the court for leave to withdraw a juror, or submit to a non-suit. But he can never, after having submitted his cause, on finding that the verdict or judgment is against him, become surprised, and ask the court to relieve him from an-error, mistake or omission. (2 W. Black. 802; 4 Taunton 779; 5 Wend. 127; Graham on New Trials, 191.)

The motion must be denied, with costs.


author: By the Court, W. F. Allen, J.

text:
    Supreme Court. Jefferson General Term,
    April, 1856.

      Pratt, Bacon and Allen, Justices.
    John H. Klock pl’ff in error vs. The People def’ts in error
    .Where, on a trial for a felony, after the public prosecutor has entered upon his case and given evidence to the jury, he finds himself unprepared with the proper evidence to convict, and obtains leave of the court to withdraw a juror, and thus arrest the trial,- such withdrawal not being the result of improper practice on the part of the defendant or any one acting with or for him, or of any overruling inevitable necessity, the defendant can not be again put on trial for the same offence.
    The objection to a second trial in such a case, does not rest upon the constitutional provision that no person shall be subject to be twice put in jeopardy for the same offence ; that provision is a protection only where there has been a conviction or acquittal by the verdict of a jury, and judgment has passed thereon and does not apply to a case where the jury have been discharged without giving any verdict or where judgment has been arrested.
    But the objection lies back of the constitution and rests upon the principles of the common law, which are essential to the protection of the accused, by securing him a speedy and impartial trial and the best means of vindicating his innocence.
    Whether the same rule applies to trials for mere misdemeanors, querel

    The decision in the case of the People v. Ellis, 15 Wend. R. 371, doubted.
    The practice to be adopted in bringing -up the question in such a case, discussed.
    This was a writ of error to the Jefferson county Sessions. The plaintiff in error was indicted in the court of Sessions of Jefferson county, for the crime of arson in the third degree. At the February term of that court (1853,) a jury was impanneled for the trial of the indictment upon the plea of not guilty, and evidence given of the offence and of circumstances tending to establish the guilt of the accused. Towards the close of the evidence on the part of the prosecution, the court upon the objection of the counsel for the prisoner, ruled that a certain fact sought to be proved by the public prosecutor could only be proved by record evidence and excluded the evidence in that behalf offered, whereupon on motion of the district attorney without the consent and against the objection of the accused, a juror was withdrawn and the jury discharged.

      At the ensuing June term, the district attorney again moved the trial of the indictment, and the defendant set up by way of plea the foregoing facts in bar of the further prosecution of the indictment upon demurrer; the plea was holden insufficient in law and the defendant brings error to this court.

      John Clarke, for plaintiff in error.
    J. F. Starbuck, (District Attorney) for the people.
    I. The objection to the trial of a prisoner after one trial has been commenced, and a juror has been withdrawn, rests solely upon the provision in the constitution of this state in these words:
    “ No person shall be subject to be twice put in jeopardy for the same offence.” (Const.of N. Y. art. 1, § 6.)
    II. The true signification of the above constitutional prohibition is that after verdict no person shall be subjected to a second trial for the same offence.
    “ That no man is in jeopardy until verdict rendered, has been held by the Supreme Court of the United States, by Washington, J., Story, J. and McLean, J., sitting in their several circuits, and by the courts of Massachusetts, New York, Illinois, Kentucky and Mississippi.” (Whart. Amer. Cr. Law, 209; U. S. v. Perez, Wheaton, 579.)
    III. If the trial of a prisoner, after the withdrawal of a juror, is prohibited by the above constitutional provision, then the discharge of a jury on disagreement, or for any other cause, must be a bar to a future trial. That such discharge does not constitute a bar, has in repeated instances been expressly held by the highest judicial tribunals in the country. (Whart. Amer. Cr. Law, 209, 10, 212; Com. v. Bowden, 9 Mass. 494; Com. v. Purchase, 2 Pick. 521; People v. Goodwin, 18 J. R. 187; People v. Olcutt, 2 John. Cases, 301.)
    IV. The constitutional prohibition against putting a person twice “ in jeopardy,” has no application except to cases where the facts are such as to sustain the technical plea of autrefois

      acquit or autrefois convict. This plea is applicable only in cases of verdict or judgment, and must be supported by the record. In this case there is no verdict, no -judgment, no record, and none is alleged in the plea. The plea is therefore bad, and the demurrer was properly sustained. "
    If we ascertain what is necessary to constitute at common law, a good plea of autrefois acquit or autrefois convict, we shall have what constitutes a complete defense under this clause of the constitution. It is not, therefore! possible to support the defence of a former acquittal, by anything short of a final judgment or verdict. The accused can not with any propriety rely on the discharge of the former jury, without any verdict either for or against him. (Whart. Amer. Cr. Law, 213, and cases there cited.)

      “ The record of the former indictment and acquittal must be set- out in the plea, otherwise it will be bad on demurrer.” (Archbold’s Crim. Pleadings, 90; Gould & Banks ed. of 1846, 109; R. v. Wildley, 1 M. & Selw. 148.)
    V. The right to withdraw a juror and hold the accused for trial at a future term, is a matter, in all cases, resting in the discretion of the court to which the application is originally addressed, and this discretion will not be interfered with unless the appellate tribunal can see that it has heen abused. This demurrer would, therefore, be upheld even were the indictment for a capital felony.
    In all cases of misdemeanor, as distinguished from felony, the right is absolute, and exists as fully as it does in civil actions. (W. Crim. Law, 209, 10, 12, 13; People v. Goodwin, 18 J. R. 187; People v. Olcutt, 2 John, cases 301; People v. Ellis & al. 15 Wend. 371; People v. Barret & Ward, g Caines, R. 100, 304.)
    VI. The indictment in this case is for a misdemeanor, and not a felony, and hence the right to withdraw a juror and hold the accused is absolute, as in a civil action.
    Every person who shall willfully burn any building insured against fire, with intent to prejudice the insurer, shall be guilty of asson in the third degree. (2 R. S. 667, § 5.)

      The attempt is punishable by imprisonment for half thlength of time. (2 R. S. 698, § 3.)
    There is no statute in which arson is spoken, of as a felony, but it is left to be classed according to the common law classification of crimes.
    This crime has been supposed to be ranked amongst felonies, simply because it is punished by imprisonment in the state prison, and this impression has grown out of the careless reading of the following section:
    “ The term “ felony,” when used in this act, or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable to be punished by death, or by imprisonment in a state prison.” (2 R. S. 702, § 30.)
    This is a mere statutory definition of a word, and by no means enacts that all offences, punishable by imprisonment in the state prison, are to be deemed felonies.
    That the setting fire to one’s own house is a misdemeanor, and not a felony, is abundantly established by reference to 4 Black. Com. 95, 96, 98, 221, 4; see also Tomlin’s Law Dictionary, titles “ Felony,” and “ Misdemeanor.”

    VII. The degree of punishment is no test of felony. Many felonies are punishable by imprisonment in the county jail ¡only, W'hile many misdemeanors are punishable by imprisonment in the state prison, and many offences are punishable in the one place or the other, in the discretion of the court.-
    “ It seems that the Revised Statutes have not made the offence of petit larceny a misdemeanor; but that it still remains a felony, as at common law.” (Ward v. The People, 3 Hill, 396.)
    Breaking jail is classed in R. S. under tl e head of misdemeanors. (2 R. S. 686, § 24.)
    Selling another as a slave is declared by statute to be a misdemeanor, and yet it is punished by 14 years in state prison. (1 R. S. 658, § 8.)
    Seduction is also made a misdemeanor by"statute, and yet it is punished by five years in state prison. (Sess. Laws, 1848, ch. 111, § 1.)

      So in the “ anti-rent ” act, a riot by persons armed and disguised is called a misdemeanor, and is punished by two years in state prison. (Sess Laws of 1845, ch. 3, § 7.)
    The following are some of the offences punishable by fine, or imprisonment in 'the county jail, or state prison, in the discretion of the court, viz:
    Aiding felons to escape, (2 R. S. 699, § 7.) Offences against the anti-rent act, (Sess. Laws of 1845, ch. 3, § 7.) Opening graves, &c., (2 R. S. 689, § 15.) Poisoning cattle, &c., (2 R. S. 689, § 16.) Obstructing railroad, See., (Sess. Laws 1838, ch. 160, § 1. Compounding felony, &c., (2 R. S. 689, §17.) Receiving stolen. goods, Sec., (2 R. S. 680, § 71.) Breaking jail, Sec., (2 R. S. 686, § 24.) Seduction, (Sess. Laws of 1848, ch. 111, § 1.) Selling another as a slave, Sec., (1 R. S. 658, § 8.)
    VIII. If the prisoner is defeated on the issue tendered by his plea, he is not permitted to deny the truth of the bill, but must appear for sentence. This is the uniform rule in all cases of misdemeanor. In cases of felony, the practice, on this point, is in the discretion of the court in each particular case. (Whart. Crim. Law, 187, 204, 5; People v. Thayer, 3 Den. 9; Arch. Crim. Pl. 90, (110,) 84.)
   By the Court, W. F. Allen, J.

The objection upon which the plaintiff in error relies to the further prosecution of the indictment was not necessarily taken by plea, but might have been taken by way of exception to a second trial or by, a motion in arrest of judgment; and as there has been no technical trial resulting in a verdict and judgment, on which a plea of autrefois acquit or convict can be based, it may be doubtful whether the objection can be taken by plea. It might also have been objected that the record showing merely a decision of the demurrer by the court below without a judgment upon the whole record, there was nothing before us for review upon this writ of error. But no question of form was made in the court of Sessions, and none is, made here, but both parties desire an adjudication upon the question intended to be made without regard to the form in which it was presented below or is brought before us.

The. real question is, whether it is allowable for a public prosecutor after having entered upon his case by the giving of evidence to a jury impanneled for the trial of an indictment, to withdraw a juror and thus arrest the trial so as to enable him to try the party at a subsequent time, solely because he finds himself unprepared with the proper evidence to convict where his condition is not the result of improper practice on the part of the defendant, or some one acting with and for him or some overruling inevitable necessity.

The counsel for the people appeared by the course of his very able argument, to suppose that the objections taken by the accused to a second trial rested entirely upon the constitutional provision, that no person shall be subject to be twice put in jeopardy for the same offence.” (Art. 1, § 6,) and if he is right in his premises, he is clearly right in his conclusion that there was no valid objection to proceeding with the trial of this indictment a second time. The judicial interpretation of a corresponding provision in the constitution of the United States is, that it prohibits a second trial of a party for the same offence, after he has been once convicted or acquitted by the verdict of a jury, and judgment has passed thereon for or against him, and it does not mean that he shall not be tried a second time if the jury have been discharged without giving any verdict, or judgment has been arrested. (Story’s Com. on Const. § 1781, U. S. v. Perez, 9 Wheat. 579.) The state constitution of 1821, was in words a transcript of the provision of the constitution of the United States as follows: No person shall be subject for the same offence to be twice put in jeopardy of life and limb,” and was construed to include within its terms all felonies and capital offences. The only departure from this formula in the constitution of 1846 is in the omission of the limitation confining the prohibition to offences involving the life or limb of the accused. Jeopardy of limb,” in the former construction referred to offences denominated in the law felonies, (Per Spencer, Ch. J., People v. Goodwin, 18 J. R. 201,) and whether the present constitution includes parties charged with misdemeanors within the protection of this provision need not be considered.

To the extent of the provision referred to, the constitution, is but declaratory of the common law, which declared that no man should be twice convicted or twice put in peril of legal penalties for the same offence, and no man could be said to be within the protection of this rule unless he could sustain a plea of autrefois acquit or convict. (Broome’s Legal Maxims, 137; Bouvier’sLaw Dict., tit. “ Jeopardy.”) The civil law contains the same prohibition in the maxim ,“ Mon bis in idem,” and a party once tried and either convicted or acquitted, can not be again tried. The plaintiff in error has not been once tried so as to bring himself within the constitutional protection, as no verdict or judgment has been given. The true ground of the objection lies back of the constitution, and-is found in the principles which have been deemed essential to the full and fair protection of individuals accused of crime, and to secure to them a speedy and impartial trial, and the best means of indicating their innocence. The practice and the views of courts of criminal jurisdiction upon questions somewhat analogous to that presented in this case, have passed through some modifications. Kent, J., in People v. Olcott, (2 J. C. 301,) refers in detail to the earlier cases bearing upon the point, and while his review of the cases shows distinctly the modification and changes which have taken place in the practice of courts, it also shows the great tenderness and care manifested by the judges for the rights of the accused and to secure to them every right essential to their defence, and an anxiety to protect them against any act or omission of the government or the public prosecutor which could injuriously affect them. They have felt at liberty to interfere and arrest a trial and dispense with a verdict from a jury once empanneled only when compelled to do so by some necessity or by some improper arid fraudulent act of the accused, which would or might interfere and prevent a full and fair trial or impartial ve diet. "Lord Coke says: “ A jury sworn and charged in case of life or murder, can not be discharged by the court or any other, but they ought to give a verdict.” (Coke Lit. 227, b.; 3 Thomas Coke, 495.) Blackstone modifies the proposition and says: “ When any evidence hath been given the jury can not be discharged (unless in cases of evident necessity) till they have given in their verdict.” (4 Black. Com. 360.)

One case of necessity now recognized and admitted for the discharge of a jury upon a criminal trial is their inability to agree upon a verdict, and therefore it is held that a discharge for that reason will not preclude a second trial, and the court will not, upon a second trial, review the decision of the first as to the existence of th& cause in the particular case under the circumstances attending it. Doubts were at one time entertained whether this discretion existed in capital cases, but it is now conceded in all cases to the same extent as in civil actions, (See People v. Denton, 2 J. R. 275; People v Olcott, 2 J. C. 301; People v. Goodwin, 18 J. R. 187; People v. Green, 13 W. R. 55.) The People v. Olcott was a case of disagreement of the jury, and the decision of the court goes no farther than to hold that a- discharge of the jury for that reason did not prevent another trial. In this case, Kent, J., approves the decision of Ch. J. Holt, in the case of the two Kinlocks (Foster, 27,) refusing to allow the prosecutor on finding his evidence defective to withdraw a juror and says this “ was properly deemed an unreasonable and oppressive claim on the part of the prosecutor.” In the United States v. Perez, (9 Wheat. 579,) it was held proper to discharge a jury because they were unable to agree in a capital case. Judge Story says the power may be exercised whenever in the opinion of the court, “ taking all the circumstances into consideration, there is a manifest necessity for the act or the ends of public justice would otherwise be defeated.” In the People v. Goodwin, Spencer, Ch. J., says: “ Upon full consideration I am of opinion that although the power of discharging a jury is a delicate and highly important trust, yet that it does exist in cases of extreme and absolute necessity, and that it may be exercised without operating as an acquittal of the defendant;” and he applies the principle to a case of a disagreement after a faithful and protracted effort to agree, but he also says: “ I entirely concur in reprobating the proceeding of withdrawing a juror and subjecting a person to a second trial because the public prosecutor was not prepared for trial,” and he approves the decision in People v. Barrett, (2 Caines, 304.) In the People v. Green, (13 W. R. 55,) Savage, Ch. J., refers to the case of Barrett, and does not dissent from the principle then decided, that the discharge of a jury, because the public prosecutor was not prepared with his testimony, was equivolent to an acquittal. In the People v. Ellis, (15 W. R. 371,) the rule appears to be somewhat relaxed in the case of a misdemeanor upon the reasoning of the court in Goodwin’s case. Whether even this modification was well considered or whether it should be unhesitatingly adopted, may be questionable, but the learned justice pronouncing the opinion recognizes the rule in Barrett’s case, as applicable to felonies.’ The case of the United States v. Coolidge, (2 Gall. 364,) decides that the court may discharge a jury when a witness present at the trial refuses to be sworn. Such proceeding is necessary to prevent a failure of justice, and the necessity has not been induced by any laches or want of vigilance or mistake on the part of the prosecutor. The People v. Barrett has never been questioned and is decisive of this case, expressly denying as it does, after a very full argument and careful consideration the right of the court to discharge a jury because the public prosecutor is unprepared with his evidence, and holding that such discharge is equivalent to an acquittal of the defendant. Livingston, J., says: To discharge a juror under such circumstances would be liable to great abuse and oppression,” and the reasons why the rule should be as declared in that case are very briefly and clearly stated by the learned judge. See also 2 Russell on Crimes, 970, in which it is said upon the authority of Rex v. Wade, (R. & M. C. C. 86,) that if a jury are sworn, and the prisoner is put upon his trial before the incompetency of a witness of tender years for want of proper instruction is discovered, although it would have been cause for putting off the trial to give an opportunity to instruct the witness, the judge can not discharge the jury, but should direct an acquittal. (See 2 C. & H. Notes, 1st ed., p. 953, in note 692.) I have met with no case in which it is intimated that a juror maybe withdrawn and a criminal trial arrested, merely because the prosecutor is unprepared with his evidence or has mistaken his case or the character of the evidence required to support it, but judges have carefully excluded this from the list of cases in which a jury may be discharged. In the case before us, if the decision of the court upon the first trial was right in excluding the eyidence offered by the district attorney, it xyas simply a misapprehension of the rules of evidence,by the prosecutor, and.the result was the. want of the proper preparation for trial, and this without fault on the part of the accused5 and if allowable in, such a case to withdraw a juror, it is difficult, tp say in what case it may not be done if the prosecutor finds himself unable to convict, but can satisfy the court that there is further evidence within his reach and which may produce a conviction, and the trial of an indictment may come to be but little more than a series of experiments on the part of the prosecution at the expense of the accused. It is but proper to say that the ruling of the. court upon the offered, evidence was erroneous, but that does not alter the principle. The law does not give a right of review on criminal trials to the people, and the district attorney can not indirectly accomplish what is directly forbidden, and least of all can he be allowed, upon an adverse decision, to arrest the trial with a view to a more favorable decision at another term or before another tribunal. The counsel for the people in a very ingenious argument sought to.bring this case within that of People v. Ellis, by making it a misdemeanor, and insisting that at common law it was a misdemeanor, and that, as it' was not denominated a felony by the statute, it was not made such by any provision of law. . Perhaps upon a very literal and technical construction of the statute defining a felony, (2 R. S. 702, § 30,) he may be right. But the intent was to do away with the common law definition of felony as entirely inapplicable, and to substitute one which should have significance and be readily understood. (R. Notes, 3 R. S. 836.) I think that the clear intendment and proper meaning of the statute is to declare all crimes (not expressly denominated misdemeanors by statutes creating them) which are punishable by imprisonment in the state prison, to be felonies. This has been the judicial interpretation of the provision and the decisions accord with the intent of the framers and the general understanding of the profession. (Andrew v. Dutrick, 14 W. R. 31; Malcom v. Lorrendge, 13 Barb. 372; Robinson v. Dauchy, 3 id. 20.) But be this as it may, and conceding that the learned counsel is right, the result is the same. It matters but little by what name an offence is known in reference to the obsolete distinctions of the common law, so long as the punishment is the same, and the resulting disabilities the same, whether it be called a felony or a misdemeanor. Call it by which name you please, and the result of a conviction for arson is the infliction of an infamous punishment, and the subjecting of the party to the loss of important civil rights and serious civil disabilities, and it is in view of consequences like this, that the rule for which I contend has been established, and it has been deemed better that many guilty should escape rather than one innocent man should suffer punishment wrongfully. If in ordinary misdemeanors, the consequences of a conviction for which are not so serious, the rule of The People v. Ellis should apply, I should still be of the opinion that in cases of misdemeanor, punishable as felonies, a more stringent rule and one better calculated to protect a person charged with crime, from oppression and an unjust conviction, should be adhered to. The case would be within the reason of the. rule applicauie to technical common law felonies and therefore within the rule itself.

The decision of the court below was erroneous and must be eversed and the defendant discharged.

       The People v. Van Steenhergh, 1 Park. Cr. R. 39.


author: By the Court, T. R. Strong, J.

text:
    Supreme Court. Monroe General Term,
    March, 1855.

      Johnson, Welles and T. R. Strong, Justices.
    The People v. Joseph Wheelock.
    The word “ heer,” in its ordinary sense, denotes a beverage which is intoxicating, and is within the meaning of the words “ strong and spiritous liquors,” as used in the Revised Statutes.
    Where the indictment charged the sale of “ strong and spiritous liquors ” without license, and, among other liquors, “ one pint of strong heer," and the proof, without further explanation, was, that the defendant sold “ Dutch heer," it was held that the variance was immaterial.
    This case came before the court on return to a writ of certiorari to the Court of Sessions of Livingston county.
    The indictment was as follows:

      State of New-York, Livingston County, ss:

    The jurors of the people of the State of New-York, and for the body of the county of Livingston, then and there being sworn and charged to inquire for the people of the said state and for the body of the said county of Livingston, on their oath present: That Joseph Wheelock, of the town of Leicester, in the county of Livingston, on the sixteenth day of January, in the year of our Lord one thousand eight hundred and fifty-four, and at divers other times between that day and the day of the finding of this inquisition, at the town of Leicester, in the said county of Livingston, did sell to divers individuals, to wit, Harmon Parish, Hiram Willis, Norman Green, Nelson Willis, and to divers other persons, strong and spiritous liquors in quantities less than five gallons, to wit, one pint of whiskey, one pint of rum, one pint of gin, one pint of brandy, one pint of wine and one pint of strong beer, to each of the above named individuals, without license therefor, contrary to the provisions of the ninth title of the twentieth chapter of the first part of the Revised Statutes of the State of New-York, and against the peace of the people of the State of New-York and their dignity. And the jurors aforesaid, on their oath aforesaid, do further present: That the said Joseph Wheelock, on the sixteenth day of January, in the year of our Lord one thousand eight hundred and fifty-four, and at divers other times between that day and the finding of this inquisition, at the town of Leicester, in the said county of Livingston, did sell to certain individuals, to wit, to Harmon Parish, Hiram Willis, Norman Green, Nelson Willis, and to divers other persons, strong and spiritous liquors and wines, to wit, one pint of whiskey, one pint of rum, one pint of gin, one pint of brandy, one pint of wine and one pint of strong beer, to each of the above mentioned persons, to be drank in the house, and in the shop, and in a certain out-house, and in a certain yard, and in a certain garden appertaining thereto, without having obtained a license therefor as a tavern keeper, contrary to the provisions of the ninth title of the twentieth chapter of the first part of the Revised Statutes of the State of New-York, and against the peace of the people of the said state and their dignity. Apd the jurors aforesaid, on their oath aforesaid, do further present: That the said Joseph Wheelock, on the sixteenth day of January in. the year last aforesaid, and at divers other times between that day and the day of the finding of this inquisition, at the town and in the county last aforesaid, did sell and cause to be sold to divers individuals, to wit, to Harmon Parish, Hiram Willis, Norman Green, Nelson Willis, and to divers other persons, strong and spiritous liquors and wines, to wit, one pint of whiskey, one pint of rum, one pint of gin, one pint of brandy, one pint of wine and one pint of strong beer, to each of the said persons, and did then and there suffer the said liquors and wines so sold and caused to be sold by him as aforesaid to be drank in his house, and in his shop, and in a certain out-house, and in a certain yard, and in a certain garden appertaining thereto, without having obtained any license therefor as a tavern keeper, contrary to the provisions of the ninth title of the twentieth chapter of the first part of the Revised Statutes of the State of New-York, and against the peace of the people of the said state and their dignity.
    James Wood, Jr.,

      District Attorney.

    The defendant having plead not guilty, the issue came on to trial in the county sessions of Livingston county, before Scott Lord, county judge, and the justices of the sessions, with a jury, and it was proved, on behalf of the people:
    That on the 16th day of January, 1854, the defendant sold one glass of beer called Dutch beer, and received pay therefor from one Henry Parish. The witness stated that he did not know what kind of beer it was; there was a difference in beer.
    The district attorney asked the witness if it was. intoxicating liquor. The defendant’s counsel objected to the question on the ground that it called for the opinion of the witness. The court overruled the objection, and the counsel for defendant excepted. The witness answered that it was, if one drank enough of it. The witness further stated that he bought one glass of Dutch beer of defendant on the 16th day of January, 1854, and paid him for it. The district attorney Offered to prove by the witness that defendant sold intoxicating liquors on other days and at other times than 16th day of January, 1854. Defendant’s counsel objected. The court overruled the objection, and the defendant’s counsel excepted. The witness also stated that he knew of defendant’s selling a glass of the same kind of beer to one Chapman, in March, 1854. Witness also stated on his cross-examination that he had seen and drank strong beer; never knew of any one getting intoxicated on Dutch beer; that it had not the same taste as strong beer; was not as strong as strong beer, though stronger than small beer. The district attorney then called a witness and proved that he bought beer of defendant in winter of 1854, and paid for it; it was Dutch ale; does not think it is intoxicating. Witness had drank it with other liquors, then it would intoxicate; small beer taken after whiskey would have the like effect, but not so great effect; think it stronger a good deal than small beer, and not as strong as strong beer. Whereupon the said defendant’s counsel insisted that the several matters given in evidence on the part of the people were not sufficient to authorize the jury to convict the defendant of violating the statute in relation to the sale of spiritous liquors, and that there was no evidence before the jury of the defendant’s having sold any spiritous liquors or strong beer, as charged in the indictment, and asked the court so to instruct the jury; but the court refused, and the defendant excepted. The defendant, by his counsel, then asked the court to charge the jury that there was a material variance between the proof .as given by the people and ■ the charge in the indictment, and that the proof did not sustain the allegations in the indictment. The court refused so to instruct the jury, and the defendant, by his counsel, excepted. The defendant’s counsel asked the court to quash the indictment on the ground that the proof did not sustain the averments in the indictment. The court refused the motion, and the defendant, by his counsel, excepted.

      The court then charged the jury that the question for them to pass upon was whether or not the beer as described by witness had been sold by defendant, and if they believed the witness they were authorized to convict the defendant; that as a question of law the beer described by the witness was strong or spiritous liquor within the meaning of the statute; the defendant excepted, and the jury found the defendant guilty.
    A bill of exceptions having been made and settled, a certiorari was sued out and the proceedings brought up for review.

      R. P. Wisner, for defendant.
    I. The court erred in permitting the witness to give his opinion in regard to the effect produced by the article when drank. The indictment specifies the kind of liquor sold by defendant, and it cannot be aided by the opinion of the witness, that the beer sold would intoxicate. The proof received was immaterial under the ruling of the judge.
    II. The court should have instructed the jury that there was no evidence before them that defendant had sold any such liquor as charged in the indictment. The term strong beer, as used in the indictment, has a specific meaning, and must be understood to include only that liquor known and recognized as strong beer. It is not a generic term, and cannot include the different kinds of beer used at the present day. The people having made a specific charge against the defendant, they were bound to prove it as laid.
    III. The charge of the court as given, and the refusal of the court to charge as requested, were equally erroneous. If the court was right in receiving the evidence of the effect of the beer when drank, then there was a question of fact for the jury to pass upon. If the crime charged in the indictment consisted in the sale of beer that would produce intoxication when drank, then clearly a question of fact was presented for the consideration of the jury. The court having decided that “ Dutch beer ” came within the terms of the indictment, without reference to its effect upon those who drank it, took away from the defendant the right to prove its composition, or to give any evidence to show that it was not “ strong and spiritous liquors and wines.”

      James Woods, Jr. (District Attorney), for the people, cited Nevin v. Ladue (3 Denio, 43, 437).
   By the Court, T. R. Strong, J.

The word “beer,” in its ordinary sense, denotes a beverage which is intoxicating, and is within the fair meaning of the words “strong or spiritous liquors,” used in the statutes applicable to this case. (Webs. Dict., “Beer;” Nevin v. Ladue, 3 Denio, 43; same case in error, id., 437.) Some qualifying word may be used in connection with the word “beer,” as “root beer,” “molasses beer,” &c., and the two together signify a drink which is not intoxicating, and it may also be shown, by proving the materials and the mode of production of what is called “beer,” that it is notan intoxicating drink; but when the sense is not thus restricted, the word must be understood to mean one kind of the “ strong and spiritous liquors referred to in those statutes. The “beer” in the present case was “Dutch beer;” but there is nothing in the ordinary sense of the word “Dutch” to qualify the meaning of the word “beer,” when used alone, in respect to intoxicating qualities. No evidence was given of the mode employed or materials used in making it. I think, therefore, in the absence of such evidence, the judge was right in advising the jury that “the beer described by the witnesses was ‘strong and spiritous liquors’ within the meaning of the statute.”

The indictment charges the sale of “ strong and spiritous liquors,” to wit, among other liquors, “ one pint of strong beer.” The evidence- is that the defendant sold “Dutch beer,” and, as I understand the bill of exceptions, the counsel for the defendant objected that this proof varied from and did not support the indictment, as “Dutch beer” is not “ strong beer.” I do not think there is a material variance. The terms*" strong beer” and “Dutch beer,” without explanation, must both be understood to mean intoxicating liquors of a similar character, produced from similar materials, and in a like way, to express which the former term is appropriate. By “strong beer” is understood, I suppose, a malt inebriating liquor, and I understand that “Dutch beer” is a malt inebriating liquor, not differing substantially from “strong beer,” thus understood, in the kind of materials used or the mode of its manufacture, but only in its strength, being less intoxicating. As well might it be urged, if the sale of “ale” was proved, that the charge of selling “strong beer” was not sustained, as to object that the proof of the sale of “ Dutch beer ” does not support the indictment.

New trial denied and proceedings remitted to the sessions.