author: Clerke, J. Mitchell, J. Denio, J. Hand, J.

text:
    Court or Appeals. Albany,
    June Term, 1855.
    Before Gardiner, Chief Judge, and Denio, Johnson, Ruggles, Dean, Hand, Crippen and Marvin, Judges.
    The People, plaintiffs in error, v. Andrew Williams, defendant in error.
    When it is necessary, on the trial of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible in evidence, as part of the res gestee, for the purpose of showing its true character; b’ut to render such declaration competent, the act with which it is connected should be pertinent to the issue; for when the act is, in its own nature, irrelevant, and when the declaration is, per se, incompetent, the union of the two will not render the declaration admissible.
    Where, on the trial-.of A. W. for the alleged murder of his wife by poison, it appeared that he lived apart from his wife, and in the same town, and that his wife left her- residence, on* Saturday evening before her death, and returned home, at five o’clock the next morning, sick, and continued ill till she died, her symptoms being the same as in cases of poisoning; Held,

      • That it was not competent to prove what the deceased said, when she left home on Saturday evening, as to where she was going; and where such evidence was admitted, and it was proved that she said she was going with clothing for her husband, and the prisoner was convicted, it was held erroneous, and the judgment was reversed.
    Where it was claimed by the prosecution that arsenic had been administered to the deceased, in a bowl in which there had been tea and toast, which had been fed to her from the bowl by the prisoner, during her last illness, and there was evidence tending to identify the bowl as the same one delivered to the physician who had analyzed the contents at the request of the prosecution ; Held, That it was competent for the prosecution, at the trial, to prove by the physician the condition and contents of the bowl, and the analysis made by him of the contents, though the identification of the bowl by the witnesses was not positive, it being a question for the jury to decide whether the bowl was identified to their satisfaction.
    On such a trial, it is proper, on the question of motive, to prove that the wife had, sometime previous to the alleged poisoning, entered a compíáint against her husband, the prisoner, as a disorderly person, on the ground that he had abandoned his wife, and that the prisoner was arrested on such complaint, and gave a recognizance, with surety, on which he had been required to pay, and had paid, to the magistrate, weekly, the sum of $2 for the support of his wife.
    Where a paper, claimed to be such a recognizance, was produced in court, which purported to be signed by the prisoner and his surety, and to have been taken before a police justice, but had never been filed, and there was no evidence of its execution, except what might be inferred from the testimony of an agent of the governors of the alms-house who produced it, that weekly payments of $2 had been made on it by the prisoner; Held, That there was not sufficient proof of its execution to allow it to be read in evidence. By Hand and Mitchell, JJ.
    Where an inquiry into the condition of a person’s health is material, any account given by such person relative to his health is evidence of complaints and symptoms; but it is not evidence to charge any other person as the cause of those sufferings. By Clerke, J.
    To authorize any further proof of the statements and declarations made by a person during his last illness, it is necessary to show that they were made under the apprehension of death, and that the deceased was conscious of approaching and inevitable death; and it is not necessary that such consciousness should be uttered in express terms, but it may be inferred from the tenor of his conversation, the nature of his sufferings, and his whole demeanor. By Clerke, J.
    Form of an indictment for murder by poison, and of a certificate of a justice of the Supreme Court allowing a writ of error and staying proceedings.
    Symptoms of poisoning by arsenic, as described by witnesses and proved by a physician.
    Mode of conducting a post mortem examination in such a case, as described by a physician.
    This case came before the Court of Appeals on writ of error to the Supreme Court, sued out by the district attorney of the city and county of New-York. By the return it appeared that in May, one thousand eight hundred and fifty-four, an indictment for murder, in the following form, was found against the defendant in the New-York General Sessions.

      City and County of New-York, ss:

    The jurors of the people of the State of New-York, in and for the body of the city and county of New-York, upon their oath, present: That Andrew Williams, late of the first ward of the city of New-York, aforesaid, laborer, of his malice aforethought, wickedly contriving and intending one Bose Williams, with poison, willfully, feloniously and of his malice aforethought, to kill and murder, on the twenty-ninth day of April, in the year of our Lord one thousand eight hundred and fifty-four, at the ward, city and county aforesaid, with force and arms, a certain quantity of arsenic, to wit, two drachms of arsenic, being a deadly poison, feloniously, willfully and of his malice aforethought, did infuse, mix and mingle in and together with a certain quantity of liquor (to the jurors aforesaid unknown), he, the said Andrew Williams, then and there well knowing said arsenic to be a deadly poison. And the said Andrew Wiliams afterwards, to wit, on the day and in the year aforesaid, at the ward, city and county aforesaid, the poison aforesaid, so as aforesaid infused, mixed and mingled with the said liquor (to the jurors aforesaid unknown) aforesaid, feloniously, willfully and' of his malice aforethought, did give and administer to her, the said Rose Williams, to take, drink and swallow down into her body; and she, the said Rose Williams, not knowing the poison aforesaid to have been mixed and mingled as aforesaid, afterwards, to wit, on the day and year aforesaid, at the ward, city and county aforesaid, the said poison, so as aforesaid mixed and mingled, by the persuasion and procurement of the said Andrew Williams, did take, drink and swallow down into her body. And thereupon the said Rose Williams, by the poison aforesaid, so mixed and mingled, as aforesaid, by the said Andrew Williams, and so taken, drank and swallowed down into her body, as aforesaid, became then and there sick and distempered in her body; and the said Rose Williams, of the poison aforesaid, and of the sickness and distemper occasioned thereby, from the said twenty-ninth day of April, in the year last aforesaid, until the fourth day of May, in the last year aforesaid, did languish, and languishing did live. On which said fourth day of May she, the said Rose Williams, at the sixth ward of the city and county aforesaid, of the poison aforesaid, and of the sickness and distemper thereby occasioned, as aforesaid, died.
    And the jurors aforesaid, upon their oath aforesaid, do say, that the said Andrew Williams, her, the said Rose Williams, in manner and form, and by the means aforesaid, then and there feloniously, willfully and of his malice aforethought, did kill and murder, 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.

      Second Count.—And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Andrew Williams, afterwards, to wit, on the third day of May, in the year of our Lord one thousand eight hundred and fifty-four, at the sixth ward of the city and county aforesaid, wickedly, feloniously and of his malice aforethought contriving and intending one Eose Williams to kill and murder, with force and arms, in and upon the said Eose Williams, then and there being, feloniously, willfully and of his malice aforethought, did give and administer unto the said Eose Williams, with intent that she shojild take and swallow the same into her body, he, the said Andrew Williams, then and there well knowing the said arsenic to be a deadly poison. And the said Eose Williams the said arsenic, so given and administered unto her by the said Andrew Williams as aforesaid, did take and swallow down into her body, by reason and by means of which.said taking and swallowing down of the said arsenic into her body, as aforesaid, the said Eose Williams became and was mortally sick and distempered in her body, of which said poisoning and mortal sickness and distemper the said Eose Williams, on the fourth day of the same month of May, in the same year aforesaid, at the ward, city and county aforesaid, died.
    And so the jurors aforesaid, upon their oaths aforesaid, do say, that the said Andrew Williams the said Eose Williams, in manner and form aforesaid, feloniously, willfully and of his malice aforethought did kill and murder, 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.

      The indictment was sent to the New-York Oyer and Terminer, where the defendant pleaded not guilty; and the issue thus joined came on to be tried in such Court of Oyer and Terminer on the eighteenth May, one thousand eight hundred and fifty-four, before the Hon. James J. Roosevelt, one of the justices of the Supreme Court.
    The district attorney, in his opening, stated that Rose Williams, the deceased, came to her death by poison (arsenic) administered to her by the prisoner, her husband, on the night of Saturday, the 29th day of April, 1854, and on the evening of Wednesday, the 3d day of May, 1854.
    The following testimony was then taken:

      Mary Campbell, being sworn, testified: I resided on the first of May last in No. 58 Duane-street,; I had been there prior to that three months; I knew the deceased for about a year; we then lived together at No. 28 City Hall-place; we left there and immediately came to Duane-street. Mrs. Williams was with me four months, from February up to her death; I knew her husband; deceased and her husband did not live together; they have not lived together since I became acquainted with her; the last Saturday before her death, she left my house with clothing for her husband (who was a watchman on some ship in the North river), as she said. ‘
    This was said in answer to a question by the district attorney, who asked the witness to state where the deceased said she was going on Saturday evening previous to her death. The prisoner’s counsel objected to the question, but the court overruled the objection, and the defendant excepted. The witness proceeded:
    She did not return until five o’clock the next morning; when she came in she appeared very ill; she said she got sick on board the vessel on which her husband was; she said she had not been drinking; she said that her whole frame seemed as if it were on fire, and her heart felt awful, On the day she returned her husband called to see her, and she was in bed; when he came in she was so glad to see him that she rose up and put on some of her things; she then gave me fifty cents and told me to go out and get her some apples and candies. When he came in the wife told him that I had said she had been drinking some liquor, and he said she had not been drinking anything; I then went out for the things and brought them in and gave them to the deceased, and the deceased gave them to the prisoner; I was absent about five minutes; I put the apples and candy on the trunk, and deceased handed them to him; she vomited during the whole Sunday, both day and night; and when she took any water, which she was continually calling for, she brought it up; he did not stop very long on Sunday; I did not notice their conversation particularly; on Monday, a little before two o’clock, the doctor came; the prisoner was there on Monday in the afternoon; he told her then that he had left $10 at the City Hall for her,- to pay her weekly allowance; he said that he would call again, and did so on the Monday evening at eight o’clock; she was no better then, and was vomiting all the time; she told him that she had “ felt awful ” ever since she had tasted what he had given to her in a pitcher; he then told her it was the water she had drank that made her feel so bad; she then asked for some water, and he would not let her have any; she then told him to leave, but he said there was time enough; he then went down stairs and brought up some butter, a loaf, and some sponge cake; he ate most qf it himself; he offered her some, but she would not eat it; she was frequently asking for water, but he would not let her have any; she then asked him to lie down, when he would not go; it was a far advanced period of the night at this time, and he would not leave, so that he should prevent her from getting water; he laid down; I slept in the same room; he remained all night; she, during the night, wanted water, and he seemingly would be asleep, and when she attempted to get out of bed to get water he prevented her; at five o’clock on Tuesday he left my room; he did not come on Tuesday, and she was no better, vomiting all the time ; he came on Wednesday, about half-past six, P. M.; on Wednesday she felt better, and was up by seven, A. M.; when he came she was in bed, and I was talking to her; he asked her how she felt; she said she felt no better; he sat down by the bedside, and she took hold of his hand and put it on her heart and said the pain was there; she felt as if she was all' on fire; she told him to look at her gums; they were all raw; when I last saw that her gums were raw, she asked her husband to look at them; he said they were not so bad as she said they were; he asked her if she had eaten anything ; she said yes, some tea witness had made for her, having some toasted bread in it; I made the tea, used the brown sugar taken at the inquest, and tried to get her to take some more of it before he came in, but she could not; placed the bowl on the stove; no fire in it; when he came in it stood in the same place, with toast in it; I drank some of the tea that was in the bowl; he took the bowl and tasted the tea; said it was not sweet enough; she said she did not want any more sugar in it as it made her thirsty; he then asked her if she wanted anything; she said no; I told him a little port wine would strengthen her; he said yes, go and get some; I did so, and returned in about ten minutes, when he was sitting on the bedside with my baby on his lap; I gave her a little of the wine in a tumbler ; she did not wish it, but he insisted, and she drank about a tea-spoonful of it; when I came in the toast was broken, and stirred in with the tea, and the spoon was in the middle of the bowl; when I left the toast was whole, and the bowl was nearly full; he took the bowl after I had put the wine away, and asked if there was any sugar; Mrs. Williams replied there was plenty; I got the sugar jar and held it up; he shook the spoon before he put it into the sugar; he took one spoonful and mixed it with the tea and toast; he then said he would feed her with that, as she had often fed him; she then laid on her back on the bed; he gave her one spoonful and told her to sit up; she sat up, and he gave her a few spoonsful more; she said, Andrew, dear, I cannot take any more; he said she must take it, as it would strengthen her a good deal, and if she would he would give her a splendid dress and a new hat; she then put her hand round his neck and kissed him; she had drank nearly all the tea, and then said to me, Mrs. Campbell, you ought to examine your sugar ; I asked her what was the .matter with it, and she said it was all sand; I then looked at her, and it was like the cracking of salt under her teeth, and he was scraping the bowl, and giving 'her what was left of it; she took it all; he gave her all; he then set the bowl on my trunk and came back to the bedside, and said, Mrs. Campbell, you did not take any of the wine, and he got up and poured some in the tumbler; I told him I did not care for the wine; I drank it; he then put a spoonful in the tumbler and gave it to his wife; he was then going to leave, and she said on Friday she would be able to go after money; he said she would not ,• he said he would call on Friday to see how she was, and if she was not able to go he would bring the money himself; as he was leaving he said he would get the money, and leave it with her; he then kissed his wife, and shook hands with her; I then lit him down stairs; when I returned she was vomiting; she told me her whole body was all in a flame, and that her two ears were burning; she said she should not live till five o’clock in the morning; she died about three o’clock, Thursday morning; I was with her when she died, with the exception of a few minutes ; from the time I lighted him down stairs, her condition was most awful, vomiting and drinking water; she was conscious to the time of her death; I went to Mrs. Lambert to come in about an hour before her death, for I was frightened at being left there.

      Cross-examined. The bowl out of which she had been fed was on the trunk when she died ; I cannot say how long it remained there; there were half a dozen people in the room from breakfast time until she died; I took hold of the bowl to look at it and set it down again; I handed the police-, the bowl about ten minutes after she died; I prepared the tea for her about half-past five o’clock on Wednesday afternoon ; I got the water to make the tea from Mr. Hart’s store; I got it in a wooden pail; I boiled it in a tin vessel which belonged to me; I do not know how many bowls full it would hold; I got the tea from Mr.Cashen’s,- at the opposite corner; deceased bought the tea on the Saturday previous; we used to use each other’s provisions occasionally; when she purchased- the tea I had none in my room ; I did not purchase any between Saturday and Wednesday; the tea was kept in a glass bottle which I got in-Hart’s store; I placed it in my trunk; it was not locked then; when the tea was ready I went to the trunk and got a bowl $ the bowl was near her bed during the day; I poured out one bowl of the tea for her and*two for myself, and sweetened them of the same sugar,; she had a slice of toast which I prepared, and she broke it in two and put half in the tea; she took two or three swallows of tea before he came in; she retained the tea on her stomach; I proposed to go* out and get some port wine, as it would do her good, and he asked me to go for it; I got the wine in a small black bottle; I got the tumbler from which she drank the wine from outside of my trunk; the tea might have been on the stove an hour before I went for the wine;. I had not touched it during that time; the spoon was. in the bowl, resting against the side; when-I came back, I noticed that the bread was mixed up in the bowl; I made such a statement before the coroner; when I came in, the spoon was standing in the centre of the bowl, upright; the prisoner came four times to see his wife during her illness; once on Sunday, twice on Monday, and once on Wednesday; he came the first time on Monday, before Dr. Bishop came, and the next time after; the first time he remained but a short time; he came the second time at about eight o’clock in the evening; when he came the first time he said he had left the money at the hall.

      David Uhl, M. D., testified: I am a physician ; I made a post mortem examination of the body of Bose Williams; Coroner Wilhelm’s deputy, Dr. Bichardson, assisted me; I did so on fifth of May, at 58 Duane-street, between eleven and twelve o’clock; I found the woman lying in her bed; her limbs were rigid and contracted; she had purple spots around the mouth and on other parts of her face; there was a slight bruise on the left leg, below the knee, and no other violence on the body ; on opening the chest, from the neck down, I found the lungs congested; the heart was healthy, but filled with clotted blood; I then tied both ends of the stomach and laid it on a clean rag on the floor; I then examined the intestines, and laid a portion of them by the stomach; I then took out the liver; I took the contents of the stomach and emptied them into two pint bottles, and sealed them up ; the fluid I emptied into them contained a large quantity of white powder which was in large cakes; the mucous membrane was inflamed; I put the stomach and liver, in a cloth, and sewed up the body; I then went to the coroner and labeled the bottles; the stomach also contained a large quantity of this white powder. I then took the stomach, bottles and liver to Dr. McCready; he was not in, and I waited until he came in, and I delivered them over to him personally, in the same state in which they were when I took them from the body; the coroner gave me the bowl, which I did not take up to McCready’s at that time, because I could not carry it; I locked it up, and took it to him in the evening; I received the bowl at the coroner’s office.

      Question. In what condition was it ?
    This question was objected to by the prisoner’s counsel, and the objection overruled and an exception taken. The same objection was made to proving the contents of the bowl, which was also overruled and an exception taken.

      Answer. There was a very white substance on the inside of the bowl, which I carefully scraped, and tied the bowl up in a piece of paper.

      Question. When did you receive that bowl?

      Answer. Before I made the post mortem.

      Question. Were you present at the examination of the contents of the stomach ?

      Answer. On the first evening; it was made on the fifth of May; the principal test was Marsh’s, which is the best test that can be applied; the test was applied to .the white powder in the stomach, and we found arsenic; there was not less than a drachm; on Tuesday evening we made an analysis of the contents of the bowl, and found arsenic.

      Question. About what quantity ?

      Answer. I cannot say; in my opinion undoubtedly the cause of her death was from arsenic; I did not examine the sugar.

      Cross-examined. I have made five or six post mortem examinations where death was caused by arsenic; I made the post mortem in this case about forty-eight hours after death; the coroner handed me the bowl in his office twenty minutes before I examined the body; he did not have it in his hands when I came in; there were three persons in the office; the bowl stood on a table by the desk; I wrapped it up in a piece of paper which was in the office; did not examine it particularly ; had no place to lock it up, so hid it under a lot of papers in the office; the room was not locked; I returned in three-quarters of an hour and found the bowl safe and the papers not disturbed; went up to Dr. McCready’s three hours afterwards; saw the bowl was safe in the same position as I had placed it; I placed the paper over the bowl in a particular position, and then took it to my office and locked it up; there is one person in my office; he had no access to it; at nine o’clock that evening took it to Dr. McCready’s; I examined the rags on which the contents of the stomach were placed, and found them clean; the appearances that would result from antimony and arsenic, when analyzed, would be nearly the same; I am not an expert.

      Benjamin W. McCready testified: I am a physician; have been a graduate twenty years; have lectured on toxicology; Dr. Uhl requested me to analyze a human stomach, with two bottles with contents labeled and sealed; on fifth May he brought me the bowl and a spoon; from examination of the contents of the body, no doubt arsenic was in the stomach; from its contents four drachms of arsenic were produced; fifteen or twenty grains would produce death; on taking arsenic, the patient feels as though the abdomen was on fire, and vomiting is incessant; the patient complains of its grittiness when swallowed; I would attribute but little importance to blue spots on the body after death; I made a separate analysis of the contents of the bowl and spoon together.
    The prisoner’s counsel objected to proving the analysis of the contents of the bowl, but the objection was overruled and an exception taken.
    The bowl and the spoon were nearly clean and there was no dry powder upon them, but a dirty substance was scraped from them, and, the proper analysis having been made, arsenic was discovered; about two or three grains of matter were taken from the bowl and the spoon, and nearly all of that was arsenic.

      The Coroner testified: That he held an inquest on deceased on Friday, fifth May, between ten and eleven o’clock; that he received the bowl in question from Lieutenant Bingham, of the sixth ward station-house, about twelve o’clock; that when he received it it was not clean, but there was a whitish stuff adhering to the sides and at the bottom; that he took the bowl with him to the office and gave it to Dr. Uhl, the physician, to make the analysis, and that it did not go out of Ms (the coroner’s) hands till he delivered it to Dr. Uhl, and that, when given to the doctor, it was in the same state as when he received it.

      James Lanagan identified the bowl and testified that he received it from Mrs. Campbell, at the house where deceased died, and took it to the station-house and delivered it to Lieut. Bingham; that there was a substance around the side and bottom of the bowl.

      Alonzo Bingham testified: That he received the bowl from Lanagan; that he noticed some substance in it that looked like gruel; that he set it on a book-case, about eight feet high, in the front office; that he took it from the same place two days afterwards, when he delivered it to the coroner, and that it was .then apparently in the same state as when he placed it there.
    On cross-examination, he said he was not in the office the whole time the bowl was there, and that forty policemen might have been in the room during the forty-eight hours it was there.
    A jar of brown sugar was produced on the trial, which was identified as belonging to Mrs. Campbell, and being the one referred to by her, and which it was proved had been taken from her and delivered to the coroner at the inquest, and had been kept by the coroner till produced on the trial.

      George Kellogg, Jr., testified: I am the agent for the governors of the alms-houseI know the deceased and the prisoner.

      Question. Do you know of any complaint having been made by the deceased against her husband ?
    Counsel for the prisoner objected, as the recognizance was not produced.
    Mr. Kellogg produced the recogmzance, dated June 7th, 1853.
    Counsel for prisoner objected to its reading.

      Examination resumed. Payments indorsed on the back of the recognizance have been paid by the prisoner to me up to the second of May; I am sure it was on the second of May (Tuesday), at the time of making that payment to me, he stated he thought his wife would not be able to come for the money, and that he would call and take it to her; I asked him “ why ? ” he said she was sick; I told him we could pay it to no other person but her; he then left; the last payment was ten dollars.

      Cross-examined. We generally require a month’s payment in advance; we paid her by weekly installments of two dollars a week; we generally paid on Friday; sometimes she would come for the money and I refused to give it to her.
    The district attorney then proposed to put the recognizance in evidence.
    The counsel for the prisoner objected to the recognizance being put in evidence, or read to the jury, on the ground that the magistrate had not been produced to prove that it was subscribed and taken before him, and that there was not even proof of the signature purporting to be that of the magistrate.
    The court overruled the objection of the counsel for the prisoner, received the recognizance in evidence and permitted it to be read to the jury. To which said decision, of the court the counsel for the prisoner excepted. The recognizance was in words'and figures following:

      City, and County of New-York, ss:

    Be it remembered, that on the seventh day of June, one thousand - eight hundred and fifty-three, Andrew Williams, of number twenty-one West-street, in the city of New-York, and William Broock, of number twenty-one West-street, in the said city, personally came before me, Abraham Bogert, one of the police justices for preserving the peace of the city of New-York, and acknowledged themselves to owe to the people of the State of New-York, that is to say," the said Andrew Williams, the sum of three hundred dollars, and the said William Broock the sum of three hundred dollars, separately, of good and lawful money of the State of New-York, to be levied and made of their several and respective goods and chattels, lands and tenements, to the use of the said people, if default shall be made in the condition hereinafter mentioned.

      Whereas, The said Andrew Williams has been duly convicted of being a disorderly person, that is to say, a person who has abandoned his wife, Bose Williams.

      Now, therefore, the condition of the above recognizance is such, that if the above named Andrew Williams shall be of good behavior towards the people of the State of New-York, for'the space of one year next ensuing the date hereof, then the above recognizance be void, otherwise to remain in full force and .virtue.

    The general character of the prisoner was proved to have been good. After the evidence was closed and the jury had been addressed by the respective counsel, the counsel for the prisoner asked the court to charge the jury that if the bowl was exposed on a table or in a chest, or room, or elsewhere, where many persons had access, between the time it was taken from the room of deceased and the chemical analysis by Prof. McCready, the evidence, as to the analysis of the contents of the bowl, should be rejected.
    The court refused so to charge and the counsel for the prisoner excepted.
    The court charged, among other things, that the jury might infer that the deceased was with her husband on the Saturday night preceding her death, although the evidence on that point was very slight; to which the counsel for the prisoner excepted.
    The court further charged the jury that they might also, if the evidence in their judgment would warrant it, infer that the toasted bread in the bowl was the same which had been mutually used by the deceased and the witness Mrs. Campbell. To this the counsel for the prisoner also excepted.
    The jury found the prisoner guilty of murder, and judgment of death was pronounced against him.
    A bill of exceptions having been made, the case was carried to the Supreme Court upon a certifícate in the following form:
    Upon hearing the counsel for the said Andrew Williams, and also Mr. Blunt, the district attorney, on behalf of the people, after due notice to him, and upon examining the above bill of exceptions settled and signed by Justice Roosevelt, who tried the said cause, and at whose desire the matter was heard before me: I, William Mitchell, justice of the Supreme Court of this state, do hereby certify on said bill that, in my opinion, there is so much doubt on the questions of law raised by said exceptions as to render it expedient to take the judgment of the Supreme Cours thereon, and that a writ of error should be allowed to the prisoner; and I do accordingly'allow such writ of error to issue, and do expressly direct that the same is to operate, as a stay of proceedings on the judgment upon which such writ shall be brought, until the decision of the Supreme Court shall be had upon such exceptions.
    In the Supreme Court the judgment of the Oyer and Terminer was reversed, and the following opinions given:
   Clerke, J.

The declaration of the deceased could only have been received as a part of the res gestee, or as a dying declaration. ■

When an inquiry into the condition of a person’s health is material, any account given by such person- relative to health is evidence of complaints and symptoms; but it is not evidence to charge any other person as to the cause of those sufferings, nor is such an account any evidence of the truth of what has been declared. Anything which Mrs. Williams said to the witness Campbell, relative to the pain she was suffering and the particular nature of her complaint, was admissible; but that portion of her conversation which related to her alleged visit to her husband, and to what occurred during that visit, could only have been received on the ground that she made those statements under the ' apprehension of death. To warrant this, she must have been conscious of danger, and must have abandoned all hope of recovery, indicating a condition which the law supposes calculated to impress on the mind an obligation equal to that imposed by an oath administered in a court of justice. It is, indeed, the province of the judge, and not of the jury, to determine whether the circumstances under which the declarations were made are sufficient. But there must be some proof that the deceased was conscious of approaching and inevitable death. It is not necessary that this should be uttered in express terms; but it may be inferred from the tenor of his conversation, the nature of his sufferings, and his whole demeanor.

In the present case nothing sufficiently definite was presented to the judge to direct his attention to the subject; the witness was not asked a single question on this point; indeed it is probable, at the time when she made the declarations in question, she had no thought that her life was in danger.

I am of opinion, therefore, that the court erred in admitting those declarations.

A new trial should be granted.

Mitchell, J.

I concur; and am also of opinion that the recognizance was not sufficiently proved.

The cause was then brought into the Court of Appeals by a writ of error issued on behalf of the prosecution.

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

I. The Court of Oyer and Terminer were correct in admitting the declarations of the deceased, excepted to, and the court correctly charged the jury upon them. First. There were declarations made by her when leaving to visit her husband. Second. There were those made in presence of her husband. Third. There were some made in extremis. Fourth. There were: others regarding feelings of and symptoms of bodily condition. The declarations embraced by third and fourth subdivisions are so clearly admissible, it will not become necessary to discuss them. There were two classes of facts, embraced by the prosecution, unto which these declarations related: First. Showing that deceased died from poison; Second. Showing that prisoner poisoned her. It is respectfully insisted that the general term mistook the extent and effect of the testimony thus excepted to. The evidence concerning the “going” of the deceased was pertinent, to show her then healthy state, her frame of mind, her disposition toward her husband, and particularly herein rebutting the idea of suicide by the deceased. The delaration, answering question excepted to, viz.: “State where deceased said she was going on the Saturday evening previous to her death,” accompanied an act. It was (1 Greenl. Ev., §§ 109, 123) “a verbal act, indicating present purpose and intention.” It was a declaration, part of, and accompanied by, and explanatory of an act. (1 Phil. on Ev., 204.) There was a declaration, “ She said she got sick on board the vessel,on which her husband was; she said she had not been drinking,”' &c. There was no exception taken to this upon the trial, but the court, at general term, ■ criticise it in the opinion. No exception was taken, for the very obvious reason that, when the prisoner came to see the deceased, after her return, from “somewhere,” the conversation and remark between the two showed that she had been with him, in accordance with her intention expressed at starting. And the declaration as to her being taken sick from drinking, &c., &c., was also remarked upon by prisoner. Now, it is insisted that, even if the “ verbal act,” or her declaration of whereabouts, were inadmissible, the fact which they went to prove (presence with husband on the vessel and sickness.there) was evidenced by the husband’s admissions and remarks on the subject. The defect, if defect, was cured. Then the judge charged “that the jury might infer that the deceased was with her husband on the Saturday night preceding her death, although the evidence on that •point is very slight.” The expressions of symptoms were competent testimony (1 Greenl. Ev., § 102; 1 Phil. Ev., 190; Aveson v. Kinniard, 6 East, 189), relevant to show the first fact averred in the indictment, “ death by poison-, ing.” It. was said below that the symptoms could not charge the prisoner. The suggestion is made that the general term mistook the effect and extent of this testimony respecting symptoms, because the evidence of the poisoning whereof she died was upon an occurrence unaffected by the declarations as to departure and symptoms; indeed, upon an occurrence subsequent to the time of their being made. Saturday, in the evening, she leaves to visit her husband. Sunday, in the morning, she returns; prisoner comes to see her. Monday, in the afternoon, prisoner calls again and leaves; returns in the evening and stays all night until Tuesday, to five in the morning, and goes away. Wednesday, in the afternoon, he came again, and then sedulously fed her from the bowl whose contents showed presence of arsenic, &c. Thursday, near daybreak, she died. Had the prisoner been, how could he be, affected by the alleged declarations ? The evidence came in as part of the res gestae in a chronological chain of testimony from the time she ceased to be in good health until she died. But the poisoning itself is upon evidence entirely unexceptionable.

II. The Court of Oyer and Terminer correctly admitted the testimony concerning the bowl and its contents. 1. It was competent for the jury. The jurors could give to it what regard they chose. The bowl was traced for identity in the same manner in which any fact of the same nature is traced by lines of evidence. 2. The bowl was traced from the prisoner most directly. The prisoner placed it upon a trunk, from whence Mrs. Campbell, the witness, took it; she gave it to officer Lanagan; officer Lanagan to Lieut. Bingham; Lieut. Bingham to the coroner; coroner to Dr. Uhl, and to Dr. McCready, and the two make an analysis. There was arsenic found in the bowl. The jury found that this bowl was the same bowl which the prisoner used when feeding his wife. Their finding is conclusive.

III. The court properly allowed the introduction of the recognizance. It was pertinent to show a motive for the crime. 1. It was a recognizance, and not a bond. (Laws of 1833, 11, § 7 ; 2 R. S., 920, § 31, 4th ed.; id., 53, 54; The People v. Kane, 4 Denio, 540, 543.) 2. It was a record, and proved itself. (Id.) 3. It was authorized by statute, and taken and acknowledged before an officer thereunto authorized. (Id.) 4. It came from the custody of those entitled to sue upon it by statute. 5. But the court will see, from the manner of the production of the recognizance, that it came not only as if proving itself, but in connection with the testimony of George Kellogg, Jr., Alms-house superintendent, exactly as if it were a private admission of the prisoner, and upon which he had acted. 6. The recitals proved nothing more than the evidence of Mr. Kellogg, showed to be the fact. 7. This being the case, how has the prisoner been, or rather how could he have been, prejudiced?

Henry L. Clinton, for the prisoner.

I. The court erred in admitting in evidence the declarations of the deceased, as stated by Mary Campbell. This answer was elicited by the district attorney asking the witness to state “where the deceased"said she was going on the Saturday evening previous to her death,” and taken under defendant’s objection and exception. The court also erred in charging “that the jury might infer that the deceased was with her husband on the Saturday night preceding her death.” ■ This inference -rested solely-on these declarations of the deceased, made in the absence of the prisoner. The testimony was mere hearsay, and was clearly inadmissible. In the case of Kirby v. The State (9 Yerger, 383), it was held that evidence that the deceased, while on- his way to the place where he was found murdered, and the day before he was supposed to be killed, had stated that he was:going to that place, and that the defendant was going with him, was incompetent. In Zeller v. The State (2 Halst., 220), it was held that conversation of the deceased with a third person, or acts of the deceased which never came to the knowlege of .the prisoner, cannot be received in evidence. The principle of these cases is too clear and well established to require a citation of further authorities. There was no pretence on the trial that these statements of the deceased were dying declarations, and if they had been ofFered as such they would have been clearly inadmissible; because they were not made in articula mortis, or under the consciousness of impending dissolution.' On the contrary, the deceased, during the time these declarations were made, and afterwards until a few hours before her death, indulged the -hope of recovery. When her husband left her on Wednesday evening, she stated that “on Friday she would bel able to go after her money.” (Rose. Cr. Ev., 27, 33; 1 Phil. Ev., 285, 9th ed.; 2 Russ. on Cr., 752-4, 6th Am. ed.)' The declarations formed no part of the res gestee. The most important declaration of the deceased was: “ She did not return until five o’clock the next morning1; wlien she came-she said she got sick on board the vessel on which her husband was." This, if true, was a narrative of a past occurrence. In 1 Green-leaf's Evidence {% 110), the author, in speaking of what constitutes res gestae, says: “It is to be observed that where declarations offered in evidence are merely narrative of a pasi occurrence, they cannot be received as proof of the existence of such an occurrence. They must be concomitant with the principal- act, and so connected with it as to be regarded as the mere result and consequence of the co-existing motives, in order to form a proper criterion for directing the judgment which is to be formed upon the whole conduct.” The declarations of deceased as to her symptoms were not evidence to charge the deceased, nor were her declarations any evidence of the truth of what she declared. (See opinion of Justice Cl erke.) The point as to the admissibility and effect of these declarations, and particularly as to the declaration of deceased that “she got .sick on board the vessel on which her husband was,” is distinctly raised: First. By the decision of the court allowing the declarations to be given in evidence.. Exception was taken to the decision of the court below, in allowing the particular answer of the witness embracing these declarations to be regarded as evidence; Second. The point is distinctly raised in the exception to the charge of the court, “that the jury might infer that the deceased was with her husband on the Saturday night preceding her death,” there being no evidence of the fact other than these declarations; Third. Now the statute provides that, on “every conviction for a capital offence,” &c., the court may consider any question of law arising in the cause, whether exception was taken or not. The prisoner suffered material prejudice in the introduction of these declarations; they formed the material links in the chain of evidence which resulted in his conviction.

ÍI. The testimony of Dr. Uhl as to the condition and contents of the bowl, taken under exceptions, and the analysis of the contents of the bowl by Prof. McCready, taken under exceptions, were improperly admitted because they were not sufficiently identified; and the court erred in refusing to charge as requested on that subject. Even in the case of larceny or counterfeiting, the identity of the stolen property or counterfeiting must be proved. (1 Russ. on Cr., 125; Rose. Cr. Ev., 632.) A double reason exists for proving the identity of the poison in this case.

III. The court erred in receiving in evidence the recognizance without due proof of its execution. This instrument was introduced, not as a record, but as a private writing. There was .no legal proof of the acknowledgment of this paper, or of its having been filed as a recognizance or bond. The certificate of proof or acknowledgment being in these words, “Taken and acknowledged before me the day and year first above written,” and purporting to be signed by “ A. Bogart, Jr., Police Justice,” does not entitle the instrument to be read in evidence without further proof thereof, because it does not certify that the individual was known to the officer, or identified by satisfactory proof, and because the officer was not authorized to take acknowledgments of conveyances of real estate, and his signature was not proven. (1 R. S., 758, §§ 9, 15, 16; 2 id., 42, 43, 3d ed.) Police justices are not named among the officers referred to (1 R. S., 758, § 16) as having authority to take proof or acknowledgment of conveyances of real estate. The courts of this state are strict and uniform in requiring a substantial compliance with these statutory provisions, and in no case have they dispensed with the certificate of an officer having jurisdiction or authority to take the acknowledgment, and in requiring him to state that he knew or had satisfactory evidence that the person making such acknowledgment was the individual described in and who executed such conveyance. (Jackson v. Humphrey, 1 John., 498; Jackson v. Gumaer, 2 Cow., 552; Jackson v. Vickory, 1 Wend., 412; Duval v. Covenhoven, 4 id., 563; Broadstreet v. Clark, 12 id., 673; Dibble v. Rogers, 13 id., 541; Thurman v. Cameron, 24 id., 87; Merriam v. Horsen, 2 Bari. Ch. R., 232; Crowder v. Hopkins, 10 Paige Ch. R., 183; • Jackson v. Shepherd, 2 John., 79.) The court also erred in receiving the recognizance in evidence, because it tended to show the prisoner guilty of the offence of being “a disorderly person,” and his character could not be attacked in that way. (2 Russ, on Cr., 784; Russ. Cr. Ev., 97; Arch., Cr. Pr., 111.)

Denio, J.

The evidence to show that the deceased came to her death from the effects of arsenic taken into her stomach was quite satisfactory; and there was strong reason to believe that she swallowed a portion of this poison during her absence from the house in Duane-street, between Saturday evening and Sunday morning. If, during that absence, she was in the. company of the prisoner, the latter had an opportunity to administer it to her in food or drink. His subsequent conduct was such as to attach suspicion to him, and to lead to the belief, more or less strong, that if she was poisoned during that absence he was guilty of the act, provided it was made to appear that he had an opportunity of committing it. Hence it was an important fact for the prosecution to establish that these persons met together while the deceased was abroad on Saturday night. It was competent to show this by the evidence of persons who saw them in each other’s company; or it might have been proved by the prisoner’s confessions. There was some evidence of the latter character; for the prisoner was proved to have asserted that the deceased did not indulge in drinking while she was from home, at the time referred to, a fact which he could scarcely have known except by having been with her. Although the inference from this declaration was pretty strong, and might have enabled the jury to find the fact, it was not of such a conclusive character as to preclude other testimony upon the point, and the prosecution sought to furnish such othe.r evidence by proving the declaration of the deceased, of her intention to go to her husband, when she set out from home on Saturday evening. . The question to be determined is whether that declaration was competent to be given in' evidence. The evidence of the witness Mary Campbell, of what the .deceased said, after her return, as to her having been with her husband, was not objected to. It was, however, clearly incompetent. It was not admissible as a dying declaration; for, although the' deceased returned very ill, there is no evidence, nor any reason for" believing, that she then apprehended a fatal result. The circumstance that it was received without objection, and that it tended even more strongly to show the existence of the material fact sought to be proved than the declaration which was objected against, does not relieve us from the duty of examining the validity of that "objection^ The jury may have disregarded the incompetent declarations made by the deceased after her return and have relied upon the proof of her declared design on setting out, which the court had held to be competent; or the ruling of the court, admitting her declaration last mentioned to be received, may have led them to the belief that all her declarations which were proved" were competent. We must therefore determine whether the decision of the court below, admitting proof of the statement that she was going to see her husband, when she left the house on • Saturday night, was correct or not. - It was attempted, on the argument, to be sustained as a declaration characterizing an act, and constituting, in legal understanding, part of the act itself. This is a recognized exception to the rule excluding hearsay as evidence; for when it is necessary, in the course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said ' at the time of doing it is admissible in evidence for the purpose of showing its true character. (1 Phil. Ev., 231, Gould's ed.) But to render the declaration competent, the act with which it is connected should be pertinent to the issue; for where the act is in its-own nature irrelevant, and when the declaratian is per se incompetent, the union of the two will not render the declaration admissible. (Wright v. Doe, 7 Adolph. & Ellis, 289.) The material fact here was, that the prisoner and the deceased were together on Saturday night. Even this was not a principal fact, but only a circumstance to show that the prisoner had an opportunity to. commit the offence. That the deceased left the house in Duane-street at a particular time was of no materiality, unless it was also shown that during her absence she met the defendant. The act itself was indifferent to the issue, whatever the intention was with which it was done. If the deceased met the prisoner, and thus afforded an opportunity of committing the offence, it is immaterial whether she intended or expected thus to meet him or not; and so, of course, if she failed to meet him he could not properly be prejudiced by the circumstance that she went out with a design to go to him. The evidence was not offered to qualify an act connected with the issue, but to induce the jury to infer another act not otherwise shown to exist: that of his being in company with the deceased. Suppose a declaration had been made by the deceased, on the previous day, of an intention to go to her husband on that particular evening: such declaration being unaccompanied by any act would' rest wholly in assertion, and would be clearly without the rule referred to; yet the proof would be essentially of the same character, and subject to.no greater objections than the evidence we are considering. I am of opinion, therefore, that the case was not within the rule admitting a declaration accompanying an act, on the ground of its being a part of the res gestee; and I know of no other ground upon which the case can be taken out of the general rule which excludes, under the name of hearsay, declarations not made under the responsibility of an oath.

Enough has been said to show that the judgment of the Supreme Court ought to be affirmed.

Upon a second trial the question will again arise as to the admissibility of the evidence showing that arsenic was found in the bowl which was examined by the chemist. We have looked carefully into the evidence of identity, and are of opinion that it was sufficient to authorize the court to submit the question to the jury.

The judgment of the Supreme Court must be affirmed.

Hand, J.

The proof of what the deceased said when she was leaving the house of Mrs. Campbell was not admissible. It was no part of the res gestee, for it was no part of the principal transaction, nor cotemporaneous, or even incidental to it. It was spoken at a time previous to any part of the transaction constituting the supposed offence, and in the absence of the prisoner, and when the deceased had no apprehension of danger, and much less in extremis.

I see no objection to the testimony in relation to the bowl or its contents. Whether the evidence was sufficient to identify the former, or show what constituted the latter, were questions for the jury, and the proof given on these points was competent for their consideration. No one portion of it, or that given by one witness, might have been sufficient; but all of it together might be, and the prosecution was not obliged to give conclusive' proof at every step.

It was also competent for the prosecution to prove that the prisoner had made payments upon the paper produced in court. That was a mere circumstance, and the production of the paper and such proof did not contravene any rule of evidence in relation to the proof of written instruments.

But the recognizance itself was given in evidence without any proof of its execution, except what appeared upon the face of the instrument, and the testimony of an agent of the governors of the alms-house that the prisoner had made payments upon it. "I am inclined to the opinion this was not sufficient. A recognizance is said to be a matter of record. (1 Chit. Cr. L., 90; The People v. Kane, 4 Denio, 530.) But this was taken before a police justice in the city of New-York, under the statute in relation to disorderly persons, and is but an acknowledgment, upon which, perhaps, a record might be made up. It does not appear to have been filed with any officer, and there was no proof of its execution nor of the identity of the persons recognized, except by the payments. Using one’s own affidavit in a cause may sometimes be sufficient evidence of identity as against the party making it; but, as a general rule, even an affidavit cannot be given in evidence, at least before it is filed with the proper officer, without some proof. (1 Chit. Cr. L., 576; 1 Phil. Ev., 379; Bellinger v. The People, 8 Wend., 598; Rex v. Smith, 1 Stra., 126; 2 Cow. & Hill, 1100.) This recognizance must have been introduced for the purpose of showing an inducement to commit the crime, or that difficulties had existed between the husband and wife. It purported to have been signed by the prisoner and another, and to have been taken before an officer; but it would be dangerous, especially in a capital case, to admit such a document without any proof whatever.

However, it is not necessary to pursue this point further, as the admission of evidence of what the deceased said before the commission of the supposed offence clearly entitled the prisoner to a new trial, and the Supreme Court was therefore right in reversing the judgment on that point.

The j udgment should be affirmed.

The other judges concurring,

The judgment of the Supreme Court, reversing that of the Oyer and Terminer and ordering a new trial, was affirmed.


source: Caselaw Access Project

author: Shankland, P. J.

license: Public Domain

text:
    Chenango Oyer and Terminer,
    February, 1856.
    Before Shankland, Justice of the Supreme Court, and the Justices of the Sessions.
    The People v. Benjamin Harriot.
    It is not a sufficient reason for quashing an indictment that the list of persons from which the grand jury, which found it, was drawn, contained, as originally prepared by the board of supervisors, the names of only two hundred and ninety-nine persons, instead of three hundred as required by statute.
    The prisoner was indicted for perjury, and, on being arraigned, a motion was made, on his behalf, to quash the indictment, upon the ground that the grand jury that found the indictment was drawn from a list of only two hundred and ninety-nine grand jurors, the board of supervisors of the county having prepared a list containing the names of only two hundred and ninety-nine persons, instead of three hundred, to serve as grand jurors, pursuant to the provisions of section one of article one, title four, chapter two, part four of the Revised Statutes, and that only the names of these two hundred and ninety-nine persons were put in the grand jury box.
    The district attorney contended that this alleged defect, if true, did not present good cause for quashing the indictment.

      Isaac S. Newton (District Attorney), for the people.

      Benjamin F. Rexford and H. Packer, for the defendant.
   Shankland, P. J.

The statute commands the supervisors to select the names of three hundred men, possessed of certain qualifications, to serve as grand jurors for the ensuing year. In this case, it seems that but two bundled and ninety-nine were thus selected, and the present indictment was found by a grand jury drawn from the two hundred and ninety-nine names. We are of opinion that the omission lies too far back to vitiate the indictment. The chances of such omission harming the prisoner are too remote to possess practical value. It depends on the following contingencies: First. That the person whose name is omitted would be alive at the time of the drawing of the grand jury and still in the county; Second. That his name would be drawn on this particular jury; that he would be summoned by the officer and should attend the court; Third. That he should be opposed to the finding of the indictment, and that his opposition would reduce the number of jurors in favor of finding a true bill to less than twelve. These contingencies reduce the chances of harm to a practical nonentity, and justly subject the alleged error to the operation of the maxim, “ The law careth not for small things.”

Such, also, would seem to have been the views of the legislature, for they have made no provision for challenges for this cause or any other cause so far back in the process of procuring a grand jury; but they seem to have confined the defendant’s challenges to the particular grand jury by whom he may be indicted, and his challenges then are specifically pointed out and all others are peremptorily prohibited.

It would seem that the omission which is complained of can have no more force than if three hundred had been duly selected by the supervisors, and it had happened that one thus selected had died, or removed, or was too old to serve; and yet, in such a case, I doubt whether any lawyer would seriously raise the objection. The three hundred selected by the board are always subject to be reduced in numbers by death, removal and other causes, and yet no provision is made for keeping up that number, unless the number be reduced to less than fifty. In short, it is not until the names are drawn from the box for the formation of the grand inquest that the defendant becomes interested in the procedure, and at that point commences the. right to challenge.

We are therefore of opinion that the objection against this indictment ought not to prevail.

Motion denied.


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

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

      Brown, S. B. Strong and Emott, Justices.
    Hannibal French and Charles J. Conklin, plaintiffs in error, v. The People, defendants in error.
    In an indictment against two persons, for selling liquor in violation of the excise laws, it is no defence to one that he did the acts complained of as a clerk of the other defendant, and hy his direction, there hieng no allegati on that the illegal acts were done hy compulsion.
    The provisions of the Revised Statutes, relative to the primary examination of persons accused of crimes, do not limit the right of the people, through then officers, to institute accusations before the grand jury; and it is no defence to an indictment that, previous to the complaint before the grand, jury, there had been no preliminary proceedings before a magistrate.
    Form of an indictment for a violation of the fifteenth and sixteenth, sections of the statute entitled “Of excise, and the regulation of taverns and groceries ’* (1 R. S., 854), of special pleas to the same, and ot demurrer and joinder.
    The defendants were jointly indicted, at the October term of the Suffolk circuit, 1854, for a violation of the fifteenth and sixteenth sections of the statute entitled “ Of excise, and the regulation of tavern and groceries.” The indictment was remitted for trial to the Court of Sessions of Suffolk county.
    The indictment was as follows:

      Suffolk County, ss:

    The jurors of the people of the State of New-York, itt and for the body of the county of Suffolk, upon their oath, present: That Hannibal French, late of the town of Southampton, in the county of Suffolk, merchant, and Charles J. Conklin, late of the same place, merchant, on the fifteenth day of February, one thousand eight hundred and fifty-four, with force and arms, at the town and in the county aforesaid, did willfully unlawfully and wrongfully sell, to divers persons, strong and spiritous liquors and wines, in quantities less than five gallons at a time, to wit, one gill of rum, one gill of brandy, one gill of whiskey, one gill of gin and one pint of wine, without having a license therefor granted, pursuant to the provisions of the statute entitled “ Of excise, and the regulation of taverns and groceries,” in contempt of the said people and their law, against the form of the statute in such case made and provided, and against the peace of the people of the State of New-York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Hannibal French and Charles J. Conklin, on the fifteenth day of April, one thousand eight hundred and fifty-four, with force and arms, at the town and in the county aforesaid, did willfully, unlawfully and wrongfully sell, to divers persons, other strong and spiritous liquors and wines, in quantities less than five gallons at a time, without having a license therefor granted, pursuant to the provisions of the statute entitled “ Of excise, and the regulation of taverns and groceries,” in contempt of the said people and their laws, against the form of the statute in such case made and provided, and against the peace of the people of the State of New-York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present, That the said Hannibal French and Charles J. Conklin, on the fifteenth day of July, one thousand eight hundred and fifty-four, at the town and in the county aforesaid, did willfully, unlawfully and wrongfully sell, to some person to the jurors aforesaid unknown, other strong and spiritous liquors and wines, in quantities less than five gallons at a time, to wit, one gill of rum, one gill of brandy, one gill of whiskey, one gill of gin and one pint of wine, without having a license therefor granted, pursuant to the provisions of the .statute entitled “ Of excise,, and the regulation of taverns and groceries,” in contempt of the said people and their laws, against the form of the statute in such case made and provided, and against the peace of the people of the State of New-York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Hannibal French and Charles J. Conklin, on the fifteenth day of August, one thousand eight hundred and fifty-four, at the town and in the county aforesaid, did willfully, unlawfully and wrongfully sell, to divers persons, other strong or spiritous liquors and wines, to be" drank in their house there situate, to wit, one gill of rum,- one gill of brandy, one gill of whiskey, one gill- of gin and one pint of wine, and did then and there suffer such spiritous liquors and wines, sold by them and under their direction and authority, to be drank in their said house, without having obtained a license therefor as a tavern-keeper, in contempt of the said people and their laws, against the form of the statute in such case made and provided', and against the peace of the people of the State of New-York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That the said Hannibal French and Charles J. Conklin, on the fifteenth day of September, one thousand eight hundred and fifty-four, at the town and in the county aforesaid, did willfully, unlawfully and wrongfully sell, to divers persons, other strong and spiritous liquors and wines, to be drunk in the house of them, the said Hannibal French and Charles J. Conklin, there situate, and did then and there suffer such spiritous liquors and wines, sold by them and under their direction and authority, to be drunk in their house, without having obtained a license therefor as a tavern-keeper, in contempt of the said people and their laws, 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.
    Wm. Wickham, Jr.,

      District Attorney.

    The defendant French interposed the following plea:

    Hannibal French, the above named prisoner, appears in his own proper person and prays judgment of the bill of indictment presented against him, and that the same may be quashed. He alleges and avers that no complaint against him was made to the grand jury of Suffolk county, at the time of the presentation of such indictment or before, by any person, upon oath or without oath, of any offence named in the indictment, or other offence or violation of the law of the State of New-York; that no complaint was at any time made by any person, before any magistrate of the State of New-York, for the offence named in the indictment against this prisoner, nor was any warrant issued against him, nor was any examination had before any magistrate of the facts constituting the offence named in the bill of indictment; that no commitment nor return of such arrest and examination was made by any magistrate to any court or to any district attorney of the State of New-York; that the witnesses, upon whose testimony the said bill of indictment was found, attended by force of a writ of subpoena, issued by the district attorney of Suffolk county, William Wickham, Esq., of his own mere motion, or at the solicitation of some person or persons to this prisoner unknown, several days before the meeting and sitting of the court and the grand jury; that such subpoena was not issued by the district attorney in compliance with any request or direction of the grand jury finding such indictment, nor by the direction of the court, nor in support of any prosecution for any offence against this prisoner; that the witnesses against this prisoner were compelled to attend, by the district attorney, in violation of law and against the statute of the State of New-York; that no notice of such proceeding was given to this prisoner until his arrest; that no challenge or objection was made to the competency of any one of the grand jurors by whom such indictment was found, for the reason that no notice had been given him, by any proceedings before a magistrate, by which he was held to answer a criminal charge; that, by reason of the above facts, this prisoner asks to be relieved from making answer or plea to said bill of indictment, and hereby offers to prove the truth of this plea by his own oath and by other evidence.

      Suffolk County, ss:

    Hannibal French, being duly sworn, saith: That the above plea is true in substance and matter of fact.
    Hannibal French.

    James B. Cooper, Clerk.

    The defendant Conklin pleaded as follows:

    The above named Charles J. Conklin appears in his own proper person, and prays judgment of the bill of indictment presented against him, and that the same be quashed; for he alleges and avers: That no complaint against him was preferred before the grand jury of Suffolk county at the time of the presentation of such indictment, or before, or by any person, upon oath or without oath, of any offence named in the indictment, or other offence or violation of the law of the State of New-York; that no complaint was at any time made by any person, before any magistrate of the State of New-York, for the offence named in the indictment “against him, the said Charles J. Conklin, nor was any warrant or process issued against him, nor was any examination had before any magistrate of the facts constituting the offence named in the bill of indictment; that no commitment nor return of such arrest and examination was made by any magistrate to any court or to any district attorney of the State of New-York; that the witnesses, upon whose testimony the said bill of indictment was found, attended by force of a writ of subpoena issued by the district attorney of Suffolk county, William Wickham, Esq., of his own motion, or at the solicitation of some person or persons to this defendant unknown, several days before the meeting and sitting of the court and the grand jury; that such subpoena was not issued by the district attorney in compliance with any request or direction of the grand jury finding such indictment, nor by the direction of any court, nor in support of any prosecution for any offence against the prisoner; that the witnesses against the prisoner were compelled to attend, by the district attorney, in violation of law and against the statutes of the State of New-York; that no notice of any proceedings was given to this defendant until his arrest; that no opportunity was afforded him to challenge any member of the grand jury, and that no challenge or objection was made to the competency of any one of the grand jury by whom such indictment was presented for want of such notice, and for want of notice by proceeding before a magistrate by which he was held to answer a criminal charge; that, by reason of the above facts, the prisoner asks to be relieved from making answer or plea to said bill of indictment; and the defendant further pleads, that before and at the time mentioned in said bill, and at the time of the alleged commission of the offences named in such indictment, he was a clerk in the store of said French, and not a partner,- or in any way interested in the profits arising from such sale, or in the business of said French, but acted wholly as his clerk or agent in the delivery of articles sold, and by his directions, and hereby offers to prove the truth of this plea by his own oath and by other evidence. ■

      Suffolk County, ss:

    Charles J. Conklin, being duly sworn, saith: That the above plea is true in substance and matter of fact.
    C. J. Conklin.

    James H. Price, Justice of the Peace.

    The district attorney demurred to both of the pleas as follows:

    And William Wickham, Jr., district attorney of the county of Suffolk, .who prosecutes for the people of the State of New-York, in this behalf, as to the said pleas of the said Hannibal French and Charles J. Conklin, by them pleaded and set forth, says they are not sufficient in law to have precluded the said people from prosecuting the said judgment against them, the said Hannibal French and Charles J. Conklin, and that the said people are not bound by the law of the land to answer the same; wherefore, for want of a sufficient plea in this behalf, he, the said district attorney, prays judgment, and that this defendant may be convicted, &c.

      The defendants joined in demurrer as follows:
    And the said Hannibal French and Charles J. Conklin say that their said plea, by them above pleaded, and the matter therein contained, in maimer and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude the said' people from prosecuting the said indictment against them, the said Hannibal French and Charles J. Conklin, and they;are ready to verify the same; wherefore, inasmuch as the said district attorney has not answered the said plea, nor in any manner denied the same, • the said Hannibal French and Charles J. Conklin pray judgment, and that by the court here they may be dismissed and discharged from the premises in the said indictment specified.
    The defendants also moved to set aside the indictment. After hearing argument the court denied the motion, and decided the pleas to be bad, and refused judgment of respondeos ouster, and rendered final judgment and pronounced' sentence.
    Upon a writ of error issued, the proceedings were stayed till the decision of this court.
    S. L. Gardiner, for the plaintiffs in error.
    I. The writ of subpoena not having been issued by the district attorney in conformity with the requirement of any grand jury, nor in support of any prosecution then pending, was illegally issued, and all subsequent action based thereon by the grand jury was irregular, and the indictment presented was void.
    II. The defendants were severally entitled to an examinar tian, in relation to their offence, before a magistrate; to be then and there informed of the charges against them; to the aid of counsel, if required; to be confronted with the complainant and his witnesses; and their examination in his presence, on oath, in. regard to their offence, to be reduced to writing; to an examination of witnesses in their behalf, and to make their statements explanatory of the charge, and the matters connected therewith, in conformity with the provisions of the statute entitled “ Of the arrest and examination of offenders,” &c. (2 R. S., 590.)
    TIT. No opportunity of time and place having been given to the defendants to challenge the competency of any person summoned to serve on the grand jury before he was sworn, or at any other time, on the ground that he was prosecutor or complainant on the charge made against the defendants, or that he was a witness subpoenaed or bound in recognizance for the prosecution, and no time or place having been given to establish, by competent testimony or otherwise, the challenge or objection allowed by the statute, the indictment is illegal, void and of no effect, and all proceedings thereon are erroneous and irregular.
    IV. No offence was committed by the defendant Conklin, the bare delivery, by a clerk, of property sold by his principal, not making such clerk a principal in any misdemeanor arising out of such illegal sale. The defendant Conklin having no interest in the property sold or consumed, nor control over the premises where it was sold and consumed, cannot be implicated as a principal criminal in the offences described in the fourth and fifth counts of the indictment.

      W. Wickham, Jr. (District Attorney), for defendants in error.
    I. The pleas are insufficient, and the demurrer was correctly decided. (The People v. Jewett, 3 Wend., 314; 6 id., 385 ; The People v. Hurlbut, 4 Denio, 133.)
    II. A clerk who sells liquor under the directions of his employer is equally guilty with the latter of a violation of the statute. All who participate in the commission of a misdemeanor are principal offenders. (1 Chit. Cr. L., 261; The People v. Irwin, 4 Denio, 129.)
    III. The district attorney is authorized to issue subpoenas in support of any prosecution. (2 R. S., 729, $ 23.)
    It is believed that the case requires no argument beyond a statement of it. Whatever may be the practice in other counties, in Suffolk county it has been usual for the district attorney, both the present incumbent and his predecessors in office, to issue subpoenas in advance of the meeting of the grand jury, upon a representation made to him, from a source entitled to belief, that a criminal offence had been committed. The county is large, and grand juries are always desirous of obtaining an early discharge. And if the right assumed does not exist, the prosecution of offences, particularly those of a public nature, will become almost impracticable.
    It is supposed that subpoenas are issued “ in support of a prosecution,” although the prosecution is thereby first instituted.
    In this case the main objection is, not that the grand jury found the bill upon insufficient evidence, or that there was any informality in their proceedings, but that the witnesses were compelled to attend before them by process irregularly issued by the district attorney. . It is submitted that this is no answer to the indictment. If the district attorney has transcended his powers, for that there may be some remedy against him, but it cannot be by impeaching a record of the court which is admitted to be true.
    Complaints may originate before a grand jury. In all such cases the defendants may not have the same right of challenge as if they had been under recognizance. But in this case it is not alleged that any of the grand jurors were objectionable.
   By the Court, S. B. Strong, J.

The defendant Conklin set up, as a separate defence, that he was a clerk in the store of French, and not a partner, and that he acted simply as such clerk and by direction of Ms principal in the delivery of the articles sold. This is very general, and cannot be considered as an allegation that Conklin sold the liquor in Ms capacity as clerk, and by the direction of Ms principal. If, however, that may be fairly implied from what is alleged, it does not constitute a valid defence. Nothing is said indicating compulsion; and he who willingly follows the direction of another in the perpetration of an offence cannot, for that cause, shield himself from responsibility. The law allows of no such excuse, nor should it.

Both defendants plead that there had been no preliminary proceedings against them before a magistrate, pursuant to the provisions of the statute (2 R. S., 706, §§ 2, 13, and several following sections). This formed no defence to the indictment, and must be deemed invalid as a plea. If there had been a fatal defect in the proceedings before the indictment was found, the defendants should have presented proof of the facts and moved to quash the indictment. The answer tendered no issue which could be tried by a jury. As, however, the action of the court below, in denying a motion to that effect, could have been reviewed, and the court actually passed upon the question involved, justice to the defendants would seem to call for its. consideration by the court.

The provisions in the Revised Statutes, relative to the primary examination of persons accused of crimes, do not purport to limit the right of the people, through their officer, to institute accusations before the grand jury. They relate to charges preferred ordinarily by private individuals before inferior magistrates. In most cases, it is very proper that the persons charged should have a hearing before they are imprisoned or subject to the necessity of finding bail for their appearance. If the defendants are right in their supposition, that no case can be brought before the grand jury unless the magistrate shall commit the accused or put him under a recognizance, the determination of the magistrate to fully discharge him would be conclusive against the public. If he should grossly err or act from improper motives there would be no remedy. His determination would amount to an acquittal, for there is no provision for a re-investigation, nor could one be had if the previous examination should be invested with the immunities of a trial. It cannot be that the legislature designed that the public should be thus concluded by an informal investigation, and when it is not required that the officer entrusted with the management of criminal proceedings in behalf of the people should be present or have any notice of the proceedings.

The right of the people to commence proceedings for the punishment of crimes, before the grand jury, cannot be taken away by implication. To effect that requires a positive and direct prohibition. That is the general rule, and I can see no reason for departing from it in this important branch of jurisprudence.

There are several statutory provisions which imply that accusations for crime may, in the first instance, be preferred before a grand jury. Courts are required specially to charge grand juries to inquire into all violations of certain statutes. This would be improper and unnecessary if grand juries were limited to the examination of such cases only as had been previously before magistrates and were deemed by them proper for subsequent action. Grand juries are forbidden to disclose the fact of an indictment having been found against any person, for felony, not in actual confinement, until the defendant in such indictment shall have been arrested thereon. (2 R. S., 726. § 30.) There would seem to be no great, if any, necessity for this provision, if grand juries were confined to the examination of cases where the accused were in confinement or under recognizance. It is provided (2 R. S., 725, § 34) that if any offence shall be committed during the sitting of any court of oyer and terminer and court of general sessions, after the grand jury attending such court shall have been discharged, such court may, in its discretion, by an order, to be entered in its minutes, direct the sheriff to summon another grand jury. But for what purpose, if nothing could be done until the case should undergo a preliminary examination before a magistrate? So, too, the power given to district attorneys, by the act of October 26, 1847, to issue warrants for the arrest of defendants under indictment, would seem to be unnecessary, if such indictment could be found only against prisoners or those who had entered into recognizance to appear in court and not depart without leave.

Upon the whole, I am satisfied that the objection which I have last considered is one of modern agitation, and that, like the generality of such objections, it -has no solid foundation.

The judgment should be affirmed.

Judgment affirmed.


author: Balcom, J.

text:
    Supreme Court. Tompkins Special Term,
    April, 1856.
    Before Balcom, Justice.
    The People v. Edward H. Rulloff.
    The question whether a former trial and conviction for abduction are a bar to an indictment subsequently found for murder alleged to have been previously committed, cannot be raised and made a ground for discharge on habeas corpus. Such defence can only be made available, if at all, on the trial of the indictment for murder.
    On habeas corpus to discharge the prisoner, Edward H. Rulloff, from the custody of the sheriff of Tompkins county, by whom he was confined in jail. The prisoner having been brought before the court, it appeared, by the sheriff’s return to the writ, that he was imprisoned on an indictment for the murder of his wife, Harriet Rulloff, in one of the towns of Tompkins county, in June, 1845, and that the indictment was found by the grand jury of that county in 1848.

      It appeared, from the proof presented to the court, that in June, 1845, the wife of the prisoner disappeared from his residence in Tompkins county, and had never been found.
    The prisoner was tried at the Tompkins Oyer and Terminer, in January, 1846, upon an indictment for unlawfully and forcibly abducting and imprisoning his wife, contrary to certain provisions of the Revised Statutes (2 R. S., 664, §28), and he was convicted upon such trial, and sentenced to imprisonment at hard labor, in the state prison at Auburn, for the term of ten years. And he had served such term.
    After the prisoner was thus convicted, and before the term of his imprisonment in the state prison had expired, the indictment for the murder of his wife was found against him.
    When his term in the state prison expired, the sheriff of Tompkins county took him from Auburn to the Tompkins county jail, where he had since been confined on the indictment for the murder of his wife.
    The question arose on the trial of the prisoner for the abduction of his wife, whéther he was guilty of murdering his wife or of her abduction; and the court charged the jury that if the evidence satisfied them that the prisoner had murdered his wife, they must acquit him of the crime of abducting her.
    The prisoner was confined in the Tompkins county jail, at the time the indictment for the abduction of his wife was found, and he had never been at large out of the custody of an officer since that time.
    The prisoner insisted that his trial, conviction and punishment for the abduction of his wife were a bar to all proceedings upon the indictment against him for her murder; and that he was entitled to a discharge from the custody of the sheriff of Tompkins county, without a trial upon the indictment for murder.

      John A. Williams (District Attorney), for the people.

      Edward H. Rulloff, in person.
   Balcom, J.

If the prisoner murdered his wife, he committed such crime before he was indicted for her abduction; and on his trial for the latter offence the court charged the jury, if the evidence satisfied them that he had murdered her, they must acquit him of the crime of abducting her; but he was convicted of her abduction, and has been imprisoned ten years for that offence. He now claims that his trial and conviction for abducting his wife are a bar to all proceedings upon the indictment against him for her murder; but it is unnecessary to pass upon that question in this proceeding, for, were it conceded that his trial and conviction have the force which he claims they have, he could not be discharged on a habeas corpus. He must be regularly tried upon the indictment for murder. The effect of the former trial and conviction can be considered and determined only by the Oyer and Terminer that shall try him for the murder. It cannot be adjudicated in this proceeding by habeas corpus. (Rex v. Aeton, 2 Str., 851; S. C., 1 Barnardist K. B., 250.)

The prisoner must therefore be remanded to take his trial in the Oyer and Terminer in the ordinary forms of law.

Ordered accordingly.'