author: King, J. —

text:
    Supreme Court. New York General Term,
    December, 1851

      Edmonds, Mitchell and King, Justices.
    Edward Smith plaintiff in error vs. The People def’ts in error.
    inhere, on an indictment for perjury in having sworn falsely as to the ability of the defendant to become bail for a prisoner charged with crime, the indictment charged that the perjury was committed upon an examination had after he had been previously sworn to make true answers to such questions as should be put to him, touching his qualifications and competency to be and become bail, &e., and it appeared on the trial, that after the answers of the defendant to certain interrogatories had been taken down in writing, an oath was administered to him, “ that the answers to the forgoing interrogatories by him subscribed are each and every of them true,” it was held a material variance and that the proof did not support the indictment.
    fnd where the indictment charged that the perjury was committed on the defendant’s offer to become bail for one Thompson committed on McDonald’s complaint in default of bail for $000, and the evidence showed the perjury to have been committed on defendant’s examination as bail tor Thompson committed on the complaint of Sayre and others in default of $3000 bail, it was also held to be a material variance and that the proof did not support the indictment.
    The defendant in error was convicted of perjury at the New York General Sessions, on the 19th October, 1849, and sentenced to the state prison for five years and four months.
    The indictment stated that on the 7th day of July, 1849, one Samuel Thompson was in due form of law charged upon the oath of Hugh McDonald, before James McGrath, one of the police justices of the city of New York, with the crime of larceny, See., See., upon which said charge the said Samuel Thompson was in due form of law committed by said justice to the keeper of the city prison, by him to be safely kept until he should find surety in the sum of $500, to answer sa d complaint or be thence delivered by due course of law. •
    That on the same day the said Samuel Thompson was committed by said justice to the custody of the keeper of the city prison upon divers charges of felony, to be safely kept by him the said keeper, until he should be thence delivered by due course of law, and the said keeper of the city prison did then and there receive and take said Samuel Thompson in the city prison aforesaid by virtue of the commitments aforesaid.
    That on the 38th day of May, 1849, Edwin Smith came in bis own proper person before said justice, and then and there offered himself to be and become the bail of said Thompson, and that he, said Thompson, should personally appear at the next court of general sessions, &c., &c., to answer said charges, &c. And thereupon the said Edward Smith was in due manner sworn by the said James McGrath, police justice, as aforesaid, to make true answers to such questions as should be put to him touching his qualifications and competency to be and become bail for the said Thompson, he, the said McGrath, having sufficient and competent power and authority to administer an oath to the said Edward Smith in that behalf.
    That it then and there became necessary and material for said police justice to know what sum the said Edward Smith was worth over and above his debts and liabilities, and of what property he, said Smith, was then and there possessed.
    That said Edward Smith being so sworn as aforesaid, did make his affidavit in writing, and did before the said McGrath, justice as aforesaid, upon his oafh as aforesaid, he, the said Mc-Grath, having competent authority to administer an oath, See., Sec., feloniously, falsely, willfully, See., &c., swear, depose and say among other things to the substance and effect following: that is to say, that he (said Smith meaning), was worth the sum of twenty thousand dollars, &c,, &c., stating what was sworn to and negativing the truth of his averments.
    And so the jurors, &c., say that said Edward Smith, on the day, &c., &c., upon his oath aforesaid, before the said James McGrath, justice as aforesaid, &c., See., did commit willful and ■corrupt perjury, &c., &c.
    Upon the trial, Sidney H. Stewart, one of the clerks of police m the city of New York was called as a witness, who proved that on the 19th July, 1849, Samuel Thompson was committed on'five charges of grand larceny and one of petit larceny, and produced the commitments, all being by justice McGrath, one on the complaint of Lewis H. Sayre, requiring bail in $500; another on the complaint of William H. Norris, requiring bail in $500; another on the complaint of John Deraismes, requiring bail in the sum of $500; another on the complaint of Herd Mayor, on a charge of petit larceny, requiring bail in $200; another on the complaint of John J. Sturges, requiring bail in $500; another on the complaint of Hugh C. McDonald, requiring bail in $500. All the commitments except that on the complaint of Mayor being on charges of grand larceny and bearing date July 19, 1849.
    The witness further proved that the defendant Smith offered himself as bail for Thompson on Saturday, July 28, 1849.
    The witness then produced a paper entitled, “ State of New York. In the matter of the people of the state of New York on complaint of Lewis A. Sayre and others against Samuel Thompson, alias Samuel Williams, called the confidence man,” and which proceeded as follows:” Interrogatories and answers to be administered to Edward Smith who offers himself as surety for Samuel Thompson in the sum of three thousand dollars, the said Samuel Thompson being charged on the oath of Lewis A. Sayre with grand larceny. First interrogatory: What is your name, age, place of residence and occupation"? Answer — My name is Edward Smith, &c., &c.,” proceeding in the form of interrogatories and answers and signed at the end by the defendant, after which follows the jurat as follows: City and County of New York, ss.: On the 28th day of July, 1849, the above named Edward Smith personally appeared before me, and being duly sworn deposes and says, that the answers to the foregoing interrogatories by him subscribed are each and .every one of them true, signed James McGrath, police justice.
    The same witness further proved that the answers to the interrogatories were in his handwriting, it was subscribed by the defendant in his presence, he was sworn by Justice Mc-Grath and the signature of Justice McGrath was to the jurat: the execution of the said bail bonds was deferred till the next day when they were signed.
    The district attorney then offered to read in evidence the several commitments so produced and proved.

      The counsel for the prisoner objected that the indictment stated that Thompson was committed upon the complaint of Hugh McDonald and that no other commitment but that one should be read.
    And that there was no allegation in the indictment of the said Thompson, having been committed on the charges mentioned in the other commitments produced, or of Smith’s having offered himself as bail for Thompson on those other charges, and no foundation was laid in the indictment for admitting these other commitments.
    The court allowed all the commitments to be read in evidence, to which the defendant’s counsel excepted.
    The district attorney then offered to read in evidence the examination proved by the witness.
    This was objected to by the counsel for the prisoner, because it was not taken in the case charged in the indictment, viz.: m the complaint of Hugh McDonald, but in the matter of the complaint of Lewis A. Sayre and others, wherein no charge is made in the indictment of the defendant having committed perjury.
    2. That the defendant was charged with having committed perjury upon his offer to become bail for Thompson committed upon McDonald’s complaint and in no other case.
    The court overruled these objections, on the ground that the prosecution had proved that Thompson had been committed on the complaint of McDonald, and also for divers other felonies as charged in the indictment, and that the defendant had offered himself as bail in all the cases.
    The defendant’s counsel then stated other objections to reading the examination:
    3. That it was not taken in the cases mentioned in the commitments produced.
    4. It was taken in a case where Lewis A. Sayre and others were complainants and the bail was $3000, and no such commitment was produced.
    5. It was taken in reference to a complaint of Lewis A. Sayre alone, where the bail required was $3000, and the aggregate of the bail required by the commitments produced was only $2750.
    6. The examination was not taken conformably to statute, the defendant having been interrogated in a sum beyond the amount of bail required.
    7. The oath was extra judicial, having been administered to answer in several cases, as appears by'the indictment, and there should have been a separate oath in each case.
    8. That the defendant must first have signed the bonds before the justice had any authority to administer an oath to him.
    9. That the examination was taken by the clerk not the magistrate, and therefore void.
    10. The magistrate was not present at the examination.
    11. That the examination was not taken under oath at the time the defendant was answering, and the oath having been administered after the defendant had answered it was a nullity.
    12. That the examination was not taken upon oath to make true answers, &c., as alleged in the indictment, and did not support the indictment in that respect.
    The court overruled the objections and allowed the examination to be read in evidence, to which ruling the prisoner’s counsel duly excepted.
    The six bail bonds executed by the prisoner were then read . in evidence, sundry objections having been made to their introduction.
    Justice McGrath having been called as a witness proved that Mr. Stewart, the clerk, interrogated the witness, he the justice being part of the time present; while the examination took place Mr. Stewart filled up the interrogatories, they were read over to the defendant in the witness’s presence, and witness administered the oath to him after he had signed the examination.
    A bill of exceptions having been made, the case was brought to this court by writ of error.

      F. Byrne, for plaintiff in error.
    JV B. Blunt (district attorney), and

      J. McKeon, for defendant in error.
   By the Court,

King, J. —

It is contended on behalf of the prisoner that there was a variance between the proof offered against him on the trial and the charge against him in the indictment in this.

1. That the indictment charges him writh perjury upon an examination where Ee had been previously sworn truly to answer questions, which charge is attempted to be supported by evidence that he falsely swore that the contents of an affidavit produced by him were true: and

2. That he is charged with perjury upon his examination as surety for Thompson, committed on the complaint of McDonald in default of $500, bail, which charge is attempted to be supported by evidence that he falsely swore upon his examination as surety for Thompson, committed on complaint of Sayre in default of $3000, bail.

Upon examining the indictment, it will be perceived that it charges that the plaintiff in error, Smith, was in due manner sworn to make true answers to such questions as should be put to him, touching his qualifications and competency to be and become bail for the said Samuel Thompson; that being so sworn as aforesaid, he made his affidavit in writing and did upon his oath aforesaid feloniously, &c., depose and say.

This differs from the usual form, where it is intended to allege perjury upon what is usually denominated an affidavit, where the oath is administered after the affidavit has been written and signed by the affiant, and is to the effect that the contents of the affidavit so subscribed are true.

The usual allegation being, that the defendant was in due form of law sworn and, upon his oath aforesaid, did depose, &c., and make affidavit in writing; or that the said defendant did produce to the said court a certain affidavit in writing of him, the said defendant, and then and there, &c., &c., was duly sworn and took his corporal oath, &c., &c., concerning the truth of the matters contained in said affidavit. (Chitty Crim. L. 319, 329.)

Nor is the charge such as is made where a party is indicted for false swearing upon his examination in justifying bail, as in those cases the averment that the party made affidavit in writing is omitted. (Chitty Cr. L. 331, 332.)

The charge as made in the indictment in this case is inconsistent in its different parts, if the word affidavit is to be taken in the usual acceptation of that term; and the allegation that he made an affidavit must be rejected as surplusage, or, if retained, it must be construed by the terms of the oath previously averred to have been taken, as meaning deposition.

In support of this charge, which imports that the party having been previously sworti, did, after taking the oath in his examination commit perjury, it seems to me improper to introduce evidence that the party was sworn to the truth of an affidavit presented to him, no examination taking place subsequent to the oath and therefore no violation of the oath appearing, which he is stated to have taken.

The difference between examinations and depositions is recognized in The People v. Restell (3 Hill, 304.) There, a deposition having been made and the witness sworn to its truth, the accused party was afforded the opportunity of putting questions to the witness, but, says the court, had she done so, and had the witness given false answers, she could not have been convicted of perjury, as she had not been sworn to answer questions at all.

It seems equally obvious that, in this case, the defendant could not be convicted on the indictment against him, without proving that he was sworn to make true answers to the questions that should be put to him, and did answer falsely after having been sworn. Such evidence was not produced; no proof was offered that he was first sworn and then interrogated. The only oath proved was, “ that the answers to the foregoing interrogatories by him subscribed are each and every of them true.” The deposition subscribed by the defendant being in the form of question and answer. Another question is presented, however, under this indictment Under the statute of 23 Geo. II, c. 11, which was reenacted by our revised laws, it is sufficient, in cases of perjury, to set forth the substance of the of-fence, the name of the court, a simple averment of the court’s authority to administer the oath, and proper averments of the falsity of the defendant’s assertions. (2 Chitty’s Cr. 507; People v. Phelps, 5 Wend. 9; People v. Warner, 271.) And in these latter cases, it was held that under the statute of jeofails in criminal cases, contained in the revised statutes, the same rules would still be applicable to indictments for perjury as under the revised laws, though the provisions of those laws were not reenacted in the revised statutes.

It being then sufficient to charge that the party was duly sworn, can the allegation of what he was sworn to do, be rejected as surplusage? It is laid down that every fact and circumstance which is not a necessary ingredient in the offence may be rejected as surplusage. (Archb. Crim. Plea, 42.) But even under the foregoing statute, if the prosecutor chooses to state the offence with greater particularity than is required, he is bound by the statement and must prove it as laid. (5 T. R. 311; Rex v. Dowlin.)

It is, however, of the very substance of the offence, it seems to me, what the oath was which was administered to the accused, and that having stated that a particular oath was administered, the prosecutor should not be allowed to prove one different in its nature. Although it is equally perjury to swear to a false affidavit, or to make a false answer, having been sworn to make true answers, it is not proving the same perjury; and the one offence only being charged, it seems at variance with the rules upon which indictments are framed and supported by evidence, to permit the charge to be thus modified to suit the evidence as it may appear. The indictment only charges perjury upon an examination, the accused having been previously sworn. The subsequent averment that the accused upon such oath made his affidavit in writing is repugnant to the preceding statement, and though the latter averment may be rejected as surplusage, I do not think the former can.

It is, secondly, urged on behalf of the plaintiff in error, that the proof varied from the charge in this, that the charge was of perjury upon occasion of the prisoner’s offer to become hail for Thompson committed on McDonald’s complaint in default of $500 bail. The evidence was of perjury committed upon his examination as bail for Thompson committed on the complaint of Sayre and others in default of $3000 bail.

The indictment states that Thompson was committed upon McDonald’s complaint in default of $500 bail.

That he was committed by McGrath upon divers charges of felony (no averment being made that the amount of bail on these charges was fixed, or that the committing magistrate could bail in those cases).

That Smith offered himself as bail that Thompson should appear at the next court of general sessions, &c., &c., and thereupon was sworn, McGrath having competent authority to administer the oath, that it was material for the police justice to know the amount of Smith’s property, he swore it was a certain amount, which assertion of his was false.

It is contended on the part of the people, that the occasion of administering the oath is sufficiently indicated to be the offer of Smith to become bail for Thompson on all the charges of felony against him, and that the jurisdiction of the officer having been averred and the materiality of the matters deposed to by the prisoner, it was matter of evidence and not matter to be pleaded, how the evidence of the defendant was material, and upon what different charges of felony Thompson was committed.

It is first to be observed, that although at the trial a commitment of Thompson on the complaint of McDonald was produced, the only oath which it appeared the prisoner took was upon an affidavit or deposition in the matter of the people of the state of New York on complaint of Lewis A. Sayre and others against Samuel Thomson. If the title of the deposition is to determine in what proceeding it was taken, or if the title is to be disregarded and the caption of the deposition is to determine the proceeding in which it was taken, then it was upon Smith’s offer to become surety in $3000 for Samuel Thomson, charged on the oath of Lewis A. Sayre with grand larceny.

Nothing in the deposition indicated that the prisoner offered himself as bail for Thomson on the charge made by McDonald; and therefore the indictment, so far as it charges that to have heel the occasion on which he committed perjury, is unsustained by evidence.

But it is insisted that it is also stated in the indictment, that Thomson was committed on divers charges of felony, and Smith offered himself as bail on all those charges, that it is therefore competent to offer evidence of other commitments than the one specifically stated in the indictment, and of Smith’s deposition upon his offer to become bail for Thompson on those charges. Admitting this to be so, in order to sustain the verdict after conviction, though the practice of making such general charges is not to be commended and. is not in accordance with the rules usually governing criminal proceedings, yet even then the evidence does not appear admissible. It is true five commitments, .on charges of felony preferred by different persons against Thompson, were produced, and one commitment on a charge of petit larceny, not, according to the revised statutes, a felony; but .among these commitments, there was none on the joint complaint of Lewis A. Sayre and others, and none on the sole complaint of Lewis A. Sayre in which the bail required was in the sum of $300.

The title of the deposition is, “ In the matter of The People of the state of New York on the complaint of Lewis A. Sayre and others.” This, according to usual acceptation, would mean the joint complaint of Lewis A. Sayre and others, and would indicate but one complaint. .Rejecting the averment on whose complaint the people proceeded against Thompson, the caption of the deposition shows it to have been taken in a case where Lewis A. Sayre alone complained and the bail offered was $3000. Upon the commitment proved on Sayre’s complaint, ■~fhe bail required was $500 only.

To conform the evidence to the charge contained in t’.e indictment in all its latitude, we must change the title of the deposition so that it shall read, “ In the matter of the People on the complaints of Sayre and others. against Thompson,” we must change the caption so as to read, “ Interrogatories to be administered to Smith who offers himself as surety for Thompson in the sum of $2500 (the aggregate amount of bail required on all the commitments for felony produced), charged on the oaths of Lewis A. Sayre and others with divers grand larcenies;” and we must omit the commitment of Thompson for petit larceny, which increasing the amount of bail so far increased the materiality of Smith’s answers as to his property. As the proof now stands, it seems to me not to support any charge in the indictment.

The result is, that the evidence'on the trial varying from the charge in the indictment, the prisoner has been wrongfully convicted and is entitled to a new trial. • The judgment in the courf below must therefore be reversed, and a new trial ordered.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Supreme Court. Chenango General Term,
    January, 1852.

      Mason, Shankland and Gray, Justices.
    The People vs. George I. Shaw.
    An Indictment under the Revised Statutes charging the committing of au assault and battery with a deadly weapon, with the intent to kill, is sus* tained by proof of having done the act with intent to commit any felonious homicide: it is not necessary to prove an intent to murder.
    The prisoner was tried at the Chenango Oyer and Terminer in October, 1851, before Mr. Justice Shankland, and the justices of the sessions, on an indictment charging the committing of an assault and battery on Isaac Williams, with an axe, with au intent to kill him.
    At tkg close of the testimony, the prisoner’s counsel asked the court to charge the jury that the intent to kill must be proved in che same manner it would need to be proved, to constitute the crime of murder, if the intent had been carried into effect; and that a severe assault and battery, committed in the heat of passion, witl out an intent to kill, and where, if the person assaulted had died, the offence would have only been manslaughter, would not be sufficient to convict under the indictment of an assault and battery with intent to kill. The court refused so to charge, except as modified in the charge given, and the prisoner’s counsel excepted.
    The court then charged the jury, that the prisoner, under the indictment, should be convicted of an assault and battery with intent to kill; if the assault and battery were made under such circumstances that, had the person assaulted been killed, the offence would have been either murder or manslaughter in any of the various degrees of manslaughter, and that the prisoner could not be convicted on the main charge, if he had no intent to kill, or if he did the act under the belief that it was necessary in self defence; to which charge the prisoner’s counsel also excepted.
    The jury found the prisoner guilty of an assault and battery with an intent to kill, and on bill of exceptions made, the cause was brought before the supreme court by certiorari.

      Henry A. Clark, for the defendant,
    argued that the word f‘ kill ” in § 36, 2 R. S. 665, has the same meaning as “ murder” in the previous statute of this state. (1 R. L. of 1813, 409, §9,) and in the English statute, citing 1 Russ, on C.; 550: Roscoe Cr. Ev. 653,785,775; Barbour Cr. L. 80,86; Wharton's Am. L. 316; 1 City Hall Rec. 316; 5 id. 73.

      Dwight H. Clarke (Dist. Att’y), for the People,
    insisted that it was sufficient to prove such an intent to kill, that had death ensued, the killing would have come under any of the degrees of felonious homicide. That the change of the word “ murder” to the word “kill” in the statute, showed an intention to extend the application and scope of the statute. That all the decisions cited were made under the statute before its alteration, and where an intent to murder was in terms required to convict, that there were some cases in which an intent to take life was requisite to convict of manslaughter, though generally it was otherwise.
   The supreme court affirmed the proceedings at the Oyer and Terminer, and remitted the cause that sentence might be pronounced in pursuance of the finding of the jury.


text:
    Columbia Oyer and Terminer.
    January, 1852.

      Before Parker, Justice of the Supreme Court and the Justices of the Sessions.
    The People vs. Charles A. Smith.
    Under a plea of not guilty, a defendant can not avail himself of the fact that he has been indicted by a wrong name.
    Where, in an indictment for burglary, the building charged to have been entered was laid as the shop of William S. Amigh, it was held no variance that the shop was used in the business of one Winters, of whom Amigh was the agent, it appearing that Amigh hired and paid for the shop and that it was under his charge.
    In an indictment for larceny, it is sufficient if the goods stolen are laid as the goods and chattels of the bailee.
    Thus where, in an indictment for burglary and larceny, the property stolen was laid as the goods and chattels of William S. Amigh, and it appeared in evidence that the goods stolen belonged to one Winters, and that Amigh had the lawful custody of them from Winters with authority to sell them and account for the proceeds, it was held no variance.
    The prisoner had been indicted at a previous term of the court for burglary and larceny.
    The first count of the indictment charged as follows: “ The jurors of the people of the state of New York in and for the body of the county of Columbia, on their oath and affirmation present, that on the ninth day of May one thousand eight hundred and fifty, at the city of Hudson, in the county of Columbia aforesaid, Charles A. Smith, late of the city and county of New York, laborer, the shop of one William S. Amigh, in which goods, merchandise and valuable things, viz., segars and boxes were there kept for sale, deposit and use, situate in the city of Hudson aforesaid, feloniously and burglariously did break and enter with intent the goods and chattels of the said William S. Amigh, in the said shop, then and there being, then and there feloniously and burglariously to steal, take and car -y away, and then and there in the said shop ten thousand segars of the value of two hundred dollars and fifty' boxes of the value of five dollars, of the goods and chattels of the said William S.'Amigh, in the said shop then and there being found, then-and there feloniously and burglariously did steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.”
    In the second count, the place alleged to be burglariously entered was called a “ store;” in the third count, a “warehouse,” and in the fourth count, a “ building.”
    ' The prisoner having pleaded not guilty, the cause came on to trial.

      J. C. Newkirk (District Attorney), for the people.

      Theo. Miller, for defendant.

      William H. Amigh, — Testified that he was a segar maker by trade, and in May, 1850, was in the employment of his uncle, William S. Amigh, who had a shop for the manufacture of segars in Cherry Alley, in the city of Hudson. That said shop-was broken into in May, 1850, when William S. Amigh was absent in the city of New York, the shop being left in the charge of the witness. The witness discovered the shop had been entered, when he went to it about six o’clock in the morning; that he found the front door unhooked and unbarred, and on entering discovered a box of segars on the lower floor had been opened and about sixty segars taken out of it; and on going up stairs into the shop and another room kept for storing segars, which were put up in boxes, he discovered that at least fifty or sixty dollars worth had been taken away during the night; that ten or fifteen thousand segars which had been there two or three months were missing; that witness had been in the shop the day before and discovered at once, on entering, that the segars were gone.

      Witness further stated that he did not recollect whether he shut up the shop the night before, but he was generally the person to do it; that sometimes another youpg man working in the shop shut it up at night.
    That about a week afterwards he saw segars that he thought to be the same, from the appearance of the boxes and the trimmings, in a dry goods box marked “ T. Dimmick,” on board the steamboat Columbia, at the dock, in the city of Hudson.

      Christopher Turpin — Testified that he was a tavern keeper at Bristol, á landing place, on theowest side of the Hudson river, and a few miles below Hudson That before sunrise one morning in May, 1850, the prisoner came there in a small boat in company with one or two others and took out of the boat and put on the dock a dry goods box. That the prisoner came to witness’s house near by and asked witness to label the box, that he might send it to New York. That witness furnished prisoner with a card and hammer and small tacks and told him to label it. That prisoner took them and wrote on the card “G. & G. W. Spencer, New York, to be called for.” The card was here presented to and identified by the witness. That the prisoner nailed the card on the dry goods box and requested witness to put the box on board the Catskill boat for New York, if it landed, and if not, on board the Hudson down boat that evening. Prisoner then went away in the small boat. Witness being the same day in Hudson heard of the burglary-committed the night before, and returning as he went on shore put the box on board the steamboat Columbia, Capt. King, with the card on it. That very soon afterwards he telegraphed Capt. King to Newburgh, that he might receive the message before reaching New York. That witness afterwards saw this box in Mr. Amigh’s shop.

      'Capt. King, of the steamboat Columbia, testified to the putting of the dry goods box on board at Bristol, and identified the card shown him as being then on the box. That he read the telegraphic communication at Newburgh, and that oh reaching New York some one (not prisoner) called for the box, bu' he refused to let it go. That he kept the box and brought it back to Hudson and delivered it to Wm. S. Amigh. Was present when it was opened. It contained segars in boxes and candy; that the cover of the box was marked with paint on the inside., '£ T. Dimmick,” which is the name of a merchant tailor in Hudson.

      William■ S. Amtgh — Identified the segars and boxes as being those taken from his shop. That there were about 15,000 se-gars, worth nearly $250. That the segars belonged to Mr. Winters, who lives in Albany. That witness hired the shop and purchased the material "and manufactured the segars in the name of Mr. Winters. That witness sold what segars he manufactured for Mr. Winters. That witness was in the employment of Mr. Winters, and received a salary for his services; that he, witness, had charge of the segars, but had no interest in them; witness was merely agent, and Winters had a right to take the possession of the property at any time. Witness said an axe, buck and saw, in the lower room of the shop, belonged to him.
    The prosecution here rested, and the defence called

      Elizabeth Smith, who testified that she resided in Hudson; that prisoner was her son, and was twenty-one years of age.
    Prisoner’s counsel then offered to prove that prisoner’s name was Alonzo Smith and not Charles A. Smith. This being objected to, was excluded, the court holding that it was too late to set up such a defence after pleading not guilty.

    Some evidence was then given by the witness with a view to show an alibi.

    The prisoner’s counsel then asked the court to decide that there was a variance between the indictment and the proof; that the proof would not sustain the allegation in the indictment that it was the shop of William S. Amigh, nor the allegation that the property stolen was the goods and chattels of William S. Amigh.
    The district attorney contended that the proof was sufficient, citing Wharton's Am. Cr. Law-, 362, 404, ani cases therein referred, to; Arch. Cr. PI. 212; Reg v. Bird, Car. ¿f Payne, 44.
   The court decided that there was no variance; that if the shop was in the custody and charge of Amigh, it was sufficient to support the allegation in the indictment; that it appeared the shop was hired and paid for by Amigh and in his charge.

As to the segars and segar boxes, the court decided that it was sufficient to support the indictment that Amigh had the lawful custody of them and authority to sell them and account for them to Winters; that it was sufficient if goods stolen were laid as the property of the bailee.

The jury found the prisoner guilty of grand larceny, and he was sentenced to imprisonment in the state prison at Sing Sing, for the term of two years and three months.


author: Johnson, Justice,

text:
    Columbia Oyer and Terminer.
    September, 1851.
    Before Johnson, Justice of the Supreme Court and the Justices of the Sessions.
    The People vs. Alger.
    To an indictment for the seduction of an unmarried female, under the act of t848, the defendant interposed a special plea, alleging that at the time of the committing the acts charged, the defendant was, and for five years previous thereto had been, a married man. having a living wife and family, with which wife and family he was then living, all of which at the time of the alleged promise and seduction was well known to the said female; on demurrer to such special plea, the facts thus set up were held to constitute a good defence to the prosecution, and judgment was given for ihe defendant.
    The defendant was indicted for the seduction of an unmarried female, under the act of 1848, entitled “ An act to punish seduction as a crime.”
    The indictment contained three counts. The first count charged that the defendant under promise of marriage seduced and had illicit intercourse with the female, she being unmarried and of previously chaste character, following the language • of the act, without setting out the promise or averring any mutual promise on her part. The second count alleged that the defendant promised to marry the femaíef §nd under such promise of marriage seduced, &c., as>»-4he first 'count without alleging any mutual promise on her part. The third couni was substantially like the first. The defendant pleaded not guilty and also a special plea, which alleged that at the time of com mitting the acts cnarged in ihe indictment, he was, and for five years previous thereto had been a married man, having a living wife and family, with which wife and family he was then living, all of which at the time of the alleged promise and seduction was well known to the said female. To this special plea a demurrer was interposed. By request of the defendant’s counsel and with the consent of the counsel for the people, the defendant’s plea of not guilty was stricken out, and the case was argued upon the demurrer to the special plea.

      J. Gaul, Jr., and

      H. Hogeboom, for the people.

      E. P. Cowles, and

      D. I), Field, for defendant
   Johnson, Justice,

delivered the opinion of the court.

The special plea admits the matters alleged in the indictment to be true, as the demurrer does those set up in the special plea.

If the indictment can strictly be regarded as setting out the existence of any promise of marriage as a matter of fact, it anust be held to import an absolute unconditional one, as con-tradistinguished from a promise depending upon some condition or contingency.

The case presented by the pleadings therefore, is that of a married man cohabiting with a lawful wife, promising unquali-fiedly and unconditionally to marry an unmarried female, she knowing and understanding his situation, and under such a promise, seducing and having illicit intercourse with her

Is this the kind of promise of marriage contemplated by the act for the punishment of seduction as a crime?

However criminal and offensive the act may be in the light of religion and morality it is the statute alone which gives it a criminal character in the eye of the law. It is to be observed that the act is not, as its title might seem to import, an act to punish seduction generally as a crime, but only when it is accomplished under certain circumstances, when the parties stand in a particular relation to each other.

Three facts must concur to render the seduction a crime under the act.

The female must be unmarried, she must be, or must at all times previously have been of chaste character, and there must be a subsisting promise of marriage.

If all these concur, then the seduction, by whatever means accomplished, is a crime and punishable as such, but in no other case and under no other circumstances. It is not necessary that the promise of marriage should be made or used as the inducement to the consent of the female, it is enough if the parties are under promise.

The framers of the act seem to -have, assumed that under such circumstances, the consent of the female might be much more readily obtained. That she confiding in the promise of future marriage, and relying upon it, would be more liable to yield to the solicitations and temptations of the man under this obligation to her, than otherwise. Hence the statute was confined to this particular class of cases. It was to protect females really standing in such a relation to a man, and confiding in his promise, from the employment of seductive arts against them by the man, and to punish him who, under such circumstances, should be guilty of violating and betraying and disappointing that confidence to the disgrace and ruin of the female, and the injury and scandal of society, that the statute was chiefly enacted.

But must the promise of marriage be mutual to bring the case within the statute! It is clear that to constitute any valid promise of marriage the promises must be mutual. Unless the obligation be reciprocal it is a nullity. It is contended by the counsel for the people, that the statute does not require this, ¡hat if the man is under promise to the female it is immaterial whether she has ever consented or .ever expects to marry him or not. The statute, it is true, taken literally, is broad enough to admit of this interpretation. ■ And it might be carried still farther. Because, taken literally, it is not necessary that the man should be under promise of marriage to the woman he seduces. According to this, every man who was under promise of marriage to any woman, if he should seduce any unmarried female would fall within the act. But this obviously is not the spirit and meaning of the statute, ft must have a reasonable construction, so as to meet the mischief it was intended to remedy, if susceptible of it. The promise must not only be to the female seduced, hut there must be a corresponding one from her. Until the obligation is mutual, his declaration that he would marry the female, or was willing to marry her, is a mere declaration, or offer, and no promise, in any legal sense.

The statute is to be taken as intending a promise in its legal signification, and not a mere declaration or offer by way of temptation or allurem'ent. This is apparent from the language employed “ under promise of marriage.” That is, after having entered into and while under the engagement to marry.

Again, must it be a promise of a lawful marriage to bring the case within the actl It is contended on behalf of the people that this is not necessary. It may he that in a case where a married man, represented himself to the female as unmarried, and under such circumstances under promise of marriage should seduce her, the case would come within the act, although the marriage, should it be consummated, would be void. I have no doubt that it would, if the female was ignorant of the fact of his marriage and was under a mutual engagement to him. Even a marriage under such circumstances, although it would be void, would not be criminal on her part.

But take the promise presented by the pleadings, an agreement between a married man and an unmarried female to marry forthwith, at any time, without reference to the present marriage of the man, she knowing him to be at the same time lawfully married. Is this the kind of promise the legislature had in view? It can not be. It was an undertaking which if carried out would subject both parties to punishment in the state prison. The law, instead of upholding it as a marriage, would treat it as an infamous crime. To call such an engagement a promise of marriage would be a flagrant perversion of all legal sense and reasoning.

The promise I apprehend required by the act, if it be not a promise of a marriage in all respects legal and valid, when it shall be consummated according to the intention, must at least be such a promise as the law would presume the female, from I he facts within her knowledge, to regard, and rely upon, as a valid marriage. Females as well as males are presumed to know the law.

It is therefore impossible to hold or to admit from the facts here presented, that this female regarded this as any promise of marriage, or could have relied upon it as such. The law presumes that every person intends the necessary and natural consequences of his or her acts and agreements.

But it is urged that this may have been a conditional promise on the part of the defendant to marry the female seduced, when he should obtain a divorce or upon the death of his wife. That such a promise would be void as against public policy I have no doubt whatever.

But it is sufficient for the purposes of this case to remark that no such question arises here. No such promise could be proved under this indictment. The promise set out is absolute and unqualified.

The facts therefore set up in the special plea, and which are admitted by the demurrer to be true in my judgment take the seduction entirely out of the statute, however much they may deepen the shades of its moral turpitude. It is not a question whether such an offence as here stands confessed ought to be punishable by law, but whether the legislature in the act before us made it so. Courts are to expound and administer and not make laws. I am inclined to the opinion that a mutual promise of marriage should be alleged in the indictment, and that it should be substantially set out, so that the court can see that it is a valid promise. The promise of marriage is somewhat in the nature of a condition precedent to the existence of the offence.. It is clearly matter of substance. I have preierred, however, placing the decision in this'case upon the interpretation of the statute rather than the construction of the pleadings.

And I am clearly of opinion upon the substantial facts ■admitted that no offence under the act has been committed by the defendant.

Judgment for the defendant on the demurrer.


author: Marvin, Presiding Justice

text:
    Allegany Oyer and Terminer.
    April, 1852.
    Before Marvin, Justice of the Supreme Court, and (he Justices of the Sessions.
    The People vs. Albert Warren.
    Atrial and acquittal, on an indictment, charging the defendant with having mixed arsenic with flour, and with having caused it to be administered to one Louisa Loveland, with intent to kill and slay her, are no bar to a subsequent • indictment, charging the same defendant with the same act in mixing the arsenic, and causing it to be administered to one William P. Loveland, with intent to kill and slay him.
    The indictment charged the mixing of poison, arsenic, with flour and causing and procuring it to be administered to one William P. Loveland, with intent to kill and slay him. It contained several counts.
    The defendant pleaded in bar that he was arraigned and tried in August, 1851,.upon another indictment charging him with the same identical acts, that is, the mixing the poison with the flour, and causing and procuring it to be administered to one Louisa Loveland, with intent to kill and slay her, and that upon such trial he was acquitted. The people demurred to the plea.

      A. L. Davison (Dist. Att’y), for the.People.

      Hawley fy Grover, for defendant
   Marvin, Presiding Justice

The demurrer is well taken. The former trial and acquittal are not a bar to the present indictment. The two indictments are not for the same identical act and crime. (4 Black. Com. 346; 1 Russ, on Cr. 82.9, 836.) The act of mixing the poison with the flour, and furnishing it to the persons who subsequently used it and partook of it, is the same act of the defendant in the present as in the former case, and if we assume that the defendant by the same single act administered or caused and procured the poison to be administered to the two persons, the intent charged in the present case is not the same intent charged in the former indictment; there it was to kill Louisa, here to kill William.

The intent in these cases is the material constituent of the crime. Though the acts may have been the same, the crimes, as charaterized by the intent, are different.

Upon the trial of the former indictment, the defendant could not have been convicted of the crime charged in the present indictment, though the jury should have been satisfied that the defendant administered the poison with intent to kill William P. Loveland, and that is the test whether a former acquittal or conviction is a bar. (Rex v. Vandercomb, 2 Leach, 708; cited in 1 Russ, on Cr. 831; Arch. Cr. Plea. 87; 1 Ch. Cr. L. 452; Commonwealth v. Raby, 12 Pick. 496.)

The plea is overruled.

Note. — See Burns et al v. The People, page 182.


author: Harris, J. —

text:
    Supreme Court. Albany General Term,
    May, 1852

      Hm-tis, Parker and Wright, 'Justices.
    The People vs. Charles Quin.
    In charging a jury, an expression of opinion by the judge as to the effect of the evidence, leaving the jury to decide the question notwithstanding such expression does not furnish a valid ground of exception: aliter, if the language, which is the subject of exception, amounts to an instruction as to the law applicable to the evidence in the case
    Where the question, on the trial, was whether the prisoner was guilty of murder or manslaughter, and the presiding judge, in his charge to the jury, after commenting on the evidence for the prosecution, said, u Now, gentlemen, if you believe this evidence, and believe that the crime was committed by the defendant, under the circumstances as given to you by these witnesses, I see no groundto warrant you in finding the defendant guilty of manslaughter, but in my judgment he is then guilty of murder,” it was held to amount to an instruction upon a conclusion of law: and the case properly presenting questions of fact to be passed upon by the jury, vi¿., whether the killing was by “premeditated design to effect death,” or in the “heat of passion,” #c., the charge was held to be erroneous and a new trial was awarded.
    Indictment for the murder of Michael Gleason. The defendant having pleaded not guilty, the trial was held at the Rens-selaer Oyer and Terminer, in November, 1851, before Mr. Justice Watson and his associates. The alleged crime was committed at the house of Harry Thompson, in the city of Troy, on the night of the 9th of January, 1851. There was a dance there that night, at which Gleason and the defendant were present. During the evening they had a dispute in relation to a tobacco box, which the defendant alleged he had lost.

      Michael McDermott, a witness for the prosecution,
    testified that Gleason as'ked the defendant if he said he had stolen his tobacco box; that defendant said no; he did not know that he had taken it in particular, hut he had lost it in the house, and still he might be mistaken and have left it home in his overcoat pocket; that Gleason said if he told him he took it he would go out doors and fight him for it; that defendant said he would not do it, as Gleason was too big a man for him, and then somebody interfered. This took place in the dancing room, and soon after one Cushing asked Gleason to go with him tc the bar in an adjoining room and drink with him. McDermott further testified, that they had been in the bar room two or three minutes, when defendant'told him he was going to get a slice of lemon; that soon after he heard a scuffle in the bar room and then saw the defendant and Gleason come into the dancing room; Gleason shoved in the defendant; that Gleason had his arms around him and shoved him to about the middle of the floor and then fell, Gleason on the top; that they lay there a short time and were then separated. About the time they fell some one remarked that defendant had a knife, and Gleason said, “ let him alone, I can lick him, knife and all.” The witness further testified, that the defendant, after the knife had been taken from him, said to William Hunter that “ he would take that man’s life for mere nothing; that revenge was sweet, and he had got it and was satisfied.

      Paul Kavanagh and William Hunter

    gave substantially the same account of what occurred.

      John Wickes

    testified that he was tending bar at the time; that Gleason came in and asked the defendant if he had said that he had stolen his box; that defendant said he did not accuse him of stealing the box; he might have lost it or left it in his overcoat pocket at home; that Gleason said he was no man at all, but a d — d bullhead, and if he thought he had it, he would go out and fight him; that defendant said he was a bigger man than he was, and wanted to know what he wanted to fight him for; that Hunter then jumped up and said, “No fighting, boys,” and took Gleason out into the dancing room; that shortly after defendant followed; that they were out a few minutes, when Cushing called Gleason in to drink; they were just going to drink, when defendant came in; that he, the witness, was just cutting a lemon, and defendant said, “ Jack, give me the knife; I want a slice of lemon.” That he drew the knife through his hand and came to Gleason and said, “ You son of a bitch, I’ve got you now;” that he caught him by the coat collar and jabbed the knife into him; that defendant held the knife in his right hand, and as he was drawing it back to make another stab the witness caught it; that Gleason then rushed him out into the other room.
    Several witnesses were examined on behalf of the prosecution, but their testimony did hot materially vary the case as above stated. It appeared from the testimony that the parties 1 ad been drinking freely that night, and that the affray occurred about two o’clock at night. Gleason died of the wound he received about eight days after. The presiding judge, in his charge to the jury, stated that the theory of the defence was, that the defendant, if guilty at all, was only guilty of manslaughter. That the theory of the prosecution was, that the defendant was guilty of premeditated murder, and after commenting upon the evidence relied upon by the prosecution to sustain their theory, he added: “ Now, gentlemen, if you believe this evidence, and believe that the crime was committed by the defendant, under the circumstances as given to you by these witnesses, I then see no ground to warrant you in finding the defendant guilty of manslaughter, but, in my judgment, he is then guilty of murder.” To this part of the charge the counsel for the defendant excepted. The jury found the defendant guilty of murder. A bill of exceptions having been made and settled, the proceedings were removed into this court by a writ of error.

      R. W. Peckham, for the people.

      J: Pierson, for the defendant.
   By the Court,

Harris, J. —

The question which the learned judge who presided at the trial was presenting to the jury at the time he used the language upon which the counsel for the defendant relies to sustain his allegation of error, was whether the defendant, if guilty at all, was guilty of murder or manslaughter. If, in submitting that question for the decision of the jury, he had taken occasion to express his own opinion, as to the effect of the evidence, leaving them to decide the question, notwithstanding such expression, it would not have furnished a valid ground of exception. Upon a motion for a new trial upon a case it might be otherwise, but such an expression of opinion does not of itself constitute error. It becomes important, therefore, to determine whether the language which is the subject of this exception amounted to an instruction, as to the law applicable to the evidence in the case, or was a mere declaration of the opinion of the judge upon the evidence. .On behalf of the defendant it had been insisted that the'evidence warranted the jury in convicting him of manslaughter only, while, on the other hand, the counsel for the prosecution had insisted that the evidence required a conviction for murder. In respect to these opposing “theories,” the learned judge, having very properly submitted it to the jury to determine whether the evidence as detailed by the witnesses for the prosecution was to be credited, proceeded to say that, if they should believe that evidence, he could see no ground left which would warrant them in finding the defendant guilty of manslaughter, but, on the other hand, the circumstances of the case, if believed, established a case of murder. It may not have been intended that the jury should understand that they had no right to convict the defendant of manslaughter. But I think the language may well be so construed. Indeed, I think it most likely that the jury understand from the charge that, if they would decide according to the law applicable to the case, they must either convict the defendant of murder or wholly acquit him. The language is emphatic and unqualified: “ Under the circumstances as given you by the witnesses for the prosecution, I see no ground to warrant you in finding the defendant guilty of manslaughter.” Upon such a charge, the. jury may well have supposed that a verdict of manslaughter would have been in violation of law. If the charge was such that it might be so understood, I think it was erroneous. The evidence on the part of the prosecution was such as would, undoubtedly, have warranted a conviction for murder. The jury might well have' come to the conclusion that the fatal blow was given with a premeditated design to effect death. On the other hand, I am not pi'epared to say .hat the jury might not have been, warranted in finding that the act was committed in the heat of passion. If so, the jury, instead of being told that there was no ground upon which they would be warranted in convicting of manslaughter, should have been instructed as to the distinction between murder and manslaughter, and left to convict the defendant of the one crime or the other, as they should find, from the evidence, that the act was committed with a premeditated design to eifect the death of Gleason, or in the heat of passion.

Regarding that portion.of the charge which has been inserted in the bill of exceptions rather as an instruction upon the law applicable to the facts proved, than an opinion advisory as to the eifect of the evidence, I am inclined to think the charge had the eifect, not intended perhaps, to mislead the jmy, by inducing them to dismiss from their minds the consideration of the question whether their verdict should be murder or manslaughter. For this reason, I am of opinion that the judgment should be reversed and a new trial ordered.

Judgment reversed.


text:
    Steuben Oyer and Terminer.
    May, 1852.
    Before T. R. Strong, Justice of the Supreme Court, and the Justices of the Sessions.
    The People vs. James Harriden.
    On the trial of an indictment for incest, charged to have been committed by a father with his daughter, the declarations of the defendant are competent evidence upon the question of consanguinity.
    The statute in such case is only applicable to cases in which the sexual intercourse is by mutual consent. Where it is accomplished by force it is punishable only as rape.
    This was an indictment for incest with a daughter of the defendant, founded upon the statute 2 R. S. 688, § 12, which provides that “Persons being within the degrees of consanguinity within which marriages are declared'by law to be incestuous and void, who shall intermarry with each otherj or who shall commit adultery or fornication with each other, shall, upon conviction, be punished by imprisonment in a state prison for a term not exceeding ten years.” The alleged daughter testified that she was 18 years of age, that the defendant and her mother had from the earliest recollection of the witness lived and cohabited together as husband and wife; that they had ten children; and that the defendant had always recognized the witness as his daughter; and she had recognized him as her father. She further testified that the defendant had sexual intercourse with her at several different times;' and her testimony tended to prove that the connections were without her consent, and forcible on the part of the defendant. An elder sister testified that the defendant and her mother had lived together as husband and wife as long as she could recollect, and that the defendant had called the principal witness his child. Similar declarations of the defendant were proved by other witnesses. All the testimony, in regard to the relationship, was received under objection to its competency.

      George T. Spencer, for the defendant presented two points.
    1st. That it was not proved the defendant was the father of the witness who was alleged to be his daughter; that evidence of a marriage in fact between the defendant and the mother, as in case of an indictment for bigamy, was necessary in order to establish the relationship. 2d. That if any offence was proved, it was not incest but rape.

      R. L. Brundage (Dist. Att’y), and

      Wm. Irvine, for the people.
   The court decided that the acts and declarations of the defendant were competent evidence upon the question whether the defendant was the father of the witness, with whom it was alleged the offence was committed, but that it belonged to the jury to judge as to the weight due to the evidence; and that they must be satisfied by it the defendant was her father, or they would not be warranted in finding him guilty. See 2 R. S. 139, orig. §3, declaring marriages between such relations as are therein named incestuous and' absolutely void, and that the section “ shall extend to illegitimate as well as legitimate children and relations,” also Regina v. St. Giles in the Fields, 11 Adolphus & Ellis, N. S. 173, 191, 203, 244; 2 Kent’s Com. 4th ed. 214. But if proof of marriage between the defendant and his reputed wife was necessary, whether under our law allowing marriage to be contracted by a present agreement between parties without any formal ceremony the rule which has prevailed in prosecution for bigamy, and a few other cases, requiring direct evidence of the marriage ought to be extended or longer adhered to. (See Clayton v. Wardell, 4 Comstock, 230 and opinions there given.)

In respect to the other point raised, the court decided that the statute, upon which the indictment was founded, applied only to cases where the connection was by mutual consent; and that if the connections between the defendant and his daughter were accomplished by force used by the defendant, to such an extent as to render him guilty of rape, the charge of incest was not sustained. That the offence of rape was of a higher nature, for the punishment of which ample provision had been made; and that the statute in relation to the punishment of the incest was designed to embrace only cases of sexual intercourse between relations within the degrees referred to in it, not coming within the statute in respect to the crime of rape.

The jury rendered a verdict of guilty.

       See The People v. Gahagan, infra.


author: Mitchell, J. —

text:
    Supreme Court New York General Term,
    May, 1852.

      Edwards, Mitchell and Roosevelt, Justices,
    James Sullivan pl’ff in error vs. The People def’ts in error. Joseph Clark pl’ff in error vs. The People def’ts in error.
    Under the Revised Statutes of New York, declaring the killing of a human being to be'murder, when done from a premeditated design” to effect the death of the person killed, it is erroneous to charge the jury, that the act would be murder, if the intent to kill was formed at the instant of striking the fatal blow,

    Premeditation, as well as design, is now a necessary ingredient in making out the crime of murder, under the first clause of the section of the statute defining that offence.
    What are proper considerations on an application for an allowance of a writ of error and a stay of proceedings, in a capital case, by Edmonds, J.
    These cases came before the court on writs of error from the New York Oyer and Terminer, where there had been convictions for murder in both cases, Justice Edmonds presiding. The facts are sufficiently stated in the opinion of the court, to present the questions of law decided. After the convictions in the Oyer fand Terminer, the counsel for the prisoners made application to Justice Edmonds, for a stay of proceedings and an allowance of writs of.error, and on the l9th November, 1851, Justice Edmonds granted the application and delivered the following opinion:
    “ Upon the bill of exceptions in these cases presented to me this day, I am asked to allow writs of error with a stay of proceedings upon the execution of the sentences pronounced.
    The question raised by the bills of exception is a grave one It involves a construction of the revised statutes, and has never been authoritatively adjudged by our highest courts.
    It is this: whether the intention to kill, which forms an element of the crime of murder under our revised statutes, must be a design, previously formed, or whether it is enough that it be formed on the instant the homicide is perpetrated1?

      The revised statutes made very important alterations in the preexisting law of homicide.
    Before their enactment, a class of cases were held to be murder where there was manifestly no design to kill; like the case of the schoolmaster, who whipped his pupil so that he died, or that of the chimney sweeper, who, in extricating his boy from a chimney, did it so cruelly as to cause his death. The law implied malice aforethought, or an intent to kill.
    On the other hand, there was a class of cases, where, though there was an intent to kill, it was held not to be murder, but manslaughter — such as sudden affrays, in the heat of passion, and on sufficient provocation.
    The revised statutes adopted an intention to kill, as the chief line of demarkation between murder and manslaughter, and the first class of cases I have mentioned, where there is no intention to kill, have been regarded as mitigated to manslaughter, and the last class of cases as aggravated to murder.
    In the case of The People v. Austin, I held, in a carefully considered opinion, that in all cases (except one class which is not involved in these cases and was not in that), there must be an intention to kill to constitute the crime of murder, and that where there was such an intention, whether formed on the instant or previously entertained, it was murder. I so charged the juries in the cases now under consideration.
    If I had any doubt upon the question, I would have reserved it for the consideration of my brethren; but I had none, because I could find in the statutes no resting place for the killing of a human being, with an intention to kill, even though on a sudden impulse, except under the definition of murder. The counsel for the prisoners, who was assigned as such by the court, and who has himself occupied a prominent position in the administration of criminal justice, entertains doubts of the correctness of my ruling, and desires to obtain the decision of the higher courts.
    In order to do that now, the execution of the sentence must be stayed. I ought' not to refuse it unless I am disposed to give my decisions a finality and an authority that does not properly belong to them. If either the Supreme Court in bank, or the Court of Appeals, should differ with me in opinion, the consequences would be irremediable.
    As, then, the question involved is a very grave one, and has never yet been passed upon by either of those courts, or by any tribunal, higher than the Oyer and Terminer, and as it is raised very fairly and definitely in these cases, it seems to be one that ought to be definitely settled, and by the highest ■ authority in the state.
    The same question which was argued before the court at its last term, in the case of Carnal, is now under advisement, and will soon be determined.
    These considerations have moved me to allow the writs of error, and to order the proceedings to be stayed until decision thereon.”
    In the first case,

      R. H. Morris, for defendant.
    JV. B. Blunt (Dist. Att’y), for the people.
    In the second case,

      John McKeon, and

      R. H. Morris, for defendant.
    JV. B. Blunt (Dist. Att’y), for the people.

       Sed vide 3 Selden R. 385.

   Mitchell, J. —

In each of these cases the plaintiff in erioi was indicted for murder, tried, and found guilty. In each case the judge, at the Oyer and Terminer, charged the jury that, if they believed that the killing was produced by the prisonei, with an intention to kill, though that intention was formed at the instant of striking the fatal blow, it was murder. To this charge there was an exception, as well as to the other parts of the charge; and the question has been very fully and ably argued, whether an intention to kill formed at the instant of striking the fatal blow, is a premeditated design to kill, within the meaning of the revised statutes. The revised statutes declare the killing of a human being to be murder (except in certain cases, not necessary here to notice), first, when it is perpetrated from a premeditated design to effect ’the death of the person killed, or of any human being (2 R. S. 657, sec. 5); secondly, when it is perpetrated by an act imminently dangerous to others, and evincing a depraved mind-, regardless of human life, although without any such design against any particular individual; and thirdly, when it is perpetrated by one ■engaged in the commission of a felony, although 'without any design to effect death. The revisers say in their note to this section, that the great principle on which it rests is, that, to constitute murder, there should be an express design to take life (which seems to be the first case provided for), or such circumstances as to induce a very strong presumption of such design, or such facts occurring in a transaction as would ordinarily lead to the result of taking life. The two last cases, no doubt, were provided for in the second and third subdivisions. They add that this section conforms substantially to the law of Pennsylvania. They also state that there was nothing so much wanted in the criminal law as a settled line of distinction between murder and manslaughter, which were then so nearly connected, and ran into each other so much, that a lamentable uncertainty prevailed, which operated as well to screen the guilty as to expose the innocent; and that the first step to such a distinction is the definition of murder. It is evident, therefore, that it was their intention to use language which should be so clear -as to remove this uncertainty, and to make it unnecessary to examine the former adjudications on the subject. For, if the former law was to be retained, and the former decisions resorted to as authority as to what the present law should be, all the old uncertainty must still remain. The same motives must have influenced the legislature, for this uncertainly was but faintly portrayed by the revisers, as any one will experience, who will attempt to reconcile the old decisions; and ihere was no subject which needed revision more, both on that account and on account of its vast importance. The revi» sers accordingly abandoned the technical phrase which was appropriated to the description of the motive of the murderer — malice aforethought — and which had, in process of time, acquired a 'legal meaning, different from its primitive meaning, and substituted the untechnical words, “ premeditated design,” that a law in which the whole state and every individual in the state may be concerned, might be understood by each, in the sense which every man, professional or not, would, on the first impression, believe it was intended to have. Does the expression “ premeditated design,” admit of the meaning given to it by the Oyer and Terminer 1 Without relying on the definitions of lexicographers, we may safely resort to the illustrations which they have given of the use of words. None of them give a single illustration of the word to meditate in which the idea of a considerable space of time is not contained as intervening during the operation of the mind. The word meditate comes to us from the Latin, and perhaps through the French. Ainsworth has collected instances of its use in those Latin authors whose works form the foundation of our education. They are, to forecast; to meditate or study how to plead a cause, or how to speak; meditate going into exile, or a flight, or snares or deceit against another, or punishment against a brother, or an armed expedition into India. The illustrations in the dictionary of the French Academy are — to meditate a truth; an idea; rules of eloquence; an enterprise; a project; the ruin of another; a good or bad action; or to retreat from the world; and they say proverbially, a man of ready wit comes sometimes to as happy results as if he had meditated,’7 making a complete contrast between meditation and the hasty thought which in the same instant is followed by action. Their definition of meditation makes the contrast still greater. It is an operation of the mind, which applies itself to reach the depths of any subject or matter.” The mind which seeks to reach the depths of any subject that is worthy of reflection, must be long occupied before its wishes can be gratified. Can one be said to meditate the banishment of another, or snares, or deceit, or the punishment of another, or his own flight, or the invasion of a foreign country, if he does not allow a considerable interval to elapse between the first formation of the design and its execution'? Csesar said of one of his conquests, veni, vidi, vici; and all understand it as a proud boast, that as soon as he reached and saw the enemy’s country he conquered it. How completely would he have reversed this meaning if he had said — “ On my arrival I meditated on my design, and accomplished it.” The admission that he had meditated would have showed that there were difficulties which delayed him and required some management before they could be accomplished. So, to turn to the French illustration, can one be said to have meditated on an idea, on an enterprise, a project, the ruin of another, or a good or bad action, who performed the action at the very moment the thought was formed'? So, when “ meditations on death” are spoken of, do men mean the thoughts of a moment, or the calm, deliberate reflections which may have exercised the mind for hours or years, or even the most of one’s life'? The only illustrations given by Webster, correspond with these One is from Washington, who says, “ I meditate to pass the remainder of my life in a state of undisturbed repose;” and the other from the book which is in every body’s hands or hearing, and is one of the best sources of pure English — “ His delight is in the law of the Lord, and in his law doth he meditate day and night.” (Psalm I.) These quotations show the general and popular understanding of the word, and that is the legislative understanding, where technical words are not used, or words relating to a trade or art Bat here the legislature has used a still stronger word, viz.: “ premeditated design.” There must be, therefore, not only the design to kill, but that design must have been the subject of meditation, or reflection before, as the prefix pre clearly requires. Before what is this premeditated design of killing to be, except before the act that was meditated, viz., the fatal blow by which the killing was accomplished. The very requirement that the design shall be thought of and meditated before the act shall be committed which is the cause of death, admits that there is an interval between the design or intention and the commission of the act. We have no right to strike out so material a part of the word as this, which gives peculiar force to the ordinary meaning of the rest of the word. This interpretation of the word also corresponds with the expressed views of the revisers, which seem to have been to confine this part of the definition of murder to what was frequently called cases of express malice, which is thus defined by Blackstone:— “Express malice is, when one with a sedate, deliberate mind and formed design, doth kill another, which formed design is evidenced by external circumstances, discovering that inward intention, as laying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.” (4 Bl. Com. 199.) These external circumstances are all of a nature which show a design formed before the moment when the crime was perpetrated; and the sedate, deliberate mind and formed design are descriptive only of a mind deliberating on and then sedately carrying out its design. In Tennessee, the term premeditated is one of those used to define murder in the first degree, and in 10 Yerger, 551, Dale’s case, the court said premeditation was a “ design to kill, formed before the act.” In Davis’s case (2 Humphrey, 439, 442), they say that the employment of a deadly weapon, although it implies malice at the common law, does not imply that the act was done with premeditation, so as to make it murder in the first degree. In Virginia, in Jones’s case (2 Leigh’s Va. Rep. 598, p. 611), the court say that the death must be the ultimate result, which the concurring will, deliberation, and premeditation of the party accused sought. In an early case in Pennsylvania (4 Dallas, 145, Mulatto Bob), the court instructed the jury that the offence was willful, deliberate, and premeditated (this would seem to have been a clear usurpation of the province of the jury), the judge then admitted that the statute made premeditation an essential ingredient to constitute the crime, yet added that still the intention remains as much as ever the true criterion of the crime. This, in some sense, is true. The intention is one of the true criteria of the crime; but, as the judge admitted, and every one else must ¿dmit, it is not the only true criterion, for then the intention to kill being established, the jury are to inquire no further, and all intentional killing is murder, though committed in self defence or against a burglar in the act of breaking into one’s dwelling house, or in the heat of passion in a combat provoked by the deceased, without any undue advantage being taken, or any dangerous weapon being used, and under the honest, though erroneous belief, that it was the only means of saving the life of the accused. In Ohio (12 Ohio Rep., 52), Shoemaker’s case, the court held that if the accused premeditated the fatal act, he was guilty of murder in the first degree, however short the time might have been between the purpose and its execution;” that it mattered not how short the time, if the party had turned it over in his mind, weighed, and deliberated upon it; but it was conceded that the offence was not committed when the design was so hastily formed or premeditated and executed that time did not intervene for deliberation. In 2 Tenn. Rep. 8, Anderson’s case, the court say: — “ The law knows of no specific term within which an intent to kill must be formed so as to make it murder. If the will accompany the act a moment antecedent to the act itself which causes death, it seems to be as completely sufficient to make the offence, murder, as if it were a day, or any other time.” Whether the rule thus laid down is not too harsh to be consistent with the term premeditated, is not now before the court; but the principle is clearly admitted by it that some period must intervene between the intent and the act. In our own state, in The People v. Enoch (13 Wend. 159), the meaning of the first subdivision of this section of our revised statutes was incidentally passed upon, and Chief 'Justice Nelson considered it as confined to express malice, or “ malice aforethought, according to its sense in common parlance, and as originally used.” (Id. p. 164.) The chancellor also said that “ the meaning of the term malice aforethought had been enlarged so as to include implied malice by judicial construction. (P. 164.) In White’s case, senators Furman, Verplanck, and Wager, concurred in the view that the words premeditated „ design,” as used by the statute, limit the signification of malice aforethought to express malice. (24 Wend. 558, 569, 581.) There are some cases at Oyer and Terminer, in which the rule adopted in the court below was laid down; in one the party was acquitted, perhaps on account of the jury seeing no alternative between an absolute acquittal and the punishment less than death, which the party may have deserved. But the rule has never, it is believed, received the sanction of the court after an argument at a general term or in bench. It does not correspond with the spirit of the day, actuating not classes only, but all parties, which is that the penalties of the law should be mitigated; and that by this means the object of the law in securing a certainty of conviction where guilt is proved, may be more effectually accomplished. It was argued that the words used by the judge in his charge were “ intention (not design) to kill formed at the instant of striking the blow;” and that intention always implied, and was the result of premeditation. The court below would be unwilling to adopt this argument, or to allow a jury to be as much misled as they would have been by this charge, if such a meaning were intended. That court have themselves defined the word by their own use of it.. They speak of the intention, and say it is enough, “ though formed at the instant of striking the fatal blow.” The intention, therefore, that they spoke of was such as could be formed “ at the instant,” and needed no premeditation. This part of the charge was material to the case; and although in the case of Clark there are circumstances from which the question may- be raised whether it ought not to be left to a jury to say whether he was not guilty under the second subdivision of the section, still, that was a matter not left to them, and which this court ought not to take from them, so far as the intent of the accused is concerned, and probably in other respects, and is a question which the court do not wish to pass upon. A new trial should be granted before the court of Oyer and Terminer in both cases.

In the case of Clark, the following opinion was pronounced by Roosevf.lt, J. The prisoner, Joseph Clark, was convicted at a court of Oyer and Terminer, held in September last, of the crime of murder, and sentenced to be executed in November following. ■ A stay of proceedings having been obtained for the purpose, his case is now brought before the supreme court for review on certain points of law raised at the trial, and which his counsel insist were erroneously decided against him. J>t appears from the bill of exceptions which it should be borne in mind does not bring up all the facts, that some time in July last, about an hour after midnight, some seven or eight persons, including the prisoner and one John D. Brown, were together in Oliver street; that there were a great noise and indications of a fight between two sailors, one having taken off his coat, that two police officers, Sullivan and the deceased, hearing the noise, came up and requested the persons to disperse, which they did, leaving Brown and the prisoner, however, whose lodgings were immediately opposite to the scene of disturbance, remaining; these two also were then requested by the officers to go home, which it is contended they were not bound to do. They did not refuse; but Brown hesitating, deceased took hold of him gently by the arm, to lead him to his boarding house— an act for which it is also contended the policeman had no authority. At all events, Brown resented it, and clenched the deceased, when Sullivan interfered and separated them. After going a few steps further, another clenching and separation took place. Deceased continued to urge Brown along, and at length got him, according to the testimony, as far as the alley way to the house in which he boarded, when a third clenching took place, Brown trying to throw tlm deceased. Sullivan again interfered, and in the scuffle struck Brown with his club. The prisoner now procured a caft rung, and came to the defence of his friend, striking the deceased a violent blow on the head, and repeating the blows three times after he had fallen. He then went into his lodgings. Deceased was removed to the hospital, where he died the same night. The conduct of the deceased policeman, it is in testimony, -was mild and forbearing, and there is no conceivable motive for prisoner’s assault upon him, unless it be the one intimated by him immediately after reaching his lodgings — that seeing two officers beating a sailor, he knocked one of them down.” On the trial the de-fence rested mainly on two points: first, that there was no premeditation; and secondly, that the act, although unjustifiably severe, was defensive; and that, in either view, the case was one of manslaughter, and not murder. The court, among other things^ charged the jury that, under the evidence in the cause, there was no sufficient excuse shown for the violent interference of the prisoner; that the mere fact of Brown and the policeman Sullivan being engaged in the alleged quarrel, shown by the evidence, was not sufficient to justify the assaults upon Gillespie; and that, so far as deceased was concerned, it did not appear that he had given offence to any one. The court further charged, that if the jury believed that the killing ■was produced by the prisoner, with an intention to kill, though that intention was formed at the instant of striking the fatal blow, it was murder; and that the jury might infer such intention from the circumstance of the case, and among other things, from the nature of the weapon, and the wounds given by it. The first part of this charge, upon a more deliberate review, can hardly be said to do full justice to the position of the parties. It assumes that Brown and the policeman, Sullivan, were alone engaged in the quarrel; whereas the proof shows that the deceased, from the kindest motives, no doubt, was the first to lay hands upon Brown, gently, it is true, but still, as the resentment of the latter shows, offensively. Sullivan and the deceased clearly co-operated; and although Sullivan alone used the club, both in judgment of law, were responsible for that act, lawful or unlawful. Had death ensued to Brown, both must have been tried for the homicide; and on such trial, both must have been required to prove that they were engaged in the discharge of a legal duty, and that the act, however deplorable, was necessarily committed, in overcoming actual resistance. Was it, then, the legal duty of the policemen, after the gathering had dispersed and quiet was restored, to compel, by force, the two remaining persons, standing on the sidewalk, in front of their' own homes, to go in, whether willing or unwilling ? If it was not what must have been the result of such trial ! A verdict of manslaughter, in one or other of the four degrees would seem to have been very probable. Brown, however, although thus assaulted and with a dangerous weapon, in point of fact, was not killed but only severely wounded. But did the circumstances furnish no excuse for interference in his favor? Had it been the case of a wife, parent, child, master, mistress, or servant, and there had been reasonable ground to apprehend imminent danger of some great personal injury, the law would have justified interference, even to the point of killing. Although Brown stood in neither of these relations to the prisoner, and may have been, as far as we know, a mere stranger, yet the spirit of the law in some degree at least may be certainly invoked to mitigate what otherwise would seem to be not only an atrocious, but utterly motiveless and inexplicable deed. Next, as to the prisoner’s intention to kill— this clearly could not be inferred from the nature of the weapon alone, unless we go back, and apply the same rule to the use of the club by Sullivan upon the head of Brown. The club and the rung were alike dangerous weapons. Death might result from the use of either. But the prisoner, it is said, after an interval repeated his blows; and so did Sullivan. Admitting, however, that there was no palliation — that there was an actual intention to kill — but that such intention was only formed at the 'instant of striking the fatal blow — was the act manslaughter, calling for incarceration in the state prison, or was it minder, to be expiated only on the gallowrs? The law says that killing without authority, when perpetrated from a premeditated design to effect the death of the person killed, or of any human being is murder. Is then an intention formed on the instant a premeditated design? Consulting merely the popular acceptation of language, or even the dictionaries in general use, we must certainly answer that it is not: So far from being synonymous, these two forms of expression are generally employed to convey directly opposite ideas. All extempore discourse is understood to be the antipode of a premeditated one. The words premditate and design both import forethought, careful reflection, deliberately arranged purpose — ideas all involving, tn their structure, the essential element of time. We may not perhaps be able in every, or in any case, to define the precise number of hours or days; but still there must be time, reasonable time — time for reflection — time to survey the contemplated deed in all its bearings and probable results; and to contrive and arrange, if so decided, the means and method and occasion of its deadly accomplishment. How, then, can it be said, without shocking all our notions of speech, whether common or cultivated, that an intention to kill, formed on the instant of striking the fatal blow, is the same as a premeditated design to commit the crime of murder? The present law of homicide, it must be remembered, is, in this state, a written and a recent code. It was composed by men selected to give utterance to the more humane spirit of the age, and in language adapted, or at least intended to be adapted to the present understanding of those whose conduct it was to regulate. This consideration, therefore, must furnish the rule for its interpretation, and with such rule, or even without it, it seems impossible to believe that the legislature, in treating the subject of homicide, and measuring its criminality and punishment, intended to place sudden impulse upon the same footing as deliberate malice. To do so, instead of softening, would have been to aggravate the harsh features of the common law, and to violate the almost universal sentiment of the community. But, says the district attorney, if the crime of the prisoner (and a great crime it is admitted to be) is not adjudged to be murder, the criminal, contrary to all just notions of the adaptation of punishment, will escape with the otomparatively slight penalty assigned to manslaughter in the fourth degree, not exceeding two years’ confinement in the ^tate prison. If this result were to follow as a necessary consequence of a reversal of the judgment of the court below, it would afford no reason for hanging the offender. It would merely show that in framing a system of written law, an oversight not very uncommon in such cases had occurred, to be remedied, not by the judiciary, but by the legislature. If, however, the meaning above ascribed to the word “ design,” as used in the statute, be the true one — if it imply forethought; contrivance, laying in wait, deliberate purpose — then there is no difficulty, should the case call for such a verdict, in bringing it under the head of manslaughter in the. first or second degree, and applying to the crime such punishment, extending even to imprisonment for life, as may be justly adapted to whatever circumstances of aggravation may, have attended its commission. My conclusion, therefore, is that the verdict should be set aside and a new trial ordered.

Ebwards, J., concurred.

Judgment reversed and new trial awarded.